Lawsuit challenges constitutionality of Indian Child Welfare Act

Indian children in South Dakota. Photo from Lakota People's Law Project / Facebook

Two adoption groups have opened a new war against the Indian Child Welfare Act amid the Obama administration's efforts to strengthen the decades-old law.

The National Council for Adoption and Building Arizona Families filed the lawsuit in federal court in Virginia today. It claims ICWA violates the constitutional rights of birth parents by denying them the ability to place Indian children in the homes of their choosing.

"It violates birth parents’ rights to due process under the Fifth Amendment by interfering with their ability to direct the upbringing of their ‘Indian’ children," the complaint states.

The lawsuit also questions new ICWA guidelines that were issued by the Bureau of Indian Affairs in February. It claims that state agencies and adoption agencies are being forced to take extra steps before finding homes for Indian children.

"The 2015 Guidelines impose significant burdens (financial and otherwise) on NCFA's member agencies," the complaint states, referring to the National Council for Adoption.

The guidelines do not carry the force of law. However, the BIA has proposed a new ICWA rule that seeks to compliance by state courts and child welfare agencies.

A husband and wife team of attorneys is handling the lawsuit free of charge, The National Law Journal reported. Lori Alvino McGill represented the non-Indian biological mother in Adoptive Couple v. Baby Girl, an ICWA case that went to the U.S. Supreme Court.

The high court did not question the constitutionality of ICWA although some non-Indian groups were hoping that would happen.

Matthew D. McGill, the other lawyer, works at a law firm that submitted briefs in the Baby Girl case.

The defendants are Interior Secretary Sally Jewell and Assistant Secretary Kevin Washburn, the head of the BIA.

Get the Story:
New Challenge to Native American Adoption Rules (The National Law Journal 5/27)

Federal Register Notices:
Regulations for State Courts and Agencies in Indian Child Custody Proceedings (March 30, 2015)
Guidelines for State Courts and Agencies in Indian Child Custody Proceedings (February 25, 2015)

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