Federal Judge Dismisses Anti-ICWA Suit

Suzette Brewer
12/11/15

On Thursday a federal judge in the Eastern District of Virginia dismissed a suit challenging both the constitutionality of the Indian Child Welfare Act and the new federal guidelines that were implemented last February by the Bureau of Indian Affairs, citing a lack of subject matter jurisdiction and standing in the case.

Last May, the Alexandria, Virginia-based National Council for Adoption (NCFA) and Surprise, Arizona-based Building Arizona Families (BAF), filed suit against Secretary of the Interior Sally Jewell and Assistant Secretary – Indian Affairs Kevin K. Washburn, claiming that ICWA “violates the birth parents’ rights to due process under the Fifth Amendment by interfering with their ability to direct the upbringing of their ‘Indian’ children.”

Related:  BIA Releases New ICWA Guidelines

The complainants, represented pro bono by Washington, D.C., attorney Lori Alvino McGill and her husband Matthew McGill, also took issue with the new guidelines saying that they impose “significant” burdens on state agencies and adoption firms in seeking to place Indian children with ICWA-compliant homes. The guidelines, which do not carry the force of law, were published in the Federal Registry in February after a vigorous collaboration between the tribes and the federal government to improve compliance and enforcement of the federal statute enacted in 1978 to protect the cohesion of Indian families.

Related: War of Words: ICWA Faces Multiple Assaults from Adoption Industry

But United States District Judge Gerald Bruce Lee dismissed the suit, ruling among other things, that the plaintiffs lack standing; the guidelines are not subject to trial because they do not create legal rights and obligations; the guidelines are non-binding; and that the guidelines “do not commandeer” state entities. Additionally, Judge Lee held that the plaintiffs had not demonstrated any authority to support their claims under due process, equal protection or the Indian Commerce Clause.

According to legal experts across the country, the ruling was significant because the court not only dismissed on a lack of standing, but also addressed the merits of the case in explicit detail. For example, even if guidelines were legally binding on state courts, Judge Lee ruled that neither the guidelines, nor ICWA violated any of the claimed constitutional rights asserted by the plaintiffs.

“[The dismissal] is a big win for ICWA and Indian country,” said Chrissi Nimmo, Senior Assistant Attorney General for the Cherokee Nation, the nation’s largest Indian tribe. “The Court found that the adoption industry plaintiffs failed to put forth a ‘plausible’ claim, and reiterated the long standing legal precedent that laws based on tribal membership are not race-based and instead apply because of the unique political status of tribal members.”

The National Indian Child Welfare Association (NICWA), who had submitted an amicus brief in the case, also applauded the decision.

“We’re pleased at the outcome of this case. The court resolutely rejected not simply the National Council for Adoption and others’ standing, but more significantly, the court rejected the very foundation of their constitutional arguments,” said Dr. Sarah Kastelic, executive director of NICWA. “Because their constitutional arguments are very similar to those in the other coordinated federal court litigation brought forth by well-resourced, anti-ICWA opponents, it bolsters our belief that these cases will also be found without merit, and that our Native children will continue to benefit from the hard-fought protections that ICWA affords.”

Please visit Indian Country Today Media Network for continued coverage of the Indian Child Welfare Act.

Follow Suzette Brewer on Twitter @suzette_brewer

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