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General Memorandum 15-039

General Memorandum 15-039
Federal Court Complaint Challenges 2015 ICWA Guidelines and Constitutionality of the ICWA

A complaint filed in federal district court on May 27, 2015, challenges the validity of the Guidelines for state courts and child welfare agencies in implementation of the Indian Child Welfare Act (ICWA) published by the Bureau of Indian Affairs (BIA) on February 25, 2015. (See our General Memorandum 15-022 of March 12, 2015). The lawsuit, filed by the National Council for Adoption, Building Arizona Families, and various individual plaintiffs, also challenges the constitutionality of the ICWA itself.

The complaint, National Council for Adoption v. Jewell, names as Defendants the Secretary of the Interior, the Assistant Secretary of Indian Affairs, the Bureau of Indian Affairs, and the U.S. Department of the Interior. It alleges that the 2015 Guidelines were published in violation of certain procedural requirements of the Administrative Procedure Act; that they "violate the United States Constitution by instructing state courts to violate the due process and equal protection rights of 'Indian children' and the birth parents of such children"; and that they unconstitutionally require state courts and agencies to use their own resources to carry out federal objectives. In particular, the plaintiffs object to (1) the statement in the Guidelines that an analysis of the "best interests" of the child should not be conducted independently of the ICWA placement preferences in an ICWA case, because those placement preferences are intended to reflect the best interests of Indian children, and (2) the statement in the Guidelines that adoption agencies "must always follow the placement preferences" and must conduct a diligent search to identify placement options that would satisfy the placement requirements.

The complaint further alleges that the ICWA violates the constitutional due process and equal protection rights of both Indian children and the birth parents of those Indian children. With respect to Indian children, the complaint alleges that the ICWA violates their equal protection rights by denying them the benefit of the same "best interests" determination provided to non-Indian children in foster care and adoption placement proceedings, and that the ICWA violates their liberty interests under the Due Process clause when the placement preferences are applied to remove them from a foster or preadoptive family with whom they have formed a "familial bond." With respect to the parents of Indian children, the complaint alleges that the ICWA violates their due process rights by interfering with their ability to direct the upbringing of their children, specifically, to determine an adoptive placement for their children outside of the ICWA's placement preferences, and that the ICWA discriminates against such parents on the basis of their children's "Indian ancestry." Further, the complaint alleges that Congress lacked constitutional authority under the Indian Commerce clause to enact the ICWA.

According to the complaint, the Plaintiffs seek from the court a declaration that the Guidelines are unlawful and violate the 10th amendment, an order setting aside the Guidelines, and injunctive relief ordering the Department of the Interior to withdraw the Guidelines. They further seek a declaratory judgment that the child custody provisions of the ICWA "violate the United States Constitution and accordingly cannot be applied" to the Plaintiffs.

Indian tribes and tribal organizations are in the process of analyzing this complaint challenging the Indian Child Welfare Act 2015 Guidelines and the constitutionality of the Act and will be coordinating their efforts.

Please let us know if we may provide additional information regarding this case.

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Inquiries may be directed to:
Geoff Strommer (gstrommer@hobbsstraus.com)
Caroline Mayhew (cmayhew@hobbsstraus.com)
Karen Funk (kfunk@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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