Yesterday the Phoenix, Arizona-based Goldwater Institute announced the filing of A.D. v. Washburn
in the United States District Court for the District of Arizona, a
class-action lawsuit challenging the constitutionality of the Indian
Child Welfare Act based on their contention that the federal legislation
“discriminates against Native children.” Secretary of the Interior
Sally Jewell, Assistant Secretary for the Bureau of Indian Affairs Kevin
Washburn, and Gregory McKay, director of the Arizona Department of
Child Safety (DCS) have all been named as defendants in the case.
The suit is being filed on behalf of “all off-reservation
Arizona-resident children with Indian ancestry in child custody
proceedings and the foster, pre-adoptive or prospective adoptive parents
of these children,” according to the organization’s
press release.
“This case will not impact current or future cases that involve
children or parents living on a reservation where a tribal court has
jurisdiction; it will change the law so that state courts and agencies
cannot discriminate against Native American children.”
Washburn marks the third major legal challenge to the
38-year-old federal law since the Bureau of Indian Affairs published new
ICWA guidelines in the Federal Registry in February of this year,
followed by the agency’s declared intention to seek a federal rule,
which would make the statute more enforceable on state courts and social
service agencies.
“While we have not yet reviewed the filing, we understand that a
lawsuit challenging ICWA was filed yesterday. In matters in litigation,
we will speak primarily through our briefs in court, but I want to
assure the public that we will defend the Indian Child Welfare Act,”
said BIA assistant secretary Washburn in a written statement. “Nearly 40
years ago, Congress determined that Indian children were being treated
unfairly in the context of foster care and adoption. Congress determined
that ‘an alarmingly high percentage of [Indian] children’ were
subjected to ‘unwarranted’ removal from their homes and that a federal
law was needed to protect Indian children. This law has been an
important feature of the legal landscape for many years now and we
firmly believe that the protection of the best interests of Indian
children continues to be important today.”
According to the suit, the plaintiffs are seeking declaratory and
injunctive relief against “certain provisions of ICWA and the
accompanying BIA guidelines” on behalf of “A.D.,” a 10-month-old baby
girl who is an enrolled member of the Gila River Indian Community.
Another child plaintiff is a 4-year-old boy who is a member or eligible
for membership in the Navajo Nation. The birth parents of both children
have had their parental rights terminated by the state and both children
reside off-reservation in Arizona. The Navajo Nation, as outlined in
the brief, has repeatedly attempted to find ICWA-compliant homes for the
boy—all of which were rejected by the state as “inappropriate”
placements. If not for the Indian Child Welfare Act, according to the
brief, the boy would already be in a permanent home under “race-neutral”
Arizona law.
“When an abused child is removed from his home and placed in foster
care or made available for adoption, judges are required to make a
decision about where he will live based on his best interest. Except for
Native American children. Courts are bound by federal law to disregard a
Native American child’s best interest and place him in a home with
other Native Americans, even if it is not in his best interest,” said
Darcy Olsen, president of the Goldwater Institute in the organization’s
press release. “We want federal and state laws to be changed to give
abused, neglected or abandoned Native American children the same
protections that are given to all other American children: the right to
be placed in a safe home based on their best interests, not based on
their race.”
But the original author of the Indian Child Welfare Act, retired
South Dakota Senator James Abourezk, took the Goldwater Institute to
task for their attempt to overturn one of his signature legislative
achievements during his time in the United States Senate. Ironically,
Abourezk’s late friend and colleague Senator Barry Goldwater actually
voted in favor of ICWA when it was approved by the Senate in 1977.
“I knew Barry Goldwater—he was my friend and often came to me for
advice on most tribal matters,” said Abourezk from his home in Sioux
Falls, South Dakota. “I wish he were alive to see this travesty because
he would never approve of it and you can quote me on that and make sure you emphasize the word ‘never.’”
Tribal leaders, their legal teams and ICWA advocates across the
country seem universally opposed to the litigation. They view with
skepticism adoption practices in the United States, and the economic
factors and
profits at play.
“The Native American Rights Fund is closely following the lawsuits
filed in Virginia, Minnesota, and now Arizona,” said NARF staff attorney
Matthew Newman. “What is abundantly clear is that these lawsuits are
part of a coordinated, well-financed attack on the rights of tribal
nations to protect their children. It is open season on the Indian Child
Welfare Act.”
“At this point it is pretty clear that anti-ICWA advocates, who
primarily represent adoption interests, have started a coordinated
attack on ICWA,” said Kate Fort, Staff Attorney and Adjunct Professor
for the Indigenous Law and Policy Center at Michigan State University
College of Law. “They are looking for cases of opportunity in courts
across the country by inserting themselves and trying to make the same
constitutional arguments against ICWA. But this lawsuit will absolutely
hurt vulnerable children and families in our state child welfare
systems. Their claims that ICWA’s protections are substandard is simply
not true. ICWA’s standards are considered the gold standard of child
welfare practice. To say these lawsuits to dismantle ICWA are in the
best interest of the child is really contrary to what is considered best
practices by child welfare professionals.”
Stephen Pevar, senior counsel for the American Civil Liberties Union,
says the whole point of enacting ICWA was to end decades of unnecessary
removals of Indian children from their homes and communities.
“Congress held years of hearings [before enacting ICWA] and many
Indians who were victims of state foster care cases testified,” said
Pevar. “Based on that testimony and other research, Congress found that
it is in the best interests of Indian children to be raised in an Indian
home except in extraordinary circumstances. Therefore, the Goldwater
Institute is wrong in saying that Congress overlooked the ‘best
interest’ standard. Instead, Congress accepted that standard and
concluded that there’s a presumption that it’s in the best interest of
Indian children to be raised in an Indian home. In addition, the Supreme
Court has already rejected the notion that ICWA creates racial
discrimination when it imposes minimum federal standards on state courts
in their handling of Indian child custody cases.”
But ICWA has come under assault in courts all over the country in the
last several months, say legal experts, in states unwilling to deviate
from the “business-as-usual” approach, in which an average adoption can
bring anywhere from $40,000 to copy00,000 in fees and costs for private
adoptions, depending on various factors, including living expenses for
the birth mother.
In May, for example, Washington, D.C.-based attorneys Lori McGill and
her husband, Matthew McGill, filed suit in federal court in Virginia
seeking to challenge the new BIA guidelines which they believe impose
“federalism” on state courts regarding the adoption of Indian children.
Mrs. McGill, who played a
key role in
Adoptive Couple v. Baby Girl in 2013, told the
National Law Journal
in May that she gets emails on a weekly basis “from lawyers and
adoptive parents telling me how ICWA is ripping their families apart.”
That same month, the Oklahoma Court of Civil Appeals openly dismissed
the new BIA guidelines in a case involving a 4-year-old Cherokee girl
who had been placed in a non-Indian foster home during emergency
proceedings in 2013. At the time, an ICWA-compliant home was not
available, though a year later the tribe filed a motion to transfer the
girl to a Cherokee family that the tribe had located. In ordering the
girl to stay with her foster parents over the tribe’s objection, the
court’s contempt for the new guidelines was palpable.
“The BIA guidelines’ intentional disregard of these factors results
in a one-size-fits-all approach to the placement of children with any
tribal affiliation,” the judges wrote. “That result may bear little
resemblance to what is really in the child’s best interests, despite the
self-serving pronouncements of the BIA guidelines.”
In June, adoption attorneys representing tribal parents in Minnesota filed another suit,
Doe v. Jesson,
in which they argued the Minnesota Indian Family Protection Act (MIFPA)
violates constitutional due process in requiring notice of adoptions to
the tribe.
On Monday, however, the Minnesota District Court denied
a preliminary injunction based on state law requiring notice to tribes.
The Court ruled that the MIFPA posed no threat of irreparable harm to
the two tribal plaintiffs in complying with notice requirements. The
tribe in the case, the Mille Lacs Band of Ojibwe, have declined to
intervene.
But today’s litigation, say observers, strikes at the heart of not
only of the Indian Child Welfare Act, but also the keystone of tribal
sovereignty as a whole: The right of Indian tribes to determine their
own membership and raise their children in their home communities.
“Using tragic stories to try to destroy the constitutionality of ICWA is not appropriate. As we know from
Morton v. Mancari,
Native status is a political identity not racial or ethnic, so laws
that give any type of Indian preference or preferential treatment are
not in violation of the equal protection clause,” said Victoria Sweet, a
program attorney for the Reno, Nevada-based National Council of
Juvenile and Family Court Judges. “It’s ironic that [the Goldwater
Institute] would argue that Native children get
less protections when
they actually get
more and it is disingenuous to suggest otherwise when
the reality is clearly the opposite. We are not yet at a point where the
initial purpose of ICWA has disappeared. We still need this law. It
still protects Native children.”
“It’s 38 years later and I still get mail from Indian people who tell
me how important this legislation is,” said Abourezk. “The tribes need
to mount a unified attack against this lawsuit because it’s good law and
what they’re doing is wrong. It would be an enormous tragedy to see
them overturn it.”
RELATED:
War of Words: ICWA Hearings Reignite Ancient Clash Over Indian Children, Part 1
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