Federal Lawsuits Challenging ICWA

Two federal court lawsuits have recently been filed challenging aspects of ICWA.  The complaint in each case is linked below:

• 2015.05.27 Nat Council for Adoption v. Jewell Complaint
• 2015.06.03 Baby Doe – MN ICWA Challenge in Voluntary Adoption

The National Council for Adoption v. Jewell case takes aim at the federal ICWA and the New Guidelines.  It involves multiple plaintiffs and is quite broad in its scope.  It challenges ICWA and the New Guidelines in most of the ways they are broadly susceptible to challenge.  The follow are among the arguments made in the complaint:

• The Department of the Interior violated the Administrative Procedure Act when it issued the New Guidelines.
• The New Guidelines violate the U.S. Constitution by instructing state courts to violate the due process and equal protection rights of Indian children and their parents.
• The New Guidelines violate the U.S. Constitution by impermissibly commandeering state resources.
• ICWA violates the substantive due process and equal protection rights of birth parents of Indian children by unjustifiably impeding their ability to place their children in adoptive homes outside the ICWA placement preferences.
• ICWA violates the due process and equal protection rights of Indian children by limiting the consideration of the children’s best interests.

The Minnesota case does not directly challenge the federal ICWA, but rather Minnesota’s version of that law.  The plaintiff’s in the case are the anonymous birth parents of Baby Doe, and have placed baby Doe for adoption outside the ICWA placement preferences.  The Doe parents kept the pregnancy secret from even their own family, and fear embarrassment and immense social pressure if their adoption plan is revealed to others in the tribal community.  The Minnesota version of ICWA explicitly gives Tribes rights to notice of, and intervention in, private voluntary adoptions.  Among other things, the Doe parents’ complaint alleges that:

• The Minnesota version of the ICWA violates their substantive due process rights to privacy and family integrity, and is not narrowly tailored to serve a compelling government interest.
• The Minnesota version of the ICWA violates their equal protection rights by discriminating on the basis of race, national origin, or ethnicity.

While neither of these cases challenges the proposed ICWA regulations, which have not been released in final form, both have significant ramifications for those regulations.  If the Plaintiff’s in these cases prevail on their constitutional claims, parts of the new regulations will also be unconstitutional (absent major and unlikely re-drafting from the initial proposed regulations).