Navajo Nation Vice President Jonathan Nez with young tribal citizens at the Navajo Nation Science Fair on February 28, 2017. Photo: NNOPV

Law | National | Politics

Indian Child Welfare Act survives attack from conservative groups

Tuesday, March 21, 2017

Tribal leaders and advocates are breathing a sigh of relief after a federal judge rejected a broad attack on the Indian Child Welfare Act.

Congress enacted ICWA in 1978 to prevent Indian children from being removed from their communities. The historic law recognizes the role of tribes, as sovereign governments, in determining the welfare of their youngest citizens.

But conservative legal groups, aided by some within the adoption industry, contend the law is racist because it only applies to one class of children. In hopes of weakening ICWA, they sued the federal government on behalf of all children in Arizona with Indian ancestry and on behalf of all adults who have adopted, or are trying to adopt, children with Indian ancestry.

The sweeping nature of the litigation prompted the Navajo Nation and the Gila River Indian Community to intervene out of concern for their ability to protect their youth. Two of the plaintiffs in the case are citizens of the tribes who have been the subject of child welfare proceedings in the state court system.

The expansive reach of the lawsuit, though, proved to be its downfall. In dismissing the complaint, Judge Neil V. Wake said the plaintiffs failed to trace any of their alleged injuries to ICWA guidelines issued by the Bureau of Indian Affairs during the Obama administration.

“The guidelines do not have the force of law,” Wake noted of the 2015 document.

Despite the lack of enforceability, Wake noted that the Arizona courts are considering the guidelines in Indian child welfare cases. But of the four juvenile plaintiffs in the lawsuit, none of them were affected by the BIA's recommendations regarding transfers to tribal courts, he said.

And in the one instance where the Gila River Indian Community tried to have a child welfare case transferred to its court system, Wake said the situation was not covered by the BIA guidelines at issue in the complaint. The tribe lost the request anyway, he noted.

“Any true injury to any child or interested adult can be addressed in the state court proceeding itself, based on actual facts before the court, not on hypothetical concerns,” Wake wrote in the 20-page decision, a copy of which was posted by Turtle Talk.

“If any plaintiffs encounter future real harm in their own proceedings, the judge in their own case can discern the rules of decision,” he continued. “They do not have standing to have this court pre-adjudicate for state court judges how to rule on facts that may arise and that may be governed by statutes or guidelines that this court may think invalid.”

Governor Stephen Roe Lewis of the Gila River Indian Community. Photo: Gage Skidmore

Navajo and Gila River leaders welcomed the March 16 decision. It came after nearly two years of litigation in which the conservative Goldwater Institute in Arizona launched a public relations campaign aimed at undermining ICWA.

“The Indian Child Welfare Act must be protected for the benefit of our children. We will continue to advocate for our foster children to be placed with Navajo families," Navajo Nation Vice President Jonathan Nez said in a press release. “ICWA was created for the protection of native children and to this end, we will continue to advocate for it in these types of custody cases.”

Gila River Governor Stephen Roe Lewis believes the ruling underscores the strength of ICWA, which is nearing 40 years of age. He said the plaintiffs were given numerous opportunities to show how they were supposedly harmed by the law.

“The court's ruling underscores how beneficial ICWA is for all involved in cases where it applies,” Lewis said in a press release. “Even determined ideological opponents of Native American interests could not find anyone the slightest bit injured by the provisions of this important federal statute.”

The National Indian Child Welfare Association, the Native American Rights Fund, the National Congress of American Indians, and the ICWA Appellate Project at Michigan State University College of Law also applauded the decision. They described the case as an “attempt by a special interest group to dismantle the law that has protected thousands of Native children and families nationwide.”

“The court’s holding was based on the fact that — contrary to Goldwater’s claims — no children were harmed by ICWA, a law designed by Congress to protect the rights of children and parents in child welfare proceedings,” the groups said in a joint statement.

Despite ICWA's decades-old mandate, compliance with the law remains spotty across the nation. In part, that's what prompted the BIA to update its guidelines in 2015 and in 2016 and to issue a regulation in 2016 that can be enforced.

The rule went into effect before the end of the Obama administration, which took a stronger interest in protecting ICWA. The Trump administration has not taken any steps to undo the changes and, earlier this month, updated an important list that states and adoptions agencies must use to contact tribes in child welfare proceedings.

Relevant Documents:
Final Rule: Indian Child Welfare Act (ICWA) Proceedings | Final Rule: Indian Child Welfare Act (ICWA) Frequently Asked Questions | Dear Tribal Leader Letter | Dear State Governor Letter

Federal Register Notices for Indian Child Welfare Act:
Indian Child Welfare Act; Designated Tribal Agents for Service of Notice (March 8, 2017)
Indian Child Welfare Act Proceedings (June 14, 2016)
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)