1. Federal Court Challenges to the Indian Child Welfare Act Samuel F. Daughety 17th Annual DC Indian Law Conference November 10, 2015

2. Background - State and Federal Court Adjudication of Cases Where ICWA is at Issue ICWA not intended to "oust the States of their traditional jurisdiction over Indian children falling within their geographic limits" (H.R. Rep. No. 95-1386 at 19) Most significant provisions in ICWA aimed at establishing minimum federal standards and procedural safeguards in state court proceedings Several states have incorporated provisions of ICWA into state law Thousands of active ICWA cases in state courts across the country at any given time Hundreds of state court of appeals decisions interpreting ICWA since 1978

3. Background - State and Federal Court Adjudication of Cases Where ICWA is at Issue "The federal courts have interpreted ICWA on rare occasions…" Doe v. Mann, 415 F. 3d 1038, 1051 (9th Cir. 2005) Two Supreme Court decisions addressing ICWA Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989) (Mississippi Supreme Court) Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013) (South Carolina Supreme Court)

4. Timeline of Recent Developments January, 2013: cert grant in Adoptive Couple Widespread media attention Overwhelming amicus curiae participation by Indian tribes and tribal organizations June, 2013: Supreme Court decides Adoptive Couple 5-4 (Justice Alito): certain ICWA provisions inapplicable where biological father "abandoned the Indian child before birth and never had custody of the child." 133 S.Ct. at 2557. In dicta, suggests that interpreting ICWA to allow a (hypothetical) biological Indian father who "abandoned child in utero" only to "play his ICWA trump card at the eleventh hour to override the mother's decision and the child's best interests" would "raise equal protection concerns." Id., at 2565. Justice Thomas (concurring) - ICWA as applied to the case would be unconstitutional; questions plenary authority of Congress over Indian affairs February, 2014: DOI solicits comment on new Guidelines February, 2015: DOI publishes new Guidelines

5. Timeline of Recent Developments May, 2015 (E.D. Va.) Suit challenging new ICWA Guidelines June, 2015— (D. Minn.) Suit challenging Minnesota Indian Family Preservation Act July, 2015— (D. Ariz.) putative class action challenging ICWA and the Guidelines August, 2015— (D. Okla.) Suit challenging Oklahoma Indian Child Welfare Act September, 2015— (D. Mich.) Suit challenging Michigan Indian Family Preservation Act 6/22/2016 5

6. ICWA Defense Project NARF ICWA Appellate Clinic, MSU LAW NCAI NICWA

7. National Council for Adoption v. Jewell (E.D. Va.) Various adoption agencies and unnamed Indian children (represented by their guardian ad litem) challenge Guidelines’ placement preferences and procedural requirements: Guidelines violate Administrative Procedure Act Guidelines violate Fifth Amendment due process and equal protection rights Guidelines violate Tenth Amendment Current Status: National Indian organizations file amicus brief in support of government's motion to dismiss Court denies plaintiffs' partial motion for summary judgment; holds plaintiffs lack standing Briefing on motion to dismiss complete; hearing set for November 13

8. Carter et al. v. Washburn (D. Ariz.) Individual children and their "next friend" file class action lawsuit against federal and state officials alleging core ICWA provisions and Guidelines are unconstitutional: ICWA and Guidelines violate equal protection and due process under Fifth and Fourteenth Amendments ICWA exceeds Congress' authority under Indian Commerce Clause and Tenth Amendment ICWA violates First Amendment right to association Guidelines violate APA Current Status: Class certification stayed pending ruling on government entities' motions to dismiss Gila River Indian Community motion to intervene pending National Indian organizations and Casey Family Programs et al. file amicus briefs in support of motion to dismiss Hearing on motions to dismiss December 18

9. Doe v. Jesson (D. Minn.) / Doe v. Pruitt (N.D. Okla.) Birth parent suits regarding state ICWA statutes against state and tribal officials: Target provisions providing notice and right to intervention in voluntary adoption State ICWA statutes violates due process, equal protection, and rights to privacy/family integrity under Fourteenth Amendment Current Status: Jesson - Defendants successfully defeat preliminary injunction; awaiting ruling on motions to dismiss Pruitt - Briefing on motion to dismiss ongoing

10. Donn v. Nelson (W.D. Mich.) Foster parent challenge to state ICWA statute against state and tribal officials: Targets tribal transfer provisions State ICWA statute violates due process and equal protection Current Status: Motion for preliminary injunction denied; case at pre-trial stage

11. Engineering a Circuit Split? 6/22/2016 11 NCFA v. Jewell (E.D. Va.) (4th Circuit) Carter v. Washburn (D. Ariz.) (9th Circuit) Doe v. Jesson (D. Minn.) (8th Circuit) Doe v. Pruitt (D. Okla.) (10th Circuit) Donn v. Nelson (D. Mich.) (6th Circuit)

12. Meanwhile, at the Department of the Interior…

13. Meanwhile… March, 2015: BIA publishes proposed rule codifying ICWA guidelines as regulations Proposed regulations "incorporate many of the changes made to the recently revised guidelines... establishing the Department’s interpretation of ICWA as a binding interpretation to ensure consistency in implementation of ICWA across all States.” 80 Fed. Reg. 14,880, 14,881 (Mar. 20, 2015) Once finalized, would provide another avenue for challenge. In other words, stay tuned for more litigation…

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