A.D. v. Washburn

A.D., C.C., L.G., and C.R., by Carol Coghlan Carter, and Dr. Ronald Federici, their next friends;S.H. and J.H., a married couple; M.C. and K.C., a married couple; K.R.and P.R., a married couple; for themselves and on behalf of a class ofsimilarly-situated individuals, Plaintiffs, v. Kevin Washburn, in his official capacity as Assistant Secretary of Indian Affairs,Bureau of Indian Affairs; Sally Jewell, in her official capacity as Secretary of the Interior,U. S. Department of the Interior; Gregory A. McKay, in his official capacity as Director ofArizona Department of Child Safety, Defendants,Gila River Indian Community and the Navajo Nation, Intervenor Defendants.

No. CV-15-01259-PHX-NVW

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF ARIZONA

March 16, 2017

ORDER

Before the Court are motions to dismiss the First Amended Complaint by the Federal Defendants (Doc. 178) and the State Defendant (Doc. 179), the Responses, and the Replies. Also before the Court are motions to dismiss the First Amended Complaint by the Intervenor-Defendants Gila River Indian Community (Doc. 217) and the Navajo Nation (Doc. 218), the response, and the replies. Amicus curiae briefs have been filed in support of and in opposition to the motions to dismiss.

In this action the adult Plaintiffs and those who have undertaken to speak for the child Plaintiffs attempt to challenge parts of the Indian Child Welfare Act ("ICWA") as unconstitutional racial discrimination. They also challenge Congress's power to enact laws regulating state court proceedings and ousting state laws concerning foster care placement, termination of parental rights, preadoptive placement, and adoptive placements of some off-reservation children of Indian descent. More specifically, these are children whose parents elected to leave Indian Country and take up residence off reservation with the benefits of and obligations under state law of all other persons within the jurisdiction of the state and outside Indian Country.

Plaintiffs seek a declaration that certain provisions of the Indian Child Welfare Act and of the Guidelines for State Courts and Agencies in Indian Child Custody Proceedings published on February 25, 2015 ("2015 Guidelines")¹ by the Department of the Interior, Bureau of Indian Affairs ("BIA"), violate the United States Constitution, federal civil rights statutes, and Title VI of the Civil Rights Act by requiring State courts to treat Indian children differently than non-Indian children in child custody proceedings. They seek to enjoin the Federal Defendants from enforcing these provisions and the State Defendant from complying with and enforcing these provisions. The Guidelines do not have the force of law. They might be viewed uncharitably as avoiding the rule-making requirements of the Administrative Procedures Act but still having enough of the look of regulations that judges and others will follow them anyway.

In ICWA, adopted in 1978, Congress responded to the increasing adoption by non-Indian families of Indian children resident off-reservation and subject to the exclusive jurisdiction of state courts. Congress enacted ICWA:

. . . to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment ofminimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.

25 U.S.C. § 1902.

From the outset Plaintiffs have grounded sweeping challenges to ICWA and the 2015 Guidelines on vague or narrow allegations of their own experience with ICWA. The motions to dismiss probe the jurisdictional specifics of each Plaintiff's allegations.

I. REGULATORY BACKGROUND

Congress authorized the Department of the Interior to make rules and regulations necessary for carrying out provisions of ICWA. 25 U.S.C. § 1952. The Department promulgated regulations to govern funding and administering Indian child and family service programs as authorized by ICWA. 25 C.F.R. § 23.1. The regulations also addressed notice procedures for involuntary child custody proceedings involving Indian children, but they "did not address the specific requirements and standards that ICWA imposes upon State court child custody proceedings, beyond the requirements for contents of the notice." 80 Fed. Reg. 10146, 10147. To supplement the regulations, the Department published guidelines for State courts to use in interpreting many of ICWA's requirements in Indian child custody proceedings. Id. In 2015, the Department published the updated 2015 Guidelines to supersede and replace the guidelines published in 1979. Id. Like the previous guidelines, the 2015 Guidelines are not tethered to regulations.

The 2015 Guidelines "provide standard procedures and best practices to be used in Indian child welfare proceedings in State courts." 80 Fed. Reg. 10146, 10147. They state, "In order to fully implement ICWA, these guidelines should be applied in all proceedings and stages of a proceeding in which the Act is or becomes applicable." Id. at 10150. Although the 2015 Guidelines are not binding, Arizona courts nevertheless have considered them in interpreting ICWA. Gila River Indian Cmty. v. Dep't of Child Safety, 238 Ariz. 531, 535 (Ct. App. 2015); Gila River Indian Cmty. v. Dep't of Child Safety, 240 Ariz. 385, 389 n.12 (Ct. App. 2016).

In June 2016, the Department added a new subpart to its regulations implementing ICWA, which "addresses requirements for State courts in ensuring implementation of ICWA in Indian child-welfare proceedings and requirements for States to maintain records under ICWA." 81 Fed. Reg. 38778, 38778 (June 14, 2016). The regulations in the new subpart "clarify the minimum Federal standards governing implementation of [ICWA] to ensure that ICWA is applied in all States consistent with the Act's express language, Congress's intent in enacting the statute, and to promote the stability and security of Indian tribes and families." 25 C.F.R. § 23.101.

The new subpart became effective on December 12, 2016. None of the provisions of the new subpart affects a proceeding under State law that was initiated before December 12, 2016, but the provisions of the new subpart do apply to any subsequent proceeding in the same matter or affecting the custody or placement of the same child. 23 C.F.R. § 23.143. For example, the new subpart does not apply to a foster care placement proceeding initiated in November 2016, but it does apply to an adoptive placement proceeding initiated in January 2017 for the same child.

In conjunction with the new subpart of ICWA regulations, on December 12, 2016, the Department published Guidelines for Implementing the Indian Child Welfare Act ("2016 Guidelines"), which replaced the 1979 and 2015 versions. Under each heading, the 2016 Guidelines provide the text of the regulation (if there is one), guidance, recommended practices, and suggestions for implementation.

The Amended Complaint does not challenge any regulations or the 2016 Guidelines. It challenges only certain provisions of ICWA and the 2015 Guidelines.

II. THE AMENDED COMPLAINT

A. Procedural Background

On July 6, 2015, Plaintiffs filed a Civil Rights Class Action Complaint for Declaratory and Injunctive Relief. (Doc. 1.) On December 18, 2015, during oral argument regarding standing issues raised in motions to dismiss, Plaintiffs' counsel indicated that Plaintiffs would like to amend their complaint to add additional plaintiffs.(Doc. 122.) On February 22, 2016, the Court ordered Plaintiffs to file a status report stating whether and when they planned to amend their complaint to add additional plaintiffs. (Doc. 145.) On February 29, 2016, Plaintiffs reported they wanted to amend their complaint to add two children and their foster/preadoptive parents as plaintiffs and to update facts regarding pending State court proceedings. (Doc. 149.) On March 2, 2016, Plaintiffs sought leave to file an amended complaint, which Defendants opposed by arguing, among other things, that both the proposed additional plaintiffs and the original plaintiffs lacked standing. (Docs. 150, 160, 162.) On April 4, 2016, the Court granted Plaintiffs leave to amend their complaint and denied the pending motions to dismiss as moot. (Doc. 172.)

On April 5, 2016, Plaintiffs' First Amended Civil Rights Class Action Complaint for Declaratory, Injunctive, and Other Relief ("Amended Complaint") was filed. (Doc. 173.) On April 22, 2016, the Federal Defendants and the State Defendant filed motions to dismiss the Amended Complaint. (Docs. 178, 179.) On September 29, 2016, the Gila River Indian Community and the Navajo Nation were granted permissive intervention, and their proposed motions to dismiss the Amended Complaint were filed. (Doc. 216.)

B. Plaintiffs' Claims for Relief

Count 1 of the Amended Complaint alleges that 25 U.S.C. §§ 1911(b), 1912(d), 1912(e), 1912(f), 1915(a), 1915(b) and §§ A.2, A.3, B.1, B.2, B.4, B.8, C.1, C.2, C.3, D.2, D.3, F.1, F.2, F.3, F.4 of the 2015 Guidelines violate the equal protection guarantee of the Fifth Amendment. Count 2 alleges that the same statutes and provisions of the 2015 Guidelines violate the due process guarantee of the Fifth Amendment. Count 3 alleges that the State Defendant's compliance with the challenged statutes and sections of the 2015 Guidelines violates the substantive due process and equal protection clauses of the Fourteenth Amendment.

Count 4 alleges that ICWA exceeds the federal government's power under the Indian Commerce Clause and the Tenth Amendment and impermissibly commandeers State courts and State agencies. Count 5 alleges that the challenged statutes and sectionsof the 2015 Guidelines violate Plaintiffs' associational freedoms under the First Amendment by forcing them to associate...