United States District Court, D. Arizona
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 of similarly-situated individuals, Plaintiffs,
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 of Arizona Department of Child Safety, Defendants.
V. Wake Senior United States District Judge
the Court are the Motion of the Gila River Indian Community
to Intervene as Defendant (Doc. 47) and the Amended Motion to
Intervene by the Navajo Nation (Doc. 198). Defendants Kevin
Washburn and Sally Jewell (“Federal Defendants”)
consent to the motions, Defendant Gregory McKay (“State
Defendant”) takes no position, and Plaintiffs oppose
the motions. Oral argument was heard on September 28, 2016.
filed this action on behalf of themselves and all
off-reservation Arizona-resident children with Indian
ancestry and all off-reservation Arizona-resident foster,
preadoptive, and prospective adoptive parents in child
custody proceedings involving children with Indian ancestry.
Plaintiffs seek a declaration that provisions of the Indian
Child Welfare Act (“ICWA”), specifically 25
U.S.C. §§ 1911(b), 1912(d), 1912(e), 1912(f),
1915(a), 1915(b), and the 2015 Guidelines issued by the
Bureau of Indian Affairs, §§ 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,
violate the United States Constitution, federal civil rights
statutes, and Title VI of the Civil Rights Act. They seek to
enjoin the Federal Defendants from enforcing these provisions
and the State Defendant from complying with and enforcing
these provisions. In addition, Plaintiffs allege that ICWA
exceeds the federal government's power under the Indian
Commerce Clause and the Tenth Amendment, but do not expressly
seek a declaration that all of the provisions of ICWA are
C.C. is an enrolled member of the Navajo Nation. Parental
rights of C.C.'s birth parents were terminated, and
adoption of C.C. by Plaintiffs M.C. and K.C. was finalized by
the state court in November 2015.
A.D. is an enrolled member of the Indian Community. Plaintiff
C.R. is eligible for membership in and is a child of a member
of, or is already an enrolled member of, the Indian
Community. Plaintiff L.G. is C.R.'s half-sibling and is
not eligible for membership in the Pascua Yaqui Tribe of
Arizona. Parental rights of A.D.'s, C.R.'s, and
L.G.'s birth parents have been terminated by the state
court, which is treating C.R.'s and L.G.'s cases as
Gila River Indian Community (“Indian Community”)
and the Navajo Nation are both federally recognized tribes
and seek to intervene as of right as defendants in this case
and, in the alternative, to intervene permissively.
INTERVENTION OF RIGHT
timely motion, the court must permit anyone to intervene who
“claims an interest relating to the property or
transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical
matter impair or impede the movant's ability to protect
its interest, unless existing parties adequately represent
that interest.” Fed.R.Civ.P. 24(a)(2). “Courts
are guided primarily by practical and equitable
considerations.” Arakaki v. Cayetano, 324 F.3d
1078, 1083 (9th Cir. 2003).
applicant for intervention as of right must demonstrate that:
(1) the intervention application is timely; (2) the applicant
has a significant protectable interest relating to the
property or transaction that is the subject of the action;
(3) the disposition of the action may, as a practical matter,
impair or impede the applicant's ability to protect its
interest; and (4) the existing parties may not adequately
represent the applicant's interest.” Prete v.
Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (citations
omitted). The requirements are broadly interpreted in favor
of intervention. Citizens for Balanced Use v. Montana
Wilderness Ass'n, 647 F.3d 893, 897 (9th Cir. 2011).
However, “[f]ailure to satisfy any one of the
requirements is fatal to the application.” Perry v.
Proposition 8 Official Proponents, 587 F.3d 947, 950
(9th Cir. 2009).
Three factors are considered to determine whether an
intervention motion is timely: (1) the stage of the
proceeding when the motion is filed; (2) the prejudice to
other parties; and (3) the reason for and length of the
delay. League of United Latin Am. Citizens v.
Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997).
To demonstrate a related significant protectable interest,
the applicant must show an interest that is protectable under
some law and there is a relationship between the legally
protected interest and the claims at issue. Arakaki,
324 F.3d at 1084. The “relationship” requirement
generally is satisfied only if the resolution of the
plaintiff's claims actually will affect the applicant.
Id. The applicant may not inject unrelated issues
into the pending litigation. Id. The applicant need
not establish a specific legal or equitable interest, but an
economic stake in the outcome of the litigation is not
sufficient. Greene v. United States, 996 F.2d 973,
976 (9th Cir. 1993).
impairment of interest. “The question of whether
protectable interests will be impaired by litigation must be
put in practical terms rather than in legal terms.”
Akina v. Hawaii, __ F.3d __, 2016 WL 450186, *5 (9th
Cir. Aug. 29, 2016) (citation omitted). Where the applicant
remains free to bring a separate action or pursue alternative
means of achieving its ultimate objective, the disposition of
the action may not impair or impede the applicant's
ability to protect its interest. See Id.
“Speculative possibility” of future impairment of
an interest does not outweigh the interjection of unnecessary
and distracting considerations by an intervenor. United
States v. Washington, 593 F.3d 790, 801 (9th Cir. 2010)
(treaty tribes were not entitled to intervene in recognition
proceedings even though a newly recognized tribe might assert
treaty rights in the future). However, a court must consider
whether factual and legal ...