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A.D. v. Washburn

United States District Court, D. Arizona

March 16, 2017

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,
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 of Arizona Department of Child Safety, Defendants, Gila River Indian Community and the Navajo Nation, Intervenor Defendants.

          ORDER

          Neil V. Wake Senior United States District Judge

         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 of minimum 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 sections of the 2015 Guidelines violate Plaintiffs' associational freedoms under the First Amendment by forcing them to associate with tribes and tribal communities. Count 6 alleges that the BIA exceeded its authority by publishing §§ C.1, C.2, and C.3 of the 2015 Guidelines, which expand application of § 1911(b) beyond its terms. Count 7 seeks nominal damages of $1 to each of the named Plaintiffs and to each of the members of the class they seek to represent under Title VI of the Civil Rights Act, 42 U.S.C. §§ 2000d-2000d-7.[2]

         C. The Parties

         The Amended Complaint is filed on behalf of Plaintiffs 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.

         Plaintiff A.D. is an enrolled member of the Gila River Indian Community. Parental rights of A.D.'s biological parents have been terminated by the State court. Plaintiffs S.H. and J.H., a married couple, are foster/preadoptive parents of A.D. and have taken care of A.D. since birth. Their petition to adopt A.D. was pending in the State court on April 5, 2016. Neither S.H. nor J.H. is an enrolled member of an Indian tribe or eligible for membership in an Indian tribe.

         Plaintiff C.C. is an enrolled member of the Navajo Nation. Parental rights of C.C.'s biological parents were terminated, and adoption of C.C. by Plaintiffs M.C. and K.C. was finalized by the State court in November 2015. C.C. continuously remained in foster care with M.C. and K.C. for four years before the adoption was finalized. Neither M.C. nor K.C. is an enrolled member of an Indian tribe or eligible for membership in an Indian tribe.

         Plaintiff C.R. is eligible for membership in and is a child of a member of, or is already an enrolled member of, the Gila River Indian Community. Plaintiff L.G. is C.R.'s half-sibling and is not eligible for membership in the Pascua Yaqui Tribe of Arizona. L.G. and C.R. were taken into protective custody when C.R. was born and L.G. was about two years old. As of April 5, 2016, the parental rights of C.R.'s and L.G.'s biological parents had not been terminated by the State court, which is treating C.R.'s and L.G.'s cases as one. C.R. and L.G. have continuously remained in foster care with Plaintiffs K.R. and P.R., a married couple, who want to adopt C.R. and L.G.

         The Amended Complaint names Carol Coghlan Carter and Dr. Ronald Federici as “next friends” to A.D., C.C., C.R., L.G., and all off-reservation children with Indian ancestry in the State of Arizona in child custody proceedings.

         The Federal Defendants are Kevin Washburn in his official capacity as Assistant Secretary of Indian Affairs, BIA, and Sally Jewell in her official capacity as Secretary of the Interior, U.S. Department of the Interior. The State Defendant is Gregory McKay in his official capacity as Director of Arizona Department of Child Safety. Intervenor Defendants are the Gila River Indian Community and the Navajo Nation, both federally recognized tribes.

         III. LEGAL STANDARD

         On a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), all allegations of material fact are assumed to be true and construed in the light most favorable to the nonmoving party. Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). To avoid dismissal, a complaint need contain only “enough facts to state a claim for relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). The principle that a court accepts as true all of the allegations in a complaint does not apply to legal conclusions or conclusory factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

         Under Rule 12(b)(1), a defendant may challenge the plaintiff's jurisdictional allegations by either (1) attacking the plaintiff's allegations as insufficient on their face to invoke federal jurisdiction or (2) contesting the truth of the plaintiff's factual allegations, usually by introducing evidence outside the pleadings. Leite v. Crane Co., 749 F.3d 1117, 1121 (9th Cir. 2014). The first, a facial attack, is resolved by the district court as it would be under Rule 12(b)(6), i.e., accepting the plaintiff's allegations as true and drawing all reasonable inferences in the plaintiff's favor, the court determines whether the allegations are legally sufficient to invoke the court's jurisdiction. Id. The second, a factual attack, requires the plaintiff to support its jurisdictional allegations with competent proof, under ...


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