ICWA Under Attack:
Case seeking to erode Indigenous rights thown out of court
The national litigation campaign to undermine the Indian Child Welfare Act sustained a significant setback this week, as a federal court judge threw out a case that attempted to argue ICWA violated the civil rights of Indian parents.
United States District Judge Gerald Bruce Lee dismissed a lawsuit initially filed by the National Council For Adoption Attorneys that sought to decimate the Department of Justice’s recent release of updated ICWA guidelines. The lawsuit, filed simultaneously with other AAAA federal cases in Minnesota and Arizona, bizarrely argued that ICWA violated the civil rights of Indian parents who wanted children removed by state-run social services departments placed with non-Natives.
The tough new federal guidelines were crafted and released in part as a response to South Dakota’s systematic and willful violation of the Indian Child Welfare Act for the better part of two decades. The Lakota People’s Law Project hailed the release of the guidelines as a long-overdue step necessary to protect Indian families and their cultural heritage.
Groups such as the NCFA, a thinly disguised lobbying arm for the American Academy for Adoption Attorneys, brought their considerable financial and legal resources to bear in an effort to convince the courts to strike the guidelines.
Last week, on Dec. 9, that effort experienced a resounding defeat.
Not only did Judge Lee dismiss the case on technical grounds, i.e. lack of court jurisdiction, but he also repudiated that the guidelines are non-binding interpretive rules and are thus not subject to adjudication.
Furthermore, Judge Lee ruled against the plaintiff’s claim that the guidelines commandeered state authority relative to ICWA implementation, violated equal protection, due process or Indian Commerce Clause claims.
“This ruling is nothing short of an utter humiliation of the attorneys of the AAAA who tried to simply manufacture constitutional claims to mask their utter mercenary objectives,” said Attorney Daniel Sheehan, Chief Counsel for Lakota People’s Law Office in South Dakota.
“Rarely does one see a legal complaint so utterly crushed by a federal court, especially when the plaintiff is backed by such wealthy sponsors,” Sheehan continued. “To see a case get dismissed without any oral arguments on both technical grounds and the merits demonstrates not only the flimsy nature of the legal grounds cited, but also the clumsiness of the crass legal maneuverings and utter lack of moral clarity on the part of those who were behind this ill-advised legal gambit.”
The summarily dismissed case is, however, one of a series of virtually identical cases filed by other organizations affiliated with the AAAA that seek to dismantle important provisions of ICWA. One of which was filed in Arizona, the same week as this Virginia case was filed, by the Goldwater Institute.
“These attempts by these adoption attorney organizations are simply self-serving,” Sheehan said. “These adoption attorneys sought out poor young Indian mothers who would agree to submit to their extremely esoteric legal maneuverings for one purpose — so they could continue to enrich themselves at the expense of Indian culture, heritage and families.”
LPLP has uncovered evidence that shows that the National Council for Adoption is nothing more than a front organization for the group of AAAA attorneys seeking to clear the way for their profit-driven motives.
On Friday March 27, 2015, in a webinar titled “A Call to Action Regarding the BIA Guidelines”, AAAA President Laurie Goldheim revealed the organization was planning a multi-pronged attack on the law, which included lawsuits.
“The Board of Trustees voted to include the American Academy of Adoption Attorneys as a plaintiff in a lawsuit being filed in federal district court challenging both the Guidelines and eventually the rule,” Goldheim said during the webinar. “We are exploring the opportunity for a political solution with our lobbyists and others to determine if there can be an impact/solution in Washington, D.C.”
In addition to Ms. Goldheim, the roster for the National Council for Adoption Member Attorney list consists of six other AAAA member attorneys, including attorneys who are also mysteriously members of NICWA.
“The Indian child adoption industry in America is a lucrative one and, like any industry, it requires a steady flow of raw materials,” said Sheehan. “In this case, in order to keep the profits flowing, these well-heeled adoption attorneys need Indian children to be adopted. And these tough new ICWA guidelines make it harder for these professional vultures, with the help of corrupt state officials, to defy the federal law by stealing Indian children from their families. So, of course, they are going to do everything in their power to combat these new guidelines.”
Three additional federal cases filed by these AAAA attorneys, virtually simultaneously with this Virginia case, in Arizona, Oklahoma and in Minnesota similarly seek to undermine the federal government’s recently-increased effort to enforce ICWA. These cases are still pending.
The Lakota People’s Law Project has been partnering with tribes and leaders in the State of South Dakota since 2005 from its offices in Rapid City, SD and Santa Cruz, CA. LPLP’s activities have included funding and supporting Native experts to provide technical assistance to the tribes on family and child welfare issues. The project combines public interest law, investigation, research, education and organizing into a unique model for advocacy and social reform.
The Lakota People's Law Project is sponsored by the nonprofit Romero Institute based in Santa Cruz, CA. The Institute is named after slain human rights advocate Archbishop Oscar Romero of El Salvador. The Institute seeks to identify and dismantle structural sources of injustice and threats to the survival of our human family.
Further information concerning the Lakota People’s Law Project can be found at LakotaLaw.org.