Lori Alvino McGill, partner at Quinn Emanuel Urquhart & Sullivan, left, and Matthew McGill, partner at Gibson, Dunn & Crutcher, right. (Photo: Diego M. Radzinschi/NLJ)
A husband-wife team from two Washington, D.C., law offices filed suit Wednesday challenging strict new government guidelines for adopting Native American children in the aftermath of a landmark 2013 U.S. Supreme Court ruling.
Lori Alvino McGill, a partner at Quinn Emanuel Urquhart & Sullivan, and her husband Matthew McGill, a partner at Gibson, Dunn & Crutcher, filed the case on behalf of the National Council for Adoption and other groups and individuals, including birth parents who placed Indian children with non-Indian adoptive parents.
“These kinds of cases are hard ones to leave at the office. They’re something Lori and I talk about all the time,” Matthew McGill said. They both said their firms supported the pro bono representation.
The complaint alleges Interior Department Bureau of Indian Affairs (BIA) guidelines, issued in February, violate the equal protection rights of adoptive and birth parents and children by virtually requiring that Indian children be placed with Indian families to the exclusion of all non-Indian options—without consideration of the “best interests” of the child in specific cases. The guidelines were promulgated without notice and comment, though a subsequent rulemaking process has allowed public input.
“The guidelines are not phrased as friendly advice,” Matthew McGill said. “They are phrased as directives that state courts and agencies must follow. The guidelines use the word ‘must’ 101 times.” He said the guidelines also pose federalism issues by dictating how state courts should handle Indian adoption disputes.
Because of the guidelines, Lori McGill said, state courts are removing children from “loving homes” in foster or adoptive settings to “families that pop up at the eleventh hour.”
“These BIA mandates, which callously disregard the best interests of children and the deeply personal decisions of birth parents, were developed without input from the hundreds of adoption and child welfare agencies that supposedly must implement them,” Megan Lestino of the National Council for Adoption said in a statement. “BIA needs to withdraw these mandates and think more seriously about putting the needs and best interests of children first.”
A Bureau of Indian Affairs spokeswoman, Nedra Darling, said the agency does not comment on pending litigation.
In a statement in February, Kevin Washburn, assistant Interior secretary for Indian affairs, defended the new guidelines. “Our updated guidelines for state courts will give families and tribal leaders comfort that the Obama administration is working hard to provide better clarity so that the courts can carry out Congress’ intent to protect tribal families, preserve tribal communities, and promote tribal continuity now and into the future.”
The Supreme Court in 2013 ruled in favor of adoptive parents in the so-called Baby Veronica case, Adoptive Couple v. Baby Girl. The court said the federal Indian Child Welfare Act, aimed at preventing Indian families from being torn apart through foster placements and adoptions, did not apply to the case before it.
Because the Cherokee birth father sought a parental role after relinquishing his rights before Veronica was born, a 5-4 majority found there was no Indian relationship to preserve under the law. After further disputes between the adoptive parents and the birth father, Veronica was returned to her adoptive parents.
Then at Latham & Watkins, Lori McGill was a visible part of the legal team for the adoptive parents, appearing on the “Today” show and elsewhere to explain the case. She joined Quinn Emanuel in April 2014. But she said she felt the impact of the case long after.
“The Supreme Court decision was just the beginning,” she said. “On a weekly basis I get emails from lawyers and adoptive parents telling me how [the Indian Child Welfare Act] is ripping their families apart. I can’t take all these cases, but it was clear to me that something had to be done.”
The Indian Child Welfare Act (ICWA) does articulate a preference for placement of children with Indian families, with this caveat: “in the absence of good cause to the contrary.”
But the new guidelines, according to the lawsuit, essentially erase that exception, making it difficult to place an Indian child with a non-Indian family without mounting and documenting a wide search for suitable Indian placements.
“Perhaps most astonishing, the 2015 guidelines also prohibit state courts from considering the child’s ‘best interests’ in determining whether, as ICWA requires, there is ‘good cause’ to deviate from ICWA’s statutory placement preferences,” according to the complaint.
The lawsuit, filed Wednesday in the U.S. District Court for the Eastern District of Virginia, also objects to the law itself, not just the guidelines. The suit claims the Indian Child Welfare Act “violates the constitutional rights of birth parents of ‘Indian children’ by unjustifiably impeding their ability to place their children in adoptive homes outside of ICWA’s placement preferences. It violates birth parents’ rights to due process under the Fifth Amendment by interfering with their ability to direct the upbringing of their ‘Indian’ children.”
“Imagine the birth parent is a single, unwed terrified 15-year-old pregnant girl considering her options other than abortion,” Lori McGill said. “She goes to the adoption agency and is told she has to inform the tribe, and that all her extended family members will be part of this search for Indian families—when part of what she wants to do is place her child discreetly and not advertise the fact that she has become pregnant.”
Congress, Matthew McGill said, “did not intend to enact a statute that authorizes, much less requires, the breakup of loving families.”
Below: Read the complaint in National Council for Adoption v. Jewell.