Adoption case in Sebastian County takes welfare act to task

Tribe’s intervention called onerous

A Little Rock attorney has filed a federal lawsuit challenging the constitutionality of the Indian Child Welfare Act of 1978 as it pertains to a Sebastian County adoption case.

Richard Fisher, the stepfather of a 9-year-old boy, wants to adopt him, but the Cherokee Nation has intervened, making it more difficult to terminate the parental rights of A.C.'s biological father, Jason Cook, according to the lawsuit that attorney Chad Pekron filed March 1 in federal court in Fort Smith.

A.C. and Jason Cook are members of the Cherokee tribe.

"Because A.C. is classified as an Indian child ... his adoption by his stepfather Richard Fisher is subject to more burdensome and less protective rules than it would be if A.C. were of any other race, color, national origin or political affiliation," Pekron wrote in the lawsuit.

"Plaintiffs seek a declaration from the federal court that ICWA is not applicable and does not govern their state-court child-custody proceeding, and/or that if ICWA is applicable, then such application is unconstitutional," according to the lawsuit.

The plaintiffs also want an injunction to stop the defendants from applying the Indian Child Welfare Act in state court, and damages against the defendants for subjecting them to "a separate set of rules under ICWA that discriminate against them on the basis of their race, color or national origin."

The lawsuit was filed on behalf of A.C., his mother Erin Fisher and his stepfather Richard Fisher against Cook, the Cherokee Nation, the federal Bureau of Indian Affairs, Assistant Secretary of Indian Affairs Tara Katuk Mac Lean Sweeney and acting U.S. Secretary of the Interior David Bernhardt.

The filing comes five months after a federal judge in Fort Worth found the Indian Child Welfare Act unconstitutional in an Oct. 4 decision that stunned Indian-rights activists.

In Brackeen, et al v. Bernhardt, et al, U.S. District Judge Reed O'Connor found that the act illegally gives Indian families preferential treatment in adoption proceedings for Indian children based on race, in violation of the Fifth Amendment's equal protection guarantee, according to The Washington Post.

O'Connor also ruled that the act violated the 10th Amendment's federalism guarantees, specifically a principle established by the Supreme Court most recently in a 2018 sports gambling case, Murphy v. NCAA et al, that bars Congress from "commanding" states to modify their laws, according to the Post.

O'Connor is the same Texas judge who struck down President Barack Obama's Patient Protection and Affordable Care Act as unconstitutional.

O'Connor's decision in the adoption case was appealed to the 5th U.S. Circuit Court of Appeals, which heard oral arguments in New Orleans on March 13. The appeals court has yet to rule in the case.

Pekron wrote an article about the Arkansas case for indefenseofliberty.blog, a weblog of the Goldwater Institute, a conservative think tank.

"In every way that matters, Erin Fisher, her husband Richard Fisher, and their son A.C. are a typical family," Pekron wrote. "The Fishers live together, celebrate their holidays together, take vacations together and enjoy the company of A.C.'s younger brother. Mr. Fisher coaches A.C.'s baseball team, taught him to swim and helps him with his homework."

But the Fishers are atypical in that Richard Fisher is A.C.'s stepfather.

Erin Fisher and Cook married in 2004 and divorced in 2011. A.C. was born in 2009.

Cook was arrested and convicted of "several drug-related crimes" between December 2013 and February 2016, according to the lawsuit.

"A.C.'s biological father, Jason Cook, has been out of A.C.'s life for years and has been in and out of custody for a variety of offenses," Pekron wrote for the Goldwater Institute's blog.

"A.C. considers Mr. Fisher, not his biological father, to be his dad, and wants Mr. Fisher to adopt him as his legal son," according to Pekron.

Normally, under Arkansas law, that wouldn't be a problem, he wrote.

"Arkansas law provides a relatively simple procedure for the termination of parental rights when, as here, a biological parent has abandoned his or her minor child," Pekron wrote. "And once parental rights of one parent are terminated, a stepparent adoption is simple and straightforward."

But because A.C. is designated as an "Indian child," the adoption process is more complicated, expensive and "a complete uncertainty," Pekron wrote.

Under the Indian Child Welfare Act, the Cherokee Nation was allowed to intervene in the Fisher's termination proceeding.

That changed the rules, Pekron wrote.

"Instead of simply showing by clear and convincing evidence that A.C.'s biological father had abandoned him, ICWA imposed two additional burdens," he wrote. "First, the Fishers were required to provide that they had taken 'active efforts' to prevent the breakup of the Indian family and that those efforts were unsuccessful. Second, the Fishers were required to prove beyond a reasonable doubt -- using expensive expert witnesses -- that the failure to terminate parental rights would result in significant emotional trauma to A.C."

The "additional burdens are essentially insurmountable," Pekron wrote.

"More important, they are immoral, given that they have essentially forced A.C. into repeated situations of attempts at visitation that his biological father rejected," he wrote.

J. Dalton Person, a Fort Smith attorney representing the Cherokee Nation, filed an unopposed motion in federal court Friday asking for more time to respond to the lawsuit.

"This case involves complex issues of constitutional law, including the constitutionality of the Indian Child Welfare Act," Person wrote.

The case would require the investigation of several Arkansas state court matters regarding the divorce of Erin Fisher and Jason Cook, and the custody of A.C., according to Person's motion.

"It has recently come to the Cherokee Nation's attention that last week [March 12] ... Mr. Cook filed a petition to resume visitation with A.C.," Person wrote. "While ICWA does not apply to visitation rights, the Cherokee Nation would benefit from additional time to study the prior -- and now current -- Arkansas state court proceedings that are inherently at issue herein."

U.S. District Judge P.K. Holmes III granted Person's motion Friday. That extends Person's deadline to respond to the same day as the other defendants -- May 6.

The Indian Child Welfare Act was born of good intentions, according to a Feb. 21 article in The Atlantic.

"ICWA is an attempt to correct for American policies, dating back two centuries, that sought to assimilate American Indian children into white culture by taking them off reservations and placing them in boarding schools or with white families," according to The Atlantic.

"The law's passage marked the end of a centuries-long effort -- spearheaded, at different times, by the federal government, child-welfare agencies, and missionary churches -- to integrate Native American children into mainstream American culture."

"A case challenging the constitutionality of ICWA on equal protection grounds has never before been heard in a federal circuit court, so the judges must make sense of a difficult reality: Across the country, Native American kids need a home and a loving family, and for some, the only way to get those things might mean cutting them off from their ancestors' culture," The Atlantic article said.

SundayMonday on 03/24/2019

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