Latest challenge to Indian Child Welfare Act struck down in Minnesota appeals court

This story is being co-published with The Imprint, a national nonprofit news outlet covering child welfare and youth justice.

In a case challenging the constitutionality of the Indian Child Welfare Act, a Minnesota appeals court has allowed white foster parents to continue seeking custody of two Red Lake Nation children, while striking down the couple’s claim that they were discriminated against because of their race.

The ongoing case was brought by Kellie and Nathan Reyelts of Fairmont, Minnesota, who have fostered more than 30 children. They appealed to the higher court after a November ruling allowed the twins they had once cared for to remain with biological relatives — a decision made in accordance with state and federal laws that prioritize kinship placements for Native American children.

The Reyelts’ attorney, Mark Fiddler, has a lengthy history of attempting to dismantle the law known as ICWA. In this case, the plaintiffs alleged that the placement preferences for tribal peoples are “discriminatory” and that “the children were harmed by ICWA by being removed from a loving home where they were thriving and attached to their caregivers.”

But a 63-page June 3 ruling by a panel of appeals court judges shows the case fell short of its goals. The district court’s rulings were affirmed in part, reversed in part, and returned for clarification and further review.

The judges unanimously ruled that placement preferences under state and federal laws prioritizing members of the child’s tribe do not violate equal protection rights under the 14th Amendment of the Constitution. They also ruled that the Reyelts did not establish “good cause” to deviate from existing law.

The court of appeals sided with the foster parents on two key points, however. Judges agreed the couple’s petition for “third-party custody” of the children should have been considered, and that the lower court wrongfully denied the Reyelts’ motion to intervene in the case as former foster parents. Those issues will now be reconsidered in the district court.

Reacting to the mixed ruling, Fiddler expressed no surprise. But he vows to fight on.

“To be honest, I had no illusions that an intermediate state appellate court would strike down a federal law. So I’m not upset,” he said in an email to The Imprint. “But we had to challenge ICWA at this level to seek higher review.”

Unless the case can somehow be settled, he added: “We plan to imminently petition for review in the Minnesota Supreme Court — and ultimately the United States Supreme Court.”

Defenders of ICWA and the state’s version of the federal law — the Minnesota Indian Family Preservation Act, or MIFPA — are likely to breathe easier following the appeals court ruling this week. The lower court’s adherence to the two laws governing the case of the twins, who are eligible for enrollment in the Red Lake Nation, or Miskwaagamiiwi-zaagaiganing, was correct, the judges ruled.

“Here, the district court was required to adhere to ICWA and MIFPA to determine the best interests of the Indian children,” Judge Peter Reyes wrote in his partial dissent in the case. He cited the state law’s specific provisions to support the Indian child’s “sense of belonging to family, extended family, and tribe” — interests that are “interwoven with the best interests of the Indian child’s tribe.”

As the case continues through the courts, the twins remain with their mother’s cousin Rayjean French, who is also caring for their older sister on the Red Lake Nation reservation. While the tribe’s attorney, Tammy Swanson, told The Imprint she couldn’t comment on this ruling, the court-appointed guardian ad litem for the children has informed the court they are thriving in their current home, strengthening ties to their tribe and attending cultural events.

The placement also allows them “to live in the same home as their other sibling,” she noted, a connection that can make all the difference in a foster child’s life.