SAN FRANCISCO (CN) - A Ninth Circuit judge indicated Wednesday that he supported reviving a proposed class action accusing federal and Arizona state agencies of racial discrimination against American Indian children and their non-American Indian adoptive parents.
Circuit Judge John Owens said that an allegation by the plaintiffs - four minor children and their adoptive parents - that they were emotionally and psychologically harmed by a provision in the Indian Child Welfare Act requiring American Indian children in foster care visit and be placed with American Indian parents was their strongest for showing injury and standing to sue.
A finding of standing by the Ninth Circuit would send the case back to U.S. District Judge Neil Wake in Phoenix, who dismissed it for lack of standing because the plaintiffs hadn't alleged "concrete and particularized" injury stemming from the statute's disputed provisions.
"When they say they were injured by having to go through this process, you can imagine that process is itself the injury - regardless of the result - they were injured on the day they had to have their kids go to someone else and told they're not their dad." Owens told the government's attorneys in Wednesday's hearing. "Tell me why that's not enough."
The plaintiffs sued the U.S. Department of the Interior and the Arizona Department of Child Safety for nominal damages from the state and a court order tossing five provisions of the Indian Child Welfare Act.
They claim the provisions amount to "unconstitutional discrimination based on the race, color, or national origin of the children, parents, and class members" because they established rules for American Indian child welfare cases, foster care and adoption proceedings that are "separate and substandard" to state rules for non-American Indian children.
Some of the disputed provisions, for example, mandate that American Indian children be placed with foster or adoptive parents who are also American Indian. By contrast, state law does not require race-matched placements for non-American Indian children.
The plaintiffs allege in their complaint that the children's eventual adoptions by their non-American Indian foster parents were delayed due to the racial requirements imposed by the statute.
Aditya Dynar, the plaintiffs' attorney, added during oral argument that one of the children, identified only as C.C., was forced to visit dozens of prospective parents and "cried uncontrollably at every single one of those visits."
Dynar said state and tribal officials present at the visits "told him [C.C.] that his mom and dad are not his mom and dad. For a 2, 3, 4-year-old child, that's a traumatic injury and that's the injury we have claimed in this case."
The Indian Child Welfare Act sets minimum standards in state child-welfare proceedings for the foster care and adoptive placement of American Indian children.
Congress passed the statute in 1978 after finding that nearly one-third of all American Indian children had been removed from their family homes by nontribal public and private agencies, according to the plaintiffs' appeals brief.
The House Report on the statute noted that state social workers often removed American Indian children from their homes based on vague allegations, and that the social workers "frequently discover neglect or abandonment where none exists."
Visiting Senior Tenth Circuit Judge David Ebel countered Dynar's argument that all four of the children were harmed emotionally, pointing out that two were infants when they were taken to visit prospective placements and were not "in a position to allege that trauma."
Circuit Judge Mary Schroeder, however, said the plaintiffs needn't show actual harm because the allegations are based on racial discrimination.
Dynar, who practices with the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute in Phoenix, agreed. But he insisted the allegations were specific enough to confer standing.
"The denial of equal treatment, visitations with strangers, emotional and psychological harm; at this point, there isn't anything else needed in the complaint in terms of concreteness and particularization," he said.
Justice Department attorney Christine Ennis insisted the case was moot because the children had all been all adopted by their foster parents since Wake dismissed the case.
But the panel wasn't persuaded, predicting that vacating Wake's ruling by finding mootness would result in another lawsuit. The judges asked Ennis to instead focus on the standing argument in regards to visitations.
Ennis said the plaintiffs weren't injured because no placements resulted from the visits, an argument rejected by Owens.
"Here they're alleging, 'we never would've made this visit, we never would've done any of this, but this act required us to make this visit.' Why isn't that an injury," he said.
The panel, however, gave little indication how it will rule on the question of nominal damages. A ruling against the plaintiffs would end the case.
Arizona Solicitor General Dominic Draye, who represents the state, said the visitation-based injuries weren't nominal injuries but actual ones, which hadn't been pleaded.
"When the only injury asserted is of this specific kind, that we were exposed to a classification," Draye said, referring to the allegation of racism, "injunctive relief can keep a case alive. But when it's damages, when it’s retroactive relief like nominal damages and declarative relief, that's insufficient under this court's precedent."
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