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In re Petition of Nowlin

United States District Court, N.D. Oklahoma

February 12, 2018

IN RE PETITION OF, HERBERT SHAWN NOWLIN, JR., IN THE MATTER OF THE ADOPTION OF T.L.N. AND D.S.N., minor children,

          OPINION AND ORDER

          TERENCE KERN, United States District Judge

         On December 8, 2017, Petitioner Herbert Shawn Nowlin initiated this action by filing a pro se “Motion for Declaratory Relief Pursuant to the Complete Preemption Doctrine” (Dkt. # 1), and a letter seeking additional time to file a motion to proceed in forma pauperis (Dkt. # 2). In the letter, Nowlin described his motion as a “Civil Petition for Declaratory Relief, ” and indicated that he would submit a motion to proceed in forma pauperis within a week. Dkt. # 2 at 1. To date, Nowlin has not submitted a motion to proceed in forma pauperis. For the following reasons, the Court finds that Nowlin's “motion” shall be dismissed without prejudice and without leave to amend.

         BACKGROUND

         Nowlin “plead[s] for declaratory relief pursuant [to] the preemptive force of the (ICWA), Indian Child Welfare Act, 25 U.S.C. §§§ 1901, 1902, 1903, et seq.” Dkt. # 1 at 1. In support of his request for declaratory relief, Nowlin alleges the following facts. His twin sons, T.L.N. and D.S.N., were born in Virginia in 2007 and “were designated by Virginia Department of Vital Records, as agreed upon by the parents, as African American descendant males.” Id. At some point, the twins were voluntarily placed in the custodial care of their maternal grandparents, Rickey and Deanna Turnham. Id. In 2010, the twins' mother, Amber McDaniel, was released from state prison and “returned to live with the Turnhams.” Id. at 2. Nowlin is currently serving a federal prison sentence in Yazoo City, Mississippi, and anticipates that he will be released in “approximately 24-months.” Id. at 2; Dkt. # 2 at 1.

         In 2017, the Turnhams initiated adoption proceedings in Rogers County District Court. Dkt. # 1 at 2. On September 29, 2017, McDaniel signed a consent-to-adoption form, voluntarily surrendering her parental rights and consenting to the Turnhams' adoption of the twins. See id. at 2, 8-9. On the form, McDaniel certified that she and the twins are members of the Cherokee Nation. Id. at 9. Nowlin has participated in the adoption proceedings by “fil[ing] several motions contesting . . . [the] adoption of his sons.” Id. at 2-3. According to Nowlin, the state district court issued “[a]n order invoking Tribal Jurisdiction as to the proceedings to terminate” his parental rights. Id. at 2.[1]

         After setting forth these facts, Nowlin asserts that his “petition is related in content” to the state court adoption proceedings, but “is differently purposed in form, and is by no means defensive in nature.” Id. at 3. Nowlin further asserts that this Court has jurisdiction over this action under 28 U.S.C. § 1331 because he requests declaratory relief on questions arising under the ICWA. See Dkt. # 1 at 3 (citing § 1331 as basis for this Court's jurisdiction); id. at 5 (stating that “[p]aternal rights under ICWA congressional statute raises question of Federal law”). In asserting that this Court has jurisdiction under § 1331, Nowlin also refers to the “well-pleaded complaint rule, ” discusses multiple cases involving the complete preemption doctrine, and contends that “[i]f complete preemption exists . . . it authorizes removal to federal court even in circumstances where the complaint has been pleaded in a way that artfully avoids mention of any federal law claims.” Dkt. # 1 at 3-5. Nowlin further contends that “[c]omplete preemption transforms state law claims into federal claims, thereby creating a basis for federal question jurisdiction.” Id. at 4.

         Nowlin identifies four “federal law issues” on which he seeks declaratory relief:

(a) Would a judgment in Plaintiffs' (The Turnhams pursuant ICWA proceedings) violate the Indian Child Welfare Act, 25 U.S.C. §§§ 1901, 1902, 1903, et seq.;?
(b) Does Plaintiffs' actions abuse the ICWA in opposition to its Congressional Intent;?
(c) Does the Cherokee Nation's claim on his sons' descendency [sic], reach beyond the Congressionally delegated reach the ICWA was legislated to have?;
(d) Does/Will the December 7, 2017 state proceedings result in an Unconstitutional application of the ICWA?

Id. at 5.

         Nowlin “contends that [these] presented questions regarding the constitutional application of the ICWA, as to the termination of his Paternal Rights, completely preempts, his decleratory/injunctory [sic] claims/requests for relief.” Id. at 3. In conclusion, Nowlin states that “[i]n invoking the preemption doctrine” he asks this Court “for declaratory and ...


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