On Tuesday, January 16, an impressive array of state and national organizations joined in support of Tribal nations and representatives in defense of the Indian Child Welfare Act (ICWA). The briefs were filed with the Fifth Circuit in response to a ruling by a judge late last year.

The Amicus Brief by national organizations was headed up by Casey Family Programs. CWLA joined as part of 31 organizations in support of ICWA. The national organization’s brief was one of many that included: 325 Tribes, 57 Indian Organizations (AAIA, NCAI, NICWA, et al.), Constitutional Law Scholars Amicus Brief, United Keetoowah Band Amicus Brief, Native American Women et al. Amicus Brief, Navajo Nation (Proposed) Brief as Intervenor or Amicus.

Of political significance other briefs filed included five members of Congress, Senator Tom Udall (D-NM), Senator Lisa Murkowski (R-AK), Congressman Don Bacon (R-NE) Congressperson Karen Bass (D-CA), Congressman Tom Cole (R-OK), Congresswoman Betty McCollum (D-MN) and Congressman Don Young (R-AK).

A multi-state brief in support of ICWA included the states of California, Alaska, Arizona, Colorado, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Virginia, Washington, and Wisconsin.

On October 4, a ruling by the U.S. District Court for the Northern District of Texas, Brackeen V Zinke, Judge Reed O’Connor ruled that the Indian Child Welfare Act (ICWA) is unconstitutional in its entirety based on the Equal Protection Clause and the 14th Amendment. The judge wrote that ICWA’s racial classification of children has not been shown to serve a “compelling governmental interest.” ICWA covers any child who is either a member of a federally recognized tribe/Alaska Native Village or is eligible for membership in a federally recognized tribe/Alaska Native Village and is the biological child of a member of a federally recognized tribe/Alaska Native Village.

At the time CWLA issued a statement criticizing the ruling, stating that the ruling “jeopardizes this landmark child welfare and child protection law and opens the door to weakening current protections for tribal children. Further, it ignores the direct federal government-to-government relationship”

Judge O’Connor (recently in the news for ruling the ACA unconstitutional) found that the ICWA illegally gives Native American families preferential treatment in adoption proceedings for Native American children based on race, in violation of the Fifth Amendment’s equal protection guarantee. O’Connor ruled that the law violated the 10th Amendment’s federalism guarantees, specifically the “anti-commandeering” principle established by the Supreme Court. In his ruling he dealt with tribal laws as a matter of race rather than a government to government issue—the very basis of ICWA.

Judge O’Connor’s ruling ignores the unique political status of American Indians and Alaska Natives (AIAN). Tribal governments are not race-based and their authority and sovereignty preexists the United States.

The Casey-30 organization amicus brief states in part:

“The district court thus erred in characterizing ICWA’s provisions as race based classifications—both because the provisions at issue involve children with tribal ties, a political classification, but also because they are not procedures that benefit children only of a particular race. Rather, ICWA standards are context specific applications of universal best practices in child welfare, supported by decades of experience and research: that children are best served by preserving as many connections with their birth family and community as can be done safely. Research likewise shows that better placement decisions result from applying a structured, transparent, and objective framework that guards against implicit biases, prioritizes maintaining a child’s connections, and minimizes the discretion to sever community ties.

The ruling is in response to a lawsuit supported by Texas, Louisiana and Indiana dealing with three adoption cases. The plaintiff parents had sued the U.S. government and several federal agencies and their leaders to argue that ICWA is unconstitutional. Four tribal nations later signed on as defendants. This is the first time a federal judge has ruled that ICWA is unconstitutional according to the Indigenous Law and Policy Center at Michigan State University.

In response to these three states, the 21-state brief tells the court:

ICWA plays a critical role in protecting the best interests of American Indian and Alaska Native children residing in Amici States, and supports the cultural integrity and survival of the tribes within their borders. The continued stability and security of Indian tribes are of vital importance to the Amici States, which are home to eighty-five percent of the federally-recognized tribes in the United States and more than half of the overall American Indian and Alaska Native population”.