On August 9, 2019 a US Court of Appeals for the 5th Circuit rejected a lower court ruling that sought to strike down the Indian Child Welfare Act (ICWA). On October 4, 2018 a ruling by the U.S. District Court for the Northern District of Texas, (Brackeen V Zinke), Judge Reed O’Connor, known for his controversial rulings on the ACA and immigration, ruled that the Indian Child Welfare Act (ICWA) is unconstitutional in its entirety based on the Equal Protection Clause and the 14th Amendment.

At the time, Judge O’Connor wrote that ICWA’s racial classification of children has not been shown to serve a “compelling governmental interest” and 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. 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.

The Appeals court rejected that thinking stating,

“…we conclude that Plaintiffs had standing to bring all claims and that ICWA and the Final Rule are constitutional because they are based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians; ICWA preempts conflicting state laws and does not violate the Tenth Amendment anticommandeering doctrine; and ICWA and the Final Rule do not violate the nondelegation doctrine. We also conclude that the Final Rule implementing the ICWA is valid because the ICWA is constitutional, the BIA did not exceed its authority when it issued the Final Rule, and the agency’s interpretation of ICWA section 1915 is reasonable. Accordingly, we AFFIRM the district court’s judgment that Plaintiffs had Article III standing. But we REVERSE the district court’s grant of summary judgment for Plaintiffs and RENDER judgment in favor of Defendants on all claims.”

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. The challenge to ICWA was brought by people and the states of: Chad Everet Brackeen; Jennifer Kay Bracckeen; state of Texas; Altagracia Socorro Hernandez; state of Indiana; Jason Clifford; Frank Nicholas Libretti; state of Louisiana; Heather Lynn Libretti; and Daniel Clifford. They were joined by some other states but also opposed by a multi-state brief in support of ICWA that included 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.

CWLA was one of 31 organizations that joined an Amicus Brief by national organizations headed up by Casey Family Programs. In addition, other briefs in support of ICWA included: 325 Tribes, 57 Indian Organizations (AAIA, NCAI, NICWA, et al.), Constitutional Law Scholars Amicus Brief, United Keetoowah Band Amicus Brief, and Native American Women et al. Amicus Brief.

About the Author:

John Sciamanna is CWLA's Vice President of Public Policy.

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