On Thursday, November 7, a federal appeals court announced that it would revisit the Indian Child Welfare Act (ICWA) August decision by the U.S. Court of Appeals for the Fifth Circuit that upheld ICWA as constitutional.

The 5th Circuit rejected a lower court ruling that sought to strike down ICWA. The decision by the U.S. District Court for the Northern District of Texas, (Brackeen V Zinke) in October, where Judge Reed O’Connor, known for his controversial rulings on the ACA and immigration, ruled that ICWA is unconstitutional in its entirety based on the Equal Protection Clause and the 14th Amendment.

The Protect ICWA Campaign, consisting of the National Indian Child Welfare Association, the National Congress of American Indians, the Association on American Indian Affairs, and the Native American Rights Fund, stated in response to the rehearing en banc.

“For centuries, the United States Congress, Executive Branch, and Supreme Court have affirmed the unique political status of tribal nations and Native people. ICWA was enacted with that unique political status in mind and applies only to tribal nations that share a government-to-government relationship with the United States and to Indian children and families who share in that relationship. We are confident the Fifth Circuit will affirm ICWA’s strong constitutional grounding.”

ICWA’s goal is to promote family stability and integrity. It continues to be the gold standard in child welfare policy. This law is vital to protecting and upholding the child welfare of Native American children and helping to reverse some of the past systematic abuses of these children.

About the Author:

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

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