On February 28, 2022, the Supreme Court announced that it will hear a challenge to the Indian Child Welfare Act (ICWA) by taking up the Brackeen v. Haaland. The case is a ruling by the full Federal U.S. Court of Appeals for the 5th Circuit. The Appeals Court ruling was a mixed ruling on the legality of the Indian Child Welfare Act and the Biden Administration made the request for the review along with several tribal groups and supporters including CWLA.
The Appeals Court acted on the case because of an earlier ruling on October 4, 2018, by the U.S. District Court for the Northern District of Texas, (Brackeen V Zinke), Judge Reed O’Connor. Judge O’Connor is known for his controversial rulings on striking down parts of the ACA and immigration law. He had ruled that 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.
Critics of ICWA claim it can unnecessarily delay child welfare placement decisions, especially adoptions. They claim, as did the Judge, that it is based on race ignorant of that government-to-government relationship between tribes and the United States government. ICWA was adopted by Congress in 1978 because of an abusive history by the US government that frequently resulted in the placement of Indian children in boarding homes, schools or adoption policies that specifically sought to erase a personal Indian heritage by placing children in white families.
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. 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. Five members of Congress including 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). There were also states in support of ICWA including 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.