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ICWA advocates stay on guard after latest ruling

David Simmons, left, NICWA’s Director of Government Affairs and Advocacy, and Dan Lewerenz, NARF’s staff attorney.

The Indian Child Welfare Act (ICWA) has been challenged in the courts in an unprecedented over the past few years in the case of Brackeen v. Haaland (formerly Brackeen v. Bernhardt). The latest ruling on the case was a mixed bag for ICWA supporters.

ICWA is a 1978 federal law put in place to protect Native American children by keeping them with Native families and connected to their community and culture in custody, foster care and adoption cases. The law also affirms the inherent rights of tribal nations to be involved in child welfare matters involving their citizens. Inside and outside Indian Country it is largely held up as a gold standard of child welfare law.

The Brackeen lawsuit asserted that ICWA is race-based and unconstitutional. Chad and Jennifer Brackeen, a Texas couple who fostered a baby who was eligible for membership in both the Navajo and Cherokee tribes, filed it. Court briefs state the boy’s parents had voluntarily given up their parental rights and the Brackeens then petitioned to adopt him – as well as his younger half-sister.

The states of Texas, Indiana and Louisiana would join the lawsuit, siding with the Brackeens. It marked the first time a state has sued the federal government over ICWA’s constitutionality.

In 2018, a federal district court in Texas held that ICWA violates the U.S. Constitution. However, in response to appeals brought by the federal government and a group of intervening tribal nations, a three-judge panel from the Fifth Circuit Court of Appeals reversed the decision, reaffirming ICWA’s constitutionality. But then the Fifth Circuit’s panel of 16 judges granted an en banc review of the decision.

In April, the Fifth Circuit issued a complex 325-page decision with eight separate opinions and multiple holdings.

“It is one of the most complex if not the most complex ruling that I have ever read,” Sam Daughety, who has a Native American law and policy practice, said during a recent webinar hosted by the National Indian Child Welfare Association (NICWA).

In short, the court only agreed on two decisions. The first is that ICWA is constitutional – a positive for advocates. It rejected the equal protection claim that ICWA is based on race, which would have made the law unconstitutional.
But the court was equally divided on a number of provisions and there was a narrow majority on three provisions. One of the more significant majority decisions was that ICWA unconstitutionally commandeers state agencies – that the federal government can’t enforce child welfare agencies to do certain things that serve federal purposes.

Advocates agree that the effects of the entire ruling are narrow – it only involves the federal courts in the Fifth Circuit, which are Texas, Louisiana and Mississippi. Any ruling does not bind any state or tribal court. But one risk under the commandeering provision, they say, is that it could embolden states that choose to test the waters and stop following certain ICWA provisions.

‘Broader attack’

Advocates worry that anti-ICWA forces are less concerned about child welfare and more concerned about dismantling tribal sovereignty.

Dan Lewerenz of the Native American Rights Fund (NARF) said during the webinar that it’s hard not to draw that conclusion when looking at the actions of the opposition in recent years.

“They have not worked on a broad based basis to try and improve child welfare conditions,” Lewerenz said. “I see them trying to make it easier to adopt children out of their families, and in this particular case, they are clearly interested in a broader attack on Indian law.”

Lewerenz said he doesn’t doubt the Brackeen family love their children.

“But I think they are misguided in this instance. They are not who’s driving this. The people driving this have less good intentions,” he said.

NICWA’s David Simmons said in the webinar that the ruling is a reason for advocates to work toward having child welfare cases heard in tribal courts or have ICWA codified into state law, which would remove the threat of federal court challenges. At least seven states currently have their own ICWA provisions, which avoid charges of commandeering.

“When you look at the way that Texas, Louisiana and Indiana brought the case – the arguments they made tells us there could be a bigger prize there for them,” Simmons said. “Many of the allies of those who don’t support ICWA have always wanted to get another case to the Supreme Court. If they were just interested in trying to redefine ICWA, the way they brought it would be different. For me it raises questions about why the lawsuit was brought and what the real purpose of it was.”

Any further litigation would involve either or both sides issuing a request for the Supreme Court to take up the case. There is a Sept. 3 deadline to do so. While a request doesn’t ensure the Supreme Court will grant it, many advocates think the opposition will keep working toward the goal in the hopes justices will someday rule ICWA unconstitutional.
In the meantime, advocates are encouraging those in Indian Country to contact tribal, state and Congressional leaders to join pro-ICWA amicus briefs. Tribal-state agreements on child welfare law, which Alaska has, could also be pursued, they said.

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Damon Scott
Damon is a multimedia journalist for the Seminole Tribune. He has previously been an editor and reporter for digital and print media in Florida and his home state of New Mexico. Send him an email at