All NACC News

UPDATE: The U.S. Supreme Court Upheld the Constitutionality of ICWA

Tuesday June 20, 2023

Brackeen v. Haaland

On June 15, 2023,  theU.S. Supreme Court ruled 7-2 in favor* of upholding the Indian Child Welfare Act, holding that Congress had the authority to enact the law. The Supreme Court rejected the petitioners’ anticommandeering challenges to ICWA’s “active efforts” requirement to keep the Indian family together, placement preferences, and recordkeeping provisions. The Supreme Court did not rule on any merits regarding the petitioners’ “equal protection challenge to ICWA’s placement preferences and a nondelegation challenge to the provision allowing tribes to alter the placement preferences” as neither the individual petitioners nor the State of Texas had standing to raise them. Accordingly, the Supreme Court affirmed the U.S. 5th Circuit Court of Appeals’ judgment regarding Congress’ constitutional authority to enact ICWA, reversed on the anticommandeering claims, and vacated the Court of Appeals’ judgment on the equal protection and nondelegation claims and remanded with instructions to dismiss for lack of jurisdiction.

*Justice Barrett wrote for the majority. Justice Gorsuch filed a concurring opinion, in which Justices Sotomayor and Jackson joined as to Parts I and III. Justice Kavanaugh filed a concurring opinion. Justices Thomas and Alito filed separate dissents.

Read NACC and coalition partners’ press release about the ruling.

5th Circuit

On April 6, 2021, the U.S. 5th Circuit Court of Appeals ruled that Congress had the authority to enact ICWA.   The en banc court held  that the “Indian Child” designation and, the portions of a Final Rule issued in 2016 by the Department of the Interior that implement it, were based on a political classification; thus, they did not violate the Equal Protection Clause.  The court also held that “§ 1915(c) does not violate the nondelegation doctrine because the provision is either a valid prospective incorporation by Congress of another sovereign’s law or a delegation of regulatory authority.” Additionally, the court found that the Bureau of Indian Affairs (BIA) “acted within its statutory authority in issuing binding regulations” and “did not violate the APA when it changed its position on the scope of its authority because the agency provided a reasonable explanation for its new stance.”

While the court upheld the constitutionality of several ICWA provisions, it declared that three provisions were unconstitutional under the anti-commandeering doctrine:  active efforts requirement in § 1912(d); qualified expert witness requirement in § 1912 (e) and (f); and placement-record requirement in § 1915(e).  Furthermore, the court ruled that the Final Rule “violated the APA to the extent it implemented these unconstitutional provisions”; thus, these parts of the Final Rule are no longer applicable to the states in the Fifth Circuit (Texas, Louisiana, and Mississippi): 25 C.F.R. § 23.132(b) (that good cause to deviate from the placement preferences must be shown by clear and convincing evidence) and 25 C.F.R. § 23.141 (record keeping). A resource to better understand the decision’s impact can be found here.

U.S. Supreme Court Petition for Certiorari

On September 3, 2021, the individual plaintiffs, the State of Texas, the Solicitor General, and intervening tribal nations filed petitions for certiorari with the U.S. Supreme Court. On October 8, 2021, NACC joined with partners in an amicus brief supporting the Indian Child Welfare Act and opposing the attack on Indigenous sovereignty & families. On February 28, 2022, the Supreme Court accepted cert of this case.

U.S. Supreme Court Merits Stage Amicus Brief

On August 18, 2022, NACC, along with thirty children’s rights organizations, filed an amicus brief urging the Supreme Court to uphold the constitutionality of the Indian Child Welfare Act (ICWA). At the outset, amici assert that “ICWA establishes minimum federal standards consistent with constitutional requirements applicable to state welfare proceedings that ensure the system protects the well-being of children when state intervention is necessary.” Amici emphasize that the Constitution protects the right to family integrity and requires that children are only removed from their home when they are unsafe. “ICWA protects families from ‘unwarranted’ removals . . . by establishing standards and procedures designed to ensure that Indian children are removed from their parents only when necessary to safeguard them from serious harm, and that families are reunified when possible.” Amici argue that when removals are necessary, ICWA’s placement preferences ensure that Indian children maintain familial relationships, preserve their culture and traditions, and stay connected to their Tribe.

Amici maintain that ICWA is consistent with the best interest analysis that state courts undertake; when making best interest determinations, state courts consider certain factors which “align with ICWA’s fundamental principles: preserving family integrity, prioritizing placement with relatives, and maintaining community and culture.” Furthermore, amici point out that several states, recognizing that ICWA serves the best interest of children, have codified key provisions of ICWA into state law. ICWA provides critical information and support (from tribal advocates and expert witnesses) that state courts may not otherwise have available when making best interest determinations, due to the challenges that state child welfare systems, including the plaintiff State of Texas, face. For these reasons, amici urge the Supreme Court to uphold ICWA. The case is under review by the Supreme Court, and oral arguments are slated for November.

NACC is grateful to the following organizational partners who collaborated on and joined this brief:

1. Alliance for Children’s Rights

2. Barton Child Law and Policy Center, Emory Law School

3. Center for Children & Youth Justice

4. Children’s Law Center

5. Children’s Law Center of California

6. Children’s Law Center of Massachusetts, Inc.

7. Children’s Law Center of Minnesota

8. Children’s Law Section of the State Bar of Michigan

9. Children’s Legal Services of San Diego

10. Children’s Permanency Clinic, St. Louis University School of Law

11. Children’s Rights, Inc.

12. Colorado Office of the Child’s Representative

13. East Bay Children’s Law Offices

14. Juvenile Law Center

15. KidsVoice

16. Lawyers For Children

17. Legal Aid Center of Southern Nevada Children’s Attorneys Project

18. Legal Aid Society of Palm Beach County

19. Legal Counsel for Youth and Children

20. Massachusetts Committee for Public Counsel Services

21. Minnesota Guardian ad Litem

22. National Center for Youth Law

23. New Jersey Office of the Public Defender, Office of the Law Guardian

24. Pegasus

25. Pima County Office of Children’s Counsel

26. Public Counsel

27. Rocky Mountain Children’s Law Center

28. Southeast Louisiana Legal Services

29. Virginia Poverty Law Center

30. Youth Law Center

Recent NACC News

All News

  • June 2024 Policy Updates

    June 6, 2024

    NACC Advocates for Children, Families, and Immigrants NACC asked the U.S. House and Senate to fund Full-Service Community Schools, raised concerns surrounding hidden foster care, and supported the Children’s Safe Welcome Act to protect the rights of...

  • Apply for 2024 Online Conference Scholarship

    May 31, 2024

    To provide attorneys and advocates with access to valuable training opportunities, NACC is excited to offer online conference scholarships for the 47th National Child Welfare Law Conference: Working Together, Working...

  • May 2024 Policy Updates

    May 8, 2024

    Counsel for Kids State Legislative Updates New Hampshire’s Children and Family Law Committee considered Senate Bill 463 on April 23. If passed, it would require the appointment of legal counsel for children placed...