UPDATE: Supreme Court Oral Argument on ICWA November 9

Brackeen v. Haaland

Listen to Supreme Court oral argumentson November 9, 2022.

5^th 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the APA to the extent it implemented these unconstitutional provisions”; thus, these parts of the Final Rule are no longer applicable to the states in the Fifth Circuit (Texas, Louisiana, and Mississippi): 25 C.F.R. § 23.132(b) (that good cause to deviate from the placement preferences must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.

Haaland v. Brackeen

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