Tag Archive for: ICWA

Breaking News: Fifth Circuit to Rehear ICWA Challenge En Banc

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Today, the United States Court of Appeals for the Fifth Circuit issued an order directing a challenge to the Indian Child Welfare Act (ICWA) to be reheard en banc — before the entire Fifth Circuit. As previously reported, a three-judge panel of the Fifth Circuit had ruled ICWA Constitutional in August, finding it was not a race-based statute that would violate the Equal Protection Clause. The States of Texas, Louisiana, Indiana, and several adoptive parents had urged the Court to set aside and rehear the August decision, asserting similar arguments to the original briefing and that tribal membership is determined on an “overwhelmingly racial nature.”

The federal government filed a brief in response earlier this week, arguing that the plaintiffs “miss the fundamental point . . . [namely,] tribes have authority to set their own membership criteria, which may be based in part on biology or descent[.]” The Cherokee Nation, Oneida Nation, Quinault Indian Nation, Morongo Band of Mission Indians, and Navajo Nation (Intervenor) filed an opposition to the petitions for rehearing en banc last month, as did the federal government.

Today’s order does not necessarily mean that the Fifth Circuit will find ICWA unconstitutional, but does vacate its earlier decision and add another round of briefing to the case – which is scheduled for December and January. The Court seeks to hear oral argument during the week of January 20.

NCUIH will continue to monitor updates as they become available and will circulate a further analysis to urban Indian organizations at a later date.

Update: Plaintiffs in ICWA Litigation Petition Court for Rehearing

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On October 1, Plaintiffs in Brackeen v. Bernhardt, the case centering on the constitutionality of the Indian Child Welfare Act (ICWA), filed petitions for rehearing of the case en banc. Essentially, the Plaintiffs are asking the entire 17-member U.S. Court of Appeals for the Fifth Circuit to rehear the case, in effect setting aside the decision a panel of three Fifth Circuit judges issued in August.

As previously reported, in its August decision the court overturned a District Court finding that held ICWA unconstitutional declaring it creates a separate set of practices for a racial group. In doing so, the Fifth Circuit affirmed that ICWA and its implementing regulations are constitutional, recognizing the unique political status of tribes, American Indians, and Alaska Natives. On October 2, the court ordered the U.S. and Intervenor Tribes (Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, Quinault Indian Nation, and Navajo Nation) to respond to the petitions by Tuesday, October 15.

During the 2018 litigation, NCUIH joined an amicus brief with nearly 400 Indian organizations and tribes in support of ICWA. Typically, courts deny petitions for rehearing and leave the court’s prior decision to stand. However, there is no guarantee. The court could choose to rehear aspects of the case, the mechanics of which (timing, extent of new briefing, etc.) the court would subsequently determine, or it could change parts of its decision without even granting the petition.

NCUIH will continue to monitor progress in the case, along with other amici curiae, and will provide updates as we receive them. It is important to note that although the Fifth Circuit will first have to act on the petition for rehearing, Plaintiffs will still be able to petition the ruling to the U.S. Supreme Court.

ICWA Held Constitutional in a Big Win for Indian Country

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Today, the U.S. Court of Appeals for the Fifth Circuit found the Indian Child Welfare Act (ICWA) constitutional, overturning a decision from the U.S. District Court for the Northern District of Texas. Last October, a U.S. district judge declared ICWA unconstitutional under the Fifth Amendment’s Equal Protection Clause, arguing that it creates a separate set of practices for a racial group. The Brackeen v. Bernhardt case was appealed to the U.S. Court of Appeals for the Fifth Circuit, where NCUIH joined nearly 400 Tribes and Indian organizations in filing an amicus curiae brief in support of ICWA’s constitutionality.

In its opinion filed today, the Court rendered judgment in favor of the defendants (the federal government and four tribes) on all claims. The Court held that ICWA is constitutional because: it is based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians; ICWA preempts conflicting state laws and does not violate the Tenth Amendment anticommandeering doctrine; and ICWA does not violate the nondelegation doctrine. The court also concluded that a Bureau of Indian Affairs Final Rule implementing ICWA is valid and constitutional.

Tribal leaders, Indian organizations, child advocates, and attorneys specializing in Indian law had been concerned that if the Texas ruling were upheld, it could have opened the door to constitutional challenges of other federal laws based on the special political relationship between AI/ANs and the U.S. government – including laws and regulations affecting health care, housing, criminal jurisdiction, gaming, and the environment.

Recent federal actions related to Medicaid and Native American Housing Block Grants have also signaled that a redefinition of “Indian” as racial could be used to take away benefits that fulfill the federal government’s trust responsibility to American Indian and Alaska Native people.

You can view the opinion here.

PRESS RELEASE: ICWA Held Constitutional in Big Win for Indian Country

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NCUIH Previously Filed Amicus Curiae Brief in Support of ICWA

Washington, DC (August 12, 2019) — On Friday, August 9, 2019, the U.S. Court of Appeals for the Fifth Circuit found the Indian Child Welfare Act (ICWA) constitutional, overturning an October 2018 decision from the U.S. District Court for the Northern District of Texas that held ICWA unconstitutional under the Fifth Amendment’s Equal Protection Clause, declaring that it creates a separate set of practices for a racial group. The Brackeen v. Bernhardt case was appealed to the U.S. Court of Appeals for the Fifth Circuit, where NCUIH joined nearly 400 Tribes and Indian organizations in filing an amicus curiae brief in support of ICWA’s constitutionality.

“All children and families thrive when kept together. That is why the United States Congress passed the Indian Child Welfare Act over 40 years ago as part of the federal government’s trust obligation owed to Indian Country. The decision to uphold ICWA is a win for all of Indian Country. We are grateful for the leaders in Congress who also filed a joint bicameral, bipartisan amicus brief in defense of ICWA  U.S. Senators Tom Udall (D-N.M.) and Lisa Murkowski (R-Alaska) along with U.S. Representatives Karen Bass (D-Calif.), Don Bacon (R-Neb.), Betty McCollum (D-Minn.), Tom Cole (R-Okla.), and Don Young (R-Alaska),” said NCUIH Executive Director Francys Crevier.

In its opinion, the Court rendered judgment in favor of the defendants (the federal government and four tribes) on all claims. The Court held that ICWA is constitutional because: it is based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians; ICWA preempts conflicting state laws and does not violate the Tenth Amendment anti-commandeering doctrine (the doctrine that prohibits the federal government from commandeering state governments or requiring states or state officials to adopt or enforce federal law); and ICWA does not violate the nondelegation doctrine (the principle that Congress cannot delegate its legislative powers to other entities). The court also concluded that a Bureau of Indian Affairs Final Rule implementing ICWA is valid and constitutional.

Tribal leaders, Indian organizations, child advocates, and attorneys specializing in Indian law had been concerned that if the Texas ruling were upheld, it could have opened the door to constitutional challenges of other federal laws based on the special political relationship between American Indians and Alaska Natives (AI/AN) and the U.S. government – including laws and regulations affecting health care, housing, criminal jurisdiction, gaming, and the environment.