Federal Law Protecting Indian Children and Families Will Stand

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Today a federal circuit court reversed a lower court’s ruling by affirming the validity of the Indian Child Welfare Act (ICWA), a law passed in 1978 to protect Native American families and children when nearly a third of Indian children were being removed from their parents and placed mostly with white families.

In its decision, the Fifth Circuit Court of Appeals stated that it found plaintiffs had standing on a number of points in the suit, now referred to as Brackeen v. Bernhardt. But what may be the most significant aspect of the Fifth Circuit’s ruling today is its denial of the claim that ICWA is a “race-based” law.

The suit was elevated to the Fifth Circuit after an October 2018 decision by U.S. District Judge Reed O’Connor. The plaintiffs in the case included three states – Indiana, Louisiana and Texas – along with several non-Indian adoptive families. O’Connor ruled that ICWA was race-based, countering years of case law that had affirmed the law was rooted in sovereignty protections for Native Americans.

That political relationship between the United States and tribes is the basis for every treaty and policy in U.S. history that falls under what’s commonly called “Indian law.”

But O’Connor said that, as a race-based law, ICWA lacked a present-day justification, and forced states to enforce federal standards.

The Fifth Circuit rejected his reframing of ICWA, saying, “we conclude this was error.” Quoting an earlier case, the Fifth Circuit Court’s decision stated:

If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized.

The Fifth Circuit also found that the 2016 Final Rule issued by the Bureau of Indian Affairs, which offered guidance to states in an effort to improve the uneven implementation of ICWA from one state to another, is still valid.

“This ruling is a strong affirmation of the constitutionality of ICWA and the inherent tribal authority to make decisions about the well-being of member children, whether they live on or off of tribal lands,” said Sarah Kastelic, executive director of the National Indian Child Welfare Association, in a press release. “ICWA remains the gold standard of child welfare policy and practice; it is in the best interest of Native children.”

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Christie Renick
About Christie Renick 119 Articles
Tucson-based southwest editor and vice president of Fostering Media Connections. Reach her at crenick@fosteringmediaconnections.org or follow @christiejrenick.