By: Racheal White Hawk | Associate | Racheal.whitehawk@procopio.com
Richard Frye | Summer Intern | Richard.frye@procopio.com
Ted Griswold | Partner | Ted.griswold@procopio.com
Today, the United States Court of Appeals for the Fifth Circuit announced its decision in the case of Brackeen v. Bernhardt (formerly Brackeen v. Zinke). In Brackeen, seven non-Indian Plaintiffs seeking to adopt Indian children sued the Federal Government alleging that certain provisions of Indian Child Welfare Act of 1978 (“ICWA”) are unconstitutional. The Plaintiffs were joined by the States of Texas, Louisiana, and Indiana. The Cherokee Nation, Oneida Nation, Quinault Indian Nation, Morongo Band of Mission Indians, and Navajo Nation joined the Federal Government as Intervenor Defendants. In reversing the decision of the United States District Court for the Northern District of Texas, the Fifth Circuit upheld the constitutionality of ICWA, a law enacted to protect Native American families against the removal of their children.
As one of the key rulings in the case, the court held that ICWA is constitutional because ICWA does not violate the Equal Protection Clause. ICWA’s classification of Indian children is based on political, not racial, status, and Congress had a rational basis for enacting ICWA, i.e., to fulfill Congress’ unique obligation toward tribes by protecting the best interests of Indian children and promoting the stability and security of Indian families. In so holding, the court relied on the Supreme Court’s Morton v. Mancari, 417 U.S. 535, 555 (1974), case, which held that Congress’ special relationship with Indian tribes cannot be viewed as racial discrimination, because doing so would jeopardize an entire Title of the United States Code and the Federal Government’s solemn commitment toward Indians.
The court’s other main holdings include that ICWA preempts State law, and does not violate the anti-commandeering doctrine, because ICWA does not regulate States, it regulates private individuals in State court proceedings. Nor does ICWA violate the nondelegation doctrine, because ICWA is an incorporation by Congress of inherent tribal authority to determine tribal membership and regulate domestic relations among tribal members, including Indian children.
ICWA was enacted by Congress to protect Native communities and families against the “abusive practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” Miss. Band Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989). In enacting ICWA, Congress recognized that no resource was more vital to the continued existence and integrity of Indian tribes than their children. See 25 U.S.C. § 1901(3). Noting the historical failures of States to recognize the essential tribal relations of Native persons and the cultural and social standards prevailing in Native communities and families, Congress declared the policy of the United States to protect Native children, families, and tribes by establishing minimum Federal standards for the removal of Indian children from their families. See id. at §§ 1901(5), 1902.
For over 40 years, ICWA has been instrumental in protecting the inherent right of tribal governments to protect Indian children and maintain the stability of Indian families, and it will continue to do so with the Fifth Circuit’s ruling today. Procopio supported this effort on a pro bono basis by filing an amicus brief on behalf of Native American women, Indian tribes, Indian health organizations, and other organizations in support of the Tribal and Federal Government Defendants.
Racheal M. White Hawk (Rosebud Sioux Tribe) is an Associate with Procopio’s Native American Law Practice Group. Connect with Racheal at racheal.whitehawk@procopio.com and 619.906.5654.
Richard Frye, a member of the Navajo Nation, is a Summer Intern with Procopio in the Native American Law Practice Group. He is a rising third-year student at the UCLA School of Law, where he has served as Co-President of the Native American Law Students Association and will serve as Co-Editor-in-Chief for the Indigenous Peoples’ Journal of Law, Culture and Resistance.
Ted Griswold is head of Procopio’s Native American Law Practice Group and primary editor for the Blogging Circle. Connect with Ted at ted.griswold@procopio.com and 619.515.3277.
Blogging Circle 