Brackeen v. Bernhardt – Indian Child Welfare Act

Attorney: Erin Dougherty Lynch, Dan Lewerenz

 

Photo of girl and boy hugging and smiling


Find ICWA-related information and resources at https://icwa.narf.org/.

The Indian Child Welfare Act (ICWA) is a 41-year-old federal law protecting the well-being and best interests of Indian children and families by upholding family integrity and stability and keeping Indian children connected to their community and culture. ICWA also reaffirms the inherent rights of tribal nations to be involved in child welfare matters involving their citizens.

Brackeen v. Haaland (formerly Brackeen v. Bernhardt) is the lawsuit brought by Texas, Indiana, Louisiana, and individual plaintiffs, who allege ICWA is unconstitutional. It is the first time that a state has sued the federal government over ICWA’s constitutionality.

In 2018, a federal district court in Texas, in a widely criticized decision, held that ICWA violates the US Constitution. Last year, in response to appeals brought by the federal government and the intervening tribal nations at that time (the Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, Quinault Indian Nation, and the Navajo Nation), a three-judge panel from the Fifth Circuit reversed that decision, reaffirming the constitutionality of ICWA. In an en banc review, complex cases of broad legal significance are reconsidered by the entire court, and not just a three-judge panel. For the Brackeen v. Haaland case, the decision reached by the en banc review panel will replace the three-judge panel decision from August 2019.  Briefing in the case can be found at the Tribal Supreme Court Project website.

NARF, as part of the Protect ICWA Campaign is monitoring closely and and responding to the Brackeen case. The Protect ICWA Campaign was established by four national Native organizations: the National Indian Child Welfare Association, the National Congress of American Indians, the Association on American Indian Affairs, and the Native American Rights Fund. Together, the campaign works to serve and support Native children, youth, and families through upholding the Indian Child Welfare Act. The campaign works to inform policy, legal, and communications strategies with the mission to uphold and protect ICWA.

CASE UPDATES:

September 3, 2021
Protect ICWA Campaign Stands with Indian Children and Families in Brackeen v. Haaland Cert. Petitions

Today, the United States, tribal defendants, and state and private plaintiffs filed petitions asking the United States Supreme Court to review the Fifth Circuit Court of Appeals’ decision in Brackeen v. Haaland, a case challenging the constitutionality of the Indian Child Welfare Act (ICWA). The Protect ICWA Campaign stands with the United States and tribal defendants who have defended ICWA and its critical protections for Indian children and families who are in state court child custody proceedings. ICWA represents the gold standard in child welfare practice and has helped tens of thousands of Indian children and families find fairness and healing in state child welfare systems for over 40 years.

April 6, 2021
The Protect ICWA Campaign Responds to 5th Circuit Decision in Brackeen v. Haaland

To see how the Brackeen  decision may affect your ongoing ICWA case, see the Brackeen v. Haaland Decision Tree.

On April 6, 2021, the United States Fifth Circuit Court of Appeals published its en banc decision in Brackeen v. Haaland (formerly Brackeen v. Bernhardt), a case challenging the constitutionality of the Indian Child Welfare Act (ICWA). While the Protect ICWA Campaign is pleased to see that the court recognized that ICWA generally is within Congress’s authority, we are deeply concerned that aspects of this opinion misunderstand the unique relationship between the United States and tribal nations.  The opinion is 325 pages long, and given its length and complexity we are still analyzing the decision and will provide further information in the coming days. ICWA is in the best interest of Indian children and families, and we are firmly committed to protecting the law.

 

January 22, 2020
The Protect ICWA Campaign Urges Federal Appeals Court to Affirm ICWA’s Constitutionality Following Oral Arguments in Brackeen v. Bernhardt

a woman and man standing in front of courtroom door

NARF Staff Attorneys Erin Dougherty Lynch and Dan Lewerenz at the 5th Circuit Court of Appeals for Brackeen v. Bernhardt hearing

Following today’s United States Fifth Circuit Court of Appeals oral arguments in the Brackeen v. Bernhardt case, the Protect ICWA Campaign* issued the following statements:

“We are confident the full Fifth Circuit Court of Appeals will again confirm the constitutionality of the Indian Child Welfare Act,” said John Echohawk, Executive Director of the Native American Rights Fund.  “We will always stand with our children, families, and tribes against any and all efforts to diminish our communities, well-being, and sovereignty.”

“We look forward to the Fifth Circuit Court of Appeals’ decision,” said Sarah Kastelic, Executive Director of the National Indian Child Welfare Association. “We are confident the Fifth Circuit will affirm ICWA’s strong constitutional grounding. ICWA protects children in state child welfare systems and helps them remain connected to their families, cultures, and communities.”

“NCAI applauds the strong advocacy of the intervening tribes and the federal government, as Indian Country’s trustee, in defending the constitutionality of the Indian Child Welfare Act before the entire Fifth Circuit Court of Appeals this morning,” said Kevin Allis, NCAI Chief Executive Officer. “We pray for relief that upholds ICWA in its entirety and continues to protect the best interests of Indian children and families.”

“There has been an overwhelming amount of resources coming forward to support the Indian Child Welfare Act. We should be spending our resources protecting Indian children and not fighting interest groups that seek to dismantle the government-to-government relationship between the United States and Tribes. The Fifth Circuit will be on the right side of history protecting Indian children, and by doing so strengthening the child welfare system for all children,” said Shannon Keller O’Loughlin, Executive Director and Attorney for the Association on American Indian Affairs.

December 13, 2019
Legal Filing by Large Coalition of Tribal Nations and Native Organizations Defends the Indian Child Welfare Act

Today, 486 federally recognized American Indian and Alaska Native Tribes and 59 Native organizations filed an amicus brief to the Fifth U.S. Circuit Court of Appeals defending the constitutionality of the Indian Child Welfare Act (ICWA) as part of the Court’s en banc proceedings.

The Protect ICWA Campaign strongly supports this effort to defend ICWA, which was joined by 26 States, 31 child welfare organizations, 77 members of Congress, and other partners who know how critical ICWA is in achieving the best interest of Indian children and families in state child welfare proceedings.

The briefs were filed in Brackeen v. Bernhardt, the federal lawsuit in which three states and a handful of individual plaintiffs have challenged the constitutionality of ICWA. Earlier this year, a three-judge panel of the Fifth Circuit affirmed that ICWA is constitutional. However, following a recent order by the Fifth Circuit, the full en banc court is currently considering this case with oral arguments scheduled in late January 2020.

About today’s brief, NARF Executive Director John Echohawk said, “I am happy but not surprised by the number of signatories that joined on this brief—Indian country stands as one in support of the Indian Child Welfare Act. Support for ICWA is strong and consistent across tribes as well as organizations and individuals who work on child welfare issues. It is known as an essential protection that promotes our children’s well-being. Well-being that historically has been neglected and ignored.”

“We’re pleased, once again, at the overwhelming expression of support for the Indian Child Welfare Act,” said Sarah Kastelic, Executive Director of the National Indian Child Welfare Association. “It’s no surprise that tribal governments, states, members of Congress, and  child welfare experts alike support important protections of ICWA that ensure considerations necessary to determine the best interest of each Indian child.”

“The National Congress of American Indians, the oldest and largest organization made up of tribal nations, stands alongside Native children and families today, to educate the Fifth Circuit about the critical protections the Indian Child Welfare Act provides to our communities and the importance of honoring tribal authority to make determinations concerning our Indian children and our Indian families,” said Kevin J. Allis, Chief Executive Officer of the National Congress of American Indians.

“The overwhelming support from Indian Country, states, child welfare organizations and others is evidence of how ICWA works to protect the Indian child and family, as the gold standard in child welfare,” said Shannon Keller O’Loughlin, Executive Director and Attorney for Association on American Indian Affairs. “The interests that seek to overturn ICWA are those interests that make money in the adoption industry. We will continue to fight to protect our children and give them every opportunity to live healthy and strong.”

November 7, 2019
Fifth Circuit Court of Appeals to Rehear Brackeen v. Bernhardt

Photo of courtroom

Fifth Circuit Court of Appeals, En Banc Courtroom

Today, the US Circuit Court of Appeals for the Fifth Circuit granted rehearing en banc in the case Brackeen v. Bernhardt. The Protect ICWA Campaign, consisting of the National Indian Child Welfare Association, the National Congress of American Indians, the Association on American Indian Affairs, and the Native American Rights Fund, issued the following statement in response:

“This summer, a three-judge panel of the Fifth Circuit upheld the constitutionality of the Indian Child Welfare Act (ICWA), and we remain confident that upon rehearing en banc the full court will do the same.

For centuries, the United States Congress, Executive Branch, and Supreme Court have affirmed the unique political status of tribal nations and Native people. ICWA was enacted with that unique political status in mind and applies only to tribal nations that share a government-to-government relationship with the United States and to Indian children and families who share in that relationship. We are confident the Fifth Circuit will affirm ICWA’s strong constitutional grounding.

In addition, for more than 150 years, the U.S. Supreme Court has recognized that this federal authority to legislate with regard to tribal nations and native people is not limited by reservation borders but extends to wherever Indians may live. When Congress enacted ICWA, it carefully balanced the respective powers of tribes, states, and the federal government to create process that protects Indian children nationwide.

ICWA has long been recognized as best practice in child welfare and it includes broad support in this case from, among others, 21 states, 325 tribal nations, 57 Native organizations, 31 leading child welfare organizations, Indian and constitutional law scholars, and members of Congress.

ICWA is vital for protecting the well-being of Indian children across the United States today and tomorrow. The Protect ICWA Campaign will continue to work with tribal nations, tribal leaders, and allies to ensure a strong Indian Child Welfare Act for future generations of Indian families.”

August 9, 2019
Fifth Circuit Court of Appeals Reaffirms the Constitutionality of ICWA

Today, the Fifth Circuit Court of Appeals published its decision in Brackeen v. Bernhardt, the federal court challenge to the Indian Child Welfare Act (ICWA). The court’s decision affirmed the constitutionality of ICWA, recognizing the unique political status of tribal nations and upholding the federal law that is so critical to safeguarding Indian child welfare. It is a resounding victory for the law and those who fought to protect it.

ICWA is vital for protecting the well-being of Native children. Today’s decision reaffirms tribal nations’ inherent sovereign authority to make decisions about Native children and families wherever those children and families may live.

As today marks the International Day of the World’s Indigenous Peoples, the Protect ICWA Campaign Partners celebrate this decision as it upholds centuries of Supreme Court precedent and protects the best interests of Native children and families.

“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. ICWA remains the gold standard of child welfare policy and practice; it is in the best interest of Native children,” said Sarah Kastelic, executive director of the National Indian Child Welfare Association.

“The National Congress of American Indians commends the efforts of the intervening tribes—the Cherokee Nation, Morongo Band of Mission Indians, the Navajo Nation, the Oneida Nation, and the Quinault Indian Nation—the Bureau of Indian Affairs, the Department of Justice, and all others in Indian Country that joined this fight to protect our Native children. Today’s decision that clearly defines the breadth of the relationship between the federal government and tribal nations, sends a sharp message as to the strength of tribal sovereignty, which will safeguard Indian Country from such misguided litigation in the future,” said Kevin Allis, CEO of the National Congress of American Indians.

Shannon Keller O’Loughlin, executive director and Attorney for the Association on American Indian Affairs ecstatically stated, “the Association has fought since the early 1960s to make sure that Indian children and their extended families can stay connected and that our diverse cultures can be passed on to coming generations. The Fifth Circuit’s decision today acknowledges Indian Nations’ important political and sovereign rights to protect Indian children and families and strengthen the continuation of our cultures.”

John Echohawk, executive director of the Native American Rights Fund, applauded the Fifth Circuit’s return to core Indian law principles that go back to the founding of the United States.  “It is so great to see the Fifth Circuit follow federal Indian law as we know it and uphold the constitutionality of the Indian Child Welfare Act,” he said.

February 20, 2019

National Native Organizations Respond to Reply Briefs in Brackeen v. Bernhardt
Joint Statement from the Native American Rights Fund, National Indian Child Welfare Association, National Congress of American Indians, Association on American Indian Affairs

In reply briefs filed yesterday with the United States Court of Appeals for the Fifth Circuit in the case Brackeen v. Bernhardt, the United States and defendant tribal nations reaffirm the constitutionality of the Indian Child Welfare Act (ICWA). The briefs also underscore why ICWA’s protections continue to be vital for Native children and families.

For over 40 years, ICWA has acknowledged the inherent right of tribal governments and the critical role they play to protect their member children and maintain the stability of families.

Brackeen v. Bernhardt is the lawsuit brought by Texas, Indiana, Louisiana, and individual plaintiffs, who allege ICWA—a federal statute that has been in effect for more than 40 years and has helped thousands of Native children maintain ties to their families and their tribes—is unconstitutional. It is the first time that a state has sued the federal government over ICWA’s constitutionality. The lawsuit names various federal agencies and officials as defendants, and five tribal nations (Cherokee Nation, Morongo Band of Mission Indians, Navajo Nation, Oneida Nation, and Quinault Indian Nation) also have intervened as defendants. In addition, amicus briefs in support of ICWA were filed on behalf of 325 tribal nations, 21 states, several members of Congress, and dozens of Native organizations, child welfare organizations, and other allies.

ICWA is constitutional.

The U.S. Constitution specifically gives Congress the power to legislate for the benefit of Native people and tribal nations. ICWA falls within that constitutional authority because it applies only to children who are either citizens (referred to as “members” in ICWA) of a federally recognized tribe, or who are both eligible for citizenship and the biological child of a tribal citizen parent. In addition, Congress has enacted laws concerning Native children from the earliest days of the United States government. ICWA provides a productive framework for states and tribal nations to partner in protecting the health and well-being of Native children.

ICWA ensures that Native children and families receive the services they deserve.

There is a long history of Native children being removed from their families and communities without sufficient reason and often with little consideration of the rights of either the Native children or their families. Before ICWA was enacted in 1978, as many as one out of every three Native children was removed from their home. ICWA has helped to reduce these alarming removal rates and helped more Native families stay together. Child welfare research clearly shows that children are best served by preserving connections with their birth family and community. Child welfare experts across the country are working together with tribes, states, and allies to continue implementing and protecting ICWA as the “gold standard” in child welfare law and ensuring Native children and families receive the services they deserve.

Striking down ICWA would not only be wrong as a matter of law; it also would have devastating real-world effects by harming Native children and undermining the ability of child welfare agencies and courts to serve their best interest. Evidence shows that ICWA’s framework achieves better outcomes for children. National Native organizations stand with tribal nations and non-tribal ICWA allies to take action to protect ICWA and end the unnecessary removal of Native children from their families, tribes, and communities.

Briefing in the case can be found at the Tribal Supreme Court Project website.

 

January 18, 2019
Joint Press Release from National Native Organizations on the Overwhelming Support for the Indian Child Welfare Act
Joint Statement from the Native American Rights Fund, National Indian Child Welfare Association, National Congress of American Indians, Association on American Indian Affairs

On Wednesday, January 16, 2019, 325 tribal nations, 57 Native organizations, 21 states, 31 child welfare organizations, Indian and constitutional law scholars, and seven members of Congress joined the United States and four intervenor tribes in filing briefs to urge the United States Court of Appeals for the Fifth Circuit to uphold the Indian Child Welfare Act (ICWA), the long-standing federal law protecting the well-being of Native children by upholding family integrity and stability.

“The Indian Child Welfare Act (ICWA) is child welfare best practice. Thirty-one leading child welfare organizations stated that ICWA serves the best interest of Native children and families with their declaration that ICWA is the ‘gold standard’ of child welfare policy,” said Sarah Kastelic, executive director of the National Indian Child Welfare Association. “As experts in research, education, advocacy, and providing services related to child welfare, adoption, and court-system reform, these organizations know that ICWA ensures all children and families receive the protections they deserve and that all children fare better when placed with family.”

“The National Congress of American Indians is moved by the overwhelming support to uphold the Indian Child Welfare Act, which protects the best interests of American Indian and Alaska Native children. Tribal nations know, firsthand, the positive impact, the certainty, and stability that ICWA provides to our children in state-based child welfare systems,” said Jefferson Keel, president of the National Congress of American Indians. “Bottom line, ICWA works and the FifthCircuit Court of Appeals should overturn the erroneous district court decision and support American Indian and Alaska Native children and families because it’s the right thing to do.”

“The State of Texas and other Plaintiffs, supported by the Goldwater Institute, bring this litigation against the Indian Child Welfare Act (ICWA) stating that it seeks to protect the equal rights of American Indian children,” said Shannon Keller O’Loughlin, executive director of the Association on American Indian Affairs, “but ICWA is equal rights and human rights legislation. Statistics show that state systems continue to remove Indian children from their families at greater rates than white children, even though incidents of neglect or abuse are similar. Current studies that have researched systemic bias in the child welfare system have found that Indian families were two times more likely to be investigated and four times more likely to have their children removed and placed in foster care than their white counterparts. ICWA was meant to provide protections against this systemic bias and reduce the overrepresentation of Indian children into these systems.”

“The Native American Rights Fund, along with our co-counsel at Dentons, is honored to represent the 325 tribal nations and 57 Native organizations that are signatories to the Tribal Amicus Brief,” said Erin Dougherty Lynch, senior staff attorney at the Native American Rights Fund. “The district court’s interpretation of the Indian Child Welfare Act (ICWA) has never been adopted by any other court, makes no practical sense, is directly contrary to ICWA’s policy and purpose, and finds no support in centuries of established federal Indian law. Indian Country is united in its support for ICWA, and we are confident the Fifth Circuit Court of Appeals will overturn the district court’s decision.”

 

∗ The Protect ICWA Campaign was established by four national Native organizations: the National Indian Child Welfare Association, the National Congress of American Indians, the Association on American Indian Affairs, and the Native American Rights Fund. Together, the Campaign works to serve and support Native children, youth, and families through upholding the Indian Child Welfare Act. The Campaign works to inform policy, legal, and communications strategies with the mission to uphold and protect ICWA.

 

Read more about NARF’s work to protect the welfare of Indian children.

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