Brackeen v. Bernhardt – Indian Child Welfare Act

Attorney: Erin Dougherty Lynch, Dan Lewerenz

CASE UPDATES:

February 20, 2018

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.

See also:

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.”

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