Fifth Circuit Strongly Upholds the Indian Child Welfare Act

On Friday, the Fifth Circuit Court of Appeals in Brackeen v. Bernhardt upheld the constitutionality of the Indian Child Welfare Act of 1978 and the validity of the federal implementing rules. This decision is a great victory for Indian tribes and all those who fought to protect the Act.  Consistent with long standing U.S. Supreme Court precedent, the decision applies and reaffirms important legal principles that tribes are political, governmental entities not simply racial groups and that Congress has the authority under the Constitution to legislate with respect to tribes, particularly to promote tribal self-government.  The Circuit Court noted that interpreting the Act as related to tribal self-government and even tribal survival makes sense considering Congress’ explicit finding  that Indian children are the most vital resource “to the continued existence and integrity of Indian tribes.” 

The Fifth Circuit reversed the District Court on all of the grounds it relied on for finding the ICWA unconstitutional.  Not only is the Act not an impermissible racial classification that would violate equal protection, it also does not violate states’ rights under the Tenth Amendment because it does not commandeer states to take action, and finally it does not unconstitutionally delegate power to tribal governments to make law.

The decision is grounded in a careful consideration of the findings of Congress about the abuses prevalent in state proceedings dealing with Indian child custody and about the need to protect the best interests of Indian children as well as the security of Indian tribes and families.   More than four decades ago these findings formed the basis and justification for the Act.  The Circuit Court panel also gave close attention and weight to the character of tribes as governmental, political entities with a special relationship to the United States, and to the varied and complex membership laws of tribes – which are not strictly racial. 

The decision will be helpful in calling attention to the facts and policy reasons justifying the Indian Child Welfare Act and the history and facts underlying the legal principle that tribes are not racial groups but political, governmental bodies with a special constitutional relationship with the United States.

Congratulations to the tribes that participated and all those who fought for this victory!

Fifth Circuit Court of Appeals published decision in Brackeen v. Bernhardt