Print Page   |   Contact Us   |   Your Cart   |   Sign In   |   Join
Latest News: Amicus Curiae Activity

5th Circuit Court of Appeals reaffirms constitutionality of ICWA

Tuesday, December 17, 2019   (0 Comments)
Posted by: Ranni Gonzalez
Share |


Brackeen v. Bernhardt

5th Circuit Court of Appeals overturns lower court, reaffirming constitutionality of Indian Child Welfare Act


On August 9, 2019 the Fifth Circuit Court of Appeals upheld the constitutionality of the Indian Child Welfare Act, overturning a 2018 decision issued by the Northern District Court of Texas in Brackeen v. Bernhardt.  The district court had ruled ICWA and a related Final Rule issued by the Department of the Interior in 2016 to clarify provisions of ICWA, was unconstitutional. The district court's decision was based upon its conclusion that ICWA’s definition of “Indian Child” was a race-based classification subject to strict scrutiny review.  Strict scrutiny review would require the government’s action further a compelling governmental interest and be narrowly tailored to achieve that interest. The district court found ICWA and the Final Rule could not survive strict scrutiny review and granted summary judgment for the plaintiffs.


The case originated when the states of Texas, Louisiana and Indiana, and seven individuals sued the federal government to challenge the constitutionality of ICWA. The defendants, the United States, the US Department of Interior and BIA, the BIA Principal Assistant Secretary for Indian Affairs, and the Department of Health and Human Services appealed the district court decision to the Fifth Circuit Court of Appeals.


In the appeal NACC joined an amicus brief filed by Casey Family Programs.  The brief argued that ICWA’s definition of an “Indian Child” is a political classification, not a racial classification. Additionally, the amicus brief emphasized the fact that ICWA is the “gold standard” in child welfare for all children, not only those who are eligible for ICWA protections. ICWA represents best practices in child welfare that improve outcomes for children and families.


The Fifth Circuit agreed, rejecting the district court’s conclusion that the definition of an “Indian Child” is a race-based classification. The Fifth Circuit held the definition of an “Indian Child” is a political classification, and therefore not subject to strict scrutiny. Instead, ICWA is subject to rational basis review which requires the government’s action rationally relate to a legitimate government interest. The Fifth Circuit’s decision is effectively summarized in the final paragraph of the opinion:


For these reasons, we conclude that Plaintiffs had standing to bring all claims and that ICWA and the Final Rule are constitutional because they are based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians; ICWA preempts conflicting state laws and does not violate the Tenth Amendment anticommandeering doctrine; and ICWA and the Final Rule do not violate the nondelegation doctrine. We also conclude that the Final Rule implementing the ICWA is valid because the ICWA is constitutional, the BIA did not exceed its authority when it issued the Final Rule, and the agency’s interpretation of ICWA section 1915 is reasonable. Accordingly, we AFFIRM the district court’s judgment that Plaintiffs had Article III standing. But we REVERSE the district court’s grant of summary judgment for Plaintiffs and RENDER judgment in favor of Defendants on all claims.


The purpose of ICWA is " protect the best interest of Indian Children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children and placement of such children in homes which will reflect the unique values of Indian culture... "(25 U.S. C. 1902). The Fifth Circuit Court of Appeal’s decision in this case reaffirms ICWA and the necessary purpose served by its protections.




The Fifth Circuit Court of Appeals granted rehearing en banc in this matter. Arguments will be held on Wednesday, January 22, 2020, at the John Minor Wisdom U.S. Court of Appeals Building. Audio of the argument should be posted that afternoon on the court's website which can be found linked here.


Membership Software Powered by YourMembership  ::  Legal