Haaland v. Brackeen is the lawsuit brought by Texas (and previously Indiana and Louisiana) and several individual plaintiffs, who allege ICWA is unconstitutional. This case has worked its way through the lower courts (federal district court, Fifth Circuit Court of Appeals, Fifth Circuit en banc) and is being reviewed by the U.S. Supreme Court in the fall of 2022.

Photo of girl and boy hugging and smiling

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

Read more about the Brackeen case in past articles in the NARF Legal Review:

Volume 47. No 1. (2022)

Volume 44. No 2. (2019)

BACKGROUND:

The Indian Child Welfare Act (ICWA) is a 43-year-old federal law that protects the well-being and best interests of Indian children and families. ICWA does this by upholding family integrity and stability and by 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.

For decades, ICWA has been recognized by child welfare experts as the gold standard in child welfare practice, and the law has helped tens of thousands of Indian children and families find fairness and healing in state child welfare systems. In the past several years, anti-tribal interests have launched a series of legal challenges against ICWA, with the goal of broadly undermining tribal sovereignty. The most prominent case and challenge to ICWA is Haaland v. Brackeen (formerly Brackeen v. Zinke and Brackeen v. Bernardt).

The Native American Rights Fund (NARF) is involved with the Brackeen case in two ways:

  • First, NARF, with our co-counsel at Dentons, LLP, have filed the tribal amicus brief at every stage of the case. The tribal amicus brief for the Fifth Circuit en banc represented 486 federally recognized Tribes and 59 national and regional Tribal Organizations in support of ICWA. As in earlier stages of this case, the tribal amicus brief that will be submitted to the Supreme Court in August 2022 will ensure that the Court hears a united message from tribes in support of this vitally important law.
  • Second, NARF facilitates the Tribal Supreme Court Project, which works to coordinate the broader pro-ICWA amicus strategy for the case. 

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

ICWA is widely supported by an impressive array of stakeholders within and outside of Indian Country. At the lower court in Brackeen v. Haaland, 486 Tribal Nations, 59 Native organizations, 31 child welfare orgs, 26 states + DC, and 77 members of Congress offered support for ICWA. These supporters recognize that ICWA is firmly in the best interests of Native children. In keeping them connected to their extended family and cultural identity, the positive outcomes are far-reaching and include higher self-esteem and academic achievement. Further, they recognize that collaboration between sovereign Tribal Nations and state child welfare systems is effective and just governance.

The Litigation:

In 2018, a federal district court in Texas, in a widely criticized decision, held that ICWA violates the U.S. Constitution. This decision was in many ways unprecedentednever before has a federal court found ICWA unconstitutional, and the Supreme Court has consistently rejected arguments that federal Indian statutes violate the Equal Protection Clause or exceed Congress’ authority under the Indian Commerce Clause.

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

The case was appealed by the federal government and four intervening tribal nations to the Fifth Circuit Court of Appeals. In January 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 Fifth Circuit to uphold the Indian Child Welfare Act. In August 2019 , a three-judge panel from the Fifth Circuit reversed the district court’s decision. 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 was a resounding victory for the law and those who fought to protect it.

Then, in November 2019, the Fifth Circuit agreed to conduct an en banc review of the three-judge panel’s decision. In an en banc review, complex cases of broad legal significance are reconsidered by the entire circuit court. The decision of the en banc review panel replaces the three-judge panel’s decision. and In December 2019, 486 federally recognized American Indian and Alaska Native Tribes and 59 Native organizations filed an amicus brief defending the constitutionality of the Indian Child Welfare Act as part of the Court’s en banc proceedings. About the December 13 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.”

In April 2021, the en banc panel released a fractured, 325-page decision. Although the court generally upheld the authority of Congress to enact ICWA, and also held that ICWA’s definition of “Indian child” did not operate on the basis of race, it also found certain sections of ICWA to be unconstitutional.

In September 2021, the U.S. Department of Justice, intervening tribal nations, and Texas and individual Plaintiffs all formally asked the United States Supreme Court to review the Fifth Circuit’s en banc decision. In February 2022, the Supreme Court granted all four petitions and consolidated the case. The parties’ legal briefs were submitted throughout spring and summer 2022 and the case is scheduled to be heard in November 2022.

During the briefing, we saw the true breadth of those who champion ICWA. In an outpouring of support, 497 Tribal Nations, 62 Native organizations, 23 states and DC, 87 congresspeople, and 27 child welfare and adoption organizations, and many others signed on to 21 briefs submitted to the U.S. Supreme Court in favor of upholding ICWA. This large, bipartisan coalition of tribal leaders, policymakers, and organizations understand that the far-reaching consequences of challenging ICWA’s constitutionality in Haaland v. Brackeen will be felt for generations.

Both Native and non-Native people and organizations have authored briefs, ranging from legal perspectives affirming ICWA’s constitutionality to first-person perspectives from those whose lives are most impacted by ICWA—children and families navigating the child welfare system. The child development expertise provided in these briefs show us and the Court that ICWA serves children’s and families’ best interests. Additionally, tribal leadership, legal experts, and policymakers make the case that ICWA is not only constitutional but also upholds and respects tribal sovereignty.

Those who signed on to these briefs stand with Native kids. Adoption is one of the most influential events that can happen in a child’s life; it has the power to shape their entire future. ICWA ensures that this decision is given careful consideration so that the unique needs of Native children are met. ICWA places kids with their extended families or communities when possible, which is considered best practice by child welfare experts. Research shows that when kids are connected to their identity and culture it leads to positive outcomes, including higher self-esteem and academic achievement.

On the opposing side, those who seek to dismantle ICWA have shown that they do not care about what is best for Native kids. ICWA opponents have two things in common: deep pockets and minimal contact with Tribal Nations, Native organizations, tribal leaders, or Native peoples. They say they want the best for Native children, but not a single tribal nation, not a single independent Native organization, and not a single independent child welfare organization supports their cause. They are motivated by self interests and want to grow their control of Native land, Native industry, and Native futures.

NARF team and co-counsel on the morning of the Brackeen Supreme Court hearings (Nov. 9, 2022)

On Wednesday, November 9, the Supreme Court heard oral argument in Haaland v. Brackeen. Audio recordings and a transcript of the oral argument are on the Tribal Supreme Court Project’s case page.

How to Show Your Support for ICWA!

There’s a Protect ICWA Instagram account, a Protect ICWA Twitter account, a Protect ICWA One Pager for downloading, and a Protect ICWA Petition where you can show your support.  Many interviews and articles can be found at the Protect ICWA Linktree.  

How to Access the Briefs in the Case

All briefs filed in the case are on the Tribal Supreme Court Project’s case page.  In addition, summaries of each of the pro-ICWA amicus briefs and links directly to each brief are available here

Read more about NARF’s work to protect the welfare of Indian children and the Protect ICWA Campaign.

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.
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