Court ruled that ICWA is constitutional

Updated: 5th Circuit Court of Appeals overturns lower court decision

The 5th Circuit Court of Appeals unanimously voted to uphold the constitutionality of the Indian Child Welfare Act; overturning a lower district court’s decision in a late decision Friday afternoon.

Dan Lewerenz, an attorney at the Native American Rights Fund, worked on the case. He was still reading through the court’s decision but said they were thrilled for this win for Indian Country.

“The 5th Circuit recognized the constitutionality of ICWA,” Leweranz said. “We hope this is the end of this litigation.”

The case, Brackeen v. Bernhardt, took the initial blow in October 2018 when a federal judge in Texas ruled the legislation unconstitutional. Judge Reed O’Conner ruled that the Indian Child Welfare Act is a “race based statute” that violates the Equal Protection Clause of the Constitution.

Passed in 1978, the Indian Child Welfare Act has been praised as the “gold standard” for by national child welfare organizations. The law states when a Native child is up for adoption, homes of family or tribal members are prioritized for placement.

Research has also shown that Native and non-Native children alike have better outcomes when they are raised in their communities rather than foster homes or state child welfare systems.

Sarah Kastelic, executive director of the National Indian Child Welfare Association, said that the decision was in the best interest of Native children.

"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,” Kastelic said. “ICWA remains the gold standard of child welfare policy and practice; it is in the best interest of Native children."

Social worker Lucinda Myers, Muscogee, was excited about the decision. She received the news while at the 48th Annual Association of American Indian Physicians Conference in Chicago.

Kevin Allis, the chief executive officer of the National Congress of American Indians, said this decision shows how strong tribal sovereignty is.

"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," he said. "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."

The Association of American Indian Affairs has been fighting to keep Native children and their families connected. 

Shannon Keller O'Loughlin, executive director and attorney for the organization said this reinforces tribal nations as political entities.

"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," she said.

Followers of the case let their feelings be known on social media after the decision came down.

The 5th Court’s decision is a big win for Indian Country but it is not yet known if this will be the last word in this long legal battle.

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Kolby KickingWoman is a reporter/producer for Indian Country Today. He is Blackfeet/Gros Ventre from the great state of Montana and currently reports and lives in Washington, D.C. Follow him on Twitter - @KDKW_406. Email - kkickingwoman@indiancountrytoday.com

Indian Country Today, LLC., is a non-profit news organization owned by the non-profit arm of the The National Congress of American Indians. The Indian Country Today editorial team operates independently.

 

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