Federal Court Strikes Down Indian Child Welfare Act As Unconstitutional

In Brackeen v. Zinke, No. 4:17-cv-868-O (N.D. Tex.), the U.S. District Court for the Northern District of Texas declared that the Indian Child Welfare Act (ICWA) and its implementing federal regulations (the Final Rule) are unconstitutional. In particular, the Court held that the ICWA relies on impermissible racial classifications and unlawfully directs states to carry out adoption and custody cases in a specific manner. This decision is a threat to the future of the ICWA. The ICWA is currently only invalid in that district and as against the Plaintiffs, and may be stayed while it is appealed to the Fifth Circuit Court of Appeals. However if the Fifth Circuit of Appeals agrees that the ICWA and the Final Rule should be struck down, this case would be a prime candidate for Supreme Court review.

Enacted in 1978, the purpose of the ICWA is to protect the best interests of Indian children and Indian tribes and families. Congress passed the ICWA in response to a crisis in which significant percentages of American Indian and Alaska Native children were separated from their families and tribes by state child welfare and private adoption agencies, and adopted or placed in foster care outside of their communities. Today, the ICWA sets federal requirements that apply to state adoption and custody proceedings involving an Indian child who is a member of or eligible for membership in a federally recognized tribe.

In Brackeen, three states (Texas, Louisiana and Indiana), as well as seven individuals who have or are attempting to adopt Indian children, brought suit to challenge the legality of the ICWA and the Final Rule. The Indian children involved in this case were members or eligible for membership in the Navajo Nation, Cherokee Nation, Ysleta del Sur Pueblo Tribe and White Earth Band of Ojibwe Tribe. In addition to the Federal Defendants, four tribes (the Cherokee Nation, Oneida of Wisconsin, Quinault Indian Nation and Morongo Band of Mission Indians) intervened as Defendants. The Court denied the Navajo Nation's motion to intervene.

On Thursday, October 4, 2018, the Court issued an order granting Plaintiffs' motions for summary judgment in nearly all respects, and declaring portions of the ICWA and the Final Rule unconstitutional—specifically 25 U.S.C. §§ 1901-1923, 1951-1952 and 25 C.F.R. §§ 23.106...