On April 6, 2021, an en banc panel of the U.S. Fifth Circuit Court of Appeal decided Brackeen v. Haaland, a case challenging the constitutionality of the Indian Child Welfare Act (ICWA). Read the full decision here.

The good news is (1) this decision does not apply in California nor in any state in the Ninth Circuit; and (2) it generally affirms the ICWA’s overall constitutionality.

The 325-page decision is a split authority on many of the ICWA’s specific provisions. CILS will continue to analyze the complexities of the various opinions and will provide further updates as warranted.

However, per our preliminary review, a majority of the Fifth Circuit found three portions of the ICWA unconstitutional under the anticommandeering doctrine:

  • 25 USC 1912(d) – active efforts requirement as applied to state agencies;
  • 25 USC 1912(e) and (f) – testimony of a qualified expert witness; and,
  • 25 USC 1915(e) – placement record-keeping requirements.

The anticommandeering doctrine, which springs from the Tenth Amendment, says that the federal government cannot make states adopt federal laws as their own nor enforce those laws.  It’s important to remember that in states like California, which have codified the ICWA into state law; the anticommandeering doctrine cannot be used to invalidate state law because it only addresses the compulsory adoption and enforcement of federal laws.

Flowing from the anticommandeering holdings, the Fifth Circuit also held certain related portions of the BIA’s 2016 ICWA regulations to be invalid.  California has already incorporated those regulations into state law (as of 2019 via AB 3176), so ICWA cases here will be unaffected for the same reasons as above.

There is a strong likelihood that one or both parties will ask for a review by the U.S. Supreme Court.  The Supreme Court accepts very few of the many petitions for review it receives, although the chances of it granting certiorari do increase with the creation of a split amongst the federal appellate courts, as the Brackeen decision does.

It is worth noting the lead portion of the decision calls out the fact that the states challenging the ICWA’s constitutionality (Texas, Louisiana, Indiana, and Ohio with its amicus brief) are home to only a tiny fraction of the nation’s Indian tribes and citizens, while the 26 states who came out in favor of the law, including California, are home to a vast majority of both.

Again, CILS will have further analysis to offer as we work our way through this lengthy decision.  We will continue to monitor the case if a review is sought and will continue to be watchful for attempts to push anti-ICWA arguments in California.

Stay safe!