To All Tribal Leaders:

Many of you may have heard of the recent decision in the case of Brackeen et al. v. Zinke. Oct. 4, 2018, Case 4:17-CV-00868, (N. D. TX) where the court determined that the ICWA is unconstitutional because it treats Indian children differently than other children in child custody proceedings.  According to the court, this differential treatment of Indian children violates the Equal Protection Clause of the Constitution that generally requires all people to be treated equally under the law.  The court further found the ICWA is in violation of the Tenth Amendment that prohibits the federal government from overreaching and encroaching on states’ rights to address and process child dependency proceedings heard in state courts.

What does the Brackeen decision mean for California tribes?  Nothing at this point in time.  The decision, for now, is confined and limited to Texas.  But the case will undoubtedly be appealed to the 5thCircuit Court of Appeals, and from there the case can and will most likely be appealed to the United States Supreme Court. Only if the Supreme Court finds that the ICWA is unconstitutional will California tribes be impacted. Such a ruling could mean that tribes would no longer be given notice of state court child custody proceedings or allowed to intervene into proceedings involving its member children.  The heightened standards for removal of Indian children may no longer exist, as well as placement priority for Indian families.

There is massive mobilization among tribes throughout the United States against the Brackeen decision. CILS has joined the effort and will lend its legal assistance in any way it can. We will continue to keep tribal communities updated on developments on the case.

All California tribes should be on high alert, as your support for amicus briefs (friend of the court) and other efforts in coordination with tribes nationally may be needed.  For more information, please contact Dorothy Alther at 760-746-8941 or any CILS office.


Dorothy Alther
Executive Director
California Indian Legal Services

More information can be found below:
“The Indian Child Welfare Act is under attack yet again – and this time far more is at stake” article.

Turtle Talk link has the court decision as well as all the Joint Statements and Articles.