TRIBAL ALERT: The Indian Child Welfare Act Stands, Thank You Tribes

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tribal alertCILS wants to thank all 72 California tribes and 11 Indian organizations who signed on to the amicus curiae brief in the Brackeen v. Bernhardt (formerly Brackeen v. Zinke) case, which was challenging the constitutionality of the Indian Child Welfare Act (ICWA). The case has been pending before the 5th Circuit Court of Appeals for over five months. Finally, on August 9, 2019, the Court issued its decision upholding the ICWA in full! It was a major victory on all of the legal arguments made by the tribal and federal defendants. The Court’s ruling is as follows:

For these reasons, we conclude that Plaintiffs had standing to bring all claims and that ICWA and the Final Rule are constitutional because they are based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians; ICWA preempts conflicting state laws and does not violate the Tenth Amendment anticommandeering doctrine; and ICWA and the Final Rule do not violate the nondelegation doctrine. We also conclude that the Final Rule implementing the ICWA is valid because the ICWA is constitutional, the BIA did not exceed its authority when it issued the Final Rule, and the agency’s interpretation of ICWA section 1915 is reasonable. Accordingly, we AFFIRM the district court’s judgment that Plaintiffs had Article III standing. But we REVERSE the district court’s grant of summary judgment for Plaintiffs and RENDER judgment in favor of Defendants on all claims.

Unfortunately, this is not the end of the case. The plaintiffs can: (1) ask the Court to reconsider its decision; (2) request an en banc hearing before all (or most) of the 5th Circuit Court judges; (3) file a petition for certiorari to the U.S. Supreme Court; or (4) pursue #1 and #2 and if they lose then pursue #3. As of this writing, we have not seen which direction the plaintiffs will go. However, CILS will keep you updated.

You may read the full opinion here and thank you all for your support.