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Important victory for the preservation of the Indian Child Welfare Act (ICWA)

On August 9th, the Fifth Circuit Court of Appeals published its decision in Brackeen v. Bernhardt and affirmed the validity of the Indian Child Welfare Act (ICWA), a law passed in 1978 to protect Native American families and children.  Affirming the constitutionality of ICWA recognizes the unique political status of tribal nations and upholds the federal law critical to safeguarding Indian child welfare.

The decision is a resounding victory for the law and those who fought to protect it. ICWA is vital for protecting the well-being of Native children. Today’s decision reaffirms tribal nations’ inherent sovereign authority to make decisions about Native children and families wherever those children and families may live.

The suit was elevated to the Fifth Circuit after an October 2018 decision by U.S. District Judge Reed O’Connor. The plaintiffs in the case included three states – Indiana, Louisiana and Texas – along with several non-Indian adoptive families. O’Connor ruled that ICWA was race-based, countering years of case law that had affirmed the law was rooted in sovereignty protections for Native Americans.

O’Connor said that, as a race-based law, ICWA lacked a present-day justification, and forced states to enforce federal standards.  The Fifth Circuit rejected his reframing of ICWA.  The Fifth Circuit also found that the 2016 Final Rule issued by the Bureau of Indian Affairs, which offered guidance to states in an effort to improve the uneven implementation of ICWA from one state to another, is still valid.

“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,” said Sarah Kastelic, executive director of the National Indian Child Welfare Association, in a press release. “ICWA remains the gold standard of child welfare policy and practice; it is in the best interest of Native children.”

To view the court opinion, please visit:

If you missed the Partners for Our Children brief about ICWA, you can read it here