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Is the Indian Child Welfare Act
Constitutional?
Updated August 12, 2019
Update: After this Sidebar was originally published, a three-judge panel of the U.S. Court of Appeals for
the Fifth Circuit (Fifth Circuit) reviewed a district court decision that held the Indian Child Welfare Act
(ICWA) unconstitutional. On August 9, 2019, the Fifth Circuit agreed that the plaintiffs in this case had
standing to challenge ICWA, but reversed the district court's grant ofsummary judgment to those
plaintiffs, ruling that lCWA is instead constitutional with respect to all of the plaintiffs' challenges.
Specifically, the appeals court concluded 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,
[and] the BIA did not exceed its authority when it issued the Final Rule.
One of the three judges on the panel is expected to file a partial dissent. The plaintiffs may ask for a
rehearin g en banc by the entire Fifth Circuit, or may petition the United States Supreme Court for a writ
of certiorari.
Below is the text of the Legal Sidebar from January 22, 2019, discussing the district court opinion.
In Brackeen v. Zinke, a federal district court declared that the Indian Child Welfare Act (ICWA)-a 1978
law meant to protect the best interests of Indian children and to promote the stability and security of
Indian tribes and families-was unconstitutional in several ways. This decision is currently pending
before the U.S. Court of Appeals for the Fifth Circuit (Fifth Circuit), and its practical implications have
been paused until the appeal is decided. If upheld, this decision would eliminate many of the special rules
that apply to the adoption and foster care placements of Indian children in the three states involved in this
case: Texas, Louisiana, and Indiana. Among other things, these rules allow a tribe to assume jurisdiction
over, or otherwise to have input into, the placements of children who are eligible for tribal membership.
In 1978, Congress recognized that an alarmingly high percentage of Indian families were being broken
up by often-unwarranted removal of their children by nontribal entities, placing many of these children in
non-Indian foster and adoptive homes. Citing its responsibility for protecting and preserving Indian tribes,
Congressional Research Service
https://crsreports.congress.gov
LSB10245
CRS Legal Sidebar
Prepared for Members and
Comnmittees of Congress-](ViewImageLocal?handle=hein.crs/govbbvx0001&div=1&collection=&method=preview&ext=.png&size=3)
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