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1 1 (January 22, 2019)

handle is hein.crs/govyjx0001 and id is 1 raw text is: Congressional ______ *Research Service Is the Indian Child Welfare Act Constitutional? January 22, 2019 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, Congress passed ICWA to protect Indian children as vital to the tribes' continued existence. ICWA is designed to do two primary things: (1) set standards for placing Indian children with foster or adoptive families, and (2) help tribes set up child and family programs. Though a number of lawsuits have challenged ICWA over the past 40 years, including on the grounds that the statute impermissibly treated Indian children differently on the basis of race, until Brackeen, none of those challenges had been successful. Instead, courts in prior cases had noted Congress's plenary authority over Indian affairs-derived principally from the Indian Commerce Clause and the Treaty Power-and concluded that applying special rules to Indian children was constitutional because, among other things, the distinction between Indians and non-Indians was not an impermissible race-based classification, but was instead a recognition of the unique political status of Indian tribes. This Sidebar gives a brief overview of ICWA, outlines the Brackeen court's decision with relevant legal context, and explores the possible impacts, including potential for higher court and congressional action. Congressional Research Service https://crsreports.congress.gov LSB10245 CRS Legal Sidebar Prepared for Members and Committees of Congress

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