Fifth Circuit

Bipartisan, Bicameral Group of Lawmakers File Amicus Brief Supporting the Indian Child Welfare Act

The amicus brief urges the Fifth Circuit to uphold the court’s previous decision affirming the constitutionality of IWCA. The decision the Fifth Circuit issued in August reversed an unprecedented ruling from the U.S. District Court for the Northern District of Texas which wrongly struck down ICWA as unconstitutional.

Read the full press release and view the amicus brief at the United States Senate Committee on Indian Affairs website.

Indian Child Welfare Act court hearing scheduled for January 2020

Get ready for round two. Oral arguments in a closely-watched Indian Child Welfare Act case will take place on January 22, 2020.

After offering a tentative date last month, 5th Circuit Court of Appeals made it official on Wednesday. The case known as Brackeen v. Bernhardt will go before an en banc panel of judges in New Orleans, Louisiana, where the first round of arguments took place earlier this year.

Read the full article at the website.

Texas ICWA Decision Up For Reconsideration

The legal status of the Indian Child Welfare Act is again going before the Fifth Circuit Court of Appeals. In 2018, a Texas federal court found the Act known as ICWA to be unconstitutional.

But this summer a panel of three Fifth Circuit judges reversed that finding. Now the full panel of appellate judges will hear the case, with oral arguments tentatively scheduled for the week of Jan. 20.

Listen to the full story at the South Dakota Public Broadcasting website.

Indian child welfare legal challenge is about ending tribal sovereignty

Attacks on the law, enacted in 1978, have inexplicably risen in the past seven years and attracted the support of a seemingly disparate array of high power ultra conservative players and organizations.

Today’s challenges to the child welfare protocols aren’t only about adoption because if the Indian Child Welfare Act is found to be unconstitutional that would undermine tribal governments. So much is at stake: The authority of tribal courts, economic nationhood, including casinos, and the control of tribal land, potentially an opening for fossil fuels and other extractive industry development.

Read the full article at the Indian Country Today website.

Who Should Be Allowed To Adopt Native American Children?

Native American tribes got a big win in August when a federal court upheld the Indian Child Welfare Act, a pivotal 1978 law that requires states to prioritize placing Native children in foster or adoptive homes with Native families over non-Native families. 

But the decision by a three-judge panel of the U.S. Court of Appeals for the 5th Circuit is now being reconsidered by the full court, which announced earlier this month that it is granting a rehearing in a case known as Brackeen v. Bernhardt.

Read the full article at The Huffington Post website.

Tribal families get priority in Native American adoptions. An appeals court will decide whether that’s fair.

In the 40 years since Congress enacted the Indian Child Welfare Act, the law has been criticized in legal challenges that have climbed all the way to the U.S. Supreme Court. But the ICWA, as the act is known, has always prevailed.

Now its constitutionality is being questioned again. On Thursday, the U.S. Court of Appeals for the 5th Circuit agreed to rehear a lawsuit filed by a non-Native American couple in Texas claiming the ICWA discriminates on the basis of race and infringes on states’ rights.

Read the full article at The Washington Post website.

‘We’re under attack’: Tribes defend Indian Child Welfare Act in critical case

After initially deciding the closely-watched case in favor of Indian Country, the 5th Circuit Court of Appeals announced that it will hear the dispute all over again. A larger set of judges will now scrutinize the landmark law but tribal nations remain confident that their sovereign rights and their most precious resource — their children — will win out in the end.

Read the full article at the website.

Fifth Circuit to Rehear Indian Child Welfare Act Challenge

Today, the United States Court of Appeals for the Fifth Circuit issued an order directing a challenge to the Indian Child Welfare Act (ICWA) to be reheard en banc — before the entire Fifth Circuit. As previously reported, a three-judge panel of the Fifth Circuit had held ICWA Constitutional in August, finding it was not a race-based statute that would violate the Equal Protection Clause.

Read the full article at the Indian Country Today website.

Read the statement from the Protect ICWA Campaign at the Native American Rights Fund website.

Overwhelming Support for ICWA

Joint Press Release from National Native Organizations on the Overwhelming Support for the Indian Child Welfare Act

Available at

Screenshot of tribal amicus brief, click to see document

(Portland, Ore., January 18, 2019)—On Wednesday, January 16, 2019, 325 tribal nations, 57 Native organizations, 21 states, 31 child welfare organizations, Indian and constitutional law scholars, and seven members of Congress joined the United States and four intervenor tribes in filing briefs to urge the United States Court of Appeals for the Fifth Circuit to uphold the Indian Child Welfare Act (ICWA), the long-standing federal law protecting the well-being of Native children by upholding family integrity and stability.

“The Indian Child Welfare Act (ICWA) is child welfare best practice. Thirty-one leading child welfare organizations stated that ICWA serves the best interest of Native children and families with their declaration that ICWA is the ‘gold standard’ of child welfare policy,” said Sarah Kastelic, executive director of the National Indian Child Welfare Association. “As experts in research, education, advocacy, and providing services related to child welfare, adoption, and court-system reform, these organizations know that ICWA ensures all children and families receive the protections they deserve and that all children fare better when placed with family.”

“The National Congress of American Indians is moved by the overwhelming support to uphold the Indian Child Welfare Act, which protects the best interests of American Indian and Alaska Native children. Tribal nations know, firsthand, the positive impact, the certainty, and stability that ICWA provides to our children in state-based child welfare systems,” said Jefferson Keel, president of the National Congress of American Indians. “Bottom line, ICWA works and the FifthCircuit Court of Appeals should overturn the erroneous district court decision and support American Indian and Alaska Native children and families because it’s the right thing to do.”

“The State of Texas and other Plaintiffs, supported by the Goldwater Institute, bring this litigation against the Indian Child Welfare Act (ICWA) stating that it seeks to protect the equal rights of American Indian children,” said Shannon Keller O’Loughlin, executive director of the Association on American Indian Affairs, “but ICWA is equal rights and human rights legislation. Statistics show that state systems continue to remove Indian children from their families at greater rates than white children, even though incidents of neglect or abuse are similar. Current studies that have researched systemic bias in the child welfare system have found that Indian families were two times more likely to be investigated and four times more likely to have their children removed and placed in foster care than their white counterparts. ICWA was meant to provide protections against this systemic bias and reduce the overrepresentation of Indian children into these systems.”

“The Native American Rights Fund, along with our co-counsel at Dentons, is honored to represent the 325 tribal nations and 57 Native organizations that are signatories to the Tribal Amicus Brief,” said Erin Dougherty Lynch, senior staff attorney at the Native American Rights Fund. “The district court’s interpretation of the Indian Child Welfare Act (ICWA) has never been adopted by any other court, makes no practical sense, is directly contrary to ICWA’s policy and purpose, and finds no support in centuries of established federal Indian law. Indian Country is united in its support for ICWA, and we are confident the Fifth Circuit Court of Appeals will overturn the district court’s decision.”

See related news coverage:

Tribes Come Together to Challenge the Indian Child Welfare Decision at the Indian Country Today website.

Tribes Offer Overwhelming Support for the Indian Child Welfare Act at the Navajo-Hopi Observer.

Attorney General Ferguson Urges Appeals Court to Preserve Indian Child Welfare Act news release at the Washington State Office of the Attorney General website.

Alaska Official Call on Court to Uphold Indian Child Welfare Act at the KTOO Public Media website.

Lawmakers File Bipartisan, Bicameral Amicus Brief in Support of the Indian Child Welfare Act at the Office of Tom Cole (R-Okla) website.

AG Brnovich Joins Bipartisan Coalition in Defense of Law that Protects Native American Children at the Arizona Attorney General website.

Alaska Fights Ruling on Native Adoption Law at the Bristol Bay Times website.