Native American Tribes Continue Defending Indian Child Welfare in Brief Filed Ahead of Fifth Circuit En Banc Rehearing in Brackeen v. Bernhardt

WASHINGTON, D.C. – Today, four federally-recognized Indian tribes filed a brief in Brackeen v. Bernhardt, defending the Indian Child Welfare Act (ICWA) against unwarranted attacks on the law’s constitutionality. The four tribes are co-defendants in the case before the Fifth Circuit Court of Appeals, which will be reheard on January 22, 2020. Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Fawn Sharp issued the following statement:

“Our tribal nations, the Trump administration, 21 states, 325 tribes and over 30 child welfare organizations are standing together against this attack on Native families and children. Those who seek to strike down ICWA want to undermine a crucial set of protections and instead leave Indian children subject to flawed state foster care systems – like the one in Texas, where the state is paying massive fines for ignoring court orders to keep children safe.  While it is disappointing to see the attacks on ICWA continue, we are confident that the Fifth Circuit will again stand on the side of families and children by upholding the law.

For decades, the courts have affirmed the constitutionality of the Indian Child Welfare Act. Support for ICWA and its meaningful protections to maintain families is shared by Native American tribes, states, child welfare professionals, members of Congress and voices across the political spectrum who understand the law’s critical role in protecting our children. Our brief reiterates this widespread consensus.”

The brief from the four intervening tribes can be found here.

In 2017, individual plaintiffs Chad and Jennifer Brackeen, a couple from Texas, along with the state attorneys general in Texas, Louisiana, and Indiana, sued the U.S. Department of the Interior and its now-former Secretary Ryan Zinke to challenge ICWA. The Morongo, Quinault, Oneida and Cherokee tribes intervened as defendants in the case Brackeen v. Bernhardt.

In August 9, 2019, the Fifth Circuit Court of Appeals reaffirmed that the Indian Child Welfare Act is constitutional and serves the best interests of children and families. On October 1, 2019, plaintiffs in Brackeen v. Bernhardt chose to continue their attacks on Indian children and tribal families and requested an en banc rehearing before the Fifth Circuit, which the court granted.

There is broad, bipartisan support against this misguided attack on a law that is crucial for protecting the well-being of Indian children and Indian sovereignty. The Trump administration has strongly defended ICWA and its protections for Indian children. A total of 21 attorneys general, representing a broad range of states, filed a brief in support of ICWA, explaining that ICWA is an appropriate exercise of Congress’s authority to legislate in the field of Indian affairs and does not violate the Tenth Amendment or equal protection laws.

An additional 325 tribes, 57 tribal organizations, members of Congress, Indian law and constitutional law scholars, and 30 leading child welfare organizations have also filed briefs in support of ICWA.

For additional information on this case and the Indian Child Welfare Act please visit: