Native American Tribes Issue Statement Following Oral Arguments in Brackeen v. Bernhardt

NEW ORLEANS – Following oral arguments today before the Fifth Circuit Court of Appeals in Brackeen v. Bernhardt, the Morongo Band of Mission Indians, Quinault Nation, Oneida Nation and Cherokee Nation Indian Tribes issued the following statement:

“What was clear in court today is that the Indian Child Welfare Act serves Indian children’s best interests. ICWA has long been considered a gold standard for child welfare, and allows Indian children to retain a valuable piece of their identity by staying within their tribes and families. We are committed to continuing what is best for our children, and are confident that the court will agree with the Trump administration, 21 states and hundreds of tribes across the country on the constitutionality of a law that has protected tribes, Indian parents, children and families for over four decades,” said Cherokee Nation Principal Chief Bill John Baker, Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Nation President Fawn Sharp.

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 October 2018, a federal judge in the Northern District of Texas struck down much of ICWA. Defendants appealed the lower court’s decision and asked the Fifth Circuit Court of Appeals to reverse the decision. Last December, the Fifth Circuit Court of Appeals granted a stay requested by the defendants, putting a hold on the ruling.

There is broad, bipartisan support against this misguided attack on a law that is crucial for protecting the wellbeing of Indian children and Indian sovereignty. A total of 21 attorneys general filed an amicus brief in support of the defendants, arguing that ICWA is an appropriate exercise of Congress’s broad authority to legislate in the field of Indian affairs and does not violate the Tenth Amendment or equal protection laws. The Trump administration has also reiterated its support for ICWA, tribal sovereignty and the safety of Indian children.

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 friend-of-the-court briefs in support of the defendants.