Native American Tribes Respond to Fifth Circuit Decision on Indian Child Welfare Act

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 Guy Capoeman issued the following statement in response to the decision in the en banc rehearing before the Fifth Circuit Court of Appeals in Brackeen v. Bernhardt:

“As we review the latest decision from the Fifth Circuit, our tribes remain committed to fighting for the Indian Child Welfare Act and ensuring that all of its provisions are upheld. While the decision is long, we are pleased to see the Court upheld important aspects of ICWA. We appreciate the law’s overwhelming support across the political spectrum and will consider all of our options to ensure we never go back to the days when Indian children were ripped away from their families and stripped of their heritage. It is deeply troubling that the attacks on this critical law continue, but we are prepared to continue our work to defend ICWA.”

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. On 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. In addition to states and members of Congress, the previous administration strongly defended ICWA and its protections for Indian children, 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.