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Fifth Circuit Court of Appeals Reaffirms the Constitutionality of ICWA

Pressroom Blog
(PORTLAND, Ore. August 9, 2019)— Today, the Fifth Circuit Court of Appeals published its decision inBrackeen v. Bernhardt, the federal court challenge to the Indian Child Welfare Act (ICWA). The court’s decision affirmed the constitutionality of ICWA, recognizing the unique political status of tribal nations and upholding the federal law that is so critical to safeguarding Indian child welfare. It is a resounding victory for the law and those who fought to protect it.

ICWA is vital for protecting the well-being of Native children. Today’s decision reaffirms tribal nations’ inherent sovereign authority to make decisions about Native children and families wherever those children and families may live.

As today marks the International Day of the World’s Indigenous Peoples, the Protect ICWA Campaign Partners celebrate this decision as it upholds centuries of Supreme Court precedent and protects the best interests of Native children and families.

“This ruling is a strong affirmation of the constitutionality of ICWA and the inherent tribal authority to make decisions about the well-being of member children, whether they live on or off of tribal lands. ICWA remains the gold standard of child welfare policy and practice; it is in the best interest of Native children,” said Sarah Kastelic, executive director of the National Indian Child Welfare Association.

“The National Congress of American Indians commends the efforts of the intervening tribes—the Cherokee Nation, Morongo Band of Mission Indians, the Navajo Nation, the Oneida Nation, and the Quinault Indian Nation—the Bureau of Indian Affairs, the Department of Justice, and all others in Indian Country that joined this fight to protect our Native children. Today’s decision that clearly defines the breadth of the relationship between the federal government and tribal nations, sends a sharp message as to the strength of tribal sovereignty, which will safeguard Indian Country from such misguided litigation in the future,” said Kevin Allis, CEO of the National Congress of American Indians.

Shannon Keller O’Loughlin, executive director and Attorney for the Association on American Indian Affairs ecstatically stated, “the Association has fought since the early 1960s to make sure that Indian children and their extended families can stay connected and that our diverse cultures can be passed on to coming generations. The Fifth Circuit’s decision today acknowledges Indian Nations’ important political and sovereign rights to protect Indian children and families and strengthen the continuation of our cultures.”

John Echohawk, executive director of the Native American Rights Fund, applauded the Fifth Circuit’s return to core Indian law principles that go back to the founding of the United States.  “It is so great to see the Fifth Circuit follow federal Indian law as we know it and uphold the constitutionality of the Indian Child Welfare Act,” he said.

Cherokee Nation Principal Chief Bill John Baker, Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Fawn Sharp issued the following statement in response to the ruling in Brackeen v. Bernhardt:

“The Fifth Circuit Court of Appeals reaffirmed what we already knew: the Indian Child Welfare Act is constitutional and serves the best interests of children and families. We are pleased that the court followed decades of legal precedent in its ruling, preserving a law that protects Indian children and allows them to retain their identity by staying within their families and tribal communities.

“Despite the misguided attacks on the law, today’s ruling speaks for itself. ICWA ensures that we have a process in place focusing first and foremost on the welfare and safety of children. This is why so many Americans from across the political spectrum have supported upholding the law. We want to thank the Trump administration, the Department of Justice, Deputy Assistant Attorney General Eric Grant, and the Department of Interior for their hard work fighting on behalf of children.”

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