The advisory below has been updated with the following information.
Update: On December 3, 2018, the U.S. Fifth Circuit Court of Appeals entered an order which stays, or temporarily halts, the decision of the U.S. District Court in Brackeen v Zinke while the court considers the pending appeal. As a result, ICWA remains fully effective in all 50 states until the appeal is decided.
The Indian Child Welfare Act of 1978 (ICWA) was enacted to address the high rates of Indian children being separated from their Indian families and Indian communities. The stated intent of Congress under ICWA was to “protect the best interests of Indian children and to promote stability and security of Indian tribes and families” (25 USC § 1902). Recent years have seen an increased number of challenges to various provisions of ICWA and parallel state statutes in both federal and state court lawsuits.
On October 4, 2018, a federal judge in northern Texas ruled that ICWA and its accompanying regulations are unconstitutional, finding them to be impermissibly based on race and, as a result, holding that ICWA and its regulations violated the equal protection clause of the Fifth Amendment to the US Constitution. The court also found that ICWA unconstitutionally delegates congressional power to Indian tribes contrary to Article I of the US Constitution. Further, the court held that ICWA unconstitutionally requires state courts and executive agencies to apply federal standards and directives to state created claims in violation of the Tenth Amendment to the US Constitution. Finally, the court held that Congress did not have authority to pass certain ICWA provision under the Indian Commerce Clause. On October 29, 2018, the court denied the defendants request to stay the effect of his ruling, indicating the defendants failed to demonstrate that harm or injury could come to children, families and tribes as a result of the ruling going into effect.
The defendants have indicated they intend to file an appeal from the decision and many commentators anticipate that this dispute may ultimately be resolved by the US Supreme Court. At this point, the ruling applies only within Texas, Louisiana, and Indiana, which were named plaintiffs. However, review on appeal could apply more broadly and one question left unanswered is whether the ruling will ultimately have an effect on similar standards enacted by various state legislatures, such as the Michigan Indian Family Preservation Act (MIFPA).