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U.S. Supreme Court to Review Constitutionality of ICWA

February 28, 2022

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, with opponents alleging the statutory provisions are unconstitutionally race-based.

Today, February 28, 2022, the U.S. Supreme Court agreed to review four petitions arising from an en banc decision of the U.S. Fifth Circuit Court of Appeals from April 6, 2021, in Haaland v Brackeen. In that case, a Federal district judge in Northern Texas invalidated ICWA. The decision was then overruled by a three-member Fifth Circuit panel before consideration by the entire Fifth Circuit bench ultimately upheld key provisions of ICWA.  

The Supreme Court’s decision to review Brackeen is not surprising considering the ongoing dispute impacts not only ICWA and related rules promulgated by the Bureau of Indian Affairs, but also impacts similar statutory mechanisms and procedural standards in a number of states such as the Michigan Indian Family Preservation Act (MIFPA). A date for argument before the Supreme Court has not yet been set.

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