SACRAMENTO – California Attorney General Xavier Becerra today led a bipartisan coalition of 27 attorneys general in filing an amicus brief before the full U.S. Fifth Circuit Court of Appeals to defend the Indian Child Welfare Act (ICWA) in Brackeen v. Bernhardt. In the brief, the coalition urges the appellate court to uphold ICWA and affirm the decision of a three-judge appellate panel. ICWA is a 41-year-old federal law that furthers the best interests of Native American children and protects the sovereignty of tribes by preserving children’s connections to their heritage during child placement proceedings.
“ICWA is a time-tested law that protects the welfare of children and the sovereignty of Native American tribes,” said Attorney General Becerra. “No child should forcibly lose the opportunity to grow up with their own culture, history, and traditions. The survival of Native American tribes depends on children maintaining these critical ties. Together with a bipartisan coalition from across the country, we’re proud to lead the way in defending the rights of Native American children and families.”
First enacted in 1978, ICWA was a response to a history of culturally insensitive and ignorant removal of Native American children from their birth families. This resulted in the separation of Native American children from not only their families, but their tribes and heritage as well. In fact, social workers reportedly removed many Native American children because of the perceived poverty of their households rather than for concerns of neglect or abuse. ICWA’s purpose is to “protect the best interests of Indian children and promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards” used in child welfare proceedings involving Native American children.
Today’s brief argues that ICWA is an appropriate exercise of Congress’s broad authority to legislate in the field of Native American affairs and that it is consistent with the Tenth Amendment and equal protection principles. The brief also highlights ICWA’s important role in reducing disparities in child removal rates and improving the collaboration between states and tribes relating to their shared interest in improving the health and welfare of Native American children. The states that make up the bipartisan coalition defending ICWA are home to more than 90 percent of federally recognized tribes in the United States and nearly 70 percent of the overall American Indian and Alaska Native population.
This case arose in 2017 when individual plaintiffs — along with the states of Texas, Louisiana, and Indiana — sued the U.S. Department of the Interior and its now-former Secretary Ryan Zinke, challenging the law and implementation of regulations as unconstitutional. In October 2018, the district court for the Northern District of Texas agreed with the plaintiffs and struck down much of ICWA. In August 2019, a three-judge appellate panel reversed the district court’s ruling and upheld the constitutionality of ICWA and its regulations. Prior to that ruling, California led a coalition of states in filing a brief defending ICWA. The case is currently before the full appellate court after the initial decision was vacated to allow for en banc review.
In filing the brief, Attorney General Becerra is joined by the attorneys general of Alaska, Arizona, Colorado, Connecticut, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, Washington, Wisconsin, and the District of Columbia.
A copy of the brief is available here.