Amicus makes the case for the constitutionality of the Indian Child Welfare Act and Congress’s authority--and trust responsibility--to legislate for the benefit of Indian Tribes

Urges the Fifth Circuit to overturn lower court’s unprecedented ruling

WASHINGTON – Today, U.S. Senators Tom Udall (D-N.M.) and Lisa Murkowski (R-Alaska) along with U.S. Representatives Karen Bass (D-Calif.), Don Bacon (R-Neb.), Betty McCollum (D-Minn.), Tom Cole (R-Okla.), and Don Young (R-Alaska) filed an amicus brief in federal court making the case for the constitutionality of the Indian Child Welfare Act (ICWA). The lawmakers’ brief, filed with the U.S. Court of Appeals for the Fifth Circuit, comes as the court hears a challenge to an October ruling from U.S. District Court for Northern District of Texas, which wrongly struck down key provisions of ICWA in Brackeen v. Zinke. 

Udall is the current vice chairman of the Senate Committee on Indian Affairs. Murkowski is the former vice chairwoman of the Senate Committee on Indian Affairs. Bass, Bacon, McCollum, Cole, and Young serve in leadership for the Congressional Caucus on Foster Youth and Congressional Native American Caucus.

The amicus brief urges the Fifth Circuit to reverse the district court’s ruling in Brackeen v. Zinke, which wrongly held key provisions of ICWA unconstitutional on equal protection grounds.  The brief strongly argues that the lower court’s ruling is not supported by the Constitution. The brief further highlights that the ruling contradicts decades of Supreme Court caselaw making clear that Congress has broad and exclusive authority to legislate for the benefit of Indians and that legislation like ICWA does not impermissibly discriminate on the basis of race.  

The full text of the brief is available here. 

“Congress wrote the Indian Child Welfare Act over 40 years ago in recognition of the fact that Native American children – like all children – thrive when they are able to grow up with the support of their families, communities, and cultures,” said Udall. “The Northern District of Texas’s ICWA ruling improperly constrains Congress’s constitutional authorities while ignoring decades of Supreme Court precedents. Most concerning of all, it threatens the wellbeing of Native communities and, if allowed to stand, would deny Native children critical protections that enforce best practices in child welfare systems. I’m proud to have worked with Senator Murkowski and my colleagues in the House to support ICWA and challenge this dangerous decision.” 

“The Indian Child Welfare Act (ICWA) is among the most significant pieces of Indian legislation Congress has ever enacted, for its purpose is maintaining the integrity of Native culture and family," said Murkowski. "Last year’s Texas federal court decision deeming ICWA unconstitutional upends decades of cooperation between the State of Alaska and Alaska tribes to ensure that Native children in need of aid are placed in culturally supportive environments. I am proud to join with this group of congressional leaders on Indian policy in an effort to persuade the US Court of Appeals that ICWA is in fact constitutional and that the Texas federal court decision is inconsistent with Congress’ plenary power over matters of Indian Affairs.”

“American Indian and Alaska Native children are removed by state child welfare agencies with greater frequency than any other group,” said Bass. “The Indian Child Welfare Act of 1978 was among the first national child welfare standards established by Congress. Two years later in 1980 Congress established national standards for all families in the Adoption Assistance and Child Welfare Act. Congress is well within its authority to legislate to protect Indian children, families and tribes.

“Recognizing the importance of community and culture, Congress passed the ICWA as a means to keep children with their Indian families,”said Bacon. “I am thankful to be among this bipartisan group of Congressional leaders, dedicated to the wellbeing of Indian children and continuation of the ICWA.”

“The Indian Child Welfare Act protects the best interests of Native children and tribal communities,” said McCollum. “These protections allow children to safely remain within their tribal nations and be brought up to know and appreciate their cultural heritage. I’m proud to join my colleagues, who are all leaders on Indian Country issues in Congress, to defend the constitutionality of ICWA, to affirm the sovereignty of tribal nations, and to ensure that we do not return to the days when Native children were regularly removed from their tribes with no legal recourse.”

“When the Indian Child Welfare Act was passed by Congress and enacted 40 years ago, it rightly affirmed tribal sovereignty and sought to preserve a unique and special heritage for Native children and keep families together,” said Cole. “It is very concerning that the constitutionality of this important law is being questioned in the courts. As a member of the Chickasaw Nation of Oklahoma, I am proud to be a part of this effort to protect the constitutional obligation our nation has to tribes. That trust must not be broken.”

“I worked with former Representative Mo Udall to pass the Indian Child Welfare Act in 1978 and have defended it during my time in Congress," said Young. "The District Court’s decision was based on a flawed assessment of ICWA and a lack of understanding of the federal government’s trust relationship with Alaska Natives and American Indians.  As a supporter of ICWA from its inception, I am proud to join this friend of the court brief that explains the legal principles behind the original Congressional intent of the legislation.  ICWA remains critical for protecting Native children and preventing the loss of Native communities.”

Enacted in 1978, ICWA sets best-practice standards for child welfare and adoption proceedings involving children who are members of a federally-recognized Tribe or are eligible for membership in a federally-recognized Tribe. Congress designed the law to respond to the disproportionately high number of Native children who were unnecessarily removed from their families. Over four decades, the law has become the “gold standard” for child welfare policy and keeping Native children connected to their communities and cultures.

Last year, Udall, Murkowski, Bass and Cole led 46 members of Congress in introducing a bipartisan resolution commemorating the 40th anniversary of ICWA, and recognizing its importance to promoting the stability and security of Tribal communities and families.