PHOENIX - Attorney General Brnovich joined a bipartisan coalition of 27 attorneys general in 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.
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. 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.
The 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, a coalition of states filed 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.
Last year, Attorney General Brnovich prevailed in the defense of ICWA at the 9th Circuit Court of Appeals in another case after the court ruled the legal challenge to the law filed by the Goldwater Institute was moot.
Attorney General Brnovich joins the attorneys general of California, Alaska, 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 in filing the brief.
Full copy of the brief.