Federal Court of Appeals to Hear Oral Arguments Today in ICWA Challenge That Would Upend Over 200 Years of Legal Precedent

Published March 13, 2019

NEW ORLEANSToday the Fifth Circuit Court of Appeals will review the lower federal court decision inBrackeen v. Bernhardt that ignored centuries of Supreme Court precedent to strike down the Indian Child Welfare Act (ICWA), a law that protects the best interests of American Indian and Alaska Native children. The three-judge appeals panel will hear oral arguments in the case this morning on behalf of two federal agencies—the Departments of the Interior and of Health and Human Services—and five tribal nations—Cherokee Nation, Morongo Band of Mission Indians, Navajo Nation, Oneida Nation, and Quinault Indian Nation.

“We look forward to the appeals court’s review today of the lower court’s decision,” said Dr. Sarah Kastelic, executive director of the National Indian Child Welfare Association. “The district court ruling misapprehends the government-to-government relationship between tribal nations and the federal government for over two hundred years. Never before has a federal court found ICWA unconstitutional–in fact, both federal courts and state high courts have rejected challenges to ICWA’s constitutionality time and time again since its enactment in 1978.”

President Jefferson Keel of the National Congress of American Indians stated, “Indian Country welcomes the Fifth Circuit Court of Appeals’ review in this matter as the district court’s clearly erroneous ruling has led to uncertainty for all American Indian and Alaska Native children and their families. Congress, through its unique relationship with tribal nations, enacted the Indian Child Welfare Act to stop concerted efforts to actively remove Native children from their families. Today ICWA is needed more than ever to ensure that Native children, the future leaders and innovators of Indian Country, are protected and, where possible, can grow up rooted in their cultures, languages, and communities.”

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