Fifth Circuit Court of Appeals Rules in Favor of the Navajo Nation in ICWA Case

Navajo Nation Attorney General Doreen N. McPaul

Published August 10, 2019

WINDOW ROCK — Navajo Nation President Jonathan Nez and Vice President Myron Lizer commend Friday’s ruling by the Fifth Circuit Court of Appeals upholding the constitutionality of the Indian Child Welfare Act by overturning a previous decision by the U.S. District Court for the Northern District of Texas in Brackeen (Texas) v. Zinke, a lawsuit challenging the constitutionality of the Indian Child Welfare Act (ICWA) and the 2016 ICWA regulations.

The case stems from a lawsuit filed in October 2017 by the state of Texas and a non-Navajo family, regarding the placement of a Navajo child placed in the care of the Brackteen family.

President Nez said the Navajo Nation is particularly pleased that the opinion from the Fifth Circuit Court of Appeals discusses the Nation’s arguments on its enrollment statute, which the U.S. District Court for the Northern District of Texasjudge wrongly described as race-based to justify his erroneous decision that ICWA violated Equal Protection.

“The Fifth Circuit has affirmed the long-standing fundamental principle of Indian law that tribes are political sovereigns, not racial groups, and therefore Congress appropriately passes legislation like ICWA under its trust responsibility to recognize the important role the Nation plays in the lives of all Navajo children,” said President Nez.

“The Nation intervened as a party in the case, separate from other intervenor tribes, specifically to inform the Fifth Circuit of the Nation’s views on its own law, and the inherently political nature of tribal citizenship,” commented Navajo Nation Attorney General Doreen N. McPaul.

President Nez and Vice President Lizer thank Attorney General McPaul and Assistant Attorney General Paul Spruhan, who oversees the Navajo Nation Department of Justice’s Litigation Unit. Spruhan became licensed in the Fifth Circuit specifically for this case and worked collaboratively with the Hogan Lovells law firm on this matter.

“The Office of the President and Vice President thanks the Navajo Nation Department of Justice and many others who support the Nation’s position and continue to support the welfare of Navajo children throughout the country,” said Vice President Lizer.

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