GOP-Appointed Federal District Judge Strikes Down Indian Child Welfare Act

Judge Reed O’Connor

Published October 6, 2018

FORT WORTH, Texas — A federal district judge on Thursday struck down the Indian Child Welfare Act (ICWA), a federal law enacted forty years ago in 1978.

Judge Reed O’Connor, a George W. Bush appointee, issued a 47-page decision that showed he clearly does not understand Indian law. In his decision, O’Connor stated ICWA is based on race that affords American Indian children special treatment because of their ancestry or heritage.

The case, Brackeen v. Zinke, involved Chad and Jennifer Brackeen, a non-American Indian couple, who sued in October 2017 for the right to adopt an American Indian child they had in their home for over a year through the foster care program. The Brackeens were denied the right to adopt the child because of ICWA. They sought the assistance of Texas Attorney General Ken Paxton, who filed the federal lawsuit arguing ICWA unlawfully “elevates a child’s race over their best interest.”

The case ended up in the Northern District of Texas federal court, assigned to O’Connor.

The ICWA was passed by Congress because of the high number of American Indian children who were being separated from their Native families and tribes through foster care placement and adoption, typically to non-Native parents.

Reaction from tribes was swift, who most certainly will file an appeal in the U.S. Court of Appeals.

On Friday, the following joint statement was issued by the Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation and Quinault Indian Nation:

“We strongly disagree and are deeply disappointed with Judge O’Connor’s decision in Brackeen v. Zinke in the U.S. District Court for the Northern District of Texas striking down the Indian Child Welfare Act, four decades after it was enacted. We remain steadfast in our commitment to defend the constitutionality of ICWA by all available means for one simple reason: If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families.

The apparent goal of Plaintiffs’ litigation is an extreme one — to separate children from their parents. Before ICWA, as many as one-third of all tribal children were forcibly removed from their families and their communities by state governments. Thorough and objective analysis of the systematic removal of Indian children from Indian homes found many removals were wholly unjustified. These policies devastated tribal communities and we refuse to go back to those darker days. We are heartened by the support of so many states that stand shoulder to shoulder with us in this litigation to protect families.

We are in consultation with our legal counsel and exploring all available options.  Rest assured, we consider the trial level decision today as one part of a long process. In the interim, we will seek a stay of the decision until higher courts have an opportunity to review it.  We will continue to work in state courts throughout the country to ensure the protections of ICWA for Native children, families, and tribes. We strongly believe that, in the end, our rights protected by the Indian Child Welfare Act will be affirmed and reinforced.”

  • Principal Chief Bill John Baker, Cherokee Nation
  • Chairman Robert Martin, Morongo Band of Mission Indians
  • Chairman Tehassi Hill, Oneida Nation
  • President Fawn Sharp, Quinault Indian Nation


Turtle Talk posted the following court documents, including the decision:

166_DCT Order.pdf

Case page with briefs here.

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