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United States Supreme Court to hear oral argument on November 9th on the constitutionality of the Indian Child Welfare Act

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October 27, 2022

United States Supreme Court to hear oral argument on November 9th on the constitutionality of the Indian Child Welfare Act


Seattle, Wash. – The United States Supreme Court will hear oral argument on November 9, 2022, over the constitutionality of the Indian Child Welfare Act in Brackeen v. Haaland and several other consolidated cases. An audio feed of the oral argument will be live-streamed, and the audio will be available on the Court’s website later in the day.

The Indian Child Welfare Act (ICWA) of 1978 is a federal law that recognizes tribal sovereignty and governs jurisdiction over the removal of Native American (Indian) children from their families. Under ICWA, foster care placement and termination of parental rights proceedings in state courts must undertake special processes and considerations for any “Indian child,” which ICWA defines as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” ICWA applies to every Native American child that is served by a CASA/GAL program, and CASA/GAL volunteers supporting these children need to look out for the special issues that arise in these cases.

In 1979, the Bureau of Indian Affairs (BIA) promulgated guidelines intended to assist state courts in implementing ICWA but without “binding legislative effect.” The 1979 Guidelines left the “primary responsibility” of interpreting certain language in ICWA “with the state courts that decide Indian child custody cases.” In June 2016, the BIA promulgated the Final Rule to “clarify the minimum Federal standards governing implementation of ICWA” and to ensure that it “is applied in all States consistent with the Act’s express language.”

In 2018, a federal district court in Texas, held that ICWA is unconstitutional. The court ruled that provisions of ICWA and the Final Rule violated the Constitution because the definition of Indian Child under ICWA was race-based, and that Congress did not have the power to order how the states implement ICWA.

On August 9, 2019, the federal circuit court (three-judge panel) reversed the federal district court’s ruling that struck down the validity of ICWA. In its opinion, the federal circuit court determined that ICWA’s definition of “Indian child” is a political classification based on the sovereignty of tribal nations, and not race-based, and that the Constitution gives Congress express authority to legislate on matters relating to Indian tribes.

On November 7, 2019, the Fifth Circuit Court of Appeals granted a motion for a rehearing by the court en banc – by the entire court rather than a panel of judges. The order granting the rehearing vacated the earlier August 9, 2019, decision. On April 6, 2021, the Fifth Circuit Court of Appeals, sitting en banc, issued a very lengthy and confusing opinion. The court split over the constitutionality of the placement preferences, affirming in part the lower court’s decision striking them down as unconstitutional.

In September 2021, the U.S. Department of Justice, intervening tribal nations, and Texas and individual Plaintiffs all asked the Supreme Court to review the Fifth Circuit’s en banc decision. In February 2022, the Supreme Court granted all four petitions and consolidated the case with others that raised similar issues. The parties submitted legal briefs, and amicus briefs by interested tribal nations, national organizations, and state governments were submitted throughout spring and summer 2022.

The United States Supreme Court has posted on its website a Summary of Questions Presented (PDF) that will be heard on November 9, 2022.