In a fractured and lengthy opinion, the 5th U.S. Circuit Court of Appeals has upheld the constitutionality of the Indian Child Welfare Act, while at the same time finding that certain provisions of the Act should be stricken.

As a result, legal experts agree the ruling in Brackeen v Haaland (Docket No. No. 18-11479) is likely destined for the U.S. Supreme Court.

The Indian Child Welfare Act - commonly referred to as ICWA (25 USC §1902) - is a federal law that provides Indian tribes the opportunity to intervene when state child welfare and adoption agencies consider removing an Indian child from a home. The child can be an enrolled citizen of the tribe or be eligible for tribe membership status. 

The lead plaintiffs in the case are Chad and Jennifer Brackeen, a Texas couple who sought to adopt a 2-year-old Navajo child over a Navajo family who was available to take the child. The Brackeens won their lawsuit and ultimately finalized the adoption.

The Brackeens later joined several other plaintiffs in challenging the constitutionality of ICWA in a Texas federal district court. In 2018, U.S. District Judge Reed O’Connor struck down ICWA, ruling it is a race-based law enacted in the 1970s when many Indian children were being removed from their homes. The judge ruled that ICWA was no longer necessary and unfairly expected states and tribes to enforce federal standards. 

That 2018 decision was appealed to the 5th U.S. Circuit Court of Appeals, which includes the states of Louisiana, Mississippi and Texas. A three-member 5th Circuit panel initially upheld the constitutionality of ICWA but with partial dissent, thereby allowing the plaintiffs to request and receive an en banc (full bench) decision.

The 5th Circuit recently released its 325-page en banc decision in Brackeen. Although the judges split down the middle, they upheld the constitutionality of ICWA. A majority of the judges also found that several provisions of the Act should be removed.

5th Circuit Judge James Dennis and Judge Stuart Kyle Duncan each wrote about 150 pages of the en banc decision. Judges Priscilla Owen, Jacques Wiener, Catharina Haynes, Stephen Higginson and Gregg Costa all wrote concurrences and dissents and/or both.

Legal experts agree the Brackeen ruling is likely destined for the U.S. Supreme Court.

Splintered Opinion

Here is a breakdown of the highly fractured ruling.

• A majority held that ICWA is constitutional. “[T]he en banc court holds that Congress was authorized to enact ICWA,” the 5th Circuit wrote. “We conclude that this authority derives from Congress’s enduring obligations to Indian tribes and its plenary authority to discharge this duty.” The court added, “[W]e hold that ICWA’s ‘Indian Child’ designation and the portions of the Final Rule that implement it do not offend equal protection principles because they are based on a political classification and are rationally related to the fulfillment of Congress’s unique obligation toward Indians.”

• A majority found that ICWA’s “active efforts” provision unconstitutionally commandeers the states. 25 USC §1912(d) states that “active efforts” must be made to prevent the breakup of Indian families. Active efforts means “affirmative, active, thorough, and timely efforts intended primarily to maintain or reunite an Indian child with his or her family.”​​​​​​​

• A majority ruled that ICWA’s “expert witness” requirement in cases seeking removal of children from allegedly abusive homes unconstitutionally commandeers the states. 25 USC §1912(e) and (f) state that a “qualified expert witness” must be provided by any child welfare agency seeking to place an Indian child in foster care, or by any agency seeking to terminate the rights of an Indian child’s parent.​​​​​​​

• A majority struck down the requirement that individual states keep a record of child placement. 25 USC §1915(e) states that a record of each placement of an Indian child “shall be maintained” by the state in which the placement was made, evidencing the efforts to comply with the order of preference specified in this section.​​​​​​​

• A majority found that several ICWA provisions properly pre-empt state law, including provisions granting a right to appointed counsel and a right to intervene in state child-custody proceedings.

• The court was deadlocked on the constitutionality of ICWA’s preference for placing children with “other Indian families” or with a licensed “Indian foster home.” According to the opinion, the tie means the federal district court’s ruling – that these preferences violate equal protection guarantees – was affirmed “without precedential opinion.”

Notably, 5th Circuit Judge Gregg Costa blasted the Brackeen decision, calling it nothing but an “advisory” opinion. “It will no doubt shock the reader who has slogged through today’s lengthy opinions that, at least when it comes to the far-reaching claims challenging the Indian Child Welfare Act’s preferences for tribe members, this case will not have binding effect in a single adoption,” the judge wrote. “There is a term for a judicial decision that does nothing more than opine on what the law should be: an advisory opinion. That is what the roughly 300 pages you just read amount to.”

Judge Costa also outright criticized the majority positions, calling it a “tragic irony” that federal powers on Indian affairs were being challenged. “After more than two centuries of courts’ recognizing sweeping federal power over Indian affairs when that power was often used to destroy tribal life, our court comes within a whisker of rejecting that power when it is being used to sustain tribal life.”

According to experts in the field, those ICWA components that have now been ruled unconstitutional - active efforts, expert witnesses and record keeping - will likely have an effective date in June.