PROCEDURAL POSTURE:  Last year, a federal district court in Texas ruled that the Indian Child Welfare Act (ICWA) was unconstitutional because it was a race-based preference law.  In Brackeen v. Zinke, the court found that ICWA was unconstitutional as a violation of the Fifth Amendment’s equal protection clause because it gave race-based preferential treatment in the placement of Indian children.

The court’s ruling countered years of decisions that had affirmed the law was rooted in sovereignty protections for Native Americans.  The district court made this finding despite the U.S. Supreme Court’s 1974 decision in Morton v. Mancari, which found that Indian preference in hiring was permissible because it was based on political classification rather than race. 

The U.S. Court of Appeals for the Fifth Circuit in New Orleans granted a stay, leaving the law in place while the case of Brackeen v. Zinke goes through the appeals process.  (Oral arguments were heard on March 13, 2019.)  In the event the Fifth Circuit agrees that ICWA is unconstitutional, the adversely affected parties would likely seek appeal to the U.S. Supreme Court.

STATUTORY AUTHORITY: Congress passed ICWA in 1978 because a high number of Native American children were being removed from their homes by public and private agencies, which placed many of these children in non-Indian foster care and adoptive homes. This historic adoption law was intended to combat centuries of discrimination against Native Americans and keep their children with families and tribal communities. 

INDIAN LAW CONFERENCE:  Will the 41-year-old law be overturned by the Fifth Circuit Court of Appeals?  To what extent does ICWA provide a valuable tool to both further Indian children’s best interests and protect tribal sovereignty through partnerships with Indian tribes?  What are the potential ramifications for all of federal Indian law if ICWA is overturned?  To explore these and other issues, register now for the 44th Annual Indian Law Conference at  www.fedbar.org/indianlaw19.

Distinguished panelists at the Federal Bar Association’s Indian Law Conference on April 11, 2019 will  provide an update on the status of current ICWA litigation, as well as offer a discussion of the circumstances that warranted the passage of ICWA in 1978.  Speakers on the panel titled “ICWA and the Classification of Tribes as Political or Governmental Units” include:

  • Kathryn Fort, Director, Indian Law Clinic and Adjunct Professor, Michigan State University, College of Law
  • JoAnn Kintz, Trial Attorney, Environment & Natural Resources Division, U.S. Department of Justice (pending)
  • Sheldon Spotted Elk, Director, Indian Child Welfare, Casey Family Programs

RELEVANCE:  This case seeking to invalidate the law is the most consequential challenge ICWA has ever faced.  ICWA’s defenders include the federal government, joined by hundreds of Indian tribes and supported by several state attorneys general, Native American advocacy groups, and child-welfare organizations. 

If ICWA is overturned, it could cast a shadow of uncertainty over the entire body of law that governs the relationship between Indian tribes and the U.S. government.  Never before has a federal court found ICWA unconstitutional.  Instead, courts have rejected challenges to ICWA’s constitutionality time and time again since its enactment in 1978.

The outcome of the case will determine whether ICWA can continue to protect Indian children, who are removed from their homes at higher rates than their peers.  This case has prompted extensive legal commentary, and some have questioned what, if any, relevance the Brackeen decision might have for other Indian law statutes.

Join the Federal Bar Association in Albuquerque, New Mexico on April 11-12, 2019 to evaluate ICWA.  Sign up today at www.fedbar.org/indianlaw19.


Stacy Slotnick, Esq. holds a J.D., cum laude, from Touro Law Center and a B.A., summa cum laude, from the University of Massachusetts Amherst. She performs a broad range of duties as an entertainment lawyer, including drafting and negotiating contracts; addressing and litigating trademark, copyright, patent, and other IP issues; and directing the strategy and implementation of public relations, blogging, and social media campaigns.