Indian Nations Law Update - November 2019
The Indian Child Welfare Act of 1978 (ICWA) is a federal law that requires state courts to give tribes notice of child placement proceedings involving Indian children and, under certain circumstances, to transfer jurisdiction to tribal courts and to give placement preference to Indian families. Hostility to the law has engendered strategic lawsuits seeking to strike down both the ICWA statute itself and the Final Rule implementing ICWA, on multiple grounds. A three-judge panel of the Fifth Circuit Court of Appeals had rejected all of the anti-ICWA arguments in a unanimous decision Aug. 9, 2019, Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019), holding that
the special rules that ICWA applies to Indian children are not
race-based distinctions subject to Fourteenth Amendment strict scrutiny
but, rather, a political classification based on the unique relationship
between the United States and tribes;
the special treatment of Indian children under ICWA “is rationally
tied to Congress’s fulfillment of its unique obligation toward Indian
nations and its stated purpose of “protect[ing] the best interests of
Indian children and ... promot[ing] the stability and security of Indian
the requirements that ICWA places on state courts are consistent with
the Supremacy Clause and do not implicate the anti-commandeering
mandate of the Tenth Amendment;
the requirements that ICWA places on state agencies do not violate
the anti-commandeering mandate because they “do not require states to
enact any laws or regulations, or to assist in the enforcement of
federal statutes regulating private individuals;
ICWA, as an exercise of Congress’ plenary power over Indian affairs under the Commerce Clause, preempts inconsistent state laws;
provisions of ICWA permitting tribes to adopt placement preferences
did not run afoul of the non-delegation doctrine since “[t]he Supreme
Court has long recognized that Congress may incorporate the laws of
another sovereign into federal law without violating the nondelegation
doctrine” and the preferences constitute a “‘deliberate continuing
adoption by Congress’ of tribal law as binding federal law;”
the Final Rule did not violate the APA because, in promulgating it,
“BIA relied on its own expertise in Indian affairs, its experience in
administering ICWA and other Indian child-welfare programs, state
interpretations and best practices, public hearings, and tribal
consultations. … and … BIA’s current interpretation is not ‘arbitrary,
capricious, [or] an abuse of discretion’ because it was not sudden and
the Final Rule’s recommendation that a deviation from prescribed
placement preferences be supported by “clear and convincing evidence”
was entitled to Chevron deference and did not contradict Congressional intent.
While a judge will not normally vote to rehear a case that he or she believes the panel has correctly decided, predictions are hazardous because of the wide range of issues that may have motivated different judges to vote in favor of rehearing. There is no doubt, however, that the forty-one-year-old ICWA is in jeopardy.
Please use this blog search bar and look at Goldwater for more information about this attack on ICWA.
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