Gila River Indian Community applauds decision upholding the Indian Child Welfare Act

Sacaton, AZ – Last Friday, the U.S. Court of Appeals for the Fifth Circuit issued its opinion in Brackeen v. Bernhardt upholding the constitutionality of the Indian Child Welfare Act (ICWA), delivering a major victory for all of Indian Country.


The Gila River Indian Community celebrates the Fifth Circuit’s decision and applauds all of the Tribal Nations and ICWA protectors who have worked hard to defend this important law.


The ICWA was enacted in 1978 because, Native American children were being removed from Indian homes by state child welfare agencies at high rates and placed with non-Indian families. The Court rejected arguments that the ICWA is unconstitutional, holding that it is not a “race-based” classification, but instead based upon a political classification and does not violate the Equal Protection Clause of the U.S. Constitution.


The Court also rejected claims that the ICWA violates the Tenth Amendment by commandeering state resources and the non-delegation doctrine by allowing tribal law to dictate placement preferences. It also upheld the Bureau of Indian Affairs’ ICWA procedural rule, promulgated in 2016.


“The Fifth Circuit’s decision to uphold ICWA appropriately acknowledges the inherent sovereignty of tribal governments as political bodies, and affirms our sovereign rights to protect our children. Instead of attacking this law, our attention should be focused on complying with the ICWA and serving the best interests of Indian children and families,” said the Community’s Governor Stephen Roe Lewis.


The Community appeared as amicus curiae—or friend of the court—in both the Texas federal district court and Fifth Circuit. In addition to the Community, 324 Indian tribes, 57 Native American organizations, several child welfare organizations, and 21 states filed or joined in briefs supporting the ICWA, including the State of Arizona. The decision in Brackeen follows the denial of review by the U.S. Supreme Court of a decision by the Ninth Circuit last year dismissing a similar lawsuit (involving two Community children) challenging the ICWA and brought by the Goldwater Institute in Arizona.


“This decision upholding the ICWA should end the attacks on a law that works and helps Indian families,” said Governor Lewis. “However, if the anti-Indian groups and adoption industry continue their attacks, the Community stands ready to defend ICWA and fight for its members and their families.”