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Court of Appeals Rules ICWA Constitutional

The Indian Child Welfare Act of 1978 (ICWA) was enacted to address the high rates of Indian children being separated from their Indian families and Indian communities. The stated intent of Congress under ICWA was to “protect the best interests of Indian children and to promote stability and security of Indian tribes and families.” (25 USC § 1902) Recent years have seen an increased number of challenges to various provisions of ICWA and parallel state statutes in both federal and state court lawsuits.  

On October 4, 2018 a federal judge in northern Texas ruled that ICWA and its accompanying regulations were unconstitutional based on his determination that they are impermissibly based on race and, as a result, holding that ICWA and its regulations violated the equal protection clause of the Fifth Amendment to the US Constitution, the Tenth Amendment's anticommandeering doctrine, and the nondelegation doctrine.

On December 3, 2018 the US Court of Appeals for the Fifth Circuit stayed the Texas judge's decision. A total of 14 amicus briefs were filed in support of the various positions of the parties, including a brief by the state of Ohio supporting the plaintiffs and a brief filed by 21 other states supporting the defendants.

On August 9, 2019 the highly awaited decision of the Fifth Circuit reversed the Texas judge, finding that: (i) ICWA does not violate the equal protection clause because it is based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians; (ii) ICWA preempts conflicting state laws and does not violate the Tenth Amendment anticommandeering doctrine; and (iii) ICWA and the Final Rule (promulgated by the Bureau of Indian Affairs in 2016) do not violate the nondelegation doctrine.

It is anticipated that the plaintiffs will appeal the Fifth Circuit Court's decision to the Supreme Court. In the meantime, all provisions of ICWA and the Final Rule are fully enforceable, as are similar standards enacted by various state legislatures, such as the Michigan Indian Family Preservation Act (MIFPA).  

© 2020 Varnum LLP


About this Author

Mark E Hills, Litigation lawyer, Varnum

Mark is a member of the firm's Litigation Practice Team, and chair of the Family Law Team, with more than 20 years' experience in federal and state court jury and non-jury trials, international, federal and state-level arbitrations, and facilitative mediations. Mark was invited to join the Litigation Counsel of America Society in 2011, an honor extended to less than one percent of all attorneys in America.

Mark is a knowledgeable and effective trial attorney for national, state and community banks, private equity holders, and receivers throughout Michigan, and has...

Fred L. Schubkegel, corporate attorney, Varnum

Fred provides general legal counsel to private business interests and nonprofit organizations. He has over 30 years of experience assisting for-profit and nonprofit companies with advice, strategies and services related to startup, growth, development and exit, including entity formation and governance, financing, contracts, mergers and acquisitions, executive compensation, asset protection and business succession planning.

Fred has extensive knowledge in real estate and economic development with a particular knack for packaging incentives and credits to make the impossible deal possible; finance with an emphasis on venture capital, angel investing and public-private partnerships; and businesses or properties impacted by environmental regulations or concerns. He is also one of Varnum’s “go to” experts for legal matters involving medical device and life science companies; the film, music and entertainment industries; business ventures of American Indian tribes; and minority business enterprises.