October 6, 2022

Volume XII, Number 279

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U.S. Supreme Court to Review Constitutionality of ICWA

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, with opponents alleging the statutory provisions are unconstitutionally race-based.

Today, February 28, 2022, the U.S. Supreme Court agreed to review four petitions arising from an en banc decision of the U.S. Fifth Circuit Court of Appeals from April 6, 2021, in Haaland v Brackeen. In that case, a Federal district judge in Northern Texas invalidated ICWA. The decision was then overruled by a three-member Fifth Circuit panel before consideration by the entire Fifth Circuit bench ultimately upheld key provisions of ICWA.  

The Supreme Court’s decision to review Brackeen is not surprising considering the ongoing dispute impacts not only ICWA and related rules promulgated by the Bureau of Indian Affairs, but also impacts similar statutory mechanisms and procedural standards in a number of states such as the Michigan Indian Family Preservation Act (MIFPA). A date for argument before the Supreme Court has not yet been set.

© 2022 Varnum LLPNational Law Review, Volume XII, Number 59
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About this Author

Mark E Hills, Litigation lawyer, Varnum
Partner

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...

616-846-0687
Fred L. Schubkegel, corporate attorney, Varnum
Partner

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...

269/553-3514
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