Indian Child Welfare Act remains in force after appeals court order

The Indian Child Welfare Act "remains the law of the land and applicable in all 50 states,” says the National Indian Child Welfare Association, the National Congress of American Indians, Native American Rights Fund and the Association of American Indian Affairs in a statement on December 4, 2018. (Photo by Jourdan Bennett-Begaye)

Jourdan Bennett-Begaye

Tribes, NCAI say it’s ‘welcome news’ to preserve status quo despite Texas court ruling

A federal appeals court granted a stay requested by the four tribes on Monday to preserve the 1978 Indian Child Welfare Act.

“The law is going to stay the same for now,” said Dan Lewerenz, one of the attorneys working on the Brackeen v. Zinke case.

That means Native American families will stay together under the law.

The Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Indian Nation released a joint statement on the granted order.

“By granting the stay, the protections provided by ICWA will remain in full force pending an appeal of the ruling handed down in October by a federal judge in the Northern District of Texas,” said the tribal nations. “This stay decision protects children from potential abuse and forced separation from their families. As a result, tribal families and their children in Texas and Indiana will continue to be protected from the types of abusive child welfare practices that Congress outlawed 40 years ago when it enacted ICWA.”

The four tribes said, “We strongly believe the ruling holding the Indian Child Welfare Act is unconstitutional was wrong, will ultimately be reversed on appeal, and as a result, the rights of Indian children, families and communities protected by the Indian Child Welfare Act will be affirmed and reinforced.”

The National Indian Child Welfare Association said in a release with the National Congress of American Indians, the Native American Rights Fund and the Association of American Indian Affairs that this was “welcome news.”

“ICWA remains the law of the land and applicable in all 50 states. The critical work between states and tribes to apply the ‘gold standard in child welfare’ by keeping Indian children with their family and community will continue,” said the welfare association.

The congress stated this means “no Indian child who encounters the child welfare system in Texas, Indiana and Louisiana during this time should be denied the protections and safeguards afforded them under the Indian Child Welfare Act.”

The court didn’t want to “upset the status quo,” said Lewerenz, especially for a law that’s been in place for 40 years.

“When someone is challenging the law and the challenger wins, normally what happens is the defendants (those defending the law, the tribes in this case) ask the court, ‘We understand we lost but we’re going to ask to stay your decision, or put it on hold, while we get our arguments into place,” Lewerenz told Indian Country Today. “So the law isn’t changing every time.”

And in this instance, the higher court, the 5th U.S. Circuit Court of Appeals, told the district court in Texas to hold on. For now. The decision is not overturned.

“If Texas wins on the appeal, then the fifth circuit may lift the stay,” said the Native American Rights Fund lawyer. “If we win, the Texas decision is invalid.”

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However, this court order doesn’t affect the child officially adopted by the Brackeen family, which is how the district court in Texas saw the law as “unconstitutional.”

“That adoption is completed. Nothing that the court did was going to affect the Brackeen family,” Lewerenz said. “That proceeding is done. Everyone agreed to it.”

Although, the couple “loves the child they adopted,” they worked with attorneys who are trying to “undermine Indian law” and looking for plaintiffs to bring lawsuits that involve the Indian Child Welfare Act, according to Lewerenz. The lead attorney is Matthew McGill of Gibson, Dunn & Crutcher.

“He is a believer and believes in a cause, and believes ICWA hurts children,” Lewerenz said.

The granted stay came right after the United States said it was going to defend the law with four tribes.

The California Tribal Families Coalition’s release commended the fifth circuit for “protecting Indian children, families and tribes” for the “flawed October 2018 ruling finding the Indian Child Welfare Act unconstitutional.”

Jourdan Bennett-Begaye, Diné, is a reporter/producer for Indian Country Today in Washington, D.C. Follow her on Twitter:@jourdanbb.


The National Congress of American Indians is the owner of Indian Country Today and manages its business operations. The Indian Country Today editorial team operates independently as a digital journalism enterprise.

Comments (2)
No. 1-2

Great job to all Indian tribes, tribal organizations, staff people working so diligently on this critical law that protects our children, families, and serves as a safeguard to prevent potential genocide of our people.

Big Medicine
Big Medicine

I can't express the happiness hearing this great news'. I've only known of The American Right's Fund. But I support you all I can. You sure have the Great Spirit watching over you. Keep up the fight for our people. And the children that need us the most. I plan on helping in this fight. When I'm able too!! Thanks' again.