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  • September 15, 2021

    Fifth Circuit: Indian Child Welfare Act Is Constitutional

    The Fifth Circuit Court of Appeals recently determined the Indian Child Welfare Act to be overall constitutional, although it struck down certain provisions. Bailey Holt provides an overview of the act, and discusses the case and its practical implications.

    Bailey Holt

    On April 6, 2021, the Fifth Circuit Court of Appeals issued its decision in Brackeen v. Haaland, an appeal from the District Court for the Northern District of Texas. The case challenged the constitutionality of the Indian Child Welfare Act (ICWA) and the validity of regulations promulgated by the Bureau of Indian Affairs (BIA).

    This article provides an overview of ICWA, the constitutional challenges presented in Brackeen, a summary of the Fifth Circuit’s decision, and the decision's practical implications.

    Background: ICWA and WICWA

    ICWA is a federal law that regulates the removal and out-of-home placement of American Indian children. The act established federal standards that must be met in any legal proceeding to place an Indian child in a foster or adoptive home, and it ensures that Indian tribes and families are allowed to participate in such Indian child welfare cases.

    Bailey Holt Bailey  Holt, Marquette Class of 2022, is a legal intern at Kids Matter Inc., MIlwaukee.

    ICWA was signed into state law in Wisconsin on Dec. 7, 2009, and is known as the Wisconsin Indian Child Welfare Act (WICWA).

    WICWA applies in any child custody proceeding as defined by Wis. Stat. section 48.028(2)(d) involving an “Indian child.” This includes CHIPs, JIPs, TPR, adoption and preadoption placements, and guardianship proceedings. A child is considered an “Indian child” if the child is a member of an Indian tribe or eligible for membership.

    WICWA provides:

    • specific notice requirements to the parents and tribes;

    • allows tribes to intervene and/or transfer the case to the tribal court;

    • requires special testimony by a qualified expert witness and a serious damage finding when placing a child in out-of-home care or terminating parental rights; and

    • requires an agency to provide culturally sensitive active efforts to prevent the child’s removal and return home.

    In voluntary proceedings, WICWA ensures that the parent can withdraw consent for any reason prior to entry of a final decree of adoption or termination, at which point the child must be returned to the parent. Further, WICWA requires placement consistent with tribal preference, and establishes placement preferences for both adoptive placements and out-of-home care or pre-adoptive placement. The Indian tribe can establish a different order of preferences.

    The 2016 Final Rule, promulgated by the BIA, provides that state courts have the responsibility of determining whether a child is an Indian child subject to ICWA’s requirements. It also sets forth notice and record-keeping requirements for states, and requirements for states and individuals regarding voluntary proceedings and parental withdrawal of consent. Further, the Final Rule restates ICWA’s placement preferences and clarifies when they apply and when states may depart from them.

    ICWA Challenge in Brackeen v. Haaland

    The lead petitioners in this case are Chad and Jennifer Brackeen, a Texas couple who sought to adopt a 2-year-old Navajo child over a Navajo family. They were joined by other couples seeking to adopt or foster Indian children, a woman who wishes for her Indian biological child to be adopted by non-Indians, and the states of Texas, Louisiana, and Indiana.

    They contest that:

    • the Final Rule and certain provisions of ICWA are unconstitutional; and

    • the ICWA and the Final Rule violate equal protection and substantive due process under the Fifth Amendment and the anti-commandeering doctrine that arises from the 10th Amendment.

    They sought a declaration that provisions of ICWA and the Final Rule violate the non-delegation doctrine and the Administrative Procedure Act (APA). Under the anti-commandeering doctrine, the federal government cannot direct state personnel or resources for federal uses. Under the non-delegation doctrine, Congress cannot delegate its legislative powers to other entities, including administrative agencies or private organizations.

    The respondents are the United States, federal agencies and officials charged with administering ICWA and the Final Rule, as well as several Indian tribes that intervened in support of ICWA.

    The defendants moved to dismiss the claims alleging that the plaintiffs lacked standing.

    Key Takeaways

    There are numerous issues within the opinion, and the court addresses each one individually. Overall, the court upheld the constitutionality of ICWA, but found certain provisions unconstitutional.

    ICWA itself was found constitutional by the majority. ICWA is constitutional as it was rightfully enacted and is not in violation of equal protection. Under Article 1 of the Constitution, Congress had the authority to enact ICWA.

    In addition, the court found that ICWA did not violate equal protection. The court reasoned that ICWA and the Final Rule that implement it are based on a political classification and are “reasonably related to the special government-to-government political relationship between the United States and the Indian tribes.”

    Further, the definition of “Indian child” and the preference placements are rationally related to the trust relationship between Indian tribes and the federal government, in addition to advancing “tribal sovereignty and self-government.” Therefore, there is no violation of equal protection principles.

    The active ​efforts requirement was found unconstitutional by the majority. The active efforts requirement in § 1912(d) commandeers states in violation of Article I and the 10th Amendment.

    To satisfy the active efforts requirement, active efforts to prevent the breakup of the Indian family must be made. Active efforts require “substantial and meaningful actions by agencies.” Since the provision places administrative duties on state agencies and officials, there is a violation of the anti-commandeering doctrine.

    Qualified expert witness testimony was found unconstitutional by the majority. The expert witness requirement in § 1912(e) and (f) unconstitutionally commandeers states. The expert witness provisions require “evidence, including testimony of qualified expert witness, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child” before a child is placed in foster placement and before termination. Due to the cost and burden this provision places on state agencies and officials, it was found to unconstitutionally commandeer states.

    Placement Preferences were ​found unconstitutional in equally divided vote. The placement preferences in § 1915(a)-(d) violate the anti-commandeering doctrine to the extent they direct state action by state agencies, rather than state courts themselves.

    The provision requires “good cause” to depart from the placement preferences. Thus, the provisions require both state agencies and courts to make efforts to comply with the placement preferences.

    Further, the provisions of ICWA and the Final Rule that give adoptive placement preference for “other Indian families” and foster care placement preference for a licensed “Indian foster home” are unconstitutional, due to a violation of equal protection. The court was equally divided on this issue, and thus it simply affirmed the district court without precedential opinion.

    Record Requirements were found unconstitutional by the majority. The record requirement in § 1915(e) commandeers states. The provisions require the state to keep a record of any Indian child placement under state law.

    Further, the record must prove the attempt to comply with placement preferences and the records must be made available to the secretary or the child’s Indian tribe at any time. Due to the provision directing the function of the state, the court held that the provision unconstitutionally commandeers states.

    Notice Requirements were found unconstitutional in equally divided vote. The notice requirement in § 1912(a) is unconstitutional as it commandeers state agencies. The provision requires any “party” seeking to place an Indian child in foster care or to terminate parental rights to notify the Indian custodian and the Indian child’s tribe of the proceeding and their right to intervene.

    Again, the provision places administrative duties on state agencies and officials, which is a violation of the anti-commandeering doctrine. The court was equally divided on this issue, and thus it simply affirmed the district court without precedential opinion.

    Pre-emption was found proper by majority. Several ICWA provisions properly preempt state law and do not commandeer states. The provisions that preempt state law are the right to:

    • intervene;

    • appointed counsel;

    • examine documents;

    • an explanation of consent;

    • withdraw consent;

    • seek invalidation;

    • seek return of custody; and

    • obtain tribal information.

    Further, the placement preferences in § 1912(a) and (b) and the placement and termination standards in § 1912(e) and (f) preempt contrary state law as they apply to state courts and not state agencies.


    The decision is currently only applicable in the three states that joined the private parties – Texas, Louisiana, and Mississippi. Those states must follow the above decisions of this court.

    However, this case is expected to be appealed to the U.S. Supreme Court. If the Supreme Court were to find ICWA unconstitutional based on a violation of equal protection, then WICWA would also be unconstitutional.

    On the other hand, if ICWA is found unconstitutional based on a violation of the anti-commandeering doctrine, then WICWA could still stand. However, those provision found to violate the anti-commandeering doctrine are likely to be altered, if not struck, by the Supreme Court.

    Finally, if ICWA is found constitutional on all grounds, WICWA would stand.

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    Children & the Law Blog is published by the Children & the Law Section and the State Bar of Wisconsin; blog posts are written by section members. To contribute to this blog, contact Christie Christie and review Author Submission Guidelines. Learn more about the Children & the Law Section or become a member.

    Disclaimer: Views presented in blog posts are those of the blog post authors, not necessarily those of the Section or the State Bar of Wisconsin. Due to the rapidly changing nature of law and our reliance on information provided by outside sources, the State Bar of Wisconsin makes no warranty or guarantee concerning the accuracy or completeness of this content.

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