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Bipartisan, Bicameral Group of Lawmakers File Amicus Brief Supporting the Indian Child Welfare Act

December 13, 2019
Press Release

Washington, D.C. – Today, a group of 25 senators and 52 representatives filed an amicus brief in federal court making the case for the constitutionality of the Indian Child Welfare Act (ICWA). The bipartisan and bicameral brief was filed with the U.S. Court of Appeals for the Fifth Circuit as the court re-opens its August ruling that affirmed ICWA’s constitutionality in Brackeen v. Bernhardt.

The full text of the amicus brief, along with the full list of signers, is available HERE.

The amicus brief urges the Fifth Circuit to uphold the court’s previous decision affirming the constitutionality of IWCA. The decision the Fifth Circuit issued in August reversed an unprecedented ruling from the U.S. District Court for the Northern District of Texas which wrongly struck down ICWA as unconstitutional.

Congress passed ICWA in 1978 after receiving testimony that 25 to 35 percent of American Indian and Alaska Native children were removed from their homes by state and private adoption agencies. ICWA sets best-practice standards for child welfare and adoption proceedings involving children who are members of a federally-recognized Tribe or are eligible for membership in a federally-recognized Tribe. Over four decades, the law has become the “gold standard” for child welfare policy and keeping Native children connected to their communities and cultures.  

“Congress wrote the Indian Child Welfare Act over 40 years ago in recognition of the fact that Native American children – like all children – thrive when they are able to grow up with the support of their families, communities, and cultures,” said Udall, vice chairman of the Senate Committee on Indian Affairs. “It is a vital law for Native families and a gold standard for child welfare. The Fifth Circuit upheld decades of precedent and U.S. government policy in August when they ruled that ICWA is constitutional. I’m proud to have worked with my colleagues in both chambers to support Tribal sovereignty and help protect Native children, and I urge the court to once again affirm the constitutionality of ICWA.”

“The Indian Child Welfare Act of 1978 was passed to ensure that tribal governments have a role in placement proceedings affecting American Indian and Alaska Native children,” said Hoeven, chairman of the Senate Indian Affairs Committee. “I join my colleagues on this amicus brief to underscore to the Court Congress’ intent when it passed the Act.”

“Preserving cultural and communal ties for Native children in the legal system must continue to remain a priority for court’s working to determine the best interests of a child,” said U.S. Senator Martin Heinrich (D-N.M.). “The Indian Child Welfare Act helps keeps Native families together. It is critical that Congress continue to ensure the safety and well-being of all children - in New Mexico and across the nation - and protect the sovereignty of tribes.”

“When the Indian Child Welfare Act was passed by Congress and enacted 40 years ago, it rightly affirmed tribal sovereignty and sought to preserve the very special identity and unique heritage that exists within tribes while also keeping families together. I remain concerned that the constitutionality of this law is still being questioned in the courts. As co-chair of the Congressional Native American Caucus and a member of the Chickasaw Nation of Oklahoma, I am proud to join my colleagues in showing support for the constitutional obligation our nation has to tribes while looking out for the interests of Native children,” said U.S. Representative Tom Cole (R-Okla.).

“The Indian Child Welfare Act exists for a reason – this country has a record of violating tribal sovereignty by taking Native children from their families as part of forced assimilation policies. Like many Native American families, my family has been shaped by family separation policies as well. My grandparents were taken away from our family and sent to boarding school, and that trauma has impacted our family and other families in Indian Country. This legislation was enacted to address these human rights violations. As a country, we need to commit to protecting Native children and keeping them connected to their communities and stopping the cycle of separation and abuse. We cannot remove this safeguard to protect tribal sovereignty to decide what to do with their own tribal members or disregard the trauma caused by family separation,” said U.S. Representative Deb Haaland (D-N.M.).

“For more than 40 years, the Indian Child Welfare Act has led to progress and justice for Native children and families across the country. It’s vital that the courts uphold the constitutionality of ICWA so we can continue delivering on the commitments our government has made to Native communities and keep Native families together,” said Assistant Speaker Ben Ray Luján (D-N.M.). “ICWA is a bipartisan priority, and I will continue fighting to support our Native brothers and sisters.”

“Over nearly four decades the Indian Child Welfare Act has protected children and families by rightly recognizing the sovereignty of our tribes and Pueblos. Children deserve the opportunity to grow up in their Native culture and with their communities, and this law is critical to the stability and security of the many Native communities I represent,” said U.S. Representative Xochitl Torres Small (D-N.M.).

“Recognizing the importance of community and culture, Congress passed the ICWA as a means to keep children with their Indian families,” said U.S. Representative Don Bacon (R-Neb.). “I am thankful to be among this bipartisan group of Congressional leaders, dedicated to the wellbeing of Indian children and continuation of the ICWA.”

“Forty years ago, when the Indian Child Welfare Act became law, Congress declared national policy for Tribal children,” said Congressmember Karen Bass (D-Calif.). “Through the Indian Child Welfare Act, Congress recognizes tribes’ sovereign authority to make decisions about children who are tribal members. Eighteen national child welfare and child advocacy organizations — including the Child Welfare League of American, the National Association of Social Workers, and the North American Council on Adoptable Children — are united in their view that the Indian Child Welfare Act is the gold standard for child welfare policies and practices that should be afforded to all children. I’m proud to stand with my colleagues and families in support of the Indian Child Welfare Act.”

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