Title: Brackeen v. Bernhardt - Indian Child Welfare Act - Native American Rights Fund : Native American Rights Fund
Headings: Brackeen v. Bernhardt – Indian Child Welfare Act
Brackeen v. Bernhardt – Indian Child Welfare Act
Find ICWA-related information and resources at https://icwa.narf.org/.
CASE UPDATES:
November 7, 2019
Fifth Circuit Court of Appeals to Rehear Brackeen v. Bernhardt
August 9, 2019
Fifth Circuit Court of Appeals Reaffirms the Constitutionality of ICWA
February 20, 2019
ICWA is constitutional.
ICWA ensures that Native children and families receive the services they deserve.

Content: It is the first time that a state has sued the federal government over ICWA’s constitutionality. In 2018, a federal district court in Texas, in a widely criticized decision, held that ICWA violates the US Constitution. Last year, in response to appeals brought by the federal government and the intervening tribal nations at that time (the Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, Quinault Indian Nation, and the Navajo Nation), a three-judge panel from the Fifth Circuit reversed that decision, reaffirming the constitutionality of ICWA. In an en banc review, complex cases of broad legal significance are reconsidered by the entire court, and not just a three-judge panel. For the Brackeen v. Haaland case, the decision reached by the en banc review panel will replace the three-judge panel decision from August 2019. Briefing in the case can be found at the Tribal Supreme Court Project website. CASE UPDATES: April 6, 2021
On April 6, 2021, the United States Fifth Circuit Court of Appeals published its en banc decision in Brackeen v. Haaland (formerly Brackeen v. Bernhardt ), a case challenging the constitutionality of the Indian Child Welfare Act (ICWA). While the Protect ICWA Campaign is pleased to see that the court recognized that ICWA generally is within Congress’s authority, we are deeply concerned that aspects of this opinion misunderstand the unique relationship between the United States and tribal nations. The opinion is 325 pages long, and given its length and complexity we are still analyzing the decision and will provide further information in the coming days.