On October 5, 2018, the United States District Court for the Northern District of Texas in Brackeen v. Zinke held the Indian Child Welfare Act (“ICWA”) violates the equal protection clause of the United States Constitution. The court found the Supreme Court’s Morton v. Mancari political classification framework did not apply to ICWA because ICWA extends to Indians who are not formal members of tribes and struck down ICWA, finding that it does not survive the strict scrutiny test for racial classifications. The court went on to apply strict scrutiny to strike ICWA down. If upheld, this holding will have huge repercussions on federal Indian law and policy and should be taken seriously by all concerned with the welfare of Indian Country.
Co-Sponsors: Tribal Law and Policy Institute, ABA Commission on Sexual Orientation and Gender Identity, ABA Commission on Domestic and Sexual Violence, Tribal Courts Council, ABA Commission on Homelessness and Poverty, ABA Center for Children and the Law, ABA Commission on Youth At Risk, ABA Judicial Division
CLE Materials
- American Bar Association - Resolution 115C - ICWA - Annual 2019
- The History, Status, and Future of Tribal Self-Governance Under the Indian Self-Determination and Education Assistance Act - Geoffrey D. Strommer
- American Indian Tribal Law - Matthew L.M. Fletcher
- Brackeen Appeal
- Escaping The ICWA Penalty Box: In Defense of Equal Protection for Indian Children - Timothy Sandefur
- “Indian Country” and the Nature and Scope of Tribal Self-government in Alaska" - Geoffrey D. Strommer
- Law360 - Indian Child Welfare Act Found Unconstitutional
- Limit Government Intrusion in Indian Families’ Lives - Matthew L.M. Fletcher
- Recent Developments in Indian Child Welfare Act Litigation: Moving Toward Equal Protection? - Timothy Sandefur
