The Indian Child Welfare Act of 1978 (ICWA) was enacted to address the high rates of Indian children being separated from their Indian families and Indian communities. The stated intent of Congress under ICWA was to “protect the best interests of Indian children and to promote stability and security of Indian tribes and families.” (25 USC § 1902) Recent years have seen an increased number of challenges to various provisions of ICWA and parallel state statutes in both federal and state court lawsuits.  

On October 4, 2018 a federal judge in northern Texas ruled that ICWA and its accompanying regulations were unconstitutional based on his determination that they are impermissibly based on race and, as a result, holding that ICWA and its regulations violated the equal protection clause of the Fifth Amendment to the US Constitution, the Tenth Amendment's anticommandeering doctrine, and the nondelegation doctrine.

On December 3, 2018 the US Court of Appeals for the Fifth Circuit stayed the Texas judge's decision. A total of 14 amicus briefs were filed in support of the various positions of the parties, including a brief by the state of Ohio supporting the plaintiffs and a brief filed by 21 other states supporting the defendants.

On August 9, 2019 the highly awaited decision of the Fifth Circuit reversed the Texas judge, finding that: (i) ICWA does not violate the equal protection clause because it is based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians; (ii) ICWA preempts conflicting state laws and does not violate the Tenth Amendment anticommandeering doctrine; and (iii) ICWA and the Final Rule (promulgated by the Bureau of Indian Affairs in 2016) do not violate the nondelegation doctrine.

It is anticipated that the plaintiffs will appeal the Fifth Circuit Court's decision to the Supreme Court. In the meantime, all provisions of ICWA and the Final Rule are fully enforceable, as are similar standards enacted by various state legislatures, such as the Michigan Indian Family Preservation Act (MIFPA).