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The 5th Circuit Court of Appeals in New Orleans, Louisiana. Photo by Indianz.Com (CC BY-NC-SA 4.0)
Fifth Circuit Court of Appeals: Brackeen v. Haaland
Wednesday, April 7, 2021

The 5th Circuit Court of Appeals has finally issued a long-awaited decision in a closely-watched Indian Child Welfare Act (ICWA) case.

The decision in Brackeen v. Haaland, formerly known as Brackeen v. Bernhardt, is extremely lengthy. Counting the court’s per curiam opinion and the concurrences and the dissents, it clocks in at 325 pages.

At issue is the legality of ICWA, which Congress passed in 1978 to address the large numbers of Indian children that were being taken from their homes and placed outside of their communities. In short, some parts of the law have been upheld while other parts, along with regulations implemented by the Bureau of Indian Affairs, have been deemed in violation of the “anticommandeering” doctrine of the U.S. Constitution.

The decision was released later in the afternoon on Tuesday. It comes more than 14 months after the case was reargued before the 5th Circuit in January 2020.

Decision: Brackeen v. Haaland [325 pages]

The plaintiffs in the case are non-Indian families who dispute the constitutionality of ICWA. They were joined by the states of Texas, Indiana and Louisiana in seeking to strike down the law as one based on “race” rather than the legal and political relationship between tribal nations and the United States.

The defendants are officials at the Department of the Interior, including Secretary Interior Deb Haaland, who recently joined the Biden administration as the first Native person to serve in a presidential cabinet. Secretary Xavier Becerra of the Department of Health and Human Services is also named in the case, which was filed back in October 2017.

The Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Nation later intervened to defend the legality of ICWA. The Navajo Nation joined the case as well, on the side of the federal defendants.

The first decision in the case was issued in October 2018. Judge Reed O’Connor, who was nominated to the bench by George W. Bush, struck down ICWA as unconstitutional because he said its provisions treat Indian children differently based on “race.”

The federal government and the tribes appealed. In August 2019, a panel of three judges on the 5th Circuit largely upheld the legality of ICWA.

The non-Indian plaintiffs and the state governments petitioned for a rehearing. In January 2010, an en banc panel of 16 judges listened to ICWA arguments for a second time, resulting in the new ruling issued on Tuesday.

The next step in the case could be an appeal to the U.S. Supreme Court. The last ICWA dispute that went before the highest justices in the land didn’t turn out so well for Indian interests.

Congressional action is also possible to address certain aspects of ICWA. The BIA could take another look at the ICWA regulations as well.

5th Circuit Court of Appeals Decision En Banc
Brackeen v. Haaland [325 pages] (April 6, 2021)
Per Curiam [Summary 7 pages] (April 6, 2021)
Judge James Dennis [Opinion 153 pages] (April 6, 2021)
Judge Stuart Kyle Duncan [Opinion 122 pages] (April 6, 2021)
Judge Priscilla R. Owen [Concurring in part/Dissenting in part 9 pages](April 6, 2021)
Judge Jacques L. Wiener, Jr. [Dissenting in part 8 pages] (April 6, 2021)
Judge Catharina Haynes [Concurring 2 pages] (April 6, 2021)
Judge Stephen A. Higginson [Concurring in Part 4 pages] (April 6, 2021)
Judge Gregg Costa [Concurring in part / Dissenting in part 20 pages] (April 6, 2021)

Prior 5th Circuit Court of Appeals Decision
Brackeen v. Bernhardt (August 9, 2019)
Brackeen v. Bernhardt Partial Dissent (August 16, 2019)

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