On October 4, 2018, in the case of BRACKEEN v. ZINKE, in the Northern District of Texas, Civil Action No. 4:17-cv-00868-O, a federal judge struck down the Indian Child Welfare Act (ICWA). The case was brought by the states of Texas, Indiana, Louisiana, and individual plaintiffs, including adoptive parent clients of two attorney members of the Academy of Adoption and Assisted Reproduction Attorneys (AAAA). The court struck down almost all of ICWA and its new 2016 regulations on multiple grounds, including under the equal protection clause (on the basis that the placement preferences and certain other provisions in ICWA are unconstitutionally race-based in nature), the “non-delegation clause” (that 1915(c) unconstitutionally delegates federal authorities to tribes), the anti-commandeering clause (on the basis that ICWA unconstitutionally commandeers states to carry out federal duties), and the Administrative Procedure Act (on the basis that the new regulations were promulgated without authority).
AAAA has long been involved in efforts to seek clarification that the Indian Child Welfare Act—a law passed by Congress in 1978 with the laudable purpose of strengthening Indian families—should never be applied in ways that undermine the best interests of children. AAAA supports legal efforts to ensure Indian children have the right to equal protection under the law.