Annual Meeting

Indian Child Welfare Act is constitutional, ABA House declares

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Abby Abinanti

Chief Judge Abby Abinanti. Photo courtesy of Abby Abinanti.

Resolution 115C, declaring that the Indian Child Welfare Act is constitutional, was easily approved by the ABA House of Delegates on Tuesday.

The Indian Child Welfare Act was passed in 1978 to address the fact that states remove Indian children from their parents at high rates. Because those children were not often placed with members of their own tribes, that high rate was hurting tribes’ ability to pass on their cultures to the next generation. The ICWA gives tribes a voice in custody decision-making and requires state child welfare agencies to place Indian children with extended family or other members of the same tribe when possible.

In recent years, however, the ICWA has been attacked by politically conservative legal organizations as unconstitutional. As the ABA Journal reported in 2016, the Goldwater Institute has argued that the ICWA creates racial preferences in violation of the Fifth and 14th amendments’ guarantees of equal protection. More recent lawsuits have also argued that the ICWA and its implementing regulations commandeer state resources in violation of the 10th Amendment, by directing how state courts must place Indian children and violates the Constitution’s nondelegation doctrine.

“You might have thought that was settled law, as many of us did, but it is an unsettled time,” said Abby Abinanti, chief judge of the Yurok Tribal Court in northern California, speaking after Mark Schickman, a delegate from the Civil Rights and Social Justice Section, yielded his time on the floor to her. “We are in the middle of a fight over the terms of the act now.”

Resolution 115C passed without audible opposition.

The vote came days after a ruling favorable to the ICWA in one of the lawsuits Abinanti referred to. On Friday, the New Orleans-based 5th U.S. Circuit Court of Appeals handed tribes a victory by ruling against all of the arguments that the ICWA is unconstitutional. In Brackeen v. Bernhardt, the court upheld precedent saying membership in an Indian tribe is not racial but political, and found the other arguments unpersuasive. Much of its reasoning was echoed in the resolution.

The resolution also makes it official ABA policy to recognize the government-to-government relationship between the federal government and tribal governments, along with the trust responsibilities owed by the U.S. government to tribes.

The measure was sponsored by the Civil Rights and Social Justice Section, the National Native American Bar Association, the Commission on Youth at Risk and the Commission on Domestic and Sexual Violence.

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