Resource Letter:
For Judges and Attorneys Handling Child Protective Services Cases
November 9, 2018
Update on the status of ICWA in Texas
On October 4, 2018, the U.S. District Court for the Northern District of Texas issued its opinion in Brackeen v. Zinke declaring unconstitutional most of the Indian Child Welfare Act (ICWA) and its 2016 implementing regulations, also known as the Final Rule. Please click here to find the full text of Brackeen v. Zinke, No. 4:17-cv-00868—O, F. Supp. 3d --, 2018 WL 4927908 (N.D. Tex. Oct. 4, 2018).

Texas, Louisiana, and Indiana were parties to the lawsuit. Plaintiffs moved for summary judgment which the court granted on all but one claim related to a substantive Fifth Amendment Due Process Clause claim, which was denied. In summary, the court held that:

  • ICWA’s placement preferences (§§ 1915(a)-(b)), its collateral attack provision (§ 1913(d)), and its invalidation provision (§ 1914), as well as the corresponding provisions in the Final Rule (25 C.F.R. § 23.129-23.132) violate the Fifth Amendment’s guarantee of equal protection.

  • The placement preference provisions under ICWA (§ 1915(c)) and the Final Rule (25 C.F.R. § 23.130(b)) violate the non-delegation doctrine under Article I of the Constitution.

  • ICWA (§§ 1901-1923 and 1951-1952) violates the Tenth Amendment’s anti-commandeering doctrine.

  • The Final Rule (25 C.F.R. Part 23) violates the Administrative Procedure Act.

Tribal Defendants’ motion for a stay was denied by the federal District Court, and the Tribal Defendants subsequently filed an unopposed motion for leave to file supplemental authority. Most recently, the Navajo Nation filed a motion to intervene as a defendant for purposes of an appeal. There has been no ruling on the unopposed motion or the motion to intervene to-date.

On October 25, the Texas Office of the Attorney General issued a letter to DFPS on this matter stating that since Texas is a party to the lawsuit, the court’s declaratory judgment binds the State of Texas, and therefore Texas agencies and courts should discontinue application of ICWA and the Final Rule to any pending or future cases, until further notice. Please link to this letter here to see it in its entirety.

The ruling does not address and does not affect Texas Family Code Sections 262.201(f), 263.202(f-1), and 263.306(a-1)(3), which require a court hearing a child protection case to inquire about a child’s Native American heritage and tribal affiliation.

If the Children’s Commission becomes aware of additional information, further updates will be made available.
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For a complete list of  Jurist in Residence Letters  and  Attorney Resource Letters , please visit the Children's Commission website. Information provided by the Children’s Commission should not be read as a commentary by the Supreme Court of Texas or any other court. For more information about the Children’s Commission, please visit our  website .