Resource Letter:
For Judges and Attorneys Handling Child Protective Services Cases
July 1, 2021
Update on the Status of ICWA in Texas
On August 21, 2019, December 7, 2018, and November 9, 2018, the Children’s Commission sent Resource Letters which provided brief updates and links to the opinions in Brackeen v. Haaland, 994 F.3d 249 (5th Cir. Apr. 6, 2021) from the U.S. District Court for the Northern District of Texas and the U.S. Court of Appeals for the Fifth Circuit. Brackeen is a 2017 lawsuit originating in the U.S. District Court for the Northern District of Texas. Plaintiffs in Brackeen challenged the constitutionality of the Indian Child Welfare Act (ICWA) on the grounds of equal protection, the Tenth Amendment anti-commandeering doctrine, and the non-delegation doctrine. Plaintiffs also challenged the corresponding Final Rule on grounds that it violates the Administrative Procedure Act (APA).

On October 4, 2018, U.S. District Court for the Northern District of Texas granted summary judgment for the Plaintiffs, declaring many provisions of ICWA unconstitutional. On August 9, 2019, a three-judge panel of the Fifth Circuit Court of Appeals issued an opinion reversing the lower court’s decision and upholding the constitutionality of ICWA. On November 7, 2019, a majority of the Fifth Circuit vacated the three-judge panel opinion and ordered an en banc rehearing of the case. En banc oral arguments took place on January 22, 2020.

On April 6, 2021, the Fifth Circuit issued a 325-page opinion in which no principal opinion nor any other writings in the case garnered an en banc majority on all issues. Therefore, the court provided an issue-by-issue summary of the en banc court’s holdings, which does not override or amend the en banc opinions themselves. The court’s seven-page summary and subsequent opinions, concurrences, and dissents are located on the Fifth Circuit’s website.

The court’s opinion is complex and only applies to Louisiana, Mississippi, and Texas. A key takeaway is that ICWA remains constitutional, and the legal issues addressed in the case remain alive and ripe for decision before any state court in which they are raised. To date, no stay has been issued and the parties have ninety days from entry of judgement to file a petition for a writ of certiorari to the Supreme Court of the United States. The Court can grant an extension of time to file a writ of certiorari for good cause for up to an additional sixty days. The application of the Fifth Circuit’s decision for Texas courts became effective on June 1, 2021, and the time to file a writ of certiorari ends on September 3, 2021.

Notably, a majority of the en banc court found the provision requiring states to provide active efforts under § 1912(d), the qualified expert witness requirement under § 1912(e) and (f), and the requirement that states maintain a record of each placement of an Indian child set forth under § 1915(e) to unconstitutionally commandeer states. Please click the link below for a brief summary of each holding.
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For a complete list of Resource Letters, please visit the Children's Commission webpage. Information provided by the Children’s Commission should not be read as a commentary by the Supreme Court of Texas or any other court. The Children’s Commission website is not equipped to facilitate dialogue or conversation about matters related to the information in this communique. For more information about the Children’s Commission, please visit our website.