Resource Letter:
For Judges and Attorneys Handling Child Protective Services Cases
August 21, 2019
Update on the Status of ICWA in Texas
On November 9 and December 7, 2018, the Children’s Commission sent Resource Letters for Attorneys and Judges Handling Child Protective Services Cases which provided brief updates and links to the opinion in  Brackeen v. Bernhardt ( formerly Brackeen v. Zinke)  from the U.S. District Court for the Northern District of Texas issued on October 4, 2018 and appealed to the U.S. Court of Appeals for the Fifth Circuit. Please link to the November Resource Letter and the December Resource Letter for more information .
The U.S. Court of Appeals for the Fifth Circuit heard oral argument in Brackeen on March 13, 2019 and filed an opinion on August 9, 2019. Please link to Brackeen v. Bernhardt 2019 WL 3759491 (5th Cir. 2015). for the full text.  
Judge James L. Dennis issued the opinion on behalf of the three-judge panel. The court affirmed the district court’s finding that the Plaintiffs had Article III standing to bring all claims. However, the court reversed the district court’s summary judgment for the Plaintiffs and rendered judgment in favor of the Defendants on all claims. Specifically, the court found:

  • The Indian Child Welfare Act (ICWA) and the Final Rule are constitutional because they are based on a political classification that is rationally related to the fulfillment of Congress's unique obligation toward Indians;

  • The ICWA preempts conflicting state laws and does not violate the Tenth Amendment anti-commandeering doctrine;
  • The ICWA and the Final Rule do not violate the non-delegation doctrine; and
  • The Final Rule implementing the ICWA is valid because the ICWA is constitutional. Therefore, the Bureau of Indian Affairs (BIA) did not exceed its authority when it issued the Final Rule, and the agency's interpretation of ICWA section 1915 is reasonable. 

Accordingly, the ICWA (25 U.S.C. § 1901 et seq.), the Final Rule (25 C.F.R. Part 23), as well as Texas Family Code §§ 262.201(f), 263.202(f-1), and 263.306(a-1)(3) still apply. Courts hearing child welfare cases are required to inquire about a child’s Native American heritage and tribal affiliation during hearings held pursuant to Texas Family Code Chapters 262 and 263. The Children’s Commission will continue to provide updates as they occur.
Having trouble viewing this message? Try View as Webpage

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 .