Murkowski, Young File Amicus Brief in Support of Indian Child Welfare Law

Press Release

Today U.S. Senator Lisa Murkowski (R-AK) and Congressman Don Young (R-AK) joined five of their Congressional colleagues in filing an amicus curiae brief with the Fifth Circuit, United States Court of Appeals in support of the Indian Child Welfare Act or ICWA. The amicus brief follows an October 4, 2018 ruling by U.S. District Judge Reed O'Connor, of Fort Worth, TX deeming the ICWA as unconstitutional. The amicus brief states that said decision fails to respect Congress' broad power and its obligation to legislate for the benefit of Indian tribes and, if affirmed, the district court's ruling would jeopardize the many important federal statutes and regulations enacted pursuant to Congress's constitutional prerogative and responsibility in the area of Indian affairs. Specifically, the brief argues ICWA does not violate the Equal Protection Clause, is consistent with Congress' authority to legislate, including that Congress may legislate on the basis of tribal affiliation.

"The Indian Child Welfare Act (ICWA) is among the most significant pieces of Indian legislation Congress has ever enacted, for its purpose is maintaining the integrity of Native culture and family," said Senator Murkowski. "Last year's Texas federal court decision deeming ICWA unconstitutional upends decades of cooperation between the State of Alaska and Alaska tribes to ensure that Native children in need of aid are placed in culturally supportive environments. I am proud to join with this group of congressional leaders on Indian policy in an effort to persuade the US Court of Appeals that ICWA is in fact constitutional and that the Texas federal court decision is inconsistent with Congress' plenary power over matters of Indian Affairs."

"I worked with former Representative Mo Udall to pass the Indian Child Welfare Act in 1978 and have defended it during my time in Congress," said Congressman Young. "The District Court's decision was based on a flawed assessment of ICWA and a lack of understanding of the federal government's trust relationship with Alaska Natives and American Indians. As a supporter of ICWA from its inception, I am proud to join this friend of the court brief that explains the legal principles behind the original Congressional intent of the legislation. ICWA remains critical for protecting Native children and preventing the loss of Native communities."

Excerpts from the Amicus Brief:

"The district court wrongly held key provisions of ICWA unconstitutional on equal protection grounds, focusing on three aspects of the statute that the court concluded exhibited racial bias. Specifically, the court found that ICWA's placement preferences are racially discriminatory because (1) they are triggered not only by a child's membership in a tribe but also by the child's eligibility for tribal membership; (2) they apply to Indian children and families who do not live on or near an Indian reservation; and (3) they favor all Indians, regardless of tribal affiliation, in making adoptive placements."
"The district court's analysis finds no support in the Constitution or in decades of Supreme Court caselaw, which make clear that Congress has broad and exclusive authority to legislate for the benefit of Indians and that legislation like ICWA does not impermissibly discriminate on the basis of race."
"The district court also erred in finding that ICWA commandeers state courts in violation of the Tenth Amendment. As an initial, and primary, matter, the Constitution explicitly grants Congress plenary and exclusive power to legislate on Indian affairs."
"Congress frequently requires state courts to abide by applicable federal law, consistent with the Supremacy Clause. ICWA does nothing more than that. Once again, the district court's analysis here threatens a wide swath of federal legislation in addition to ICWA.
The full amicus brief is attached.

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