People For the American Way

Trump Judges Cast Deciding Votes to Strike Down Important Parts of Indian Child Welfare Law: Confirmed Judges, Confirmed Fears

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Trump Judges Cast Deciding Votes to Strike Down Important Parts of Indian Child Welfare Law: Confirmed Judges, Confirmed Fears

Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link.

Trump Fifth Circuit judges Kyle Duncan wrote the opinion, and Trump judges Don Willett, Kurt Engelhardt, and Andrew Oldham joined in casting deciding votes, to strike down as unconstitutional important parts of the Indian Child Welfare Act (ICWA) passed by Congress more than 40 years ago, as well as  regulations to help implement the law. The Trump judges also argued in dissent that additional key parts of the law were unconstitutional. The full court April 2021 decision was in Brackeen v Haaland.

 With the support of American Indian tribes and the community, Congress enacted the ICWA in 1978 to regulate the removal and out-of-home placement of American Indian children. In passing the law, Congress found that “an alarmingly high percentage of Indian families are broken up” by the often unwarranted “removal” of their children by “nontribal public and private agencies;” that an “alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions;” and that state and local entities involved in such proceedings have “often failed to recognize the essential tribal relations” and “cultural and social standards” of Indian families and communities. To remedy these problems, ICWA adopted minimum standards that must be met in any removal or custody proceedings involving an Indian child, ensures that Indian tribes and families can participate in such proceedings, and provides a preference for adoption and placement of Indian children with Indian families and institutions.

Seven individuals and the states of Texas, Louisiana, and Indiana filed a lawsuit in 2017 to challenge the constitutionality of ICWA and the regulations that help implement it.  As Judge James Dennis noted in his appellate opinion in the case, these states include “only about 1%” of Indian tribes and “less than 4%” of the American Indian population, as compared with the 26 states that filed briefs urging that ICWA be upheld, which contain 94% of American Indian tribes and 69% of the national Indian population. As Dennis pointed out, we “do not decide cases by a show of hands,” but it is important to note that the states that are home to a “large majority” of American Indians do not consider ICWA as “any sort of burden on their child welfare systems,” and instead consider the law both constitutional and the “gold standard” with respect to child welfare practices. Congress explained that it enacted the law pursuant to its “plenary power over Indian affairs” as provided by the Constitution and by treaties with Indian tribes.

Nevertheless, the very conservative Texas federal judge who considered the case, and who later issued a declaratory judgment that the ACA is unconstitutional, ruled that large parts of the ICWA are unconstitutional, particularly because of its alleged interference with state and local child welfare proceedings and its preference for maintaining Indian children with Indian families and institutions. A three-judge panel of the Fifth Circuit reversed the lower court on the merits and upheld the ICWA, but the full Fifth Circuit decided to vacate the panel decision and rehear the case.

The full Court was very divided, issuing some 325 pages of opinions, Trump Judge Duncan wrote an opinion, joined in full by Trump judges (Willett, Engelhardt, and Oldham (the only other Trump judges who participated in the case) and a few others, that sought to affirm the entire district court opinion, and were able to secure enough additional votes to strike down a number of key provisions of the ICWA.

In particular, a majority of the court agreed with Trump judges Duncan, Willett, Engelhardt, and Oldham plus several others to strike down the important provisions of ICWA that bar permanent removal of Indian children from their homes unless child welfare authorities have made “active efforts” to return them to their homes safely and that require expert testimony in support of permanent removal. Although not enough other judges joined to form a precedential opinion, the full court was equally divided on other aspects of ICWA that Duncan argued should be struck down, and so the lower court opinion doing so was affirmed by an equally divided vote. These included important parts of ICWA that provide that Indian children removed from their home must be placed with Indian adoptive parents or foster homes whenever possible.

With respect to the “active efforts” and expert testimony requirements, Duncan’s opinion claimed that these ICWA provisions improperly “commandeer” state agencies and courts by requiring specific and “extensive action” in violation of the Tenth Amendment, and that they are not justified as properly pre-empting contrary state law and practice. According to Duncan, this was pursuant to Supreme Court precedent and the importance of protecting the “division of power between federal and state governments” under the Constitution. With respect to the parts of ICWA that provide strong preferences for placing Indian children removed from their homes with other Indian families or institutions, Duncan maintained that these provisions violated the constitution’s Equal Protection Clause because, even assuming that they are not racial in nature, they fail to further the ICWA’s goal of linking children to tribes, since they prefer Indian families from tribes different than those of the children to be placed over white and other non-Indian families, even where birth parents state that they prefer adoption or placement with non-Indians.

Judge James Dennis, whose opinion was joined in full or in part by judges nominated to the Fifth Circuit by both Republican and Democratic presidents, strongly dissented. He began by explaining that history and the structure and content of the constitution, Indian treaties, and early statutes resulted in “centralizing authority over Indian affairs” in our federal government with “broad, exclusive federal powers,” and “restraining states” and local government. This structure and history, plus the abuses by state and local governments as discussed above, led to the ICWA.

Based on these principles and on Supreme Court precedent, Dennis explained that the “active efforts” and expert testimony requirements of ICWA “simply supply substantive rules” and rights to Indian parents that override any contrary state laws and are “enforceable in state court,” and “do not violate the Tenth Amendment.” As to the Equal Protection claims, Dennis pointed to several Supreme Court decisions that make clear that federal legislation benefitting Indian tribes and people is “not based on impermissible racial classifications,” but is instead considered “political” and generally valid based on the “solemn commitment” of the federal government toward American Indians. This makes ICWA’s preference for placement of Indian children with other Indian families and institutions clearly permissible regardless of tribal differences, Dennis continued, particularly since “many contemporary tribes descended from larger historical bands” and “continue to share close relationships,” so that placing an Indian child with an Indian family in another tribe would still “further the interest in maintaining the child’s ties with his or her tribe or culture.”

Yet Trump judge Duncan and other Trump judges, joined by a few others, wanted to go even further. They argued, for example, that Congress did not have the authority to adopt the ICWA overall. The full court majority squarely rejected this claim, including judges nominated by Republican presidents prior to Trump. As Judge Dennis’ opinion explained, Duncan’s opinion is “highly misleading” and “misses the point” that history and a “mountain of case law,” including “centuries of Supreme Court precedent,” make clear that the federal government has “viewed itself as having an affirmative duty” to “provide for the welfare” of Indian children and has “the power to do so.”

The Native American Rights Fund (NARF), National Congress of American Indians (NCAI), the National Indian Child Welfare Association (NICWA), and the Association on American Affairs (AAIA) have stated that they are “deeply concerned that aspects of this opinion misunderstand the unique relationship between the United States and tribal nations.” Whether the Supreme Court or others will consider the issues in the case remains unclear. The deciding votes of Trump judges Duncan, Willett, Engelhardt, and Oldham to strike down part of the important statute, and their effort to do even more damage, make clear the importance of prompt confirmation of federal judges nominated by President Biden to help counteract the harmful effect of Trump judges on our courts.


American Indians, Andrew Oldham, child welfare, Confirmed Judges Confirmed Fears, Don Willett, Fifth Circuit Court of Appeals, Kurt Engelhardt, Kyle Duncan, Native Americans