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  • Vevila Hussey, MSW

How Does the Brackeen v. Haaland Indian Child Welfare Act (ICWA) Case Impact California Cases?

The Fifth Circuit Court of Appeals recently issued a decision regarding the Indian Child Welfare Act that has left Native American and other communities wondering - how does this impact California?


The state plaintiffs of Indiana, Louisiana, Texas, the Brackeens, and other individuals who were non-Native American foster parents to Native American children filed a lawsuit in the federal District Court of Northern Texas challenging ICWA's constitutionality in October 2017.


The District Court found that ICWA took away from state legislative functions, violated equal protection, and also struck down the 2016 Bureau of Indian Affairs Regulations.


The case was appealed to the United States Fifth Court of Appeals, where oral arguments were presented on March 13, 2019. In August 2019, the Fifth Circuit reversed the prior decision. Plantiffs retorted by filing a request for rehearing en band, requesting the entire panel of judges to hear their case (as only a panel of three had heard the case prior). Twenty-five states in addition to the State of California and the District of Columbia filed amicus briefs requesting the Fifth Circuit to uphold ICWA.


In April 2021, a 325-page decision was issued. While divided and arguably somewhat confusing, this decision confirmed that ICWA still applies in California.


Brackeen does not impact California ICWA cases, as it does not set precedent in California. This means that the Bureau of Indian Affair's Regulations and ICWA continue to provide protection and guidance for California Indian Child Welfare Cases.


For Indian Child Welfare Expert & Consultation services, contact Vevila Hussey at professionalNAconsulting@gmail.com.












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