New Mexico Joins Coalition To Defend Indian Child Welfare Act

SANTA FE, NM – New Mexico Attorney General Balderas has joined a bipartisan coalition of 27 attorneys general who have filed an amicus brief before the full U.S. Fifth Circuit Court of Appeals. The coalition is defending the Indian Child Welfare Act (ICWA) in the case of Brackeen v. Bernhardt.

ICWA is a 41-year-old federal law that seeks to protect the best interests of Native American children by preserving the children’s connections to their tribal heritage during child placement proceedings. In the brief, the coalition urges the appellate court to uphold the August 2019 decision of a three-judge appellate panel to affirm ICWA.

"It's critical that the cultures and histories of all of New Mexicans are respected, and that children in dangerous situations have safe places to call home," said Attorney General Balderas. "We must defend this law that supports the stability and security of Indigenous children and families.”

The states that make up the bipartisan coalition defending ICWA are home to more than 90 percent of federally recognized tribes in the United States and nearly 70 percent of the overall American Indian and Alaska Native population.

“ICWA is a time-tested law that protects the welfare of children and the sovereignty of Native American tribes,” said California Attorney General Xavier Becerra, who is leading the coalition. “No child should forcibly lose the opportunity to grow up with their own culture, history, and traditions. The survival of Native American tribes depends on children maintaining these critical ties. Together with a bipartisan coalition from across the country, we’re proud to lead the way in defending the rights of Native American children and families.”

First enacted in 1978, ICWA was a response to a history of culturally insensitive actions including the removal of Native American children from their birth families, separations that were often performed as a result of stereotypical prejudices against Native American families and not because of concerns of neglect or abuse, as the law otherwise required. ICWA’s purpose was thus to “protect the best interests of Indian children and promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards” in child welfare proceedings.

In their filing the coalition argue that ICWA is an appropriate exercise of Congress’s broad authority to legislate in the field of Native American affairs and that it is consistent with the Tenth Amendment and equal protection principles. The brief also highlights ICWA’s important role in reducing disparities in child removal rates and improving the collaboration between states and tribes relating to their shared interest in improving the health and welfare of children.

This case arose in 2017 when individual plaintiffs, along with the states of Texas, Louisiana, and Indiana, sued the U.S. Department of the Interior and its now-former Secretary Ryan Zinke, challenging the law as unconstitutional. In October 2018, the district court for the Northern District of Texas agreed with the plaintiffs and struck down much of ICWA.

In August 2019 though, a three-judge appellate panel reversed the district court’s ruling and upheld the constitutionality of ICWA and its regulations. The case is currently before the full appellate court for review. The coalition’s plea is for the August 2019 appellate panel decision to be affirmed.

Attorney General Balderas was joined in filing the brief by the attorneys general of Alaska, Arizona, California, Colorado, Connecticut, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Jersey, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, Washington, Wisconsin, and the District of Columbia.

A copy of the brief can be viewed at: https://www.nmag.gov/uploads/PressRelease/48737699ae174b30ac51a7eb286e661f/Attorney_General_Balderas_Files_Brief_Defending_the_Rights.pdf