Brackeen (Texas) v. Zinke: A Threat to the Indian Child Welfare Act

Brackeen (Texas) v. Zinke: A Threat to the Indian Child Welfare Act and Implications for Maine Tribal Sovereignty

Barrett A Littlefield, Esq.

U.S. District Judge Reed O’Connor’s October 4th ruling in Brackeen (Texas) v. Zinke, struck down the Indian Child Welfare Act (ICWA) as unconstitutional. Judge O’Connor’s decision ignores a wealth of federal court precedent affirming inherent tribal sovereignty. O’Connor’s decision is likely to have a chilling effect on ICWA compliance in some states and—as many First Nation peoples and Native American rights advocates worry—may be used to support current state efforts to undermine tribal sovereignty:

“The decision is jarring, and not just for its effect on ICWA,” Dan Lewerenz, an attorney with the Native American Rights Fund, told The Washington Post, “but because as far as I know this is the first time ever that a federal statute enacted to benefit Indians has been found to be unconstitutional on the grounds of equal protection. It introduces perhaps an entirely new world of Indian law. And we worry that this might be what the plaintiffs intend, that this is not just an effort to undermine ICWA, but to undermine all Indian law.”

This case has special significance in Maine, where Wabanaki children were taken from their families and placed in white foster homes at a higher rate than other native children in most other parts of the United States. For more information, please visit the Maine Wabanaki-State Child Welfare Truth & Reconciliation Commission’s website and look for screenings of the 2018 documentary Dawnland, which follows the Truth & Reconciliation Commission’s work and explores the “devastating impact of Maine’s child welfare practices on families in Maliseet, Micmac, Passamaquoddy and Penobscot tribal communities.”

Cover image credit: Dawnland