Attorney General Balderas Files Brief Defending the Rights of Indigenous Children, Families, and Tribes

December 11th, 2019
Contact: Matt Baca — (505) 270-7148

Santa Fe, NM—Attorney General Balderas today joined a bipartisan coalition of
27 attorneys general, led by California, in filing an amicus brief before the full U.S. Fifth
Circuit Court of Appeals to defend the Indian Child Welfare Act (ICWA) in Brackeen v.
Bernhardt. In the brief, the coalition urges the appellate court to uphold ICWA and affirm
the decision of a three-judge appellate panel. ICWA is a 41-year-old federal law that
furthers the best interests of Indigenous children and protects the sovereignty of tribes by
preserving children’s connections to their heritage during child placement proceedings.
“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.”
First enacted in 1978, ICWA was a response to a history of culturally insensitive and
ignorant removal of Indigenous children from their birth families. This resulted in the
separation of Indigenous children from not only their families, but their tribes and heritage
as well. In fact, social workers reportedly removed many indigenous children because of
the perceived poverty of their households rather than for concerns of neglect or abuse.
ICWA’s purpose is 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” used in child welfare proceedings involving Indigenous children.
Today’s brief argues 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
Indigenous children. 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.
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 and implementation of regulations 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, a three-judge
appellate panel reversed the district court’s ruling and upheld the constitutionality of ICWA
and its regulations. Prior to that ruling, a coalition of states filed a brief defending ICWA.
The case is currently before the full appellate court after the initial decision was vacated
to allow for en banc review.
In filing the brief, Attorney General Balderas joins 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.

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