BRIEF OF CHRISTIAN ALLIANCE FOR INDIAN CHILD WELFARE AND ICWA CHILDREN AND FAMILIES AS AMICI CURIAE SUPPORTING THE BRACKEEN AND STATE PETITIONERS

BRIEF OF CHRISTIAN ALLIANCE FOR INDIAN
CHILD WELFARE AND ICWA CHILDREN AND
FAMILIES AS
AMICI CURIAE SUPPORTING THE
BRACKEEN AND STATE PETITIONERS

Amicus PDF attached – Brackeen Amici Curie Brief – June 2 2022 FINAL FILED BRIEF 21-376 -377 -378 and -380 Brief

INTRODUCTION AND INTERESTS
OF
AMICI CURIAE1

Equal Protection “absolutely prohibits invidious discrimination by government.” Fullilove v.
Klutznick, 448 U.S. 448, 523 (1980) (Stewart, J., dissenting). The Indian Child Welfare Act of 1978, 25
U.S.C. §§ 1901–1963 (“ICWA”), flies in the face of that prohibition. Based solely on their Indian blood, ICWA
banishes Indian children to a separate custody regime that abandons the “best interests of the child”
standard and allows Indian children to be used as the pawns or weapons of tribal authorities or dissatisfied family members. Under any other circumstance, such a classification would be “forbidden” as “it demeans the dignity and worth of a person to be judged by [their] ancestry.” Rice v. Cayetano, 528 U.S. 495, 517 (2000). ICWA should be held unconstitutional for its discriminatory classification here.
Christian Alliance for Indian Child Welfare (“Alliance”) is a North Dakota nonprofit corporation with members in thirty–five states, including Texas. Alliance was formed, in part, to (1) promote human
rights for all United States citizens and residents; (2) educate the public about Indian rights and issues; and
(3) encourage government accountability to families with Indian ancestry.

Alliance promotes the constitutional rights of all Americans, especially those of Indian ancestry,
through education, outreach, and legal advocacy. Alliance is particularly concerned with the
discriminatory and destructive consequences of ICWA. In enacting ICWA, Congress purportedly
invoked power delegated by the “Indian Commerce Clause” in Article I of the Constitution, 25 U.S.C.
§ 1901(1), which grants Congress the power to “[t]o regulate Commerce . . . with the Indian Tribes,” U.S.
Const. art. I, § 8. ICWA, however, is a broad and far–reaching law that has little or nothing to do with
commerce, and it affects individuals that have no connection to, or have actively chosen to avoid
entanglement with, tribal government.

Alliance is particularly concerned for families with members of Indian ancestry who have been denied a
full range of rights and protections when subjected to tribal jurisdiction under ICWA. This case raises
significant issues for Alliance because its members are birth parents, relatives, foster parents, and
adoptive parents of children with varying amounts of Indian ancestry, as well as tribal members,
individuals with tribal heritage, or former ICWA children, all of whom have seen or experienced the
tragic consequences of applying ICWA’s heritage–based distinctions.

Tania Blackburn, Andrew Bui, Leslie Cook, Sage DesRochers, Cari Esparza, Desirae French, Nina
Martin De La Cruz, Rebecca McDonald, Christopher Moore, Elizabeth Morris, James Nguyen, Sierra
Whitefeather, and Rachael Jean Wilbur are former ICWA Children—individuals who were “eligible for membership in an Indian tribe” and were the “biological child of a member of an Indian tribe,” 25
U.S.C. § 1903(4)—or birth parents or family members of ICWA Children (collectively, “ICWA Children and
Families”), who have been harmed by ICWA. Due to ICWA’s race–based classifications, ICWA Children
and Families have been singled out for differential treatment, forced into tribal custody proceedings
against their will and best interests, and deprived of their legal rights, solely because they have (or their
children have) Indian ancestry.

Ms. Tania Blackburn, a member of the Delaware Tribe of Indians and the Cherokee Nation of
Oklahoma, is a former ICWA child. Ms. Blackburn is also an Alliance board member. Due to ICWA, she
was shuttled between foster homes—at the Cherokee Nation’s guidance and without concern for her best
interests—most of which did not respect her traditional practices and failed to protect her safety.

Mr. Andrew Bui, a Navy veteran, is a non–native birth father to a daughter covered by ICWA. The
child’s native mother struggles with drug addiction and has a history of domestic violence. Because of
ICWA, Mr. Bui’s procedural rights have been violated and his daughter has been repeatedly placed with her unfit native mother by the Shakopee Mdewakanton Sioux Community of Minnesota….

Amicus PDF attached – Brackeen Amici Curie Brief – June 2 2022 FINAL FILED BRIEF 21-376 -377 -378 and -380 Brief