Jenner & Block Supreme Court and Appellate Clinic Files Brief to Uphold the Indian Child Welfare Act on Behalf of Clients

Tribes, Feds Urge Justices To Back Indian Child Welfare Act

Andrew Westney
August 12, 2022 Law360

Five Native American tribes and the federal government urged the U.S. Supreme Court on Friday to uphold the Indian Child Welfare Act, with the tribes saying Congress constitutionally used its power in the law to keep Indian families together and shield tribes from "destruction."

Texas and others have urged the high court to rule that the 1978 ICWA, which imposes federal standards for state child custody cases involving Native American children, is unconstitutional, claiming the law is race-based and that Congress overstepped its powers to shape Native American affairs by enacting it.

The Cherokee Nation, Oneida Nation, Quinault Indian Nation, Morongo Band of Mission Indians and Navajo Nation said in a brief filed Friday that the ICWA "operates at the core of the trust obligation" the federal government owes tribes, and Congress' authority to fulfill that trust is much broader than Texas paints it.

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The Cherokee Nation, Oneida Nation and Morongo Band of Mission Indians are represented by Ian Heath Gershengorn, Keith M. Harper, Matthew S. Hellman, Zachary C. Schauf, Leonard R. Powell, Victoria Hall-Palerm and Kevin J. Kennedy of Jenner & Block LLP, Kathryn E. Fort of the Indian Law Clinic at Michigan State University College of Law and David A. Strauss and Sarah M. Konsky of the Jenner & Block Supreme Court and Appellate Clinic at the University of Chicago Law School. The Quinault Indian Nation is represented by Adam H. Charnes and Rob Roy Smith of Kilpatrick Townsend & Stockton LLP. The Navajo Nation is represented by Attorney General Doreen N. McPaul, Assistant Attorney General Paul Spruhan, and Louis Mallette, Colleen Silversmith, Sage Metoxen and Aidan Graybill of the Navajo Nation Department of Justice, Jeffrey L. Fisher of the Stanford Law School Supreme Court Litigation Clinic and Ephraim A. McDowell of O'Melveny & Myers LLP.