December 13, 2019

Warren Joins Bipartisan, Bicameral Group of Lawmakers to File Amicus Brief Supporting the Indian Child Welfare Act

Amicus brief led by Udall and Hoeven makes the case for the constitutionality of the Indian Child Welfare Act and Congress’s authority—and trust responsibility—to legislate for the benefit of Indian Tribes; Urges the Fifth Circuit to uphold the court’s previous ruling

Amicus Brief and Full List of Signatories (PDF) 

Washington, DC – United States Senator Elizabeth Warren (D-Mass.) joined Senate Committee on Indian Affairs (SCIA) Vice Chairman Tom Udall (D-N.M.) and SCIA Chairman John Hoeven (R-N.D.), along with a group of 25 senators and 52 representatives, in filing an amicus brief in federal court making the case for the constitutionality of the Indian Child Welfare Act (ICWA). The bipartisan and bicameral brief was filed with the U.S. Court of Appeals for the Fifth Circuit as the court revisits its August ruling that affirmed ICWA’s constitutionality in Brackeen v. Bernhardt.

The amicus brief urges the Fifth Circuit to uphold the court’s previous decision affirming the constitutionality of ICWA. The decision the Fifth Circuit issued in August reversed an unprecedented ruling from the U.S. District Court for the Northern District of Texas which wrongly struck down ICWA as unconstitutional.

Congress passed ICWA in 1978 after receiving testimony that 25 to 35 percent of American Indian and Alaska Native children were removed from their homes by state and private adoption agencies. ICWA sets best-practice standards for child welfare and adoption proceedings involving children who are members of a federally-recognized tribal nation or are eligible for membership in a federally-recognized tribal nation. Over four decades, the law has become the “gold standard” for child welfare policy and keeping Native children connected to their communities and cultures. 


“For decades, the Indian Child Welfare Act has been critical in keeping Native children connected with their families and communities,” Senator Warren said. “It’s crucial that the 5th Circuit uphold ICWA’s constitutionality, as it did in August, because it protects the best interests of Native children and reaffirms tribal sovereignty.”

Senator Warren supports ICWA and recognizes its importance to Indian Country. She cosponsored a bipartisan resolution recognizing the 40th anniversary of ICWA. During her time in the Senate, Senator Warren has also worked to protect and advance tribal sovereignty, to emphasize the federal government’s trust and treaty responsibilities to tribal nations, and to affirm Washington’s government-to-government relationship with tribal nations:

  • Senator Warren joined Senator Jon Tester (D-Mont.), member of SCIA, in introducing a bill to provide a fix to the 2009 Supreme Court case Carcieri v. Salazar, so that tribal nations’ lands can be taken into trust and protected.
  • She is working with Congresswoman Deb Haaland (D-N.M.), one of the first Native women elected to Congress, on the Honoring Promises to Native Nations Act, legislation that will address chronic underfunding and barriers to sovereignty in Indian Country and hold the federal government accountable for honoring America’s legal promises to Native peoples.
  • Senator Warren and Senator Jeff Merkley (D-Ore.) will introduce the Senate version of the Remove the Stain Act, which would revoke the Medal of Honor from the soldiers who perpetrated the Wounded Knee massacre.
  • Senator Warren cosponsored a resolution to recognize November as Native American Heritage Month, a time for celebrating the heritages and cultures of Native Americans and the contributions of Native Americans to the United States.
  • She has supported efforts to address violence in Indian Country, especially against women and girls. When the Violence Against Women Act (VAWA) was last reauthorized in 2013, she joined the call to ensure the law contained new safeguards for Native abuse victims. She cosponsored that reauthorization, which recognized tribal sovereignty in crucial new ways. However, VAWA expired earlier this year, and Senator Warren is a cosponsor and strong supporter of Senator Dianne Feinstein’s (D-Calif.) bill to reauthorize VAWA through 2024. This bill—the Senate companion to legislation that has already passed the House of Representatives—contains important and robust tribal provisions. 
  • Senator Warren twice introduced a bipartisan bill to give tribal nations a seat at the table in addressing the elevated suicide rates in their communities.
  • Senator Warren worked with Representative Raúl Grijalva (D-Ariz.) and introduced the American Indian and Alaska Native Child Abuse Prevention and Treatment Act, legislation that would amend the Child Abuse Prevention and Treatment Act to help provide tribal nations with resources to combat child abuse and neglect.
  • The Comprehensive Addiction Resources Emergency (CARE) Act, her major legislation with then-Chairman of the Oversight and Government Reform Committee, the late Elijah Cummings, to address the nationwide crisis of opioid addiction and substance use disorders, has robust tribal provisions that would provide funding and resources directly to tribal nations and tribal organizations and mandate tribal consultation.
  • Senator Warren ensured that her bipartisan cannabis legislation, the Strengthening the Tenth Amendment Through Entrusting States (STATES) Act, would protect cannabis laws and policies that tribal nations adopted for themselves.
  • Senator Warren’s major housing legislation, the American Housing and Economic Mobility Act, would provide a significant increase in funding for Indian Housing Block Grants and restore the ability of tribal housing authorities to administer Housing Choice Vouchers. The National American Indian Housing Council passed a resolution supporting the bill.
  • She has twice partnered with Senator Udall to introduce the Native American Voting Rights Act, landmark legislation to provide the necessary resources and oversight to ensure Native people have equal access to the electoral process.
  • Senator Warren’s Universal Child Care and Early Learning Act, introduced with Congresswoman Haaland, would provide families in Indian Country with free, high-quality child care and early learning options. The legislation allows tribal governments to be local administrators of the universal child care and pre-K program.