Indian tribes, individuals, law clinics, bar associations, and other entities inundated the Supreme Court with amicus briefs in the Baby Veronica case. Here is our guide to the amici (we’ve highlighted the must-read briefs in red):
The United States:
As always, the most important brief.
The State AGs Brief:
The AGs’ brief may also be the most important amicus brief, in that 18 state attorneys general signed on to a brief drafted and distributed by the Arizona AG. No state AG filed an amicus brief supporting petitioners. While the contents of the brief are important (they attack the existing Indian family exception (EIF) and provide a defense against the federalism attack on ICWA), the mere fact of the brief is very powerful. The Minnesota DHS brief is along the same lines.
The Strategic Briefs:
12-399 bsac Association on American Indian Affairs (aka the NCAI brief)
12-399 Professors of Indian Law Amicus (the legal history brief)
12-399 bsac Seminole Tribe of Florida et al (the constitutionality brief)
These three briefs form the cornerstone of the amicus strategy. As usual, the NCAI brief offers greater national context for the dispute in issue, offering legislative history and even some sociological history. The law profs brief, IMHO the best law profs brief ever filed in the Indian cases before the Supreme Court, is the legal history of ICWA, written by one of the very best legal historians out there, Stuart Banner, former SOC clerk. The constitutionality brief defends against the farthest-reaching attacks of some of the petitioners, that ICWA is unconstitutional. It focuses on the doctrine we call the political status doctrine, first articulated by the Supreme Court in Morton v. Mancari.
Briefs Authored by Supreme Court Specialists:
12-399 bsac CaseyFamilyPrograms (Patricia Millett)
12-399 bsac CurrentandFormerMembersofCongress (Kathleen Sullivan)
12-399 bsac Adult Pre-ICWA Indian Adoptees (Ed DuMont)
It’s unfair to characterize these briefs solely as briefs authored by Supreme Court specialists, but names mean a great deal to clerks when slogging through a very large pile of amicus briefs. The Millett brief may be critically important, given that so many adoption and children’s organizations signed on, responding in force to the petitioners’ adoption policy positions.
Social Science Brief:
I guess the closest thing we have to a Brandeis brief in this case. Could be critical, especially since the social science that persuaded Congress to adopt ICWA in 1978 has not aged all that well. Also, it responds directly to the junk science on attachment theory Mark Fiddler keeps pitching.
Important to note that civil liberties and religious groups favor the respondents.
Tribe- or State-Specific Briefs:
12-399 bsac Lower Sioux Indian Community (Minnesota tribal brief)
12-399 bsac Tanana Chiefs Conference, et al (Alaska Natives brief)
12-399 bsac Inter Tribal Council of AZ (Arizona tribal brief)
These briefs are critical to establishing grounded national context, but they may threaten to bury the more critical briefs out there. Some of the briefs also highlight a growing state government consciousness about ICWA — Wisconsin’s story about how the state legislature codified ICWA under state law, for example.
Other Academic Briefs:
12-399 bsac Nat’l Native American Bar Assoc (Arizona State)
12-399 bsac Oklahoma Indian Child Welfare Assoc (Oklahoma City University)
The family law prof brief is useful to counter the academic amicus on the petitioners’ side. These are very smart briefs, well worth reading, but Supreme Court clerks might be inclined to focus more on the four or five critical amicus briefs noted above.