Fifth Circuit Briefs in Immunity/Federal Jurisdiction Case Involving Hoopa Valley Tribe

Here are the briefs in Mitchell v. Bailey:

AppellantsOpeningBrief030920

Hoopa Appeal Brief_ECF Filed

MitchellReplyBrief052120

Lower court materials in Mitchell v. Bailey (W.D. Tex.):

1 Complaint

32 Hoopa Motion to Dismiss

34 Response

35 Hoopa Motion to Substitute US as Party

40 Response

41 Reply in Support of 32

47 Reply in Support of 35

48 DCT Order

Amicus Briefs filed in Texas v. Bernhardt [ICWA]

All briefs are here.

Intervening Tribes Press Release (released before the Tribal brief with over 400 tribal signatories):

Majority of U.S. States, 75 Members of Congress and more than 30 Organizations File Amicus Briefs in Support of Native American Families and Children

WASHINGTON, D.C. – Today, 26 states and the District of Columbia, 75 members of Congress and more than 30 organizations filed friend-of-the-court briefs before the Fifth Circuit Court of Appeals in support of the Indian Child Welfare Act (ICWA) in Brackeen v. Bernhardt. Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Fawn Sharp issued the following statement regarding the amicus briefs:

“We are thrilled to see that more than half of all states across the country, 75 members of Congress and dozens of leading organizations are taking a stand for the best interests of Indian children and families. This continuous support from across the political spectrum is a testament to the critical role that ICWA plays in promoting the stability and security of Indian tribes and families. Together, we are fighting back against the meritless attacks on ICWA. We are confident that the Fifth Circuit will again stand on the side of families and children by upholding the law.”

The Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation and Quinault Nation are co-defendants in the case, defending the Indian Child Welfare Act (ICWA) against unwarranted attacks on the law’s constitutionality.

For more than 40 years, ICWA has provided a process for determining the best interests of Indian children in the adoption and foster care systems. The tribes are arguing to defend ICWA alongside the Trump administration, the U.S. Department of Justice, and the U.S. Department of Interior. The case will be reheard on January 22, 2020.

The amicus briefs filed by the following States – Alaska, Arizona, California, Colorado, Connecticut, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, Washington and Wisconsin – as well as the District of Columbia, can be found here.

The amicus briefs from members of Congress can be found here, and the amicus briefs from leading organizations here.

Amici include organizations and political leaders from across the country spanning the political spectrum, and the U.S. states are represented by attorneys general from both the Republican and Democratic parties. They also include law professors and Native women writing in support of ICWA.

In 2017, individual plaintiffs Chad and Jennifer Brackeen, a couple from Texas, along with the state attorneys general in Texas, Louisiana, and Indiana, sued the U.S. Department of the Interior and its now-former Secretary Ryan Zinke to challenge ICWA. The Morongo, Quinault, Oneida and Cherokee tribes intervened as defendants in the case, and their recent brief can be found here.

On August 9, 2019, the Fifth Circuit Court of Appeals reaffirmed that the Indian Child Welfare Act is constitutional and serves the best interests of children and families. On October 1, 2019, plaintiffs in Brackeen v. Bernhardt chose to continue their attacks on Indian children and tribal families and requested an en banc rehearing before the Fifth Circuit, which the court granted.

There is broad, bipartisan support against this misguided attack on a law that is crucial for protecting the well-being of Indian children and Indian sovereignty. In addition to states and members of Congress, the Trump administration has strongly defended ICWA and its protections for Indian children, explaining that ICWA is an appropriate exercise of Congress’s authority to legislate in the field of Indian affairs and does not violate the Tenth Amendment or equal protection laws.

For additional information on this case and the Indian Child Welfare Act please visit: www.ProtectIndianKids.com

Washington Post on Brackeen v. Bernhardt [ICWA]

Here.

In the 40 years since Congress enacted the Indian Child Welfare Act, the law has been criticized in legal challenges that have climbed all the way to the U.S. Supreme Court. But the ICWA, as the act is known, has always prevailed.

Now its constitutionality is being questioned again. On Thursday, the U.S. Court of Appeals for the 5th Circuit agreed to rehear a lawsuit filed by a non-Native American couple in Texas claiming the ICWA discriminates on the basis of race and infringes on states’ rights.

***

Kathryn Fort, a Michigan State law professor and one of the nation’s foremost ICWA experts, told The Washington Post she thinks there are more important battles to wage on behalf of children.

“Given that a federal judge this week fined Texas $50,000 a day until they fix their broken child welfare system,” Fort said, “it seems beyond the pale for them to try to continue to strike down a law that is designed to help children and families in that very system heal and reunify.”

Fifth Circuit Grants En Banc Review of Brackeen v. Bernhardt [ICWA]

Here

Tribal Intervenor Statement here:

FOR IMMEDIATE RELEASE

November 7, 2019

Contact: Tania Mercado tmercado@skdknick.com

Native American Tribes Continue to Stand with Indian Children and Families Following Court Decision to Rehear Fifth Circuit Case

WASHINGTON, D.C. – Today, Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Fawn Sharp issued the following statement in response to the Fifth Circuit Court of Appeals decision to rehear a challenge to the Indian Child Welfare Act en banc:

“We never want to go back to the days when Indian children were ripped away from their families and stripped of their heritage. We continue to believe that the Fifth Circuit decision affirming the constitutionality of ICWA was the right decision. While it is unfortunate that the attacks on this critical law continue, we are confident that the court will once again uphold the constitutionality of ICWA, as courts have repeatedly done over the past 40 years. ICWA provides a process for determining the best interests of Indian children in the adoption and foster care systems, which is why it is overwhelmingly supported across the political spectrum. We remain devoted in our efforts to defend ICWA because our number one priority remains fighting for the wellbeing, health and safety of children and families.”

In 2017, individual plaintiffs Chad and Jennifer Brackeen, a couple from Texas, along with the state attorneys general in Texas, Louisiana, and Indiana, sued the U.S. Department of the Interior and its now-former Secretary Ryan Zinke to challenge ICWA. The Morongo, Quinault, Oneida and Cherokee tribes intervened as defendants in the case Brackeen v. Bernhardt.

In October 2018, a federal judge in the Northern District of Texas struck down much of ICWA. Defendants appealed the lower court’s decision and asked the Fifth Circuit Court of Appeals to reverse the decision. Last December, the Fifth Circuit Court of Appeals granted a stay requested by the defendants, putting a hold on the ruling. In March 2019, the Fifth Circuit Court of Appeals heard oral arguments from plaintiffs and defendants in the Brackeen case.

On August 9, 2019, the Fifth Circuit Court of Appeals reaffirmed that the Indian Child Welfare Act is constitutional and serves the best interests of children and families. On October 1, 2019, plaintiffs in Brackeen v. Bernhardt chose to continue their attacks on Indian children and tribal families and requested an en banc rehearing before the Fifth Circuit.

There is broad, bipartisan support against this misguided attack on a law that is crucial for protecting the well-being of Indian children and Indian sovereignty. A total of 21 attorneys general, representing a broad range of states, filed an amicus brief in support of the defendants, arguing that ICWA is an appropriate exercise of Congress’s authority to legislate in the field of Indian affairs and does not violate the Tenth Amendment or equal protection laws. The Trump administration has also reiterated its support for ICWA, tribal sovereignty and the safety of Indian children.

An additional 325 tribes, 57 tribal organizations, members of Congress, Indian law and constitutional law scholars, and 30 leading child welfare organizations have also filed friend-of-the-court briefs in support of the defendants.

For additional information on this case and the Indian Child Welfare Act please visit: http://www.ProtectIndianKids.com.

###

Difficult Case out of California [ICWA]

Here

The question of whether Mom could have her child back with his siblings came down to his best interest–which kept him in the guardianship, despite the mom’s sobriety, job, handling a child with cancer, and raising a number of children. The Tribe, fearful of losing contact with the child entirely if they picked a side in the case, supported the mom but also ended up not weighing in on the final decision, instead asking the court to order whoever had the child keep him in contact with the Tribe. But this conclusion from the court is simply heartbreaking. It is not clear the child is related to the guardians, and as such the court equates a biological parent to non-relative foster care in a troublesome way:

We recognize this case was a difficult one for the juvenile court, not least because it was forced to choose between two families, both of whom love minor very much and both of whom may have been able to provide a stable, loving home where he remains connected to his siblings, other relatives, and his tribe. We can only express our hope, as did the juvenile court, that these families can find a way to remain connected in the interest of allowing minor to be loved and cared for by as many people as possible. It is also a difficult case because mother demonstrated her commitment to regaining custody by complying with her case plan, maintaining her sobriety and full employment, and garnering the support of the Department and the Tribe to have minor returned to her care. *** On this record, we perceive no abuse of discretion in the juvenile court’s determination that mother failed to meet her burden to demonstrate return to mother’s custody would be in minor’s best interest.

And no, I don’t entirely understand why the court isn’t using much higher ICWA standards here.

Unpublished Opinion from Washington Court of Appeals [ICWA]

Here.

Another court finds that a temporary guardianship where the parent cannot have the child returned upon demand meets the definition of a foster care placement under ICWA. Unfortunately the court decided not to publish the decision.

The ICWA Appellate Project filed an amicus brief in this case with the Center of Indigenous Research and Justice on behalf of minor mom.

Paul Petersen Involved in at Least One ICWA Case

Here.

Indian Child Welfare Act experts agreed that the Bright Star contract potentially misled the adoptive parents by saying the law “does not apply” in their situation.

“That is just wrong,” said Professor Fort, who also serves as director of the Indian Law Clinic at Michigan State University and authored a case law book titled American Indian Children and the Law.

She pointed to a section in the Indian Child Welfare Act that states the law does apply in adoptions of Native children. And she invoked a federal regulation published in 2016, which states that the Indian Child Welfare Act applies in any “voluntary proceeding that could prohibit the parent or Indian custodian from regaining custody of the child upon demand.”

In other words, the Indian Child Welfare Act applies in voluntary adoption cases when a Native birth mother gives up her parental rights. It’s unclear from the September Bright Star contract whether the birth mother agreed to give up her parental rights after the birth of her child.

This is the gentleman who is also now indicted for trafficking Marshallese women and selling their babies.