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Media Statements and News Articles on Fifth Circuit ICWA Case
Quote from Intervening Tribes Statement:
We applaud the broad coalition of federal lawmakers, attorneys general from 21
states, and 30 child welfare organizations who have joined 325 Tribal governments and 57 Tribal organizations in filing numerous amicus briefs with the U.S. Court of Appeals for the Fifth Circuit to defend the Constitutionality of the Indian Child Welfare Act (ICWA).The past 96 hours have witnessed an unprecedented and overwhelming demonstration of support for ICWA and its constitutionality as a wave of amicus briefs were filed urging the Fifth Circuit to reverse the district court’s ruling in Brackeen v. Zinke, which erroneously deemed key provisions of ICWA as being
unconstitutional.Passed more than 40 years ago by Congress, ICWA was designed to reverse decades of cultural insensitivity and political bias that had resulted in one-third of all Indian children being forcibly removed by the government from their families, their tribes and their cultural heritage.
ICWA ensures the best interests and wellbeing of Native American children are protected. ICWA preserves the stability and cohesion of Tribal families, Tribal communities and Tribal cultures. It maintains and reinforces the political and cultural connections between an Indian child and his or her tribe.
VERY LAST CHANCE to Sign on To Tribal Amicus Brief in Fifth Circuit ICWA Case
From NARF:
Dear tribal leaders and tribal counsel,
Today the Fifth Circuit Court of Appeals granted a motion that extends the filing deadline for amicus briefs in Brackeen v. Zinke by two days. This is one last call for Tribes who are interested in signing on to the tribal amicus brief in this case.
As you know, Brackeen v. Zinke is a challenge to the Indian Child Welfare Act (ICWA) in which a federal district court judge in Texas recently found ICWA to be unconstitutional. The case is currently on appeal to the Fifth Circuit Court of Appeals.
The Native American Rights Fund (NARF) and our co-counsel at Dentons have draft a tribal amicus brief to complement the arguments being made by the Tribal Defendants and our allies, including law professors, child welfare organizations, and several states. All federally recognized Tribes are invited to sign on to the brief in a show of unity. Of course, there is no cost to join this brief—any federally recognized Tribe may do so free of charge.
If your Tribe would like to sign its name to the brief, please let NARF know by tomorrow, Tuesday, January 15 at 11:00pm Alaska Time (7pm ET/8pmCT/9pmMT/10pmPT). Already more than 280 Tribes and more than 50 Indian organizations have signed on to the brief.
If your Tribe would like to sign on, we will need an email that provides the following:
- A statement from an individual (chairperson, executive director, general counsel, etc.) or body (tribal council, etc.) authorized to do so, asking to be added as a signatory on the brief. A statement via email is fine; and
- The full name and correct spelling of the Tribe as it should appear on the brief.
The above information should be emailed to Erin Dougherty Lynch at dougherty@narf.org and cc’d to Dan Lewerenz atlewerenz@narf.org.
Finally, if you would like a draft of the brief, please email Erin and Dan at dougherty@narf.org and lewerenz@narf.org.
Thank you again for your commitment to defending ICWA.
Erin Dougherty Lynch
Senior Staff Attorney
Native American Rights Fund
Additional Statements from Indian Country re. Fifth Circuit Stay in Texas v. Zinke
As always, press statements are collected here. Legal documents here.
Partnership for Native Children
The Partnership for Native Children supports the decision by the Fifth Circuit Court of Appeals to stay the decision of Judge Reed O’Connor of the Northern District of Texas in Texas v Zinke. In erroneously declaring the Indian Child Welfare Act of 1978 (ICWA) unconstitutional, O’Connor’s decision remains a legal anomaly that disregards legal precedent. Multiple decisions have repeatedly affirmed the political relationship between Indian tribes and the U.S. government and rejected race-based arguments like the one erroneously embraced by O’Connor in this case.
To meet the factors to be granted a stay pending appeal, the tribal appellants addressed: (1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantively injure the other parties interested in the proceeding; and (4) [whether] public interest [favors a stay].
From our respective years of experience serving Native children and families in child welfare proceedings, we ardently agree with the appellants’ assertion that, without this stay, “the district court’s ruling will cause significant inconsistency throughout the country. As this Court noted in Bryant, when issuing a stay, ‘[t]he inevitable disruption that would arise from a lack of continuity and stability in this important area of the law’ will harm the parties and ‘the public interest at large.’”
Fifth Circuit Grants Stay in Texas v. Zinke (ICWA)
The Northern District of Texas’s decision finding ICWA unconstitutional is stayed (put on hold and does not apply) pending the appeal of the decision to the Fifth Circuit.
United States Files Notice of Appeal in Texas v. Zinke (ICWA)
NCAI and NARF Information on Tribal Amicus Brief for Texas v. Zinke
Here:
Information on the case here.
| Important Indian Child Welfare Act Case, Brackeen v. Zinke, likely to be appealed to the Fifth Circuit Court of Appeals. NCAI and its partners urge tribal nations to join tribal amicus brief.
We need your help. The National Congress of American Indians (NCAI), the Association on American Indian Affairs (AAIA), the National Indian Child Welfare Association (NICWA) and the Native American Rights Fund (NARF) need your help in securing tribal nations as signatories to an amicus brief to the Fifth U.S. Circuit Court of Appeals in support of the Indian Child Welfare Act (ICWA). The four intervening tribal nations in this case – the Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation – appreciate the work of NCAI, AAIA, NICWA, and NARF in asking that all 573 federally recognized tribal nations stand together on one brief. The ongoing amicus strategy emphasizes the importance of Indian Country speaking with one voice in our support of ICWA before the Court. One focused tribal brief also makes it more likely to be seriously considered by the Court than an approach where multiple briefs are submitted by tribal nations. Any federally recognized tribal nation, inter-tribal organization, or ICWA organization may join this brief free of charge. Details: · There is no cost to join the amicus brief. The ICWA attorneys at NARF and the law firm Dentons have volunteered to draft this tribal brief pro bono, as with the tribal amicus briefs before the district court and previous federal litigation. · NARF is coordinating tribal signatories. Any tribal nation, inter-tribal organization, or ICWA organization interested in signing on to the amicus brief can contact Dan Lewerenz at lewerenz@narf.org and/or Erin Dougherty Lynch at dougherty@narf.org. · The notice of appeal was just filed yesterday, and the briefing schedule has not yet been set. Tribes and organizations that express their interest will be notified of upcoming deadlines, and if requested will receive a draft of the brief for review in advance of filing. Instructions on how to obtain the review draft, and how to formally join the brief as a signatory tribe or organization, will follow at a later date. Background: In Brackeen v. Zinke, No. 4:17-cv-00868 (N.D. Texas), several individual plaintiffs and the States of Texas, Indiana, and Louisiana have sued the United States Departments of the Interior and of Health and Human Services, arguing that ICWA is unconstitutional and that the Department of the Interior’s 2016 regulations (Final Rule) violated the Administrative Procedure Act (APA). The United States has defended ICWA and the Final Rule, and four tribal nations – Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation – have intervened as tribal defendants. (Navajo Nation also recently moved to intervene as a defendant on appeal; that motion is still pending.) On October 4, 2018, the District Court granted a decision in favor of the plaintiffs and the States, holding (1) that ICWA operates as a racial statute and violates the Constitution’s guarantee of equal protection, (2) that ICWA violates the Tenth Amendment by forcing States to carry out federal policy, (3) that ICWA includes an unconstitutional delegation of Congress’s legislative authority to tribal nations, and (4) that the Final Rule violates the APA. This tribal brief is part of a coordinated amicus strategy among ICWA supporters that aims to present the court will all of the information it needs to reverse the district court’s erroneous decision, while hopefully avoiding unnecessary duplication with other briefs. As part of that strategy, the tribal brief will focus on three arguments: (1) It will explain the historical conditions that made ICWA necessary, and demonstrate ICWA’s continuing relevance today; (2) it will push back against the District Court’s assertion that the political relationship between the federal government and tribal nations is limited to on- and near-reservation Native people; and (3) it will explain why ICWA does not “delegate” authority to tribal nations, but rather lawfully affirms tribal nations’ authority to legislate concerning child welfare and other domestic relations. Again, there is no cost to join this amicus brief. Any tribal nation or organization interested in joining this brief, please contact Dan Lewerenz at lewerenz@narf.org and/or Erin Dougherty Lynch at dougherty@narf.org. NARF will share with interested tribal nations and organizations a draft brief when it is ready for circulation, and will keep them informed of all upcoming deadlines. Thank you for your support and do not hesitate to contact Dan Lewerenz atlewerenz@narf.org and/or Erin Dougherty Lynch at dougherty@narf.org if you have any questions about the brief itself or amicus brief strategy. NCAI Contact Info: Derrick Beetso, General Counsel, dbeetso@ncai.org |
Four Intervening Tribes in Texas v. Zinke ICWA Case File Notice to Appeal and Motion to Stay in Fifth Circuit
New Fifth Circuit page here.
Tribal Motion for Stay Pending Appeal
Finally, the district court’s ruling will cause significant inconsistency throughout the country. As this Court noted in Bryant, when issuing a stay, “[t]he inevitable disruption that would arise from a lack of continuity and stability in this important area of the law” will harm the parties and “the public interest at large.” Id.
Colorado Court of Appeals ICWA Case on Burden of Proof and Application
Opinion here.
ICWA requires two things to apply–an “Indian child” and a “child custody proceeding”. Once both of those things are met, then the court has to apply the heightened standards required by the law. This decision out of Colorado wrestles with when to apply the heightened burdens. There are four “child custody proceedings” under ICWA: a foster care proceeding, a termination of parental rights proceeding, a pre-adoptive placement, and an adoptive placement. In a standard state child custody case, there is an emergency/shelter care/preliminary/24-72 hour hearing, then an adjudicatory/jurisdictional hearing, followed by dispositional/review hearings, and finally permanency hearings. They don’t neatly map on to the ICWA defined proceedings, so the question of when to apply the heightened burden of proof can be up for debate. Because the adjudicatory hearing is the time when the court decides whether the state has met its burden to intrude on the family’s life and whether the court therefore has jurisdiction to do so, ICWA advocates often argue that the court should apply heightened standards at that very important hearing. However, it’s also often true that state has already removed a child, so it is technically not a “foster care proceeding” because the child is already in foster care. The Colorado Court of Appeals here decided the heightened burden has to apply to the dispositional hearing, where the Court determines the placement of a child (any proceeding that may result in a foster care placement, even if the child is placed back with a parent is subject to ICWA standards).
The Court also holds that a lack of notice does not deprive the state court of subject matter jurisdiction, and that ICWA applies until it is determined the child is not an Indian child.
Texas v. Zinke Update: Stay Denied; Navajo Nation Files Motion to Intervene
In Texas v. Zinke, the ICWA case in the northern district of Texas, the district court judge denied the four intervening defendant tribes’ motion to stay the decision. There has been no stay request filed in the Fifth Circuit nor a notice of appeal.
Navajo Nation filed a motion to intervene for the purpose of appeal.
Statement from Partnership for Native Children explaining the stay is here.
Turtle Talk 
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