Author: ilpc

Freep Article on Back 40 Mine

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As a side note, the Indian Law Clinic got to work on parts of this issue a few years back, and this article nicely encapsulates how complicated it is, and how dangerous the mine is.

Here.

The Michigan-based permitting process for the Back Forty mine has left the Wisconsin side of the river mostly on the sidelines, Cox said.

“When the EPA, the Army Corps, U.S. Fish and Wildlife Service all take actions that are federal, they are obligated to consult with the tribe under laws such as the National Historic Preservation Act, the National American Graves Protection and Repatriation Act,” he said.

“(Michigan) gets to contend, ‘Nope, we’re the authority now, so we’re not obligated to do anything with you Indian nations — you independent, sovereign nations. We’ll send you a letter, let you know what we’re doing. But we won’t communicate with you directly.’ “

Cox questioned Michigan’s “strange-sounding process” of leaving so many things unresolved in the approved permit.

“You would think that, rather than try to conditionalize a permit to include all that’s required, you would just say, ‘We’re not going to issue this permit until all of these big things are addressed, like groundwater modeling,'” he said. “I guess in Michigan they don’t see it that way.”

Across the river, in Michigan’s Menominee County, the board of commissioners passed a resolution opposing the Back Forty mine back in 2017.

“It’s right on the river, 150 feet from the Menominee River,” board vice chairman William Cech said. “There’s never really been a successful sulfide mine without leaving a large stain on the landscape that they are digging in

Fifth Circuit: ICWA is Constitutional on All Counts

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Here.

The Fifth Circuit overturned the Northern District of Texas today with strong language supporting ICWA. The Court found that the plaintiffs did have standing, but found against them on all other counts. There is a dissent forthcoming from Judge Owens.

Equal Protection:

We begin by determining whether ICWA’s definition of “Indian child” is a race-based or political classification and, consequently, which level of scrutiny applies. The district court concluded that ICWA’s “Indian Child” definition was a race-based classification. We conclude that this was error.

We disagree with the district court’s reasoning and conclude that Mancari controls here. As to the district court’s first distinction, Mancari’s holding does not rise or fall with the geographical location of the Indians receiving “special treatment.”

Anti-Commandeering:

We examine the constitutionality of the challenged provisions of ICWA below and conclude that they preempt conflicting state law and do not violate the anticommandeering doctrine.

Non-Delegation:

We find this argument unpersuasive. It is well established that tribes have “sovereignty over both their members and their territory.” See Mazurie, 419 U.S. at 557 (emphasis added)”

For a tribe to exercise its authority to determine tribal membership and to regulate domestic relations among its members, it must necessarily be able to regulate all Indian children, irrespective of their location.

Authority to Issue Regulations

Here, section 1952’s text is substantially similar to the language in Mourning, and the Final Rule’s binding standards for Indian child custody proceedings are reasonably related to ICWA’s purpose of establishing minimum federal standards in child custody proceedings involving Indian children. See 25 U.S.C. § 1902. Thus, the Final Rule is a reasonable exercise of the broad authority granted to the BIA by Congress in ICWA section 1952.

Conclusion:

For these reasons, we conclude that Plaintiffs had standing to bring all claims and that ICWA and the Final Rule are constitutional because they are based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians; ICWA preempts conflicting state laws and does not violate the Tenth Amendment anticommandeering doctrine; and ICWA and the Final Rule do not violate the nondelegation doctrine. We also conclude that the Final Rule implementing the ICWA is valid because the ICWA is constitutional, the BIA did not exceed its authority when it issued the Final Rule, and the agency’s interpretation of ICWA section 1915 is reasonable.

Carpenter v. Murphy Restored to the Supreme Court Calendar for Reargument Next Term

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More to commentary to come.

ICWA Op-Ed in the WaPo and Editorial in the Austin American Statesman

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Wapo: Native children benefit from knowing their heritage. Why attack a system that helps them?

Austin American Statesman: Paxton should stop playing politics with adoptive families

Media Statements and News Articles on Fifth Circuit ICWA Case

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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.

 

Statements here

Articles here (and some are behind paywalls)

VERY LAST CHANCE to Sign on To Tribal Amicus Brief in Fifth Circuit ICWA Case

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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:

  1. 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
  2. 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

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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.’”

NICWA/NARF/NCAI

California Tribal Families Coalition

Fifth Circuit Grants Stay in Texas v. Zinke (ICWA)

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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.

Here