Guardianship Case out of Nebraska [ICWA]


You have to love a court that starts the opinion so clearly:

The federal Indian Child Welfare Act (ICWA) and the Nebraska Indian Child Welfare Act (NICWA) provide specific procedures and requirements that apply in certain proceedings involving the custody and adoption of and termination of parental rights to Native American children. This case requires us to decide whether those procedures and requirements apply in a case in which a maternal grandmother sought to establish a guardianship for an Indian child over the objection of her daughter, the child’s mother. After interpreting the relevant statutory language, we conclude that the guardianship proceeding at issue was governed by ICWA and NICWA. In addition, we find that the grandmother did not make the showing required by ICWA and NICWA. We therefore reverse the order of the county court establishing the guardianship and remand the cause with directions to vacate the guardianship, dismiss the petition, and return custody to the child’s mother.

Cool Pro Hac Update from Ho-Chunk Nation

HCN has updated their own tribal rules of civil procedure to allow for a pro hac waiver in tribal court for child welfare cases:

(C) Counsel not admitted to practice before the Ho-Chunk Nation Courts, but seeking to appear on behalf of a federally recognized Indian tribe in a proceeding regarding a petition for guardianship or for child protection over a child who is a member of that tribe, or eligible for membership in that tribe, shall be permitted to appear without paying any fee. Counsel representing an Indian tribe in such a matter shall also be permitted to make their appearance without filing a motion for special appearance, provided that, at that appearance, said counsel states on the record that they are admitted to practice in another state, federal, or tribal jurisdiction; that they have been in actual practice for two or more years, and takes the oath or affirmation for practice. This rule shall not apply to attorneys who appear on behalf of the Ho-Chunk Nation.

HCN Civ. Pro. R. 16(c)

We’ve updated the pro hac page accordingly.  Obviously these are not ICWA pro hac waivers, but are related and can be used to show comity in this area.

Washington Court of Appeals Case on Active Efforts [ICWA]


It took me a while to read this whole opinion and there are a lot of issues. But to start, I’d note that unlike some arguments in another unnamed federal ICWA case (Brackeen, it’s Brackeen), this case is yet another every day example where a state has to prove the best interests of the child standard and the ICWA standard–the ICWA standard didn’t supplant BIOC.

That said, there is some unnecessary Michigan trash talking in this case as the Court happily finds active efforts is more than reasonable efforts, but unhappily choses to adopt a “futility doctrine” for the active efforts finding. The futility “doctrine” for active efforts is a judicially created standard to excuse the state from providing active efforts to the parent.

MN ICWA Law Center Request for Matching Funds

The ICWA Law Center in Minneapolis is one of the most important groups defending ICWA today. Their model is excellent, and honestly should be imported to other urban centers. They do the individual representation most of us do not, and support those individuals with attorneys, social workers, parent mentors, and an elder in residence. They work with tribes and in tribal courts. I could go on about all of the individuals who work there for a long time. I received this email today, and though they did not ask us to post this, we are (especially because it’s a matching campaign from Shakopee):

Dear ICWA Law Center Supporters,

The ICWA Law Center has been presented with a wonderful opportunity to secure much needed funding with your help!  The Shakopee Mdewakanton Sioux Community Business Council has generously awarded a matching donation to the ICWA Law Center in the amount of $12,500.00.  This means that we must first raise $12,500 in order to receive the matching funds.  Whether it is a small contribution or a larger contribution, each contribution is significant and we ask you to partner with us in achieving this goal. You can donate now by clicking on the link below.

The ICWA Law Center’s mission is unwavering – to strengthen, preserve and reunite Indian families, consistent with the mandates and spirit of the Indian Child Welfare Act.  The ICWA Law Center provides legal services and advocacy to Indian families impacted by the child welfare system in both state courts and tribal courts.  The Center’s core values of justice, engagement, collaboration and compassion guide our work.

Reflecting on the twenty-five years that the ICWA Law Center has been a part of our community, those of us who have had the honor of working for or volunteering for the Law Center are forever grateful for the opportunity to ensure that family’s voices are at the forefront of decisions involving their children.  Relationships matter and the ICWA Law Center values the opportunity to provide guidance, support and hope to the families we serve.   Advocating for families allows us to create a space where connections to family and tribe are valued as fundamental to healing. These connections are the foundation of our work.

The ICWA Law Center serves over two hundred families every year. We see the desperation of a mom struggling with opiate addiction and crying for help, the heartbreak of a grandma who is unable to see her grandchild, the fear of a father whose teenage daughter is missing, and the weariness of a family who spends their days looking for a safe place to sleep at night.  The ICWA Law Center works to restore power to all we serve through giving voice to their struggles and courageousness. Through advocacy, we strive to tell their stories with integrity and purpose, in hopes that sharing their strengths will create a compassionate response to meet their needs.

We  look forward to the ICWA Law Center’s next 25 years.  Please consider helping us to secure the matching grant from the Shakopee Mdewakanton Sioux Community through a financial contribution today.  The ICWA Law Center is a 501(c)(3) organization and all donations are tax deductible.

Many thanks,

Shannon E. Smith


Reflections on Oral Argument in Brackeen v. Bernhardt

Four Intervening Tribes Leadership and Attorneys

On Wednesday, an en banc panel of 16 judges in the Fifth Circuit heard oral arguments in Brackeen v. Bernhardt. Judges Davis and Ho were not a part of the panel. The other judges, from the left side of the bench around to the right were:

Graves Jr.

The rest of the information is from my notes during the hearing, and I’m sure contain some mistakes that we will see when a transcript is released.

Of the 16 judges, 5 of them asked a vast majority of the questions–more than 5 questions each. Duncan asked 19, Dennis and Jones asked 11, Smith asked 7 and Costa asked 5. The federal government received 11 questions, Navajo Nation 7, and the Four Intervening Tribes 7. Texas received 19, and the Individual Plaintiffs 16. The Four Intervening Tribes received 4 additional questions on rebuttal (totals are 25 for the pro-ICWA side before rebuttal and 36 for the anti-ICWA side).

If you are trying to follow along to the audio recording, Duncan was most concerned with commandeering and recent Supreme Court commandeering questions. He also pressed Navajo Nation closely on blood quantum. Smith was the one particularly trying to understand the “exclusive” part of plenary power, and later expressed the belief that Texas dedicates scores of social workers to each child in care. And Jones asked the questions on rebuttal that has led to the most number of texts from attorneys asking me “what the [heck]?!” (which I personally thought Adam Charnes handled admirably, given all the oxygen was completely sucked out of the courtroom in that minute by a collective intake of breath).

Dennis, the judge who wrote the lower panel opinion, was the one the plaintiffs had most difficulty hearing, and was the most supportive of the law. Costa also asked skeptical questions of the plaintiffs, and wanted to know more about redressability.

Given the silence or relative silence of so many judges, it is impossible to make any predictions about the eventual opinion. We heard very little from judges who voted against en banc review in Dollar General (the pro-tribe vote), except Dennis. Elrod and Higginson both asked one question each.

Finally, in a very unscientific scroll through Westlaw, the Fifth Circuit has taken anywhere from 3 months (Moore v. Quarterman) from the granting of en banc review to the opinion to 10 months (Alvarez v. Brownsville). The granting of en banc review of Brackeen was in 11/19, so feel free to speculate amongst yourselves when you think the opinion will come out.

Déjà vu all over again

Article on Posthumous Pardon for Tribal Attorney Don Gellers


Donald Gellers died of cancer at the age of 78 in 2014. During his lifetime, he never asked for a pardon. But in October, Gellers’ attorney, relatives and members of the Passamaquoddy tribe appeared on his behalf to ask the governor’s pardon board to grant him one and to end what has been described by journalist Colin Woodard as “one of the most sordid episodes in Maine legal history.” Woodard has written extensively about the case for the Maine Sunday Telegram.

Briefing Completed in Advance of This Week’s Oral Arguments in Brackeen [ICWA]

All documents here. Oral arguments are on Wednesday. The Court releases a recording of the arguments which we will publish when available.

Principle Supplemental Briefs:

Appellant Tribes En Banc Brief

Appellant Feds En Banc Brief

2019-12-13 Intervenor Navajo En Banc Brief

Individual Plaintiffs_Supplemental Brief

State_Supplemental Brief

Amicus Briefs pro-ICWA:


Indian Law Profs

Tribes and Tribal Orgs

Con Law Profs

Members of Congress Brief


Ablavsky-Originalism Brief

Native Women and ACLU

Amicus Briefs anti-ICWA




Project on Fair Representation_amicus

Goldwater Institute, et al_amicus