This document is primarily for non-lawyers, so while you can @ me about details, there is a reason this document doesn’t get into the nitty gritty question of federal court jurisdiction in state court trials (please note the work the word “may” is doing). We hope this will be helpful for tribal social workers, their state counterparts, reporters, and maybe some lawyers who are trying to understand the implications of a 325 page decision.
Based on my inbox, my ims, and my texts, the best thing I can do this morning is a post on the decision. A few caveats–I will not speculate about what happens next because I don’t know what’s going to happen next and it’s frankly not helpful. This is my own understanding of a ridiculously complicated opinion less than 24 hours after it was released and no one else’s, but I am indebted to a number of practitioners last night who emailed and texted as we worked our way through it. They know who they are.
Judge Dennis and Judge Duncan each wrote about 150 pages, clearly hoping one or the other would gain the majority. Then five additional judges (Owen, Wiener, Haynes, Higginson, Costa) wrote concurrences and dissents and/or both. The first five pages of the document are a per curiam description of where everyone ended up. These five pages are probably the most helpful part of the decision. What makes this decision particularly confounding is that due to the make up of the court, there was an opportunity for an evenly split bench, which is what happened a lot. And as Indian law practitioners know all too well, a split bench doesn’t make for a precedential decision (and are supposed to be super short, but no such luck here).
I think the best place to start is the question I’ve been asked the most–where does this apply? How will this affect my on-going case? First, the mandate issue date on the opinion is not until June 1 (this is in PACER). Therefore, if nothing happens at all (remember, I’m not future speculating), then none of this applies till June 1. Second, I believe the parts of the decision that the majority agrees on is applicable only in the Fifth Circuit. Much like no one in California or Michigan much cares about the Neilson v. Ketchum decision in the Tenth Circuit, there’s no real reason for a vast majority of state courts to wrestle with this case.
The evenly split parts? I like to think of them as an unpublished advisory opinion. Take a look at footnote one to address those parts. The Court uses the term “affirmed without precedential opinion” which does not appear in any Westlaw search I’ve done so far. However, as I pointed out last night, Judge Costa’s concurrence and dissent (which appears at the very end of the document) points out pretty clearly that the federal court decision is not binding on a state court. He then addresses the way in which this decision cannot provide redressability. The language in his first paragraph on page 307 may prove to be the most helpful those who wrote me about on-going cases. I’m going to put it in here because I appreciate his writing:
It will no doubt shock the reader who has slogged through today’s lengthy opinions that, at least when it comes to the far-reaching claims challenging the Indian Child Welfare Act’s preferences for tribe members, this case will not have binding effect in a single adoption. That’s right, whether our court upholds the law in its entirety or says that the whole thing exceeds congressional power, no state family court is required to follow what we say.2 from Judge Costa’s decision, 307 in the PDF
ICWA is Constitutional
If you’ve made it this far, let’s start with the good news–these are things the majority agreed on:
[T]he en banc court holds that Congress was authorized to enact ICWA. We conclude that this authority derives from Congress’s enduring obligations to Indian tribes and its plenary authority to discharge this duty.
In addition, for the en banc court, we hold that ICWA’s “Indian Child” designation and the portions of the Final Rule that implement it do not offend equal protection principles because they are based on a political classification and are rationally related to the fulfillment of Congress’s unique obligation toward Indians.
We also hold for the en banc court that § 1915(c) does not contravene the nondelegation doctrine because the provision is either a valid prospective incorporation by Congress of another sovereign’s law or a delegation of regulatory authority.
Further, we hold for the en banc court that the BIA acted within its statutory authority in issuing binding regulations, and we hold for the en banc court that the agency did not violate the APA when it changed its position on the scope of its authority because the agency provided a reasonable explanation for its new stance.152 from Judge Dennis’s opinion, 159 in the PDF
Judge Dennis would have held for the Defendants and completely reversed the district court on all issues except standing, had he garnered a majority of the court.
In addition, here are the specific ICWA provisions challenged and either found constitutional by the majority:
1912(e), (f) (except for QEW)
or could not garner a majority and are therefore not precedential:
Provisions of ICWA and the Regs that May Not Apply in the Fifth Circuit
Judge Duncan’s opinion essentially stands for the exact opposite conclusions, but he did not get a majority. He only got a majority on three issues. The majority agreed the following in ICWA are unconstitutional as applied to states under the commandeering doctrine in the Fifth Circuit:
25 U.S.C. 1912(d) (Active efforts provision) (Judge Duncan’s decision, IIII(B)(1)(a)(i))
25 U.S.C. 1912(e), (f) as it applies to the qualified expert witness provision (Judge Duncan’s decision, III(B)(1)(a)(ii))
25 U.S.C. 1915(e) (recordkeeping regarding placements) (Judge Duncan’s decision, III(B)(1)(a)(iv))
In addition, the parts of the Final Rule that implement those provisions are also no longer applicable, though I would draw people’s attention to 25 C.F.R. 23.144 which addresses severabillity. I believe there is an argument to be made that these provisions are only knocked out as to the states in the Fifth Circuit, not to private parties. The Court did not identify the specific rules that implement 1912(d)-(f) and 1915(e), so here is my best guess on which ones may not longer apply in the Fifth Circuit:
25 C.F.R. 23.2 (active efforts definition)
25 C.F.R. 23.120 (active efforts)
25 C.F.R. 23.121 (but only the parts that reference qualified expert witness)
25 C.F.R. 23.122 (qualified expert witness)
The Court did specifically reject by majority the following provisions of the Final Rule:
25 C.F.R. 23.132 (b) (that good cause to deviate from the placement preferences requires a clear and convincing evidence standard/finding)
25 C.F.R. 23.141 (specifically identified as rejected/record keeping)
I apologize for not stating something that I should have said at the start:
This decision has no effect on state ICWA laws, since it is based on commandeering (the feds making the states do something, not the state choosing to do something) or the APA (again, if a state wants to maintain records, it can, and state laws or court decisions that enforce a C&C burden for good cause based on ICWA itself or state law should be fine as well.).
Trust me when I say, there are a LOT of words in this decision (I had to briefly walk away when I hit footnote 2, an extraordinarily long, multipage footnote on Madison and the Federalist papers), but a lot of the words are just that. There’s very little legal substance here. I think it’s revealing to read the attempt at remedy in Judge Duncan’s opinion–as had been argued repeatedly, nothing this court decided would redress the harms claimed by the plaintiffs.
Students at the MSU Indian Law Clinic will be working on additional materials, such as breaking down the decision by judge if possible, and developing a chart (as are a number of other groups). Ours will be directed for the audience of in-house ICWA counsel. I hope this is helpful.
All I can say is to remember when they split evenly, it affirms the district court decision, not the earlier 5th Circuit decision. Beyond that, I’m still trying to figure it out.
Judge Costa’s concurrence/dissent does a lot to explain the implications of the holding. You may want to start on page 306 (!).
So happy to see April Olson’s article on the issue of legal representation for tribes in out of state cases. This is easily the top question I get–both from lawyers nervous about intervening out of state and also from lawyers trying to find pro hac partners. Get your state to pass a pro hac vice exception. It makes a huge difference–in 2020 alone the Indian Law Clinic saved over $500 in appellate pro hac fees due to these rules, but it makes an even bigger difference at the trial level so tribes can avoid appeals in the first place.
Read April’s article, then figure out how to get your state on board if they aren’t already. Today I’m specifically looking at Oklahoma ($350 in pro hac fees plus a complicated process via the state bar, so another $100 in expedited good standing certificate requests and overnight mailing).
All the ICWA pro hac rules are collected here.
OCS correctly points out that “inadequate efforts in one period of state involvement do not render the entirety of [its] efforts inadequate, even when that period lasts for a matter of months.”28 And the superior court correctly found that OCS had made active efforts to reunify Clark and his children during the first two years of the case. But OCS’s failure to make adequate efforts in this case encompassed the subsequent two years, fully half of the time that the case was open. And its failure during that two year time period was extreme: OCS did not even attempt to contact Clark for a year and a half, and may have gone even longer without doing so if Clark had not initiated contact himself. OCS’s failure to make active efforts in the second two years of the case was so egregious that the efforts during the earlier period cannot make up for it. Because OCS’s efforts to reunite Clark with his family following his consent to guardianship were minimal at best, we reverse the superior court’s finding that OCS met the active efforts requirement.
Clark J. v. Dep’t of Health & Soc. Servs., Off. of Children’s Servs., No. S-17797, 2021 WL 1232066, at *7 (Alaska Apr. 2, 2021)
A county with at least one awful case has a much better inquiry decision here. Turns out this is not enough, judges:
[Judge]: The question was posted as to whether or not the
requirements of ICWA had been met and hopefully, someone
has that answer for us.
[FCCS Attorney]: We did locate a log in which intake has asked
[appellant] if she participated with any Cherokee tribal
affiliation or membership. The answer was in the negative. And
then on June 15, 2018, subsequent to the complaint being filed
where [appellant] alleged some kind of Cher — Cherokee – * * *
heritage, [appellant] was put under oath on the record as noted
under [the juvenile court magistrate’s] order and she did state
that she did — was not eligible for membership and therefore,
no ICWA notifications would be required under the law. And at
that point the prosecutor had proceeded on the
adjudication/disposition as those notifications weren’t
required. But we did locate that; that is all in the record.
[Appellant] was put under oath again on June 15, 2018 and all
of that testimony is on the Court’s record. Thank you.
[Judge]: Thank you. Not being familiar with the whole ICWA
process, I trust that satisfies everyone’s concerns in regard to
[Appellant’s counsel]: Yes, Your Honor.
[Judge]: Very good then.
Pretty rare to be ok with admitting you just don’t know how to apply/aren’t familiar with a 40 year old law.
As such proper inquiry was not made here, we expressly make no
determination as to whether the juvenile court knows or has reason to know pursuant to 25
C.F.R. 23.107(c). We also expressly make no determination as to whether the children are
Indian children as defined in 25 U.S.C. 1903. Nevertheless, given the potential for
invalidation of a custody determination, we sustain the third assignment of error
I get this question a lot and have had many discussions about it recently, so I know there are some specific attorneys out there who will be interested in this case:
“As a matter of first impression in Colorado, a division of the court of appeals holds that a child’s membership in a tribe, even absent eligibility for enrollment, is sufficient for a child to be an Indian child under the Indian Child Welfare Act.”
Not sure what’s going on, but here are the (unpublished) cases so far this year:
|In re King/Koon||7-Jan||2020||Court of Appeals||Grand Traverse||Michigan||Un||Notice|
|In re K. Nesbitt||11-Feb||2021||Court of Appeals||Hillsdale||Michigan||Un||Notice|
|In re Stambaugh/Pantoja||11-Feb||2021||Court of Appeals||St. Joseph||Michigan||Un||Notice|
|In re Banks||18-Feb||2021||Court of Appeals||Wayne||Michigan||Un||Notice|
|In re Dunlop-Bates||18-Feb||2021||Court of Appeals||Livingston||Michigan||Un||Active Efforts|
|In re Cottelit/Payment||18-Mar||2021||Court of Appeals||Chippewa||Michigan||Un||Qualified Expert Witness|
For comparison, Michigan had 6 cases total in 2020, 7 in 2019, 8 in 2018. These counts include both published and unpublished cases–while I kind of understand why the Court of Appeals designates so many as unpublished, it obscures how many MIFPA cases we have if we only count published cases.