Montana Law Review Browning Symposium Keynote Speaker: Judge Diane Humetewa
Author: Matthew L.M. Fletcher
Montana Law Review Browning Symposium Panel #3: Tribal Sovereignty
Tribes’ Statement re: Brackeen v. Zinke Decision
STATEMENT REGARDING RULING STRIKING DOWN THE INDIAN CHILD WELFARE ACT
We strongly disagree and are deeply disappointed with Judge O’Connor’s decision in Brackeen v. Zinke in the U.S. District Court for the Northern District of Texas striking down the Indian Child Welfare Act, four decades after it was enacted. We remain steadfast in our commitment to defend the constitutionality of ICWA by all available means for one simple reason: If ICWA is struck down in whole or in part, the victims will be our children and our families, Native children and Native families.
The apparent goal of Plaintiffs’ litigation is an extreme one — to separate children from their parents. Before ICWA, as many as one-third of all tribal children were forcibly removed from their families and their communities by state governments. Thorough and objective analysis of the systematic removal of Indian children from Indian homes found many removals were wholly unjustified. These policies devastated tribal communities and we refuse to go back to those darker days. We are heartened by the support of so many states that stand shoulder to shoulder with us in this litigation to protect families.
We are in consultation with our legal counsel and exploring all available options. Rest assured, we consider the trial level decision today as one part of a long process. In the interim, we will seek a stay of the decision until higher courts have an opportunity to review it. We will continue to work in state courts throughout the country to ensure the protections of ICWA for Native children, families, and tribes. We strongly believe that, in the end, our rights protected by the Indian Child Welfare Act will be affirmed and reinforced.
- Principal Chief Bill John Baker, Cherokee Nation
- Chairman Robert Martin, Morongo Band of Mission Indians
- Chairman Tehassi Hill, Oneida Nation
- President Fawn Sharp, Quinault Indian Nation
Browning Montana Law Review Symposium Panel #1: Civil Rights
Federal Judge Rules ICWA Unconstitutional in Brackeen v. Zinke
Here is the opinion in Brackeen v. Zinke (N.D. Tex.):
Case page with briefs here.
A federal court has held that ICWA violates the equal protection component of the Fifth Amendment’s Due Process Clause, rejecting the Morton v. Mancari argument and applying strict scrutiny. The court further held that ICWA violated the Tenth Amendment’s prohibition on commandeering state legislative functions. The court more or less summarily rejected the argument that the Indian Commerce Clause authorized Congress to enact ICWA. Finally, the court struck down the ICWA regulations.
Still, there will certainly be an appeal. The case is limited only to the parties involved.
Federal Court Rules against Tulalip Tribes’ Quil Ceda in Tax Dispute with State of Washington
Here is the order in Tulalip Tribes v. State of Washington (W.D. Wash.):
Prior posts here.
The Guardian: “While Nestlé extracts millions of litres from their land, residents have no drinking water”
Here.
Indian Law-Related Docs from the Brett Kavanaugh Document Dump
09-13-18-gwb-document-release-murkowski-sullivan.pdf
hr1166-assistance-provided-by-small-business-development-centers-to-na.pdf
These documents could be significant.
1. During his confirmation hearing when Senator Hirono asked him if he was thinking of the Rice v. Cayetano case when he sent these emails, found here.
The nominee said he couldn’t remember whether he was thinking of Rice or if Rice had anything to do with his thoughts. The 69 pages of emails and documents that are attached here may show Kavanaugh’s thinking on Indian law issues — Rice is mentioned a few times.
2. When the nominee met with Sen. Murkowski he told her (here):
“He was the first to admit that in terms of broader Indian law he hasn’t had that much opportunity in the D.C. Circuit court to really engage on these issues, so this is not a body of law that he is often exposed to,” she said. “And he was very direct with that.”
Again, the emails show the nominee’s involvement in Indian law.
3. The letter included here is related to a Tom Udall bill that was passed unanimously by the House. The bill was to provide services to NA, Alaska Natives, and Native Hawaiians from the SBA. The letter likely was to be cleared by the nominee. The letter states the administration’s opposition to portions of the bill on constitutional grounds, relying on Rice.
New Scholarship on Tribal Bankruptcy
Laura Coordes has posted “Beyond the Bankruptcy Code: A New Statutory Bankruptcy Regime for Tribal Debtors,” forthcoming in the Bankruptcy Developments Journal, on SSRN.
Here is the abstract:
Native American tribes and tribal businesses play an important role in U.S. commerce, but many of these entities are effectively prohibited from filing for bankruptcy relief when financial distress occurs. This Article demonstrates how and why the Bankruptcy Code is a poor fit for these “tribal debtors” and suggests that Congress enact a new statutory regime to provide structured debt relief for these entities rather than modify the Bankruptcy Code.
Although this proposal is novel with respect to tribal debtors, Congress has looked beyond the Bankruptcy Code to provide debt relief when use of the Code would be inapt on two other recent occasions: the passage of the Dodd-Frank Act and PROMESA. Using tribal debtors as an example, this Article investigates whether and how this practice might continue and what it might mean for the bankruptcy system writ large.
Turtle Talk 
You must be logged in to post a comment.