Four Cert Petitions Filed in Texas v. Haaland [Brackeen ICWA Case]

Today Texas, the individual plaintiffs, the Solicitor General, and the intervening tribal nations filed petitions for certiorari with the U.S. Supreme Court asking the Court to review the Fifth Circuit decision regarding the constitutionality of the Indian Child Welfare Act. There will be some additional briefing over the next 30 days, and then/eventually the Court will decide whether to hear the case or not.

The Indian Law Clinic at MSU Law represents the intervening tribes in this case.

Bryan Newland Officially Confirmed as Assistant Secretary of Indian Affairs

Bryan is a double MSU grad, former tribal judge, former tribal chair, and a good friend. We are so happy for him to see the official confirmation.

Motion for Summary Judgment and Amicus Briefs in AFCARS Lawsuit [foster care and adoption data for AI/AN and LGBTQ+ kids]

Final_Motion for Summary Judgment  

Plaintiffs have standing to bring this case. Plaintiffs here include the largest federally recognized tribes in California and in the United States, a coalition of dozens of tribes located in California, a foster youth and foster care alumni organization in Alaska, and three organizations from around the country that work with LGBTQ+ foster youth and/or youth who have experienced sex or labor trafficking. Each of these Plaintiffs works to improve the living conditions of youth in child welfare systems and to reduce the chance they will end up homeless, incarcerated, or otherwise severely harmed while in care. The data that Defendants have abandoned are irreplaceable for the efficacy of these efforts. The 2020 Final Rule substantially impedes Plaintiffs’ ability to pursue their missions. It makes it harder for tribes to vindicate their and their children’s rights and to protect their children’s well-being. Likewise, the rule makes it more difficult for groups serving youth in care, including LGBTQ+ youth, to address the overrepresentation of those youth in the foster care population and to prevent their disproportionately negative experiences. The 2020 Final Rule thus injures Plaintiffs—along with the vulnerable children they serve. 









American Academy of Pediatrics_Amicus_Brief


Members Of Congress_Amicus_Brief


The MSU Indian Law Clinic represents the plaintiffs in this case along with our excellent partners, Democracy Forward and Lambda Legal.

Decision out of the Colorado Supreme Court on the Tribal Enrollment Hearing

The Indian Law Clinic represented the Chickasaw Nation in this case.

In their petitions, the parties asked us to address whether (1) ICWA requires
a district court to hold an enrollment hearing in circumstances like those present
here as a prerequisite to the termination of parental rights; (2) a district court can
order the Department to enroll children over a parent’s objection; and (3) the
division below erred in reversing the district court’s judgment rather than
ordering a limited remand.

All of the parties before us, and the Nation itself, agree that the division
erred in requiring an enrollment hearing. Because we perceive no statutory basis
for such a hearing, and because such a hearing conflicts with the Nation’s exclusive
right to determine who is an enrolled citizen, we agree that the division erred in
requiring such a hearing.

With respect to the second issue presented, we note that neither parent
objected to the children’s enrollment. Accordingly, the issue as presented in the
petition for certiorari is not properly before us. In their briefs, however, the parties
appear to construe the question presented more broadly, namely, as asking us to

decide whether the Department has an obligation to assist children who are
eligible for enrollment in becoming enrolled citizens of a tribal nation. Although
the issue is an important one and may call for legislative action, we conclude that
under current law, the Department has no such obligation. In certain
circumstances, however, it might well be the better practice for the Department to
advise on and perhaps assist with the enrollment process.

Marshall Project and NPR on How Alaska OCS Stole Millions from Alaska Native Foster Kids

If you, like me, enjoy starting your day with the clarifying anger of a thousand white hot fires, may I recommend this article on how various state agencies rerouted foster children’s SSI benefits to pay for their own foster care–especially impacting Alaska Native children. A few of those children are highlighted in this article:

The Marshall Project and NPR have found that in at least 36 states and Washington, D.C., state foster care agencies comb through their case files to find kids entitled to these benefits, then apply to Social Security to become each child’s financial representative, a process permitted by federal regulations. Once approved, the agencies take the money, almost always without notifying the children, their loved ones or lawyers.

At least 10 state foster care agencies hire for-profit companies to obtain millions of dollars in Social Security benefits intended for the most vulnerable children in their care each year, according to a review of hundreds of pages of contract documents. A private firm that Alaska used while Hunter was in state care referred to acquiring benefits from people with disabilities as “a major line of business” in company records.

Some states also take veterans’ benefits from children with a parent who died in the military, though this has become less common as casualties have declined since the Iraq War.

Does Brackeen v. Haaland Apply:

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.

Brackeen Decision Summary

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:

1915 (a)-(b)

1912 (a)

1951 (a)

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.

The Brackeen Decision [ICWA] is Out and it is 325 Pages Long

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 (!).

2021 Federal Lawyer Article Spotlight: Out of State Legal Representation in ICWA Cases

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.