ICWA

Fletcher and Khalil on ICWA Preemption and Commandeering

Matthew L.M. Fletcher

Fletcher and Randall F. Khalil have posted “Preemption, Commandeering, and the Indian Child Welfare Act,” forthcoming in the Wisconsin Law Review, on SSRN. This paper is part of the law review’s symposium on Interpretation in the States.

The abstract:

This year (2022), the Supreme Court agreed to review wide-ranging constitutional challenges to the Indian Child Welfare Act (ICWA) brought by the State of Texas and three non-Indian foster families in the October 2022 Term. The Fifth Circuit, sitting en banc, held that certain provisions of ICWA violated the anticommandeering principle implied in the Tenth Amendment and the equal protection component of the Fifth Amendment’s Due Process Clause.
We argue that the anticommandeering challenges against ICWA are unfounded because all provisions of ICWA provides a set of legal standards to be applied in state which validly and expressly preempt state law without unlawfully commandeering the States’ executive or legislative branches. Congress’s power to compel state courts to apply federal law is long established and beyond question.
Yet even if some provisions of ICWA did violate the Tenth, we argue that Section 5 of the Fourteenth Amendment sufficiently authorizes Congress’s enactment of ICWA so as to defeat the anti-commandeering concerns. Strangely, no party ever invoked Congress’s power under Section 5 of the Fourteenth Amendment to assess its constitutionality. ICWA seems like an obvious candidate for analysis under Congress’s enforcement powers under Section 5. States routinely discriminated against American Indian families on the basis of their race and ancestry (and their religion and culture), and ICWA is designed to remedy the abuses of state courts and agencies.
We further have no doubt that the state legislatures that adopted ICWA in whole, in part, or as modified also possessed the power to do so, even in the event the Supreme Court holds all or portions of ICWA unconstitutional.

The Wisconsin Law School gargoyle.

Amicus Briefs in Haaland v. Brackeen

Kate Fort

We have a total of 21 pro-ICWA Amicus Briefs. Here they are in some rough categories and some VERY rough summaries. In writing this post, I became overwhelmed at this stunning array of briefs and support for ICWA.

Government Briefs

NARF’s Tribal Government and Organizations Brief : this brief has the sign on of nearly 500 tribes and over 60 tribal organizations. It discusses ICWA as an exercise of the trust responsibility, and the political relationship of tribes.

Congressional Brief : 87 Members of Congress signed this brief defending ICWA in the four principle arguments in the case

State AG Brief : 23 states and the District of Columbia signed on to this brief, which highlights how ICWA allows and encourages tribal-state relations in the area of child welfare.

LA County Brief : from the county counsel at the largest child welfare system in the country, it discusses the importance of ICWA to LA County practice with a focus on relocation in particular

Semi-Party Brief

Bradshaw Brief : This brief is unique in that it primarily tells the story of Robyn Bradshaw, the grandmother who adopted her granddaughter who was the subject of the claims of the Cliffords, one of the three foster family plaintiffs in the case. Because the procedural posture of the case below, the Cliffords’ narrative of facts was allowed to go unchecked throughout the life of the case until now.

How Child Welfare Works Briefs

Family Defenders : a brief from parent attorneys/family defenders in more than 8 states, this brief discusses the constitutional rights afforded to parents and families, how those intersect with the child welfare system, and the importance of ICWA in that structure. It directly addresses the arguments made by the other side regarding the child welfare system.

American Bar Association : This brief directly takes on the contention that child welfare is the sole province of the states as well as discussing the legal complexity of the child welfare system.

Casey Family Programs and 26 Other Child Welfare and Adoption Organizations : A continuation of the original, wildly successful, “gold standard” brief from Baby Girl, this brief focuses on child welfare best practices and how ICWA creates, promotes, and supports them.

National Association of Counsel for Children and 30 Other Children’s Rights Organizations : In addition to discussion the Constitutional rights of families, this brief directly addresses how ICWA supports the best interests of children in state proceedings.

Former Foster Children : One of the briefs with a particular place in my heart, this brief allowed Native youth to tell their lived experience to the Court.

How Adoption Works Brief

Non-Native Adoptive Parents : while the plaintiffs in this case were not adoptive parents, this brief directly addresses how ICWA actually works in voluntary adoptions.

Law Professor Briefs

Ablavsky Brief : The originalism brief

Administrative and Constitutional Law Professors : this brief addresses three main issues–federal power, anti-commandeering, and delegation

Indian Law Professors : this brief focuses on the exclusive power of Congress to legislate on behalf of Indians as a political class

American Historical Association : this brief provides historical context, especially around the early efforts (or lack thereof) of state child welfare systems and Native children

Medical Organizations

American Academy of Pediatrics and the American Medical Association : ICWA works directly to address the attendant physical and emotional trauma of federal and state policies designed to destroy tribal families and extended tribal networks

American Psychological Association (specifically including the associations of Texas, Louisiana, and Indianan) and the Society of Indian Psychologists : The benefits for children of being parented by Indian adults

Interest Groups

ACLU : ICWA is not a race based law

Constitutional Accountability Center : Originalism and anti-commandeering

National Indigenous Women’s Resource Center : The ramifications, specifically to VAWA, if “Indian” is a racial classification

Sen. Abourezk/Lakota People’s Law Project : Passage of ICWA and issues in South Dakota

Fletcher and Singel on Lawyering and the Indian Child Welfare Act

Matthew L.M. Fletcher

Fletcher and Singel’s paper, “Lawyering the Indian Child Welfare Act,” has been published in the Michigan Law Review. We’re honored to be part of a symposium on civil rights lawyering!

Our abstract:

This Article describes how the statutory structure of child welfare laws enables lawyers and courts to exploit deep-seated stereotypes about American Indian people rooted in systemic racism to undermine the enforcement of the rights of Indian families and tribes. Even when Indian custodians and tribes are able to protect their rights in court, their adversaries use those same advantages on appeal to attack the constitutional validity of the law. The primary goal of this Article is to help expose those structural issues and the ethically troublesome practices of adoption attorneys as the most important Indian Child Welfare Act (ICWA) case in history, Brackeen v. Haaland, reaches the Supreme Court.

Tribal Defendants/Intervenors Brief in Haaland v. Brackeen

Kate Fort

Merits brief on behalf of the intervening tribes–Cherokee Nation, Oneida Nation, Quinault Indian Nation, Morongo Band of Mission Indians, Navajo Nation–in the Haaland v. Brackeen Supreme Court case.

IntervenorTribeBrief

Pace yourself–she’s a long one.

Deadline to Sign on to SCOTUS Tribal Amicus Brief, Haaland v. Brackeen

Kate Fort

Deadline is August 15 at 12pm EASTERN. If you are SIGNING ON for a tribe, email dougherty@narf.org.

If you want to know if a tribe has signed on or need a copy of the brief, feel free to harass me at fort@msu.edu.

From NARF:

Tribes – show your support for the Indian Child Welfare Act (ICWA)! All federally recognized Tribes are invited to sign on to the Haaland v. Brackeen Tribal Amicus Brief in a show of unity and support for ICWA, Native children, and Native families.

There is no cost to join this brief and over 260 Tribes have already signed on. 

Tribal Nations interested in signing the brief must do so no later than next Monday, August 15, 2022. If your Tribe would like to add its name to the brief, please reach out to NARF Senior Staff Attorney Erin Dougherty Lynch at dougherty@narf.org as soon as possible.

Please note that if your Tribe signed on to a previous brief when this case was before the Fifth Circuit, you will NOT be automatically added to this Tribal Amicus Brief―NARF still needs is an affirmative statement that your Tribal Nation would like to join the brief.

Again, please email Erin Dougherty Lynch at dougherty@narf.org to sign on to the brief.  If you would like a copy of the brief or have questions about whether your Tribe has already signed on to the brief, please email fort@msu.edu.

Gila River Indian Community Response to PLF Amicus Brief in Brackeen

Kate Fort

We rarely post press releases, but this exception is an important one. Here is the Gila River press release explaining more about the C.J. Jr. case that the Pacific Legal Foundation is trying to use to undermine ICWA.

GRIC Statement on PLF Brief 06-07-22[3]

 

PLF’s brief falsely portrays ICWA as causing delays in C.J., Jr.’s and other cases. The delays in C.J., Jr.’s case were caused not by ICWA, but the failure of the Ohio courts and child welfare agencies to timely notify the Community of the case and an unprecedented level of obstruction and bias against the Community from the court–appointed guardian ad litem (who filed two appeals of the juvenile court’s decisions and moved to delay resolution of the appeals). The Community successfully sought removal of the guardian for misconduct and bias, but only after lengthy delays. PLF is fully aware of this, as one of the attorneys who signed their amicus brief in Brackeen v. Haaland represented the guardian ad litem who was removed from the case.

Top Side Briefing in Haaland v. Brackeen

Kate Fort

This case is a little complicated regarding the name and who is filing when. The Court is keeping all of the documents under case number 21-376, which is Haaland v. Brackeen. But in its order granting cert, the Court stated that Texas and the foster families would file first, or be “top side” in the briefing schedule. The federal government and the tribes will file on August 5, and the subsequent amicus briefs on August 12.

If you are thinking about a pro-ICWA amicus brief and have not yet talked to Dan Lewerenz (lewerenz@narf.org) at NARF now is the time to reach out. If you are a tribe looking to sign on to the tribal amicus brief, please reach out to Erin Dougherty Lynch (dougherty@narf.org), also at NARF.

Top Side Principle Briefs

Brackeen_Haaland v. Brackeen — Opening Brief

Texas_Haaland v. Brackeen – Opening Br. for Texas

Top Side Amicus Briefs

CatoGoldwaterFosterParents_Amicus Brief

CJJr_PLF Amicus Brief – BRACKEEN – 2022.06.01 – FINAL

OklahomaOhio_Brackeen Amicus

ProjectforFairRep_21-376 -377 -378 -380 ICWA Amicus Brief

NewCivilLiberties_21-378 Amicus NCLA Supp. Pet.

CERA_CERF Amicus Brief in Support of No Party -Final-6-2-22

ChristianICWA_21-376 -377 -378 and -380 Brief

AAAA_21-376 Amicus AAAA and NCFA

Notable additions to the anti-ICWA amicus briefs include Oklahoma and parties of ICWA cases past.

Minnesota Court of Appeals on Reason to Know: How to Write an Opinion On This [ICWA]

Kate Fort

OPa220311-051622

All the Courts of Appeals facing the question of reason to know should just go read this one (I’m looking at you, Colorado).

In this case the court ordered another investigation to ensure the children were not Indian children, and this bothered the state So Much that it asked for a writ of prohibition to avoid the order. The Court is pretty clear that the lower court has the power to order an investigation and dismisses the state’s argument that the lower court didn’t have “reason to know” in one succinct paragraph.

Finally, we reject the county’s assertion that the district court erroneously replaced the reason–to–know standard with a lower standard: that the children “might” be Indian children. “[R]eason to know” is “[i]nformation from which a person of ordinary intelligence . . . would infer that the fact in question exists or that there is a substantial enough chance of its existence that, if the person exercises reasonable care, the person can assume the fact exists.” Black’s Law Dictionary 1520 (11th ed. 2019). The word “might” means “to express possibility.” Random House Dictionary of the English Language Unabridged 1219 (2d ed. 1987). There is significant overlap between when a court “has reason to know” that a child is an Indian child and when there is a “possibility” that a child is an Indian child. On this record, we cannot say that the district court applied an incorrect standard. Moreover, as noted, even if a court has something less than a reason to know that a child is an Indian child, the court may nevertheless “choose to require additional investigation into whether there is a “reason to know” the child is an Indian child.” ICWA Guidelines, supra, at 11

Iowa Supreme Court Decision on Notice and Indian Child [ICWA]

Kate Fort

Opinion here:

210324_D8AD4E4B97EB1

Court page with oral arguments here.

I have delayed in posting this one mostly because I found this one particularly difficult, but I’ve referenced it in multiple presentations, so here it is. In essence, the child is a Lakota child, but due to COVID and tribal citizenship requirements and enrollment delays, ICWA did not apply to their case.

Red Cloud [Oglala Sioux ICWA Director] testified that he first met Mother the day before the hearing. He testified that he had consulted with his supervisor and that it was absolutely the intention of the tribe to intervene in the proceeding. When the State pointed out that the motion to intervene contained a reference to a stranger who was not a party to the proceedings, Red Cloud apologized for the error.

Red Cloud testified that because of staff difficulties and COVID-19, there were two years’ worth of cases that were not followed up on by the Oglala Sioux Tribe. He testified that the Bureau of Indian Affairs (BIA), which ordinarily signed off on tribal enrollments, had not done enrollments since March of 2020. When asked, however, whether Z.K. was “eligible for enrollment” in the Oglala Sioux Tribe, Red Cloud responded “Yes.”

On cross-examination, Red Cloud stated that it was hard to get enrollment certified because of the health issues of a BIA employee responsible for certification. Yet, Red Cloud testified that the tribe could determine whether somebody is a member or eligible for membership without certification by the BIA.

***

Red Cloud further stated that the Mother is at least half Native American regardless of whether she is a member of the Standing Rock Sioux or Oglala Sioux Tribe, and as a result, “there was no way that [the Court] can determine that [Z.K.] is not an Indian.” Red Cloud added, “[W]e need the time to figure this out.”

Obviously, that time didn’t happen and the Court found ICWA did not apply because the mother was not a citizen of Oglala. This is especially frustrating coming out of Iowa, which has an ICWA statute that attempted to define an “Indian child” as one that was recognized as such by her community. However, in 2007, the Iowa Supreme Court found that portion of the statute unconstitutional.

Kate Fort in Harvard Law’s Bill of Health

Kate Fort

Here.

This post is part of a larger symposium on adoption, family separation & preservation, and reproductive justice. Other posts on Native children and Native experiences by Lauren van Schilfgaarde and Susan Harness. Pretty honored to be included with them.