Gregory Ablavsky on the Presentment Clause and Tomorrow’s Argument in Brackeen

Here is “Brackeen, the Indian Child Welfare Act, and the Presentment Clause: A Very Pink Herring” on SLS blogs.

An excerpt:

If the Presentment Clause bars Congress from honoring the divergent policy judgments of other sovereigns, then federalism is in trouble. After all, as the briefs stress and the Supreme Court has explicitly endorsed, Congress has expressly adopted state law as federal law in the Assimilative Crimes Act and the Federal Tort Claims Act. It has expressly authorized states to create wage and hour standards higher than the federal government in the Federal Labor Standards Act. It has allowed states to establish different water and air quality standards from the federal government upon EPA approval, a power that the Court has repeatedly ruled on without saying boo.

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:

States

Indian Law Profs

Tribes and Tribal Orgs

Con Law Profs

Members of Congress Brief

Amicus_Casey_EnBanc

Ablavsky-Originalism Brief

Native Women and ACLU

Amicus Briefs anti-ICWA

CAICW_Amicus

NCLA_Amicus

Ohio_amicus

Project on Fair Representation_amicus

Goldwater Institute, et al_amicus

Amicus Briefs filed in Texas v. Bernhardt [ICWA]

All briefs are here.

Intervening Tribes Press Release (released before the Tribal brief with over 400 tribal signatories):

Majority of U.S. States, 75 Members of Congress and more than 30 Organizations File Amicus Briefs in Support of Native American Families and Children

WASHINGTON, D.C. – Today, 26 states and the District of Columbia, 75 members of Congress and more than 30 organizations filed friend-of-the-court briefs before the Fifth Circuit Court of Appeals in support of the Indian Child Welfare Act (ICWA) in Brackeen v. Bernhardt. Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Fawn Sharp issued the following statement regarding the amicus briefs:

“We are thrilled to see that more than half of all states across the country, 75 members of Congress and dozens of leading organizations are taking a stand for the best interests of Indian children and families. This continuous support from across the political spectrum is a testament to the critical role that ICWA plays in promoting the stability and security of Indian tribes and families. Together, we are fighting back against the meritless attacks on ICWA. We are confident that the Fifth Circuit will again stand on the side of families and children by upholding the law.”

The Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation and Quinault Nation are co-defendants in the case, defending the Indian Child Welfare Act (ICWA) against unwarranted attacks on the law’s constitutionality.

For more than 40 years, ICWA has provided a process for determining the best interests of Indian children in the adoption and foster care systems. The tribes are arguing to defend ICWA alongside the Trump administration, the U.S. Department of Justice, and the U.S. Department of Interior. The case will be reheard on January 22, 2020.

The amicus briefs filed by the following States – Alaska, Arizona, California, Colorado, Connecticut, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, Washington and Wisconsin – as well as the District of Columbia, can be found here.

The amicus briefs from members of Congress can be found here, and the amicus briefs from leading organizations here.

Amici include organizations and political leaders from across the country spanning the political spectrum, and the U.S. states are represented by attorneys general from both the Republican and Democratic parties. They also include law professors and Native women writing in support of ICWA.

In 2017, individual plaintiffs Chad and Jennifer Brackeen, a couple from Texas, along with the state attorneys general in Texas, Louisiana, and Indiana, sued the U.S. Department of the Interior and its now-former Secretary Ryan Zinke to challenge ICWA. The Morongo, Quinault, Oneida and Cherokee tribes intervened as defendants in the case, and their recent brief can be found here.

On August 9, 2019, the Fifth Circuit Court of Appeals reaffirmed that the Indian Child Welfare Act is constitutional and serves the best interests of children and families. On October 1, 2019, plaintiffs in Brackeen v. Bernhardt chose to continue their attacks on Indian children and tribal families and requested an en banc rehearing before the Fifth Circuit, which the court granted.

There is broad, bipartisan support against this misguided attack on a law that is crucial for protecting the well-being of Indian children and Indian sovereignty. In addition to states and members of Congress, the Trump administration has strongly defended ICWA and its protections for Indian children, explaining that ICWA is an appropriate exercise of Congress’s authority to legislate in the field of Indian affairs and does not violate the Tenth Amendment or equal protection laws.

For additional information on this case and the Indian Child Welfare Act please visit: www.ProtectIndianKids.com

ICWA Local Counsel Information Collection Survey

Here.

The number one request we get at the ICWA Appellate Project is for local counsel for either the tribe or an individual (Grandma, 98% of the time). These cases happen all over the country, and finding attorneys in, say, Massachusetts or Tennessee or West Virginia, can be difficult. In 2014-2015, Addie Smith at NICWA and I did one of these surveys that really needs updating and expansion (we collected fewer than 100 names), so here it is. I will compile the lists together and delete any duplicates.

So if you are someone who can help, fill this out. If you are someone who has come up to me at a conference asking HOW to help, fill it out. If you are a tribe that has regularly identified local counsel, see if they will fill this out to help other tribes. If you’re at a big firm, see if some of your non-Indian law colleagues in the states without federally recognized tribes would be willing to fill it out. If you read this and think, “oh, Kate knows I would help,” fill it out anyway, because I have limited brainspace! If you have old friends from law school who now practice in random places like, say, northern Ohio, ask THEM to fill it out. If you work at a family law clinic and have never taken ICWA cases, here is your chance to teach your students something new–fill it out! And related, If you took my ICWA class at MSU Law, FILL IT OUT.

The information we are collecting isn’t confidential, but we will only distribute it as needed for those who ask.

Here.

Caveat: yes, tribal representatives are supposed to be able to participate in ICWA cases regardless of jurisdiction. However, that can be highly dependent on local judges, and if they are denied, we often need an attorney to explain why that’s wrong. In addition, whenever possible, tribes should be represented by attorneys in state courts, and especially when the case is not going well. And if there is an appeal–well, then we really need attorneys.

Thank you all very much.

APSAC Advisor Issue on ICWA

The American Professional Society on the Abuse of Children published an issue on ICWA.

Here.

Articles include:

Vandervort, The Indian Child Welfare Act: A Brief Overview to Contextualize Current Controversies

Fletcher & Fort: The Indian Child Welfare Act as the “Gold Standard”

Piper: The Indian Child Welfare Act: In the Best Interest of Children?

Piper: Response to Fletcher and Fort

Fletcher & Fort: Response to Piper

Michigan Bar Journal Article on the Michigan Indian Family Preservation Act

Norika L. Kida Betti and Cameron Ann Fraser have published “Michigan Indian Family Preservation Act at Seven Years” in the November 2019 issue of the Michigan Bar Journal.

Washington Post on Brackeen v. Bernhardt [ICWA]

Here.

In the 40 years since Congress enacted the Indian Child Welfare Act, the law has been criticized in legal challenges that have climbed all the way to the U.S. Supreme Court. But the ICWA, as the act is known, has always prevailed.

Now its constitutionality is being questioned again. On Thursday, the U.S. Court of Appeals for the 5th Circuit agreed to rehear a lawsuit filed by a non-Native American couple in Texas claiming the ICWA discriminates on the basis of race and infringes on states’ rights.

***

Kathryn Fort, a Michigan State law professor and one of the nation’s foremost ICWA experts, told The Washington Post she thinks there are more important battles to wage on behalf of children.

“Given that a federal judge this week fined Texas $50,000 a day until they fix their broken child welfare system,” Fort said, “it seems beyond the pale for them to try to continue to strike down a law that is designed to help children and families in that very system heal and reunify.”