Media Statements and News Articles on Fifth Circuit ICWA Case

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Quote from Intervening Tribes Statement:

We applaud the broad coalition of federal lawmakers, attorneys general from 21
states, and 30 child welfare organizations who have joined 325 Tribal governments and 57 Tribal organizations in filing numerous amicus briefs with the U.S. Court of Appeals for the Fifth Circuit to defend the Constitutionality of the Indian Child Welfare Act (ICWA).

The past 96 hours have witnessed an unprecedented and overwhelming demonstration of support for ICWA and its constitutionality as a wave of amicus briefs were filed urging the Fifth Circuit to reverse the district court’s ruling in Brackeen v. Zinke, which erroneously deemed key provisions of ICWA as being
unconstitutional.

Passed more than 40 years ago by Congress, ICWA was designed to reverse decades of cultural insensitivity and political bias that had resulted in one-third of all Indian children being forcibly removed by the government from their families, their tribes and their cultural heritage.

ICWA ensures the best interests and wellbeing of Native American children are protected. ICWA preserves the stability and cohesion of Tribal families, Tribal communities and Tribal cultures. It maintains and reinforces the political and cultural connections between an Indian child and his or her tribe.

 

Statements here

Articles here (and some are behind paywalls)

2019 Lawrence R. Baca Lifetime Achievement Award – Call for Nominations

Monica Williamson

Please consider nominating someone for the Lawrence R. Baca Lifetime Achievement Award for 2019.

Past recipients of the Baca Lifetime Achievement Award include Lawrence Baca, Professor Phil Frickey, John Echohawk, Professor David Getches, Alan Taradash, Professor Carole E. Goldberg, Tom Fredericks, Walter Echo-Hawk, Arlinda Locklear, Professor Charles Wilkinson, Professor Bill Rice, Professor Rob Williams, Professor Eric Eberhard and Heather Kendall Miller.

The award will be presented at the FBA Indian Law Conference in Sandia, NM in April 2019. The recipient must be present to receive the award. The deadline for nominations is Friday, February 15, 2019.

Please submit nominations to the Indian Law Section Nominations and Awards Committee at lawrence.baca@yahoo.com with a cc to aalaghbari@fedbar.org. Nominations should specifically address how the nominee meets the criteria for the award outlined below.

Qualifications for Lawrence R. Baca Lifetime Achievement Award:

  1. Nominee must have worked in the field of Indian law for at least twenty years as a practitioner, judge, legislator, leader, scholar or educator;
    2. Be of good standing and held in high esteem in his or her professional arena;
    3. And have made significant contributions to the field of Indian law through litigation, development of legislation, scholarship or the development of Indian law students or through tribal leadership.

The nomination submission must include:

1. A nominating letter that specifically addresses in narrative form how the nominee meets each of the three Award criteria.
2. A current resume or vitae. Reference to a website where the information can be found is not accepted as a substitute for the written narrative or resume.

The nomination submission may also include:

  1. 1-3 letters of support for the nomination.
    2. Up to 3 articles about the nominee. Please do not include articles written by the nominee.

Kevin Washburn on Federal “Deemed Approved” Gaming Compacts

Matthew L.M. Fletcher

Dean Kevin K. Washburn has posted “Agency Pragmatism in Addressing Law’s Failure: The Curious Case of Federal ‘Deemed Approvals’ of Tribal-State Gaming Compacts,” forthcoming in the Michigan Journal of Law Reform.

Here is the abstract:

In the Indian Gaming Regulatory Act of 1988 (IGRA), Congress imposed a decision-forcing mechanism on the Secretary of the Interior related to tribal-state compacts for Indian gaming. Congress authorized the Secretary to review such compacts and approve or disapprove each compact within forty-five days of submission. Under an unusual provision of law, however, if the Secretary fails to act within forty-five days, the compact is “deemed approved” by operation of law but only to the extent that it is lawful. In a curious development, this regime has been used in a different manner than Congress intended. Since the United States Supreme Court held part of IGRA unconstitutional in 1996, the Secretary declined to issue an affirmative approval or disapproval on more than seventy-five occasions—thus, allowing a compact to become approved by operation of law—but has simultaneously issued a letter setting forth legal objections to aspects of the compact. The Secretary’s creative response to a broken regulatory scheme appears to be unique, and it raises interesting questions about how the executive branch should behave in the face of legal uncertainty. It raises questions of administrative law, such as whether the Secretary’s non-action is reviewable as agency action under the Administrative Procedure Act (APA), whether the Secretary’s letter is entitled to deference, and if so, what level of deference. It also raises important questions about whether such action constitutes good policy. This Article examines some of those questions.

Updated Indian Law Bibliography by Patrick S. O’Donnell

Matthew L.M. Fletcher

Here, now titled “American Indians: Law, Politics, Culture — A Bibliography.”

Federal Judge Declines to Quash Subpoenas of Tribal General Counsel

Matthew L.M. Fletcher

Here are the materials in Wichtman v. Martorello (W.D. Mich.):

1-1 motion to quash

3 order

Koi Nation v. U.S. Dept. of Interior [Restored Lands Exception]

Kate Fort

Complaint

Answer

Brief on Motion for Summary Judgment

Response to Motion for SJ

Reply

Memorandum Opinion

The Conversation: “Historical lawsuit affirms Indigenous laws on par with Canada’s”

Matthew L.M. Fletcher

Here, by Prof. Darcy Lindberg.

Merits and Amicus Briefs Filed in Brackeen et al v. Zinke et al. Yesterday

Matthew L.M. Fletcher

Multiple parties and amici filed strong briefs in the Brackeen v. Zinke case in the Fifth Circuit yesterday. Twenty-one state attorneys general filed an amicus brief in support of the law, as did 325 tribal nations and 57 tribal organizations. 30 child welfare organizations also signed on to the Casey Family Programs “gold standard” brief. Law professors from more than 20 law schools signed on to the three law professor amicus briefs.

Appellee states and individual plaintiffs will file theirs by February 6. Oral arguments are expected the week of March 11.

Merits

Four Intervening Party Tribes

Federal Appellant Brief

Amicus Briefs

Constitutional Law Professors Amicus Brief

Congressional Amicus Brief

Casey Family Programs and Thirty Child Welfare Organizations

21 State Attorneys General

Indian Law Scholars

325 Tribal Governments and 57 Tribal Organizations Amicus Brief

Prof. Ablavsky Amicus Brief

Women’s Brief

UKB Brief

NCJFCJ Releases Enhanced Juvenile Justice Guidelines

Adrea Korthase

Here.

An article about the publication is here.

 

Unpublished Nebraska Court of Appeals Case on Active Efforts (ICWA).

Kate Fort

Here.

We rarely post unpublished ICWA cases because otherwise that’s all we would do. However, in this case involving an analysis of active efforts, the court found that:

Efforts made in this case included facilitating supervised visits, providing family support hours, drug testing, offering parenting classes to Nathaniel, placing Aviyanah in a NICWA-compliant foster home, and taking steps to enroll Aviyanah in the Rosebud Sioux tribe. Additionally, Nathaniel was provided transportation to visitations and during his job search.

Emphasis added.

This is not an active effort. This is the minimum requirement of 25 U.S.C. 1915 (placement preferences).