Events @ Michigan State on Indigenous Peoples Day
Partnership for Native Children PR on Texas ICWA Case
Partnership for Native Children Decries Anti-ICWA Decision
Calls judge’s ruling ‘an outlier, out of step with the law and constitutional jurisprudence’
The Partnership for Native Children strongly disagrees with and is disturbed by Judge O’Connor’s decision in Brackeen v. Zinke which has stricken down the Indian Child Welfare Act (ICWA) four decades after it was enacted. This is the first decision of its kind, and is an outlier—out of step with the law and decades of constitutional jurisprudence.
With the support and guidance of a longstanding coalition of anti-ICWA activists, the plantiffs in Brackeen want to remove ICWA’s provisions that protect against removing Native children from their parents and culture, leaving unfettered access to Native children. Not content with that outcome, they wish to undermine the U.S. Constitution and centuries of established law by eradicating tribes’ Constitutionally-protected relationship with the United States government.
Although this decision is limited in application, it serves as a roadmap for other ICWA litigation intending to overturn ICWA and we should expect future litigation seeking to undermine tribal sovereignty and federal Indian law writ large.
Emboldened by the Adoptive Couple v. Baby Girl decision in 2013, these anti-ICWA forces—led by the adoption industry, religious coalitions, and a conservative think tank—have spent years bringing forth suit after suit in courts throughout the country, sometimes even using identical briefs in different forums, all in the attempt to have ICWA declared unconstitutional. After losing each case, due in part to their outrageous contention that ICWA is a race-based law (it is not), they have finally found a judge in the United States District Court for the Northern District of Texas sympathetic to their arguments.
While they choose to ignore thousands of testimonials from Native families who assert that those who will be most hurt by this decisions are our most sacred and vulnerable children, the Partnership for Native Children stands with Indian Country and affirms that we will continue to fight for them. We support legal efforts to appeal this unprecedented decision. We will work tirelessly to demand the media cover these issues thoroughly and responsibly. And we will work closely with those children, families, and tribes who want their perspectives finally included in the national dialogue about the best interests of our children. Their voices have been ignored for far too long.
The Partnership for Native Children refuses to go back to those the days where tribal children were removed simply because of cultural misunderstandings, for financial gain, and due to pure prejudice. We also refuse to let extremist groups use our children as a tool to undermine the foundations of Indian law and tribal sovereignty.
The Partnership for Native Children remains unwavering in our commitment to defend the constitutionality of ICWA by all available means and will continue to work in support of tribes and Native people throughout the country to ensure that Native children, families, and tribes are protected.
Here is our press release.
California Tribal Families Coalition Press Release on Texas ICWA Case
U.S. District Court Decision Puts Native American Children and Families at Risk
The California Tribal Families Coalition joined others nationwide in expressing disappointment over the ruling.
In an unprecedented ruling that threatens Native American children and families, U.S. District Court Judge Reed O’Connor in the Northern District of Texas declared the federal Indian Child Welfare Act (ICWA) unconstitutional in an opinion in Brackeen et. al. v. Zinke, filed October 4, 2018.
While unnerving, attorneys fighting for ICWA say the decision is not applicable throughout the United States. Rather, it is limited in scope and will likely be stayed pending appeal. The decision from a U.S. District Court in Texas is not applicable in California.
The Indian Child Welfare Act (ICWA) is a 40-year old remedial statute that protects Indian children, families and tribes. The original complaint was filed by adoptive parents and supported by Texas, Indiana and Louisiana, and the decision is contrary to Congressional intent, the Constitution and decades of well-established Indian law.
California Attorney General Xavier Becerra, leading a bipartisan coalition of Attorneys General, filed an amicus brief in the case to defend the ICWA. ICWA sets specific child welfare rules designed to ensure that cases regarding abuse, neglect and adoption involving Native American children are handled in a culturally appropriate manner.
“Those of us who were raised in Indian Country, those of us who raise our children on the reservations, those of us who know Indian families – we know that ICWA protects our children. This targeted and well-financed attack on ICWA only reminds tribes of the long and tortured history we have endured in the United States,” Robert Smith, chairman of the California Tribal Families Coalition and the Pala Band of Mission Indians.
About the California Tribal Families Coalition.
Comprised of tribes and tribal leaders from across the state, the California Tribal Families Coalition’s mission is to promote and protect the health, safety and welfare of tribal children and families, which are inherent tribal governmental functions and are at the core of tribal sovereignty and tribal governance. For information, please visit https://www.caltribalfamilies.org
Contact: Delia M. Sharpe, CTFC Executive Director, 916-583-8289 ordelia.sharpe@caltribalfamilies.org
Nisqually Tribal Council Member Willie Frank III and Attorney Ann Tweedy to Speak at Seattle U.
In honor of Indigenous Peoples Day, Nisqually Tribal Council Member Willie Frank III and I will be speaking at Seattle U. at noon on Monday on the Ongoing Invisibility of Native and Tribal Rights. More information here.
Montana Law Review Browning Symposium Keynote Speaker: Judge Diane Humetewa
Montana Law Review Browning Symposium Panel #3: Tribal Sovereignty
Friday Job Announcements
Job vacancies are posted on Fridays. Any posts received prior to 12pm EST on Friday will appear in that Friday’s announcements. If you would like to submit a post for an open Indian law or leadership job, please send a brief description of the position and a PDF job announcement to indigenous@law.msu.edu.
Udall Foundation
Native American Congressional Internship, Washington D.C. This fully funded, ten-week summer internship offers distinctive opportunities for Native American and Alaska Native students who are interested in learning more about the federal legislative process while gaining an insider’s view of the government’s unique trust relationship with tribes. The application deadline is January 31, 2019. Please visit the job description for more information.
Waséyabek Development Company, LLC
Administrative Assistant, Grand Rapids, MI. WDC is a legal entity, created and wholly owned by the Nottawaseppi Huron Band of the Potawatomi. The position is responsible for providing administrative support to WDC and subsidiary companies. Assist with scheduling and calendaring of meetings, travel arrangements and expense reports. Provide graphics and formatting for presentations and provide a broad variety of administrative duties. Please see the job description for more information.
Tribal Law and Policy Institute
(2) Program Specialists, West Hollywood, CA. The Tribal Law and Policy Institute (TLPI) is a Native American operated non-profit corporation organized to design and deliver education, research, training, and technical assistance programs which promote the enhancement of justice in Indian country and the health, well-being, and culture of Native peoples. Responsibilities will primarily focus on the Tribal Healing to Wellness Court Training and Technical Assistance (TTA) Program. Submissions should be sent to Jessica Harjo, Operations Director, at jessica@tlpi.org. Application deadline: October 26, 2018 5:00pm PST. Please see the job description for more information.
World Intellectual Property Organization
2019 Indigenous Fellowship Program. WIPO has launched a Call for Expressions of Interest to be the next WIPO Indigenous Fellow. In line with the WIPO Indigenous Fellowship Program, the new WIPO Indigenous Fellow will be appointed for one year, renewable once for another year. Please note that the deadline for submitting expressions of interest has been extended until October 8, 2018.
Northwest Justice Project
Staff Attorney, Mount Vernon, WA. The Skagit Justice Project is a collaboration between NJP and Skagit Domestic Violence and Sexual Assault Services (SDVSAS) in an innovative program to provide legal services and advocacy to victims of sexual assault, domestic violence, dating violence and stalking throughout Skagit County. Provide outreach, legal representation, and collaboration with DVSAS and community agencies to improve victim services to underserved Skagit County communities, including immigrants, tribal members, migrant workers and isolated rural residents. Work closely with a DVSAS legal advocate and community groups to lower challenges to access such as language barriers and lack of information about legal rights. The position is funded by a 3-year grant. Please see the description for more information.
The Rincon Band of Luiseño Indians, Office of the Attorney General
2019 Summer Law Internship, Valley Center, CA. Seeking one or two law students who have completed at least one year of law school in an ABA accredited institution. This internship will offer the opportunity to obtain practical knowledge and experience regarding both tribal and federal Indian law. The selected law student(s) will assist the Attorney General with preparing legal memoranda on a wide-variety of legal matters handled by the office, and researching and drafting Tribal ordinances, policies and resolutions. This position is full-time, working remotely from home with some scheduled on-reservation attendance required. Application closes November 19, 2018. Please see the full description for application details.
Frederick Peebles & Morgan LLP
Associate Attorney, Sacramento, CA. FPM has developed a reputation as aggressive litigators, advocates, and accomplished negotiators. Our dynamic team offers a diverse skill set and are able to tackle the toughest and most complex issues facing tribal governments, tribal corporations, and Native Americans. Candidates must possess strong academic credentials as well as excellent organization, research, writing, and analytical skills. In addition, membership to the California State Bar is required. To be considered, please provide a cover letter, resume, and a copy of your law school transcript to: Ann Hacker, Director of Human Resources, ahacker@ndnlaw.com. Accepting applications through October 31, 2018.
Berkey Williams LLP
Indian Law Fellowship, Berkeley, CA. Our Indian Law Fellowship Program encourages recent law graduates to work in the field of Indian law and provides the Fellow with an opportunity to pursue a wide variety of projects in Indian country. The Fellowship intends to contribute to the development of the Indian law leaders of the future, whatever their career paths in the field might be. Please see the description for more information. The deadline to apply is October 12, 2018.
HOBBS, STRAUS, DEAN & WALKER, LLP
2019 Summer Law Clerk Program, Washington D.C. Hobbs Straus specializes in Federal Indian Law and has worked for over 35 years to realize positive change in Indian Country. Our attorneys are dedicated to promoting and defending tribal rights, expanding opportunities for tribes, and improving the lives of American Indians and Alaska Natives. Please see the job description for more information.
Godfrey & Kahn, S.C.
Litigation Associate, Green Bay, WI. This business law firm provides legal solutions to clients ranging from privately-held businesses to Fortune 500 companies. We seek an attorney with a minimum of two years of commercial litigation experience (trial experience a plus). Most importantly, we are looking for individuals who bring a positive attitude and team-focused approach to their work. Talented, creative, entrepreneurial, trust-worthy attorneys with a sincere commitment to living in Northeastern Wisconsin are encouraged to apply. In addition to an excellent compensation and benefit package, we offer an award-wining work environment and the opportunity to work with clients doing business both locally and around the globe. Interested candidates should submit their resumé via our website at www.gklaw.com.
The Environmental Law Institute
Intern, Washington D.C. ELI seeks individuals to support the research and publications departments of the Institute. Substantive areas of focus include: air and water quality, climate change, renewable energy, hazardous waste and brownfields, international environmental policy, sustainable land use, biodiversity conservation, wetlands management, freshwater and ocean policy, environmental health, environmental enforcement, and mining law. Applications for the spring internship will be accepted until 11:59 pm Thursday, November 15, 2018. Please direct all inquiries to internsearch@eli.org. Phone calls are not accepted. Please see the description for more information.
Blackfeet Tribe
In House Staff Attorney, Browning, MT. Seeking full time in-house attorney to represent the Tribe in administrative and civil proceedings in federal, state, and tribal forums. The staff attorney will primarily be responsible for general ligation matters, employment relations, legislative advocacy, and assisting tribal programs. Please see the job description for more information.
See posts from September 28, 2018.
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.
Turtle Talk 
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