amicus brief – Turtle Talk

Today the Fifth Circuit Court of Appeals granted a motion that extends the filing deadline for amicus briefs in Brackeen v. Zinke by two days. This is one last call for Tribes who are interested in signing on to the tribal amicus brief in this case.

As you know, Brackeen v. Zinke is a challenge to the Indian Child Welfare Act (ICWA) in which a federal district court judge in Texas recently found ICWA to be unconstitutional. The case is currently on appeal to the Fifth Circuit Court of Appeals.

The Native American Rights Fund (NARF) and our co-counsel at Dentons have draft a tribal amicus brief to complement the arguments being made by the Tribal Defendants and our allies, including law professors, child welfare organizations, and several states. All federally recognized Tribes are invited to sign on to the brief in a show of unity. Of course, there is no cost to join this brief—any federally recognized Tribe may do so free of charge.

If your Tribe would like to sign its name to the brief, please let NARF know by tomorrow, Tuesday, January 15 at 11:00pm Alaska Time (7pm ET/8pmCT/9pmMT/10pmPT). Already more than 280 Tribes and more than 50 Indian organizations have signed on to the brief.

If your Tribe would like to sign on, we will need an email that provides the following:

A statement from an individual (chairperson, executive director, general counsel, etc.) or body (tribal council, etc.) authorized to do so, asking to be added as a signatory on the brief. A statement via email is fine; and
The full name and correct spelling of the Tribe as it should appear on the brief.

The above information should be emailed to Erin Dougherty Lynch at dougherty@narf.org and cc’d to Dan Lewerenz atlewerenz@narf.org.

Finally, if you would like a draft of the brief, please email Erin and Dan at dougherty@narf.org and lewerenz@narf.org.

Thank you again for your commitment to defending ICWA.

Erin Dougherty Lynch
Senior Staff Attorney
Native American Rights Fund

NCAI and NARF Information on Tribal Amicus Brief for Texas v. Zinke

November 26, 2018November 25, 2018ilpc

Here:

Information on the case here.

Important Indian Child Welfare Act Case, Brackeen v. Zinke, likely to be appealed to the Fifth Circuit Court of Appeals. NCAI and its partners urge tribal nations to join tribal amicus brief.

We need your help. The National Congress of American Indians (NCAI), the Association on American Indian Affairs (AAIA), the National Indian Child Welfare Association (NICWA) and the Native American Rights Fund (NARF) need your help in securing tribal nations as signatories to an amicus brief to the Fifth U.S. Circuit Court of Appeals in support of the Indian Child Welfare Act (ICWA).

The four intervening tribal nations in this case – the Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation – appreciate the work of NCAI, AAIA, NICWA, and NARF in asking that all 573 federally recognized tribal nations stand together on one brief. The ongoing amicus strategy emphasizes the importance of Indian Country speaking with one voice in our support of ICWA before the Court. One focused tribal brief also makes it more likely to be seriously considered by the Court than an approach where multiple briefs are submitted by tribal nations. Any federally recognized tribal nation, inter-tribal organization, or ICWA organization may join this brief free of charge.

Details:

· There is no cost to join the amicus brief. The ICWA attorneys at NARF and the law firm Dentons have volunteered to draft this tribal brief pro bono, as with the tribal amicus briefs before the district court and previous federal litigation.

· NARF is coordinating tribal signatories. Any tribal nation, inter-tribal organization, or ICWA organization interested in signing on to the amicus brief can contact Dan Lewerenz at lewerenz@narf.org and/or Erin Dougherty Lynch at dougherty@narf.org.

· The notice of appeal was just filed yesterday, and the briefing schedule has not yet been set. Tribes and organizations that express their interest will be notified of upcoming deadlines, and if requested will receive a draft of the brief for review in advance of filing. Instructions on how to obtain the review draft, and how to formally join the brief as a signatory tribe or organization, will follow at a later date.

Background:

In Brackeen v. Zinke, No. 4:17-cv-00868 (N.D. Texas), several individual plaintiffs and the States of Texas, Indiana, and Louisiana have sued the United States Departments of the Interior and of Health and Human Services, arguing that ICWA is unconstitutional and that the Department of the Interior’s 2016 regulations (Final Rule) violated the Administrative Procedure Act (APA).

The United States has defended ICWA and the Final Rule, and four tribal nations – Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation – have intervened as tribal defendants. (Navajo Nation also recently moved to intervene as a defendant on appeal; that motion is still pending.) On October 4, 2018, the District Court granted a decision in favor of the plaintiffs and the States, holding (1) that ICWA operates as a racial statute and violates the Constitution’s guarantee of equal protection, (2) that ICWA violates the Tenth Amendment by forcing States to carry out federal policy, (3) that ICWA includes an unconstitutional delegation of Congress’s legislative authority to tribal nations, and (4) that the Final Rule violates the APA.

This tribal brief is part of a coordinated amicus strategy among ICWA supporters that aims to present the court will all of the information it needs to reverse the district court’s erroneous decision, while hopefully avoiding unnecessary duplication with other briefs. As part of that strategy, the tribal brief will focus on three arguments: (1) It will explain the historical conditions that made ICWA necessary, and demonstrate ICWA’s continuing relevance today; (2) it will push back against the District Court’s assertion that the political relationship between the federal government and tribal nations is limited to on- and near-reservation Native people; and (3) it will explain why ICWA does not “delegate” authority to tribal nations, but rather lawfully affirms tribal nations’ authority to legislate concerning child welfare and other domestic relations.

Again, there is no cost to join this amicus brief.

Any tribal nation or organization interested in joining this brief, please contact Dan Lewerenz at lewerenz@narf.org and/or Erin Dougherty Lynch at dougherty@narf.org. NARF will share with interested tribal nations and organizations a draft brief when it is ready for circulation, and will keep them informed of all upcoming deadlines.

Thank you for your support and do not hesitate to contact Dan Lewerenz atlewerenz@narf.org and/or Erin Dougherty Lynch at dougherty@narf.org if you have any questions about the brief itself or amicus brief strategy.

NCAI Contact Info: Derrick Beetso, General Counsel, dbeetso@ncai.org

Scholars Amicus Brief in Patchak v. Zinke

September 18, 2017Matthew L.M. Fletcher

Here:

16-498 bsac Fed. Cts. and Indian Law Scholars

Background materials here.

CNIGA Amicus Brief in Saginaw Chippewa v. NLRB

March 23, 2016March 23, 2016Matthew L.M. Fletcher

Here:

CNIGA Amicus Brief

DOJ Motion for Summary Judgment and National Orgs Amicus Brief Filed in Guidelines Litigation

September 21, 2015September 20, 2015Kate Fort

Latest filings in Nat’l Council for Adoption v. Jewell:

DOJ Memorandum for Summary Judgment

A favorite footnote (5 is good too):

10 Finally, BAF does not elaborate as to why placement with an Indian child’s family or tribe could not also be “loving,” and its silence is telling. ICWA was designed as a remedy for precisely this type of bias: the stereotype held by some child-welfare advocates that Indian children will be better off placed with a non-Indian family. See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 37 (reiterating that Congress feared that application of a “white, middleclass standard” will, “in many cases, foreclose[] placement with [an] Indian family”). BAF’s misguided view is, at best, an “abstract concern” that is insufficient to create standing. See Lane, 703 F.3d at 675 (citing Simon, 426 U.S. at 40).

National Organizations (NCAI, NICWA, AAIA) Amicus Brief in Support

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