Reflections on Oral Argument in Brackeen v. Bernhardt

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Four Intervening Tribes Leadership and Attorneys

On Wednesday, an en banc panel of 16 judges in the Fifth Circuit heard oral arguments in Brackeen v. Bernhardt. Judges Davis and Ho were not a part of the panel. The other judges, from the left side of the bench around to the right were:

Oldham
Duncan
Willett
Higginson
Haynes
Elrod
Stewart
Smith
Owen
Jones
Wiener
Dennis
Southwick
Graves Jr.
Costa
Englehart

The rest of the information is from my notes during the hearing, and I’m sure contain some mistakes that we will see when a transcript is released.

Of the 16 judges, 5 of them asked a vast majority of the questions–more than 5 questions each. Duncan asked 19, Dennis and Jones asked 11, Smith asked 7 and Costa asked 5. The federal government received 11 questions, Navajo Nation 7, and the Four Intervening Tribes 7. Texas received 19, and the Individual Plaintiffs 16. The Four Intervening Tribes received 4 additional questions on rebuttal (totals are 25 for the pro-ICWA side before rebuttal and 36 for the anti-ICWA side).

If you are trying to follow along to the audio recording, Duncan was most concerned with commandeering and recent Supreme Court commandeering questions. He also pressed Navajo Nation closely on blood quantum. Smith was the one particularly trying to understand the “exclusive” part of plenary power, and later expressed the belief that Texas dedicates scores of social workers to each child in care. And Jones asked the questions on rebuttal that has led to the most number of texts from attorneys asking me “what the [heck]?!” (which I personally thought Adam Charnes handled admirably, given all the oxygen was completely sucked out of the courtroom in that minute by a collective intake of breath).

Dennis, the judge who wrote the lower panel opinion, was the one the plaintiffs had most difficulty hearing, and was the most supportive of the law. Costa also asked skeptical questions of the plaintiffs, and wanted to know more about redressability.

Given the silence or relative silence of so many judges, it is impossible to make any predictions about the eventual opinion. We heard very little from judges who voted against en banc review in Dollar General (the pro-tribe vote), except Dennis. Elrod and Higginson both asked one question each.

Finally, in a very unscientific scroll through Westlaw, the Fifth Circuit has taken anywhere from 3 months (Moore v. Quarterman) from the granting of en banc review to the opinion to 10 months (Alvarez v. Brownsville). The granting of en banc review of Brackeen was in 11/19, so feel free to speculate amongst yourselves when you think the opinion will come out.

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Déjà vu all over again

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

Top 10 American Indian Law Cases of 2019

It was a busy 2018 Term at the Supreme Court. Here are the top cases (although the top case is not a Supreme Court case):

1. Brackeen v. Bernhardt — This has to be the top case, even beating out three Supreme Court cases. Foundational doctrines of Indian law are at stake, state governments are facing off against the United States, and virtually every Indian tribe has affirmed support for the Indian Child Welfare Act. After expedited briefing and argument, the Fifth Circuit reversed a decision striking down ICWA. Now the court will rehear Brackeen en banc.

2. Sharp v. Murphy (formerly Carpenter v. Murphy) — This case captured the attention of Indian country more for the procedural drama (never thought those two words would ever go together) than the merits. A death penalty appeal in which the parties (state, tribe, guy-on-death-row, and US) barely mention that fact, Murphy is a reservation boundaries case that makes for exciting, if not accurate, media (Oklahoma could return to Indian reservation status!). The parties sparred at oral argument, the Court asked for more briefing, the This Land podcast went national, the end of the Term approached, and then . . . nothing. The apparent 4-4 tie of the justices led the Court to push the case to the next Term, and then more nothing. Now the Court has granted cert in McGirt v. Oklahoma, likely to decide the same issues as Murphy but with a full complement of judges.

3. Herrera v. Wyoming — The Court ruled 5-4 that the 1868 treaty right to hunt on unoccupied lands applied to the lands of the Bighorn National Forest. The Court also conclusively overruled Ward v. Racehorse, an ancient decision holding that statehood could abrogate treaty rights.

4. Washington State Dept. of Licensing v. Cougar Den — The Court ruled 5-4, but with no majority opinion, that a treaty right to travel on highways preempted a state tax on fuels moving through grounds transportation (or alternatively, granted a right to move goods without state interference).

The rest of the cases are lower court matters ranked by number of views on Turtle Talk. Here they are:

5. Williams v. Big Picture Loans — The Fourth Circuit ruled that tribal sovereign immunity applies to tribally owned businesses that conduct internet lending operations.

6. Swinomish Tribe v. BNSF — This case is pending before the Ninth Circuit. It received outsized attention because of an order by the panel to BNSF requiring it to explain how its characterization of legal authorities, the record, and the arguments of the tribe met its duty of candor to the court.

7. Free v. Dellinger — This case in the Western District of Oklahoma sought an order enjoining tribal jurisdiction over a nonmember. The case likely received a bunch of hits because that nonmember was Kalyn Free.

8. Davilla v. Enable Midstream Partners — The Tenth Circuit last January ordered the defendant to remove a pipeline from Indian lands.

9. Spurr v. Pope — The Sixth Circuit affirmed tribal court jurisdiction to issue a civil PPO against a nonmember under the 2013 VAWA tribal jurisdictional provisions.

10. FMC Corp. v. Shoshone-Bannock Tribes — The Ninth Circuit affirmed tribal jurisdiction over a nonmember, confirming a tribal court judgment involving millions. FMC was represented by a noted SCT practitioner, so expect a serious Supreme Court challenge in 2020.

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

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.

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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.”

Fifth Circuit Grants En Banc Review of Brackeen v. Bernhardt [ICWA]

Here

Tribal Intervenor Statement here:

FOR IMMEDIATE RELEASE

November 7, 2019

Contact: Tania Mercado tmercado@skdknick.com

Native American Tribes Continue to Stand with Indian Children and Families Following Court Decision to Rehear Fifth Circuit Case

WASHINGTON, D.C. – Today, 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 in response to the Fifth Circuit Court of Appeals decision to rehear a challenge to the Indian Child Welfare Act en banc:

“We never want to go back to the days when Indian children were ripped away from their families and stripped of their heritage. We continue to believe that the Fifth Circuit decision affirming the constitutionality of ICWA was the right decision. While it is unfortunate that the attacks on this critical law continue, we are confident that the court will once again uphold the constitutionality of ICWA, as courts have repeatedly done over the past 40 years. ICWA provides a process for determining the best interests of Indian children in the adoption and foster care systems, which is why it is overwhelmingly supported across the political spectrum. We remain devoted in our efforts to defend ICWA because our number one priority remains fighting for the wellbeing, health and safety of children and families.”

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 Brackeen v. Bernhardt.

In October 2018, a federal judge in the Northern District of Texas struck down much of ICWA. Defendants appealed the lower court’s decision and asked the Fifth Circuit Court of Appeals to reverse the decision. Last December, the Fifth Circuit Court of Appeals granted a stay requested by the defendants, putting a hold on the ruling. In March 2019, the Fifth Circuit Court of Appeals heard oral arguments from plaintiffs and defendants in the Brackeen case.

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.

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. A total of 21 attorneys general, representing a broad range of states, filed an amicus brief in support of the defendants, arguing 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. The Trump administration has also reiterated its support for ICWA, tribal sovereignty and the safety of Indian children.

An additional 325 tribes, 57 tribal organizations, members of Congress, Indian law and constitutional law scholars, and 30 leading child welfare organizations have also filed friend-of-the-court briefs in support of the defendants.

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

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