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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As Expected, Criminal Defendant Cites Brackeen to Attack Major Crimes Act

Here is the opening brief in United States v. Jim (10th Cir.):

Jim Opening Brief

An excerpt:

There is reason to believe that the Supreme Court may be open to revisiting its holding in Antelope, and may soon have the opportunity to cast doubt on the continued vitality of Antelope. In a case unrelated to the Major Crimes Act, the Court struck down a statute that created a voting qualification that, it said, used native Hawai’ian ancestry as “a proxy for race.” Rice v. Cayetano, 528 U.S. 495, 519-20 (2000). Most recently, and after Mr. Jim’s sentencing hearing in this case, a federal district court struck down the Indian Child Welfare Act as unconstitutional because of the race-based restrictions that it places on foster care and adoption. See Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018). The court focused on the fact that the statute based Indian classification on blood, and did not “rely on actual tribal membership,” to distinguish Mancari. Id. at 533. As is clear from the appellate docket in the Fifth Circuit, Case No. 18-11479, the district court’s ruling has generated significant interest among law makers, tribal governments, non-profits, and Indian law scholars, all of whom have submitted amicus briefs. The Fifth Circuit heard oral arguments in the case on March 13 of this year. See Docket entry of March 13, 2019, Brackeen v. Barnhard, app. pending, Case No. 18-11479 (5th Cir.); Andrew Westney, “Texas AG Lauds Child Welfare Ruling, but Tribes Cry Foul,” Law360 (March 4, 2019), at https://www.law360.com/articles/1134688. Ultimately, if the district court’s decision is preserved by the Supreme Court, that would significantly undermine Antelope and open the Major Crimes Act to challenge on these grounds.

Briefing Completed in Brackeen v. Bernhardt (frmly Zinke) in the Fifth Circuit [ICWA Case]

Oral arguments are March 13.

Principal Briefs on the Tribal Defendant/Intervenor and Federal Side (Pro-ICWA)

Appellant Tribes Brief

Appellant Federal Parties

Navajo Nation Motion to Intervene and Proposed Brief

Amicus Briefs, Pro-ICWA

Congressional Amicus Brief

Constitutional Law Profs Brief

Casey Family Programs and Thirty Child Welfare Organizations Amicus Brief

21 State Attorneys General Amicus Brief

Indian Law Scholars Amicus Brief

325 Tribal Governments and 57 Tribal Organizations Amicus Brief

Prof. Ablavsky Amicus Brief

UKB Amicus Brief

Native American Women’s Amicus Brief

Principal Briefs on the State and Individual Plaintiff side (Anti-ICWA)

AppelleeStateBrief

IndividualPlaintiffBrief

Amicus Briefs (Anti-ICWA)

ChristianAllianceAmicus

ProjectonFairRepresentationAmicus

Goldwater Cato AAAA Amicus

OhioAmicusBrief

Reply Briefs by Tribal Intervenors and Federal Government

Appellant Tribes’ Reply Brief

Federal Reply Brief

Intervenor Navajo Nation Reply Brief

 

Media Statements and News Articles on Fifth Circuit ICWA Case

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)

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

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

VERY LAST CHANCE to Sign on To Tribal Amicus Brief in Fifth Circuit ICWA Case

From NARF:

Dear tribal leaders and tribal counsel,

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:

  1. 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
  2. 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

Texas v. Zinke Update: Stay Denied; Navajo Nation Files Motion to Intervene

In Texas v. Zinke, the ICWA case in the northern district of Texas, the district court judge denied the four intervening defendant tribes’ motion to stay the decision. There has been no stay request filed in the Fifth Circuit nor a notice of appeal.

Navajo Nation filed a motion to intervene for the purpose of appeal.

Statement from Partnership for Native Children explaining the stay is here.

Case page is here, media page is here.