In this case, the GAL petitioned to remove the child from the mother’s care. This GAL has considerable issues with the application of ICWA:
The GAL argued that since ICWA does not explicitly
define what qualifies a witness as an expert, the juvenile
court had “discretion to determine whether a witness has
adequate qualifications to provide the proffered testimony.” Although the three therapists were not qualified to testify regarding tribal cultural standards, the GAL asserted that the court was not bound by the BIA regulations and urged the court to qualify the therapists as expert witnesses anyway . . .
The Court of Appeals instead agreed with mother and Tribe, stating:
Therefore, because the BIA is a federal administrative agency and ICWA is a federal statute, we must employ the principles articulated in Chevron to determine whether the BIA’s 2016 regulation defining “qualified expert witness” is entitled to deference.
Determining that a “qualified expert witness” “should be qualified to testify as to the prevailing social and cultural standards of the Indian child’s Tribe” is consistent with Congressional intent and is reasonable.
Unfortunately, the appellate court ultimately held that:
Although the juvenile court correctly applied Chevron
deference to the BIA’s interpretation of ICWA, it did not
correctly apply the regulation, because it rejected the GAL’s experts solely on the ground that they were not qualified to testify regarding the Tribe’s cultural standards without considering whether those standards had any actual bearing on the proposed grounds for removal. Further, the juvenile court erred in determining that Mother could claim therapist–patient privilege with respect to testimony from her therapist and the family therapist. We therefore reverse the juvenile court’s decision and remand for further proceedings consistent with this opinion.
Here are the materials in State of New Mexico v. Dept. of Interior (D. N.M.):
37 Interior Motion for Summary J
39 New Mexico Motion for Summary J
40 Pojoaque Opposition
41 New Mexico Opposition
42 Interior Opposition
43 Pojoaque Reply
44 Interior Reply
46 New Mexico Reply
48 DCT Order
Plaintiff State of New Mexico challenges the Department of the Interior and the Secretary of the Interior’s legal authority to implement regulations found in 25 C.F.R. § 291 (“Secretarial Procedures” or “Part 291 regulations”). The Secretarial Procedures, if adopted, would allow the Pueblo of Pojoaque to conduct Class III gaming on its reservation. New Mexico asks this Court to declare the Secretarial Procedures invalid because they conflict with the unambiguous terms of the Indian Gaming Regulatory Act (“IGRA”), 25 U.S.C. § 2701 et seq. and violate New Mexico’s sovereign immunity under the Eleventh Amendment.
The petition is here. This case concerns the validity of25 CFR Part 291, the procedures established by the Secretary of the Interior to act as a “Seminole fix.”
There is no serious chance the Court will grant cert in this case, unless the United States also files a petition. Even then, this is a likely case of first impression, a death knell for cert petitions.
Really, I should get out of the certiorari prediction business….
Here is the opinion.
Here is a link to our previous post that included several briefs, including the tribal brief.
Congrats to the petitioners!
The D.C. Circuit will hear oral argument in the challenge to EPA’s regulations applying to coal-fired plants, New Jersey v. EPA, on December 6, 2007. The panel includes Judges Rogers, Tatel, and Brown. The order on oral argument is here: D.C Circuit Order
Selected briefs are included below:
State Governments Opening Brief
Environmental Groups Opening Brief
Treaty Tribes Opening Brief
Brief of States Supporting EPA
State Government Reply Brief
Environmental Groups Reply Brief
Treaty Tribes Reply Brief
Here are the briefs in the Texas v. United States case re: the Class III Procedures.
Brief of Appellant
United States Brief
The opinion is here: Opinion