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.


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

Erika K. v. Brett D. — Cal. Court of Appeals — Constitutionality of ICWA

The California court of appeals (1st district) reversed a lower court ruling holding that ICWA was unconstitutional as applied to the facts in the case. Here is the opinion.

An excerpt:

Mother next argues that the family court erred in concluding that Cecelia’s placement with Nicole was constitutionally insulated from the ICWA. We agree that the family court acted prematurely in finding the ICWA unconstitutional as applied to Cecelia’s custody decision. Prudent judicial restraint requires courts to avoid the unnecessary decision of constitutional issues. (E.g., Elkins v. Superior Court (2007) 41 Cal.4th 1337, 1357.) Without determining that the ICWA actually required Cecelia’s return to Mother, the family court concluded that the ICWA could not constitutionally require such a return. Under the doctrine of judicial restraint, the family court should not have proceeded to consider the constitutional question unless it had first concluded, after applying the various substantive provisions of the ICWA, that a constitutional issue actually existed. Such restraint is particularly important in these circumstances because the constitutional right invoked by the court is by no means well established. Accordingly, we must remand the matter to the family court for application of the substantive provisions of the ICWA. In doing so, we do not mean to suggest any view as to the proper outcome of this matter under the ICWA.

Slip op. at 11-12.