Here is the opinion in State of Texas v. Ysleta del Sur Pueblo.
Here is “Brackeen, the Indian Child Welfare Act, and the Presentment Clause: A Very Pink Herring” on SLS blogs.
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.
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:
Amicus Briefs pro-ICWA:
Amicus Briefs anti-ICWA
Tribal Intervenor Statement here:
FOR IMMEDIATE RELEASE
November 7, 2019
Contact: Tania Mercado firstname.lastname@example.org
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.
The Tribes and U.S. did not seek any amicus support in opposing the petition for en banc review.
Here is the petition in Alabama-Coushatta Tribe of Texas v. Texas:
Whether IGRA authorizes gaming on tribal lands previously governed by trust statutes that prohibited gaming, as the National Indian Gaming Commission, the Department of the Interior, and the First Circuit have concluded, or not, as the Fifth Circuit has held.
Lower court materials here.
Plaintiffs requested an extension to their en banc petition. The Court gave them until October 1 to file.