Fifth Circuit – Page 3

Gregory Ablavsky on the Presentment Clause and Tomorrow’s Argument in Brackeen

January 21, 2020Matthew L.M. Fletcher

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]

January 20, 2020Kate Fort

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

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

November 7, 2019ilpc

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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Briefing Complete in Brackeen v. Bernhardt En Banc Petition

October 24, 2019ilpc

Documents here.

The Tribes and U.S. did not seek any amicus support in opposing the petition for en banc review.

State and Individual Parties File for En Banc Review in Brackeen v. Bernhard [ICWA]

October 4, 2019ilpc

Individual Petition for EnBanc Review

State Petition for EnBanc Review

The Court has asked the federal and tribal parties for response briefs, which are due October 23rd.

Alabama-Coushatta Tribe Cert Petition in Gaming Matter

September 27, 2019December 11, 2019Matthew L.M. Fletcher

Here is the petition in Alabama-Coushatta Tribe of Texas v. Texas:

alabama-coushatta-tribe-of-texas-cert-petition.pdf

Questions presented:

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.

UPDATE:

ncai-amicus-brief.pdf

ysleta-amicus-curiae-brief.pdf

texas-bio.pdf

Deadline Update in Brackeen v. Bernhardt [ICWA]

September 18, 2019ilpc

Here

Plaintiffs requested an extension to their en banc petition. The Court gave them until October 1 to file.

Fifth Circuit: ICWA is Constitutional on All Counts

August 9, 2019ilpc

Here.

The Fifth Circuit overturned the Northern District of Texas today with strong language supporting ICWA. The Court found that the plaintiffs did have standing, but found against them on all other counts. There is a dissent forthcoming from Judge Owens.

Equal Protection:

We begin by determining whether ICWA’s definition of “Indian child” is a race-based or political classification and, consequently, which level of scrutiny applies. The district court concluded that ICWA’s “Indian Child” definition was a race-based classification. We conclude that this was error.

We disagree with the district court’s reasoning and conclude that Mancari controls here. As to the district court’s first distinction, Mancari’s holding does not rise or fall with the geographical location of the Indians receiving “special treatment.”

Anti-Commandeering:

We examine the constitutionality of the challenged provisions of ICWA below and conclude that they preempt conflicting state law and do not violate the anticommandeering doctrine.

Non-Delegation:

We find this argument unpersuasive. It is well established that tribes have “sovereignty over both their members and their territory.” See Mazurie, 419 U.S. at 557 (emphasis added)”

For a tribe to exercise its authority to determine tribal membership and to regulate domestic relations among its members, it must necessarily be able to regulate all Indian children, irrespective of their location.

Authority to Issue Regulations

Here, section 1952’s text is substantially similar to the language in Mourning, and the Final Rule’s binding standards for Indian child custody proceedings are reasonably related to ICWA’s purpose of establishing minimum federal standards in child custody proceedings involving Indian children. See 25 U.S.C. § 1902. Thus, the Final Rule is a reasonable exercise of the broad authority granted to the BIA by Congress in ICWA section 1952.

Conclusion:

For these reasons, we conclude that Plaintiffs had standing to bring all claims and that ICWA and the Final Rule are constitutional because they are based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians; ICWA preempts conflicting state laws and does not violate the Tenth Amendment anticommandeering doctrine; and ICWA and the Final Rule do not violate the nondelegation doctrine. We also conclude that the Final Rule implementing the ICWA is valid because the ICWA is constitutional, the BIA did not exceed its authority when it issued the Final Rule, and the agency’s interpretation of ICWA section 1915 is reasonable.