We have a total of 21 pro-ICWA Amicus Briefs. Here they are in some rough categories and some VERY rough summaries. In writing this post, I became overwhelmed at this stunning array of briefs and support for ICWA.
NARF’s Tribal Government and Organizations Brief : this brief has the sign on of nearly 500 tribes and over 60 tribal organizations. It discusses ICWA as an exercise of the trust responsibility, and the political relationship of tribes.
Congressional Brief : 87 Members of Congress signed this brief defending ICWA in the four principle arguments in the case
State AG Brief : 23 states and the District of Columbia signed on to this brief, which highlights how ICWA allows and encourages tribal-state relations in the area of child welfare.
LA County Brief : from the county counsel at the largest child welfare system in the country, it discusses the importance of ICWA to LA County practice with a focus on relocation in particular
Bradshaw Brief : This brief is unique in that it primarily tells the story of Robyn Bradshaw, the grandmother who adopted her granddaughter who was the subject of the claims of the Cliffords, one of the three foster family plaintiffs in the case. Because the procedural posture of the case below, the Cliffords’ narrative of facts was allowed to go unchecked throughout the life of the case until now.
How Child Welfare Works Briefs
Family Defenders : a brief from parent attorneys/family defenders in more than 8 states, this brief discusses the constitutional rights afforded to parents and families, how those intersect with the child welfare system, and the importance of ICWA in that structure. It directly addresses the arguments made by the other side regarding the child welfare system.
American Bar Association : This brief directly takes on the contention that child welfare is the sole province of the states as well as discussing the legal complexity of the child welfare system.
Casey Family Programs and 26 Other Child Welfare and Adoption Organizations : A continuation of the original, wildly successful, “gold standard” brief from Baby Girl, this brief focuses on child welfare best practices and how ICWA creates, promotes, and supports them.
National Association of Counsel for Children and 30 Other Children’s Rights Organizations : In addition to discussion the Constitutional rights of families, this brief directly addresses how ICWA supports the best interests of children in state proceedings.
Former Foster Children : One of the briefs with a particular place in my heart, this brief allowed Native youth to tell their lived experience to the Court.
How Adoption Works Brief
Non-Native Adoptive Parents : while the plaintiffs in this case were not adoptive parents, this brief directly addresses how ICWA actually works in voluntary adoptions.
Law Professor Briefs
Ablavsky Brief : The originalism brief
Administrative and Constitutional Law Professors : this brief addresses three main issues–federal power, anti-commandeering, and delegation
Indian Law Professors : this brief focuses on the exclusive power of Congress to legislate on behalf of Indians as a political class
American Historical Association : this brief provides historical context, especially around the early efforts (or lack thereof) of state child welfare systems and Native children
American Academy of Pediatrics and the American Medical Association : ICWA works directly to address the attendant physical and emotional trauma of federal and state policies designed to destroy tribal families and extended tribal networks
American Psychological Association (specifically including the associations of Texas, Louisiana, and Indianan) and the Society of Indian Psychologists : The benefits for children of being parented by Indian adults
ACLU : ICWA is not a race based law
Constitutional Accountability Center : Originalism and anti-commandeering
National Indigenous Women’s Resource Center : The ramifications, specifically to VAWA, if “Indian” is a racial classification
Sen. Abourezk/Lakota People’s Law Project : Passage of ICWA and issues in South Dakota
Deadline is August 15 at 12pm EASTERN. If you are SIGNING ON for a tribe, email email@example.com.
If you want to know if a tribe has signed on or need a copy of the brief, feel free to harass me at firstname.lastname@example.org.
Tribes – show your support for the Indian Child Welfare Act (ICWA)! All federally recognized Tribes are invited to sign on to the Haaland v. Brackeen Tribal Amicus Brief in a show of unity and support for ICWA, Native children, and Native families.
There is no cost to join this brief and over 260 Tribes have already signed on.
Tribal Nations interested in signing the brief must do so no later than next Monday, August 15, 2022. If your Tribe would like to add its name to the brief, please reach out to NARF Senior Staff Attorney Erin Dougherty Lynch at email@example.com as soon as possible.
Please note that if your Tribe signed on to a previous brief when this case was before the Fifth Circuit, you will NOT be automatically added to this Tribal Amicus Brief―NARF still needs is an affirmative statement that your Tribal Nation would like to join the brief.
Again, please email Erin Dougherty Lynch at firstname.lastname@example.org to sign on to the brief. If you would like a copy of the brief or have questions about whether your Tribe has already signed on to the brief, please email email@example.com.
We rarely post press releases, but this exception is an important one. Here is the Gila River press release explaining more about the C.J. Jr. case that the Pacific Legal Foundation is trying to use to undermine ICWA.
PLF’s brief falsely portrays ICWA as causing delays in C.J., Jr.’s and other cases. The delays in C.J., Jr.’s case were caused not by ICWA, but the failure of the Ohio courts and child welfare agencies to timely notify the Community of the case and an unprecedented level of obstruction and bias against the Community from the court–appointed guardian ad litem (who filed two appeals of the juvenile court’s decisions and moved to delay resolution of the appeals). The Community successfully sought removal of the guardian for misconduct and bias, but only after lengthy delays. PLF is fully aware of this, as one of the attorneys who signed their amicus brief in Brackeen v. Haaland represented the guardian ad litem who was removed from the case.
This case is a little complicated regarding the name and who is filing when. The Court is keeping all of the documents under case number 21-376, which is Haaland v. Brackeen. But in its order granting cert, the Court stated that Texas and the foster families would file first, or be “top side” in the briefing schedule. The federal government and the tribes will file on August 5, and the subsequent amicus briefs on August 12.
If you are thinking about a pro-ICWA amicus brief and have not yet talked to Dan Lewerenz (firstname.lastname@example.org) at NARF now is the time to reach out. If you are a tribe looking to sign on to the tribal amicus brief, please reach out to Erin Dougherty Lynch (email@example.com), also at NARF.
Top Side Principle Briefs
Top Side Amicus Briefs