Haaland v. Brackeen – Page 2

A Quick Brackeen Opinion Post

June 15, 2023Kate Fort

The decision was written by Justice Barrett with all but Justice Thomas and Alito joining her opinion. Justices Gorsuch and Kavanaugh wrote (very different) concurrences. Justices Thomas and Alito dissented.

Essentially the Court held that ICWA is not beyond the power of Congress to effectuate, and does not violate commandeering concerns by making states follow federal law. Neither the foster parents or the state of Texas had standing to bring the equal protection arguments related to the third placement preferences. They did not rule on any merits regarding equal protection and ICWA. Gorsuch’s concurrence laying out the history of federal Indian Law and ICWA is veritable who’s who of Indian law professors. Kavanaugh’s concurrence wants us to make sure we understand there was no ruling on equal protection, only on standing to bring the claim. Justices Thomas and Alito did their usual thing.

This is, without question, a massive win. It’s a stunning victory upholding both the foundations of federal Indian law and the Indian Child Welfare Act. The original district court decision finding ICWA unconstitutional, as well as the parts of the Fifth Circuit decision finding the same, are no longer good law. There is, at this time, no major change in ICWA practice. We can talk details in the coming weeks. So for now I’ll leave you with the last sentence of the Gorsuch concurrence while we all breath a sigh of relief:

In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to
grow in their culture; and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution’s original design.

SCOTUS Affirms Constitutionality of ICWA 7-2

June 15, 2023June 15, 2023Matthew L.M. Fletcher

Here is the opinion in Haaland v. Brackeen.

More stuff here.

Skipped History Interview of Fletcher on ICWA and the Brackeen Case: “The “Surreal” SCOTUS Case on Indian Adoptions”

June 9, 2023Matthew L.M. Fletcher

Here.

Apparently, I sometimes make this face when someone says “Yoda.”

No Brackeen Decision Today

June 8, 2023Kate Fort

Next opinion day is June 15.

Remember, no matter what someone tells you, the Court does not suddenly or randomly release opinions. If the Court’s website doesn’t say they are releasing opinions, they are not releasing opinions that day. The website also says what time (10am) they are convening to release opinions. We absolutely do not know which opinions they will release, or how many, just that they will release some.

This alert is definitely not based on phone calls I got last Sunday.

No Brackeen Today/Observations on Foster Parent Intervention

June 1, 2023June 1, 2023Kate Fort

Next opinion day is June 8.

While we wait for Brackeen, I wanted to highlight this story from Colorado, where the Office of Respondent Parents’ Counsel has been doing great work on ICWA cases. In this case, they have collected incredibly useful data on what happens to a child protection case when foster parents intervene. This article is not ICWA specific, but the last two cases the MSU Indian Law Clinic has had on appeal are a direct result of the attempt at foster parents to intervene. In both cases, the court and agency agreed with the tribes and followed ICWA. In both cases, the foster parents sought to intervene and appealed the case. As we look past Brackeen, addressing this issue of foster parent intervention generally is vital.

Article

According to data provided by the ORPC foster parent intervention has increased in Colorado in the past decade. In 2020, 10% of Dependency and Neglect cases had Intervenors. When foster parents intervene, the chance of reunification decreases from 62% to 22% for the birth parents.
emphasis added

According to the ORPC, the average Dependency and Neglect Case costs $3,500 to litigate, but when foster parents intervene the average court cost goes up to $7,500.

No Brackeen Decision Today

May 25, 2023Kate Fort

Next opinion release day from the Supreme Court will be June 1.

While not required by law, it is traditional for the Court to release all the opinions for the term by the end of June. No one receives advance notice of when an opinion will be released, no matter what they may say. Even in the extraordinary situation of the Dobbs opinion leak, no one knew when the official opinion would be released.

NPR Code Switch Episode on ICWA (feat. Rebecca Nagle)

May 18, 2023Matthew L.M. Fletcher

SCOTUS Asks for Supplemental Briefing in Brackeen and Navajo on the Pope’s Repudiation of the Doctrine of Discovery

April 1, 2023Matthew L.M. Fletcher

Here.

Fort on Funding Tribal Systems and Brackeen

March 29, 2023March 29, 2023Kate Fort

The Family Law Quarterly Volume 56 No. 2&3 is titled “Family Law and the Supreme Court, 2022-2023.” It includes three articles on ICWA including ones by Marcia Zug and Julia Gaffney. The website is not yet updated but should be soon. Here is the full edition with all the articles:

All pages FINAL flq-v56n02-winter23-design-cc23

Here is “After Brackeen: Funding Tribal Systems”

Kathryn E. Fort article FINAL flq-v56n02-winter23-design-cc23-3

Though the Court may not issue a decision until June of 2023, the question that arises time and again is how to preemptively fix what the Court might do to ICWA and federal Indian law. If the Court accepts virtually any of Texas’s arguments, the legal landscape of federal Indian law may be fundamentally changed. At a minimum, it is likely ICWA practice will change at least in some respects. The Court’s ultimate decision, however, does not mean tribes will suddenly stop fighting to protect their children and families. In addition, advocates will continue to fight for just solutions to the massive issues created by the current child welfare system.

In order for tribes to continue that fight, there must be a solution to the funding structure in place now for tribal child welfare and justice systems. The Brackeen litigation has laid bare the importance of tribal governments administering their own child protection and justice systems separate and apart from the states. Tribal governments must have the ability to successfully secure sources of funding for tribal child welfare systems. Without significant changes to the amount of funding and the funding structure, tribes will continue to be at a massive disadvantage, and will be unable to serve their member children and families.
57 Family L. Q. 206-207