Here is the opinion in Rosalind M. v. State of Alaska:
Indian Child Welfare Act
Arizona COA Issues ICWA Decision . . . And Its Not Great
Here is the opinion in In re Guardianship of A.K.
California SCT Issues Two Opinions Ordering Conditional Reversal under Cal-ICWA for Failure of the State Agency to Conduct an Adequate Inquiry on Whether the Child is Indian
Here is opinion in In re Dezi C.
Available briefs:
Calif Counties Assn Amicus Brief
California Appellate Defense Counsel Amicus Brief
Here is the opinion in Kenneth D. that holds an appellate court may not consider postjudgment evidence to determine whether a trial court’s error was harmless.
Available briefs:
Minnesota COA Rejects Equal Protection Challenge to ICWA/State ICWA
Here is the opinion in the Matter of the Welfare of the Children of L.K. and A.S.:
Available briefs:
Michigan COA Decision on Standard of Review of Michigan Official’s Consent to Adoption of Indian Child
Daniel Rice on Civil Duties and Public Change
Daniel B. Rice has posted “Civil Duties and Public Change,” forthcoming in the California Law Review, on SSRN.
Here is the abstract:
What duties do Americans owe the state? Today, this question seems almost incomprehensible. Compulsions in the common interest are received coolly in our rights-obsessed culture, and the Supreme Court has never announced a framework for identifying the burdens of citizenship. Yet the concept of civic duty has played a central role in America’s constitutional tradition. From shoveling snow to repairing roads to fighting overseas, private individuals have long been forced to serve the public in ways menial and profound. Strangely, the discourse of obligation that legitimated numerous compulsions has largely faded from professional view. Judges’ mawkish tributes to liberty pay no heed to the magnitude of state-ordered servitude.
This collective forgetting has not eliminated the need to reason about civic duties, however. Courts continue to review compulsions grounded in contested visions of social obligation. In ruling on the Affordable Care Act’s individual mandate, for example, the Supreme Court seriously impeded Congress from implementing novel conceptions of civic duty. This hostility closely tracks a leading scholarly account of civic duties as fixed by historical tradition. According to this narrative, living Americans are powerless to alter the basic obligations of citizenship.
This Article corrects the historical record by documenting how civic duties have developed over time. The evidence reveals that these obligations are constantly in motion; society has constructed, reshaped, and discarded them in decades-long struggles over the meaning of freedom. Put simply, the duties of citizenship are not fixed features of our constitutional order. They are necessarily—and properly—responsive to moral and cultural change. These findings undercut the Court’s use of rigid historical methodologies for reviewing laws that tacitly presume the existence of duties owed to the public. Most prominently, abortion restrictions compel women to continue their pregnancies in service of state-defined goals. And a panoramic view of civic duties casts new light on congressional efforts to preserve Indian tribes as flourishing governments. The federal Indian Child Welfare Act draws conceptual support from compulsory education and military conscription, both of which have long prioritized communal survival over individual choice.
UConn Law Review Symposium — Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience [October 6, 2023]
Here:
The Connecticut Law Review invites you to their 2023 symposium: Interrogating Haaland v. Brackeen: Family Regulation, Constitutional Power, and Tribal Resilience The litigation that led to Haaland v. Brackeen threatened to take down not only the Indian Child Welfare Act, but vast swaths of federal Indian policy and federal law. Instead, the Supreme Court’s decision left ICWA unscathed and affirmed the constitutional relationship between tribal nations and the United States. But threats to Native families and tribal sovereignty continue. Native children continue to be removed from their communities by a market for adoptable children. A handful of states and interest groups continue to seek ways to challenge tribal authority and federal laws that support it. And because the Supreme Court held that the Brackeen plaintiffs lacked standing to raise their equal protection challenges to ICWA, those claims can be raised another day. Leading scholars, attorneys, and tribal leaders will explore these and other issues raised by the decision in this symposium.
Arizona State NDN Law Students Win National Writing Prizes + Publish in the ASU Law Journal
Here is the news item on the prizes. And here are the articles:
Noah Goldberg published “Indian Embryos as ‘Indian Children’?” in the Arizona State Law Journal (PDF). Here is an excerpt:
This Comment argues that ICWA protections should apply to human embryos in all states that reject pure property regimes for embryo disposition. Otherwise, personhood regimes would serve as an end-run around ICWA.34 Once personhood regimes treat embryos as persons or create rules implementing family law before the birth of a child, inevitable tensions arise with ICWA. Not applying ICWA protections to these regimes would undermine the spirit of ICWA and create an unacceptable legal loophole to circumvent the rights of tribes, Indian parents, and Indian children. However, ICWA would not have to apply at the embryo-disposition stage in states that adopt pure property regimes because future parental rights are not determined at the dissolution stage. Part II surveys ICWA, its purpose, and its protections. Part III explores the current state of embryo-disposition laws and focuses on the newly passed Arizona personhood disposition regime. Part IV analyzes how ICWA should interact with personhood regime states and examines the risks that personhood states pose to tribes, Indian families, and the spirit of ICWA. Part V concludes that the best way forward is to reject personhood regimes in favor of pure property regimes or stringently impose ICWA protections at the embryo-disposition stage in personhood states whenever substantive family law is adjudicated.
Claire Newfeld has published “Indian Boarding School Deaths and the Federal Tort Claims Act: A Route to a Remedy” in the Arizona State Law Journal (PDF).
An excerpt:
With such somber results expected from the American investigation, tribes deserve a remedy that will make them as close to whole as possible. There are several potential remedies that tribes and families can pursue, such as filing a lawsuit or lobbying for relief in Congress. The United States must listen to Native communities in determining what remedy will provide the most opportunity for healing and reparation. This Comment will attempt to contribute to that dialogue by arguing that, should the affected parties seek relief through litigation, they possess valid wrongful-death or negligence causes of action14 under the Federal Tort Claims Act (“FTCA” or “Act”).
Fletcher Draft Paper: “Federal Indian Law as Method”
Please check out “Federal Indian Law as Method,” likely forthcoming in the University of Colorado Law Review. Here is the abstract:
This Essay is written in the shadow of a series of noxious attacks on core principles of federal Indian law, most notoriously Haaland v. Brackeen, a challenge to the constitutionality of the Indian Child Welfare Act (ICWA). The Supreme Court did not reach the merits of the equal protection challenges, but during oral argument, several judges expressed skepticism that Congressional Indian affairs enactments that grant privileges or preferences to Indian people could survive scrutiny under an equal protection analysis. Justice Kavanaugh, one of the judges most interested in the equal protection claims, wrote separately to highlight these issues, asserting that “the equal protection issue is serious.”
The parties siding with ICWA’s constitutionality argued to the Court that the Mancari case is a guide, whereas the opponents to ICWA’s constitutionality wanted to Court to ignore the case altogether. This Essay is a full-throated defense of the Mancari as a method of constitutional interpretation. Not only is the Mancari method correct, it is also the only justifiable method. This Essay proceeds with a short background on federal Indian law and its default interpretative rules. Next, the Essay surveys the application of and challenges to the Mancari method. Finally, the Essay concludes with a comparison of the methods proposed to replace or displace the Mancari method.
This Essay was prepared for the 31st Annual Rothgerber Symposium at Colorado Law School.
Alex Pearl on ICWA in the Multiverse
M. Alexander Pearl has published “The Indian Child Welfare Act in the Multiverse” in the Michigan Law Review.
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