Morongo Band of Mission Indians

Reflections on Oral Argument in Brackeen v. Bernhardt

Kate Fort
IMG_9734
Four Intervening Tribes Leadership and Attorneys

On Wednesday, an en banc panel of 16 judges in the Fifth Circuit heard oral arguments in Brackeen v. Bernhardt. Judges Davis and Ho were not a part of the panel. The other judges, from the left side of the bench around to the right were:

Oldham
Duncan
Willett
Higginson
Haynes
Elrod
Stewart
Smith
Owen
Jones
Wiener
Dennis
Southwick
Graves Jr.
Costa
Englehart

The rest of the information is from my notes during the hearing, and I’m sure contain some mistakes that we will see when a transcript is released.

Of the 16 judges, 5 of them asked a vast majority of the questions–more than 5 questions each. Duncan asked 19, Dennis and Jones asked 11, Smith asked 7 and Costa asked 5. The federal government received 11 questions, Navajo Nation 7, and the Four Intervening Tribes 7. Texas received 19, and the Individual Plaintiffs 16. The Four Intervening Tribes received 4 additional questions on rebuttal (totals are 25 for the pro-ICWA side before rebuttal and 36 for the anti-ICWA side).

If you are trying to follow along to the audio recording, Duncan was most concerned with commandeering and recent Supreme Court commandeering questions. He also pressed Navajo Nation closely on blood quantum. Smith was the one particularly trying to understand the “exclusive” part of plenary power, and later expressed the belief that Texas dedicates scores of social workers to each child in care. And Jones asked the questions on rebuttal that has led to the most number of texts from attorneys asking me “what the [heck]?!” (which I personally thought Adam Charnes handled admirably, given all the oxygen was completely sucked out of the courtroom in that minute by a collective intake of breath).

Dennis, the judge who wrote the lower panel opinion, was the one the plaintiffs had most difficulty hearing, and was the most supportive of the law. Costa also asked skeptical questions of the plaintiffs, and wanted to know more about redressability.

Given the silence or relative silence of so many judges, it is impossible to make any predictions about the eventual opinion. We heard very little from judges who voted against en banc review in Dollar General (the pro-tribe vote), except Dennis. Elrod and Higginson both asked one question each.

Finally, in a very unscientific scroll through Westlaw, the Fifth Circuit has taken anywhere from 3 months (Moore v. Quarterman) from the granting of en banc review to the opinion to 10 months (Alvarez v. Brownsville). The granting of en banc review of Brackeen was in 11/19, so feel free to speculate amongst yourselves when you think the opinion will come out.

IMG_9034
Déjà vu all over again

Briefing Completed in Brackeen v. Bernhardt (frmly Zinke) in the Fifth Circuit [ICWA Case]

Kate Fort

Oral arguments are March 13.

Principal Briefs on the Tribal Defendant/Intervenor and Federal Side (Pro-ICWA)

Appellant Tribes Brief

Appellant Federal Parties

Navajo Nation Motion to Intervene and Proposed Brief

Amicus Briefs, Pro-ICWA

Congressional Amicus Brief

Constitutional Law Profs Brief

Casey Family Programs and Thirty Child Welfare Organizations Amicus Brief

21 State Attorneys General Amicus Brief

Indian Law Scholars Amicus Brief

325 Tribal Governments and 57 Tribal Organizations Amicus Brief

Prof. Ablavsky Amicus Brief

UKB Amicus Brief

Native American Women’s Amicus Brief

Principal Briefs on the State and Individual Plaintiff side (Anti-ICWA)

AppelleeStateBrief

IndividualPlaintiffBrief

Amicus Briefs (Anti-ICWA)

ChristianAllianceAmicus

ProjectonFairRepresentationAmicus

Goldwater Cato AAAA Amicus

OhioAmicusBrief

Reply Briefs by Tribal Intervenors and Federal Government

Appellant Tribes’ Reply Brief

Federal Reply Brief

Intervenor Navajo Nation Reply Brief

 

Media Statements and News Articles on Fifth Circuit ICWA Case

ilpc

Quote from Intervening Tribes Statement:

We applaud the broad coalition of federal lawmakers, attorneys general from 21
states, and 30 child welfare organizations who have joined 325 Tribal governments and 57 Tribal organizations in filing numerous amicus briefs with the U.S. Court of Appeals for the Fifth Circuit to defend the Constitutionality of the Indian Child Welfare Act (ICWA).

The past 96 hours have witnessed an unprecedented and overwhelming demonstration of support for ICWA and its constitutionality as a wave of amicus briefs were filed urging the Fifth Circuit to reverse the district court’s ruling in Brackeen v. Zinke, which erroneously deemed key provisions of ICWA as being
unconstitutional.

Passed more than 40 years ago by Congress, ICWA was designed to reverse decades of cultural insensitivity and political bias that had resulted in one-third of all Indian children being forcibly removed by the government from their families, their tribes and their cultural heritage.

ICWA ensures the best interests and wellbeing of Native American children are protected. ICWA preserves the stability and cohesion of Tribal families, Tribal communities and Tribal cultures. It maintains and reinforces the political and cultural connections between an Indian child and his or her tribe.

 

Statements here

Articles here (and some are behind paywalls)

Merits and Amicus Briefs Filed in Brackeen et al v. Zinke et al. Yesterday

Matthew L.M. Fletcher

Multiple parties and amici filed strong briefs in the Brackeen v. Zinke case in the Fifth Circuit yesterday. Twenty-one state attorneys general filed an amicus brief in support of the law, as did 325 tribal nations and 57 tribal organizations. 30 child welfare organizations also signed on to the Casey Family Programs “gold standard” brief. Law professors from more than 20 law schools signed on to the three law professor amicus briefs.

Appellee states and individual plaintiffs will file theirs by February 6. Oral arguments are expected the week of March 11.

Merits

Four Intervening Party Tribes

Federal Appellant Brief

Amicus Briefs

Constitutional Law Professors Amicus Brief

Congressional Amicus Brief

Casey Family Programs and Thirty Child Welfare Organizations

21 State Attorneys General

Indian Law Scholars

325 Tribal Governments and 57 Tribal Organizations Amicus Brief

Prof. Ablavsky Amicus Brief

Women’s Brief

UKB Brief

Statement from the Four Intervening/Appellant Tribes on the Stay of the Texas v. Zinke Decision

Kate Fort

Joint Tribal Statement re Fifth Circuit Stay 12.3.18

We applaud the Fifth Circuit Court of Appeals for staying a recent ruling in Texas that struck down the Indian Child Welfare Act (ICWA). This stay decision protects children from potential abuse and forced separation from their families.

As a result, tribal families and their children in Texas and Indiana will continue to be protected from the types of abusive child welfare practices that Congress outlawed 40 years ago when it enacted ICWA.

By granting the stay, the protections provided by ICWA will remain in full force pending an appeal of the ruling handed down in October by a federal judge in the Northern District of Texas.

The Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Indian Nation will continue to defend Native children and Native families by advocating for the constitutionality of ICWA by all available means. We strongly believe the ruling holding the Indian Child Welfare Act is unconstitutional was wrong, will ultimately be reversed on appeal, and as a result, the rights of Indian children, families and communities protected by the Indian Child Welfare Act will be affirmed and reinforced.

Four Intervening Tribes in Texas v. Zinke ICWA Case File Notice to Appeal and Motion to Stay in Fifth Circuit

ilpc

New Fifth Circuit page here.

Tribal Motion for Stay Pending Appeal

Finally, the district court’s ruling will cause significant inconsistency throughout the country. As this Court noted in Bryant, when issuing a stay, “[t]he inevitable disruption that would arise from a lack of continuity and stability in this important area of the law” will harm the parties and “the public interest at large.” Id.

Texas v. Zinke Update: Stay Denied; Navajo Nation Files Motion to Intervene

ilpc

In Texas v. Zinke, the ICWA case in the northern district of Texas, the district court judge denied the four intervening defendant tribes’ motion to stay the decision. There has been no stay request filed in the Fifth Circuit nor a notice of appeal.

Navajo Nation filed a motion to intervene for the purpose of appeal.

Statement from Partnership for Native Children explaining the stay is here.

Case page is here, media page is here.

Texas v. Zinke (ICWA Challenge) April Update

Kate Fort

There were some thirty entries on the Texas v. Zinke docket this month. Relevant documents are on the case page.

Since our last update, the feds filed another motion to dismiss. The plaintiffs’ seperated into private and state parties for briefing–so the state plaintiffs have filed one brief, and the individual plaintiffs filed another (up to 70 pages each). Both, however, filed a combined opposition to the government’s motion to dismiss and motions for summary judgment.

Ohio and Goldwater have filed amicus briefs on the opposition to the motion to dismiss.

Navajo Nation motioned to intervene for the purpose of a Rule 19 dismissal.

The federal government and the plaintiffs are going back and forth on the scheduling of additional briefing, but there are no orders yet.

Friday Job Announcements

Sarah M Donnelly1 Comment

Job vacancies are posted on Friday. Some announcements might still appear throughout the week. If you would like your Indian law or leadership job posted on Turtle Talk, please email indigenous@law.msu.edu.

Southern Ute Indian Tribe

Legal Department Director, Ignacio, C.O. Will lead a well-established staff of three Tribal Attorneys, a Deputy Director, and a Legal Assistant. Position closes at 5:00 pm Mountain Standard Time on 12/18/2017.

Native American Program of Legal Aid Services of Oregon (NAPOLS)

Tribal Domestic Violence/Sexual Assault Program Specialist, limited-duration, Portland, O.R. Will work with the Burns Paiute Tribe to strengthen the Tribe’s response to DV, SA, dating violence, and stalking.

Havasupai Tribe

Chief Judge, Supai, A.Z. Presides over a broad range of civil and criminal cases for the Havasupai Tribal Court.

Sac & Fox Tribe of the Mississippi in Iowa

Associate Judge, Tama, I.A. Responsible for fairly and impartially hearing and deciding judicial cases and matters at the Trial Court level within the jurisdiction of the Sac and Fox Tribal Court pursuant to the Sac and Fox Tribe of the Mississippi in Iowa tribal laws, codes, rules and regulations.

Morongo Band of Mission Indians

Tribal Attorney, Banning, C.A. Represents the interests of the Morongo Tribe, Morongo Tribal Government, Morongo Tribal Administration, and Morongo Tribal programs, including but not limited to direct representation in tribal and state court of Morongo Tribal government / programmatic interests as directed by the In House General Counsel.

Sitka Tribe of Alaska

Family Law Attorney, Sitka, A.K. Provides holistic legal representation to Native American victims of domestic violence and sexual assault – Salary DOE –  Full-time benefitted. Grant-funded position that will begin in January 2018 and continue for approximately three years. Applicants should submit a cover letter, resume, and writing sample to naomi.palosaari@sitkatribe-nsn.gov or by mail to Sitka Tribe of Alaska, 456 Katlian St., Sitka, AK 99835. Electronic applications preferred. First review November 27th, 2017.

Ho-Chunk Nation

Tribal Attorney, Black River Falls, W.I. Performs a wide variety of legal work representing the Nation as a government, its departments, boards, and commissions. The Tribal Attorney will prepare pleadings for hearings and other legal proceedings, perform legal research, provide court representation; and other duties as assigned. Applicants may visit the Ho-Chunk nation website to apply.

Kilpatrick Townsend & Stockton LLP

Associate, Native American Affairs Group, Washington, D.C. Seeking to hire an associate with 1-3 years of experience and a background or interest in Indian law and litigation.

Department of the Interior

Supervisory-Attorney Adviser, Federal and Indian Royalties Section, Office of the Solicitor, Lakewood, C.O. Oversees the provision of legal services to the offices and programs of the ONRR with particular emphasis on legal issues related to the appropriate interpretation and implementation of the Federal Oil and Gas Royalty Management Act of 1982 (FOGRMA), codified as amended at 30 U.S.C. §§ 1701 et seq., and what is commonly known as the Mineral Leasing Act of 1920, codified as amended at 30 U.S.C. §§ 181 et seq.

Other jobs posted this week:

Alaska Fellow, Native American Rights Fund (11/29/2017)

Previous Friday Job Announcements: 11/17/2017