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.
Here is the opinion in Brackeen v. Zinke (N.D. Tex.):
Case page with briefs here.
A federal court has held that ICWA violates the equal protection component of the Fifth Amendment’s Due Process Clause, rejecting the Morton v. Mancari argument and applying strict scrutiny. The court further held that ICWA violated the Tenth Amendment’s prohibition on commandeering state legislative functions. The court more or less summarily rejected the argument that the Indian Commerce Clause authorized Congress to enact ICWA. Finally, the court struck down the ICWA regulations.
Still, there will certainly be an appeal. The case is limited only to the parties involved.
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.
Here are the updated filings in the federal ICWA case in Texas:
The federal government filed a motion to dismiss, here.
But THEN, Plaintiffs filed (another) amended complaint–here.
It’s about 8 pages longer than the previous complaint, and adds the Department of Health and Human Services, the Secretary of the Department, and the United States as defendants. While the complaint still requests the court find all of ICWA unconstitutional and unenforceable, it also broadens the discussion beyond 1915 placement preferences to the collateral challenge provisions in 1913 and 1914. The complaint also still contends that certain provisions of IV-B and IV-E (parts of the Social Security Act) are not enforceable–those that purportedly link state compliance with ICWA to federal funding.
The feds will file another (slightly longer) motion to dismiss, and it will be here as soon as it is available.
However, the court has ALSO granted the tribal motion for intervention, available here.
The plaintiffs in the ICWA suit out of the federal court in Texas asked for time to file an amended complaint. It’s here. Case page is here.
Additional state parties are Indiana and Louisiana. Additional children involved are from White Earth and Ysleta del sur Pueblo.
A word of warning–I swore at the complaint by paragraph 4.
ETA: This interesting (related?) article out of Indiana: DCS Director Resigns
California Tribal Families Coalition, News Release Tribal Coalition Urges Attorneys General to Protect Tribal Children
A coalition of California tribes and leaders today urged state attorneys general across 18 states and U.S. territories to stand with tribes in support of the Indian Child Welfare Act (ICWA) as it faces an outrageous legal challenge that seeks to unwind decades of critical legal protections for tribal children and families.
The letter sent on November 4, 2017 by the Sacramento-based California Tribal Families Coalition to the Conference of Western Attorneys General comes on the heels of an Oct. 25th federal lawsuit filed by the State of Texas and two foster care parents challenging the constitutionality of the ICWA.
California Daily Journal, Critics Distort Indian Child Welfare Law.
Law 360, New Indian Child Welfare Act Challenges On The Horizon
The Texas v. Zinke documents are here.
(I have seen and am choosing not to post the recent National Review op-ed by Tim Sandefur.)
Complaint here (northern district of Texas).
Additional documents will be posted here.
Plaintiffs thus bring this action for declaratory and injunctive relief and pray that this court:
(1) vacate and set aside the Final Rule;
(2) declare that Sections 1901–1923 and 1951–1952 of ICWA violate the Constitution;
(3) declare that Section 1915 of ICWA violates the Constitution;
(4) enjoin the defendants from implementing or administering Sections 1901–1923 and 1951–1952 of ICWA; and
(5) enjoin the defendants from implementing or administering Section 1915 of ICWA.
Here are the relevant materials in MCI Communications Services Inc. v. Arizona Telephone Co. (N.D. Tex.):
37 Tribal Telecommunications Companies Motion to Dismiss
49 Final Tribal Reply
50 DCT Order
In this action by two interexchange carriers (“IXCs”) seeking relief related to access fees that local exchange carriers (“LECs”) charge the IXCs to provide access services for wireless intraMTA calls, three defendants move to dismiss under Fed. R. Civ. P. 12(b)(1) based on tribal immunity. For the reasons explained, the court grants the motion and also grants plaintiffs leave to replead.
Here are the materials in Remenar v. Office of Dana Scarp (D. D.C.), where the court dismissed a mandamus petition of a non-lawyer seeking admission to practice claiming to be licensed by the fake “Karluk Tribal Court” out of Washington state (not to be confused with the federally recognized Indian nation in Alaska):
Petition for Mandamus Relief
Judge Leon Opinion
And here are materials in Mr. Remenar’s criminal case in Texas:
State of Texas v. Remenar Removal Petition
We’ve posted materials on the people claiming to represent this fake tribal court and fake tribe here, here, here, here, here, and here.
Here is the opinion in In re Cash (N.D. Tex.):
In re Cash
Cash’s request that he be recognized as a member of the “Aboriginal Cherokee Choctaw” tribe is frivolous. This alleged tribe does not appear to be a recognized Indian tribe and appears, instead, to be related to the “Redemptionist” and/or “sovereign citizen” beliefs that have been discussed at some length by other federal courts. See Johnson-Bey v. Lane, 863 F.2d 1308, 1309 (7th Cir. 1998) (outlining the Moorish movement, which utilizes the suffixes “El” and “Bey” in names to refer to African tribes); Minister Truth Ali Williams v. New Jersey, 2012 U.S. Dist. LEXIS 150195, 2012 WL 4959488, at *1-3 (D.N.J. Oct. 17, 2012) (discussing in depth pleadings that refer to Cherokee Choctaw Aboriginal Nation and its relationship with Moorish movement). Therefore, Cash’s request that the court legally recognize him as a member of this “tribe” fails to state a claim upon which relief may be granted.