The Court granted the petition with no limitations, so the issues are not limited the way the government and four tribes requested. Arguments will be held next term (terms start in October, so after October, 2022).
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:
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.
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
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.
Here is the opinion in Schulz v. State of New York Executive:
The Gaming Act, among other things, provided a statutory framework for regulating casino gambling within the state and effectuated three agreements entered into between the state and the Oneida Indian Nation, the Seneca Nation of Indians and the St. Regis Mohawk Tribe (hereinafter collectively referred to as the Indian Nations). Those agreements generally provided that the state would grant the Indian Nations exclusive gaming rights within their respective geographic areas in exchange for a percentage of the gaming revenues and/or support for the then proposed casino gambling referendum, which was passed by the voters at the November 2013 general election.
Here is the order approving the settlement agreement between the Oneida Indian Nation and the State of New York, and dismissing both the Cayuga Nation and Stockbridge-Munsee Community’s motions for intervention.
UPDATE — briefs are here:
Today, the Court surprised no one by denying the cert petition in Onondaga Nation v. New York. The Court did the same thing twice before, in the claims of the Cayuga and Oneida Nations. You may recall that the Second Circuit affirmed the dismissal of the Onondaga land claims using this language: “The disruptive nature of the claims is indisputable as a matter of law.” According to the Second Circuit, all Indian land claims are too disruptive to be heard on the merits, as a matter of law.
Later this year, Kate Fort, Nick Reo, and myself will publish a short paper in the Michigan Law Review’s online supplement, First Impressions, titled “Tribal Disruption and Indian Claims.” It is our intention to demonstrate that even the most disruptive tribal claims are beneficial to the governance of Indians and non-Indians alike on or near Indian country. We will expand this nub of an idea in a full-scale paper next year. We also thank Wenona Singel for her significant intellectual contributions to this idea.
Here is an excerpt:
We agree that Indian claims are inherently disruptive, and may implicate the settled expectations of state and local governments and non-Indians going back centuries, but it is empirically and categorically false that the remedies sought by tribal interests are impossible to enforce or implement in a fair or equitable manner. Every year Indian tribes settle long-standing claims against state governments and their political subdivisions that at their outset often appear intractable, if not downright impossible to remedy. The recent settlement of claims by the Oneida Indian Nation of New York, the Saginaw Chippewa Indian Tribe, and five Michigan Anishinaabe tribes demonstrates the falsehood that Indian claims are too disruptive to be remedied. These negotiated settlements powerfully illustrate that the disruption produced by Indian claims has an important function, forcing federal, state, and tribal governments to creatively seek solutions to difficult governance issues in Indian country.
We argue that ecological disruption theory offers a useful analog to the disruptive nature of Indian claims. These claims can be compared to disturbances in rivers, forests or other ecosystems. Floods, forest fire, and windstorms break down existing structures, allowing space for reorganization, diversification and new growth. Tribal claims similarly clear out a legal space for creative and improved governance institutions.
 See Settlement Agreement by the Oneida Nation, the State of New York, the County of Madison, and the County of Oneida (May 2013), available at https://turtletalk.files.wordpress.com/2013/05/142783486-oneida-indian-nation-settlement-agreement.pdf.
 See Joint Motion to Enter Order for Judgment Upon Completion of a Public Comment Period and Opportunity For the Parties To Respond, Saginaw Chippewa Indian Tribe of Michigan v. Granholm, No. 05-10296-BC (E.D. Mich., Nov. 9, 2010), available at https://turtletalk.wordpress.com/2010/11/10/saginaw-chippewa-reservation-boundaries-settlement-materials/.
 See Consent Decree, United States v. Michigan, No. 2:73-cv-00026-RAE (W.D. Mich., Nov. 2, 2007), available at https://turtletalk.wordpress.com/2007/11/07/inland-settlement-consent-decree-materials/.
Final vote was 16 for, 13 against.