Reflections on Oral Argument in Brackeen v. Bernhardt

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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.

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Déjà vu all over again

Oral Arguments in Gila River Indian Community v. Dept. of Child Safety et al

One of the children in this case was originally the named plaintiff in A.D. v. Washburn (also called Carter v. Washburn, or the Goldwater litigation). Goldwater is representing the foster parents in this case, now in state court. Tom Murphy, in-house at GRIC, is doing the oral argument for the tribe here.

Supreme Court Oral Advocates in Indian Law Cases

In light of supposition about the relative experience of the oral advocates that the United States utilizes in Indian law cases (more experienced advocates in opposition to tribal interests, less experienced advocates in support of tribal interests), we present Peter Vicaire’s preliminary research on the advocates that have appeared before the Supreme Court in recent decades: SCT Advocates

As with many things, there is some support for this proposition, but nothing conclusive. Here is a list since 2001.

OSG Advocates in Support of Tribal Interests (with number of SCT oral arguments prior to the argument):

Carcieri v. Salazar (2009) — Deanne Maynard (8 prior arguments)

Plains Commerce Bank (2008) — Curtis Gannon (zero prior arguments)

Wagnon (2005) — Edwin Kneedler (100+ arguments)

Sherrill (2005) — Malcomb Stewart (33 prior arguments)

Lara (2004) — Kneedler (100+)

Klamath Water Users (2001) — Malcomb Stewart (21 prior arguments)

Nevada v. Hicks (2001) — Barbard McDowell (8 prior, including 3 Indian law arguments)

Idaho v. US (2001) — David Fredericks (12 prior arguments, later argued for Long Family in PCB)

Atkinson Trading (2001) — Beth Brinkman (17 prior arguments, including 2 Indian law cases)

OSG Advocates in Opposition to Tribal Interests:

Navajo Nation II (2009) — Kneedler

Cherokee Nation v. Leavitt (2005) — Sri Srinivasan (zero)

Inyo County (2003) (opposed tribal position on Section 1983) — Barbara McDowell (14, plus 4 prior Indian law arguments)

Navajo Nation I (2003) — Kneedler

White Mountain Apache (2003) — Gregory Garre (4 prior, including 1 Indian law argument, later became SG under Bush)

Chicksaw Nation v. US (2001) — Ed DuMont (18 prior, including 1 Indian law argument, later nominated for Fed. Cir. by Obama)