Here is the complaint in Pascua Yaqui Tribe v. EPA (D. Ariz.):
Here is the complaint in Navajo Nation v. Wheeler (D. N.M.):
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.
Here are the materials in Landreth v. United States (Fed. Cl.):
Oral arguments are March 13.
Principal Briefs on the Tribal Defendant/Intervenor and Federal Side (Pro-ICWA)
Amicus Briefs, Pro-ICWA
Principal Briefs on the State and Individual Plaintiff side (Anti-ICWA)
Amicus Briefs (Anti-ICWA)
Reply Briefs by Tribal Intervenors and Federal Government
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.
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.