5Qs for Fletcher on Haaland v. Brackeen & LDF v. Coughlin

From U of M law school, here.

An excerpt:

ICWA was always a part of my scholarly agenda, largely because ICWA is such an important part of virtually every Native person’s personal history. My writing partner and spouse Wenona Singel can trace the removals of her ancestors from the 1830s all the way to the 1970s. Our children are the first generation of children in her family to not be removed since the 1830s. I began to focus on the constitutional defense of ICWA intensely after a 2013 Supreme Court decision, Adoptive Couple v. Baby Girl, where the Court questioned the constitutionality of the Act. Within a couple years, constitutional challenges to ICWA were swarming the courts. Occasionally joined with Singel, who was using other media to tell her family’s story, I began to write systematically on each constitutional issue in an effort to push back on the narrative that ICWA was somehow constitutionally suspect. I focused on congressional Indian affairs powers, anti-commandeering and federal preemption, equal protection, and non-delegation.

An E.S.F. sketch of his dad.

This Land Special Brackeen Decision Episode

Here.

Opinion here.

SCOTUSBlog Recap of Arizona v. Navajo Opinion

Here.

Opinion and stuff here.

SCOTUS Rejects Navajo Nation’s Water Rights Trust Claim 5-4

Here is the opinion in Arizona v. Navajo Nation.

Background materials here.

A Quick Brackeen Opinion Post

The decision was written by Justice Barrett with all but Justice Thomas and Alito joining her opinion. Justices Gorsuch and Kavanaugh wrote (very different) concurrences. Justices Thomas and Alito dissented.

Essentially the Court held that ICWA is not beyond the power of Congress to effectuate, and does not violate commandeering concerns by making states follow federal law. Neither the foster parents or the state of Texas had standing to bring the equal protection arguments related to the third placement preferences. They did not rule on any merits regarding equal protection and ICWA. Gorsuch’s concurrence laying out the history of federal Indian Law and ICWA is veritable who’s who of Indian law professors. Kavanaugh’s concurrence wants us to make sure we understand there was no ruling on equal protection, only on standing to bring the claim. Justices Thomas and Alito did their usual thing.

This is, without question, a massive win. It’s a stunning victory upholding both the foundations of federal Indian law and the Indian Child Welfare Act. The original district court decision finding ICWA unconstitutional, as well as the parts of the Fifth Circuit decision finding the same, are no longer good law. There is, at this time, no major change in ICWA practice. We can talk details in the coming weeks. So for now I’ll leave you with the last sentence of the Gorsuch concurrence while we all breath a sigh of relief:

In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to
grow in their culture; and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution’s original design.

SCOTUS Affirms Constitutionality of ICWA 7-2

Here is the opinion in Haaland v. Brackeen.

More stuff here.

SCOTUS Holds 8-1 Bankruptcy Act Abrogates Tribal Immunity

Here is the opinion in Lac du Flambeau Band of Lake Superior Chippewa Indians v. Coughlin.

Lower court materials here.

Skipped History Interview of Fletcher on ICWA and the Brackeen Case: “The “Surreal” SCOTUS Case on Indian Adoptions”

Here.

Apparently, I sometimes make this face when someone says “Yoda.”

More Perfect Podcast: The Supreme Court v. Peyote

No Brackeen Decision Today

Next opinion day is June 15.

Remember, no matter what someone tells you, the Court does not suddenly or randomly release opinions. If the Court’s website doesn’t say they are releasing opinions, they are not releasing opinions that day. The website also says what time (10am) they are convening to release opinions. We absolutely do not know which opinions they will release, or how many, just that they will release some.

This alert is definitely not based on phone calls I got last Sunday.