Here is the petition in Bird v. Tribal Business Council of the Three Affiliated Tribes of the Fort Berthold Indian Reservation:
Question presented:
Does inclusion of a mandatory arbitration clause in an Agreement with an Indian Tribe waive the Tribe’s sovereign immunity?
Eighth Circuit materials:
District court materials here.
Please check out “Federal Indian Law as Method,” likely forthcoming in the University of Colorado Law Review. Here is the abstract:
This Essay is written in the shadow of a series of noxious attacks on core principles of federal Indian law, most notoriously Haaland v. Brackeen, a challenge to the constitutionality of the Indian Child Welfare Act (ICWA). The Supreme Court did not reach the merits of the equal protection challenges, but during oral argument, several judges expressed skepticism that Congressional Indian affairs enactments that grant privileges or preferences to Indian people could survive scrutiny under an equal protection analysis. Justice Kavanaugh, one of the judges most interested in the equal protection claims, wrote separately to highlight these issues, asserting that “the equal protection issue is serious.”
The parties siding with ICWA’s constitutionality argued to the Court that the Mancari case is a guide, whereas the opponents to ICWA’s constitutionality wanted to Court to ignore the case altogether. This Essay is a full-throated defense of the Mancari as a method of constitutional interpretation. Not only is the Mancari method correct, it is also the only justifiable method. This Essay proceeds with a short background on federal Indian law and its default interpretative rules. Next, the Essay surveys the application of and challenges to the Mancari method. Finally, the Essay concludes with a comparison of the methods proposed to replace or displace the Mancari method.
This Essay was prepared for the 31st Annual Rothgerber Symposium at Colorado Law School.
Here.
Here.
Here is “A Win for Tribal Sovereignty.”
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.
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.
Turtle Talk 
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