Supreme Court

Cert Stage Materials in Lopez v. Quaempts

Matthew L.M. Fletcher

Here:

Petition for Writ of Certiorari.pdfDownload
Brief in Opposition.pdfDownload

Questions presented:

  1. Whether this Court, to allow for more complete state court tort remedies against individual tribal employees, as indicated in Lewis v. Clarke, 137 S. Ct. 1285 (2017), should clarify existing tribal sovereign immunity law to allow tort vic- tims to sue a tribe based on vicarious lia- bility when a tribe ratifies individual tribal employees’ actions giving rise to the state tort claims.
  2. Whether the lower court’s refusal to rec- ognize a tribe’s ratification of tribal em- ployees’ allegedly tortious acts, as an express waiver of sovereign immunity im- permissibly interferes with states’ rights to award remedies to tort victims.

Lower court materials here.

Goony

Amicus Briefs in Haaland v. Brackeen

Kate Fort

We have a total of 21 pro-ICWA Amicus Briefs. Here they are in some rough categories and some VERY rough summaries. In writing this post, I became overwhelmed at this stunning array of briefs and support for ICWA.

Government Briefs

NARF’s Tribal Government and Organizations Brief : this brief has the sign on of nearly 500 tribes and over 60 tribal organizations. It discusses ICWA as an exercise of the trust responsibility, and the political relationship of tribes.

Congressional Brief : 87 Members of Congress signed this brief defending ICWA in the four principle arguments in the case

State AG Brief : 23 states and the District of Columbia signed on to this brief, which highlights how ICWA allows and encourages tribal-state relations in the area of child welfare.

LA County Brief : from the county counsel at the largest child welfare system in the country, it discusses the importance of ICWA to LA County practice with a focus on relocation in particular

Semi-Party Brief

Bradshaw Brief : This brief is unique in that it primarily tells the story of Robyn Bradshaw, the grandmother who adopted her granddaughter who was the subject of the claims of the Cliffords, one of the three foster family plaintiffs in the case. Because the procedural posture of the case below, the Cliffords’ narrative of facts was allowed to go unchecked throughout the life of the case until now.

How Child Welfare Works Briefs

Family Defenders : a brief from parent attorneys/family defenders in more than 8 states, this brief discusses the constitutional rights afforded to parents and families, how those intersect with the child welfare system, and the importance of ICWA in that structure. It directly addresses the arguments made by the other side regarding the child welfare system.

American Bar Association : This brief directly takes on the contention that child welfare is the sole province of the states as well as discussing the legal complexity of the child welfare system.

Casey Family Programs and 26 Other Child Welfare and Adoption Organizations : A continuation of the original, wildly successful, “gold standard” brief from Baby Girl, this brief focuses on child welfare best practices and how ICWA creates, promotes, and supports them.

National Association of Counsel for Children and 30 Other Children’s Rights Organizations : In addition to discussion the Constitutional rights of families, this brief directly addresses how ICWA supports the best interests of children in state proceedings.

Former Foster Children : One of the briefs with a particular place in my heart, this brief allowed Native youth to tell their lived experience to the Court.

How Adoption Works Brief

Non-Native Adoptive Parents : while the plaintiffs in this case were not adoptive parents, this brief directly addresses how ICWA actually works in voluntary adoptions.

Law Professor Briefs

Ablavsky Brief : The originalism brief

Administrative and Constitutional Law Professors : this brief addresses three main issues–federal power, anti-commandeering, and delegation

Indian Law Professors : this brief focuses on the exclusive power of Congress to legislate on behalf of Indians as a political class

American Historical Association : this brief provides historical context, especially around the early efforts (or lack thereof) of state child welfare systems and Native children

Medical Organizations

American Academy of Pediatrics and the American Medical Association : ICWA works directly to address the attendant physical and emotional trauma of federal and state policies designed to destroy tribal families and extended tribal networks

American Psychological Association (specifically including the associations of Texas, Louisiana, and Indianan) and the Society of Indian Psychologists : The benefits for children of being parented by Indian adults

Interest Groups

ACLU : ICWA is not a race based law

Constitutional Accountability Center : Originalism and anti-commandeering

National Indigenous Women’s Resource Center : The ramifications, specifically to VAWA, if “Indian” is a racial classification

Sen. Abourezk/Lakota People’s Law Project : Passage of ICWA and issues in South Dakota

Tribal Defendants/Intervenors Brief in Haaland v. Brackeen

Kate Fort

Merits brief on behalf of the intervening tribes–Cherokee Nation, Oneida Nation, Quinault Indian Nation, Morongo Band of Mission Indians, Navajo Nation–in the Haaland v. Brackeen Supreme Court case.

IntervenorTribeBrief

Pace yourself–she’s a long one.

Deadline to Sign on to SCOTUS Tribal Amicus Brief, Haaland v. Brackeen

Kate Fort

Deadline is August 15 at 12pm EASTERN. If you are SIGNING ON for a tribe, email dougherty@narf.org.

If you want to know if a tribe has signed on or need a copy of the brief, feel free to harass me at fort@msu.edu.

From NARF:

Tribes – show your support for the Indian Child Welfare Act (ICWA)! All federally recognized Tribes are invited to sign on to the Haaland v. Brackeen Tribal Amicus Brief in a show of unity and support for ICWA, Native children, and Native families.

There is no cost to join this brief and over 260 Tribes have already signed on. 

Tribal Nations interested in signing the brief must do so no later than next Monday, August 15, 2022. If your Tribe would like to add its name to the brief, please reach out to NARF Senior Staff Attorney Erin Dougherty Lynch at dougherty@narf.org as soon as possible.

Please note that if your Tribe signed on to a previous brief when this case was before the Fifth Circuit, you will NOT be automatically added to this Tribal Amicus Brief―NARF still needs is an affirmative statement that your Tribal Nation would like to join the brief.

Again, please email Erin Dougherty Lynch at dougherty@narf.org to sign on to the brief.  If you would like a copy of the brief or have questions about whether your Tribe has already signed on to the brief, please email fort@msu.edu.

Scholars’ Circle Interviews: Bob Miller, Liz Reese, and Fletcher on Castro-Huerta

Matthew L.M. Fletcher

Here. It’s like a podcast thing-y.

Cert Petition in Big Horn County Electric Cooperative Inc. v. Big Man

Matthew L.M. Fletcher

Here:

Big Horn Petition.pdfDownload
Big Horn Petition Appendix.pdfDownload

Question presented:

Whether an Indian tribal court has subject-matter jurisdiction to adjudicate a tribally created claim as an “other means” of regulating a nonmember federally funded and federally regulated electric cooperative tasked with providing electrical service to all customers within its service territory, including tribal members on Indian reservations?

Lower court materials here.

Update:

Big Man Brief in Opposition.pdfDownload
Reply.pdfDownload

NCAI Amicus Brief in Merrill v. Milligan

Matthew Campbell

On January 24, 2022, a unanimous three-judge court in the Milligan case blocked Alabama’s newly drawn congressional map. The Court ordered the state Legislature to draft a new congressional map that complies with the Voting Rights Act by including two districts where Black voters have the opportunity to elect candidates of their choice. The Supreme Court is now hearing the case.

Here is NCAI’s amicus brief in the matter.

ncai-21-1086_amicus-briefDownload

Dept. of Justice [almost certainly over Interior’s objections] and Arizona File Cert Petitions in Navajo Nation Water Rights Trust Suit

Matthew L.M. Fletcher

Here is the petition in Dept. of the Interior v. Navajo Nation:

US Cert Petition.pdfDownload

Question presented:

Whether the federal government owes the Navajo Nation an affirmative, judicially enforceable fiduciary duty to assess and address the Navajo Nation’s need for water from particular sources, in the absence of any substantive source of law that expressly establishes such a duty.

Here is the petition and the partial acquiescence by Justice in Arizona v. Navajo Nation:

Arizona v. Navajo Nation Cert Petition.pdfDownload
US Response — Arizona v. Navajo Nation.pdfDownload

Questions presented:

I. Does the Ninth Circuit Opinion, allowing the Nation to proceed with a claim to enjoin the Secretary to develop a plan to meet the Nation’s water needs and manage the mainstream of the LBCR so as not to in- terfere with that plan, infringe upon this Court’s re- tained and exclusive jurisdiction over the allocation of water from the LBCR mainstream in Arizona v. California?
II. Can the Nation state a cognizable claim for breach of trust consistent with this Court’s holding in Jicarilla based solely on unquantified implied rights to water under the Winters Doctrine?

Lower court materials here.

Oklahoma Spent $10M to Win a Supreme Court Case

Matthew L.M. Fletcher

Here is “Oklahoma spent millions on a legal and PR campaign to paint reservations as ‘lawless dystopias’ and convince the Supreme Court to weaken tribal sovereignty, experts say.”