Today Texas, the individual plaintiffs, the Solicitor General, and the intervening tribal nations filed petitions for certiorari with the U.S. Supreme Court asking the Court to review the Fifth Circuit decision regarding the constitutionality of the Indian Child Welfare Act. There will be some additional briefing over the next 30 days, and then/eventually the Court will decide whether to hear the case or not.
The Indian Law Clinic at MSU Law represents the intervening tribes in this case.
All briefs are here.
Intervening Tribes Press Release (released before the Tribal brief with over 400 tribal signatories):
WASHINGTON, D.C. – Today, 26 states and the District of Columbia, 75 members of Congress and more than 30 organizations filed friend-of-the-court briefs before the Fifth Circuit Court of Appeals in support of the Indian Child Welfare Act (ICWA) in Brackeen v. Bernhardt. Cherokee Nation Principal Chief Chuck Hoskin, Jr., Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Fawn Sharp issued the following statement regarding the amicus briefs:
“We are thrilled to see that more than half of all states across the country, 75 members of Congress and dozens of leading organizations are taking a stand for the best interests of Indian children and families. This continuous support from across the political spectrum is a testament to the critical role that ICWA plays in promoting the stability and security of Indian tribes and families. Together, we are fighting back against the meritless attacks on ICWA. We are confident that the Fifth Circuit will again stand on the side of families and children by upholding the law.”
The Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation and Quinault Nation are co-defendants in the case, defending the Indian Child Welfare Act (ICWA) against unwarranted attacks on the law’s constitutionality.
For more than 40 years, ICWA has provided a process for determining the best interests of Indian children in the adoption and foster care systems. The tribes are arguing to defend ICWA alongside the Trump administration, the U.S. Department of Justice, and the U.S. Department of Interior. The case will be reheard on January 22, 2020.
The amicus briefs filed by the following States – Alaska, Arizona, California, Colorado, Connecticut, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, Nevada, New Jersey, New Mexico, New York, Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Virginia, Washington and Wisconsin – as well as the District of Columbia, can be found here.
The amicus briefs from members of Congress can be found here, and the amicus briefs from leading organizations here.
Amici include organizations and political leaders from across the country spanning the political spectrum, and the U.S. states are represented by attorneys general from both the Republican and Democratic parties. They also include law professors and Native women writing in support of ICWA.
In 2017, individual plaintiffs Chad and Jennifer Brackeen, a couple from Texas, along with the state attorneys general in Texas, Louisiana, and Indiana, sued the U.S. Department of the Interior and its now-former Secretary Ryan Zinke to challenge ICWA. The Morongo, Quinault, Oneida and Cherokee tribes intervened as defendants in the case, and their recent brief can be found here.
On August 9, 2019, the Fifth Circuit Court of Appeals reaffirmed that the Indian Child Welfare Act is constitutional and serves the best interests of children and families. On October 1, 2019, plaintiffs in Brackeen v. Bernhardt chose to continue their attacks on Indian children and tribal families and requested an en banc rehearing before the Fifth Circuit, which the court granted.
There is broad, bipartisan support against this misguided attack on a law that is crucial for protecting the well-being of Indian children and Indian sovereignty. In addition to states and members of Congress, the Trump administration has strongly defended ICWA and its protections for Indian children, explaining that ICWA is an appropriate exercise of Congress’s authority to legislate in the field of Indian affairs and does not violate the Tenth Amendment or equal protection laws.
For additional information on this case and the Indian Child Welfare Act please visit: www.ProtectIndianKids.com
Documents here.
The Tribes and U.S. did not seek any amicus support in opposing the petition for en banc review.
Oral arguments are March 13.
Principal Briefs on the Tribal Defendant/Intervenor and Federal Side (Pro-ICWA)
Navajo Nation Motion to Intervene and Proposed Brief
Amicus Briefs, Pro-ICWA
Constitutional Law Profs Brief
Casey Family Programs and Thirty Child Welfare Organizations Amicus Brief
21 State Attorneys General Amicus Brief
Indian Law Scholars Amicus Brief
325 Tribal Governments and 57 Tribal Organizations Amicus Brief
Native American Women’s Amicus Brief
Principal Briefs on the State and Individual Plaintiff side (Anti-ICWA)
Amicus Briefs (Anti-ICWA)
ProjectonFairRepresentationAmicus
Reply Briefs by Tribal Intervenors and Federal Government
Intervenor Navajo Nation Reply Brief
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
unconstitutional.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.
Merits
Amicus Briefs
Constitutional Law Professors Amicus Brief
Casey Family Programs and Thirty Child Welfare Organizations
325 Tribal Governments and 57 Tribal Organizations Amicus Brief
From NARF:
Dear tribal leaders and tribal counsel,
Today the Fifth Circuit Court of Appeals granted a motion that extends the filing deadline for amicus briefs in Brackeen v. Zinke by two days. This is one last call for Tribes who are interested in signing on to the tribal amicus brief in this case.
As you know, Brackeen v. Zinke is a challenge to the Indian Child Welfare Act (ICWA) in which a federal district court judge in Texas recently found ICWA to be unconstitutional. The case is currently on appeal to the Fifth Circuit Court of Appeals.
The Native American Rights Fund (NARF) and our co-counsel at Dentons have draft a tribal amicus brief to complement the arguments being made by the Tribal Defendants and our allies, including law professors, child welfare organizations, and several states. All federally recognized Tribes are invited to sign on to the brief in a show of unity. Of course, there is no cost to join this brief—any federally recognized Tribe may do so free of charge.
If your Tribe would like to sign its name to the brief, please let NARF know by tomorrow, Tuesday, January 15 at 11:00pm Alaska Time (7pm ET/8pmCT/9pmMT/10pmPT). Already more than 280 Tribes and more than 50 Indian organizations have signed on to the brief.
If your Tribe would like to sign on, we will need an email that provides the following:
The above information should be emailed to Erin Dougherty Lynch at dougherty@narf.org and cc’d to Dan Lewerenz atlewerenz@narf.org.
Finally, if you would like a draft of the brief, please email Erin and Dan at dougherty@narf.org and lewerenz@narf.org.
Thank you again for your commitment to defending ICWA.
Erin Dougherty Lynch
Senior Staff Attorney
Native American Rights Fund
Joint Tribal Statement re Fifth Circuit Stay 12.3.18
We applaud the Fifth Circuit Court of Appeals for staying a recent ruling in Texas that struck down the Indian Child Welfare Act (ICWA). This stay decision protects children from potential abuse and forced separation from their families.
As a result, tribal families and their children in Texas and Indiana will continue to be protected from the types of abusive child welfare practices that Congress outlawed 40 years ago when it enacted ICWA.
By granting the stay, the protections provided by ICWA will remain in full force pending an appeal of the ruling handed down in October by a federal judge in the Northern District of Texas.
The Cherokee Nation, the Morongo Band of Mission Indians, the Oneida Nation and the Quinault Indian Nation will continue to defend Native children and Native families by advocating for the constitutionality of ICWA by all available means. We strongly believe the ruling holding the Indian Child Welfare Act is unconstitutional was wrong, will ultimately be reversed on appeal, and as a result, the rights of Indian children, families and communities protected by the Indian Child Welfare Act will be affirmed and reinforced.
Here:
Information on the case here.
| Important Indian Child Welfare Act Case, Brackeen v. Zinke, likely to be appealed to the Fifth Circuit Court of Appeals. NCAI and its partners urge tribal nations to join tribal amicus brief.
We need your help. The National Congress of American Indians (NCAI), the Association on American Indian Affairs (AAIA), the National Indian Child Welfare Association (NICWA) and the Native American Rights Fund (NARF) need your help in securing tribal nations as signatories to an amicus brief to the Fifth U.S. Circuit Court of Appeals in support of the Indian Child Welfare Act (ICWA). The four intervening tribal nations in this case – the Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation – appreciate the work of NCAI, AAIA, NICWA, and NARF in asking that all 573 federally recognized tribal nations stand together on one brief. The ongoing amicus strategy emphasizes the importance of Indian Country speaking with one voice in our support of ICWA before the Court. One focused tribal brief also makes it more likely to be seriously considered by the Court than an approach where multiple briefs are submitted by tribal nations. Any federally recognized tribal nation, inter-tribal organization, or ICWA organization may join this brief free of charge. Details: · There is no cost to join the amicus brief. The ICWA attorneys at NARF and the law firm Dentons have volunteered to draft this tribal brief pro bono, as with the tribal amicus briefs before the district court and previous federal litigation. · NARF is coordinating tribal signatories. Any tribal nation, inter-tribal organization, or ICWA organization interested in signing on to the amicus brief can contact Dan Lewerenz at lewerenz@narf.org and/or Erin Dougherty Lynch at dougherty@narf.org. · The notice of appeal was just filed yesterday, and the briefing schedule has not yet been set. Tribes and organizations that express their interest will be notified of upcoming deadlines, and if requested will receive a draft of the brief for review in advance of filing. Instructions on how to obtain the review draft, and how to formally join the brief as a signatory tribe or organization, will follow at a later date. Background: In Brackeen v. Zinke, No. 4:17-cv-00868 (N.D. Texas), several individual plaintiffs and the States of Texas, Indiana, and Louisiana have sued the United States Departments of the Interior and of Health and Human Services, arguing that ICWA is unconstitutional and that the Department of the Interior’s 2016 regulations (Final Rule) violated the Administrative Procedure Act (APA). The United States has defended ICWA and the Final Rule, and four tribal nations – Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation – have intervened as tribal defendants. (Navajo Nation also recently moved to intervene as a defendant on appeal; that motion is still pending.) On October 4, 2018, the District Court granted a decision in favor of the plaintiffs and the States, holding (1) that ICWA operates as a racial statute and violates the Constitution’s guarantee of equal protection, (2) that ICWA violates the Tenth Amendment by forcing States to carry out federal policy, (3) that ICWA includes an unconstitutional delegation of Congress’s legislative authority to tribal nations, and (4) that the Final Rule violates the APA. This tribal brief is part of a coordinated amicus strategy among ICWA supporters that aims to present the court will all of the information it needs to reverse the district court’s erroneous decision, while hopefully avoiding unnecessary duplication with other briefs. As part of that strategy, the tribal brief will focus on three arguments: (1) It will explain the historical conditions that made ICWA necessary, and demonstrate ICWA’s continuing relevance today; (2) it will push back against the District Court’s assertion that the political relationship between the federal government and tribal nations is limited to on- and near-reservation Native people; and (3) it will explain why ICWA does not “delegate” authority to tribal nations, but rather lawfully affirms tribal nations’ authority to legislate concerning child welfare and other domestic relations. Again, there is no cost to join this amicus brief. Any tribal nation or organization interested in joining this brief, please contact Dan Lewerenz at lewerenz@narf.org and/or Erin Dougherty Lynch at dougherty@narf.org. NARF will share with interested tribal nations and organizations a draft brief when it is ready for circulation, and will keep them informed of all upcoming deadlines. Thank you for your support and do not hesitate to contact Dan Lewerenz atlewerenz@narf.org and/or Erin Dougherty Lynch at dougherty@narf.org if you have any questions about the brief itself or amicus brief strategy. NCAI Contact Info: Derrick Beetso, General Counsel, dbeetso@ncai.org |
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