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.
· 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 email@example.com and/or Erin Dougherty Lynch at firstname.lastname@example.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.
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 email@example.com and/or Erin Dougherty Lynch at firstname.lastname@example.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 email@example.com and/or Erin Dougherty Lynch at firstname.lastname@example.org if you have any questions about the brief itself or amicus brief strategy.
NCAI Contact Info: Derrick Beetso, General Counsel, email@example.com
New Fifth Circuit page here.
Finally, the district court’s ruling will cause significant inconsistency throughout the country. As this Court noted in Bryant, when issuing a stay, “[t]he inevitable disruption that would arise from a lack of continuity and stability in this important area of the law” will harm the parties and “the public interest at large.” Id.
In Texas v. Zinke, the ICWA case in the northern district of Texas, the district court judge denied the four intervening defendant tribes’ motion to stay the decision. There has been no stay request filed in the Fifth Circuit nor a notice of appeal.
Navajo Nation filed a motion to intervene for the purpose of appeal.
Statement from Partnership for Native Children explaining the stay is here.
My research has failed to uncover a single example of how removing control, jurisdiction, or authority from tribal governments improves outcomes for the AIAN population. While tribal governments are not perfect by any means, it cannot be shown with any credibility that removal of tribal government authority has improved outcomes for the American Indian population – not in policing, governance, education policy, environmental protection, or civil jurisdiction – and certainly not for child welfare.
Court documents, press statements, and news articles all organized here.
There were some thirty entries on the Texas v. Zinke docket this month. Relevant documents are on the case page.
Since our last update, the feds filed another motion to dismiss. The plaintiffs’ seperated into private and state parties for briefing–so the state plaintiffs have filed one brief, and the individual plaintiffs filed another (up to 70 pages each). Both, however, filed a combined opposition to the government’s motion to dismiss and motions for summary judgment.
Navajo Nation motioned to intervene for the purpose of a Rule 19 dismissal.
Here are the updated filings in the federal ICWA case in Texas:
The federal government filed a motion to dismiss, here.
But THEN, Plaintiffs filed (another) amended complaint–here.
It’s about 8 pages longer than the previous complaint, and adds the Department of Health and Human Services, the Secretary of the Department, and the United States as defendants. While the complaint still requests the court find all of ICWA unconstitutional and unenforceable, it also broadens the discussion beyond 1915 placement preferences to the collateral challenge provisions in 1913 and 1914. The complaint also still contends that certain provisions of IV-B and IV-E (parts of the Social Security Act) are not enforceable–those that purportedly link state compliance with ICWA to federal funding.
The feds will file another (slightly longer) motion to dismiss, and it will be here as soon as it is available.
However, the court has ALSO granted the tribal motion for intervention, available here.
Additional state parties are Indiana and Louisiana. Additional children involved are from White Earth and Ysleta del sur Pueblo.
A word of warning–I swore at the complaint by paragraph 4.
ETA: This interesting (related?) article out of Indiana: DCS Director Resigns