Wiley Files Amicus Brief in High-Profile Supreme Court Case on Behalf of Christian Alliance for Indian Child Welfare and Former ICWA Children and Families

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Oct 172021
 

October 11, 2021

Washington, DC – Wiley, a preeminent DC law firm, submitted an amicus brief to the U.S. Supreme Court on behalf of the Christian Alliance for Indian Child Welfare in Brackeen v. Haaland. The brief was filed in support of adoptive families and states in this high-profile case, which urges the Court to review a Fifth Circuit decision involving the rights of Native American children and their families under the Indian Child Welfare Act of 1978 (ICWA). The brief was joined by seven individual signatories who are former ICWA children or are parents to ICWA children, all of whom have been harmed by ICWA.

Wiley partner Stephen J. Obermeier and associate Krystal B. Swendsboe, who authored the amicus brief, are members of the firm’s Issues and Appeals Practice and are representing the nonprofit Alliance on a pro bono basis.

The case, which stems from a child-custody dispute, addresses the harm suffered by Indian children and their families as a result of ICWA – such as the denial of the full range of rights and protections of the federal and state constitutions to the petitioners when subjected to tribal jurisdiction under the ICWA.

“For nearly fifty years, ICWA has imposed race-based classifications on Indian children and their families – a clear violation of Equal Protection – and has caused horrendous individual suffering as a result,” Obermeier and Swendsboe explained in the Alliance’s brief.

As noted in the brief, this case raises particularly significant issues for Alliance because its members are birth parents, birth relatives, foster parents, and adoptive parents of children with varying amounts of Indian ancestry, as well as tribal members, individuals with tribal heritage, or former ICWA children – all of whom have seen or experienced the tragic consequences of applying ICWA’s race-based distinctions. The brief includes, as examples, stories from the individual amicus signatories who have been harmed by ICWA’s race-based distinctions and discriminatory placement preferences.

In addition to violating the U.S. Constitution’s Equal Protection Clause, the ICWA exceeds the authority granted to Congress under the Indian Commerce Clause, according to the amicus brief.

Congress “may not exercise power over family and custody matters under the guise of regulating commerce with Indian Tribes,” the brief argued. “ICWA, therefore, exceeds Congress’s power to regulate commerce, as it is entirely unrelated to commerce and intrudes on noncommercial subjects belonging entirely to the states.”

https://www.wiley.law/pressrelease-Wiley-Files-Amicus-Brief-in-High-Profile-Supreme-Court-Case-on-Behalf-of-Christian-Alliance-for-Indian-Child-Welfare-and-Former-ICWA-Children-and-Families

UPDATE: Brackeen Partial Victory for Kids, Despite Tribal Leaders Continuing Demand that Congress Retain Plenary Control OVER EVERYONE

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Apr 152021
 

Why do tribal leaders WANT Congress to have “plenary and exclusive” power over ALL tribal members? In a land where life, liberty are supposed to be guaranteed, it is so backward and insane to want “Father government” to retain complete control over your membership.

From our attorney:

The 5th Circuit’s En Banc opinion in the Brackeen case is a lengthy opinion that, in part, affirms the District Court’s ruling that portions of ICWA are unconstitutional. This is good news, but, because the En Banc Court was not able to reach a majority in their reasoning, certain swaths of the decision are not precedential. This means that the opinion, although generally positive for plaintiffs, will have limited applicability in later cases. And it may mean that a Supreme Court appeal is less likely, although it is still possible.

CAICW’s amicus argument is referenced briefly in Judge Duncan’s opinion (around page 182-183). This is typical for amicus briefs, particularly ones like CAICW’s which was highlighting a separate and tangential point for any potential Supreme Court review.

Although the opinion is complicated, it can be summarized as follows: (1) the plaintiffs have standing to assert their claims; (2) Congress had authority to enact ICWA and the “Indian Child” classification does not violate Equal Protection, but the Court could not agree as to whether ICWA’s placement preferences constituted a violation, thus the District Court’s ruling on that point is affirmed without precedential opinion; (3) portions of ICWA unconstitutionally commandeer state actors, but the Court is divided on whether other portions constitute unconstitutional commandeering, so the District Court’s ruling on those latter points is affirmed without precedential opinion; (4) ICWA’s allowing Indian tribes to establish different adoptive and foster preferences does not violate the non-delegation doctrine; and (5) although the BIA did not violated the APA, the portion of the Final Rule interpreting “good cause” violated the APA.

As for next steps, the parties have until June to seek certiorari from the Supreme Court. If they choose not to do so, the case will be returned to the District Court for further proceedings to determine the harm suffered by plaintiffs.

We will NOT be Intimidated – Send your Testimony for the Commission on Native Children

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Apr 012020
 
Phoenix Arizona

I never use alcohol or drugs – not in decades anyway – and have no intention of starting. While I struggle with ADD – which can definitely make situations more adventurous if not challenging – it hasn’t stopped me from ultimately doing what I need to.

If anyone wants a fuller listing of my faults, they can find them in the book ‘Dying in Indian Country.’ There are plenty of faults in there – (https://dyinginindiancountry.com/ ).

I have a job to finish with ICWA and fully intend to do so.

In fact – following recent events and the dishonest manipulations those events exposed – I have renewed motivation. We cannot leave our families at the mercy of those bent on political agendas, greed and/or personal power.

I have had less time to work with CAICW over the last five years or so because I was in school, working on my Master of Arts: Public Policy, then began my doctorate.

I had also toned down my work over the last three years because I had been nominated to the Commission on Native Children and was advised not to rock boats for a little while.

Well…“a little while” is done. I will no longer remain ‘toned down.’

As some of you know, we have filed Amicus briefs in the Brackeen case. With the Brackeen case and others along the pipes, we might see an end to this horrid law within a couple years. Praise God.

I have also published my Master thesis – which, at 350 pages, is a wealth of documented history from colonial times as well as legislative history and case law concerning various aspects of Indian law. You might be surprised by some of the facts that came out of that research.

“The Philosophical Underpinnings and Negative Consequences of the Indian Child Welfare Act”
https://digitalcommons.liberty.edu/masters/591/

Further, there is the Commission on Native Children. I hope each and every one of you will SUBMIT TESTIMONY.

When you consider the testimony you will be sending to the Commission on Native Children – form it as the message you know CONGRESS needs to hear.

We need genuine talk from genuine people about the best interest of their children, grandchildren, nieces, nephews, siblings, students, foster children, playmates, neighbors, “2nd Cousin’s girlfriend’s grandma’s nieces”… anyone that has anything at all to say. We need to know: What things genuinely helped the children to grow – and which things did not.

We especially need testimony from young adults that have tribal heritage – explaining what they felt helped or hurt them.

The testimony from tribal entities and their supporters, which the writers of the final report will focus on and play up, is that participation in tribal programs, tribal services, language immersion, etc, are the only way our children can be healthy and happy.

To prevent Congress from continuing to sign the lives of our children over to these tribal entities, we need Congress to accept that there is a full range of possibilities for our children – not just the politically-favored viewpoint. If the other options and experiences are not mentioned to the Commission, they won’t be included in the data as acceptable and effective avenues of healthy growth for the children.

One does not need to mention tribal programs if tribal programs haven’t been a part of that child’s experience. That is fine. One could elaborate on what the child HAS experienced as a normal part of growing up. For example – how high school sports impacted a child, or learning jazz dance, or participation in school plays, or an interest in gardening, raising sheep, playing the harp, or the child’s relationship with the church or a particular school teacher.

However, it is also important to mention experiences that were detrimental to health and growth – including whether tribal programs or services were harmful. It is very important to include those experiences if the child has had them. Congress needs to accept that this has been a reality for many, many children.

Did the above make sense? For more information, including where to send your testimony – read this post on CAICW’S blog…

https://caicw.org/2020/03/13/tell-congress-how-to-best-meet-the-needs-of-native-children/?fbclid=IwAR2WTqWCQyNB4nRsldDmjvcRV0_puANlE-9I86M4ZR10cz0M2-wu7VPJFnY

Read CAICW’s Amicus in the Brackeen ICWA case

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Feb 272019
 

…’the ICWA imposes sweeping regulations that are at best marginally related to commerce. The ICWA also intrudes on a quintessential area of state law: family and domestic matters. This intrusion obliterates the bedrock constitutional distinction between federal and local power, effectively allowing the federal government free reign to regulate however, and whatever, it wishes simply by invoking the Indian Commerce Clause. The ICWA, therefore, is an unconstitutional exercise of Congress’s authority under the Indian Commerce Clause.’

The amicus can be read here…

https://turtletalk.files.wordpress.com/2019/02/christianallianceamicus.pdf