Post on 09-Jun-2020
Case No. 18-11479
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
CHAD EVERET BRACKEEN; JENNIFER KAY BRACKEEN; STATE OF
TEXAS; ALTAGRACIA SOCORRO HERNANDEZ; STATE OF INDIANA; JASON CLIFFORD; FRANK NICHOLAS LIBRETTI; STATE OF LOUISIANA;
HEATHER LYNN LIBRETTI; DANIELLE CLIFFORD,
Plaintiffs-Appellees
vs.
DAVID BERNHARD, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR; TARA SWEENEY, in her official capacity as Acting Assistant
Secretary for Indian Affairs; BUREAU OF INDIAN AFFAIRS; UNITED STATES DEPARTMENT OF INTERIOR; UNITED STATES OF AMERICA; ALEX AZAR, in his official capacity as Secretary of the United
States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendants-Appellants
and
CHEROKEE NATION; ONEIDA NATION; QUINAULT INDIAN NATION;
MORONGO BAND OF MISSION INDIANS,
Intervenor Defendants-Appellants
Appeal from the United States District Court for the Northern District of Texas
Case No. 4:17-CV-00868-O, Hon. Reed O’Connor, presiding
MOTION FOR LEAVE TO FILE BRIEF AMICI CURIAE OF THE
GOLDWATER INSTITUTE, TEXAS PUBLIC POLICY FOUNDATION, AND CATO INSTITUTE IN SUPPORT OF PETITIONER AND
IN SUPPORT OF REHEARING EN BANC
Case: 18-11479 Document: 00515150741 Page: 1 Date Filed: 10/08/2019
Timothy Sandefur
Scharf-Norton Center for
Constitutional Litigation at the
GOLDWATER INSTITUTE
500 E. Coronado Rd.
Phoenix, Arizona 85004
(602) 462-5000
litigation@goldwaterinstitute.org
Ilya Shapiro
CATO INSTITUTE 1000 Massachusetts Ave. N.W.
Washington, D.C. 20001
(202) 842-0200
ishapiro@cato.org
Robert Henneke
TEXAS PUBLIC POLICY
FOUNDATION 901 Congress Ave.
Austin, Texas 78701
(512) 472-2700
rhenneke@texaspolicy.com
Attorneys for Amici Curiae
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1
IDENTITY AND INTEREST OF AMICI
The Goldwater Institute (GI) was established in 1988 as a nonpartisan public
policy and research foundation dedicated to advancing the principles of limited
government and individual rights through litigation, research papers, editorials,
policy briefings and forums. Through its Scharf-Norton Center for Constitutional
Litigation, GI litigates and files amicus briefs when its or its clients’ objectives are
directly implicated, and is recognized as one of the nation’s leaders in defending
the rights of Native American children and parents against the unconstitutional
burdens imposed upon them by the Indian Child Welfare Act (ICWA). GI’s Equal
Protection for Indian Children project is devoted to reforming the federal and state
legal treatment of Native American children subject to ICWA and has litigated and
appeared as an amicus in many cases nationwide involving ICWA, including
Carter v. Tahsuda, 743 Fed. Appx. 823 (9th Cir. 2018), cert. denied sub nom.
Carter v. Sweeney, 139 S. Ct. 2637 (May 28, 2019); Gila River Indian Cmty. v.
Dep't of Child Safety, 395 P.3d 286 (Ariz. 2017); In re T.A.W., 383 P.3d 492
(Wash. 2016); R.P. v. L.A. Cnty. Dep’t of Children & Family Servs., 137 S. Ct. 713
(2017); S.S. v. Colo. River Indian Tribes, 138 S. Ct. 380 (2017); Renteria v.
Cuellar, No. 2:16-CV-01685-MCE-AC, 2016 WL 7159233 (E.D. Cal. Dec. 8,
2016). GI scholars have also published extensive research on the well-intentioned
but profoundly flawed workings of ICWA. See, e.g., Mark Flatten, Death on a
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2
Reservation, Goldwater Institute (2015)1; Timothy Sandefur, Escaping The ICWA
Penalty Box: In Defense of Equal Protection for Indian Children, 37 Child. Legal
Rts. J. 1 (2017); Timothy Sandefur, Recent Developments in Indian Child Welfare
Act Litigation: Moving Toward Equal Protection? 23 Tex. Rev. L. & Pol. 425
(2019).2 GI appeared as amicus in this case in both the district court and before the
panel of the Court of Appeals.
The Cato Institute (Cato) is a nonpartisan public-policy research foundation
established in 1977 and dedicated to advancing the principles of individual liberty,
free markets, and limited government. Cato’s Robert A. Levy Center for
Constitutional Studies was established in 1989 to help restore the principles of
limited constitutional government that are the foundation of liberty. Toward those
ends, Cato publishes books and studies, conducts conferences, produces the annual
Cato Supreme Court Review, and files amicus briefs in this and other courts.
Cato’s experts have published extensively on ICWA, see, e.g., Walter Olson, The
Constitutional Flaws of the Indian Child Welfare Act, Reason.com, Apr. 22, 20133;
Walter Olson, This Isn’t the Way to Protect Families’ Rights, Cato Unbound, Aug.
1 https://www.flipsnack.com/9EB886CF8D6/final-epic-pamplet.html. 2 https://drive.google.com/file/d/1KpwaHc50-Iv7oKH8_17I8YWjPpY-
XZUU/view. 3 https://www.cato.org/publications/commentary/constitutional-flaws-indian-child-
welfare-act.
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10, 2016,4 and Cato has appeared as amicus in important ICWA cases. See, e.g.,
R.P. v. L.A. Cnty. Dep’t of Children & Family Servs., 137 S. Ct. 713 (2017). Cato
appeared as amicus in this case in both the District Court and before the panel in
the Court of Appeals.
The Texas Public Policy Foundation (TPPF) is a non-profit, nonpartisan
research organization founded in 1989 and dedicated to promoting liberty, personal
responsibility, and free enterprise through academically-sound research and
outreach. In accordance with its central mission, the Foundation has hosted policy
discussions, authored research, presented legislative testimony, and drafted model
ordinances to reduce the burden of government on Texans. Through its Center for
Families and Children, TPPF pursues policies that will preserve families, improve
foster care, and protect parents and children from unjustified, often
counterproductive, government interference. TPPF appeared as amicus in this case
in both the District Court and before the panel in the Court of Appeals.
THE COURT SHOULD GRANT THE
MOTION TO APPEAR AS AMICUS CURIAE
“An amicus brief should normally be allowed … when the amicus has
unique information or perspective that can help the court beyond the help that the
4 https://www.cato-unbound.org/2016/08/10/walter-olson/isnt-way-protect-
families-rights.
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lawyers for the parties are able to provide.” Cmty. Ass’n for Restoration of Env't
(CARE) v. DeRuyter Bros. Dairy, 54 F. Supp. 2d 974, 975 (E.D. Wash. 1999).
Given the amici’s expertise and experience with regard to ICWA, and their
familiarity with the constitutional issues, amici believe their legal expertise and
public policy experience will assist this Court in its consideration of this motion.
The proposed brief addresses some significant flaws in the reasoning of the panel
opinion and explains why it is critically important for the en banc court to review
the panel’s decision. The brief demonstrates that the theory on which the panel
relied—that ICWA is premised on a child’s genetic eligibility for a future political
association, is actually just another way of saying that ICWA imposes a national
origin-based classification, which is subject to the same strict scrutiny that racial
classifications are subject to. The brief also explains some of the logical fallacies
committed by the panel.
No counsel for any party authored the proposed amicus brief in whole or in
part and no person or entity, other than the amici, their members, or counsel, made
a monetary contribution to the preparation or submission of this brief.
RESPECTFULLY SUBMITTED this 8th day of October 2019 by: /s/ Timothy Sandefur Timothy Sandefur (033670) Scharf-Norton Center for
Constitutional Litigation at the GOLDWATER INSTITUTE
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5
/s/ Ilya Shapiro Ilya Shapiro
CATO INSTITUTE /s/ Robert Henneke Robert Henneke TEXAS PUBLIC POLICY FOUNDATION
Attorneys for Amici Curiae
CERTIFICATE OF COMPLIANCE
1. This document complies with the type-volume limit of Federal Rule of
Appellate Procedure 32(g) because it contains 831 words.
2. This document likewise complies with the typeface requirements of Rule
32(a)(5) and the type-style requirements of Rule 32(a)(6) because it has been
prepared in proportionally spaced typeface using Microsoft Office Word 2016 in
14-point Times New Roman font.
Dated: October 8, 2019
/s/ Timothy Sandefur
TIMOTHY SANDEFUR
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CERTIFICATE OF CONFERENCE
I certify that Amici GI et al., have conferred with counsel for all
parties regarding the filing of this brief. Counsel for states Texas, et al., and
Counsel for Plaintiffs-Appellees Brackeen, et al., stated that they have no
objection. Counsel for Cherokee Nation, et al., stated that they have no objection.
Counsel for Defendants-Appellants David Bernhard, et al., had not responded to
GI et al.’s request by the time of the filing of this motion.
/s/ Timothy Sandefur
TIMOTHY SANDEFUR
CERTIFICATE OF SERVICE
I hereby certify that on this 8th day of October 2019, the foregoing brief was
filed and served on all counsel of record via the ECF system.
/s/ Timothy Sandefur Timothy Sandefur
Case: 18-11479 Document: 00515150741 Page: 8 Date Filed: 10/08/2019
Case No. 18-11479
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
CHAD EVERET BRACKEEN; JENNIFER KAY BRACKEEN; STATE OF
TEXAS; ALTAGRACIA SOCORRO HERNANDEZ; STATE OF INDIANA; JASON CLIFFORD; FRANK NICHOLAS LIBRETTI; STATE OF LOUISIANA;
HEATHER LYNN LIBRETTI; DANIELLE CLIFFORD,
Plaintiffs-Appellees
vs.
DAVID BERNHARD, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR; TARA SWEENEY, in her official capacity as Acting Assistant
Secretary for Indian Affairs; BUREAU OF INDIAN AFFAIRS; UNITED STATES DEPARTMENT OF INTERIOR; UNITED STATES OF AMERICA; ALEX AZAR, in his official capacity as Secretary of the United
States Department of Health and Human Services; UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendants-Appellants
and
CHEROKEE NATION; ONEIDA NATION; QUINAULT INDIAN NATION;
MORONGO BAND OF MISSION INDIANS,
Intervenor Defendants-Appellants
Appeal from the United States District Court for the Northern District of Texas
Case No. 4:17-CV-00868-O, Hon. Reed O’Connor, presiding
BRIEF AMICI CURIAE OF THE GOLDWATER INSTITUTE,
TEXAS PUBLIC POLICY FOUNDATION, AND CATO INSTITUTE IN SUPPORT OF PETITIONER AND
IN SUPPORT OF REHEARING EN BANC
Case: 18-11479 Document: 00515151440 Page: 1 Date Filed: 10/08/2019
Timothy Sandefur
Scharf-Norton Center for
Constitutional Litigation at the
GOLDWATER INSTITUTE
500 E. Coronado Rd.
Phoenix, Arizona 85004
(602) 462-5000
litigation@goldwaterinstitute.org
Ilya Shapiro
CATO INSTITUTE 1000 Massachusetts Ave. N.W.
Washington, D.C. 20001
(202) 842-0200
ishapiro@cato.org
Robert Henneke
TEXAS PUBLIC POLICY
FOUNDATION 901 Congress Ave.
Austin, Texas 78701
(512) 472-2700
rhenneke@texaspolicy.com
Attorneys for Amici Curiae
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i
CERTIFICATE OF INTERESTED PARTIES
Brackeen, et al. v. Zinke, et al., No. 18-11479.
The undersigned counsel of record certifies that the following listed persons
and entities as described in the fourth sentence of Rule 28.2.1 have an interest in
the outcome of this case. These representations are made in order that the judges
of this court may evaluate possible disqualification or recusal.
Amicus Curiae on this Brief: Goldwater Institute Cato Institute Texas Public Policy Foundation
Counsel for Amicus Curiae on this Brief: Timothy Sandefur GOLDWATER INSTITUTE Ilya Shapiro CATO INSTITUTE Robert Henneke TEXAS PUBLIC POLICY FOUNDATION
None of the amici curiae on this brief has a parent corporation. No
publicly held company owns more than 10% of stock in any of the amici curiae
organizations.
Plaintiffs-Appellees: Chad Everet Brackeen Jennifer Kay Brackeen Altagracia Socorro Hernandez Jason Clifford Frank Nicholas Libretti Heather Lynn Libretti Danielle Clifford
Counsel for Plaintiffs-Appellees: Lochlan Francis Shelfer Matthew Dempsey McGill Robert E. Dunn Elliot T. Gaiser GIBSON DUNN & CRUTCHER LLP Mark Fiddler FIDDLER OSBAND, LLC
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ii
State Plaintiff-Appellees: State of Texas State of Indiana State of Louisiana
Counsel for State Plaintiff-Appellees: Ken Paxton Jeffrey C. Mateer Kyle Douglas Hawkins David J. Hacker Beth Ellen Klusmann John Clay Sullivan OFFICE OF THE ATTORNEY GENERAL – TEXAS Jeff Landry ATTORNEY GENERAL OF LOUISIANA Curtis Hill ATTORNEY GENERAL OF INDIANA
Intervenor Defendants-Appellants: Cherokee Nation Oneida Nation Quinault Indian Nation Morongo Band of Mission Indians
Counsel for Intervenor Defendants-Appellants: Adam Howard Charnes Christin J. Jones Keith Michael Harper Venus McGhee Prince Thurston Holderness Webb KIRKPATRICK TOWNSEND & STOCKTON LLP Kathryn E. Fort MICHIGAN STATE UNIVERSITY COLLEGE OF LAW
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iii
Federal Defendants-Appellants: Ryan Zinke, in his official capacity as Secretary of U.S. Dep’t of Interior David Bernhardt, Acting Secretary, U.S. Dep’t of Interior Tara Sweeney, in her official capacity as Acting Asst. Secretary for Indian Affairs Bureau of Indian Affairs Bryan Rice, Director of Bureau of Indian Affairs John Tahsuda III, Principal Asst. Secretary for Bureau of Indian Affairs U.S. Dep’t of Interior Alex Azar, in his official capacity as Secretary of the U.S. Dep’t of Health & Human Services U.S. Dep’t of Health & Human Services
Counsel for Federal Defendants-Appellants: Rachel Heron Eric Grant JoAnn Kintz Steven Miskinis Christine Ennis Ragu-Jara Gregg Amber Blaha John Turner Jeffrey H. Wood Samuel C. Alexander U.S. DEP’T OF JUSTICE Sam Ennis SOLICITOR’S OFFICE, DIV. OF INDIAN AFFAIRS U.S. DEP’T OF INTERIOR
Intervenor: Navajo Nation
Counsel for Intervenor: Colleen E. Roh Sinzdak Thomas P. Schmidt Maria Wyckoff Boyce Catherine E. Bratic HOGAN LOVELLS US, LLP Paul Spruhan Kandis Martine NAVAJO NATION DEP’T OF JUSTICE
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iv
Other Amicus Curiae: Casey Family Programs; Adopt America Network; Alaska Center for Resource Families; American Adoption Congress; Ampersand Families; Annie E. Casey Foundation; Black Administrators in Child Welfare; Center for Native American Youth at Aspen Institute; Center for Study of Social Policy; Children & Family Futures; Children’s Defense Fund; Children’s Law Center of Cal.; Children’s Law Section of the Mich. Bar Assoc.; Child Welfare League of Am.; Family Defense Center; FosterAdopt Connect; Foster Care Alumni of Am.; FosterClub; Generations United; National Advocates for Pregnant Women; National Alliance of Children’s Trust & Prevention Funds; National Assoc. of Counsel for Children; National Center on Adoption & Permanency; Nebraska Appleseed; North American Council on Adoptable Children; Northwest Adoption Exchange; Oregon Post Adoption Resource Center; Spaulding for Children; Tribal Law & Policy Inst.; Voice for Adoption; W. Haywood Burns Inst.
Counsel for Other Amicus Curiae: Roxanna Nowparast Shelley Buckholtz Jacqueline Schafer CASEY FAMILY PROGRAMS Hyland Hunt Ruthanne Deutsch DEUTSCH HUNT PLLC
American Indian Law Scholars: Robert T. Anderson UNIV. OF WASH. SCH. OF LAW Barbara A. Atwood UNIV. OF ARIZ. Bethany Berger UNIV. OF CONN. SCH. OF LAW Kristin A. Carpenter UNIV. OF COLO. LAW SCH. Matthew Fletcher MICH. STATE UNIV. COLL. OF LAW Carole Goldberg UCLA SCH. OF LAW
Matthew L.M. Fletcher MICH. STATE UNIV. COLL. OF LAW Sarah Krakoff UNIV. OF COLO.
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v
Lorie Graham HARVARD LAW SCH. Sarah Krakoff UNIV. OF COLO. LAW SCH. Angela Riley UCLA SCH. OF LAW Addie C. Rolnick UNIV. OF NEV., LAS VEGAS Alex Skibine UNIV. OF UTAH COLL. OF LAW Maylinn Smith UNIV. OF MONT. Michalyn Steele BRIGHAM YOUNG UNIV. LAW Rebecca Tsosie JAMES E. ROGERS COLL. OF LAW, UNIV. OF ARIZ. Charles Wilkinson UNIV. OF COLO. LAW SCH. States of California, Alaska, Arizona, Colorado, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Virginia, Washington, Wisconsin
Xavier Becerra Michael L. Newman Christine Chuang James F. Zahradka II Christina M. Riehl OFFICE OF ATTORNEY GENERAL OF CALIFORNIA Kevin G. Clarkson ATTORNEY GENERAL OF ALASKA Mark Brnovich ATTORNEY GENERAL OF ARIZONA Philip J. Weiser ATTORNEY GENERAL OF COLORADO Lawrence G. Wasden ATTORNEY GENERAL OF IDAHO Kwame Raoul ATTORNEY GENERAL OF ILLINOIS Thomas J. Miller
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ATTORNEY GENERAL OF IOWA Aaron M. Frey ATTORNEY GENERAL OF MAINE Maura Healey ATTORNEY GENERAL OF MASSACHUSETTS Dana Nessel ATTORNEY GENERAL OF MICHIGAN Keith Ellison ATTORNEY GENERAL OF MINNESOTA Jim Hood ATTORNEY GENERAL OF MISSISSIPPI Timothy C. Fox ATTORNEY GENERAL OF MONTANA Gurbir S. Grewal ATTORNEY GENERAL OF NEW JERSEY Hector Balderas ATTORNEY GENERAL OF NEW MEXICO Ellen F. Rosenblum ATTORNEY GENERAL OF OREGON Peter F. Neronha ATTORNEY GENERAL OF RHODE ISLAND Sean D. Reyes ATTORNEY GENERAL OF UTAH Mark R. Herring ATTORNEY GENERAL OF VIRGINIA
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vii
Robert W. Ferguson ATTORNEY GENERAL OF WASHINGTON Joshua L. Kaul ATTORNEY GENERAL OF WISCONSIN
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viii
TABLE OF CONTENTS CERTIFICATE OF INTERESTED PARTIES ...................................................... i
TABLE OF CONTENTS .................................................................................... viii
TABLE OF AUTHORITIES ................................................................................ ix
IDENTITY AND INTEREST OF AMICI CURIAE .............................................. 1
SUMMARY OF REASONS FOR GRANTING THE PETITION ....................... 1
REASONS FOR GRANTING THE PETITION ................................................... 3
I. The decision below creates a dangerous new rule that obliterates the
distinction between racial and political distinctions. ........................................ 3
II. The panel’s analysis commits several logical fallacies. ................................... 7
III. ICWA harms America’s most at-risk minority. .............................................. 8
CONCLUSION ...................................................................................................... 9
CERTIFICATE OF COMPLIANCE ................................................................... 10
CERTIFICATE OF SERVICE ............................................................................ 10
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ix
TABLE OF AUTHORITIES Cases
Brackeen v. Bernhardt, No. 18-11479,
2019 WL 3857613 (5th Cir. Aug. 9, 2019) .........................................................4, 7
Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d
1117 (9th Cir. 1998) ................................................................................................ 6
Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973) ...................................................... 5
Frontiero v. Richardson, 411 U.S. 677 (1973) .......................................................... 6
In re Abbigail A., 375 P.3d 879 (Cal. 2016) .............................................................. 3
In re Alexandria P., 204 Cal. Rptr. 3d 617 (Cal. App. 2016) .................................... 4
In re Bridget R., 49 Cal. Rptr. 2d 507 (1996) ............................................................ 9
In re Francisco D., 178 Cal. Rptr. 3d 388 (Cal. App. 2014) ..................................... 4
Morton v. Mancari, 417 U.S. 535 (1974) .................................................................. 3
Oyama v. California, 332 U.S. 633 (1948) ................................................................ 5
Rice v. Cayetano, 528 U.S. 495 (2000) .................................................................3, 7
United States v. Bryant, 136 S. Ct. 1954 (2016) ........................................................ 8
United States v. Crook, 25 F. Cas. 695 (C.C.D. Neb. 1879) (No. 14,891) ................ 6
Statutes
8 U.S.C. § 1401(b) ..................................................................................................... 2
25 U.S.C. § 1903(4) ................................................................................................... 3
25 U.S.C. § 1915(b) ................................................................................................... 8
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x
Other Authorities
Ariz. Dep’t of Child Safety, Statement on the Death of One-year-old Josiah Gishie,
Oct. 12, 2018 ........................................................................................................... 9
Elizabeth Stuart, Native American Foster Children Suffer Under a Law Originally
Meant to Help Them, Phoenix New Times, Sept. 7, 2016 ..................................... 9
Mark Flatten, Death on a Reservation, Goldwater Institute (2015) ......................2, 8
Naomi Schaefer Riley, The New Trail of Tears: How Washington is Destroying
American Indians (2016) ....................................................................................2, 9
Robert Utley, The Indian Frontier 1846-1890 (Allen Billington et al. eds., Univ. of
N.M. Press rev. ed. 2003) (1984) ............................................................................ 8
Timothy Sandefur, Escaping the ICWA Penalty Box: In Defense of Equal
Protection for Indian Children, 37 Child. Legal Rts. J. 1 (2017) .......................... 2 Bra
Regulations
25 C.F.R. § 83.11(e) ................................................................................................... 7
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1
IDENTITY AND INTEREST OF AMICI CURIAE
The identity and interest of amici curiae are set forth in the accompanying
motion for leave to file.
SUMMARY OF REASONS FOR GRANTING THE PETITION
The panel’s conclusion that the Indian Child Welfare Act (ICWA)
establishes a political classification subject to rational basis review, instead of a
racial classification subject to strict scrutiny, conflicts with Supreme Court
precedent and creates a loophole whereby the rules against racial classifications in
the law can easily be evaded. Moreover, the panel overlooked the fact that
ancestral eligibility for a future political affiliation is not itself a political
classification; it is instead synonymous with national origin, which is just as much
a suspect class as race. Applying rational basis scrutiny to what is, at a minimum,
a national origin classification has deleterious effects for the law—and for
vulnerable Indian children who are rendered more vulnerable by ICWA’s reduced
standards for child protection.
The panel’s decision is not only legally senseless, but dangerous, given that
ICWA deprives “Indian children” of the legal protections afforded them by state
law. For this class of children—defined solely by their biological ancestry—
ICWA imposes different evidentiary standards and different procedures—ones that
prevent states from protecting these children from abuse or neglect, and that make
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it harder to find them foster homes or adoptive homes when needed. See Timothy
Sandefur, Escaping the ICWA Penalty Box: In Defense of Equal Protection for
Indian Children, 37 Child. Legal Rts. J. 1 (2017). In case after case, children
subject to ICWA are denied the legal protections accorded their black, white,
Asian, or Hispanic peers, and suffer, sometimes terribly, as a consequence. See id.
at 38-40, 51–53; Mark Flatten, Death on a Reservation, Goldwater Institute
(2015).1
Indian children are not foreign nationals; they are American citizens entitled
to the equal protection of the law. 8 U.S.C. § 1401(b). They are also America’s
most vulnerable demographic. They suffer higher rates of poverty, abuse, neglect,
molestation, drug and alcohol abuse, and suicide, than any other cohort in the
nation. See generally Naomi Schaefer Riley, The New Trail of Tears: How
Washington is Destroying American Indians ch. 5 (2016). Many are in need of
foster care or adoptive homes. There are adults of all races throughout the country
ready and willing to offer them the safe, loving homes they need.
But ICWA says no, because their skin is the wrong color.
The panel’s novel legal theory dooms at-risk children to substandard legal
protections that undermine their constitutional rights. The decision should be
reviewed en banc.
1 https://www.flipsnack.com/9EB886CF8D6/final-epic-pamplet.html.
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REASONS FOR GRANTING THE PETITION
I. The decision below creates a dangerous new rule that obliterates the
distinction between racial and political distinctions.
Courts have long struggled to distinguish between laws that classify
Americans based on tribal affiliation (subject to rational basis scrutiny under
Morton v. Mancari, 417 U.S. 535 (1974)) and laws that classify them based on
race. Rice v. Cayetano, 528 U.S. 495 (2000), explained the difference: a law
which “singles out ‘identifiable classes of persons ... solely because of their
ancestry or ethnic characteristics,’” and has as its “very object” the
“preserv[ation]” of their “distinct[ness]” as racial groupings, falls on the racial,
rather than political, side of that line. Id. at 515 (citation omitted).
Under these criteria, “Indian child” status under ICWA is racial, not tribal.2
It is triggered by biological eligibility for membership, plus the status of the
biological parent. 25 U.S.C. § 1903(4). Under this rule, a child who is fully
acculturated with a tribe (practices a tribal religion, speaks a tribal language, lives
on tribal lands, etc.) would not qualify as “Indian” if she fails to satisfy the
biological profile. By contrast, a child who does meet the biological standards
2 It is important to bear in mind the difference between tribal membership—which
is entirely a function of tribal law—and “Indian child” status under ICWA, which
is a determination of federal and state law. In re Abbigail A., 375 P.3d 879, 885–
86 (Cal. 2016). While tribal law need not comply with constitutional standards,
federal and state law must.
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would qualify, even if she has no cultural, political, social, religious, or linguistic
connection to a tribe.
Under ICWA, a person like William Holland Thomas (a white man who
served as chief of the Eastern Band of the Cherokee in the nineteenth century)
would not qualify as “Indian” if he were alive today, because he lacked the sole
relevant criterion: biological ancestry. See, e.g., In re Francisco D., 178 Cal. Rptr.
3d 388, 395–96 (Cal. App. 2014) (children adopted by tribal members are not
“Indian children”). On the other hand, a child like “Lexi,” who had no cultural or
political affiliation with a tribe, qualified as “Indian” based exclusively on the
blood in her veins. See In re Alexandria P., 204 Cal. Rptr. 3d 617 (Cal. App.
2016) (child with no cultural affiliation deemed “Indian” under ICWA).
Nevertheless, the panel held that although ICWA defines “Indian child” by
reference to biological factors alone, these factors are “a proxy” for the child’s
“not-yet-formalized tribal affiliation,” and therefore create a Mancari-style
political classification. Brackeen v. Bernhardt, No. 18-11479, 2019 WL 3857613
at *10 (5th Cir. Aug. 9, 2019). No court has ever suggested that the government
can classify Americans based entirely on their biological ancestry, and nevertheless
call that a “political” classification, on the theory that the biological factors render
those people eligible for a potential political relationship in the future.
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This novel theory is irrational. Biological eligibility for membership in a
political classification is, at a minimum, a form of national-origin classification,
which is subject to the same strict scrutiny standard that applies to racial
classifications.
Classifying Americans based on their ancestral eligibility for membership in
a nation simply is “national origin” classification. As the Supreme Court held in
Espinoza v. Farah Mfg. Co., 414 U.S. 86 (1973), a “national origin” classification
is not just a classification predicated on the person’s foreign citizenship, id. at 89,
but also “refers to [classification based on] the country where a person was born,
or, more broadly, the country from which his or her ancestors came.” Id. at 88
(emphasis added). ICWA’s definition of “Indian child” does precisely that.
In Oyama v. California, 332 U.S. 633, 645 (1948), the Court found that
California’s Alien Land Act constituted a form of national origin discrimination
because it was triggered by a child’s parents’ citizenship or ancestry: “as between
the citizen children of a Chinese or English father and the citizen children of a
Japanese father, there is discrimination,” the Court said—which constituted
national origin discrimination even if it did not constitute racial discrimination.
The same principle applies here: the kind of categorization the panel referred
to as “not-yet-formalized tribal affiliation,” where that potential affiliation is based
on biological descent, is simply another way of describing national origin
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classification—which is subject to strict scrutiny. Cf. Dawavendewa v. Salt River
Project Agric. Improvement & Power Dist., 154 F.3d 1117, 1120 (9th Cir. 1998)
(discrimination based on tribal affiliation was national-origin discrimination).
Membership in a political association is fundamentally chosen and
voluntary. That is why tribal membership is political, see United States v. Crook,
25 F. Cas. 695, 699 (C.C.D. Neb. 1879) (No. 14,891) (“the individual Indian
possesses the clear and God-given right to withdraw from his tribe and forever live
away from it.”), and why classification based on it is subject to rational basis
scrutiny. By contrast, “race and national origin” are based on “immutable
characteristic[s] determined solely by the accident of birth,” Frontiero v.
Richardson, 411 U.S. 677, 686 (1973), which is why classifications made along
those lines are subject to strict scrutiny. Genetic eligibility for a “not-yet-
formalized” political association is therefore not a political classification—it is, if
not racial, at least a national origin classification. “Indian child” status under
ICWA’s two-prong test (eligibility plus the status of the biological parent) is
entirely a function of immutable factors determined by accident of birth. It cannot
be characterized as political—or, as the panel put it, as future-political-based-on-
ancestry—and subjected to rational basis review.
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II. The panel’s analysis commits several logical fallacies.
The panel also committed significant fallacies. First, it held that ICWA
establishes a political classification because a child is deemed an “Indian” child
“because his or her biological parent became a member of a tribe, despite not being
racially Indian.” Brackeen, 2019 WL 3857613 at *10. This is not true. A child
whose parent became a tribal member would qualify as “Indian” under ICWA only
if he or she were also “eligible” for tribal membership—which depends
exclusively on biological ancestry.3 A child who fails to satisfy those biological
criteria would not qualify based solely on a parent’s action. And, of course, a child
whose adopted parent became a tribal member would also not qualify.
The second fallacy came in holding that because “many racially Indian
children … do not fall within ICWA’s definition of ‘Indian child,’” it cannot create
a racial classification. Id. But “[s]imply because a class defined by ancestry does
not include all members of the race does not suffice to make the classification race
neutral.” Rice, 528 U.S. at 516–17. For example, a law that applied exclusively to
left-handed Asian people would still be a racial classification even though it
doesn’t apply to right-handed Asian people. ICWA’s combination of non-
3 It has to. Federal regulations require as a condition of federal recognition that
Indian tribes use ancestry as a criterion. 25 C.F.R. § 83.11(e).
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biological with biological criteria does not magically transform a racial
classification into a political one.
The fact that ICWA’s classification is not a political one is made clearer by
other provisions of the statute. The foster care placement requirements in 25
U.S.C. § 1915(b) and the adoption-placement requirements in Section 1915(a) both
mandate placement of children with “Indian” adults regardless of tribal affiliation.
A child of Seminole ancestry would have to be placed with, say, Inuit adults rather
than adults of white, Asian, black, or Hispanic ancestry. These provisions of
ICWA depend not on tribal affiliation, or even potential affiliation, but on the
racial category of the “generic Indian.” But the concept of “generic Indian” is
racial, not political—and arbitrarily racial at that. See Robert Utley, The Indian
Frontier 1846-1890 at 4-6 (Allen Billington et al. eds., Univ. of N.M. Press rev.
ed. 2003) (1984) (concept of generic “Indian” was “an arbitrary collectivization”
imposed by Europeans who disregarded tribal differences); cf. United States v.
Bryant, 136 S. Ct. 1954, 1968-69 (2016) (Thomas, J., concurring) (courts should
not “treat[] all Indian tribes as an undifferentiated mass.”).
III. ICWA harms America’s most at-risk minority.
It cannot be too often reiterated that ICWA deprives America’s most
vulnerable children of legal protections necessary to protect them from harm.
Flatten, supra. American Indian children are at greater risk of abuse, neglect,
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molestation, alcoholism, drug abuse, and suicide than any other demographic in the
nation. Riley, supra.
Yet instead of providing these children with stronger legal protections,
ICWA’s heavier evidentiary burdens in abuse cases requires that Indian children be
more abused for longer before state officials can rescue them. See Sandefur,
supra, at 37–42. Its heavier procedural requirements force state officials to return
abused or neglected children to parents who have wronged them—sometimes
resulting in worse abuse. See, e.g., Ariz. Dep’t of Child Safety, Statement on the
Death of One-year-old Josiah Gishie, Oct. 12, 2018.4 Its beyond-a-reasonable-
doubt standard for termination of parental rights “deprives them of equal
opportunities to be adopted that are available to non-Indian children.” In re
Bridget R., 49 Cal. Rptr. 2d 507, 529 (1996). And it deters would-be foster parents
from providing care to Indian children in need. See Elizabeth Stuart, Native
American Foster Children Suffer Under a Law Originally Meant to Help Them,
Phoenix New Times, Sept. 7, 2016.5 This case is critically important for countless
Indian children nationwide whose right to equal protection is denied them by
ICWA.
4 https://goo.gl/8Ayjw2. 5 https://www.phoenixnewtimes.com/news/native-american-foster-children-suffer-
under-a-law-originally-meant-to-help-them-8621832.
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CONCLUSION
This case should be heard by the en banc Court.
RESPECTFULLY SUBMITTED this 8th day of October, 2019 by: /s/ Timothy Sandefur Timothy Sandefur (033670) Scharf-Norton Center for
Constitutional Litigation at the GOLDWATER INSTITUTE /s/ Ilya Shapiro Ilya Shapiro
CATO INSTITUTE /s/ Robert Henneke Robert Henneke TEXAS PUBLIC POLICY FOUNDATION
Attorneys for Amici Curiae
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CERTIFICATE OF COMPLIANCE
Pursuant to Fed. R. App. P. 32(g)(1) and Fed. R. App. P. 29(a)(5), I certify
that this Amici Brief:
(a) was prepared using 14-point Times New Roman font;
(b) is proportionately spaced; and
(c) contains 2,014 words.
Submitted this 8th day of October 2019,
/s/ Timothy Sandefur Timothy Sandefur (033670) Scharf-Norton Center for
Constitutional Litigation at the GOLDWATER INSTITUTE
CERTIFICATE OF SERVICE
I hereby certify that on this 8th day of October 2019, the foregoing brief was
filed and served on all counsel of record via the ECF system.
/s/ Timothy Sandefur Timothy Sandefur
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