Case No. 18-11479 UNITED STATES COURT OF APPEALS FOR … › 2019 › 10 › amicusenbancgold… ·...

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

[email protected]

Ilya Shapiro

CATO INSTITUTE 1000 Massachusetts Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

[email protected]

Robert Henneke

TEXAS PUBLIC POLICY

FOUNDATION 901 Congress Ave.

Austin, Texas 78701

(512) 472-2700

[email protected]

Attorneys for Amici Curiae


mailto:[email protected]

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


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.


https://www.flipsnack.com/9EB886CF8D6/final-epic-pamplet.html

https://drive.google.com/file/d/1KpwaHc50-Iv7oKH8_17I8YWjPpY-XZUU/view

https://drive.google.com/file/d/1KpwaHc50-Iv7oKH8_17I8YWjPpY-XZUU/view

https://www.cato.org/publications/commentary/constitutional-flaws-indian-child-welfare-act

https://www.cato.org/publications/commentary/constitutional-flaws-indian-child-welfare-act

3

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.


https://www.cato-unbound.org/2016/08/10/walter-olson/isnt-way-protect-families-rights

https://www.cato-unbound.org/2016/08/10/walter-olson/isnt-way-protect-families-rights

4

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


5

/s/ Ilya Shapiro Ilya Shapiro

CATO INSTITUTE /s/ Robert Henneke Robert Henneke TEXAS PUBLIC POLICY FOUNDATION


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


6

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 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


Timothy Sandefur

Scharf-Norton Center for

Constitutional Litigation at the

GOLDWATER INSTITUTE

500 E. Coronado Rd.

Phoenix, Arizona 85004

(602) 462-5000

[email protected]

Ilya Shapiro

CATO INSTITUTE 1000 Massachusetts Ave. N.W.

Washington, D.C. 20001

(202) 842-0200

[email protected]

Robert Henneke

TEXAS PUBLIC POLICY

FOUNDATION 901 Congress Ave.

Austin, Texas 78701

(512) 472-2700

[email protected]



mailto:[email protected]

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


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


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


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.


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


vi

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


vii

Robert W. Ferguson ATTORNEY GENERAL OF WASHINGTON Joshua L. Kaul ATTORNEY GENERAL OF WISCONSIN


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


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


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


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


2

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.


https://www.flipsnack.com/9EB886CF8D6/final-epic-pamplet.html

3

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.


4

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.


5

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


6

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.


7

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).


8

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,


9

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.


https://www.phoenixnewtimes.com/news/native-american-foster-children-suffer-under-a-law-originally-meant-to-help-them-8621832

https://www.phoenixnewtimes.com/news/native-american-foster-children-suffer-under-a-law-originally-meant-to-help-them-8621832

10

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



11

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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