En Banc Fifth Circuit Issues Badly-Fractured 325-Page Decision in ICWA Case

Chief Judge Owen and Judge Southwick largely joined Judge Dennis's majority opinion to form a mostly-controlling opinion.

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Today, the En Banc 5th Circuit issued a 325-page decision in Brackeen v. Haaland. This case concern the constitutionality of the Indian Child Welfare Act. The opinion is badly, badly fractured. Indeed, there is a seven-page per curiam opinion that explains the votes.

Judge Dennis wrote the majority opinion in most regards. You may ask, how could it be that in the Fifth Circuit, Judge Dennis controls an en banc court? Simple. Judge Ho recused, and Judge Wilson joined the court after the case was submitted, and did not participate. Plus, Chief Judge Owen and Judge Southwick largely joined the majority. With those circumstances, Judge Dennis can control the en banc court.

Based on my quick read, there are some issues for which Judge Duncan commanded a majority. Let's see if you can make sense of this sentence.

The court's holdings on Plaintiffs' various anticommandeering claims are more intricate. An en banc majority holds that ICWA's "active efforts," § 1912(d), expert witness, § 1912(e) and (f), and recordkeeping requirements, § 1915(e), unconstitutionally commandeer state actors.FN5 The district court's judgment declaring those sections unconstitutional under the anticommandeering doctrine is therefore affirmed.

FN5: Parts III(B)(1)(a)(i), (ii), (iv); III(B)(1)(b); and III(B)(2)(b) (insofar as it addresses §§ 1912(d)–(f) and 1915(e)) of Judge Duncan's opinion are the en banc majority opinion on these issues.

I pity the clerk who has to write this cert pool memo.

NEXT: Calhoun and Constitutionalism

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  1. Any lawyer utterance with a reading level above the 8th grade is void. It fails to give notice.

  2. Oy, I’m not sure what it means, but the poor kids….

    1. I long ago stopped believing that disputes such as this had anything to do with the welfare of the actual children involved…

  3. This seems stupidly complicated for no reason.

    What about this?

    The ICWA was enacted to prevent instances in which children were taken from their homes by allowing the tribal governments to have a say in these adoption proceedings. In this instance, however, the parents specifically wanted their children to be raised by non-Indians, and do not appear to have been coerced, but the tribal government still said no. That sounds like injury in fact, so standing, great.

    So then the state intervened and said tried to block the tribal governments from participating here, and so claimed they had the right to because ICWA unconstitutionally commendeers states by interfering in their justice system. I affirm (or reject). Also some weird equal protection argument which taken to its logical conclusion would completely get rid of all Indian law.

    Its really not that complicated an argument. That was two pages. They all need to take writing lessons.

    The standard quote form English clas (idk ots its standard, but my professor said it all the time): Be short and concise. Faulkner wrote well by not being short or concise. But you are not, nor will ever be, Faulkner. Therefore be concise.

    1. Even when he was wrong, OW Holmes was memorable. Because he wrote short and to-the-point opinions.

    2. “Also some weird equal protection argument which taken to its logical conclusion would completely get rid of all Indian law. “

      I am not convinced that is a bad idea.

      1. I have long toyed with the concept of negotiating Treaties of Incorporation where the tribes would give up sovereignty for equitable final compensation (a form of reparations). The tribal organizations could continue on as corporations, associations or some other legal entity if they wished.

        1. The tribes with large reservations could be converted to counties, subordinate to states but with much autonomy. This would imply that non-Indians who moved to the reservation would gain voting rights.

          1. Making reservations into counties would raise issues of the “Republican form of Government” clause because many of these tribes are anything *but* democratic.

            A friend of mine once dealt with a tribal government in some economic development stuff and the stories he told me about that were jaw dropping to someone raised in the democratic process. It’s more like European royalty of an earlier era.

        2. Look into the 1980 Maine Indian Land Claims settlement.
          See: https://www.maine.gov/legis/lawlib/lldl/indianclaims/index.html

          That, somewhat, did that — and it’s why they can’t have casinos, although they want to have them anyway. There are also issues of _Baker v. Carr_ when tribe members get TWO representatives in the legislature — one for where they live and one for their tribe.

    3. “The ICWA was enacted to prevent instances in which children were taken from their homes by allowing the tribal governments to have a say in these adoption proceedings. In this instance, however, the parents specifically wanted their children to be raised by non-Indians, and do not appear to have been coerced, but the tribal government still said no.”

      I think that the real question here is who is the sovereign — the state or the tribe? And if it is the tribe, then why is the state responsible for the child’s education — at all? It’s like saying that MA is responsible for the children in NH — and it isn’t. NH is responsible for the children in NH because NH is sovereign.

      Conversely, if the state is the sovereign, then the tribe doesn’t have veto power over it.

      It’s almost like the tribes want to be considered states when it benefits them but not when it doesn’t and that is a 14th Amendment issue.

    4. Never heard the Faulkner quote. Loving it, though. Stealing it for reuse.

  4. And they admonish *us* to keep our briefs as concise as possible.

  5. My cert pool memo will recommend summary disposition: The decision of the Fifth Circuit is vacated and the case is remanded with instructions to dispose of the case with opinions not exceeding in total the combined lengths of principal and reply briefs allowed by FRAP 32(a)(7).

  6. I read the introduction. Not going on for 300 more pages. Were any judges who voted against finding standing but, outvoted on that issue, voted for the plaintiffs on the merits?

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