TRIBAL ALERT: The Indian Child Welfare Act Stands, Thank You Tribes

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tribal alertCILS wants to thank all 72 California tribes and 11 Indian organizations who signed on to the amicus curiae brief in the Brackeen v. Bernhardt (formerly Brackeen v. Zinke) case, which was challenging the constitutionality of the Indian Child Welfare Act (ICWA). The case has been pending before the 5th Circuit Court of Appeals for over five months. Finally, on August 9, 2019, the Court issued its decision upholding the ICWA in full! It was a major victory on all of the legal arguments made by the tribal and federal defendants. The Court’s ruling is as follows:

For these reasons, we conclude that Plaintiffs had standing to bring all claims and that ICWA and the Final Rule are constitutional because they are based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians; ICWA preempts conflicting state laws and does not violate the Tenth Amendment anticommandeering doctrine; and ICWA and the Final Rule do not violate the nondelegation doctrine. We also conclude that the Final Rule implementing the ICWA is valid because the ICWA is constitutional, the BIA did not exceed its authority when it issued the Final Rule, and the agency’s interpretation of ICWA section 1915 is reasonable. Accordingly, we AFFIRM the district court’s judgment that Plaintiffs had Article III standing. But we REVERSE the district court’s grant of summary judgment for Plaintiffs and RENDER judgment in favor of Defendants on all claims.

Unfortunately, this is not the end of the case. The plaintiffs can: (1) ask the Court to reconsider its decision; (2) request an en banc hearing before all (or most) of the 5th Circuit Court judges; (3) file a petition for certiorari to the U.S. Supreme Court; or (4) pursue #1 and #2 and if they lose then pursue #3. As of this writing, we have not seen which direction the plaintiffs will go. However, CILS will keep you updated.

You may read the full opinion here and thank you all for your support.

 

Escondido Directing Attorney Mark Vezzola Speaks at the California Kaleidoscope Event

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Pictured: Escondido Directing Attorney Mark Vezzola

On July 27, 2019, Escondido Directing Attorney Mark Vezzola spoke at a day-long event in Los Angeles called “California Kaleidoscope: Exploring the Intersectionality of Diverse Groups,” hosted by the Iranian American Lawyer’s Association in association with the University of West Los Angeles School of Law. Mark, along with Vida Castaneda, Senior Analyst at the Center for Families, Children & the Courts at the Judicial Council of California, spoke on a panel called “Co-Existence of Tradition & Modernity: The Native Americans’ Experience,” moderated by the Hon. Amy Pellman of Los Angeles Superior Court. The panel addressed more than sixty attorneys and judicial officers on important issues such as California’s dark history with tribes, historical trauma, tribal sovereignty, and cultural considerations in family law and custody contexts. The event was a great success.

CILS Hosts Summer Law Clerk DaNikka Huss

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This summer the Escondido Office was fortunate to host DaNikka Huss, a second-year law student at the James E. Rogers School of Law at the University of Arizona, as a law clerk. “DaNikka came to CILS with more federal Indian and tribal law knowledge than most law clerks. She previously worked for her tribe, the Pala Band of Mission Indians, in several essential capacities. DaNikka showed constant enthusiasm for all aspects of our work, offered valuable input and suggestions to improve our outreach efforts, and never shied away from an assignment or an opportunity to join a CILS attorney in the field. While her kindness and dedication will be missed, school beckoned DaNikka back to Arizona. We hope to cross paths with DaNikka again in the future, perhaps as a law clerk or even better, an attorney,” said Mark Vezzola, Escondido Office Directing Attorney.

We asked DaNikka three questions. Her answers were remarkable.

1. Tell me about your background, aren’t you going to law school as a second career?

After completing my Bachelors in Business, I went to work for my tribe, the Pala Band of Mission Indians, as the Administrative Assistant to Chairman Smith. While there, I simultaneously held several positions, including enrollment officer, election committee chairperson, Land Buy-Back Program Coordinator. It was while working for the tribe I completed my Masters in Human Behavior. Although the job was rewarding and never had a dull moment, I realized that to make significant changes in Indian Country, I would have to leave and reach beyond just Pala. After working for the tribe for six years, I decided it was time to pursue a dream I had since childhood, going to law school.

2. Why become a lawyer? Who influenced you? What is your dream? 

Growing up, my parents were foster parents to dozens of children. When I was six, I had a foster sister named Julie. She had been removed from her father. Julie and I were the same age. She had dark brown ringlets and a bubbly personality, but she despised her biological father. She would be so terrified of her supervised visits with her father; I would come along to play with her. Eventually, the judge allowed Julie to return to her father. Not too long after that, he murdered her and fled the country, leaving her body stuffed underneath a bed only to be found weeks later when residents complained of a foul odor. Our family found out about it on the news. I can remember my mom screaming in her bedroom when the news broadcast came on. I was seven, and that was the moment I said I would become a judge so that could not happen to another child. I knew, even then, someone needed to do a better job at protecting children.

From a young age, my parents reinforced the importance of education. They had a vision of me going to law school and becoming a judge and a politician. Although I didn’t follow a traditional route, it is strange to see how things have come full-circle, and now, here I am a second-year law student. However, I can’t be assured that judgeship or politics is in my future, but rather I am trying to keep an open mind to all areas of law.

3. What is memorable about your time as a law clerk with CILS? What was surprising?

I am just floored at how kind everyone was. Each day staff would come in to check on me, see if I needed anything, ask me how my weekend was, and what I was working on. The little efforts that staff made to go out of there way really made me feel comfortable and a part of the team.

I was most surprised at the variety of topics in the intake calls CILS receives. Ranging from ICWA to help with franchise contract law, the types of law potential clients need help with is spread across the board. There is a wide variety of situations CILS is asked to assist with.

 

We thank DaNikka for her hard work and kind words. We wish her a fast track through the next two years of law school. We are cheering her on.