Supreme Court Report

Supreme Court of the United States · Official docket →

Cherokee Nation, et al. v. Chad Everet Brackeen, et al.

Paid petition · United States Court of Appeals for the Fifth Circuit, No. 18-11479 · judgment April 6, 2021

Decided · June 15, 2023
Pre-decision estimate: 9% cert probability (95% interval 6%–12%)

Before the decision, about 2.2× the 4.1% base rate. The model weighted this up for a Fifth Circuit decision below, a circuit split argued in the petition, and a dissent in the court below (flagged in the petition).

Questions presented

Consolidated with 21-376. In 1978, Congress enacted the Indian Child Welfare Act ("ICWA") to remedy the "alarmingly high percentage of Indian families [being] broken up by the removal, often unwarranted, of their children by nontribal public and private agencies." 25 U.S.C. §1901(4). Over the ensuing four decades, state courts have repeatedly sustained ICWA as constitutional, and child-welfare professionals now regard ICWA's procedural and substantive requirements as the gold standard for child welfare. Below, however, the district court struck down much of ICWA. And while the en banc Fifth Circuit rejected most of the district court's reasoning, a sharply divided court invalidated several ICWA provisions. The en banc court also affirmed, by an equally divided court, the district court's judgment invalidating several additional provisions. The questions presented are:

  1. Did the en banc Fifth Circuit err by invalidating six sets of ICWA provisions-25 U.S.C. §§1912(a), (d), (e)-(f), 1915(a)-(b), (e), and 1951(a)-as impermissibly commandeering States (including via its equally divided affirmance)?

  2. Did the en banc Fifth Circuit err by reaching the merits of the plaintiffs' claims that ICWA's placement preferences violate equal protection?

  3. Did the en banc Fifth Circuit err by affirming (via an equally divided court) the district court's judgment invalidating two of ICWA's placement preferences, 25 U.S.C. §1915(a)(3), (b)(iii), as failing to satisfy the rational-basis standard of Morton v. Mancari, 417 U.S. 535 (1974)?

Counsel of record

For petitioner
Ian Heath Gershengorn
Jenner & Block

For respondent
Matthew Dempsey McGill
Gibson, Dunn & Crutcher LLP

Case

Conference history
Distributed for 5 conferences

Amicus briefs
4 cert-stage

Related
Vide, 21-376, 21-378, 21-380

Argument & decision

Argued November 9, 2022 — Matthew D. McGill · Judd E. Stone · Edwin S. Kneedler · Ian H. Gers.... Audio and transcript

Decided June 15, 2023. Opinion by Barrett.

Proceedings

  1. Jul 17 2023
    Judgment issued.
    Main Document
  2. Jun 15 2023
    Adjudged to be AFFIRMED IN PART, REVERSED IN PART, VACATED AND REMANDED IN PART. Barrett, J., delivered the opinion of the Court, in which Roberts, C. J., and Sotomayor, Kagan, Gorsuch, Kavanaugh, and Jackson, JJ., joined. Gorsuch, J., filed a concurring opinion, in which Sotomayor and Jackson, JJ., joined as to Parts I and III. Kavanaugh, J., filed a concurring opinion. Thomas, J., and Alito, J., filed dissenting opinions. VIDED.
  3. Nov 09 2022
    Argued. For Chad Everet Brackeen, et al.: Matthew D. McGill, Washington, D. C. For Texas: Judd E. Stone, II, Solicitor General, Austin, Tex. For federal parties: Edwin S. Kneedler, Deputy Solicitor General, Department of Justice, Washington, D. C. For tribal parties: Ian H. Gershengorn, Washington, D. C. VIDED.
  4. Sep 13 2022
    The record received from the U.S.D.C. Northern District of Texas has been electronically filed.
  5. Sep 12 2022
    Record requested from the U.S.C.A. 5th Circuit.
  6. Sep 12 2022
    The record from the U.S.C.A. 5th circuit is electronic and located on Pacer.
  7. Aug 31 2022
    CIRCULATED
  8. Aug 03 2022
    ARGUMENT SET FOR Wednesday, November 9, 2022. VIDED.
  9. Jul 21 2022
    Blanket Consent filed by Respondent, Navajo Nation
    Blanket Consent
  10. Feb 28 2022
    Petition GRANTED. The petitions for writs of certiorari in Nos. 21-376, 21-378, and 21-380 are granted. The cases are consolidated, and a total of one hour is allotted for oral argument. Parties that were plaintiffs/appellees in the lower courts shall file opening and reply briefs in conformity with Rules 33.1(g)(v) and 33.1(g)(vii), under the schedule set forth in Rules 25.1 and 25.3. Parties that were defendants/appellants in the lower courts shall file briefs in conformity with Rule 33.1(g)(vi), under the schedule set forth in Rule 25.2.
  11. Feb 28 2022
    Because the Court has consolidated these cases for briefing and oral argument, future filings and activity in the cases will now be reflected on the docket of No. 21-376. Subsequent filings in these cases must therefore be submitted through the electronic filing system in No. 21-376. Each document submitted in connection with one or more of these cases must include on its cover the case number and caption for each case in which the filing is intended to be submitted. Where a filing is submitted in fewer than all of the cases, the docket entry will reflect the case number(s) in which the filing is submitted; a document filed in all of the consolidated cases will be noted as “VIDED.”
  12. Feb 22 2022
    DISTRIBUTED for Conference of 2/25/2022.
  13. Feb 11 2022
    DISTRIBUTED for Conference of 2/18/2022.
  14. Jan 18 2022
    DISTRIBUTED for Conference of 1/21/2022.
  15. Jan 10 2022
    DISTRIBUTED for Conference of 1/14/2022.
  16. Dec 22 2021
    DISTRIBUTED for Conference of 1/7/2022.
  17. Dec 21 2021
    Reply of petitioners Cherokee Nation, et al. filed. (Distributed)
    Main DocumentCertificate of Word CountProof of Service
  18. Dec 08 2021
    Brief of respondents Chad E. Brackeen, et al. filed. VIDED.
    Main DocumentOtherProof of Service
  19. Dec 08 2021
    Brief of respondents Texas in opposition filed. VIDED.
    Main DocumentCertificate of Word CountProof of Service
  20. Oct 29 2021
    Motion to extend the time to file a response is granted and the time is further extended to and including December 8, 2021, for all respondents.
  21. Oct 25 2021
    Motion to extend the time to file a response from November 8, 2021 to December 8, 2021, submitted to The Clerk.
    Main Document
  22. Oct 08 2021
    Brief amici curiae of Goldwater Institute, et al. filed.VIDED
    Main DocumentCertificate of Word CountProof of Service
  23. Oct 08 2021
    Brief amici curiae of California, et al. filed.VIDED
    Main DocumentCertificate of Word CountProof of Service
  24. Oct 08 2021
    Brief amici curiae of Casey Family Programs, et al. filed.VIDED
    Main DocumentProof of ServiceCertificate of Word Count
  25. Oct 08 2021
    Brief amici curiae of 180 Indian Tribes, et al. filed.VIDED
    Main DocumentOtherCertificate of Word CountProof of Service
  26. Oct 06 2021
    Waiver of right of respondent Navajo Nation to respond filed.
    Main Document
  27. Sep 27 2021
    The motions to extend the time to file responses are granted and the time is extended to and including November 8, 2021, for all respondents.
  28. Sep 24 2021
    Motion of Chad E. Brackeen, et al. to extend the time to file a response from October 8, 2021 to November 8, 2021, submitted to The Clerk.
    Main Document
  29. Sep 24 2021
    Motion of Texas to extend the time to file a response from October 8, 2021 to November 8, 2021, submitted to The Clerk.
    Main Document
  30. Sep 03 2021
    Petition for a writ of certiorari filed. (Response due October 8, 2021)
    PetitionAppendixCertificate of Word CountProof of Service