Cherokee Nation v. Brackeen

Consolidated with:

Docket No.	Op. Below	Argument	Opinion	Vote	Author	Term
21-377	5th Cir.	Nov 9, 2022	TBD	TBD	TBD	OT 2022

Issue: (1) Whether the en banc U.S. Court of Appeals for the 5th Circuit erred by invalidating six sets of Indian Child Welfare Act 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) whether the en banc 5th Circuit erred by reaching the merits of the plaintiffs" claims that ICWA"s placement preferences violate equal protection; and (3) whether the en banc 5th Circuit erred 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.

SCOTUSblog Coverage

Closely divided court scrutinizes various provisions of Indian Child Welfare Act (Amy Howe, November 9, 2022)
In challenge to Indian Child Welfare Act, court will weigh the rights of states and the role of race (Amy Howe, November 8, 2022)
Affirmative action cases up first in November argument calendar (Amy Howe, August 3, 2022)
Justices agree to review constitutionality of Indian Child Welfare Act (Amy Howe, March 1, 2022)
How long do prisoners have to seek DNA evidence? (John Elwood, February 23, 2022)
Revenge of the rescheduled cases: Congressional proxy voting, the ministerial exception, and more (John Elwood, January 20, 2022)
Blockbuster watch: Affirmative action, same-sex weddings, and other big relists (John Elwood, January 12, 2022)
Four petitions on the constitutionality of the Indian Child Welfare Act (Andrew Hamm, September 24, 2021)

Date	Proceedings and Orders (key to color coding)
09/03/2021	Petition for a writ of certiorari filed. (Response due October 8, 2021)
09/24/2021	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.
09/24/2021	Motion of Texas to extend the time to file a response from October 8, 2021 to November 8, 2021, submitted to The Clerk.
09/27/2021	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.
10/06/2021	Waiver of right of respondent Navajo Nation to respond filed.
10/08/2021	Brief amici curiae of Goldwater Institute, et al. filed.VIDED
10/08/2021	Brief amici curiae of California, et al. filed.VIDED
10/08/2021	Brief amici curiae of Casey Family Programs, et al. filed.VIDED
10/08/2021	Brief amici curiae of 180 Indian Tribes, et al. filed.VIDED
10/25/2021	Motion to extend the time to file a response from November 8, 2021 to December 8, 2021, submitted to The Clerk.
10/29/2021	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.
12/08/2021	Brief of respondents Chad E. Brackeen, et al. filed. VIDED.
12/08/2021	Brief of respondents Texas in opposition filed. VIDED.
12/21/2021	Reply of petitioners Cherokee Nation, et al. filed. (Distributed)
12/22/2021	DISTRIBUTED for Conference of 1/7/2022.
01/10/2022	DISTRIBUTED for Conference of 1/14/2022.
01/18/2022	DISTRIBUTED for Conference of 1/21/2022.
02/11/2022	DISTRIBUTED for Conference of 2/18/2022.
02/22/2022	DISTRIBUTED for Conference of 2/25/2022.
02/28/2022	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.
02/28/2022	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.”
07/21/2022	Blanket Consent filed by Respondent, Navajo Nation
08/03/2022	ARGUMENT SET FOR Wednesday, November 9, 2022. VIDED.
08/31/2022	CIRCULATED
09/12/2022	Record requested from the U.S.C.A. 5th Circuit.
09/12/2022	The record from the U.S.C.A. 5th circuit is electronic and located on Pacer.
09/13/2022	The record received from the U.S.D.C. Northern District of Texas has been electronically filed.
11/09/2022	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.
06/15/2023	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.
07/17/2023	Judgment issued.