Four petitions on the constitutionality of India’s child protection law

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This week, we highlight certificate petitions that ask the Supreme Court to consider, among other things, whether India’s Child Welfare Act 1978 violates equal protection under the Fifth Amendment and anti- 10th Amendment requisition and whether BB & T’s arbitration agreement as to account holders of a predecessor bank is valid under federal arbitration law.

Four petitions concern a United States Court of Appeals decision for 5th Circuit repeal certain provisions of the Indian Child Protection Act. Congress adopted ICWA to address concerns that state child protection practices resulted in the inappropriate removal of large numbers of Native American children from their families and tribes and placement with non-native foster families or adoptive parents. The ICWA has established minimum federal standards for most child custody proceedings involving Native American children.

In March 2018, three states and seven individuals challenged numerous provisions of ICWA as unconstitutional. Although the district court largely agreed with the challengers, the 5th District Court subsequently upheld various arrangements. However, the 5th District Court also confirmed – sometimes with a majority, sometimes by an equally divided court – other decisions of the district court. According to the 5th Circuit, certain provisions of the ICWA violate the 10th Amendment because they inadmissibly “requisition” states. These provisions include, among other things, a requirement that state agencies bear the cost and burden of providing expert testimony to justify the placement of Indigenous children in foster care, a requirement that state agencies assume. State provide remedial services to Indigenous families, and a requirement that state agencies maintain certain child placement records. The 5th Circuit also upheld the District Court ruling that ICWA’s preference for adoptive placement with “other Indian families” and “Indian foster homes”[s]”Violates the equal protection component of the Fifth Amendment.

In Haaland vs. Brackeen, the federal government asks the judges to review and reverse the 5th circuit. In addition to challenging the decisions under the Fifth and 10th Amendments, the government argues that individual plaintiffs do not have the legal capacity to challenge ICWA’s placement preferences for “other Indian families” and “households”. Indian welcome[s]. ” In Cherokee Nation v. Brackeen, the Cherokee Nation and three other tribes filed a complementary petition to defend the constitutionality of ICWA. In Texas v. Haaland, Texas has filed a petition asking the judges to review the ICWA provisions that the state believes the 5th Circuit wrongly upheld. Finally, in Brackeen v. Haaland, the individual challengers filed their own petitions for review.

In Branch Banking & Trust Company v. Sevier County Schools Federal Credit Union, BB&T is asking judges to review a U.S. Court of Appeals 6th Circuit ruling overturning BB&T’s amendment to its banking services agreement to resolve disputes with account holders through arbitration. For the 6th Circuit, the amendment, although now almost 20 years old, was invalid for account holders whose accounts predated the amendment because their original agreement (with a predecessor bank) did not include any kind of provision. dispute resolution. . BB&T argues that this reasoning conflicts with modern Supreme Court Federal Arbitration Act jurisprudence.

These and other petitions of the week are below:

Ortiz v. Breslin
20-7846
Problems: (1) If the 14th Amendment prohibits prison authorities from indefinitely detaining supervised persons on the assumption that a municipality will not provide accommodation in accordance with the law; and (2) whether the Eighth Amendment prohibits prison authorities from extending the incarceration of people because of their homelessness and destitution.

Belmora LLC v Bayer Consumer Care AG
21-195
Problems: (1) If, taking into account the principle of territoriality of the mark, the area of ​​interest encompassed by the articles of the Lanham law 43 (a) and 14 (3) extends to the foreign owner of a foreign mark who has not registered or used the mark in the United States; and (2) whether, in the absence of an express limitation period in Lanham Law, the propriety of a trial under section 43 (a) for false association and false publicity is governed by the limitation period. most similar prescription in State law, or rather, by failures.

Branch Banking & Trust Company v. Sevier County Schools Federal Credit Union
21-365
Problem: Does the Federal Arbitration Act replace a common state law rule prohibiting companies from adding an arbitration requirement to their standard contract with customers, unless the contract already includes a settlement clause? disputes.

Haaland vs. Brackeen
21-376
Problems: (1) While various provisions of the Indian Child Welfare Act of 1978, namely the minimum standards of Article 1912 (a), (d), (e) and (f); the placement preference provisions of Article 1915 (a) and (b); and the arrangements for keeping records of Article 1915 (e) and 1951 (a) – violate the anti-requisition doctrine of the 10th Amendment; (2) whether individual complainants have standing to challenge ICWA’s placement preferences for “other Indian families” and for “Indian foster homes”[s]”; and (3) whether Article 1915 (a) (3) and (b) (iii) are rationally linked to legitimate government interests and therefore compatible with equal protection.

Cherokee Nation v. Brackeen
21-377
Problems: (1) Did the en banc US Court of Appeals for the 5th Circuit err in striking down six sets of provisions of India’s Child Welfare Act? 25 USC §§1912 (a), (d), (e) – (f), 1915 (a) – (b), (e), and 1951 (a) – as impermissibly requisitioning states (including through its equally divided assertion); (2) whether the 5th Bank Circuit erred in reviewing the merits of the Complainants’ claims that ICWA’s placement preferences violate equal protection; and (3) whether the 5th Bank Circuit erred in upholding (via an equally divided court) the district court judgment invalidating two of the ICWA’s placement preferences, 25 USC §1915 (a) (3) , (b) (iii), such as not meeting the rational basic standard of Morton vs. Mancari.

Texas v. Haaland
21-378
Problems: (1) Whether Congress has the power, under the Indian Trade Clause or otherwise, to enact laws governing child custody procedures in States simply because the child is or may be an Indian; (2) if the Indian classifications used in the Indian Child Protection Act and its implementing regulations violate the Equal Protection Guarantee of the Fifth Amendment; (3) whether the ICWA and its regulations violate anti-requisition doctrine by requiring states to implement the Congressional child custody regime; and (4) whether the ICWA and its regulations violate the doctrine of non-delegation by allowing individual tribes to modify the placement preferences adopted by Congress.

Texas v. Commissioner of taxes
21-379
Problems: (1) If an agency rule delegating regulatory authority to a private entity violates the doctrine of non-delegation; and (2) whether the statute of limitations applicable to a challenge to an agency rule that delegates the regulatory authority to a private entity begins to run when the agency delegates the authority or when the private entity exercises the authority. delegated authority.

Brackeen v. Haaland
21-380
Problems: (1) If the Indian Child Protection Act 1978the placement preferences of, which disadvantage non-Indian adoptive families in child placement proceedings involving an “Indian child” and thereby disadvantage such children, are discriminatory on the basis of race in violation of the United States Constitution ; and (2) whether the ICWA’s placement preferences go beyond the authority of Article I of Congress in invading the child placement arena – the “virtually exclusive province of the States”, as noted in Sosna v. Iowa – and otherwise requisition courts and state agencies to implement a federal child placement program.

Weiss v. National Westminster Bank, PLC
21-381
Disclosure: Goldstein & Russell, PC, whose lawyers contribute to SCOTUSblog in various capacities, is the applicants’ lawyer in this case.
Problem: Whether a person who knowingly transfers substantial funds to a designated foreign terrorist organization aids and encourages terrorist acts by that organization for the purposes of civil liability under Justice Against Sponsors of Terrorism Act.

Strauss v. Credit Lyonnais, SA
21-382
Disclosure: Goldstein & Russell, PC, whose lawyers contribute to SCOTUSblog in various capacities, is counsel for the applicants in this case.
Problem: Whether a person who knowingly transfers substantial funds to a designated foreign terrorist organization aids and encourages terrorist acts by that organization for the purposes of civil liability under Justice Against Sponsors of Terrorism Act.


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