Moot Court Finals

THE SHERMAN MINTON MOOT COURT COMPETITION FINAL ARGUMENT

First Nation of Arcadia & Eric Zehr v.

Judge Grayson Drea, Arcadia Department of Child Services, & Khris & Tianna Garcia DEVIN DUNKLEY for Petitioner

ASA GELBER for Petitioner

MICHAEL OSBORN for Respondent

CARSTEN PARMENTER for Respondent

Baier Hall Moot Court Room (via Zoom and livestream via the Law School’s YouTube page) November 6, 2020 | 4:00 p.m. EST

THE DISTINGUISHED PANEL OF JUDGES Hon. Stephanie D. Thacker is a judge for the United States Court of Appeals for the Fourth Circuit. Following two years in private practice, she served as an assistant US attorney for the Southern District of West Virginia. She later moved to Washington, DC to work as a trial attorney in the US Department of Justice’s Child Exploitation and Obscenity Section.

In 2011, President Barack Obama nominated her to serve on the Fourth Circuit, and she received her commission in 2012. Judge Thacker holds a BA from Marshall University and a JD from West Virginia University.

Hon. Jeffrey A. Meyer is judge for the United States District Court for the District of Connecticut. Previously he clerked for Hon. James L. Oakes of the United States Court of Appeals for the Second Circuit and for Justice Harry A. Blackmun of the United States Supreme Court. He then worked in private practice and for Vermont Legal Aid. In 1995 he was named assistant US attorney for the District of Connecticut, and in 2006 he joined the faculty at Quinnipiac University School of Law. In 2013 President Barack Obama nominated Judge Meyer to his current post, and he received his commission the following year. He holds BA and JD degrees from Yale.

Matthew L.M. Fletcher is professor of law and director of the Indigenous Law and Policy Center at the Michigan State University College of Law. He sits as the Chief Justice of the Poarch Band of Creek Indians Supreme Court and as an appellate judge for the Colorado River Indian Tribes, the Hoopa Valley Tribe, the Mashpee Wampanoag Tribe, the Match-E-Be-NashShe-Wish Band of Pottawatomi Indians, the Pokagon Band of Potawatomi Indians, the Nottawaseppi Huron Band of Potawatomi Indians, the Rincon Band of Luiseño Indians, the Santee Sioux Tribe of Nebraska, and the Tulalip Tribes. He is a member of the Grand Traverse Band of Ottawa and Chippewa Indians. Prof. Fletcher holds BA and JD degrees from the University of Michigan.

Elizabeth Kronk Warner is the Jefferson B. and Rita E. Fordham Presidential Dean and professor of law at the S.J. Quinney College of Law at the University of Utah. She was formerly associate dean and professor at the University of Kansas School of Law, where she was also the director of the Tribal Law and Government Center. She is currently active in the American Bar Association, where she is co-chair of the Native American Resources Committee. Kronk Warner is a nationally recognized expert in the intersection of environmental and Indian law. She has taught courses in property, Indian, environmental, and natural resources law and supervised the school’s Tribal Judicial Support Clinic. Kronk Warner earned a BS from Cornell University and a JD from the University of Michigan.

ABOUT THE COMPETITION The Sherman Minton Moot Court Competition is an annual appellate advocacy competition open to all second-year students at the Maurer School of Law. This year, 110 second-year students competed in the first ever all-virtual competition. Students began the fall semester by writing briefs in pairs then argued individually through two preliminary rounds of oral arguments. This year, because of the virtual format, judges from all over the country stepped in to judge the oral arguments.

The 32 students with the best combined scores for their briefs and oral arguments advanced to the tournament rounds. During the tournament, competitors argued in a head-to-head, single-elimination competition that ultimately produced this year’s four finalists.

Based solely on their arguments in the finals, the panel of judges will select two of these finalists as the new Sherman Minton Moot Court champions.

ACKNOWLEDGMENTS We are grateful to our faculty advisor, Professor Seth Lahn, for his unending support and guidance. We owe special thanks to Assistant Dean Turchi for his help with communications and publications; Director Beck for her guidance in the face of COVID-19 challenges; Chelsey Browning for coordinating this year’s finals; Marian Conaty, Paul Styles, and Randy Sparks for their expert audio-visual assistance; Professors Scott and Widiss and Mr. Charles Rice for their guidance on this year’s case file; and Professor Stake for his scoring program.

We also thank the entire student body for their support during the competition. Many of you volunteered your time to host, judge, and serve as bailiffs the arguments. Student organizations planned many events around our competition. You also supported your classmates as they dedicated their time to competing.

Finally, the board would like to thank the more than 200 alumni, attorneys, judges, and others in the legal community who so generously volunteered their time to judge throughout the competition. Special thanks go to Jeff Haut, Andrew Stebbins, Susan Shan, Grayson Wells, and Professor Lane McFadden, our top repeat judges this year. To all the judges: Your support and expertise are what make the competition such a valuable experience for the competitors, and we cannot thank you enough.

2020 SHERMAN MINTON ADVOCACY BOARD The Sherman Minton Moot Court Advocacy Board consists of third-year law students who earn their positions on the basis of their moot court performance and other leadership qualities. Beginning its work in the early spring, the board designs, organizes, and conducts the annual Sherman Minton Moot Court Competition. Members of the board also compete in national interscholastic moot court competitions.

CHIEF JUSTICE Alexa Wilson EXECUTIVE COMPETITION COORDINATORS Mahrukh Badar Clara Gutwein Mary Kate Hetzel

EXECUTIVE PROBLEM COORDINATORS Audrey Brittingham Buddy Lobermann Justin Snyder

EXECUTIVE COMPETITION BOARD COORDINATOR Janelle Shankin

EXECUTIVE ADVOCACY COORDINATOR Willow Thomas

EXECUTIVE JUDGE COORDINATORS Erika Killion Tanner Watson Brentyn Baccega Lakeisha Barnes Morgie Bromley Ben Burdick Dakota Coates Hayes Cronk Kelsey Daugherty Josh Felty Mark Finley Sarah Fishel Cheyna Galloway Erica Gbur Jay Gillen Drew Halter Andrew Heisz Michael Hernandez Mandy Hibbler Brian Hudson Emma Kearney

COMPETITION BOARD

Callie Kidwell Monica McCoskey Bailie Mittman Garrett Moores Autumn Murphy Nick Ormes Alex Pantos Charlie Rice Matt Rosenstein Bryan San Jose Max Schmidt Emily Sery Robert Silman Matt Triplett Liam Williams Josh Winograd Trevor Worby

THE SHERMAN MINTON ADVOCACY BOARD CONGRATULATES ALL OF THE COMPETITORS SEMIFINALISTS Maddie Blaney Hannah Wilson

Preston Michelson Daniel Schumick QUARTERFINALISTS

Raeanna Carroll Jacqueline Caserio Alex Dowland Heather Gin

Michelle Johnston Ari Meza Whitley Pannell Ron Turner OCTOFINALISTS

Mary Kate Dugan JD French Noah Holloway Kyle Kopchak Alex Layton Olivia Liska Emily McDaniels Abigail McGowan

Best Briefs Carsten Parmenter & Preston Michelson (Respondents) Emily McDaniels and Ryan Mueller (Petitioners) Brief Writing Honors Maci Brown and Jacqueline Van Der Wey Jordan Cockrum and Hamilton Dickey Devin Dunkley and Allison Henry Asa Gelber and Nicole Lawvere Noah Holloway and Jacqueline Caserio Hussein Mohamed and LJ Martin Stephen Morris and Ari Meza Olivia Potter and Mary Kate Dugan Jeff Ranger and Justin Lorber Daniel Schumick and Olivia Liska Zach Shepard and Michael Froedge Janine Tang and Kacey Henning

Makenzie Mehringer Fernando Mercado Blaire Mikesell Hussein Mohamed Ryan Mueller Olivia Potter Jeff Ranger Olivia Stevens

Oral Advocacy Honors (Petitioners) Raeanna Carrell Devin Dunkley Asa Gelber Kyle Kopchak Makenzie Mehringer Blaire Mikesell Oral Advocacy Honors (Respondents) Abigail McGowan Preston Michelson Michael Osborn Carsten Parmenter Daniel Schumick Hannah Wilson

CASE SYNOPSIS A Note on the Use of the Term “Indian” This year’s case problem centers on 25 U.S.C. § 1901 et seq., the Indian Child Welfare Act of 1978. The opinion and other materials to competitors and judges use the term “Indian” throughout. This is because all relevant federal statutes, case law, and government agency opinions continue to use the term “Indian.” The Sherman Minton Moot Court Advocacy Board understands and respects that this term has a complicated and problematic history, one inextricably bound up in the oppression and marginalization of Native and Indigenous Americans, and that neither “Indian” nor any other single term is embraced by all indigenous peoples in the Americas as an identity marker. Much about this problematic term has been written by Indigenous people and scholars more knowledgeable than the advocacy board, and we encourage all judges, competitors, and observers to explore this issue and its complicated history.

Summary of the Case This year’s case problem examines one aspect of the historical balancing act between state and federal courts in the United States legal system. In particular, it considers the Indian Child Welfare Act (“ICWA”), a federal law requiring state courts to follow specific procedures when an Indian child is placed in foster care or for adoption.

Normally, state trial courts are given a great amount of deference in their decisions regarding child custody. This is because these local courts have an intimate knowledge of the facts and parties in each case. In fact, state court decisions regarding custody are rarely overturned on appeal because appellate courts do not like to presume they understand the case better than the trial courts.

For the same reasons, there are very few federal laws regarding family and custody. ICWA is one such law that was passed to combat systemic racism within state foster care and child services agencies. These state agencies were responsible for the widespread and systematic removal of Indian children from their families, which amounted to the erasure of tribal cultures.

In the 1970s, Congress learned that approximately one-third of all Indian children in the United States had been removed from their homes by child services agencies and placed with non-indigenous families. At best, this reflected ignorance on the part of caseworkers about Indian culture and familial structures; at worst, it reflected outright racism.

Congress then passed ICWA, which provides special protections against terminating parental rights of an Indian parent and requires that an Indian child’s prospective tribe be notified of the custody proceeding. This is so the tribe has the opportunity to put forth an Indian adoptive or foster care option for that child. Further, ICWA grants tribes and their

members a federal cause of action to challenge improper termination of parental rights and failure to provide notice under the statute.

In our case, Eric, a member of the federally recognized First Nation of Arcadia tribe, was largely absent from his daughter, K.Z.’s, life. K.Z.’s mother, Alaina, decided that it was in K.Z.’s best interests to place K.Z. for an open adoption with close family friends, the Garcias. In the state adoption proceedings, Judge Grayson Drea of the Randolph County state court approved a pre-adoptive placement of K.Z. with the Garcias while the court waited for the rest of the adoption paperwork and proceedings to finalize.

In making the decision to approve the pre-adoptive placement, the Judge Drea and Arcadia Department of Child Services (ADCS) found that ICWA did not apply to K.Z., even though Eric is a member of a federally recognized tribe because K.Z. was not part of an “existing Indian family.” Several states have decided that ICWA was not meant to apply to children like K.Z., who were not raised as a member of their tribe or by an Indian parent. This has become known as the Existing Indian Family Exception (“EIFE”).

In attempts to stop states from using the EIFE, the Bureau of Indian Affairs released a Final Rule regulation that prohibited state courts from considering things like how long a child has been in the custody of an Indian parent or whether she is involved in the tribe. The Final Rule requires that ICWA be applied to all children eligible for membership.

When Eric learned about the pending adoption, he and First Nation of Arcadia sued in federal court challenging Judge Drea’s and ADCS’s use of the EIFE for contradicting the Bureau of Indian Affairs’ Final Rule. Judge Drea, ADCS, and the Garcias countered that this case should not be heard in federal court because it challenges the way the state courts procedurally run their adoptions, and because of a state’s unique and important interest in resolving child custody proceedings. They rely on an important precedent case, Younger v. Harris, which sharply limited the circumstances in which federal courts may interfere with ongoing state lawsuits.

Thus, two issues are before the U.S. Supreme Court in this afternoon’s arguments: 1. Whether a federal district court must abstain, under Younger v. Harris, from

exercising federal jurisdiction over claims brought under the Indiana Child

Welfare Act that would alter on-going state adoption proceedings.

2. Whether the Bureau of Indian Affairs regulation seeking to curb the so-called

Existing Indian Family Exception is out of step with the Indian Child Welfare

Act and our previous decision in Adoptive Couple v. Baby Girl, thus improperly

preempting Arcadia common law.

JUSTICE SHERMAN MINTON, LLB 1915 The Indiana University Maurer School of Law and its Advocacy Board are proud to honor the career of Justice Sherman Minton, LLB 1915.

Sherman Minton was born in 1890 in Georgetown, Ind. He earned his LLB from Indiana Law in 1915 and an LLM the following year from Yale. He served overseas as a captain in the United States Army, Motor Transport Corps, during World War I, remaining in the Army Reserve through the Great Depression.

After the war Minton returned to his home state, where he resumed the practice of law. In 1934, he was elected as a Democrat to the US Senate, where he represented Indiana for one term. President Franklin D. Roosevelt appointed Minton to the United States Court of Appeals for the Seventh Circuit in 1941. Eight years later, Minton’s close friend President Harry S. Truman nominated him to the US Supreme Court.

During his tenure on the Court, Justice Minton was noted for his broad view of government powers, dissenting in Youngstown Sheet & Tube Co. v.

Sawyer (1952) and voting to strike down state-sanctioned segregation in Brown v. Board of Education (1954). He retired from the Court in 1956 and was succeeded by Justice William Brennan.

Justice Minton died in 1965. Today the Sherman Minton Bridge carries Interstate 64 across the Ohio River, connecting western Louisville with New Albany, where Justice Minton began his career.