Case 4:17-cv O Document 186 Filed 11/02/18 Page 1 of 25 PageID 4575

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 1 of 25 PageID 4575 IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF TEXAS FORT WORTH DIVISION CHAD EVERET BRACKEEN, JENNIFER KAY BRACKEEN, FRANK NICHOLAS LIBRETTI, HEATHER LYNN LIBRETTI, ALTAGRACIA SOCORRO HERNANDEZ, JASON CLIFFORD and DANIELLE CLIFFORD, and TEXAS, LOUISIANA, and INDIANA v. Plaintiffs, UNITED STATES OF AMERICA; RYAN ZINKE, in his official capacity as Secretary of the United States Department of the Interior; BRYAN RICE, in his official capacity as Director of the Bureau of Indian Affairs; JOHN TAHSUDA III, in his official capacity as Acting Assistant Secretary for Indian Affairs; the BUREAU OF INDIAN AFFAIRS; and the UNITED STATES DEPARTMENT OF THE INTERIOR; ALEX AZAR, in his official capacity as Secretary of the United States Department of Health and Human Services; and the UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, and Defendants, CHEROKEE NATION, et al., Intervenor-Defendants. Civil Action No. 4:17-cv-868-O BRIEF IN SUPPORT OF THE NAVAJO NATION S MOTION TO INTERVENE AS DEFENDANT FOR PURPOSES OF APPEAL

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 2 of 25 PageID 4576 TABLE OF CONTENTS Page TABLE OF AUTHORITIES... ii I. INTRODUCTION...1 II. BACKGROUND AND FACTS...2 III. LEGAL STANDARD...4 A. Intervention as a Matter of Right...5 B. Permissive Intervention...6 IV. ARGUMENT AND AUTHORITIES...7 A. Changed Circumstances Support the Granting of the Nation s Motion to Intervene...7 B. The Nation Satisfies the Requirements for Intervention as of Right...9 1. The Nation s Motion to Intervene is Timely...9 2. The Nation Has an Important Interest in the Welfare of Its Children and in the Proper Application of Its Law...11 3. The Nation s Interests Cannot be Adequately Protected Without Allowing the Nation to Intervene....13 4. In Light of the Court s Order, the Existing Parties No Longer Adequately Represent the Nation s Interests in the Proper Interpretation of Its Law...15 C. The Nation Satisfies the Requirements for Permissive Intervention...16 V. CONCLUSION...17 CERTIFICATE OF SERVICE...19 i

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 3 of 25 PageID 4577 CASES: TABLE OF AUTHORITIES Page(s) Brackeen v. Zinke, No. 4:17-cv-00868-O, 2018 WL 4927908 (N.D. Tex. Oct. 4, 2018)... passim Buckland v. Ohio Nat l Life Assurance Corp., No. 4:15-cv-400-O, 2015 WL 13188295 (N.D. Tex. Oct. 7, 2015)...9 Cherokee Intermarriage Cases, 203 U.S. 76 (1906)...13 Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996)...5, 13 Entergy Gulf States La., L.L.C. v. U.S. Envtl. Prot. Agency, 817 F.3d 198 (5th Cir. 2016)...5 Franciscan All., Inc. v. Burwell, No. 7:16-cv-00108-O, 2017 WL 2964088 (N.D. Tex. Jan. 24, 2017)...6 Frazier v. Wireline Sols., LLC, No. C-10-3, 2010 WL 2352058 (S.D. Tex. June 10, 2010)...6 Heaton v. Monogram Credit Card Bank of Ga., 297 F.3d 416 (5th Cir. 2002)...6, 13 Hodgson v. United Mine Workers of Am., 473 F.2d 118 (D.C. Cir. 1972)...2, 5, 7 Hopwood v. State of Tex., 78 F.3d 932 (5th Cir. 1996)...2, 5 In re Lease Oil Antitrust Litig., 570 F.3d 244 (5th Cir. 2009)...6 Kneeland v. Nat l Collegiate Athletic Ass n, 806 F.2d 1285 (5th Cir. 1987)...6 Massachusetts v. Envtl. Prot. Agency, 549 U.S. 497 (2007)...8, 17 Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)...12 ii

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 4 of 25 PageID 4578 TABLE OF AUTHORITIES Continued Page(s) Roff v. Burney, 168 U.S. 218 (1897)...13 Ross v. Marshall, 426 F.3d 745 (5th Cir. 2005)... passim Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978)... passim Sierra Club v. Glickman, 82 F.3d 106 (5th Cir. 1996)...14 Smith v. Babbitt, 100 F.3d 556 (8th Cir. 1996)...13 St. Pierre v. Norton, 498 F. Supp. 2d 214 (D.D.C. 2007)...13 Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir. 1977)...9 Terrebonne Land Dev. Corp. v. Superior Oil Co., 65 F.R.D. 375 (E.D. La. 1974)...5 Texas v. United States, 805 F.3d 653 (5th Cir. 2015)...5, 11, 15 Trbovich v. United Mine Workers of Am., 404 U.S. 528 (1972)...15 United Airlines, Inc. v. McDonald, 432 U.S. 385 (1977)...10 Williams v. Gover, 490 F.3d 785 (9th Cir. 2007)...13 Williams v. Lee, 358 U.S. 217 (1959)...3 Worcester v. State of Ga., 31 U.S. 515 (1832)...3 X-Drill Holdings Inc. v. Jack-Up Drilling Rig SE 83, 320 F.R.D. 444 (S.D. Tex. 2017)...13 iii

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 5 of 25 PageID 4579 STATUTES: TABLE OF AUTHORITIES Continued Page(s) 25 U.S.C. 1911(c)...12, 14 25 U.S.C. 1914...11, 14 28 U.S.C. 2403...7 Indian Child Welfare Act ( ICWA )... passim Treaty with the Navajo, June 1, 1868, 15 Stat. 667...3 1 N.N.C. 701...4, 7, 8 1 N.N.C. 753(B)...8 RULES: Fed. R. Civ. P. 19... passim Fed. R. Civ. P. 24...1, 4 Fed. R. Civ. P. 24(a)... passim Fed. R. Civ. P. 24(a)(2)... passim Fed. R. Civ. P. 24(b)...4, 9, 16, 17 Fed. R. Civ. P. 24(b)(1)...6 Fed. R. Civ. P. 24(b)(1)(B)...6 REGULATIONS AND EXECUTIVE MATERIAL: Indian Entities Recognized and Eligible to Receive Services from the U.S. Bureau of Indian Affairs, 81 Fed. Reg. 5019 (Jan. 29, 2016)...2 Exec. Order No. 709 (1907)...3 Exec. Order No. 1483 (1912)...3 LEGISLATIVE MATERIAL: H.R. Rep. No. 95-1386 (1978)...14 iv

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 6 of 25 PageID 4580 OTHER AUTHORITIES: TABLE OF AUTHORITIES Continued Page(s) 7C Wright & Miller, Fed. Prac. & Proc. Civ. 1908.2 (3d ed. 2007)...12 v

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 7 of 25 PageID 4581 The Navajo Nation (the Nation ) files this brief in support of its motion to intervene for as defendant for purposes of appeal. I. INTRODUCTION The Nation is a sovereign nation whose territory is located within the states of New Mexico, Arizona, Utah, and Colorado. It seeks to intervene in this suit under Federal Rule of Civil Procedure 24 so that it may participate in an appeal that will decide the constitutionality of the Indian Child Welfare Act ( ICWA ), a federal statute that directly impacts the Nation and its over 300,000 enrolled members. Previously, the Nation sought to intervene as a defendant for the limited purpose of seeking dismissal pursuant to Rule 19. Dkt. 77. The Court denied that request on June 1, 2018. Dkt. 139. A party is entitled to intervene as of right under Rule 24(a) if its interests are affected by a suit and those interests cannot be adequately represented by an existing party. See, e.g., Ross v. Marshall, 426 F.3d 745, 753, 761 (5th Cir. 2005). When the Nation previously moved to intervene in this case, this Court recognized that its interests were indisputably at stake in this matter. After all, an adoption dispute regarding a Navajo child is at the heart of this case, and the Plaintiffs seek the invalidation of the ICWA, a law that protects the Nation s children and the sovereign interests of the Nation as a whole. This Court denied the Nation s previous motion to intervene on the basis that the Nation s interests would be adequately represented by the Federal Defendants and the existing Intervenor Tribes and because this Court determined that the Nation sought a form of relief that would prolong the case. But in the wake of this Court s merits decision invalidating the ICWA neither basis for denying intervention now exists. First, this Court specifically relied on the Nation s membership law in its merits decision, giving the Nation a unique interest in the 1

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 8 of 25 PageID 4582 case as the only party that can authoritatively interpret and defend its own law and its law s implications for the ICWA. Moreover, because the Nation s membership law differs from that of the other Intervenor Tribes, the interests of the Nation and the Intervenor Tribes now diverge as the Intervenor Tribes may wish to distinguish the Nation s law in order to defend the ICWA as it applies to the Intervenor Tribes. For the same reason, the Federal Defendants will have difficulty representing the disparate interests of both the Nation and the Intervenor Tribes. Second, because this Court s Order and Final Judgment will now be appealed, the Nation no longer seeks to dismiss the suit under Rule 19, which is the form of relief about which this Court expressed concern with respect to the potential for prolonging the suit. Permitting the Nation s intervention at this stage will not prejudice the other parties and will almost certainly help to obtain a resolution that fully considers the interests and views of all stakeholders. It is well settled that a non-party may file a new motion to intervene when circumstances have meaningfully changed, even after judgment has been entered. See, e.g., Hodgson v. United Mine Workers of Am., 473 F.2d 118, 125 27 (D.C. Cir. 1972); Hopwood v. State of Tex., 78 F.3d 932, 960 & n.58 (5th Cir. 1996), abrogated on other grounds by Grutter v. Bollinger, 539 U.S. 306, 322 (2003); Ross, 426 F.3d at 755. Because that is indisputably the case here, this Court should grant the Nation s request to intervene as defendant in order for the Nation to participate in the forthcoming appeal. II. BACKGROUND AND FACTS The Nation is recognized as an Indian tribe by the United States with sovereign territory in the states of New Mexico, Arizona, Utah, and Colorado. See Indian Entities Recognized and Eligible to Receive Services from the U.S. Bureau of Indian Affairs, 81 Fed. Reg. 5019, 5022 (Jan. 29, 2016). The Nation has a unique legal relationship with the United States because of its 2

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 9 of 25 PageID 4583 inherent sovereignty that predates the Constitution, as well as the Treaty of 1868, various Executive Orders, and United States Supreme Court precedent. See, e.g., Treaty with the Navajo, June 1, 1868, 15 Stat. 667; Williams v. Lee, 358 U.S. 217 (1959); Worcester v. State of Ga., 31 U.S. 515 (1832); Exec. Order No. 709 (1907) ( Camp McDowell Reservation, Arizona ); Exec. Order No. 1483 (1912) ( Restoring Lands to the Navajo Indians ). A.L.M. is one of the three children at the heart of this suit. A.L.M. is a member of the Nation (and is not an enrolled member of the Cherokee Nation) who was adopted by Plaintiffs Chad and Jennifer Brackeen ( the Brackeens ). See Dkt. 78 at 1, 3, Ex. 2. A.L.M. had been in the process of being placed with a Navajo family when A.L.M. s foster parents, the Brackeens, filed a petition to adopt A.L.M. Dkt. 35, 134. The family court denied the Brackeens adoption petition, concluding that the Brackeens had not shown good cause to depart from the ICWA s preferences. Id. 143. As the Navajo family prepared for A.L.M. s arrival, the Brackeens were granted an emergency stay. See Dkt. 78 at 3. Because the stay prevented any change in A.L.M. s placement for the duration of the potentially years long appeal, the Navajo family withdrew from consideration and the Brackeens adopted A.L.M. Id. The Brackeens then brought this suit challenging the application of the ICWA s provisions. See Dkt. 35, 152, 259. Four other tribes intervened in the Brackeens suit as defendants. See Dkt. 45. The Nation then sought to intervene as a defendant for the limited purpose of seeking dismissal pursuant to Rule 19. See Dkt. 77. This Court concluded that even though the Nation had an interest in the case and its motion was timely, the Nation had not shown that it was entitled to intervene as a matter of right because the existing parties, were willing to defend the ICWA, and could adequately represent the Nation s interests. See Dkt. 139 at 8. The Court also declined to allow the Nation to intervene permissively because the Nation intended to intervene only to 3

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 10 of 25 PageID 4584 move to dismiss under Rule 19 a course that the Court feared could prolong[] the suit indeterminably. Id. at 10. The case proceeded without the Nation, and the Plaintiffs moved for summary judgment. On October 4, 2018, the Court granted the motion in part and denied in part, concluding among other things that the ICWA s mandatory placement preferences violate the Equal Protection Clause. See Brackeen v. Zinke, No. 4:17-cv-00868-O, 2018 WL 4927908, at *1 (N.D. Tex. Oct. 4, 2018) (Dkt. 166). The Court further found that the ICWA classification at issue was an impermissible racial classification because it distinguished between applicants not based on actual tribal membership, but on tribal ancest[ry] by blood. Id. at *12. For this proposition, the Court specifically cited to Title 1 Section 701 of the Navajo Nation Code. Id. The Court s specific reliance on Title 1, Section 701 of the Navajo Nation Code has given the Nation a unique interest in this case that cannot be adequately represented by any other party. The Nation now seeks to intervene on appeal in order to advance its interest in ensuring that its own law and the interaction between its law and the ICWA is properly represented in any appellate proceeding. III. LEGAL STANDARD Non-parties can move to intervene in a district court for purposes of appeal under Rule 24. See, e.g., Ross, 426 F.3d at 753 54. Motions to intervene in order to participate in an appeal are typically made after judgment has been entered, but before a notice of appeal has been taken. See id. Non-parties can seek to intervene either as of right under Federal Rules of Civil Procedure Rule 24(a) or by permission of the court under Rule 24(b). See Fed. R. Civ. P. 24(a)- (b). 4

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 11 of 25 PageID 4585 Even where a party has previously been denied intervention in a case, it may file a new motion to intervene if there has been a significant event, such as the entry of an opinion, that alters the landscape and requir[es] a new assessment of the party s request to intervene. Hodgson, 473 F.2d at 126 (D.C. Cir. 1972); Hopwood, 78 F.3d at 960 & n.58 (recognizing that the Fifth Circuit permits successive motions to intervene); see also Terrebonne Land Dev. Corp. v. Superior Oil Co., 65 F.R.D. 375, 379 (E.D. La. 1974) (stating that party could renew its motion to intervene if prejudice developed later in the litigation). A. Intervention as a Matter of Right Under Rule 24(a), the Court must permit anyone to intervene who... claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing of the action may as a practical matter impair or impede the movant s ability to protect its interest, unless existing parties adequately represent that interest. Fed. R. Civ. P. 24(a)(2) (emphasis added). The Fifth Circuit considers four factors when deciding whether a party may intervene of right: (1) whether the motion to intervene is timely; (2) whether the movant claims an interest relating to the property or transaction that is the subject of the action; (3) whether disposition of the action may as a practical matter impair or impede the movant s ability to protect its interest; and (4) whether existing parties do not adequately represent the interest claimed by the movant. Id.; Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015). This inquiry is a flexible one, which focuses on the particular facts and circumstances surrounding each application, and intervention of right must be measured by a practical rather than technical yardstick. Entergy Gulf States La., L.L.C. v. U.S. Envtl. Prot. Agency, 817 F.3d 198, 203 (5th Cir. 2016) (quoting Edwards v. City of Houston, 78 F.3d 983, 999 (5th Cir. 1996)). The rule is 5

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 12 of 25 PageID 4586 liberally construed, and any doubts are resolved in favor of the proposed intervenor. In re Lease Oil Antitrust Litig., 570 F.3d 244, 248 (5th Cir. 2009). B. Permissive Intervention Rule 24(b)(1) allows a court to permit anyone to intervene who... has a claim or defense that shares with the main action a common question of law or fact. Fed. R. Civ. P. 24(b)(1)(B). Permissive intervention pursuant to Rule 24(b)(1) is appropriate when: (1) timely application is made by the intervenor, (2) the intervenor s claim or defense and the main action have a question of law or fact in common, and (3) intervention will not unduly delay or prejudice the adjudication of the rights of the original parties. Frazier v. Wireline Sols., LLC, No. C-10-3, 2010 WL 2352058, at *4 (S.D. Tex. June 10, 2010) (internal quotation marks omitted); Franciscan All., Inc. v. Burwell, No. 7:16-cv-00108-O, 2017 WL 2964088, at *4 (N.D. Tex. Jan. 24, 2017). In acting on a request for permissive intervention the district court may consider, among other factors, whether the intervenors interests are adequately represented by other parties and whether intervention will unduly delay the proceedings or prejudice existing parties. Kneeland v. Nat l Collegiate Athletic Ass n, 806 F.2d 1285, 1289 (5th Cir. 1987) (internal citation omitted). Unlike intervention as of right,... permissive intervention does not center on whether their interests are adequately represented by the existing parties. Franciscan All., 2017 WL 2964088 at *4. Although the District Court has ultimate discretion whether to allow permissive intervention, see, e.g., Kneeland, 806 F.2d at 1289, the Fifth Circuit has said that [f]ederal courts should allow intervention where no one would be hurt and the greater justice could be attained. Heaton v. Monogram Credit Card Bank of Ga., 297 F.3d 416, 422 (5th Cir. 2002) (internal quotation marks omitted). 6

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 13 of 25 PageID 4587 IV. ARGUMENT AND AUTHORITIES A. Changed Circumstances Support the Granting of the Nation s Motion to Intervene. A non-party may renew a motion to intervene that has previously been denied if a significant event has occurred that alters the intervention analysis and makes the non-party s participation more important. Hodgson, 473 F.2d at 126. Precisely such an event has occurred here: The Court issued an opinion striking down the ICWA, which opinion affected important procedural protections and legal rights of the Nation and its members. And in that opinion the Court specifically cited to the membership law of the Nation. See Brackeen, 2018 WL 4927908, at *12 (Dkt. 166). Citing to the Navajo Nation Code means that the Nation now has an interest in this case that extends beyond the welfare of its children. The Nation must now ensure that the Nation s laws are properly interpreted. A sovereign s interest in ensuring the proper understanding of its own law is so great that federal law requires a court to allow a state or federal government to intervene when the constitutionality of its law is at stake. See 28 U.S.C. 2403. The Nation seeks to protect that right and, as the Supreme Court recognized in the landmark case of Santa Clara Pueblo v. Martinez, 436 U.S. 49 (1978), sovereign Indian nations have a fundamental right to define and protect their own membership laws from challenge. Because this Court relied on the Nation s membership law in concluding that the ICWA is unconstitutional, the Nation is the only one that can interpret and defend its law in the subsequent appellate proceedings in which its meaning will inevitably be at stake. For example, the Court suggested that Section 701 of the Navajo Nation Code should be viewed as race based. Brackeen, 2018 WL 4927908, at *12 (Dkt. 166). Specifically, the Court cited Navajo law to support its conclusion that a child is an Indian child if he or she is related to 7

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 14 of 25 PageID 4588 a tribal ancestor by blood. Id. (citing 1 N.N.C. 701). The Nation interprets its law as more nuanced, recognizing that a number of cultural, linguistic, and demographic factors can influence membership. 1 N.N.C. 753(B). The precise nature of the Nation s laws may well dictate whether the ICWA is constitutional, at least as applied to Navajo children. Therefore, the Nation should be permitted to advance its own view of its law. Cf. Massachusetts v. Envtl. Prot. Agency, 549 U.S. 497, 520 (2007) (noting that a sovereign has a stake in protecting its quasisovereign interests ). In addition to interpreting and defending its law, the Nation s interests may diverge from those of the other Intervenor Tribes. In the prior order denying intervention, the Court held that the Intervenor Tribes could adequately represent the Nation s interest. See Dkt. 139 at 8. That is no longer the case because the Intervenor Tribes may have an incentive to distinguish the Nation s laws in order to obtain a ruling on the ICWA that would make it constitutional as applied to tribes with membership laws different from those of the Nation. See Brackeen, 2018 WL 4927908, at *12 n.9 (Dkt. 166). Indeed, each tribe now has some impetus to demonstrate why its own laws in particular eschew the racial classifications the Court found problematic. This split in the tribes interests means that the Intervenor Tribes cannot adequately represent the Nation and that the Federal Defendants cannot be expected to do so either. Although the Federal Defendants may attempt to represent the interests of tribes in general, they are constrained in their ability to emphasize the nuances in a particular tribe s law. Moreover, this Court s merits ruling and the fact that this case will now likely move to the appellate courts also changes the basis on which the Nation seeks to intervene. Whereas the Nation previously sought to intervene to have the case dismissed under Rule 19, it no longer plans to pursue dismissal on those grounds. Instead, the Nation wishes to provide its unique 8

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 15 of 25 PageID 4589 perspective with respect to the issues at the center of this case. Because the Court previously denied intervention in part because of concerns regarding the potential delaying effects of a Rule 19 motion, see Dkt. 139 at 10, this change in the Nation s requested relief is significant. These changed circumstances remove each of the obstacles to intervention that this Court cited in its previous opinion. Because the Nation now satisfies the requirements of Rule 24(a), it should be permitted to intervene as of right to participate in the appeal. At a minimum, it should be allowed permissive intervention under Rule 24(b). B. The Nation Satisfies the Requirements for Intervention as of Right. 1. The Nation s Motion to Intervene Is Timely. To determine whether a motion to intervene is timely filed, courts consider (1) [t]he length of time during which the would-be intervenor actually kn[ew] or reasonably should have known of his interest in the case before he petitioned for leave to intervene, (2) [t]he extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor s failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest in the case, (3) [t]he extent of the prejudice that the would-be intervenor may suffer if his petition for leave to intervene is denied, and (4) [t]he existence of unusual circumstances militating either for or against a determination that the application is timely. Stallworth v. Monsanto Co., 558 F.2d 257, 264 66 (5th Cir. 1977). The timeliness of a particular motion is based on all the circumstances. Buckland v. Ohio Nat l Life Assurance Corp., No. 4:15-cv-400-O, 2015 WL 13188295, at *2 (N.D. Tex. Oct. 7, 2015) (O Connor, J.). The timeliness inquiry is not meant to be a tool to punish the tardy would-be intervenor, but rather a guard against prejudicing the original parties by the failure to apply sooner. Id. (internal quotation marks omitted). 9

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 16 of 25 PageID 4590 Here, the Nation is seeking to enter the litigation as soon as it became clear that circumstances had changed from this Court s prior denial of the Nation s motion to intervene, such that the Nation s interests are now uniquely at issue. United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977). Specifically, the Nation is moving for intervention shortly after this Court issued the judgment that altered the landscape and well before the time to appeal has lapsed. See id. at 395 96 (post-judgment motion to intervene was timely where intervenor made motion once the entry of final judgment was made); see also Ross, 426 F.3d at 755 (postjudgment motion to intervene was timely because motion was entered within the time a named party could have taken to appeal and, prior to judgment, intervenor s interests were being adequately represented by another party). In fact, a notice of appeal has not yet been filed by any of the Defendants, and the Court only recently ruled on a motion to stay its judgment pending appeal. See Dkt. 181 (denying stay on October 29, 2018). Allowing the Nation to intervene will not prejudice the existing parties. The other parties are on notice that the Nation believes that it has an interest in the case because of the Nation s previous motion to intervene. See McDonald, 432 U.S. at 395 (no prejudice to defendant from post-judgment intervention by a party that wanted to challenge the denial of class certification where defendant was put on notice in the complaint of the possibility of class-wide liability). The Nation is also not seeking to assert a tribal sovereign immunity defense as a basis for dismissal under Rule 19 as it had before, which alleviates any prior concerns about undue delay. And the other parties will be well served by having the participation of the Nation at this critical stage because the proper interpretation of the Nation s membership laws may have an important impact on the appeal. 10

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 17 of 25 PageID 4591 Further, the Nation would be seriously prejudiced if the Court were to deny intervention. The invalidation of the ICWA has far-reaching consequences for the Nation, whose children are involved in many state child custody proceedings. Indeed, this case arose in part from the adoption of a Navajo child, triggering the application of the ICWA s various proceedings, including distinct legal rights of the Nation. See, e.g., 25 U.S.C. 1914. Moreover, this Court s reliance on the Nation s membership law means that the Nation would be prejudiced if appellate proceedings were to occur in which the Nation s laws would be invoked without the Nation s ability to defend them. Neither the Intervenor Tribes nor the United States has the same interest or ability to defend the Nation s law. 2. The Nation Has an Important Interest in the Welfare of Its Children and in the Proper Application of Its Law. To demonstrate a significant protectable interest under Rule 24(a)(2), the proposed intervenor must point to an interest that is direct, substantial, [and] legally protectable. Ross, 426 F.3d at 757 (brackets in original) (internal quotation marks omitted). This interest must be one which the substantive law recognizes as belonging to or being owned by the applicant. Id. (emphasis in original) (citation omitted). Further, [w]ith respect to a potential intervenor seeking to defend an interest being attacked by a plaintiff in a lawsuit,... the intervenor is a real party in interest when the suit was intended to have a direct impact on the intervenor. Id. at 757 n.46 (emphasis in original). The Fifth Circuit has held that individuals who are the intended beneficiaries of the challenged federal policy have an interest in the challenged legislation. Texas, 805 F.3d at 660. Although a would-be intervenor may not claim an interest based only on ideological, economic, or precedential reasons, an interest that is concrete, personalized, and legally protectable is sufficient to support intervention. Id. at 657 58. 11

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 18 of 25 PageID 4592 This Court previously found that the Nation had an interest in the outcome of its case because of its interest in its member children generally, as well as a specific interest in A.L.M. Dkt. 139 at 5. The ICWA protects not only the interests of individual Indian children and families, but also [the interest] of the tribes themselves. See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49 (1989). And the Nation obviously has an interest in the welfare of A.L.M., who is an enrolled member of the Nation. See Dkt. 78 at 1. Since that previous finding, the Nation s interest in this case has magnified, because this Court s recent merits decision declared certain provisions of the ICWA and its regulations unconstitutional. See Brackeen, 2018 WL 4927908, at *12 (Dkt. 166). Without these provisions, the Nation will lose its ability to participate in state placement proceedings of its enrolled members, such as A.L.M., thereby directly affecting the Nation s interests in A.L.M. and all of the 1,153 Navajo children who are currently subject to ICWA placement proceedings, as well as those who will soon become subject to those proceedings. See 25 U.S.C. 1911(c); Martine Decl. Those interests are undoubtedly sufficient to justify intervention as of right, because Rule 24(a) allow[s] intervention by those who might be practically disadvantaged by the disposition of the action. 7C Wright & Miller, Fed. Prac. & Proc. Civ. 1908.2 (3d ed. 2007). In addition, as discussed above, this Court s merits decision provided the Nation with an additional interest in the case because the Court relied in part on the Nation s membership law to conclude that the ICWA makes impermissible racial classifications. See Brackeen, 2018 WL 4927908, at *12 (Dkt. 166). In Santa Clara, the Supreme Court recognized that a tribe s selfdefinition of membership is essential to its identity as a culturally and politically distinct entity and is central to its existence as an independent political community. 436 U.S. at 72 & n.32 12

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 19 of 25 PageID 4593 (citing Roff v. Burney, 168 U.S. 218 (1897); Cherokee Intermarriage Cases, 203 U.S. 76 (1906)). Given that a tribe s definition of its membership is based on determinations of traditional values [that] will promote cultural survival that should be made by the people of [that specific tribe], the Nation has a clear and compelling interest in interpreting and defending the nature of its own membership law. Id. at 54 (internal quotation marks omitted); see also Smith v. Babbitt, 100 F.3d 556 (8th Cir. 1996) (affirming grant of summary judgment finding lack of federal court jurisdiction to review claim based solely on tribal membership determinations, as the authority to evaluate such claims lies solely with the tribe). Moreover, an Indian tribe s power to define its membership is not subject to the constitutional limitations binding on federal and state governments when it exercises this power, see Williams v. Gover, 490 F.3d 785, 789 (9th Cir. 2007), and thus, the Nation has an interest here in defending its law in the face of an unconstitutionality ruling that makes explicit reference to the Nation s law. See also St. Pierre v. Norton, 498 F. Supp. 2d 214, 220 (D.D.C. 2007) (finding tribe to be a necessary and indispensable party under Rule 19 where case challenges tribal membership law, given that a ruling in its absence would be prejudicial as it would reverse tribal membership law, which should be free from federal interference). 3. The Nation s Interests Cannot Be Adequately Protected Without Allowing the Nation to Intervene. Under the third factor of Rule 24(a)(2), a movant must show that disposition of the action may impair or impede the applicant s ability to protect [its] interest in the subject matter of the litigation. X-Drill Holdings Inc. v. Jack-Up Drilling Rig SE 83, 320 F.R.D. 444, 449 (S.D. Tex. 2017) (quoting Heaton, 297 F.3d at 422). This showing does not necessarily require the movant to prove that it would be bound by the disposition of the action. Id. (quoting Edwards, 78 F.3d at 1004). It is sufficient if the stare decisis effect of an adverse judgment 13

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 20 of 25 PageID 4594 constitutes a sufficient impairment to compel intervention. Id. (quoting Sierra Club v. Glickman, 82 F.3d 106, 109 10 (5th Cir. 1996) (per curiam)). Intervention is necessary here because of the tremendous ramifications the outcome of this case would pose for the Nation. If Plaintiffs were to prevail in the appeal, the Nation would be prohibited from enforcing many of the provisions of the ICWA for A.L.M. and numerous other Navajo children, including the provision allowing the Nation to participate in state court proceedings. See 25 U.S.C. 1911(c). And unlike the other parties, the Nation has other statutory rights as well. See 25 U.S.C. 1914. These rights have now been adversely affected by the Court s Order, representing a tangible loss to the Nation. The Nation has a vital interest in seeing that the custody placement of its members, such as A.L.M., the other eighteen children from the Nation whose cases are pending in the Fifth Circuit, see Martine Decl., and all of its children, are covered by the provisions of ICWA so that they have the opportunity to remain connected to the Navajo community and become fully-participating and culturally and linguistically-astute tribal citizens. By intervening for purposes of appeal to ensure that state child custody determinations are based on the ICWA standards, the Nation allows its children the opportunity to maintain a connection to their people, and to remain full-fledged members of the Nation. H.R. Rep. No. 95-1386, at 23 (1978) (noting the rationale for establishing standards for placement of Indian children in Indian foster or adoptive homes). Moreover, because this Court s decision specifically cites the Nation s Code, if the Nation is not able to participate in the appeal, appellate courts, as this Court did in its Order, may interpret or characterize the Nation s membership law in a way that is contrary to the Nation s own understanding of the law and its implications. Thus, not only could an appellate ruling impact the ICWA, but by extension, it could cast a shadow on the Nation s membership law: a 14

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 21 of 25 PageID 4595 result that conflicts with the Supreme Court s holding in Santa Clara that only a tribe has the right to establish and interpret its membership criteria based on its own cultural and political standards, free from external interference or imposition of constitutional standards. Santa Clara, 436 U.S. at 72 & n.32. Practically, the Nation can only prevent these harms to its interests by successfully intervening for purposes of appeal. 4. In Light of the Court s Order, the Existing Parties No Longer Adequately Represent the Nation s Interests in the Proper Interpretation of Its Law. The fourth factor of Rule 24(a)(2) requires the potential intervenor to carry the burden of demonstrating inadequate representation, but that burden is minimal. Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538 n.10 (1972). The potential intervenor need only show that representation by the existing parties may be inadequate. Ross, 426 F.3d at 761 (emphasis in original) (internal quotation marks omitted); see also Texas, 805 F.3d at 661 ( [T]he Rule is satisfied if the applicant shows that the representation of his interest may be inadequate. (quoting Trbovich, 404 U.S. at 538 n.10)). In considering the Nation s previous motion to intervene, this Court concluded that the Federal Defendants and the Intervenor Tribes including the Cherokee Nation, who A.L.M. shares ancestry with could adequately represent the Nation s interest. But in light of this Court s recent decision invalidating the ICWA, that is no longer the case. See Brackeen, 2018 WL 4927908, at *12 (Dkt. 166). This Court s reliance on the Nation s own law makes it imperative for the Nation itself to participate, particularly where the Court denied Defendants request for further briefing on the racial classification issue. Id. at *12 n.12. In fact, although this Court concluded that the existing parties could represent the Nation s interests and the Federal Defendants presented a robust defense of the Intervenor Tribes membership laws the 15

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 22 of 25 PageID 4596 Federal Defendants did not provide the same defense of the Nation s membership law, even though the placement of a Navajo child was at issue in this case. See Dkt. 121 at 13 14; Dkt. 123 at 15 16. The Nation is uniquely suited to defend its own law against this Court s holding that it is race-based and therefore renders the ICWA unconstitutional. Neither the Intervenor Tribes nor the United States has the same interest or ability to defend the Nation s law. Indeed, as explained above, the Intervenor Tribes may have an interest at odds with the Nation, because their membership laws vary from the Nation s. The Intervenor Tribes could therefore seek to differentiate themselves from the Nation on the basis of their different laws, perhaps even arguing that the ICWA is only unconstitutional as applied to the Nation because of the unique nature of the Nation s laws. While the Nation strenuously rejects the merits of any such argument, it should have the right to participate to respond to any such attacks. C. The Nation Satisfies the Requirements for Permissive Intervention. Even if this Court were to find that intervention as of right is inappropriate, it should at least allow the Nation permissive intervention under Rule 24(b). The Nation satisfies all of the requirements for such intervention: As previously discussed, the Nation s motion has been timely filed. See pp. 9 10, supra. Moreover, this Court previously concluded that it was clear that the Nation ha[d] a claim or defense that shares with the main cause of action a common question of law Proposed Intervenor claims an interest in the benefit from the ICWA. Dkt. 139 at 10. That remains the case. Similarly, as discussed above, the Court s concern that the Nation s intervention might delay this proceeding is no longer applicable, because the Nation no longer seeks dismissal under Rule 19. But the Nation no longer plans to pursue that relief. Because the case will now likely move to an appeal, the Nation seeks to intervene to provide its perspective on the issues central to the case. 16

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 23 of 25 PageID 4597 Additionally, the Court expressed skepticism about whether the Nation would contribute to the cause of action in a meaningful way. Dkt. 139 at 10. But now, the Nation brings something to this action that no other party can: expertise on the proper interpretation of the Nation s laws. Cf. Massachusetts, 549 U.S. at 520; Santa Clara, 436 U.S. at 72 & n.32. Thus, the only obstacles to permissive intervention have been removed, and the Nation s motion should be granted. V. CONCLUSION Pursuant to Rule 24(a)(2) and Rule 24(b), the Nation respectfully requests that the Court grant mandatory intervention or, in the alternative, permissive intervention, to allow the Nation to intervene as defendant for the purposes of appeal. Dated: November 2, 2018 Respectfully submitted, By: /s/ Maria Wyckoff Boyce Maria Wyckoff Boyce, Lead Attorney Texas State Bar No. 22095050 maria.boyce@hoganlovells.com Catherine Bratic Texas State Bar No. 24087204 catherine.bratic@hoganlovells.com Jillian C. Beck Texas State Bar No. 24082672 jillian.beck@hoganlovells.com HOGAN LOVELLS US LLP 609 Main Street, Suite 4200 Houston, Texas 77002 Tel.: (713) 632-1400 Fax: (713) 632-1401 17

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 24 of 25 PageID 4598 Paul Spruhan New Mexico State Bar No. 12515 pspruhan@nndoj.org Katherine Claire Belzowski Arizona State Bar No. 031473 NAVAJO NATION DEPARTMENT OF JUSTICE Old BIA Club Building (P.O. Box 1052) Fort Defiance, Arizona 86515 Tel.: (928) 871-6210 Fax: (928) 871-6177 Preston Mundt Texas State Bar No. 24058465 preston.mundt@kellyhart.com KELLY HART & HALLMAN LLP 201 Main Street, Suite 2500 Fort Worth, Texas 76102 Tel.: (817) 332-3500 Fax: (817) 878-9820 Counsel for the Navajo Nation 18

Case 4:17-cv-00868-O Document 186 Filed 11/02/18 Page 25 of 25 PageID 4599 CERTIFICATE OF SERVICE I hereby certify that on November 2, I electronically filed the foregoing motion with the Clerk of the court for the U.S. District Court, Northern District of Texas. Notice of this filing will be sent electronically to counsel of record using the Court s electronic notification system. /s/ Maria Wyckoff Boyce Maria Wyckoff Boyce 19