Federal Law

What does the Court of Appeals for the Fifth Circuit, Louisiana and the American Civil War Have in Common?

Let it be known, this grave decision based on corporate greed has failed and has turned the economy into recession for a second time. A more damning legacy is that once proud citizens are now displaced and financially ruined. They have witnessed the illegal takings of their property and liberties.  They are now antagonists.

  The Absence of Integrity and Humanity at the Fifth Circuit




Despite a central location in the heart of the South [Louisiana], this court is part of the Union[1], a judiciary ultimately reporting to the US Government and organized under the United States Constitution and laws of the federal government.

As history recorded, William Tecumseh Sherman was a Union General during the American Civil War, a banker and  he was later allowed to be admitted to the bar as an Attorney without formal qualification based on his ‘experience and connections’, e.g. his adopted father was Charles Robert Sherman, a lawyer who sat on the Ohio Supreme Court.

Sherman was also a professor, who, for a short period, taught at what is now called Louisiana State University (“LSU”). When he resigned to take up his Union soldier role to ‘uphold’ the Constitution of the US Government, shortly thereafter the Union went on to invade Louisiana, it is recorded he personally asked that the main LSU building be spared.

William Tecumseh Sherman, however, was not that type of character by nature.  He was most remembered for his “scorched earth” policy of decimating Georgia from Atlanta to Savannah, killing the fathers and sons [the confederate soldiers], evicting families and children from their homes and burning them, confiscating their livestock and cutting off their supplies.

The unemotional General believed that the intentional eradication of the buffalo should be encouraged as a means of weakening Indian resistance to assimilation. He voiced this view in remarks to a joint session of the Texas legislature in 1875.

Since the Great Recession of 2008, this Court and the US Government has invoked their own “scorched earth” and “buffalo” policies by ordering homeowners and their families illegally out of their homesteads and communities.

Let it be known, this grave decision based on corporate greed has failed and has turned the economy into recession for a second time. A more damning legacy is that once proud citizens are now displaced and financially ruined. They have witnessed the illegal takings of their property and liberties.  They are now antagonists.

Like Sherman in battle, it shall be etched into history that this judiciary and much of the circuit[2] has the blood of the South and Texas on its’ hands. Those responsible, who claim the South and Texas as their home, yet inflict such wretchedness against their own citizens, are correctly labeled as turncoats and shall be remembered as such.

In the Burkes’ case, this Court not only incorrectly mandated an order of foreclosure with an Order Authored by a first-panel Judge, Catharina Haynes, who presided on the second panel and criticized former Judge Smith[3], but without justification or provocation, personally decided to make unfounded, abhorrent and salacious criticisms on two elderly citizens of the State of Texas in the ‘per curiam’ order.

They abused Senior Citizens who are in declining health due to the ongoing stress and mental anguish over the civil action and who were merely protecting and defending their homestead[4] interests via counsel. A shameful act.

In Justice Clarence’s words, this 3-panel “substituted their own pleasure for the law”.

[1] “Texas draws its authority not from the federal government, but from its status as a dual sovereign within the Union. That being the case, the Supreme Court has recognized that preserving comity between the dual sovereigns that make up our union is a core value of our Constitution.

This comity demands “a proper respect for state functions, a recognition of the fact that the entire country is made up of a Union of separate state governments, and a continuance of the belief that the National Government will fare best if the States and their institutions are left free to perform their separate functions in their separate ways.””

– Jeffrey C. Mateer, First Asst AG, Texas Office of the Attorney General’s letter to Ways & Means Committee, May 15th, 2019

[2] For example, if you look at the recent events of Ditech Financial, a troubled non-bank mortgage servicer in bankruptcy. Current foreclosure cases were stayed until the proceedings were finalized or a resolution found. In this case, a Press Release of their sale was issued June 18th, 2019 and yet Judge Sim Lake, in the case of Henry v. Ditech Financial LLC (4:18-cv-04414) District Court, S.D. Texas found for Ditech against the homeowner in an Order and Judgment on June 14th, 2019. As former British Ambassador Kim Darroch would most likely note, that was an unfortunate and premature action by Judge Sim Lake, on a leaked cable. Citizens would call it perversion.

[3] See Order in 18-20026, p.4 “The conduct here is extraordinary conduct that would lead to chaos if routinely done.”

[4] “The lack of protection from wrongful foreclosure is especially troubling because of what is at stake. The home is at the center of the American dream and is the subject of much of American jurisprudence…

These questions are especially salient in light of the behavior of national banks in the last two decades. During that time, banks participated in, or, in many cases caused, the subprime crisis (the worldwide market collapse due to mortgage securitization), the creation of shell recording companies to avoid the cost of public recording of property ownership, robo-signing (an automated signature process that is simply perjury in relation to foreclosures), widespread servicing abuse and rampant questionable foreclosures.

However, despite growing concerns, banks have initiated in excess of ten million foreclosures since 2008.” – John Campbell, Can We Trust Trustees? Proposals for Reducing Wrongful Foreclosures, 63 Cath. U. L. Rev. 103 (2014).

An Interesting Opinion from the Fifth Circuit After Our Sherman Post: 5th Circuit upholds Indian Child Welfare Act as constitutional, reversing lower court




On August 9th, 2019, the appeals court overturned a 2018 decision from a federal district judge who ruled that the law, which gives adoption placement preference to Native American tribes, was unconstitutional. Texas Attorney General Ken Paxton challenged the law in 2017.

In a blow to the Texas Attorney General’s Office, a federal appeals court on Friday reversed a lower court’s October 2018 ruling that struck down as unconstitutional the Indian Child Welfare Act, a decades-old federal law that aims to keep Native American families together.

Arguing that the law “elevates a child’s race over their best interest,” Texas sued in October 2017 on behalf of a non-Native couple from Forth Worth that wanted to adopt a Native American toddler they had fostered for more than a year, but were rebuffed during state adoption proceedings. ICWA gives placement preference in adoption cases to biological family members, other members of the child’s tribe and other Native American families. Passed in 1978, the law was Congress’ attempt to keep native families together at a time when as many as one-third of tribal children were being forcibly removed from their biological families through state welfare proceedings.

The couple, Chad and Jennifer Brackeen, have since successfully adopted the child, but their challenge to the law persisted. Last fall, a federal judge in North Texas ruled that the law violates constitutional principles of equal protection because it “uses ancestry as a proxy for race” and does not meet the high, “strict scrutiny” burden required for laws that rely on racial classifications.

But the New Orleans-based U.S. 5th Circuit Court of Appeals this week overturned that assessment, citing the federal government’s historical obligations to Native tribes in ruling that the law’s definition of “Indian child” should be interpreted as a “political classification” as opposed to a racial one.

The law and associated rules are “constitutional because they are based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians,” U.S. Circuit Judge James Dennis wrote for the three-judge panel. Dennis pointed to a large body of laws intended to protect Native American communities:

“If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized,” Dennis wrote, quoting an older case.

A coalition of tribal leaders, who have watched the case carefully, cheered the appeals court’s ruling, which they said “reaffirmed what we already knew: the Indian Child Welfare Act is constitutional and serves the best interests of children and families.”

“We are pleased that the court followed decades of legal precedent in its ruling, preserving a law that protects Indian children and allows them to retain their identity by staying within their families and tribal communities,” Cherokee Nation Principal Chief Bill John Baker, Morongo Band of Mission Indians Chairman Robert Martin, Oneida Nation Chairman Tehassi Hill and Quinault Indian Nation President Fawn Sharp said in a joint statement. The four tribes had intervened in the case to defend the law. The law, they said, “ensures that we have a process in place focusing first and foremost on the welfare and safety of children.”

An additional 325 tribes and 57 tribal organizations submitted friend-of-the-court briefs backing the law.

The Texas Attorney General’s Office did not immediately answer questions about whether it plans to appeal.

What does the Court of Appeals for the Fifth Circuit, Louisiana and the American Civil War Have in Common?

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