Chad Brackeen v. David Bernhardt

MODIFIED August 16, 2019

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit

FILED
August 9, 2019
No. 18-11479
Lyle W. Cayce
Clerk
CHAD EVERET BRACKEEN; JENNIFER KAY BRACKEEN; STATE OF
TEXAS; ALTAGRACIA SOCORRO HERNANDEZ; STATE OF INDIANA;
JASON CLIFFORD; FRANK NICHOLAS LIBRETTI; STATE OF
LOUISIANA; HEATHER LYNN LIBRETTI; DANIELLE CLIFFORD,

Plaintiffs - Appellees

v.

DAVID BERNHARDT, SECRETARY, U.S. DEPARTMENT OF THE
INTERIOR; TARA SWEENEY, in her official capacity as Acting Assistant
Secretary for Indian Affairs; BUREAU OF INDIAN AFFAIRS; UNITED
STATES DEPARTMENT OF INTERIOR; UNITED STATES OF AMERICA;
ALEX AZAR, In his official capacity as Secretary of the United States
Department of Health and Human Services; UNITED STATES
DEPARTMENT OF HEALTH AND HUMAN SERVICES,

Defendants - Appellants

CHEROKEE NATION; ONEIDA NATION; QUINAULT INDIAN NATION;
MORONGO BAND OF MISSION INDIANS,

Intervenor Defendants - Appellants

Appeals from the United States District Court
for the Northern District of Texas
 No. 18-11479
Before WIENER, DENNIS, and OWEN, Circuit Judges.
JAMES L. DENNIS, Circuit Judge:
This case presents facial constitutional challenges to the Indian Child
Welfare Act of 1978 (ICWA) and statutory and constitutional challenges to the
2016 administrative rule (the Final Rule) that was promulgated by the
Department of the Interior to clarify provisions of ICWA. Plaintiffs are the
states of Texas, Indiana, and Louisiana, and seven individuals seeking to adopt
Indian children. Defendants are the United States of America, several federal
agencies and officials in their official capacities, and five intervening Indian
tribes. Defendants moved to dismiss the complaint for lack of subject matter
jurisdiction, but the district court denied the motion, concluding, as relevant
to this appeal, that Plaintiffs had Article III standing. The district court then
granted summary judgment in favor of Plaintiffs, ruling that provisions of
ICWA and the Final Rule violated equal protection, the Tenth Amendment,
the nondelegation doctrine, and the Administrative Procedure Act.
Defendants appealed. Although we AFFIRM the district court’s ruling that
Plaintiffs had standing, we REVERSE the district court’s grant of summary
judgment to Plaintiffs and RENDER judgment in favor of Defendants.
BACKGROUND
I. The Indian Child Welfare Act (ICWA)
Congress enacted the Indian Child Welfare Act of 1978 (ICWA), 25
U.S.C. §§ 1901 et seq., to address rising concerns over “abusive child welfare
practices that resulted in the separation of large numbers of Indian children
from their families and tribes through adoption or foster care placement,
usually in non-Indian homes.” Miss. Band Choctaw Indians v. Holyfield, 490

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U.S. 30, 32 (1989). Recognizing that a “special relationship” exists between the
United States and Indian tribes, Congress made the following findings:
Congress has plenary power over Indian affairs. 25 U.S.C. § 1901(1)
(citing U.S. CONST. art. I, section 8, cl. 3 (“The Congress shall have Power . . .
To regulate Commerce . . . with the Indian Tribes.”)).
“[T]here is no resource that is more vital to the continued existence and
integrity of Indian tribes than their children . . . .” Id. at § 1901(3).
“[A]n alarmingly high percentage of Indian families are broken up by the
removal, often unwarranted, of their children from them by nontribal public
and private agencies and that an alarmingly high percentage of such children
are placed in non-Indian foster and adoptive homes and institutions.” Id. at
§ 1901(4).
“States exercising their recognized jurisdiction over Indian child custody
proceedings through administrative and judicial bodies, have often failed to
recognize the essential tribal relations of Indian people and the cultural and
social standards prevailing in Indian communities and families.” Id. at
§ 1901(5).
In light of these findings, Congress declared that it was the policy of the
United States “to protect the best interests of Indian children and to promote
the stability and security of Indian tribes and families by the establishment of
minimum Federal standards for the removal of Indian children from their
families and the placement of such children in foster or adoptive homes which
will reflect the unique values of Indian culture, and by providing for assistance
to Indian tribes in the operation of child and family service programs.” Id. at
§ 1902.
ICWA applies in state court child custody proceedings involving an
“Indian child,” defined as “any unmarried person who is under age eighteen
and is either (a) a member of an Indian tribe or (b) is eligible for membership
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in an Indian tribe and is the biological child of a member of an Indian tribe.”
Id. at § 1903(4). In proceedings for the foster care placement or termination of
parental rights, ICWA provides “the Indian custodian of the child and the
Indian child’s tribe [] a right to intervene at any point in the proceeding.” Id.
at § 1911(c). Where such proceedings are involuntary, ICWA requires that the
parent, the Indian custodian, the child’s tribe, or the Secretary of the United
States Department of the Interior (Secretary or Secretary of the Interior) be
notified of pending proceedings and of their right to intervene. Id. at § 1912.
In voluntary proceedings for the termination of parental rights or adoptive
placement of an Indian child, the parent can withdraw consent for any reason
prior to entry of a final decree of adoption or termination, and the child must
be returned to the parent. Id. at § 1913(c). If consent was obtained through
fraud or duress, a parent may petition to withdraw consent within two years
after the final decree of adoption and, upon a showing of fraud or duress, the
court must vacate the decree and return the child to the parent. Id. at
§ 1913(d). An Indian child, a parent or Indian custodian from whose custody
the child was removed, or the child’s tribe may file a petition in any court of
competent jurisdiction to invalidate an action in state court for foster care
placement or termination of parental rights if the action violated any provision
of ICWA §§ 1911–13. Id. at § 1914.
ICWA further sets forth placement preferences for foster care,
preadoptive, and adoptive proceedings involving Indian children. Section 1915
requires that “[i]n any adoptive placement of an Indian child under State law,
a preference shall be given, in the absence of good cause to the contrary, to a
placement with: (1) a member of the child’s extended family; (2) other members
of the Indian child’s tribe; or (3) other Indian families.” Id. at § 1915(a).
Similar requirements are set for foster care or preadoptive placements. Id. at
§ 1915(b). If a tribe establishes by resolution a different order of preferences,
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the state court or agency effecting the placement “shall follow [the tribe’s] order
so long as the placement is the least restrictive setting appropriate to the
particular needs of the child.” Id. at § 1915(c).
The state in which an Indian child’s placement was made shall maintain
records of the placement, which shall be made available at any time upon
request by the Secretary or the child’s tribe. Id. at § 1915(e). A state court
entering a final decree in an adoptive placement “shall provide the Secretary
with a copy of the decree or order” and information as necessary regarding “(1)
the name and tribal affiliation of the child; (2) the names and addresses of the
biological parents; (3) the names and addresses of the adoptive parents; and
(4) the identity of any agency having files or information relating to such
adoptive placement.” Id. at § 1951(a). ICWA’s severability clause provides
that “[i]f any provision of this chapter or the applicability thereof is held
invalid, the remaining provisions of this chapter shall not be affected thereby.”
Id. at § 1963.
II. The Final Rule
ICWA provides that “the Secretary [of the Interior] shall promulgate
such rules and regulations as may be necessary to carry out [its] provisions.”
25 U.S.C. § 1952. In 1979, the Bureau of Indian Affairs (BIA) promulgated
guidelines (the “1979 Guidelines”) intended to assist state courts in
implementing ICWA but without “binding legislative effect.” Guidelines for
State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (Nov. 26,
1979). The 1979 Guidelines left the “primary responsibility” of interpreting
certain language in ICWA “with the [state] courts that decide Indian child
custody cases.” Id. However, in June 2016, the BIA promulgated the Final
Rule to “clarify the minimum Federal standards governing implementation of
[ICWA]” and to ensure that it “is applied in all States consistent with the Act’s
express language, Congress’s intent in enacting the statute, and to promote
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the stability and security of Indian tribes and families.” 25 C.F.R. § 23.101;
Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,868 (June 14,
2016). The Final Rule explained that while the BIA “initially hoped that
binding regulations would not be necessary to carry out [ICWA], a third of a
century of experience has confirmed the need for more uniformity in the
interpretation and application of this important Federal law.” 81 Fed. Reg. at
38,782.
The Final Rule provides that states have the responsibility of
determining whether a child is an “Indian child” subject to ICWA’s
requirements. 25 C.F.R. §§ 23.107–22; 81 Fed. Reg. at 38,778, 38,869–73. The
Final Rule also sets forth notice and recordkeeping requirements for states, see
25 U.S.C. §§ 23.140–41; 81 Fed. Reg. at 38,778, 38,875–76, and requirements
for states and individuals regarding voluntary proceedings and parental
withdrawal of consent, see 25 C.F.R. §§ 23.124–28; 81 Fed. Reg. at 38,778,
38,873–74. The Final Rule also restates ICWA’s placement preferences and
clarifies when they apply and when states may depart from them. See 25
C.F.R. §§ 23.129–32; 81 Fed. Reg. at 38,778, 38,874–75.
III. The Instant Action
A. Parties
1. Plaintiffs
Plaintiffs in this action are the states of Texas, Louisiana, and Indiana, 1
(collectively, the “State Plaintiffs”), and seven individual Plaintiffs—Chad and
Jennifer Brackeen (the “Brackeens”), Nick and Heather Libretti (the
“Librettis”), Altagracia Socorro Hernandez (“Hernandez”), and Jason and

1 There are three federally recognized tribes in Texas: the Yselta del Sur Pueblo, the
Kickapoo Tribe, and the Alabama-Coushatta Tribe. There are four federally recognized
tribes in Louisiana: the Chitimacha Tribe, the Coushatta Tribe, the Tunica-Biloxi Tribe, and
the Jena Band of Choctaw Indians. There is one federally recognized tribe in Indiana: the
Pokagon Band of Potawatomi Indians.
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Danielle Clifford (the “Cliffords”) (collectively, “Individual Plaintiffs”) (together
with State Plaintiffs, “Plaintiffs”).
a. The Brackeens & A.L.M.
At the time their initial complaint was filed in the district court, the
Brackeens sought to adopt A.L.M., who falls within ICWA’s definition of an
“Indian Child.” His biological mother is an enrolled member of the Navajo
Nation and his biological father is an enrolled member of the Cherokee Nation.
When A.L.M. was ten months old, Texas’s Child Protective Services (“CPS”)
removed him from his paternal grandmother’s custody and placed him in foster
care with the Brackeens. Both the Navajo Nation and the Cherokee Nation
were notified pursuant to ICWA and the Final Rule. A.L.M. lived with the
Brackeens for more than sixteen months before they sought to adopt him with
the support of his biological parents and paternal grandmother. In May 2017,
a Texas court, in voluntary proceedings, terminated the parental rights of
A.L.M.’s biological parents, making him eligible for adoption under Texas law.
Shortly thereafter, the Navajo Nation notified the state court that it had
located a potential alternative placement for A.L.M. with non-relatives in New
Mexico, though this placement ultimately failed to materialize. In July 2017,
the Brackeens filed an original petition for adoption, and the Cherokee Nation
and Navajo Nation were notified in compliance with ICWA. The Navajo Nation
and the Cherokee Nation reached an agreement whereby the Navajo Nation
was designated as A.L.M.’s tribe for purposes of ICWA’s application in the state
proceedings. No one intervened in the Texas adoption proceeding or otherwise
formally sought to adopt A.L.M. The Brackeens entered into a settlement with
the Texas state agency and A.L.M.’s guardian ad litem specifying that, because
no one else sought to adopt A.L.M., ICWA’s placement preferences did not
apply. In January 2018, the Brackeens successfully petitioned to adopt A.L.M.
The Brackeens initially alleged in their complaint that they would like to
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continue to provide foster care for and possibly adopt additional children in
need, but their experience adopting A.L.M. made them reluctant to provide
foster care for other Indian children in the future. Since their complaint was
filed, the Brackeens have sought to adopt A.L.M.’s sister, Y.R.J. in Texas state
court. Y.R.J., like her brother, is an Indian Child for purposes of ICWA. The
Navajo Nation contests the adoption. On February 2, 2019, the Texas court
granted the Brackeens’ motion to declare ICWA inapplicable as a violation of
the Texas constitution, but “conscientiously refrain[ed]” from ruling on the
Brackeens’ claims under the United States Constitution pending our
resolution of the instant appeal.
b. The Librettis & Baby O.
The Librettis live in Nevada and sought to adopt Baby O. when she was
born in March 2016. Baby O.’s biological mother, Hernandez, wished to place
Baby O. for adoption at her birth, though Hernandez has continued to be a part
of Baby O.’s life and she and the Librettis visit each other regularly. Baby O.’s
biological father, E.R.G., descends from members of the Ysleta del sur Pueblo
Tribe (the “Pueblo Tribe”), located in El Paso, Texas, and was a registered
member at the time Baby O. was born. The Pueblo Tribe intervened in the
Nevada custody proceedings seeking to remove Baby O. from the Librettis.
Once the Librettis joined the challenge to the constitutionality of the ICWA
and the Final Rule, the Pueblo Tribe indicated that it was willing settle. The
Librettis agreed to a settlement with the tribe that would permit them to
petition for adoption of Baby O. The Pueblo Tribe agreed not to contest the
Librettis’ adoption of Baby O., and on December 19, 2018, the Nevada state
court issued a decree of adoption, declaring that the Librettis were Baby O.’s
lawful parents. Like the Brackeens, the Librettis alleged that they intend to
provide foster care for and possibly adopt additional children in need but are
reluctant to foster Indian children after this experience.
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c. The Cliffords & Child P.
The Cliffords live in Minnesota and seek to adopt Child P., whose
maternal grandmother is a registered member of the White Earth Band of
Ojibwe Tribe (the “White Earth Band”). Child P. is a member of the White
Earth Band for purposes of ICWA’s application in the Minnesota state court
proceedings. Pursuant to ICWA section 1915’s placement preferences, county
officials removed Child P. from the Cliffords’ custody and, in January 2018,
placed her in the care of her maternal grandmother, whose foster license had
been revoked. Child P.’s guardian ad litem supports the Cliffords’ efforts to
adopt her and agrees that the adoption is in Child P.’s best interest. The
Cliffords and Child P. remain separated, and the Cliffords face heightened
legal barriers to adopting her. On January 17, 2019, the Minnesota court
denied the Cliffords’ motion for adoptive placement.
2. Defendants
Defendants are the United States of America; the United States
Department of the Interior and its Secretary Ryan Zinke, in his official
capacity; the BIA and its Director Bryan Rice, in his official capacity; the BIA
Principal Assistant Secretary for Indian Affairs John Tahsuda III, in his
official capacity; and the Department of Health and Human Services (“HHS”)
and its Secretary Alex M. Azar II, in his official capacity (collectively the
“Federal Defendants”). Shortly after this case was filed in the district court,
the Cherokee Nation, Oneida Nation, Quinalt Indian Nation, and Morengo
Band of Mission Indians (collectively, the “Tribal Defendants”) moved to
intervene, and the district court granted the motion. On appeal, we granted

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the Navajo Nation’s motion to intervene as a defendant 2 (together with Federal
and Tribal Defendants, “Defendants”).
B. Procedural History
Plaintiffs filed the instant action against the Federal Defendants in
October 2017, alleging that the Final Rule and certain provisions of ICWA are
unconstitutional and seeking injunctive and declaratory relief. Plaintiffs
argued that ICWA and the Final Rule violated equal protection and
substantive due process under the Fifth Amendment and the
anticommandeering doctrine that arises from the Tenth Amendment.
Plaintiffs additionally sought a declaration that provisions of ICWA and the
Final Rule violated the nondelegation doctrine and the Administrative
Procedure Act (APA). Defendants moved to dismiss, alleging that Plaintiffs
lacked standing. The district court denied the motion. All parties filed cross-
motions for summary judgment. The district court granted Plaintiffs’ motion
for summary judgment in part, concluding that ICWA and the Final Rule
violated equal protection, the Tenth Amendment, and the nondelegation
doctrine, and that the challenged portions of the Final Rule were invalid under
the APA. 3 Defendants appealed. A panel of this court subsequently stayed the
district court’s judgment pending further order of this court. In total, fourteen
amicus briefs were filed in this court, including a brief in support of Plaintiffs
and affirmance filed by the state of Ohio; and a brief in support of Defendants
and reversal filed by the states of California, Alaska, Arizona, Colorado, Idaho,

2 The Navajo Nation had previously moved to intervene twice in the district court.
The first motion was for the limited purpose of seeking dismissal pursuant to Rule 19, which
the district court denied. The Navajo Nation filed a second motion to intervene for purposes
of appeal after the district court’s summary judgment order. The district court deferred
decision on the motion pending further action by this court, at which time the Navajo Nation
filed the motion directly with this court.
3 The district court denied Plaintiffs’ substantive Due Process claim, from which

Plaintiffs do not appeal.
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Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi,
Montana, New Jersey, New Mexico, Oregon, Rhode Island, Utah, Virginia,
Washington, and Wisconsin.
STANDARD OF REVIEW
We review a district court’s grant of summary judgment de novo. See
Texas v. United States, 497 F.3d 491, 495 (5th Cir. 2007). Summary judgment
is appropriate when the movant has demonstrated “that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a
matter of law.” FED. R. CIV. P. 56(a). A genuine dispute of material fact exists
“if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
DISCUSSION
I. Article III Standing
Defendants first contend that Plaintiffs lack standing to challenge ICWA
and the Final Rule. The district court denied Defendants’ motion to dismiss
on this basis, concluding that Individual Plaintiffs had standing to bring an
equal protection claim; State Plaintiffs had standing to challenge provisions of
ICWA and the Final Rule on the grounds that they violated the Tenth
Amendment and the nondelegation doctrine; and all Plaintiffs had standing to
bring an APA claim challenging the validity of the Final Rule.
Article III limits the power of federal courts to “Cases” and
“Controversies.” See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing
U.S. CONST. art. III, § 2). “Standing to sue is a doctrine rooted in the traditional
understanding of a case or controversy.” Id. To meet the Article III standing
requirement, plaintiffs must demonstrate “(1) an injury that is (2) fairly
traceable to the defendant’s allegedly unlawful conduct and that is (3) likely to
be redressed by the requested relief.” Lujan v. Defs. of Wildlife, 504 U.S. 555,
590 (1992) (internal quotations omitted). A plaintiff seeking equitable relief
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must demonstrate a likelihood of future injury in addition to past harm. See
City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). This injury must be
“concrete and particularized” and “actual or imminent, not conjectural or
hypothetical.” See Lujan, 504 U.S. at 560 (cleaned up). “[S]tanding is not
dispensed in gross,” and “a plaintiff must demonstrate standing for each claim
he seeks to press and for each form of relief that is sought.” Town of Chester,
N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (quoting Davis v. Fed.
Election Comm’n, 554 U.S. 724, 734 (2008)). “[T]he presence of one party with
standing is sufficient to satisfy Article III’s case-or-controversy requirement.”
Rumsfeld v. Forum for Acad. & Institutional Rights, Inc., 547 U.S. 47, 53 n.2
(2006). “This court reviews questions of standing de novo.” Nat’l Rifle Ass’n of
Am., Inc. v. McCraw, 719 F.3d 338, 343 (5th Cir. 2013).
A. Standing to Bring Equal Protection Claim
Plaintiffs challenged ICWA sections 1915(a)–(b), 1913(d), and 1914 and
Final Rule sections 23.129–32 on equal protection grounds, alleging that these
provisions impose regulatory burdens on non-Indian families seeking to adopt
Indian children that are not similarly imposed on Indian families who seek to
adopt Indian children. The district court concluded that Individual Plaintiffs
suffered and continued to suffer injuries when their efforts to adopt Indian
children were burdened by ICWA and the Final Rule; that their injuries were
fairly traceable to ICWA and the Final Rule because these authorities
mandated state compliance; and that these injuries were redressable because
if ICWA and the Final Rule were invalidated, then state courts would no longer
be required to follow them. Defendants disagree, arguing that the Individual
Plaintiffs cannot demonstrate an injury in fact or redressability and thus lack
standing to bring an equal protection claim. For the reasons below, we
conclude that the Brackeens have standing to assert an equal protection claim
as to ICWA sections 1915(a)–(b) and Final Rule sections 23.129–32, but as
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discussed below, not as to ICWA sections 1913–14. Accordingly, because one
Plaintiff has standing, the “case-or-controversy requirement” is satisfied as to
this claim, and we do not analyze whether any other Individual Plaintiff has
standing to raise it. 4 See Rumsfeld, 547 U.S. at 53 n.2.
The district court concluded that ICWA section 1913(d), which allows a
parent to petition the court to vacate a final decree of adoption on the grounds
that consent was obtained through fraud or duress, left the Brackeens’
adoption of A.L.M. vulnerable to collateral attack for two years. Defendants
argue that section 1914, 5 and not section 1913(d), applies to the Brackeens’
state court proceedings and that, in any event, an injury premised on potential
future collateral attack under either provision is too speculative. We need not
decide which provision applies here, as neither the Brackeens nor any of the
Individual Plaintiffs havesuffered an injury under either provision. Plaintiffs
do not assert that A.L.M.’s biological parents, the Navajo Nation, or any other
party seeks to invalidate the Brackeens’ adoption of A.L.M. under either
provision. Plaintiffs’ proffered injury under section 1913 or section 1914 is
therefore too speculative to support standing. See Lujan, 504 U.S. at 560; see
also Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013) (“[T]hreatened
injury must be certainly impending to constitute injury in fact, and []
[a]llegations of possible future injury are not sufficient.” (cleaned up)). To the
extent Plaintiffs argue that an injury arises from their attempts to avoid

4 State Plaintiffs argue that they have standing to bring an equal protection challenge
in parens patriae on behalf of their citizens. We disagree. See South Carolina v. Katzenbach,
383 U.S. 301, 324 (1966) (“[A] State [does not] have standing as the parent of its citizens to
invoke [the Fifth Amendment Due Process Clause] against the Federal Government, the
ultimate parens patriae of every American citizen.”).
5 “Any Indian child who is the subject of any action for foster care placement or

termination of parental rights under State law, any parent or Indian custodian from whose
custody such child was removed, and the Indian child’s tribe may petition any court of
competent jurisdiction to invalidate such action upon a showing that such action violated any
provision of sections 1911, 1912, and 1913 of this title.” 25 U.S.C. § 1914.
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collateral attack under section 1914 by complying with sections 1911–13,
“costs incurred to avoid injury are insufficient to create standing” where the
injury is not certainly impending. See Clapper, 568 U.S. at 417.
The district court also concluded that ICWA section 1915, and
sections 23.129–32 of the Final Rule, which clarify section 1915, gave rise to
an injury from an increased regulatory burden. We agree. Prior to the
finalization of the Brackeens’ adoption of A.L.M., the Navajo Nation notified
the state court that it had located a potential alternative placement for A.L.M.
in New Mexico. Though that alternative placement ultimately failed to
materialize, the regulatory burdens ICWA section 1915 and Final Rule
sections 23.129–32 imposed on the Brackeens in A.L.M.’s adoption
proceedings, which were ongoing at the time the complaint was filed, are
sufficient to demonstrate injury. See Contender Farms, L.L.P. v. U.S. Dep’t of
Agric., 779 F.3d 258, 266 (5th Cir. 2015) (“An increased regulatory burden
typically satisfies the injury in fact requirement.”); see also Rockwell Int’l Corp.
v. United States, 549 U.S. 457, 473–74 (2007) (standing is assessed at the time
the complaint was filed); Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 184 (2000) (discussing Lyons, 461 U.S. at 108, and
finding the injury requirement satisfied where the alleged harmful conduct
was occurring when the complaint was filed).
Defendants contend that the Brackeens’ challenge to section 1915 and
sections 23.129–32 is moot. They argue that, because the Brackeens’ adoption
of A.L.M. was finalized in January 2018 and the Navajo Nation will not seek
to challenge the adoption, section 1915’s placement preferences no longer
apply in A.L.M.’s adoption proceedings. Plaintiffs argue that section 1915’s
placement preferences impose on them the ongoing injury of increased
regulatory burdens in their proceedings to adopt A.L.M.’s sister, Y.R.J., which
the Navajo Nation currently opposes in Texas state court.
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“A corollary to this case-or-controversy requirement is that an actual
controversy must be extant at all stages of review, not merely at the time the
complaint is filed.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71
(2013). “[A] case is moot when the issues presented are no longer live or the
parties lack a legally cognizable interest in the outcome.” Powell v.
McCormack, 395 U.S. 486, 496 (1969)(internal quotation marks omitted).
However, mootness will not render a case non-justiciable where the dispute is
one that is “capable of repetition, yet evading review.” See Murphy v. Hunt,
455 U.S. 478, 482 (1982). “That exception applies where (1) the challenged
action is in its duration too short to be fully litigated prior to cessation or
expiration, and (2) there is a reasonable expectation that the same complaining
party will be subject to the same action again.” Davis v. Fed. Election Comm’n,
554 U.S. 724, 735 (2008) (internal citations and quotations omitted). Here, the
Brackeens were unable to fully litigate a challenge to section 1915 before
successfully adopting A.L.M. Additionally, they have demonstrated a
reasonable expectation that they will be subject to section 1915’s regulatory
burdens in their adoption proceedings involving A.L.M.’s sister, Y.R.J. Thus,
the Brackeens’ challenge to section 1915 is justiciable on the grounds that it is
capable of repetition, yet evading review. See Hunt, 455 U.S. at 482.
Having thus found an injury with respect to ICWA section 1915 and
Final Rule sections 23.129–32, we consider whether causation and
redressability are met here. See Lujan, 504 U.S. at 590. The Brackeens’
alleged injury is fairly traceable to the actions of at least some of the Federal
Defendants, who bear some responsibility for the regulatory burdens imposed
by ICWA and the Final Rule. See Contender Farms, L.L.P., 779 F.3d at 266
(noting that causation “flow[ed] naturally from” a regulatory injury).
Additionally, the Brackeens have demonstrated a likelihood that their injury
will be redressed by a favorable ruling of this court. In the Brackeens’ ongoing
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proceedings to adopt Y.R.J., the Texas court has indicated that it will refrain
from ruling on the Brackeens’ federal constitutional claims pending a ruling
from this court. Accordingly, Plaintiffs have standing to bring an equal
protection claim challenging ICWA section 1915(a)–(b) and Final Rule sections
23.129–32. See Lujan, 504 U.S. at 590; Rumsfeld, 547 U.S. at 53 n.2.
B. Standing to Bring Administrative Procedure Act Claim
Plaintiffs first argue that ICWA does not authorize the Secretary of the
Interior to promulgate binding rules and regulations, and the Final Rule is
therefore invalid under the APA. The district court ruled that State Plaintiffs
had standing to bring this claim, determining that the Final Rule injured State
Plaintiffs by intruding upon their interests as quasi-sovereigns to control the
domestic affairs within their states. 6 A state may be entitled to “special
solicitude” in our standing analysis if the state is vested by statute with a
procedural right to file suit to protect an interest and the state has suffered an
injury to its “quasi-sovereign interests.” Massachusetts v. EPA, 549 U.S. 497,
518–20 (2007) (holding that the Clean Air Act provided Massachusetts a
procedural right to challenge the EPA’s rulemaking, and Massachusetts
suffered an injury in its capacity as a quasi-sovereign landowner due to rising
sea levels associated with climate change). Applying Massachusetts, this court
in Texas v. United States held that Texas had standing to challenge the
Department of Homeland Security’s implementation and expansion of the
Deferred Action for Childhood Arrivals program (DACA) under the APA. See
809 F.3d 134, 152 (5th Cir. 2015). This court reasoned that Texas was entitled
to special solicitude on the grounds that the APA created a procedural right to

6The district court also found an injury based on the Social Security Act’s conditioning
of funding on states’ compliance with ICWA. However, because we find that Plaintiffs have
standing on other grounds, we decline to decide whether they have demonstrated standing
based on an alleged injury caused by the SSA.
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challenge the DHS’s actions, and DHS’s actions affected states’ sovereign
interest in creating and enforcing a legal code. See id. at 153 (internal
quotations omitted).
Likewise, here, the APA provides State Plaintiffs a procedural right to
challenge the Final Rule. See id.; 5 U.S.C. § 702. Moreover, State Plaintiffs
allege that the Final Rule affects their sovereign interest in controlling child
custody proceedings in state courts. See Texas, 809 F.3d at 153 (recognizing
that, pursuant to a sovereign interest in creating and enforcing a legal code,
states may have standing based on, inter alia, federal preemption of state law).
Thus, State Plaintiffs are entitled to special solicitude in our standing inquiry.
With this in mind, we find that the elements of standing are satisfied. If, as
State Plaintiffs alleged, the Secretary promulgated a rule binding on states
without the authority to do so, then State Plaintiffs have suffered a concrete
injury to their sovereign interest in controlling child custody proceedings that
was caused by the Final Rule. Additionally, though state courts and agencies
are not bound by this court’s precedent, a favorable ruling from this court
would remedy the alleged injury to states by making their compliance with
ICWA and the Final Rule optional rather than compulsory. See Massachusetts,
549 U.S. at 521 (finding redressability where the requested relief would prompt
the agency to “reduce th[e] risk” of harm to the state).
C. Standing to Bring Tenth Amendment Claim
For similar reasons, the district court found, and we agree, that State
Plaintiffs have standing to challenge provisions of ICWA and the Final Rule
under the Tenth Amendment. The imposition of regulatory burdens on State
Plaintiffs is sufficient to demonstrate an injury to their sovereign interest in
creating and enforcing a legal code to govern child custody proceedings in state
courts. See Texas, 809 F.3d at 153. Additionally, the causation and
redressability requirements are satisfied here, as a favorable ruling from this
17
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court would likely redress State Plaintiffs’ injury by lifting the mandatory
burdens ICWA and the Final Rule impose on states. See Lujan, 504 U.S. at
590.
D. Standing to Bring Nondelegation Claim
Finally, Plaintiffs contend that ICWA section 1915(c), which allows a
tribe to establish a different order of section 1915(a)’s placement preferences,
is an impermissible delegation of legislative power that binds State Plaintiffs.
Defendants argue that State Plaintiffs cannot demonstrate an injury, given the
lack of evidence that a tribe’s reordering of section 1915(a)’s placement
preferences has affected any children in Texas, Indiana, or Louisiana or that
such impact is “certainly impending.” State Plaintiffs respond that tribes can
change ICWA’s placement preferences at any time and that at least one tribe,
the Alabama-Coushatta Tribe of Texas, has already done so. We conclude that
State Plaintiffs have demonstrated injury and causation with respect to this
claim, as State Plaintiffs’ injury from the Alabama-Coushatta Tribe’s decision
to depart from ICWA section 1915’s placement preferences is concrete and
particularized and not speculative. See Lujan, 504 U.S. at 560. Moreover, a
favorable ruling from this court would redress State Plaintiffs’ injury by
making a state’s compliance with a tribe’s alternative order of preferences
under ICWA section 1915(c) optional rather than mandatory. See id.
Accordingly, having found that State Plaintiffs have standing on the
aforementioned claims, we proceed to the merits of these claims. We note at
the outset that ICWA is entitled to a “presumption of constitutionality,” so long
as Congress enacted the statute “based on one or more of its powers
enumerated in the Constitution.” See United States v. Morrison, 529 U.S. 598,
607 (2000). “Due respect for the decisions of a coordinate branch of
Government demands that we invalidate a congressional enactment only upon

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a plain showing that Congress has exceeded its constitutional bounds.” Id.
(citing, among others, United States v. Harris, 106 U.S. 629, 635 (1883)).
II. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment prohibits
states from “deny[ing] to any person within its jurisdiction the equal protection
of the laws.” U.S. CONST., amend. 14, § 1. This clause is implicitly incorporated
into the Fifth Amendment’s guarantee of due process. See Bolling v. Sharpe,
347 U.S. 497, 499 (1954). We apply the same analysis with respect to equal
protection claims under the Fifth and Fourteenth Amendments. See Richard
v. Hinson, 70 F.3d 415, 417 (5th Cir. 1995). In evaluating an equal protection
claim, strict scrutiny applies to laws that rely on classifications of persons
based on race. See id. But where the classification is political, rational basis
review applies. See Morton v. Mancari, 417 U.S. 535, 555 (1974). The district
court granted summary judgment on behalf of Plaintiffs, concluding that
section 1903(4)—setting forth ICWA’s definition of “Indian Child” for purposes
of determining when ICWA applies in state child custody proceedings—was a
race-based classification that could not withstand strict scrutiny. 7 On appeal,
the parties disagree as to whether section 1903(4)’s definition of “Indian Child”
is a political or race-based classification and which level of scrutiny applies.
“We review the constitutionality of federal statutes de novo.” Nat’l Rifle Ass’n

7 As described above, we conclude that Plaintiffs have standing to challenge ICWA
section 1915(a)–(b) and Final Rule sections 23.129–32 on equal protection grounds. The
district court’s analysis of whether the ICWA classification was political or race-based focused
on ICWA section 1903(4), presumably because section 1903(4) provides a threshold definition
of “Indian child” that must be met for any provision of ICWA to apply in child custody
proceedings in state court. Because we are satisfied that our analysis would produce the
same result with respect to section 1903(4) and the specific provisions Plaintiffs have
standing to challenge, we similarly confine our discussion of whether ICWA presents a
political or race-based classification to section 1903(4).
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of Am., Inc. v. Bureau of Alcohol, Tobacco, Firearms, & Explosives, 700 F.3d
185, 192 (5th Cir. 2012).
A. Level of Scrutiny
We begin by determining whether ICWA’s definition of “Indian child” is
a race-based or political classification and, consequently, which level of
scrutiny applies. The district court concluded that ICWA’s “Indian Child”
definition was a race-based classification. We conclude that this was error.
Congress has exercised plenary power “over the tribal relations of the Indians
. . . from the beginning, and the power has always been deemed a political one,
not subject to be controlled by the judicial department of the government.”
Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903). The Supreme Court’s
decisions “leave no doubt that federal legislation with respect to Indian tribes
. . . is not based upon impermissible racial classifications.” United States v.
Antelope, 430 U.S. 641, 645 (1977). “Literally every piece of legislation dealing
with Indian tribes and reservations . . . single[s] out for special treatment a
constituency of tribal Indians living on or near reservations.” Mancari, 417
U.S. at 552. “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.” Id.
In Morton v. Mancari, the Supreme Court rejected a challenge to a law
affording to qualified Indian applicants—those having one-fourth or more
degree Indian blood with membership in a federally recognized tribe 8—a hiring

8 The United States currently recognizes 573 Tribal entities. See 84 Fed. Reg. 1,200
(Feb. 1, 2019). Federal recognition “is a formal political act confirming the tribe’s existence
as a distinct political society, and institutionalizing the government-to-government
relationship between the tribe and the federal government.” See California Valley Miwok
Tribe v. United States, 515 F.3d 1262, 1263 (D.C. Cir. 2008) (quoting COHEN’S HANDBOOK OF
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preference over non-Indians within the BIA. Id. at 555. The Court recognized
that central to the resolution of the issue was “the unique legal status of Indian
tribes under federal law and upon the plenary power of Congress . . . to legislate
on behalf of federally recognized Indian tribes.” Id. at 551. It reasoned that
the BIA’s hiring preference was “granted to Indians not as a discrete racial
group, but, rather, as members of quasi-sovereign tribal entities whose lives
and activities are governed by the BIA in a unique fashion.” Id. at 554. The
preference was thus a non-racial “employment criterion reasonably designed
to further the cause of Indian self-government and to make the BIA more
responsive to the needs of its constituent groups. It [was] directed to
participation by the governed in the governing agency.” Id. at 553–54. The
disadvantages to non-Indians resulting from the hiring preferences were an
intentional and “desirable feature of the entire program for self-government.” 9
Id. at 544.

FEDERAL INDIAN LAW § 3.02[3], at 138 (2005 ed.) (internal quotation marks omitted)). It “[i]s
a prerequisite to the protection, services, and benefits of the Federal Government available
to those that qualify.” 25 C.F.R. § 83.2.
9 Plaintiffs argue that, unlike the law in Mancari, ICWA is not a law promoting tribal

self-governance. However, prior to enacting ICWA, Congress considered testimony from the
Tribal Chief of the Mississippi Band of Choctaw Indians about the devastating impacts of
removing Indian children from tribes and placing them for adoption and foster care in non-
Indian homes:
Culturally, the chances of Indian survival are significantly reduced if our
children, the only real means for the transmission of the tribal heritage, are to
be raised in non-Indian homes and denied exposure to the ways of their People.
Furthermore, these practices seriously undercut the tribes’ ability to continue
as self-governing communities. Probably in no area is it more important that
tribal sovereignty be respected than in an area as socially and culturally
determinative as family relationships.
Holyfield, 490 U.S. at 34. This testimony undoubtedly informed Congress’s finding that
children are the most vital resource “to the continued existence and integrity of Indian
tribes.” 25 U.S.C. § 1901(3). Thus, interpreting ICWA as related to tribal self-government
and the survival of tribes makes the most sense in light of Congress’s explicit intent in
enacting the statute. See id.
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The district court construed Mancari narrowly and distinguished it for
two primary reasons: First, the district court found that the law in Mancari
provided special treatment “only to Indians living on or near reservations.”
Second, the district court concluded that ICWA’s membership eligibility
standard for an Indian child does not rely on actual tribal membership as did
the statute in Mancari. The district court reasoned that, whereas the law in
Mancari “applied ‘only to members of ‘federally recognized’ tribes which
operated to exclude many individuals who are racially to be classified as
Indians,’” ICWA’s definition of “Indian child” extended protection to children
who were eligible for membership in a federally recognized tribe and had a
biological parent who was a member of a tribe. The district court, citing the
tribal membership laws of several tribes, including the Navajo Nation,
concluded that “[t]his means one is an Indian child if the child is related to a
tribal ancestor by blood.”
We disagree with the district court’s reasoning and conclude that
Mancari controls here. As to the district court’s first distinction, Mancari’s
holding does not rise or fall with the geographical location of the Indians
receiving “special treatment.” See Mancari, 417 U.S. at 552. The Supreme
Court has long recognized Congress’s broad power to regulate Indians and
Indian tribes on and off the reservation. See e.g., United States v. McGowan,
302 U.S. 535, 539 (1938) (“Congress possesses the broad power of legislating
for the protection of the Indians wherever they may be within the territory of
the United States.”); Perrin v. United States, 232 U.S. 478, 482 (1914)
(acknowledging Congress’s power to regulate Indians “whether upon or off a
reservation and whether within or without the limits of a state”).
Second, the district court concluded that, unlike the statute in Mancari,
ICWA’s definition of Indian child extends to children who are merely eligible
for tribal membership because of their ancestry. However, ICWA’s definition
22
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of “Indian child” is not based solely on tribal ancestry or race. ICWA defines
an “Indian child” as “any unmarried person who is under age eighteen and is
either (a) a member of an Indian tribe or (b) is eligible for membership in an
Indian tribe and is the biological child of a member of an Indian tribe.” 25
U.S.C. § 1903(4). As Defendants explain, under some tribal membership laws,
eligibility extends to children without Indian blood, such as the descendants of
former slaves of tribes who became members after they were freed, or the
descendants of adopted white persons. Accordingly, a child may fall under
ICWA’s membership eligibility standard because his or her biological parent
became a member of a tribe, despite not being racially Indian. Additionally,
many racially Indian children, such as those belonging to non-federally
recognized tribes, do not fall within ICWA’s definition of “Indian child.”
Conditioning a child’s eligibility for membership, in part, on whether a
biological parent is a member of the tribe is therefore not a proxy for race, as
the district court concluded, but rather for not-yet-formalized tribal affiliation,
particularly where the child is too young to formally apply for membership in
a tribe. 10
Our conclusion that ICWA’s definition of Indian child is a political
classification is consistent with both the Supreme Court’s holding in Mancari
and this court’s holding in Peyote Way Church of God, Inc. v. Thornburgh, 922
F.2d 1210, 1212 (5th Cir. 1991). In Mancari, the hiring preference extended to
individuals who were one-fourth or more degree Indian blood and a member of

10 The Navajo Nation’s membership code is instructive on these points, despite the
district court’s reliance on it to the contrary. The Navajo Nation explains that, under its
laws, “blood alone is never determinative of membership.” The Navajo Nation will only grant
an application for membership “if the individual has some tangible connection to the Tribe,”
such as the ability to speak the Navajo language or time spent living among the Navajo
people. “Having a biological parent who is an enrolled member is per se evidence of such a
connection.” Additionally, individuals will not be granted membership in the Navajo Nation,
regardless of their race or ancestry, if they are members of another tribe.
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a federally recognized tribe. See 417 U.S. at 554. Similarly, in Peyote Way,
this court considered whether equal protection was violated by federal and
state laws prohibiting the possession of peyote by all persons except members
of the Native American Church of North America (NAC), who used peyote for
religious purposes. See 922 F.2d at 1212. Applying Mancari’s reasoning, this
court upheld the preference on the basis that membership in NAC “is limited
to Native American members of federally recognized tribes who have at least
25% Native American ancestry, and therefore represents a political
classification.” Id. at 1216. ICWA’s “Indian child” eligibility provision
similarly turns, at least in part, on whether the child is eligible for membership
in a federally recognized tribe. See California Valley Miwok Tribe v. United
States, 515 F.3d 1262, 1263 (D.C. Cir. 2008) (federal recognition “is a formal
political act” that “institutionaliz[es] the government-to-government
relationship between the tribe and the federal government.”); 25 U.S.C.
§ 1903(4).
The district court concluded, and Plaintiffs now argue, that ICWA’s
definition “mirrors the impermissible racial classification in Rice [v. Cayetano,
528 U.S. 495 (2000)], and is legally and factually distinguishable from the
political classification in Mancari.” The Supreme Court in Rice concluded that
a provision of the Hawaiian Constitution that permitted only “Hawaiian”
people to vote in the statewide election for the trustees of the Office of
Hawaiian Affairs (OHA) violated the Fifteenth Amendment. 528 U.S. at 515.
“Hawaiian” was defined by statute as “any descendant of the aboriginal peoples
inhabiting the Hawaiian Islands which exercised sovereignty and subsisted in
the Hawaiian Islands in 1778, and which peoples thereafter have continued to
reside in Hawaii.” Id. The Court noted the state legislature’s express purpose
in using ancestry as a proxy for race and held that “[d]istinctions between
citizens solely because of their ancestry are by their very nature odious to a
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free people whose institutions are founded upon the doctrine of equality.” Id.
at 514–17 (citing Hirabayashi v. United States, 320 U.S. 81, 100 (1943)).
Distinguishing Mancari, the Court noted that its precedent did not afford
Hawaiians a protected status like that of Indian tribes; that the OHA elections
were an affair of the state and not of a “separate quasi sovereign” like a tribe;
and that extending “Mancari to this context would [] permit a State, by racial
classification, to fence out whole classes of its citizens from decisionmaking in
critical state affairs.” Id. at 522.
Rice is distinguishable from the present case for several reasons. Unlike
Rice, which involved voter eligibility in a state-wide election for a state agency,
there is no similar concern here that applying Mancari would permit “by racial
classification, [the fencing] out [of] whole classes of [a state’s] citizens from
decisionmaking in critical state affairs.” See 528 U.S. at 518–22. Additionally,
as discussed above, ICWA’s definition of “Indian child,” unlike the challenged
law in Rice, does not single out children “solely because of their ancestry or
ethnic characteristics.” See id. at 515 (emphasis added). Further, unlike the
law in Rice, ICWA is a federal law enacted by Congress for the protection of
Indian children and tribes. See Rice, 528 U.S. at 518 (noting that to sustain
Hawaii’s restriction under Mancari, it would have to “accept some beginning
premises not yet established in [its] case law,” such as that Congress “has
determined that native Hawaiians have a status like that of Indians in
organized tribes”); see also Kahawaiolaa v. Norton, 386 F.3d 1271, 1279 (9th
Cir. 2004) (rejecting an equal protection challenge brought by Native
Hawaiians, who were excluded from the U.S. Department of the Interior’s
regulatory tribal acknowledgement process, and concluding that the
recognition of Indian tribes was political). Additionally, whereas the OHA
elections in Rice were squarely state affairs, state court adoption proceedings
involving Indian children are simultaneously affairs of states, tribes, and
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Congress. See 25 U.S.C. § 1901(3) (“[T]here is no resource that is more vital to
the continued existence and integrity of Indian tribes than their children.”).
Because we find Rice inapplicable, and Mancari controlling here, we conclude,
contrary to the district court’s determination, that ICWA’s definition of “Indian
child” is a political classification subject to rational basis review. See Mancari,
417 U.S. at 555.
B. Rational Basis Review
Having so determined that rational basis review applies, we ask whether
“the special treatment can be tied rationally to the fulfillment of Congress’s
unique obligation toward the Indians.” Mancari, 417 U.S. at 555. Given
Congress’s explicit findings and stated objectives in enacting ICWA, we
conclude that the special treatment ICWA affords Indian children is rationally
tied to Congress’s fulfillment of its unique obligation toward Indian nations
and its stated purpose of “protect[ing] the best interests of Indian children and
[] promot[ing] the stability and security of Indian tribes.” See 25 U.S.C.
§§ 1901–02; see also Mancari, 417 U.S. at 555. ICWA section 1903(4)’s
definition of an “Indian child” is a political classification that does not violate
equal protection.
III. Tenth Amendment
The district court concluded that ICWA sections 1901–23 11 and 1951–
52 12 violated the anticommandeering doctrine by requiring state courts and
executive agencies to apply federal standards to state-created claims. The

11 ICWA sections 1901–03 set forth Congress’s findings, declaration of policy, and
definitions. Sections 1911–23 govern child custody proceedings, including tribal court
jurisdiction, notice requirements in involuntary and voluntary state proceedings,
termination of parental rights, invalidation of state proceedings, placement preferences, and
agreements between states and tribes.
12 Section 1951 sets forth information-sharing requirements for state courts. Section

1952 authorizes the Secretary of the Interior to promulgate necessary rules and regulations.
26
 No. 18-11479
district court also considered whether ICWA preempts conflicting state law
under the Supremacy Clause and concluded that preemption did not apply
because the law “directly regulated states.” Defendants argue that the
anticommandeering doctrine does not prevent Congress from requiring state
courts to enforce substantive and procedural standards and precepts, and that
ICWA sets minimum procedural standards that preempt conflicting state law.
We examine the constitutionality of the challenged provisions of ICWA below
and conclude that they preempt conflicting state law and do not violate the
anticommandeering doctrine. .
A. Anticommandeering Doctrine
The Tenth Amendment provides that “[t]he powers not delegated to the
United States by the Constitution, nor prohibited by it to the States, are
reserved to the States respectively, or to the people.” U.S. CONST. amend. X.
Congress’s legislative powers are limited to those enumerated under the
Constitution. Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1476
(2018). “[C]onspicuously absent from the list of powers given to Congress is
the power to issue direct orders to the governments of the States.” Id. The
anticommandeering doctrine, an expression of this limitation on Congress,
prohibits federal laws commanding the executive or legislative branch of a
state government to act or refrain from acting. 13 Id. at 1478 (holding that a
federal law prohibiting state authorization of sports gambling violated the
anticommandeering rule by “unequivocally dictat[ing] what a state legislature

13 Though Congress is prohibited from commandeering states, it can “encourage a
State to regulate in a particular way, or . . . hold out incentives to the States as a method of
influencing a State’s policy choices.” New York, 505 U.S. at 166. For example, Congress may
also condition the receipt of federal funds under its spending power. See id. at 167.
Defendants also contend that ICWA is authorized under Congress’s Spending Clause powers
because Congress conditioned federal funding in Title IV-B and E of the Social Security Act
on states’ compliance with ICWA. However, because we conclude that ICWA is
constitutionally permissible on other bases, we need not reach this argument.
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 No. 18-11479
may and may not do”); Printz v. United States, 521 U.S. 898, 935 (1997)
(holding that a federal law requiring state chief law enforcement officers to
conduct background checks on handgun purchasers “conscript[ed] the State’s
officers directly” and was invalid); New York v. United States, 505 U.S. 144,
175–76 (1992) (holding that a federal law impermissibly commandeered states
to implement federal legislation when it gave states “[a] choice between two
unconstitutionally coercive” alternatives: to either dispose of radioactive waste
within their boundaries according to Congress’s instructions or “take title” to
and assume liabilities for the waste).
1. State Courts
Defendants argue that because the Supremacy Clause requires the
enforcement of ICWA and the Final Rule by state courts, these provisions do
not run afoul of the anticommandeering doctrine. We agree. The Supremacy
Clause provides that “the Laws of the United States . . . shall be the supreme
Law of the Land; and the Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.” U.S. CONST. art. VI, cl. 2. In setting forth the
anticommandeering doctrine, the Supreme Court drew a distinction between a
state’s courts and its political branches. The Court acknowledged that
“[f]ederal statutes enforceable in state court do, in a sense, direct state judges
to enforce them, but this sort of federal “direction” of state judges is mandated
by the text of the Supremacy Clause.” New York, 505 U.S. at 178–79 (internal
quotation marks omitted). Early laws passed by the first Congresses requiring
state court action “establish, at most, that the Constitution was originally
understood to permit imposition of an obligation on state judges to enforce
federal prescriptions, insofar as those prescriptions related to matters
appropriate for the judicial power.” Printz, 521 U.S. at 907. State courts were
viewed as distinctive because, “unlike [state] legislatures and executives, they
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applied the law of other sovereigns all the time,” including as mandated by the
Supremacy Clause. Id. Thus, to the extent provisions of ICWA and the Final
Rule require state courts to enforce federal law, the anticommandeering
doctrine does not apply. See id. at 928–29 (citing Testa v. Katt, 330 U.S. 386
(1947), “for the proposition that state courts cannot refuse to apply federal lawa
conclusion mandated by the terms of the Supremacy Clause”).
2. State Agencies
Plaintiffs next challenge several provisions of ICWA that they contend
commandeer state executive agencies, including sections 1912(a) (imposing
notice requirements on “the party seeking the foster care placement of, or
termination of parental rights to, an Indian child”), 1912(d) (requiring that
“any party seeking to effect a foster care placement of, or termination of
parental rights to, an Indian child under State law shall satisfy the court that
active efforts have been made to provide remedial services and rehabilitative
programs designed to prevent the breakup of the Indian family and that these
efforts have proved unsuccessful.”), 1915(c) (requiring “the agency or court
effecting [a] placement” adhere to the order of placement preferences
established by the tribe), and 1915(e) (requiring that “the State” in which the
placement was made keep a record of each placement, evidencing the efforts to
comply with the order of preference, to be made available upon request of the
Secretary or the child’s tribe). See 25 U.S.C. §§ 1912, 1915. Plaintiffs argue
that ICWA’s requirements on state agencies go further than the federal
regulatory scheme invalidated in Printz and impermissibly impose costs that
states must bear. Defendants contend that the challenged provisions of ICWA
apply to private parties and state agencies alike and therefore do not violate
the anticommandeering doctrine.
In Printz, the Supreme Court affirmed its prior holding that “[t]he
Federal Government may not compel the States to enact or administer a
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 No. 18-11479
federal regulatory program,” and “Congress cannot circumvent that
prohibition by conscripting the State’s officers directly.” 521 U.S. at 925, 935
(quoting New York, 505 U.S. at 188). The Printz Court, rejecting as irrelevant
the Government’s argument that the federal law imposed a minimal burden
on state executive officers, explained that it was not “evaluating whether the
incidental application to the States of a federal law of general applicability
excessively interfered with the functioning of state governments,” but rather a
law whose “whole object . . . [was] to direct the functioning of the state
executive.” Id. at 931–32. Expanding upon this distinction, the Court in
Murphy discussed Reno v. Condon, 528 U.S. 141 (2000), and South Carolina v.
Baker, 485 U.S. 505 (1988), and held that “[t]he anticommandeering doctrine
does not apply when Congress evenhandedly regulates an activity in which
both States and private actors engage.” 138 S. Ct. at 1478.
In Condon, the Court upheld a federal regulatory scheme that restricted
the ability of states to disclose a driver’s personal information without consent.
528 U.S. at 151. In determining that the anticommandeering doctrine did not
apply, the Court distinguished the law from those invalidated in New York and
Printz:
[This law] does not require the States in their sovereign capacity
to regulate their own citizens. The [law] regulates the States as
the owners of [Department of Motor Vehicle] data bases. It does
not require the South Carolina Legislature to enact any laws or
regulations, and it does not require state officials to assist in the
enforcement of federal statutes regulating private individuals.
Id. In Baker, the Court rejected a Tenth Amendment challenge to a provision
of a federal statute that eliminated the federal income tax exemption for
interest earned on certain bonds issued by state and local governments unless
the bonds were registered, treating the provision “as if it directly regulated
States by prohibiting outright the issuance of [unregistered] bearer bonds.”
485 U.S. at 507–08, 511. The Court reasoned that the provision at issue merely
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“regulat[ed] a state activity” and did not “seek to control or influence the
manner in which States regulate private parties.” Id. at 514. “That a State
wishing to engage in certain activity must take administrative and sometimes
legislative action to comply with federal standards regulating that activity is a
commonplace that presents no constitutional defect.” Id. at 514–15.
“[S]ubstantial effort[s]” to comply with federal regulations are “an inevitable
consequence of regulating a state activity.” Id. at 514.
In light of these cases, we conclude that the provisions of ICWA that
Plaintiffs challenge do not commandeer state agencies. Sections 1912(a) and
(d) impose notice and “active efforts” requirements on the “party” seeking the
foster care placement of, or termination of parental rights to, an Indian child.
Because both state agencies and private parties who engage in state child
custody proceedings may fall under these provisions, 1912(a) and (d)
“evenhandedly regulate[] an activity in which both States and private actors
engage.” 14 See Murphy, 138 S. Ct. at 1478. Moreover, sections 1915(c) and (e)
impose an obligation on “the agency or court effecting the placement” of an
Indian child to respect a tribe’s order of placement preferences and require that
“the State” maintain a record of each placement to be made available to the
Secretary or child’s tribe. These provisions regulate state activity and do not

14Similarly, section 1912(e) provides that no foster care placement may be ordered in
involuntary proceedings in state court absent “a determination, supported by clear and
convincing evidence, including testimony of qualified expert witnesses, that the continued
custody of the child by the parent or Indian custodian is likely to result in serious emotional
or physical damage to the child.” See 25 U.S.C. § 1912(e). Section 1912(f) requires that no
termination of parental rights may be ordered in involuntary proceedings in state court
absent evidence beyond a reasonable doubt of the same. See id. at 1912(f). Neither section
expressly refers to state agencies and, in conjunction with section 1912(d), both sections must
be reasonably read to refer to “any party” seeking the foster care placement of, or the
termination of parental rights to, an Indian child. Thus, like section 1912(d), sections
1912(e)–(f) “evenhandedly regulate[] an activity in which both States and private actors
engage” and do not run afoul of the anticommandeering doctrine. See Murphy, 138 S. Ct. at
1478; see also Condon, 528 U.S. at 151.
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require states to enact any laws or regulations, or to assist in the enforcement
of federal statutes regulating private individuals. See Condon, 528 U.S. at 151;
Baker, 485 U.S. at 514; see also Printz, 521 U.S. at 918 (distinguishing statutes
that merely require states to provide information to the federal government
from those that command state executive agencies to actually administer
federal programs). To the contrary, they merely require states to “take
administrative . . . action to comply with federal standards regulating” child
custody proceedings involving Indian children, which is permissible under the
Tenth Amendment. 15 See Baker, 485 U.S. at 514–15.
B. Preemption
Defendants argue that, to the extent there is a conflict between ICWA
and applicable state laws in child custody proceedings, ICWA preempts state
law. The Supremacy Clause provides that federal law is the “supreme Law of

15 In ruling otherwise, the district court discussed Murphy and emphasized that
adhering to the anticommandeering rule is necessary to protect constitutional principles of
state sovereignty, promote political accountability, and prevent Congress from shifting the
costs of regulation to states. See Murphy, 138 S. Ct. at 1477. These principles do not compel
the result reached by the district court. See id. First, the anticommandeering doctrine is not
necessary here to protect constitutional principles of state sovereignty because ICWA
regulates the actions of state executive agencies in their role as child advocates and
custodians, and not in their capacity as sovereigns enforcing ICWA. See id. at 1478; see also
Condon, 528 U.S. at 151 (concluding that the law in question there “does not require the
States in their sovereign capacity to regulate their own citizens [but] regulates the States as
the owners of data bases”). The need to promote political accountability is minimized here
for similar reasons, as ICWA does not require states to regulate their own citizens. See
Murphy, 138 S. Ct. at 1477 (noting concern that, if states are required to impose a federal
regulation on their voters, the voters will not know who to credit or blame and responsibility
will be “blurred”). Finally, the need to prevent Congress from shifting the costs of regulation
to states is also minimized here, where some of the requirements at issue, like those in
sections 1912(d) and 1915(c), simply regulate a state’s actions during proceedings that it
would already be expending resources on. ICWA’s recordkeeping and notice requirements
could impose costs on states, but we cannot conclude that these costs compel application of
the anticommandeering doctrine. See Condon, 528 U.S. at 150 (a federal law that “require[d]
time and effort on the part of state employees” was constitutional); Baker, 485 U.S. at 515
(that states may have to raise funds necessary to comply with federal regulations “presents
no constitutional defect”).
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the Land . . . any Thing in the Constitution or Laws of any State to the Contrary
notwithstanding.” U.S. CONST. art. VI, cl. 2. Conflict preemption occurs when
“Congress enacts a law that imposes restrictions or confers rights on private
actors; a state law confers rights or imposes restrictions that conflict with the
federal law; and therefore the federal law takes precedence and the state law
is preempted.” Murphy, 138 S. Ct. at 1480. For a federal law to preempt
conflicting state law, two requirements must be satisfied: The challenged
provision of the federal law “must represent the exercise of a power conferred
on Congress by the Constitution” and “must be best read as one that regulates
private actors” by imposing restrictions or conferring rights. Id. at 1479–80.
The district court concluded that preemption does not apply here, as ICWA
regulates states rather than private actors. We review de novo whether a
federal law preempts a state statute or common law cause of action. See
Friberg v. Kansas City S. Ry. Co., 267 F.3d 439, 442 (5th Cir. 2001).
Congress enacted ICWA to “establish[] minimum Federal standards for
the removal of Indian children from their families and the placement of such
children in foster or adoptive homes which will reflect the unique values of
Indian culture.” 25 U.S.C. § 1902. Defendants contend that these minimum
federal standards preempt conflicting state laws. Plaintiffs contend that
preemption does not apply here because ICWA regulates states and not
individuals, and nothing in the Constitution gives Congress authority to
regulate the adoption of Indian children under state jurisdiction.
ICWA specifies that Congress’s authority to regulate the adoption of
Indian children arises under the Indian Commerce Clause as well as “other
constitutional authority.” 25 U.S.C. § 1901(1). The Indian Commerce Clause
provides that “[t]he Congress shall have Power To . . . regulate Commerce . . .
with the Indian Tribes.” U.S. CONST. art. I, § 8, cl. 3. The Supreme Court has
repeatedly held that the Indian Commerce Clause grants Congress plenary
33
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power over Indian affairs. See Lara, 541 U.S. at 200 (noting that the Indian
Commerce and Treaty Clauses are sources of Congress’s “plenary and
exclusive” “powers to legislate in respect to Indian tribes”); Ramah Navajo Sch.
Bd., Inc. v. Bureau of Revenue of New Mexico, 458 U.S. 832, 837 (1982)
(discussing Congress’s “broad power . . . to regulate tribal affairs under the
Indian Commerce Clause”); Mancari, 417 U.S. at 551–52 (noting that “[t]he
plenary power of Congress to deal with the special problems of Indians is
drawn both explicitly and implicitly from,” inter alia, the Indian Commerce
Clause). Plaintiffs do not provide authority to support a departure from that
principle here.
Moreover, ICWA clearly regulates private individuals. See Murphy, 138
S. Ct. at 1479–80. In enacting the statute, Congress declared that it was the
dual policy of the United States to protect the best interests of Indian children
and promote the stability and security of Indian families and tribes. 25 U.S.C.
§ 1902. Each of the challenged provisions applies within the context of state
court proceedings involving Indian children and is informed by and designed
to promote Congress’s goals by conferring rights upon Indian children and
families. 16 See H.R. REP. No. 95-1386, at 18 (1978) (“We conclude that rights
arising under [ICWA] may be enforced, as of right, in the courts of the States
when their jurisdiction, as prescribed by local law, is adequate to the occasion.”

16 Arguably, two of the challenged provisions of ICWA could be construed to
simultaneously “confer[] rights” on Indian children and families while “imposing restrictions”
on state agencies. See Murphy, 138 S. Ct. at 1479–80. Section 1915(c) requires “the agency
or court effecting [a] placement” to adhere to a tribe’s established order of placement
preferences, and section 1915(e) requires states to keep records and make them available to
the Secretary and Indian tribes. 25 U.S.C. § 1915(c), (e). However, Murphy instructs that
for a provision of a federal statute to preempt state law, the provision must be “best read as
one that regulates private actors.” See 138 S. Ct. at 1479 (emphasis added). In light of
Congress’s express purpose in enacting ICWA, the legislative history of the statute, and
section 1915’s scope in setting forth minimum standards for the “Placement of Indian
children,” we conclude that these provisions are “best read” as regulating private actors by
conferring rights on Indian children and families. See id.
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 No. 18-11479
(quoting Second Employers’ Liability Cases, 223 U.S. 1, 59 (1912))). Thus, to
the extent ICWA’s minimum federal standards conflict with state law, “federal
law takes precedence and the state law is preempted.” See Murphy, 138 S. Ct.
at 1480.
IV. Nondelegation Doctrine
Article I of the Constitution vests “[a]ll legislative Powers” in Congress.
U.S. CONST. art. 1, § 1, cl. 1. “In a delegation challenge, the constitutional
question is whether the statute has delegated legislative power to the agency.”
Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001). The limitations on
Congress’s ability to delegate its legislative power are “less stringent in cases
where the entity exercising the delegated authority itself possesses
independent authority over the subject matter.” See United States v. Mazurie,
419 U.S. 544, 556–57 (1975). ICWA section 1915(c) allows Indian tribes to
establish through tribal resolution a different order of preferred placement
than that set forth in sections 1915(a) and (b). 17 Section 23.130 of the Final
Rule provides that a tribe’s established placement preferences apply over those
specified in ICWA. 18 The district court determined that these provisions
violated the nondelegation doctrine, reasoning that section 1915(c) grants
Indian tribes the power to change legislative preferences with binding effect
on the states, and Indian tribes, like private entities, are not part of the federal
government of the United States and cannot exercise federal legislative or
executive regulatory power over non-Indians on non-tribal lands.

17 The section provides: “In the case of a placement under subsection (a) or (b) of this
section, if the Indian child’s tribe shall establish a different order of preference by resolution,
the agency or court effecting the placement shall follow such order so long as the placement
is the least restrictive setting appropriate to the particular needs of the child, as provided in
subsection (b) of this section.” 25 U.S.C. § 1915(c).
18 “If the Indian child’s Tribe has established by resolution a different order of

preference than that specified in ICWA, the Tribe’s placement preferences apply.” 25 C.F.R.
§ 23.130.
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Defendants argue that the district court’s analysis of the
constitutionality of these provisions ignores the inherent sovereign authority
of tribes. They contend that section 1915 merely recognizes and incorporates
a tribe’s exercise of its inherent sovereignty over Indian children and therefore
does not—indeed cannot—delegate this existing authority to Indian tribes.
The Supreme Court has long recognized that Congress may incorporate
the laws of another sovereign into federal law without violating the
nondelegation doctrine. See Mazurie, 419 U.S. at 557 (“[I]ndependent tribal
authority is quite sufficient to protect Congress’ decision to vest in tribal
councils this portion of its own authority ‘to regulate Commerce . . . with the
Indian tribes.’”); United States v. Sharpnack, 355 U.S. 286, 293–94 (1958)
(holding that a statute that prospectively incorporated state criminal laws “in
force at the time” of the alleged crime was a “deliberate continuing adoption by
Congress” of state law as binding federal law in federal enclaves within state
boundaries); Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 80 (1824) (“Although
Congress cannot enable a State to legislate, Congress may adopt the provisions
of a State on any subject.”). “Indian tribes are unique aggregations possessing
attributes of sovereignty over both their members and their territory.”
Mazurie, 419 U.S. at 557. Though some exercises of tribal power require
“express congressional delegation,” the “tribes retain their inherent power to
determine tribal membership [and] to regulate domestic relations among
members . . . .” See Montana v. United States, 450 U.S. 544, 564 (1981); see
also Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 170 (1982) (“tribes retain
the power to create substantive law governing internal tribal affairs” like tribal
citizenship and child custody).
In Mazurie, a federal law allowed the tribal council of the Wind River
Tribes, with the approval of the Secretary of the Interior, to adopt ordinances
to control the introduction of alcoholic beverages by non-Indians on privately
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owned land within the boundaries of the reservation. See 419 U.S. at 547, 557.
The Supreme Court held that the law did not violate the nondelegation
doctrine, focusing on the Tribes’ inherent power to regulate their internal and
social relations by controlling the distribution and use of intoxicants within the
reservation’s bounds. Id. Mazurie is instructive here. ICWA section 1915(c)
provides that a tribe may pass, by its own legislative authority, a resolution
reordering the three placement preferences set forth by Congress in section
1915(a). Pursuant to this section, a tribe may assess whether the most
appropriate placement for an Indian child is with members of the child’s
extended family, the child’s tribe, or other Indian families, and thereby
exercise its “inherent power to determine tribal membership [and] regulate
domestic relations among members” and Indian children eligible for
membership. See Montana, 450 U.S. at 564.
State Plaintiffs contend that Mazurie is distinguishable because it
involves the exercise of tribal authority on tribal lands, whereas ICWA permits
the extension of tribal authority over states and persons on non-tribal lands.
We find this argument unpersuasive. It is well established that tribes have
“sovereignty over both their members and their territory.” See Mazurie, 419
U.S. at 557 (emphasis added). For a tribe to exercise its authority to determine
tribal membership and to regulate domestic relations among its members, it
must necessarily be able to regulate all Indian children, irrespective of their
location. 19 See Montana, 450 U.S. at 564 (tribes retain inherent power to
regulate domestic relations and determine tribal membership); Merrion, 455
U.S. at 170 (tribes retain power to govern tribal citizenship and child custody).
Section 1915(c), by recognizing the inherent powers of tribal sovereigns to

19Indeed, as the BIA noted in promulgating the Final Rule, at least 78% of Native
Americans lived outside of Indian country as of 2016. See 81 Fed. Reg. at 38,778, 38,783.
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determine by resolution the order of placement preferences applicable to an
Indian child, is thus a “deliberate continuing adoption by Congress” of tribal
law as binding federal law. See Sharpnack, 355 U.S. at 293–94; see also 25
U.S.C. § 1915(c); 81 Fed. Reg. at 38,784 (the BIA noting that “through
numerous statutory provisions, ICWA helps ensure that State courts
incorporate Indian social and cultural standards into decision-making that
affects Indian children”). We therefore conclude that ICWA section 1915(c) is
not an unconstitutional delegation of Congressional legislative power to tribes,
but is an incorporation of inherent tribal authority by Congress. See Mazurie,
419 U.S. at 544; Sharpnack, 355 U.S. at 293–94.
V. The Final Rule
The district court held that, to the extent sections 23.106–22, 23.124–32,
and 23.140–41 of the Final Rule were binding on State Plaintiffs, they violated
the APA for three reasons: The provisions (1) purported to implement an
unconstitutional statute; (2) exceeded the scope of the Interior Department’s
statutory regulatory authority to enforce ICWA with binding regulations; and
(3) reflected an impermissible construction of ICWA section 1915. We examine
each of these bases in turn.
A. The Constitutionality of ICWA
Because we concluded that the challenged provisions of ICWA are
constitutional, for reasons discussed earlier in this opinion, the district court’s
first conclusion that the Final Rule was invalid because it implemented an
unconstitutional statue was erroneous. Thus, the statutory basis of the Final
Rule is constitutionally valid.
B. The Scope of the BIA’s Authority
Congress authorized the Secretary of the Interior to promulgate rules
and regulations that may be necessary to carry out the provisions of ICWA.
See 25 U.S.C. § 1952. Pursuant to this provision, the BIA, acting under
38
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authority delegated by the Interior Department, issued guidelines in 1979 for
state courts in Indian child custody proceedings that were “not intended to
have binding legislative effect.” 44 Fed. Reg. at 67,584. The BIA explained
that, generally, “when the Department writes rules needed to carry out
responsibilities Congress has explicitly imposed on the Department, those
rules are binding.” Id. However, when “the Department writes rules or
guidelines advising some other agency how it should carry out responsibilities
explicitly assigned to it by Congress, those rules or guidelines are not, by
themselves, binding.” Id. With respect to ICWA, the BIA concluded in 1979
that it was “not necessary” to issue binding regulations advising states how to
carry out the responsibilities Congress assigned to them; state courts were
“fully capable” of implementing the responsibilities Congress imposed on them,
and nothing in the language or legislative history of 25 U.S.C. § 1952 indicated
that Congress intended the BIA to exercise supervisory control over states. Id.
However, in 2016, the BIA changed course and issued the Final Rule, which
sets binding standards for state courts in Indian child-custody proceedings.
See 25 C.F.R. §§ 23.101, 23.106; 81 Fed. Reg. at 38,779, 38,785. The BIA
explained that its earlier, nonbinding guidelines were “insufficient to fully
implement Congress’s goal of nationwide protections for Indian children,
parents, and Tribes.” 81 Fed. Reg. at 38,782. Without the Final Rule, the BIA
stated, state-specific determinations about how to implement ICWA would
continue “with potentially devastating consequences” for those Congress
intended ICWA to protect. See id.
In reviewing “an agency’s construction of the statute which it
administers,” we are “confronted with two questions.” Chevron, U.S.A., Inc. v.
Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984). First, we must
examine whether the statute is ambiguous. Id. at 842. “If the intent of
Congress is clear, that is the end of the matter; for the court, as well as the
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agency, must give effect to the unambiguously expressed intent of Congress.”
Id. But “if the statute is silent or ambiguous with respect to the specific issue,
the question for the court is whether the agency’s answer is based on a
permissible construction of the statute.” Id. at 842–43. We must uphold an
agency’s reasonable interpretation of an ambiguous statute. Id. at 844.
Under Chevron step one, the question is whether Congress
unambiguously intended to grant the Department authority to promulgate
binding rules and regulations. ICWA provides that “the Secretary shall
promulgate such rules and regulations as may be necessary to carry out the
provisions of this chapter.” 25 U.S.C. § 1952. The provision’s plain language
confers broad authority on the Department to promulgate rules and
regulations it deems necessary to carry out ICWA. This language can be
construed to grant the authority to issue binding rules and regulations;
however, because “Congress has not directly addressed the precise question at
issue,” we conclude that section 1952 is ambiguous. See Chevron, 467 U.S. at
843.
Moving to the second Chevron step, we must determine whether the
BIA’s current interpretation of its authority to issue binding regulations
pursuant to section 1952 is reasonable. See 467 U.S. at 843–44. Defendants
argue that section 1952’s language is substantively identical to other statutes
conferring broad delegations of rulemaking authority. Indeed, the Supreme
Court has held that “[w]here the empowering provision of a statute states
simply that the agency may make . . . such rules and regulations as may be
necessary to carry out the provisions of this Act . . . the validity of a regulation
promulgated thereunder will be sustained so long as it is reasonably related to
the purposes of the enabling legislation.” Mourning v. Family Publications
Serv., Inc., 411 U.S. 356, 369 (1973) (internal quotation marks omitted); see
also City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 306 (2013) (noting a lack of
40
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“case[s] in which a general conferral of rulemaking or adjudicative authority
has been held insufficient to support Chevron deference for an exercise of that
authority within the agency’s substantive field”). Here, section 1952’s text is
substantially similar to the language in Mourning, and the Final Rule’s
binding standards for Indian child custody proceedings are reasonably related
to ICWA’s purpose of establishing minimum federal standards in child custody
proceedings involving Indian children. See 25 U.S.C. § 1902. Thus, the Final
Rule is a reasonable exercise of the broad authority granted to the BIA by
Congress in ICWA section 1952.
Plaintiffs contend that the BIA reversed its position on the scope of its
authority to issue binding regulations after thirty-seven years and without
explanation and its interpretation was therefore not entitled to deference. We
disagree. “The mere fact that an agency interpretation contradicts a prior
agency position is not fatal. Sudden and unexplained change, or change that
does not take account of legitimate reliance on prior interpretation, may be
arbitrary, capricious [or] an abuse of discretion. But if these pitfalls are
avoided, change is not invalidating, since the whole point of Chevron is to leave
the discretion provided by the ambiguities of a statute with the implementing
agency.” Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 742 (1996)
(internal citations and quotation marks omitted). The agency must provide
“reasoned explanation” for its new policy, though “it need not demonstrate to
a court’s satisfaction that the reasons for the new policy are better than the
reasons for the old one.” F.C.C. v. Fox Television Stations, Inc., 556 U.S. 502,
515 (2009). “[I]t suffices that the new policy is permissible under the statute,
that there are good reasons for it, and that the agency believes it to be better,
which the conscious change of course adequately indicates.” Id.
The BIA directly addressed its reasons for departing from its earlier
interpretation that it had no authority to promulgate binding regulations,
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explaining that, under Supreme Court precedent, the text of section 1952
conferred “a broad and general grant of rulemaking authority.” 81 Fed. Reg.
at 38,785 (collecting Supreme Court cases). The BIA further discussed why it
now considered binding regulations necessary to implement ICWA: In 1979,
the BIA “had neither the benefit of the Holyfield Court’s carefully reasoned
decision nor the opportunity to observe how a lack of uniformity in the
interpretation of ICWA by State courts could undermine the statute’s
underlying purposes.” 81 Fed. Reg. at 38,787 (citing Holyfield, 490 U.S. at 30).
In Holyfield, the Supreme Court considered the meaning of the term
“domicile,” which ICWA section 1911 left undefined and the BIA left open to
state interpretation under its 1979 Guidelines. 490 U.S. at 43, 51. The Court
held that “it is most improbable that Congress would have intended to leave
the scope of the statute’s key jurisdictional provision subject to definition by
state courts as a matter of state law,” given that “Congress was concerned with
the rights of Indian families vis-à-vis state authorities” and considered “States
and their courts as partly responsible for the problem it intended to correct”
through ICWA. Id. at 45. Because Congress intended for ICWA to address a
nationwide problem, the Court determined that the lack of nationwide
uniformity resulting from varied state-law definitions of this term frustrated
Congress’s intent. Id. The Holyfield Court’s reasoning applies here.
Congress’s concern with safeguarding the rights of Indian families and
communities was not limited to section 1911 and extended to all provisions of
ICWA, including those at issue here. Thus, as the BIA explained, all provisions
of ICWA that it left open to state interpretation in 1979, including many that
Plaintiffs now challenge, were subject to the lack of uniformity the Supreme
Court identified in Holyfield and determined was contrary to Congress’s intent.
81 Fed. Reg. at 38,782. Thus, in light of Holyfield, the BIA has provided a
“reasoned explanation” for departing from its earlier interpretation of its
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authority under section 1952 and for the need of binding regulations with
respect to ICWA. See Fox Television Stations, 556 U.S. at 515.
In addition to assessing whether an agency’s interpretation of a statute
is reasonable under Chevron, the APA requires that we “hold unlawful and set
aside agency action . . . found to be . . . arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A).
Contrary to Plaintiffs’ contentions, the BIA explained that the Final Rule
resulted from years of study and public outreach and participation. See 81 Fed.
Reg. 38,778, 38,784–85. In promulgating the rule, the BIA relied on its own
expertise in Indian affairs, its experience in administering ICWA and other
Indian child-welfare programs, state interpretations and best practices, 20
public hearings, and tribal consultations. See id. Thus, the BIA’s current
interpretation is not “arbitrary, capricious, [or] an abuse of discretion” because
it was not sudden and unexplained. See Smiley, 517 U.S. at 742; 5 U.S.C.
§ 706(a)(2). The district court’s contrary conclusion was error.
C. The BIA’s Construction of ICWA Section 1915
ICWA section 1915 sets forth three preferences for the placement of
Indian children unless good cause can be shown to depart from them. 25 U.S.C.
§ 1915(a)–(b). The 1979 Guidelines initially advised that the term “good cause”
in ICWA section 1915 “was designed to provide state courts with flexibility in
determining the disposition of a placement proceeding involving an Indian
child.” 44 Fed. Reg. 67,584. However, section 23.132(b) of the Final Rule
specifies that “[t]he party seeking departure from [section 1915’s] placement
preferences should bear the burden of proving by clear and convincing evidence
that there is ‘good cause’ to depart from the placement preferences.” 25 C.F.R.

20 Since ICWA’s enactment in 1978, several states have incorporated the statute’s
requirements into their own laws or have enacted detailed procedures for their state agencies
to collaborate with tribes in child custody proceedings.
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§ 23.132(b). The district court determined that Congress unambiguously
intended the ordinary preponderance-of-the-evidence standard to apply, and
the BIA’s interpretation that a higher standard applied was therefore not
entitled to Chevron deference.
Defendants contend that the Final Rule’s clear-and-convincing standard
is merely suggestive and not binding. They further aver that the Final Rule’s
clarification of the meaning of “good cause” and imposition of a clear-and-
convincing-evidence standard are entitled to Chevron deference. Plaintiffs
respond that state courts have interpreted the clear-and-convincing standard
as more than just suggestive in practice, and the Final Rule’s fixed definition
of “good cause” is contrary to ICWA’s intent to provide state courts with
flexibility.
Though provisions of the Final Rule are generally binding on states, the
BIA indicated that it did not intend for section 23.132(b) to establish a binding
standard. See 25 C.F.R. § 23.132 (“The party seeking departure from the
placement preferences should bear the burden of proving by clear and
convincing evidence that there is ‘good cause’ to depart from the placement
preferences.” (emphasis added)). The BIA explained that “[w]hile the final rule
advises that the application of the clear and convincing standard ‘should’ be
followed, it does not categorically require that outcome . . . [and] the
Department declines to establish a uniform standard of proof on this issue.”
See 81 Fed. Reg. at 38,843.
The BIA’s interpretation of section 1915 is also entitled to Chevron
deference. For purposes of Chevron step one, the statute is silent with respect
to which evidentiary standard applies. See 25 U.S.C. § 1915; Chevron, 467 U.S.
at 842. The district court relied on the canon of expressio unius est exclusio
alterius (“the expression of one is the exclusion of others”) in finding that
Congress unambiguously intended that a preponderance-of-the-evidence
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standard was necessary to show good cause under ICWA section 1915. The
court reasoned that because Congress specified a heightened evidentiary
standard in other provisions of ICWA, but did not do so with respect to section
1915, Congress did not intend for the heightened clear-and-convincing-
evidence standard to apply. This was error. “When interpreting statutes that
govern agency action, . . . a congressional mandate in one section and silence
in another often suggests not a prohibition but simply a decision not to
mandate any solution in the second context, i.e., to leave the question to agency
discretion.” Catawba Cty., N.C. v. E.P.A., 571 F.3d 20, 36 (D.C. Cir. 2009).
“[T]hat Congress spoke in one place but remained silent in another . . . rarely
if ever suffices for the direct answer that Chevron step one requires.” Id.
(cleaned up); see also Texas Rural Legal Aid, Inc. v. Legal Servs. Corp., 940
F.2d 685, 694 (D.C. Cir. 1991) (“Under Chevron, we normally withhold
deference from an agency’s interpretation of a statute only when Congress has
directly spoken to the precise question at issue, and the expressio canon is
simply too thin a reed to support the conclusion that Congress has clearly
resolved this issue.”) (internal citations and quotation marks omitted).
Under Chevron step two, the BIA’s current interpretation of the
applicable evidentiary standard is reasonable. See Chevron, 467 U.S. at 844.
The BIA’s suggestion that the clear-and-convincing standard should apply was
derived from the best practices of state courts. 81 Fed. Reg. at, 38,843. The
Final Rule explains that, since ICWA’s passage, “courts that have grappled
with the issue have almost universally concluded that application of the clear
and convincing evidence standard is required as it is most consistent with
Congress’s intent in ICWA to maintain Indian families and Tribes intact.” Id.
Because the BIA’s current interpretation of section 1915, as set forth in Final
Rule section 23.132(b), was based on its analysis of state cases and geared
toward furthering Congress’s intent, it is reasonable and entitled to Chevron
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deference. Moreover, the BIA’s current interpretation is nonbinding and
therefore consistent with the 1979 Guidelines in allowing state courts
flexibility to determine “good cause.” Section 23.132(b) of the Final Rule is
thus valid under the APA. See 5 U.S.C. § 706(a)(2).
***
For these reasons, we conclude that Plaintiffs had standing to bring all
claims and that ICWA and the Final Rule are constitutional because they are
based on a political classification that is rationally related to the fulfillment of
Congress’s unique obligation toward Indians; ICWA preempts conflicting state
laws and does not violate the Tenth Amendment anticommandeering doctrine;
and ICWA and the Final Rule do not violate the nondelegation doctrine. We
also conclude that the Final Rule implementing the ICWA is valid because the
ICWA is constitutional, the BIA did not exceed its authority when it issued the
Final Rule, and the agency’s interpretation of ICWA section 1915 is reasonable.
Accordingly, we AFFIRM the district court’s judgment that Plaintiffs had
Article III standing. But we REVERSE the district court’s grant of summary
judgment for Plaintiffs and RENDER judgment in favor of Defendants on all
claims.

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PRISCILLA R. OWEN, Circuit Judge, concurring in part and dissenting in
part:

I agree with much of the majority opinion. But I conclude that certain
provisions of the Indian Child Welfare Act (ICWA) 1 and related regulations
violate the United States Constitution because they direct state officers or
agents to administer federal law. I therefore dissent, in part.
The offending statutes include part of 25 U.S.C. § 1912(d) (requiring a
State seeking to effect foster care placement of an Indian child to “satisfy the
court that active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian family
and these efforts have proved unsuccessful”), § 1912(e) (prohibiting foster care
placement unless a State presents evidence from “qualified expert
witnesses . . . that the continued custody of the child by the parent or Indian
custodian is likely to result in serious emotional or physical damage to the
child”), and § 1915(e) (requiring that “[a] record of each such placement, under
State law, of an Indian child shall be maintained by the State in which the
placement was made, evidencing the efforts to comply with the order of
preference specified in this section” and that “[s]uch record[s] shall be made
available at any time upon the request of the Secretary or the Indian child’s
tribe”). Regulations requiring States to maintain related records also violate
the Constitution. 2

1 25 U.S.C. §§ 1901 et seq.
2 See 25 C.F.R. § 23.141:

(a) The State must maintain a record of every voluntary or involuntary
foster-care, preadoptive, and adoptive placement of an Indian child and make
the record available within 14 days of a request by an Indian child’s Tribe or
the Secretary.

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The Supreme Court has made clear that Congress cannot commandeer
a State or its officers or agencies: “[T]he Federal Government may not compel
the States to implement, by legislation or executive action, federal regulatory
programs.” 3 “The anticommandeering doctrine may sound arcane, but it is
simply the expression of a fundamental structural decision incorporated into
the Constitution, i.e., the decision to withhold from Congress the power to issue
orders directly to the States.” 4 “The legislative powers granted to Congress are
sizable, but they are not unlimited. The Constitution confers on Congress not
plenary legislative power but only certain enumerated powers. Therefore, all
other legislative power is reserved for the States, as the Tenth Amendment
confirms.” 5 The Supreme Court has recognized that “conspicuously absent
from the list of powers given to Congress is the power to issue direct orders to
the governments of the States. The anticommandeering doctrine simply
represents the recognition of this limit on congressional authority.” 6
The defendants in the present case contend that the Indian Commerce
Clause 7 empowers Congress to direct the States as it has done in the ICWA.

(b) The record must contain, at a minimum, the petition or complaint,
all substantive orders entered in the child-custody proceeding, the complete
record of the placement determination (including, but not limited to, the
findings in the court record and the social worker’s statement), and, if the
placement departs from the placement preferences, detailed documentation of
the efforts to comply with the placement preferences.

(c) A State agency or agencies may be designated to be the repository
for this information. The State court or agency should notify the BIA whether
these records are maintained within the court system or by a State agency.

3Printz v. United States, 521 U.S. 898, 925 (1997).
4Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1475 (2018).
5 Id. at 1476.
6 Id.
7 U.S. CONST. art. I, § 8, cl. 3 (“The Congress shall have Power . . . To regulate

Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”).
48
 No. 18-11479
They are mistaken. “Where a federal interest is sufficiently strong to cause
Congress to legislate, it must do so directly; it may not conscript state
governments as its agents.” 8
The panel’s majority opinion concludes that the ICWA does “not
commandeer state agencies” 9 because it “evenhandedly regulate[s] an activity
in which both States and private actors engage.” 10 This is incorrect with
respect to the part of 25 U.S.C. § 1912(d) addressed to foster care placement,
§ 1912(e), § 1915(e), and 25 C.F.R. § 23.141.
Though § 1912(d) nominally applies to “[a]ny party seeking to effect a
foster care placement of . . . an Indian child under State law,” 11 as a practical
matter, it applies only to state officers or agents. Foster care placement is not
undertaken by private individuals or private actors. That is a responsibility
that falls upon state officers or agencies. Those officers or agencies are
required by § 1912(d) to “satisfy the court that active efforts have been made
to provide remedial services and rehabilitative programs designed to prevent
the breakup of the Indian family and that these efforts have proved
unsuccessful.” 12 That directive means that a State cannot place an Indian
child in foster care, regardless of the exigencies of the circumstances, unless it
first provides the federally specified services and programs without success.
Theoretically, a State could decline to protect Indian children in need of foster
care. It could, theoretically, allow Indian children to remain in abusive or even
potentially lethal circumstances. But that is not a realistic choice, even if state

8 Murphy, 138 S. Ct. at 1477 (quoting New York v. United States, 505 U.S. 144, 178
(1992)).
9 Brackeen v. Bernhardt, __ F.3d __, __, 2019 WL 3759491, at *14 (5th Cir. 2019).
10 Id. (quoting Murphy, 138 S. Ct. at 1478).
11 25 U.S.C. § 1912(d).
12 Id.

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 No. 18-11479
law did not apply across the board and include all children, regardless of their
Indian heritage.
Certain of the ICWA’s provisions are a transparent attempt to foist onto
the States the obligation to execute a federal program and to bear the
attendant costs. Though the requirements in § 1912(d) are not as direct as
those at issue in Printz v. United States, 13 the federal imperatives improperly
commandeer state officers or agents:
It is an essential attribute of the States’ retained sovereignty that
they remain independent and autonomous within their proper
sphere of authority. See Texas v. White, 7 Wall. [700,] 725 [(1868)].
It is no more compatible with this independence and autonomy
that their officers be “dragooned” (as Judge Fernandez put it in his
dissent below, [Mack v. United States], 66 F.3d[ 1025,] 1035 [(9th
Cir. 1995)]) into administering federal law, than it would be
compatible with the independence and autonomy of the United
States that its officers be impressed into service for the execution
of state laws. 14
Similarly, § 1912(e) provides that “[n]o foster care placement may be
ordered” unless there is “qualified expert witness[]” testimony “that the
continued custody of the child by the parent or Indian custodian is likely to
result in serious emotional or physical damage to the child.” 15 This places the
burden on a State, not a court, to present expert witness testimony in order to
effectuate foster care for Indian children. If the federal government has
concluded that such testimony is necessary in every case involving an Indian
child’s foster care placement, then the federal government should provide it.
It cannot require the States to do so.

13 521 U.S. 898 (1997).
14 Id. at 928.
15 25 U.S.C. § 1912(e).

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The requirements in 25 U.S.C. § 1912(d) apply to termination of parental
rights, not just foster care placement. 16 The laws of Indiana, Louisiana, and
Texas each permit certain individuals to petition for the termination of
parental rights in some circumstances, 17 and § 1912(d) applies to all parties
seeking termination, not just state actors. 18 At least superficially, § 1912(d)
appears to be an evenhanded regulation of an activity in which both States and
private actors engage. 19 But it is far from clear based on the present record
that § 1912(d) applies in a meaningful way to private actors and if so, how
many private actors, as compared to state actors, have actually met its
requirements. Additionally, it appears that the State plaintiffs contend that
“the incidental application to the States of a federal law of general applicability
excessively interfered with the functioning of state governments.” 20 I would
remand for further factual development. It may be that in the vast majority of
involuntary parental termination proceedings, the party seeking the
termination is a state official or agency. It also seems highly unlikely that
individuals or private actors seeking termination of parental rights (if and
when permitted to do so under a State’s laws) will have been in a position “to
provide remedial services and rehabilitative programs designed to prevent the
breakup of the Indian family.” 21 It seems much more likely that these
requirements fall, de facto, on the shoulders of state actors and agencies.

16 Id. § 1912(d).
17 See, e.g., IND. CODE §§ 31-35-2-4, 31-35-3.5-3 (2018); IND. CODE § 31-35-3-4 (2013);
LA. CHILD. CODE ANN. art. 1122 (2019); TEX. FAM. CODE ANN. § 102.005 (West 2019); TEX.
FAM. CODE ANN. § 161.005 (West Supp. 2019).
18 25 U.S.C. § 1912(d).
19 See Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1478 (2018) (“The

anticommandeering doctrine does not apply when Congress evenhandedly regulates an
activity in which both States and private actors engage.”).
20 Printz v. United States, 521 U.S. 898, 932 (1997).
21 25 U.S.C. § 1912(d).

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The records-keeping requirements in 25 U.S.C. § 1915(e) and 25 C.F.R.
§ 23.141 are direct orders to the States. 22 They do not apply to private parties
in parental termination or foster care placement proceedings. They do not
apply “evenhandedly [to] an activity in which both States and private actors
engage.” 23
The Supreme Court expressly left open in Printz whether federal laws
“which require only the provision of information to the Federal Government”
are an unconstitutional commandeering of a State or its officers or agents. 24
But the principles set forth in Printz lead to the conclusion that Congress is
without authority to order the States to provide the information required by
§ 1915(e) and related regulations. Even were the burden on the States of
creating, maintaining, and supplying the required information “minimal and
only temporary,” the Supreme Court has reasoned that “where . . . it is the
whole object of the law to direct the functioning of the state executive, and
hence to compromise the structural framework of dual sovereignty, such a
‘balancing’ analysis is inappropriate.” 25 The Supreme Court stressed, “It is the
very principle of separate state sovereignty that such a law offends, and no
comparative assessment of the various interests can overcome that
fundamental defect.” 26

22 Id. at § 1915(e) (“A record of each such placement, under State law, of an Indian
child shall be maintained by the State in which the placement was made . . . .”); 25 C.F.R.
§ 23.141 (“The State must maintain a record of every voluntary or involuntary foster-care,
preadoptive, and adoptive placement of an Indian child . . . .”).
23 Brackeen v. Bernhardt, __ F.3d __, __, 2019 WL 3759491, at *14 (5th Cir. 2019)

(quoting Murphy, 138 S. Ct. at 1478).
24 521 U.S. at 918.
25 Id. at 932.
26 Id.

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The panel’s majority opinion concludes that the requirements of 25
U.S.C. § 1915(e) and 25 C.F.R. § 23.141 do not commandeer state officers or
agents because they “regulate state activity and do not require states to enact
any laws or regulations, or to assist in the enforcement of federal statutes
regulating private individuals.” 27 But the statute orders States to maintain
records of each placement of an Indian child and requires those records to
“evidenc[e] the efforts to comply with the order of preference specified in this
section.” 28 That directs States to assist in the enforcement of the ICWA by
requiring States to document efforts to comply with the ICWA’s preferences.
The panel’s majority opinion also cites three Supreme Court decisions, none of
which supports its holding regarding the creation and maintenance of
records. 29 The statute at issue in Condon prohibited States from disclosing or
selling personal information they obtained from drivers in the course of
licensing drivers and vehicles, unless the driver consented to the disclosure or
sale of that information. 30 The Court’s decision in Condon focused on that
prohibition rather than the statute’s additional requirement that certain
information be disclosed to carry out the purposes of federal statutes including
the Clean Air Act and the Anti Car Theft Act of 1992. 31 The Baker decision did
not concern a requirement that States create and maintain records. 32 The
federal statute at issue in Baker allowed a tax exemption for registered, but
not bearer, bonds, and the statute “cover[ed] not only state bonds but also

27 Brackeen, __ F.3d at __, 2019 WL 3759491, at *14.
28 25 U.S.C. § 1915(e).
29 Brackeen, __ F.3d at __, 2019 WL 3759491, at *14 (citing Reno v. Condon, 528 U.S.

141, 151 (2000); Printz, 521 U.S. at 918; South Carolina v. Baker, 485 U.S. 505, 514 (1988)).
30 Condon, 528 U.S. at 143-44 (citing the Driver’s Privacy Protection Act of 1994, 18

U.S.C. §§ 2721-2725).
31 Id. at 145, 148-51.
32 See Baker, 485 U.S. at 508-10.

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bonds issued by the United States and private corporations.” 33 As already
discussed above, the Printz decision expressly left open the question of whether
federal statutes requiring States to provide information was constitutional, 34
but the rationale of Printz compels the conclusion that some of the ICWA’s
commandments result in a commandeering of state officers and agents.
I agree with the panel’s majority opinion that in some respects, the ICWA
“merely require[s] states to ‘take administrative . . . action to comply with
federal standards regulating’ child custody proceedings involving Indian
children, which is permissible under the Tenth Amendment.” 35 Unlike the
congressional enactment at issue in Murphy, the ICWA does “confer . . . federal
rights on private actors interested in” 36 foster care placement, the termination
of parental rights to an Indian child, and adoption of Indian children. States
cannot override or ignore those private actors’ federal rights by failing to give
notice to interested or affected parties or by failing to follow the placement
preferences expressed in the ICWA. If a State desires to place an Indian child
with an individual or individuals other than the child’s birth parents, the State
must respect the federal rights of those upon whom the ICWA confers an
interest in the placement of the Indian child or Indian children more generally.
But 25 U.S.C. § 1912(d) (to the extent it concerns foster care placement),
§ 1912(e), § 1915(e), and 25 C.F.R. § 23.141, require more than the
accommodation of private actors’ federal rights regarding the placement of
Indian children. Those statutes and regulations commandeer state officers or
agents by requiring them “to provide remedial services and rehabilitative

33 Id. at 510.
34 Printz, 521 U.S. at 918.
35 Brackeen, __ F.3d at __, 2019 WL 3759491, at *14 (quoting Baker, 485 U.S. at 515).
36 Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct. 1461, 1467 (2018).

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programs designed to prevent the breakup of the Indian family” and to
demonstrate that such “efforts have proved unsuccessful”; 37 to present
“qualified expert witnesses” to demonstrate “that the continued custody of the
child by the parent or Indian custodian is likely to result in serious emotional
or physical damage to the child”; 38 and to create and maintain records of every
placement of an Indian child as well as records “evidencing the efforts to
comply with the order of preference specified in this section.” 39
That these statutes and regulations “serve[] very important purposes”
and that they are “most efficiently administered” at the state level is of no
moment in a commandeering analysis. 40 As JUSTICE O-CONNOR, writing for
the Court in New York v. United States, so eloquently expressed, “the
Constitution protects us from our own best intentions: It divides power among
sovereigns and among branches of government precisely so that we may resist
the temptation to concentrate power in one location as an expedient solution
to the crisis of the day.” 41

37 25 U.S.C. § 1912(d).
38 Id. § 1912(e).
39 Id. § 1915(e).
40 Printz v. United States, 521 U.S. 898, 931-32 (1997).
41 505 U.S. 144, 187 (1992).

55