Case: 18-11479 Document: 00515810731 Page: 1 Date Filed: 04/06/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
April 6, 2021
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,
versus
Deb Haaland, Secretary, United States Department of the Interior;
Darryl LaCounte, Acting Assistant Secretary for Indian Affairs;
Bureau of Indian Affairs; United States Department of
the Interior; United States of America; Xavier
Becerra, Secretary, 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.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CV-868
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Before Owen, Chief Judge, and Jones, Smith, Wiener, Stewart,
Dennis, Elrod, Southwick, Haynes, Graves, Higginson,
Costa, Willett, Duncan, Engelhardt, and Oldham, Circuit
Judges.*
Per Curiam:
This en banc matter considers the constitutionality of the Indian Child
Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., and the validity of
implementing regulations promulgated by the Bureau of Indian Affairs (BIA)
in its 2016 Final Rule (Final Rule). Plaintiffs are several couples who seek to
adopt or foster Indian children, a woman who wishes for her Indian biological
child to be adopted by non-Indians, and the States of Texas, Louisiana, and
Indiana. Defendants are the United States, federal agencies and officials
charged with administering ICWA and the Final Rule, as well as several
Indian tribes that intervened in support of ICWA. The district court granted
Plaintiffs summary judgment in part, declaring that ICWA and the Final Rule
contravene multiple constitutional provisions and the Administrative
Procedure Act (APA). Defendants appealed. A panel of this court reversed
and rendered judgment for the Defendants. See Brackeen v. Bernhardt, 937
F.3d 406, 414 (5th Cir. 2019). One panel member partially dissented,
concluding that several provisions of ICWA violated the Tenth
Amendment’s anticommandeering doctrine. See id. at 441–46 (Owen, J.,
concurring in part and dissenting in part). This case was then reconsidered
en banc.
Neither Judge Dennis’s nor Judge Duncan’s principal
opinion nor any of the other writings in this complex case garnered an en banc
majority on all issues. We therefore provide the following issue-by-issue
summary of the en banc court’s holdings, which does not override or amend
the en banc opinions themselves.
*
Judge Ho was recused and did not participate. Judge Wilson joined the court
after the case was submitted and did not participate.
2
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First is the issue of standing. The en banc court unanimously holds
that at least one Plaintiff has standing to challenge Congress’s authority
under Article I of the Constitution to enact ICWA and to press
anticommandeering and nondelegation challenges to specific ICWA
provisions. The en banc court also unanimously holds that Plaintiffs have
standing to challenge the Final Rule as unlawful under the APA. The en banc
court is equally divided as to whether Plaintiffs have standing to challenge
two provisions of ICWA, 25 U.S.C. §§ 1913 and 1914, on equal protection
grounds, and the district court’s conclusion that Plaintiffs can assert this
claim is therefore affirmed without a precedential opinion. 1 An en banc
majority also holds that Plaintiffs have standing to assert their equal
protection challenges to other provisions of ICWA.
On the merits, an en banc majority agrees that, as a general
proposition, Congress had the authority to enact ICWA under Article I of the
Constitution. 2 An en banc majority also holds that ICWA’s “Indian child”
classification does not violate equal protection. 3 The district court’s ruling to
the contrary on those two issues is therefore reversed. The en banc court is
equally divided, however, as to whether Plaintiffs prevail on their equal
protection challenge to ICWA’s adoptive placement preference for “other
1
See United States v. Garcia, 604 F.3d 186, 190 n.2 (5th Cir. 2010) (“Decisions by an
equally divided en banc court are not binding precedent but only affirm the judgment by
operation of law.”).
2
See Part II(A)(1) of Judge Dennis’s opinion and Part II of Judge Costa’s
opinion.
3
Part II(B) of Judge Dennis’s opinion is the en banc majority opinion on this issue,
except as to the constitutionality of “other Indian families” in § 1915(a)(3) and “Indian
foster home” in § 1915(b)(iii).
3
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Indian families,” 25 U.S.C. § 1915(a)(3), and its foster care placement
preference for a licensed “Indian foster home,” § 1915(b)(iii). 4 The district
court’s ruling that provisions of ICWA and the Final Rule are
unconstitutional because they incorporate the “Indian child” classification
is therefore reversed, but its ruling that § 1915(a)(3) and (b)(iii) violate equal
protection is affirmed without a precedential opinion.
The court’s holdings on Plaintiffs’ various anticommandeering claims
are more intricate. An en banc majority holds that ICWA’s “active efforts,”
§ 1912(d), expert witness, § 1912(e) and (f), and recordkeeping
requirements, § 1915(e), unconstitutionally commandeer state actors. 5 The
district court’s judgment declaring those sections unconstitutional under the
anticommandeering doctrine is therefore affirmed. However, the en banc
court is equally divided on whether the placement preferences, § 1915(a)–
(b), violate anticommandeering to the extent they direct action by state
agencies and officials 6; on whether the notice provision, § 1912(a),
unconstitutionally commandeers state agencies 7; and on whether the
placement record provision, § 1951(a), unconstitutionally commandeers
4
Compare Part II(B) of Judge Dennis’s opinion with Part III(A)(3) of Judge
Duncan’s opinion.
5
Parts III(B)(1)(a)(i), (ii), (iv); III(B)(1)(b); and III(B)(2)(b) (insofar as it addresses
§§ 1912(d)–(f) and 1915(e)) of Judge Duncan’s opinion are the en banc majority
opinion on these issues.
6
Compare Part II(A)(2)(a)(i) of Judge Dennis’s opinion with Part III(B)(1)(a)(iii)
of Judge Duncan’s opinion.
7
Compare Part II(A)(2)(b) of Judge Dennis’s opinion with Part III(B)(1)(a)(v) of
Judge Duncan’s opinion.
4
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state courts. 8 To that extent, the district court’s judgment declaring those
sections unconstitutional under the anticommandeering doctrine is affirmed
without precedential opinion.
Furthermore, an en banc majority holds that several challenged ICWA
provisions validly preempt state law and so do not commandeer states. Those
are provisions granting certain private rights in state child custody
proceedings—namely, the right to intervene, § 1911(c), to appointed
counsel, § 1912(b), to examine documents, § 1912(c), to explanation of
consent, § 1913(a), to withdraw consent, § 1913(b), (c), and (d), to seek
invalidation, § 1914, to seek return of custody, § 1916(a), and to obtain tribal
information, § 1917. 9 In addition, an en banc majority holds that the following
provisions validly preempt contrary state law to the extent they apply to state
courts (as opposed to state agencies): the placement preferences, § 1915(a)
and (b), and the placement and termination standards, § 1912(e) and (f). 10
The district court’s rulings to the contrary are therefore reversed.
Next, an en banc majority holds that § 1915(c), which permits Indian
tribes to establish an order of adoptive and foster preferences that is different
from the order set forth in § 1915(a) and (b), does not violate the non-
8
Compare Parts II(A)(2)(a)(ii) of Judge Dennis’s opinion with Part III(B)(2)(c) of
Judge Duncan’s opinion.
9
Part III(B)(2)(a) of Judge Duncan’s opinion is the en banc majority opinion on
this issue, except as to the appointed counsel provision in § 1912(b).
10
Part III(B)(2)(c) of Judge Duncan’s opinion is the en banc majority opinion on
this issue, except as to the placement record requirement in § 1951(a).
5
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delegation doctrine. 11 The district court’s ruling to the contrary is therefore
reversed.
Last are Plaintiffs’ claims that the Final Rule violates the APA. An en
banc majority holds that the BIA did not violate the APA by concluding in
the Final Rule that it may issue regulations binding on state courts. 12 But an
en banc majority also holds that—consistently with the en banc court’s
holding that §§ 1912(d), 1912(e), and 1915(e) commandeer states—the Final
Rule violated the APA to the extent it implemented these unconstitutional
provisions. 13 Finally, an en banc majority determines that 25 C.F.R.
§ 23.132(b)—the part of the Final Rule interpreting § 1915’s “good cause”
standard to require proof by clear and convincing evidence—violated the
APA. 14 An en banc majority holds that the Final Rule did not violate the APA
in any other respect. The district court’s grant of relief under the APA is
affirmed to the extent it is consistent with these holdings and reversed to the
extent it is inconsistent with these holdings.
The judgment of the district court is therefore AFFIRMED in part
and REVERSED in part, and judgment is accordingly RENDERED.
11
Part II(C) of Judge Dennis’s opinion is the en banc majority opinion on this issue.
12
Part II(D)(2) of Judge Dennis’s opinion is the en banc majority opinion on this
issue.
13
Part III(D)(1) of Judge Duncan’s opinion is the en banc majority opinion on this
issue, insofar as it applies to §§ 1912(d)–(e) and 1915(e).
14
Part III(D)(3) of Judge Duncan’s opinion is the en banc majority opinion on this
issue.
6
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Dennis, J., delivered the opinion of the en banc court with respect
to Parts II(B), II(C), and II(D)(2) of his opinion (except as otherwise noted
in the Per Curiam opinion, supra).
Duncan, J., delivered the opinion of the en banc court with respect
to Parts III(B)(1)(a)(i)–(ii), III(B)(1)(a)(iv), III(B)(2)(a)–(c), III(D)(1), and
III(D)(3) of his opinion (except as otherwise noted in the Per Curiam
opinion, supra).
7
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James L. Dennis, Circuit Judge: †
The Indian Child Welfare Act (ICWA) of 1978 is a federal law that
regulates the removal and out-of-home placement of American Indian
children. The Act establishes minimum federal standards that must be met
in any legal proceeding to place an Indian child in a foster or adoptive home,
and it ensures that Indian tribes and families are allowed to participate in such
Indian child welfare cases. See 25 U.S.C. § 1901 et seq. Congress enacted
ICWA after finding “that an 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”; “that the 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”; and “that there is no resource that is more vital
to the continued existence and integrity of Indian tribes than their children
†
Judges Stewart and Graves join this opinion in full. Judges Wiener,
Higginson, and Costa join all except Discussion Part I.A.2 (standing to bring equal
protection claims other than the challenges to 25 U.S.C. §§ 1913-14).
Chief Judge Owen joins Discussion Parts I.A.1 (standing to challenge
§§ 1913-14), I.C (standing to bring anticommandeering claims), II.A.2.a.1
(anticommandeering challenge to §§ 1912(e)-(f) and 1915(a)-(b) as they pertain to state
courts), and II.C (nondelegation). She further joins Discussion Part I.D (standing to bring
nondelegation claim) except as to the final sentence. See infra Owen, Chief Judge,
Op.
Judge Southwick joins Discussion Parts I.A.1 (standing to challenge §§ 1913-
14), II.A.1 (Congress’s Article I authority), II.B (equal protection), and II.C
(nondelegation). He further joinss in-part Discussion Parts II.A.2 (anticommandeering)
and II.D (APA challenge to the Final Rule), disagreeing to the extent the analyses pertains
to § 1912(d)-(f) and the regulations that implement those provisions.
Judge Haynes has expressed her partial concurrence in her separate opinion.
See infra Haynes, Circuit Judge, Op.
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and that the United States has a direct interest, as trustee, in protecting
Indian children who are members of or are eligible for membership in an
Indian tribe.” Id.
Plaintiffs, consisting of the States of Texas, Louisiana, and Indiana,
and seven individuals, challenge the facial constitutionality of ICWA as well
as the statutory and constitutional validity of the Department of Interior’s
2016 administrative rule implementing ICWA (the “Final Rule”).
Combined, Texas, Louisiana, Indiana, and Ohio (which filed an amicus brief
in support of Plaintiffs) are home to only about 1% of the total number of
federally recognized Indian tribes and less than 4% of the national American
Indian and Alaska Native population. See Nat’l Conf. of State
Legis., Federal and State Recognized Tribes (March 2020),
https://www.ncsl.org/research/state-tribal-institute/list-of-federal-and-
state-recognized-tribes.aspx; Centers for Disease Control and
Prevention, Tribal Population https://www.cdc.gov/tribal/tribes-
organizations-health/tribes/state-population.html (last viewed Mar. 29,
2021). On the other hand, twenty-six other states and the District of
Columbia have filed amicus briefs asking us to uphold ICWA and the Final
Rule. Those states are California, Alaska, Arizona, Colorado, Connecticut,
Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota,
Mississippi, Montana, Nevada, New Jersey, New Mexico, New York,
Oklahoma, Oregon, Pennsylvania, Rhode Island, Utah, Virginia,
Washington, and Wisconsin, which are collectively home to 94% of federally
recognized Indian tribes and 69% of the national American Indian and Alaska
Native population.
We do not decide cases by a show of hands of states’ votes, of course,
but we cannot ignore the irony of the situation with which we are faced.
Twenty-six states and the District of Columbia, which are home to a large
majority of federally recognized tribes and the nation’s overall indigenous
population, do not view ICWA as any sort of burden on their child welfare
2
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systems. They strongly contend that ICWA is constitutional and have no
problem applying it in their state court systems; indeed, they view ICWA as
the “gold standard” for child welfare practices and a “critical tool” in
managing their relationships with the Indian tribes within their borders.
Conversely, only four states with relatively few tribes and Indians regard
ICWA as offensive to their sovereignty and seek to have the law struck down
completely because it intrudes upon their otherwise unimpeded discretion to
manage child custody proceedings involving Indian children. Further, these
State Plaintiffs and their amicus wrongly assert repeatedly that ICWA
regulates all of their child custody and adoption proceedings. This is simply
not true. Congress drew ICWA narrowly to provide minimum protections
only to qualified Indian children—safeguards that Congress found necessary
and proper to stop the abusive practices that had removed nearly a generation
of Indian children from their families and tribes and that threatened the very
existence of the Indian nations. See generally Margaret Jacobs, A
Generation Removed: The Fostering and Adoption of
Indigenous Children in the Postwar World (2014)
[hereinafter Jacobs, A Generation Removed]. The vast majority of
child custody proceedings in Texas, Louisiana, and Indiana do not involve
Indian children; therefore, ICWA does not apply in the vast majority of such
proceedings in those states or, for that matter, in any other state.
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 anticommandeering
doctrine, the nondelegation doctrine, and the Administrative Procedure Act
(the “APA”). Defendants appealed.
3
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Although we would affirm most aspects of the district court’s ruling
that Plaintiffs have standing, we would conclude that Plaintiffs’ challenges to
ICWA lack merit and uphold the statute in its entirety. We would therefore
reverse the district court’s grant of summary judgment to Plaintiffs and
render judgment in favor of Defendants.
BACKGROUND
Before the establishment of the United States, the North American
landmass was “owned and governed by hundreds of Indian tribes.”
Cohen’s Handbook of Federal Indian Law § 1.01 (Nell Jessup
Newton ed., 2012.) [hereinafter Cohen’s]. These tribes, sovereigns under
international law, came under the jurisdiction of the United States “through
a colonial process that was partly negotiated and partly imposed.” Id. The
Constitution recognizes the existence of Indian tribes and, in many respects,
treats them as sovereigns in the same manner as the states and foreign
nations. See U.S. CONST. art. I, § 8, cl. 3 (empowering Congress “[t]o
regulate Commerce with foreign Nations, and among the several States, and
with the Indian Tribes”); Holden v. Joy, 84 U.S. 211, 242 (1872) (holding that
the President’s Article II, Section 2 power to make treaties with the Indian
tribes is coextensive with the power to make treaties with foreign nations).
But a long line of judicial opinions confirms that, under U.S. law, Indian
tribes occupy a unique position: they are “domestic, dependent nations.”
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 17 (1831). That is, tribes reside
within the United States and are subject to federal power, but they retain
sovereign authority over a range of matters relevant to their self-government.
Cohen’s, supra § 1.01.
Three key principles underpin the field of federal Indian law. First,
Indian tribes possess “inherent powers of a limited sovereignty that has never
been extinguished.” Id. Because of tribes’ retained sovereignty, they have a
government-to-government relationship with the United States. Id. Second,
the federal government has expansive and exclusive powers in Indian affairs,
4
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and, relatedly, an ongoing obligation to use those powers to promote the well-
being of the tribes in what is commonly referred to as a trust relationship. Id.
Third, as a corollary to the federal government’s broad power in Indian
affairs, the supremacy of federal law, and the need for the nation to speak
with one voice in its government-to-government relations, state authority in
this field is very limited. Id.
In addition to these precepts, we are mindful of the uniquely crucial
importance of historical perspective in federal Indian law. See, e.g.,
Charles A. Miller, The Supreme Court and the Uses of
History 24 (1969) (“[I]n disputes concerning American Indian tribes the
courts have also considered and often decided cases principally on the basis
of historical materials[.]”). As Justice Holmes said about a different issue:
“Upon this point a page of history is worth a volume of logic.” New York
Trust Co. v. Eisner, 256 U.S. 345, 349 (1921); see also N.L.R.B. v. Noel
Canning, 573 U.S. 513, 524 (2014) (“[L]ong settled and established practice
is a consideration of great weight in a proper interpretation of constitutional
provisions[.]” (quoting The Pocket Veto Case, 279 U.S. 655, 689 (1929)).
Particularly significant to our analysis is the contemporary understanding of
the Constitution’s treatment of Indian Affairs at the time of its adoption. See,
e.g., District of Columbia v. Heller, 554 U.S. 570, 605-10 (2008) (canvassing
Founding-era historical sources to synthesize the original understanding of
the Constitution). We therefore survey the interrelated history of Indian
affairs and the adoption of the Constitution.
I. A Brief History of the American Indians and the United States
Constitution
In holding key provisions of ICWA unconstitutional, the district court
disregarded two centuries of precedent and omitted any discussion of the
history of the federal constitutional power to enter treaties or legislate with
respect to the Indian tribes. Seeking to make up for the district court’s errors
and omissions, the Plaintiffs now cite to several historical texts. The
5
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authorities they cite, however, mainly support a broad understanding of the
federal government’s exclusive power over Indian affairs, which includes the
authority to prevent states from exercising their sovereignty in ways that
interfere with federal policy toward the Indians. Careful study of their
references and other scholarly resources reveals the lack of foundation for the
district court’s more limited conception of federal authority.
Following the American Revolution, the new United States
government supplanted the British Crown as the self-appointed ruler of most
of North America, thereby inviting expansive white settlement of the
continent. See Cohen’s, supra § 1.02. Americans, then, were optimistic
in 1783; their victory over the British had rendered the nation, as George
Washington put it, “the sole Lord[] and Proprietor[] of a vast tract of
continent.” Gregory Ablavsky, The Savage Constitution, 63 Duke L.J. 999,
1009 (2014) [hereinafter Ablavsky, Savage Constitution] (quoting George
Washington, The Last Official Address, of His Excellency
General Washington, to the Legislatures of the United
States 4 (1783)). But only four years later, that optimism “turned to
despondence, as the Continental Congress, with an empty treasury and a
barely extant military, confronted looming wars against powerful Indian
confederacies on the northern and southern borderlands.” Id. Unrest
between the tribes, the states, squatters, and settlers was largely to blame for
this dramatic shift in national mood—hallmarks of the failure of the central
government’s Indian policy under the Articles of Confederation. Id. at 1006.
The insolvent Continental Congress desperately desired both peace
with the Indians and annexation of the western land they inhabited in order
to repay the debt it had incurred during the Revolutionary War. Id. To
accomplish these goals, the new nation followed the practice of the British,
who had treated Indian tribes as “quasi-foreign nations” and used
negotiation, treaties, and war-making as the primary tools for managing
relations. Br. of Prof. Ablavsky at 5. In other words, the United States
6
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structured its relations with tribes akin to its regulation of foreign affairs. See
id. The Articles of Confederation accordingly provided that the national
government was to have authority over “managing all affairs with the
Indians.” Articles of Confederation of 1781, art. IX. As the
Continental Congress’s Committee on Southern Indians explained, this
authority comprehended a number of interrelated powers: “making war and
peace, purchasing certain tracts of [tribal] lands, fixing the boundaries
between [Indians] and our people, and preventing the latter settling on lands
left in possession of the former.” 33 Journals of the Continental Congress,
1774-1789, 457 (Roscoe R. Hill ed., 1936). These interconnected powers
were, in the Southern Indians Committee’s view, “indivisible.” Id. This is
to say that, under the Articles of Confederation, the Continental Congress
was intended to possess Indian affairs powers like those that any sovereign
would hold in conducting affairs with other sovereigns. See id. (noting that
“before the revolution” these powers “were possessed by the King”). In
practice, however, it was not clear whether, under the Articles, the states also
retained the sovereign power to deal with the Indian tribes in their own right.
See The Federalist No. 42 at 217 (James Madison) (describing the
delineation of authority as “ambiguous”).
Exercising its federal authority, the Continental Congress appointed
commissioners to secure peace treaties with tribes throughout the nation.
Cohen’s, supra at 1.02[3]. These treaties serve as some of the earliest
documentary bases for the nation’s continuing trust relationship with the
tribes. For example, in return for peace and other guarantees, the United
States promised the Cherokees that the tribe would be “received” into “the
favour and protection of the United States of America.” Treaty with the
Cherokees, preamble, 1785, 7 Stat. 18. Similar language was included in a
treaty with the Six Nations tribes at Fort Stanwix in New York. Treaty
with the Six Nations, 1784, 7 Stat. 15 (Treaty at Fort Stanwix).
7
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While the national government worked to secure treaties with the
tribes, some states resisted—or outright defied—these efforts, viewing them
as infringements on their sovereignty. Cohen’s, supra at 1.02[3]. New
York, for instance, protested the asserted national “incursion” into its
powers posed by the Treaty of Fort Stanwix. Robert N. Clinton, The
Dormant Indian Commerce Clause, 27 Conn. L. Rev. 1055, 1147 (1995).
Other states went further. Georgia and North Carolina seized on ambiguous
clauses in the Articles concerning the scope of federal power over Indian
affairs, construing them in a manner that “le[ft] the federal powers . . . a mere
nullity.” 33 Journals of the Continental Congress at 457. Indeed, Georgia
outright ignored federal treaties and attempted to form its own compacts
with the Creek Indians, see id., “reportedly resort[ing] to death threats to
compel agreement” and expropriate tribal lands. Ablavsky, The Savage
Constitution, supra at 1028; see also Report of the Secretary of War on the
Southern Indians (July 18, 1787), in 18 Early American Indian
Documents: Treaties and Laws, 1607-1789: Revolution and
Confederation 449, 450 (Alden T. Vaughan et al. eds., 1994)
[hereinafter Early American Indian Documents].
In a memorandum drafted on the eve of the Constitutional
Convention, James Madison described Georgia’s “wars and Treaties . . . with
the Indians,” as emblematic of the “vices” inherent in the division of federal
and state power under the Articles. James Madison, Vices of the
Political System of the United States, in 9 The Papers of
James Madison 345, 348 (Robert A. Rutland et al. eds., 1975). And in a
letter sent to Congress in the midst of the Convention, Secretary at War
Henry Knox worried that the United States could not “effectual[y]
interfere[]” in the many skirmishes that pitted states and settlers against
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Indians and, he predicted that a “general [I]ndian war may be expected.” 1
H. Knox, Report of the Secretary at War on the Southern Indians (July 18,
1787), in 18 Early American Indian Documents 450. Thus,
nationalists like Madison and Alexander Hamilton “agreed on the problem”:
the new nation was “too weak to exercise the authority it enjoyed on paper”
under the Articles of Confederation, and a stronger federal government was
needed. Ablavsky, Savage Constitution, supra at 999. “Indian affairs thus
propelled the creation of a more powerful national state—one that, in
Madison’s words, would possess the “ability to effect what it is proper [it]
should do.’” Id. (alterations in original) (quoting Letter from James Madison
to George Nicholas (May 17, 1788), in 18 The Documentary History
of the Ratification of the Constitution: Commentaries
on the Constitution Public and Private 24, 28 (John P.
Kaminski et al. eds., 1995)). The supporters of a stronger national authority
envisioned a central government that could “govern not merely in principle
but ‘in reality,’” as Secretary Knox wrote about Indian affairs. Id. (quoting
Report of the Secretary at War on the Southern Indians (July 18, 1787), in 18
Early American Indian Documents 449, 450).
At the Constitutional Convention, Madison attributed the failings of
Indian policy to state interference with the Confederation’s authority,
especially its treatymaking power. Id. at 1006. His solution to Indian affairs
was to revise “federalism to ensure federal supremacy—partly through the
Indian Commerce Clause, but more significantly through the Treaty,
1
Knox’s position was labeled “Secretary at War” under the Articles. See 19
Journals of the Continental Congress, 1774-1789, at 126 (Worthington Chauncey Ford ed.,
1912) (establishing under the Articles of Confederation the position of “Secretary at
War”). He was appointed to the new position of “Secretary of War” in September 1789.
See Harry M. Ward, The Department of War, 1781-1795, at 101-02 (1962); see also Act of
Aug. 7, 1789, ch. 7, 1 Stat. 49, 50 (establishing the Department of War and the office of
Secretary of War, a position invested with “such duties as shall be enjoined on, or entrusted
to him by the President of the United States . . . relative to Indian Affairs”).
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Compact, Supremacy, and Property Clauses.” Ablavsky, Savage
Constitution, supra at 1006-07. At its heart, Madison’s solution to Indian
affairs “envisioned a strengthened federal government that would protect
and restrain Indians and states alike.” Id. at 1007.
Hamilton and other Federalists took a different but complementary
view; their “concern over external threats dovetailed with the views of many
on the frontier, who blamed the Articles’ failure on national military
weakness against Native power.” 2 Id. The approach of Hamilton and
2
Though the writings and speeches of Madison have traditionally been regarded
as the authoritative encapsulation of the Federalist case for the Constitution, contemporary
research has upset the assumption that Madison’s views were representative of the
Federalist camp generally. In particular, historians have harnessed The Documentary
History of the Ratification, a rich source of primary material concerning the Constitutional
Convention and the ratification debates that includes documents such as letters, petitions,
and records of convention debates. See Max M. Edling, A Revolution in Favor
of Government: Origins of the U.S. Constitution and the Making
of the American State 18-21 (2003) at 29 [hereinafter Edling, A Revolution
in Favor of Government] (citing The Documentary History of the
Ratification of the Constitution: Commentaries on the
Constitution Public and Private 24, 28 (John P. Kaminski et al. eds., 1995)).
In addition to the obvious import of the proceedings during the Constitutional Convention
at which the charter was framed, documentation from the subsequent ratification debates
offers significant insight into how the Constitution should be interpreted. The Constitution
rooted its legitimacy in the consent of those whom it would come to govern, declaring that
the system it outlined was “ordained and established” by “We the people,” U.S.
Const. Preamble. To turn the promise of self-rule into a reality, ratification was
conducted through a series of state conventions with delegates chosen by the voters of each
state. Ratification thus was itself an act of popular sovereignty and representative
democracy that required the public and its chosen delegates to be educated and deliberate
on the meaning of the Constitution. See id. at 29-31. These ratification debates provided
the “first widely shared” exposition of important constitutional provisions, and the
discussions that took place therein were the starting point for constitutional interpretation
during the early republic. Id. Thus, the contemporaneous writings that circulated among
the public and within the state ratification conventions are as important as the records of
the Constitutional Convention itself in determining the charter’s original public meaning.
See id.
Mining this trove, historians have concluded that the issues that motivated
Madison were not emphasized by all Federalists. Many Federalists did not echo Madison’s
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likeminded Federalists to Indian affairs, then, was to create a muscular
“fiscal-military state that would possess the means to dominate the
borderlands at Indians’ expense.” Id. (citing Max M. Edling, A REVOLUTION
IN FAVOR OFGOVERNMENT: ORIGINS OF THE U.S. CONSTITUTION AND THE
MAKING OF THE AMERICAN STATE 47-49 (2003)). The Indians thus served
as “both impetus and justification for the creation of a federal standing
army” supportable through direct taxation. Id.
Ultimately, these arguments in favor of restraining states and
centralizing authority over Indian affairs resulted in a significant
enhancement of the federal government’s power. Id. at 999. New
constitutional provisions were added declaring the federal constitution, laws,
and treaties the supreme law of the land; barring state treatymaking; and
providing “exclusive federal power over western territories.” Id. Added,
too, was the Indian Commerce Clause, but the foregoing more general
prototypical liberal “call for minority rights and limited government,” but rather argued
for the formation of a strong national state. Id. at 14-15. While Madison was concerned
primarily with creating a constitutional structure that would protect liberty by restraining
concentrations of power and safeguarding the rights of minorities, Hamilton and others
sought to establish a robust “national government with the ability to act.” Id.
This latter group of Federalists, having witnessed the failings of the weak and
insolvent nation under the Articles of Confederation, were fierce advocates for the
Constitution’s grant of unlimited fiscal and military power to the central government,
arguing that centralizing such authority was necessary to defend against foreign and
domestic aggressors and competitors. Id. Chief among the adversaries they sought to
protect against were the Indian tribes. Indians presented immediate dangers in the
borderlands, and these Federalists feared the tribes would form confederations with each
other, the British to the north, or the Spanish to the south, creating strong rival powers for
control of the continent. Id. These Federalists also perceived a need to remove the tribes,
by force or by treaties, as obstacles to the new nation’s capitalization of the interior lands
and their resources. See Ablavsky, Savage Constitution at 1037-38, 1063-67. Countering the
tribes, they believed, would require a strong central government with unlimited taxing,
borrowing, and military powers. In sum, the need for a strong national government with
robust powers to manage relations with the Indians played a crucial role in the Federalist
case for the Constitution, and recognizing this motivation is key to understanding the wide
breadth of the Indian affairs power the Constitution confers on the federal government. See
id. at 1058-67.
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provisions ensuring supreme federal power over the states with respect to
foreign affairs and the western territories were of much greater importance,
as they collectively authorized the “fiscal-military state committed to
western expansion” that the Federalists had envisioned. Id.
During the ratification of the Constitution, the constant potential for
Indian alliances with other tribes or European nations also influenced the
public understanding of the Constitution. See id. at 1058-67. Indeed, “many
Federalists repeatedly invoked the specter of threats posed by the ‘savages’
to justify” states’ ratifying a stronger federal government and a standing
army. Id. at 1000, 1069. This unifying strategy worked well: Georgia, for
example, ratified the new Constitution after only three days of debate so that
it could secure federal aid in its ongoing war with the Creek Indians. Id.
Proponents of the new charter also expressly contended that its
consolidation of power over Indian affairs in the national government would
rectify the problems that had resulted from the split authority between the
states and Congress under the Articles of Confederation. Writing in the
Federalist Papers, Madison described the Indian Commerce Clause as “very
properly unfettered” by the ambiguous limits Article XI of the Articles of
Confederation had placed on state power. The Federalist No. 42 at
217 (James Madison); see also Ablavsky, The Savage Constitution, supra at
1053-54. The Constitution’s opponents recognized, too, the import of this
redistribution of power in Indian affairs; Abraham Yates, a leading Anti-
Federalist, warned that “adopting the new government[] will enervate”
states’ “legislative rights, and totally surrender into the hands of Congress
the management and regulation of the Indian affairs.” Abraham Yates,
Documentary History of the Ratification of the Constitution, Vol. XX, p. 1158;
see also Ablavsky, The Savage Constitution, supra at 1053-54. Yet the
Constitution was ratified despite these concerns, indicating that early
Americans viewed the benefits of centralizing power over Indian affairs to be
worth the surrender of state authority.
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The post-ratification history further confirms that the Constitution
created a fiscal-military government possessing broad, exclusive federal
powers over Indian affairs. The Washington Administration likened federal
authority over Indian affairs to its foreign affairs power. For instance,
Secretary Knox wrote to President George Washington that “[t]he
independent nations and tribes of Indians ought to be considered as foreign
nations, not as the subjects of any particular state.” Letter from Henry Knox
to George Washington (July 7, 1789), in 3 Papers of George
Washington: Presidential Series 134, 138 (Dorothy Twohig ed.,
1989). Accordingly, as Knox explained in another letter, the federal
government had supreme authority to regulate in this field: “[T]he United
States have, under the constitution, the sole regulation of Indian affairs, in all
matters whatsoever.” Letter from Henry Knox to Israel Chapin (Apr. 28,
1792), in 1 American State Papers: Indian Affairs 231-32
(Walter Lowrie et al. eds., 1832).
State officials also acknowledged the federal government’s plenary
authority over Indian affairs under the new constitution. Soon after
ratification, for example, South Carolina Governor Charles Pinckney wrote
to President Washington requesting aid from “the general Government, to
whom with great propriety the sole management of India[n] affairs is now
committed.” Letter from Charles Pinckney to George Washington (Dec. 14,
1789), in 4 Papers of George Washington: Presidential
Series 401, 404 (Dorothy Twohig ed., 1993); see also Gregory Ablavsky,
Beyond the Indian Commerce Clause, 124 Yale L.J. 1012, 1043 (2015)
[hereinafter Ablavsky, Beyond the Indian Commerce Clause] (citing similar
acknowledgments of federal supremacy in Indian affairs by the legislatures of
Georgia and Virginia).
Early congressional enactments demonstrate the Founding-era view
that the federal government was supreme in regulating Indian affairs.
Ablavsky, Savage Constitution, supra at 999. Particularly significant is the
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First Congress’s passage of the Indian Intercourse Act (also referred to as the
“Non-Intercourse Act” or “Trade and Intercourse Act”). Act of July 22,
1790, 1 Cong. ch. 33, 1 Stat. 137. The statute limited trade with Indians to
persons licensed by the federal government and criminalized offenses by U.S.
citizens against Indians in Indian country, including within states’ borders.
Successor versions were enacted throughout the 18th and 19th centuries,
further expanding the scope of the law by, for instance, “authorizing federal
military force to arrest violators of the Act found within Indian country
anywhere in the United States.” See Br. of Prof. Ablavsky at 11. 3
That the Constitution was intended to confer on the federal
government unimpeded authority vis-à-vis Indian relations is evidenced
further in how the government deployed its new fiscal-military power against
the tribes in service of the nation’s westward expansion. 4 The military’s
initial western expeditions in the early 1790s resulted in gross failure, as an
Indian confederacy handed the American forces the U.S. Army’s worst
defeat by Indians in its entire history. Ablavsky, Savage Constitution, supra at
1077-78. The Indians’ routing of American troops underscored their martial
strength and the threat that they posed to the nation’s ambitions to conquer
the western lands. In response, the government ramped up spending on the
Army over the next few years, swelling its size severalfold. In subsequent
battles with the Indians, the newly strengthened Army “prevailed, seizing
most of present-day Ohio.” Id. at 1078. The government’s bellicose stance
toward the tribes persisted, and, over the next century, wars between the
Indians and the United States “remained a near constant” as the government
3
See also Act of May 19, 1796, 4 Cong. ch. 30, § 3, 1 Stat. 469, 470; Act of June 30,
1834, ch. 161, 4 Stat. 729; Act of Mar. 30, 1802, ch. 13, 2 Stat. 139; Act of Mar. 3, 1799, ch.
46, 1 Stat. 743; Act of Mar. 1, 1793, ch. 19, 1 Stat. 329.
4
“The army had been brought into existence to deal with western expansion and
to coerce the Indians.” EDLING, A REVOLUTION IN FAVOR OF GOVERNMENT, supra at 140.
Indeed, in the Antebellum era alone, the U.S. Army fought at least ten wars against the
Indians. Ablavsky, Savage Constitution, supra at 1080 & n.483.
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continued to facilitate westward expansion. 5 Id. at 1078. In this way, the
Constitution operated as the Federalists had predicted: the nation developed
a strong military able to quell any threat posed by Indians and, consequently,
to open up the west to Anglo settlement. Id. at 1077-78.
Finally, early Supreme Court decisions confirm that the Constitution
was understood to place the reins of authority over Indian affairs squarely and
solely in the hands of the federal government. In Worcester v. Georgia, 31 U.S.
(6 Pet.) 515, 559 (1832), Chief Justice John Marshall explained that the
Constitution
confers on congress the powers of war and peace; of making
treaties, and of regulating commerce with foreign nations, and
among the several states, and with the Indian tribes. These
powers comprehend all that is required for the regulation of our
intercourse with the Indians. They are not limited by any
restrictions on their free actions. The shackles imposed on this
power, in the confederation, are discarded.
5
The history of the dispossession of the Indians continued apace throughout the
nineteenth and well into the twentieth centuries. In the early years of the nineteenth
century, for example, the United States negotiated treaties that resulted in the nation
acquiring millions of acres, “often paying pennines on the acre for lands worth many times
more.” Cohen’s, supra § 1.03. Later, during the “allotment” era of 1887 until 1934,
Indians’ land holdings plunged from 138 million acres to only 48 million acres of land due
to the federal government’s policy of splitting tribal members’ undivided interests in
reservation lands into individually-owned lots and then selling off “surplus” reservation
land to non-Indians. Id. § 1.04. By the measure of some scholars of the Indian history,
“the United States seized some 1.5 billion acres from North America’s native peoples” in
total since the nation’s founding. Claudio Saunt, The Invasion of America, Aeon (Jan. 7,
2015), https://aeon.co/essays/how-were-1-5-billion-acres-of-land-so-rapidly-stolen.
Professor Saunt has authored several books documenting the lengthy history of injustices
that befell the Indians as their lands were taken by non-Indians throughout the eighteenth
and nineteenth centuries, often by the federal government or with its backing. See, e.g.,
Claudio Saunt, West of the Revolution: An Uncommon History of
1776 (2014); Claudio Saunt, Unworthy Republic: The Dispossession of
Native Americans and the Road to Indian Territory (2020).
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The Court’s holistic reading of the Constitution exemplifies how the
Founding Generation understood federal Indian authority: as a bundle of
interrelated powers that functioned synergistically to give the federal
government supreme authority over Indian affairs. See id. at 519 (“The
treaties and laws of the United States contemplate the Indian territory as
completely separated from that of the states; and provide that all intercourse
with them shall be carried on exclusively by the government of the union.”);
see also Ablavsky, Beyond the Indian Commerce Clause, supra at 1040; cf.
McGirt v. Oklahoma, 140 S. Ct. 2452, 2463 (2020) (“The policy of leaving
Indians free from state jurisdiction and control is deeply rooted in this
Nation’s history.” (internal quotation marks omitted)).
In sum, the historical evidence powerfully demonstrates that the
Framers intended the Constitution, through an array of provisions, to entrust
to the federal government exclusive and supreme authority in Indian affairs,
including the power to prevent states from interfering with federal policy
toward the Indians. It also reveals that the Founding Generation, both at the
federal and state levels, held this same understanding regarding the
Constitution’s consolidation of authority in Indian affairs. Wielding its
interconnected, symbiotic powers in this area, the early federal government
at times regulated to encourage national expansion at the expense of the
Indians’ sovereignty and thereby to entrench tribes’ dependency on the
federal government of the United States.
II. The Special Federal-Tribal Trust Relationship
As a result of the federal government’s forcible annexation of the
western lands and envelopment of the Indian nations, the United States
developed a special obligation with respect to the Indian tribes, with the two
sharing what modern courts generally describe as a unique “trust
relationship.” Matthew L.M. Fletcher, Principles of Federal
Indian Law § 5.2 (1st ed. 2017) [hereinafter Fletcher, Federal Indian
Law]. In essence, the trust relationship obligates the federal government to
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preserve tribal self-governance, promote tribal welfare, and uphold its
fiduciary duty in managing tribal assets. See id.
The contemporary understanding of the trust relationship has roots in
the centuries-old “doctrine of the law of nations.” Worcester, 31 U.S. at 520.
That doctrine holds that “when a stronger sovereign assumes authority over
a weaker sovereign, the stronger one assumes a duty of protection for the
weaker one, which does not surrender its right to self-government.”
Fletcher, Federal Indian Law, supra § 5.2; see Worcester, 31 U.S. at 552,
555 (“Th[e] relation [between the United States and the tribes] was that of a
nation claiming and receiving the protection of one more powerful: not that
of individuals abandoning their national character, and submitting as subjects
to the laws of a master . . . Protection does not imply the destruction of the
protected.”). Of course, the Indian Nations were originally self-governing
sovereigns and independent from any outside rulers. See McClanahan v.
State Tax Comm’n of Az., 411 U.S. 164, 172 (1973). But vested with plenary
authority over Indian affairs, the federal government from its founding
asserted a degree of ultimate sovereignty over the tribes. See Ablavsky,
Beyond the Indian Commerce Clause, supra at 1012. In particular, the United
States insisted that it had the authority under the law of nations to control the
tribes’ external relations with other sovereigns. See Fletcher, Federal
Indian Law, supra § 5.2. Under the same law of nations, then, the United
States naturally assumed a duty of protection to the tribes. See id. And as the
nation expanded westward, an increasing number of Indian nations, whether
through treaty or military conquest, fell under the authority of the United
States and therefore under its duty of protection. Cohen’s, supra § 1.03.
In addition to demonstrating the early federal government’s view that
it held exclusive plenary power over Indian affairs, the First Congress’s
enactment of the Indian Intercourse Act reveals that the young nation
understood itself to owe a special duty of protection to the Indian tribes
within its borders. Act of July 22, 1790, 1 Cong. ch. 33, 1 Stat. 137. The
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legislation sought to prevent abuses against Indians by non-Indians and
states. Specifically, it permitted only federal agents to purchase Indian lands
and provided for criminal sanctions for offenses by non-Indians against
Indians. See Cohen’s, supra § 1.03. Federal legislation protective of
Indians was crucial because, as the Court later explained, the tribes “owe no
allegiance to the states, and receive from them no protection. Because of the
local ill feeling, the people of the states where they are found are often their
deadliest enemies.” United States v. Kagama, 118 U.S. 375, 384 (1886).
The government’s acknowledgement and assumption of a special
duty of protection is further reflected in countless treaties between the
United States and the tribes. See, e.g., Worcester, 31 U.S. at 519 (noting that
the United States “assum[ed] the duty of protection” toward the Cherokee
Nation under the Treaty of Holston, July 2, 1791, 7 Stat. 39, 40). Like the
Indian Intercourse Act, these treaties committed the government to
protecting the tribes from a sometimes-hostile non-Indian populace. See, e.g.,
Treaty with the Northern Cheyenne and Northern Arapahoe, art. I, May 10,
1868, 15 Stat. 655, 655 (“If bad men among the whites, or among other people
subject to the authority of the United States, shall commit any wrong upon
the person or property of the Indians, the United States will . . . cause the
offender to be arrested and punished according to the laws of the United
States, and also reimburse the injured person for the loss sustained.”); see
also Mary Christina Wood, Indian Land and the Promise of Native Sovereignty:
The Trust Doctrine Revisited, 1994 Utah L. Rev. 1471, 1496-97 (1994). The
Supreme Court itself has repeatedly recognized the duty of protection the
treaties memorialized. See, e.g., Kagama, 118 U.S. at 384 (“From the[
tribes’] very weakness and helplessness, so largely due to the course of
dealing of the federal government with them, and the treaties in which it has
been promised, there arises the duty of protection, and with it the power.”);
Worcester, 31 U.S. at 519.
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Regrettably, the federal government’s involvement in Indian affairs
has also often been far from benign. During the late nineteenth to early
twentieth centuries, Congress interfered in internal tribal affairs and property
interests extensively. Fletcher, Federal Indian Law, supra § 5.2; see
also McGirt, 140 S. Ct. at 2463 (discussing Congress’s policy in the late
1800’s of “pressur[ing] many tribes to abandon their communal lifestyles
and parcel their land into smaller lots owned by individual tribe members,”
in order to assimilate Native Americans and give white settlers “more space
of their own” (citing General Allotment Act of 1887, ch. 119, 24 Stat. 388-
90)). The Court, however, held that such congressional enactments—even
when they resulted in takings of tribal property—were immune from judicial
review as long as Congress acted in “good faith.” Lone Wolf v. Hitchcock, 187
U.S. 553, 565-66 (1903)). In taking a hands-off, deferential approach to
Congress’s management of Indian affairs, the Court analogized the federal-
tribal relationship as akin to that of a guardian to its ward. See, e.g., id. at 565
(stating that “Congress possess[es] paramount power over the property of
the Indians, by reason of its exercise of guardianship over their interests”);
Kagama, 118 U.S. at 384 (“These Indian tribes are the wards of the nation.
They are communities dependent on the United States[.]”). Though
intended to suggest that the government played a salutary role in tribal affairs,
the guardianship metaphor instead underscores a prevailing view of
Indians—both wrongheaded and deeply repugnant—as primitive people,
“untutored and improvident, and still requiring the protection and
supervision of the general government.” Heckman v. United States, 224 U.S.
413, 417 (1912); see also, e.g., Beecher v. Wetherby, 95 U.S. (5 Otto) 517, 525
(1877) (describing the Indians as “an ignorant and dependent race” subject
to the “control [of] a Christian people”).
In 1934, Congress began a “slow retreat” from this problematic
guardianship model when it enacted the Indian Reorganization Act.
Fletcher, Federal Indian Law, supra § 5.2 (citing Act of June 18, 1934,
48 Stat. 984, codified as amended at 25 U.S.C. §§ 5101 et seq.). The Act, for
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the first time in the history of the government’s intervention in Indian affairs,
required tribal consent to the statute’s operative provisions. 25 U.S.C.
§ 5123(a)(1). This trend continued into the latter half of the twentieth
century, and the guardianship metaphor has now given way completely, with
Congress and the modern Court both explicitly acknowledging that the
government’s relationship with and obligations to the tribes is instead that of
a trustee to a beneficiary. See, e.g., 25 U.S.C. §§ 5601–02 (recognizing and
reaffirming the federal trust responsibility); 25 U.S.C. § 3101 (finding that
“the United States has a trust responsibility toward Indian forest lands”);
United States v. Mitchell, 463 U.S. 206, 225 (1983) (affirming the “undisputed
existence of a general trust relationship between the United States and the
Indian people”); see also Fletcher, Federal Indian Law, supra § 5.2.
Rather than reflecting and justifying a paternalistic approach that
subordinated tribal sovereignty—as the guardianship model did—the trust
relationship commits the federal government to preserving tribal self-
governance. 6 It also obligates and authorizes Congress to enact statutes that
promote the general well-being of tribes by providing them with
governmental services, including education, health care, housing, and public
safety. Fletcher, Federal Indian Law, supra § 5.3; see also Seminole
6
This duty to maintain tribal self-governance is embodied in the congressional
statement of policy in the Indian Self-Determination and Education Assistance Act of 1975:
The Congress declares its commitment to the maintenance of the Federal
Government’s unique and continuing relationship with, and responsibility
to, individual Indian tribes and to the Indian people as a whole through the
establishment of a meaningful Indian self-determination policy that will
permit an orderly transition from the Federal domination of programs for,
and services to, Indians to effective and meaningful participation by the
Indian people in the planning, conduct, and administration of those
programs and services. In accordance with this policy, the United States is
committed to supporting and assisting Indian tribes in the development of
strong and stable governments, capable of administering quality programs
and developing the economies of their respective communities.
25 U.S.C. § 5301.
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Nation v. United States, 316 U.S. 286 (1942) (imposing “the most exacting
fiduciary standards” on the government in administering tribal assets). In
fact, “[n]early every piece of modern legislation dealing with Indian tribes
contains a statement reaffirming the trust relationship between tribes and the
federal government.” 7 Cohen’s, supra § 5.04.
In short, the present-day trust relationship between the United States
and Indian nations is an outgrowth of a complex, centuries-old nation-to-
nation political relationship between the two, and it expresses both the
enduring obligations the federal government owes to the Indians and its
power to discharge this duty.
III. Federal Regulation of Indian Children Before ICWA
Even before the dawn of the American nation, Congress had
concerned itself with the rearing of Indian youths. As Judge Costa
relates, in 1775 the Continental Congress appropriated funds ostensibly to
educate Indians at Dartmouth College but with the ulterior aim of using the
Indian pupils as shields to ward off potential attacks by the British or their
Indian allies. See Costa, Circuit Judge, Op. at 15. In the earliest years
7
See, e.g., Indian Trust Asset Reform Act, 25 U.S.C. §§ 5601–5602 (recognizing
and reaffirming the federal trust responsibility); National Indian Forest Resources
Management Act, 25 U.S.C. § 3101 (finding that “the United States has a trust
responsibility toward forest lands”); American Indian Agricultural Resources
Management Act, 25 U.S.C. § 3701 (finding that “the United States has a trust
responsibility to protect, conserve, utilize, and manage Indian agricultural lands consistent
with its fiduciary obligation and its unique relationship with Indian tribes”); American
Indian Trust Fund Management Reform Act of 1994, 25 U.S.C. § 4043 (Special Trustee
for American Indians must prepare comprehensive strategic plan to “ensure proper and
efficient discharge of the Secretary’s trust responsibilities to Indian tribes and individual
Indians”); Native American Housing Assistance and Self-Determination Act, 25 U.S.C.
§ 4101(2)–(4) (“[T]here exists a unique relationship between the Government of the
United States and the governments of Indian tribes and a unique Federal responsibility to
Indian people[.]”); 20 U.S.C. § 7401 (“It is the policy of the United States to fulfill the
Federal Government’s unique and continuing trust relationship with and responsibility to
the Indian people for the education of Indian children.”).
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of the Constitutional era, the federal government took a number of actions to
regulate Indian children. For example, starting in 1794, the federal
government entered into over one hundred treaties with Indian tribes that
obligated the federal government to provide for Indian education. And
stemming from a misguided paternalistic stance toward the tribes, President
Washington directed American treaty commissioners dealing with Indian
tribes to “endeavor to obtain a stipulation for certain missionaries . . . to
reside in the nation” in order to “civilize” the population. Matthew L.M.
Fletcher & Wenona T. Singel, Indian Children and the Federal-Tribal Trust
Relationship, 95 Neb. L. Rev. 885, 912 (2017) (quoting Letter from George
Washington, President of the United States, to Benjamin Lincoln, Cyrus
Griffin, and David Humphreys, (August 29, 1789), reprinted in 4
American State Papers 65, 66 (Walter Lowrie & Matthew St. Clair
Clarke eds., 1832)).
During the late eighteen century the federal government even
expressly involved itself in the transfer of American Indian children from
their families and tribal communities to non-native homes. Fletcher,
Federal Indian Law, supra § 3.6. Under the Washington
Administration, for instance, federal monies financed the rearing of Indian
children in Quaker homes. Br. of Prof. Ablavsky at 20. Though springing
from an intention to do good, like much of the government’s past Indian
policy, the Indian removal efforts wrought monumental and lasting damage
on the lives of individual Indians and tribes. See Fletcher, Federal
Indian Law, supra § 3.6.
The campaign to “Christianize” the supposedly heathen Native
peoples greatly expanded in the late nineteenth century, with the removal of
Indian children constituting the single most important aspect of the
government’s “civilization” policy. See Fletcher, Federal Indian
Law, supra § 3.6. Government officials took Indian children from their
homes and tribal lands, at times by force, and enrolled them at coercive, off-
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reservation Indian boarding schools. Id. These federally run or financed
schools sought to stamp out all vestiges of Indian culture. As the
Commissioner of Indian Affairs wrote in 1896, the purportedly humanitarian
course was “for the strong arm of the nation to reach out, take [Indian
children] in their infancy and place them in its fostering schools, surrounding
them with an atmosphere of civilization, . . . instead of allowing them to grow
up as barbarians and savages.” T.J. Morgan, A Plea for the Papoose, 18 Baptist
Home Mission Monthly 402, 404 (1896). The headmaster of the notorious
Carlisle School explained the policy even more bluntly in his infamous credo,
stating that the schools were meant to take an Indian child and “Kill the
Indian in him, to save the man.” Fletcher, Federal Indian Law, supra
§ 3.6 (quoting Richard H. Pratt, The Advantages of Mingling
Indians with Whites (1892), reprinted in Americanizing the
American Indians: Writings by the “Friends of the
Indian” 1880–1900 260–61 (Francis Paul Prucha ed. 1973)).
Although the total number of children enrolled in the boarding schools
is unknown, in 1895 alone 157 boarding schools housed more than 15,000
Indian children. Andrea C. Curcio, Civil Claims for Uncivilized Acts: Filing
Suit Against the Government for American Indian Boarding School Abuses, 4
Hastings Race & Poverty L.J. 45, 57 (2006). Many were run
directly by the Bureau of Indian Affairs (“BIA”). Others were operated by
Christian groups that received federal funds. Schooling was left to Christian
groups because Christianity, and particularly Protestantism, was seen, at the
time, as essential to a “civilized” life. See Fletcher, Federal Indian
Law, supra § 3.6. The government thus hoped to eradicate the American
Indians’ native religions by converting young Indians to Christianity.
The use of government-backed force was central to the creation of
these boarding schools. “Indian parents who opposed the taking of their
children to these schools faced criminal prosecution and possible
incarceration.” Id. Children were “literally kidnap[ped]” so they could be
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shipped off to the Indian schools. For example, one federal agent described
hunting down Hopi “Indian children who had escaped to caves or cellars,
sometimes defended by their parents, who would have to be restrained by
force to prevent the kidnapping of their children.” Id.
Life at the schools themselves was pervaded by a strict regimen of
military-style discipline meant to reform Indian children and assimilate them
into Anglo society. Id. Children were forbidden to speak their native
languages and were punished, including through beatings, if they lapsed into
their native tongues. Cohen’s, supra § 1.04. And the goal of permanently
severing Indian children’s connections with tribal life did not stop at the end
of the school year. Under an “outing system,” Indian children were placed
in non-Indian homes far from their reservations during the summer, ensuring
that they never returned to their communities during their tenure at the
boarding schools. Fletcher, Federal Indian Law, supra § 3.6.
In 1928, a devastating federally commissioned report produced by the
Brookings Institution laid bare the problems in Indian boarding schools,
concluding that they were “grossly inadequate.” See Lewis Meriam, The
Problem of Indian Administration 11 (1928). The report detailed
life at the schools, citing “deplorable health conditions,” including fire risks,
“serious malnutrition, and high-rates of communicable diseases.” Id. at 192,
318-19. More generally, the report observed that the “official government
attitude” toward Indian education had been premised “on the theory that it
is necessary to remove the Indian child[ren] as far as possible from [their]
environment” so as to prepare them for “life among the whites.” Id. at 346,
618. This way of thinking, the report explained, was fundamentally flawed
and at odds with the “modern point of view in education,” which favored
rearing the child “in the natural setting of home and family life.” Id. at 346.
The result of the government’s boarding school policy had been to “largely
disintegrate[] the [Indian] family.” Id. at 15.
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By the time of the report, Indian boarding schools had begun to decline
as the BIA charged state public schools with assuming more responsibility for
Indian education. Cohen’s, supra § 1.04. But the boarding schools did not
vanish; as late as the 1970s, thousands of Indian children were still being
educated at federal boarding schools. See Indian Child Welfare Act of 1977:
Hearing on S. 1214 Before the Select Comm. on Indian Affairs, 95th Cong. 603
(1977).
In establishing Indian schools, “the intent of American policymakers
and educators may not have been to harm Indian people,” but the “end result
was the near-destruction of tribal culture and religion across the United
States.” Fletcher, Federal Indian Law, supra § 3.6. The federal
government itself has acknowledged its tragic role in decimating Indian tribes
and families by separating them from their children. In 2000, the Assistant
Secretary of the BIA offered a formal apology to the Indian tribes:
[The BIA] set out to destroy all things Indian. This agency
forbade the speaking of Indian languages, prohibited the
conduct of traditional religious activities, outlawed traditional
government, and made Indian people ashamed of who they
were. Worst of all, the [BIA] committed these acts against the
children entrusted to its boarding schools, brutalizing them
emotionally, psychologically, physically, and spiritually . . .
Never again will we seize your children, nor teach them to be
ashamed of who they are. Never again.
146 Cong. Rec. E1453 (Sept. 12, 2000) (quoting apology of Assistant
Secretary for Indian Affairs, Department of the Interior remarks on Sept. 8,
2000).
IV. State Abuses Leading to ICWA
Though federal Indian boarding schools eventually declined, massive
numbers of Indian children continued to be permanently removed from their
families, tribes, and cultures through the 1970s. Replacing off-reservation
boarding schools, state courts and child welfare agencies became the primary
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vehicle for severing Indian youth—the lifeblood of tribes—from their
communities. See Cohen’s, supra § 11.02. Surveys of states with large
Indian populations during the 1960s and 1970s showed that between twenty-
five to thirty-five percent of all Indian children were removed from their
families. See Indian Child Welfare Program: Hearings before the Subcommittee
on Indian Affairs of the Senate Committee on Interior and Insular Affairs, 93rd
Cong. Rec. 3 (April 8–9, 1974) (statement of William Byler, Executive
Director, Association of American Indian Affairs); H.R. Rep. No. 95-1386, at
9 (1978). “In 16 states surveyed in 1969, approximately 85% percent of all
Indian children in foster care were living in non-Indian homes,” while in
Minnesota in the early 1970s “90 percent of the adopted Indian children
[were] in non-Indian homes.” H.R. Rep. No. 95-1386, at 9 (1978); see also
Indian Child Welfare Program: Hearings before the Subcommittee on Indian
Affairs of the Senate Committee on Interior and Insular Affairs, 93rd Cong.
Rec. 5 (April 8–9, 1974) (statement of William Byler, Executive Director,
Association of American Indian Affairs); Miss. Band of Choctaw Indians v.
Holyfield, 490 U.S. 30, 32 (1989); Cohen’s, supra § 11.01. And in
jurisdictions with significant Indian populations, Indian children were
uprooted by states’ child welfare machinery at rates far exceeding those for
non-Indians. See Indian Child Welfare Act of 1977: Hearing on S. 1214 Before
the Select Comm. on Indian Affairs, 95th Cong. 539-40 (1977). For example,
in North Dakota and South Dakota, Indian children were over twenty times
as likely to be placed in foster care than non-Indians. Id. at 540. In
Minnesota, Maine, and Utah, the relative foster care rate for Indian children
was, respectively, nineteen, sixteen, and fifteen times greater than that for
non-Indians. Id. at 540. And in Washington, the combined rate of foster care
and adoptive placements for Indian children in 1973 was nearly fourteen
times greater than that of non-Indians. Id. at 599.
This nationwide crisis aroused the attention and indignation of
Congress in the mid-1970s. Over the course of four years, Congress held
hearings on, deliberated on, and debated how to remedy the problem.
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Fletcher, Federal Indian Law, supra § 8.8. Congress heard
“testimony taken from Indian Country . . . that many state and county social
service agencies and workers, with the approval and backing of many state
courts and some federal B[IA] officials, had engaged in the systematic,
automatic, and across-the-board removal of Indian children from Indian
families and into non-Indian families and communities.” Id.
State officials attempted to justify these large-scale removals by
invoking Anglo norms that favored rearing children within a nuclear family
structure. See Holyfield, 490 U.S. at 35-36 (quoting 25 U.S.C. § 1901). This
approach often reflected the officials’ profound ignorance of or hostility to
tribes’ traditional values and community-oriented approach to child raising.
In Indian communities, for example, it is common for extended family to play
key roles in raising Indian children. See Jacobs, A Generation
Removed, supra at 24-25; see also Supreme Court Br. of Indian Law
Professors in Adoptive Couple v. Baby Girl, No. 12–399, at 5. Non-Indian child
welfare agents, however, interpreted this practice of extended family care as
parental neglect and cited it as a reason for removing Indian children from
their parents and putting them up for adoption. See Supreme Court Br. of
Indian Law Professors in Adoptive Couple v. Baby Girl, No. 12–399. In total,
this and similar uninformed and abusive practices resulted in the removal, as
noted, of over a quarter of all Indian children from their homes in states with
large Indian populations. See H.R. Rep. No. 95-1386, at 9 (1978). Thus, even
though the widespread transfer of Indian children to non-Indians may not
have been specifically intended as an assimilation project, it nonetheless had
that effect.
The mass removal of Indian children had profoundly adverse effects
on the children themselves, who suffered trauma from being separated from
their families and “problems of adjusting to a social and cultural environment
much different than their own.” Id.; see also Indian Child Welfare Act of 1977:
Hearing Before the S. Select Committee on Indian Affs., 95th Cong. 114 (1977)
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(statement of Carl E. Mindell, M.D., & Alan Gurwitt, M.D., American
Academy of Child Psychiatry) (stating that “[t]here is much clinical evidence
to suggest that these Native American children placed in off-reservation non-
Indian homes are at risk in their later development” and that “they are
subject to ethnic confusion and a pervasive sense of abandonment”). Indian
parents suffered greatly, too, of course. The evil of mass removal, however,
was systemic, threatening not only children and families but the tribes
themselves. As Calvin Isaac, the Chief of the Mississippi Band of Choctaw
Indians, explained to Congress, the aggregate effect of the removal of Indian
children threatened the tribes’ existence:
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. 8
V. Congress’s Findings and Aims in Enacting ICWA
In view of the alarming abuses perpetrated through state Indian child
custody proceedings, Congress enacted ICWA in 1978. Recognizing that a
“special relationship” exists between the United States and Indian tribes,
Congress made the following findings:
8
As the Supreme Court noted in Holyfield, 490 U.S. 34 n.3 , “[t]hese sentiments
were shared by the ICWA’s principal sponsor in the House, Rep. Morris Udall, see 124
Cong. Rec. 38102 (1978) (“Indian tribes and Indian people are being drained of their
children and, as a result, their future as a tribe and a people is being placed in jeopardy”),
and its minority sponsor, Rep. Robert Lagomarsino, id. (“This bill is directed at conditions
which . . . threaten . . . the future of American Indian tribes [.]” (cleaned up)).
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Congress has plenary power over Indian affairs. 25 U.S.C.
§ 1901(1) (citing U.S. Const. art. I, § 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.
§ 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 . . . an
alarmingly high percentage of such children are placed in non-
Indian foster and adoptive homes and institutions.” Id.
§ 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. § 1901(5).
Based on its 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. § 1902.
VI. ICWA’s Provisions
ICWA’s substantive and procedural safeguards apply in any child
custody proceeding involving an “Indian child,” defined as “any unmarried
person who is under age eighteen and is either (a) a member of an Indian tribe
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or (b) is eligible for membership in an Indian tribe and is the biological child
of a member of an Indian tribe.” Id. § 1903(4). In proceedings for the foster
care placement or termination of parental rights, ICWA gives “the Indian
custodian of the child and the Indian child’s tribe . . . a right to intervene at
any point in the proceeding.” Id. § 1911(c). “In any involuntary proceeding
. . . where the court knows or has reason to know that an Indian child is
involved,” 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. § 1912(a). In voluntary
proceedings for the termination of parental rights or adoptive placement of
an Indian child, ICWA ensures that the parent can withdraw consent for any
reason prior to entry of a final decree of adoption or termination, at which
point the child must be returned to the parent. Id. § 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. § 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 §§ 1911 to 1913. Id. § 1914.
ICWA further sets forth placement preferences for foster care,
preadoptive, and adoptive proceedings involving Indian children. Section
1915 requires:
In 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.
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Id. § 1915(a). Similar requirements are set for foster care or preadoptive
placements. Id. § 1915(b). If a tribe establishes by resolution a different order
of preferences, 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. § 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. § 1915(e). An Indian
adoptee who attains the age of majority may request that the court which
entered the adoption order provide her with information “as may be
necessary to protect any rights flowing from the . . . tribal relationship.”
Id. § 1917. And a state court entering a final decree in an adoptive placement
“shall provide the Secretary with a copy of such 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.
§ 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. § 1963.
VII. 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 BIA promulgated guidelines (the “1979
Guidelines”) intended to assist state courts in implementing ICWA but that
lacked “binding legislative effect.” Guidelines for State Courts; Indian Child
Custody Proceedings, 44 Fed. Reg. 67,584, 67,584 (Nov. 26, 1979). The 1979
Guidelines left the “[p]rimary 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
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“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 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 (internal citation and quotation marks omitted).
The Final Rule provides that state courts have the responsibility of
determining whether a child is an “Indian child” subject to ICWA’s
requirements. 25 C.F.R. §§ 23.107; 81 Fed. Reg. at 38,778, 38,869-73. The
Final Rule also sets forth notice and recordkeeping requirements for states,
see 25 C.F.R. §§ 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.
VIII. The Instant Action
A. Parties
1. Plaintiffs
Plaintiffs in this action are the states of Texas, Louisiana, and
Indiana, 9 (collectively, “State Plaintiffs”), and seven individual Plaintiffs—
9
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-
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Chad and Jennifer Brackeen (“the Brackeens”), Nick and Heather Libretti
(“the Librettis”), Altagracia Socorro Hernandez (“Hernandez”), and Jason
and 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. 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
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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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 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 of that tribe 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 ICWA and the Final Rule, the Pueblo Tribe indicated that
it was willing to settle. The Librettis agreed to a settlement with the Pueblo
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
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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.
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 § 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 Deb Haaland, in her official
capacity; the BIA and its Director Darryl La Counte, in his official capacity;
and the Department of Health and Human Services and its Secretary Xavier
Becerra, 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 the Navajo
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Nation’s motion to intervene as a defendant 10 (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 violate 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 violate the nondelegation doctrine and the 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,
declaring 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. 11 Defendants
appealed. A panel of this court affirmed in part the district court’s rulings on
standing but reversed and rendered judgment on the merits, with one judge
concurring in part and dissenting in part. The court then granted en banc
review. In total, fourteen amicus briefs have been filed in this case.
10
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.
11
The district court denied Plaintiffs’ substantive due process claim, which
Plaintiffs do not appeal.
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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 have standing to
bring an equal protection claim; State Plaintiffs have standing to challenge
provisions of ICWA and the Final Rule on the ground that they violate the
Tenth Amendment and the nondelegation doctrine; and all Plaintiffs have
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
in fact” that is (2) “fairly traceable to the challenged action of the
defendant,” and that is (3) likely to be “redressed by a favorable decision.”
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61 (1992) (internal quotation
marks, citations, and alterations omitted). A plaintiff seeking equitable relief
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
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hypothetical.” See Lujan, 504 U.S. at 560 (internal quotation marks and
citations omitted).
“[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 v. Laroe Estates, Inc., 137 S. Ct. 1645,
1650 (2017) (quoting Davis v. Fed. Election Comm’n, 554 U.S. 724, 734
(2008)). Nevertheless, “the presence of one party with standing is sufficient
to satisfy Article III’s case-or-controversy requirement,” and we therefore
need conclude only that one plaintiff in the present case satisfies standing
with respect to each claim. Rumsfeld v. Forum for Acad. & Institutional Rights,
Inc., 547 U.S. 47, 52 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 25 U.S.C. §§ 1913(d), 1914, 1915(a), and 1915(b),
and Final Rule § 23.129 to 23.132 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 continue to suffer injuries when their efforts to adopt
Indian children are burdened by ICWA and the Final Rule; that their injuries
are fairly traceable to the actions of Defendants because ICWA and the Final
Rule mandate state compliance; and that these injuries are 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. We will consider
Plaintiffs’ standing to assert challenges to each of the provisions at issue in
turn.
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1. The Challenge to §§ 1913 and 1914
We first conclude that none of the Plaintiffs have standing to assert an
equal protection challenge to §§ 1913 and 1914. The district court concluded
that § 1913(d), which allows a parent to petition the court to vacate a final
decree of adoption on the ground that consent was obtained through fraud or
duress, left the Brackeens’ adoption of A.L.M. vulnerable to collateral attack
for two years following the final judgment. Defendants argue that § 1914, 12
and not § 1913(d), applies to the Brackeens’ state court proceedings and that,
in any event, any injury premised on potential future collateral attack under
either provision is too speculative.
We need not decide which provision applies here, as none of the
Individual Plaintiffs have suffered an injury under either provision. 13
Plaintiffs do not assert that the biological parents of any Indian child, any
tribe, or any other party are currently seeking or intend in the future to
invalidate the adoption of any of their adopted children under either
provision. Plaintiffs’ proffered injury under § 1913(d) or § 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, 414 n. 5 (2013)
(“[T]hreatened injury must be certainly impending to constitute injury in
fact, and . . . allegations of possible future injury are not sufficient. . . . .
Plaintiffs cannot rely on speculation about the unfettered choices made by
12
“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.
13
State Plaintiffs argue that they have standing to bring an equal protection
challenge in parens patriae on behalf of citizens other than the Individual Plaintiffs. 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.”).
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independent actors not before the court.” (internal quotation marks,
citations, and alterations omitted)).
Plaintiffs and Judge Duncan cite Time Warner Cable, Inc. v.
Hudson for the proposition that “unequal positioning” before the law is
sufficient to constitute an injury. 667 F.3d 630 (5th Cir. 2012) (internal
quotation marks and citation omitted); see Duncan, Circuit Judge,
Op. at 19-20 & n.30. But that case is inapposite.
In Time Warner, this court considered whether standing was satisfied
when incumbent Texas cable operators that had franchise agreements to
provide services to municipalities across the state brought an equal
protection challenge to a Texas law that excluded them from a benefit
afforded to other similarly situated cable operators. 667 F.3d at 633-34. The
Texas legislature had concluded that the cost of negotiating separate
municipal franchise agreements posed a barrier for new companies seeking
to enter the cable services market. Id. The Texas legislature responded by
passing a law that permitted new entrants to the market and
“overbuilders”—companies that build their own cable systems in areas
already served by a cable operator—to obtain statewide franchises
immediately. Id. Incumbent cable providers, however, were ineligible for
statewide franchises until after the expiration of their existing municipal
licenses. Id. at 634.
This court concluded that the incumbent operators had alleged a
sufficiently actual or imminent injury because the statute was presently
preventing incumbent cable providers from competing for the statewide
franchises on equal footing with other market participants. Id. at 636. The
incumbent cable providers would have been denied statewide licenses under
the law if they had applied for them prior to the expiration of their existing
municipal licenses, and submitting an application for a state-issued franchise
license was wholly within the incumbent providers’ power. In this way, the
incumbent providers’ claim satisfied Article III requirements, as the law
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erected an actual barrier to companies already providing cable services that
otherwise would be immediately free to seek a statewide franchise. Id.; see
also Northeastern Florida Chapter of Assoc. Gen. Contractors of America v. City
of Jacksonville, 508 U.S. 656, 666 (1993) (in challenging a governmental
program setting aside a certain percentage of contracts for minority-owned
businesses, plaintiff must “demonstrate that it is able and ready to bid on
contracts and that a discriminatory policy prevents it from doing so on an
equal basis” (emphasis added)).
By contrast, Plaintiffs’ challenges here to §§ 1913(d) and 1914 rest on
the purely theoretical actions of potential third parties who may (or may not)
invoke these provisions. Cf. Clapper, 568 U.S. at 414 n. 5. This case is not
like Time Warner, but rather Barber v. Bryant, in which a group of LGBT
individuals and advocacy organizations brought an equal protection challenge
to a Mississippi statute that permitted parties accused of LGBT
discrimination to assert their sincerely held religious opposition as a defense.
860 F.3d 345, 351 (5th Cir. 2017). This court found that, like in the present
case, the Barber plaintiffs lacked standing to bring their equal protection
challenge because any hypothetical future injury they would suffer under the
statute was entirely dependent on unknown third-parties choosing to
undertake a course of conduct purportedly authorized by the statute—there,
discrimination against the plaintiffs. Id. at 357. Judge Duncan selectively
quotes from Barber to argue that the court based its decision only on the fact
that the plaintiffs had not alleged that they intended to engage in the activities
in relation to which the Mississippi statute provided a discrimination
defense. Duncan, Circuit Judge, Op. at 19 n.30. But the Barber court
plainly stated that, “[a]t a minimum, the challengers would have to allege
plans to engage in [the] conduct in Mississippi for which they would be subject
to a denial of service and would be stripped of a preexisting remedy for that
denial.” Barber, 860 F.3d at 358 (emphasis added). In the absence of
allegations that a third party would take advantage of the statute to act in a
way that would harm the plaintiffs, the plaintiffs failed to assert the type of
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imminent injury necessary to support standing on their equal protection
claim. 14
In much the same way, the Plaintiffs here allege only that a third party
could come along and challenge their adoptions under the statute, but they
make no allegations that any party has in fact done so or intends to do so in
the future. In other words, these provisions have yet to place any Plaintiff on
unequal footing. No harm under the statute has materialized and no certain
injury is imminent, as is required for standing to challenge the provision.
Clapper, 568 U.S. at 409. And, to the extent Plaintiffs argue that an injury
arises from their attempts to avoid collateral attack under § 1914 by
complying with §§ 1911 to 1913, costs incurred to avoid injury are
“insufficient to create standing” where the injury is not certainly impending.
See id. at 416-17. Accordingly, Plaintiffs lack standing to challenge §§ 1913(d)
and 1914.
2. The Remaining Equal Protection Claims
Turning to the Plaintiffs’ remaining claims, we conclude that the
Brackeens have standing to assert an equal protection claim as to 25 U.S.C.
§ 1915(a) and Final Rule §§ 23.129, 23.130, and 23.132, and that the Cliffords
have standing to press this claim as to § 1915(b) and Final Rule § 23.131.
Because at least one Plaintiff has standing to assert each of these remaining
claims, the “case-or-controversy requirement” is satisfied, and we do not
analyze whether any other Individual Plaintiff has standing to raise it. See
Rumsfeld, 547 U.S. at 52 n.2.
First, the Brackeens have standing to challenge § 1915(a), ICWA’s
adoption placement preferences provision. As Plaintiffs argue, § 1915’s
14
The Barber plaintiffs also raised an Establishment Clause challenge to the statute,
a separate issue not presented here and about which we express no opinion. See Barber,
860 F.3d at 356 (“The Equal Protection and Establishment Clause cases call for different
injury-in-fact analyses because the injuries protected against under the Clauses are
different.” (internal quotations and citations omitted)).
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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. “An
increased regulatory burden typically satisfies the injury in fact
requirement.” Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258,
266 (5th Cir. 2015). However, we must also consider whether causation and
redressability are met here. See Lujan, 504 U.S. at 560-61. 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[s] 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 proceedings to adopt Y.R.J., the Texas trial court has indicated that
it will refrain from ruling on the Brackeens’ federal constitutional claims
pending a ruling from this court. 15
15
We also conclude that the Brackeens have maintained standing throughout the
course of the litigation. The Brackeen’s initial complaint, filed in October 2017, alleged
that they intended to adopt A.L.M. In January 2018, the Brackeens completed their
adoption of A.L.M. in state court. In March 2018, they filed a second amended complaint
wherein they alleged that they “intend[ed] to provide foster care for, and possibly adopt,
additional children in need.” Several months later, in September 2018, the Brackeens
undertook efforts to adopt Y.R.J, and they supplemented the district court record in
October 2018 with exhibits evidencing these efforts. The injury alleged in the Brackeens’
second amended complaint was sufficiently imminent to support standing, in part, because
the regulatory burdens they claimed ICWA imposed on their first adoption constitute
“evidence bearing on whether” they faced “a real and immediate threat of repeated
injury.” City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983) (internal quotation marks
omitted). That the Brackeens’ asserted injury was not too conjectural to support standing
is confirmed by their later attempted adoption of Y.R.J. See Hargrave v. Vermont, 340 F.3d
27, 33034 (2d Cir. 2003) (plaintiff’s claims that she would be subject to a state law even
though a state court had refused to enforce the law were not speculative in light of state
Supreme Court’s ruling following the filing of plaintiff’s federal complaint that the law
could go into effect). Further, in this case, promoting judicial economy counsels in favor
of construing the Brackeens’ supplemental filing as correcting any defect in the pleading,
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Our esteemed colleague Judge Costa disagrees that the likelihood
that the Texas trial court will follow our interpretation of ICWA is sufficient
to satisfy Article III’s redressability requirements and asserts that we are
rendering an advisory opinion on this issue. Costa, Circuit Judge,
Op. at 2-4. But “Article III does not demand a demonstration that victory
in court will without doubt cure the identified injury.” Teton Historic
Aviation Found. v. DOD, 785 F.3d 719, 727 (D.C. Cir. 2015). The plaintiff
must show only that its injury is “likely to be redressed by a favorable
decision.” Vill. of Arlington Heights, v. Metro. Hous. Dev. Corp., 429 U.S. 252,
262 (1977). By stating that it will defer to our ruling, the Texas court has
removed any need “to engage in undue speculation as a predicate for finding
that the plaintiff has the requisite personal stake in the controversy.” Id. at
261-62. Instead, the Texas court’s statement has made it all but certain that
a decision in the Brackeens’ favor will redress their purported injuries. See
Evans v. Michigan, 568 U.S. 313, 325-26 (2013) (“We presume here, as in
other contexts, that courts exercise their duties in good faith.”). Article III’s
redressability requirements are met with respect to the Brackeens’ claim,
meaning at least one Plaintiff has standing to bring an equal protection claim
challenging § 1915(a) and Final Rule §§ 23.129 to 23.132. See Lujan, 504 U.S.
at 560-61; Rumsfeld, 547 U.S. at 52 n.2.
permitting both the court and the parties to “circumvent ‘the needless formality and
expense of instituting a new action when events occurring after the original filing indicate[]
a right to relief.’” Northstar Fin. Advisors Inc. v. Schwab Investments, 779 F.3d 1036, 1044
(9th Cir. 2015) (quoting Wright, Miller, & Kane, Federal Practice and
Procedure: Civil 3d § 1505)). Therefore, even if the Brackeens had lacked standing
at some point during the district court litigation, their supplementation of the record with
information related to their attempted adoption of Y.R.J. cured any defect. See Mathews v.
Diaz, 426 U.S. 67, 75 (1976).
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Similarly, the Cliffords have standing to challenge § 1915(b), ICWA’s
foster care and preadoptive placement preferences, and Final Rule § 23.131. 16
The Cliffords have clearly alleged an injury due to this provision; they
fostered Child P., but, pursuant to § 1915(b)’s placement preferences, Child.
P. was removed from their custody and placed with her maternal
grandmother, a member of the White Earth Band. Like the Brackeens’
alleged injury, the Cliffords’ injury is fairly traceable to some of the Federal
Defendants given their responsibility for the burdens imposed by § 1915(b).
Finally, a declaration by the district court that § 1915(b) violates equal
protection would redress the Cliffords’ injury. Since Child P. has not yet
been adopted, the Cliffords may still petition for custody. Though no state
court—whether within this circuit or in the Cliffords’ home state of
Minnesota—is bound by a decree of this court, we conclude that it is
“substantially likely that [a state court] would abide by an authoritative
interpretation” of ICWA by this court, “even though [it] would not be
directly bound by such a determination.” Franklin v. Massachusetts, 505 U.S.
788, 803 (1992). Thus, a favorable ruling “would at least make it easier for”
the Cliffords to regain custody of Child P. Duarte ex rel. Duarte v. City of
Lewisville, 759 F.3d 514, 521 (5th Cir. 2014). In sum, Plaintiffs have standing
to challenge § 1915(a) and (b) and Final Rule §§ 23.129 to 23.132.
16
The Cliffords also challenged § 1915(a). We need not address this challenge,
however, as we have already concluded that the Brackeens—and thus all Plaintiffs—have
standing to challenge this provision. See Rumsfeld, 547 U.S. at 52 n.2 (“[T]he presence of
one party with standing is sufficient to satisfy Article III’s case-or-controversy
requirement.”). In addition, the parties contest whether the Cliffords’ claim is subject to
issue preclusion. Because issue preclusion is an affirmative defense, it does not implicate
our standing analysis. See, e.g., In re Senior Cottages of Am., LLC, 482 F.3d 997, 1003 (8th
Cir. 2007) (“Whether a party has standing to bring claims and whether a party’s claims are
barred by an equitable defense are two separate questions, to be addressed on their own
terms.” (quoting Official Comm. of Unsecured Creditors v. R.F. Lafferty & Co., 267 F.3d 340,
346 (3d Cir. 2001))); Wright & Miller, 13A Fed. Prac. & Proc. Juris. § 3531
(3d ed.) (“Affirmative defenses against the claims of others are not likely to raise ‘standing’
concerns.”).
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B. Standing to Bring Administrative Procedure Act Claim
Plaintiffs also bring APA challenges to the Final Rule promulgated by
the BIA. They assert that the Final Rule violates the APA because ICWA
does not authorize the Secretary of the Interior to promulgate binding rules
and regulations and also contend that the Final Rule’s construction of § 1915
is invalid. The district court ruled that State Plaintiffs had standing to bring
APA claims, determining that the Final Rule injured State Plaintiffs by
intruding upon their interests as quasi-sovereigns to control the domestic
affairs within their states. 17 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 that 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 (“DHS”) implementation and expansion of the
Deferred Action for Childhood Arrivals program 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
challenge the DHS’s actions, and DHS’s actions affected states’ sovereign
interest in creating and enforcing a legal code. See id. at 152-53.
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
17
The 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 Social Security Act.
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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 Claims
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 would likely redress State Plaintiffs’ asserted injuries by lifting the
mandatory burdens ICWA and the Final Rule impose on states. See Lujan,
504 U.S. at 560-61.
D. Standing to Bring Nondelegation Claim
Plaintiffs also contend that § 1915(c), which allows a tribe to establish
a different order of placement preferences than the defaults contained in
§ 1915(a) and (b), is an impermissible delegation of legislative power that
binds State Plaintiffs. Defendants argue that State Plaintiffs cannot
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demonstrate an injury, given the lack of evidence that a tribe’s reordering of
§ 1915(a) and (b)’s placement preferences has affected any children in Texas,
Indiana, or Louisiana or that such impact is “real and immediate.” 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 § 1915’s default
placement preferences is concrete and particularized and not speculative.
See Lujan, 504 U.S. at 560. And given that the Alabama-Coushatta Tribe has
already filed their reordered placement preferences with Texas’s
Department of Family and Protective Services, Texas faces a “substantial
risk” that its claimed injury will occur. Susan B. Anthony List v. Driehaus,
573 U.S. 149, 158 (2014) (“An allegation of future injury may suffice if the
threatened injury is ‘certainly impending,’ or there is a ‘substantial risk that
the harm will occur.’” (internal quotation marks omitted) (quoting Clapper,
568 U.S. at 409, 414 n.5)). 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 § 1915(c) optional rather than
mandatory. See id.
II. Facial Constitutional Challenges to ICWA
Having determined 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” and
“[d]ue respect for the decisions of a coordinate branch of Government
demands that we invalidate a congressional enactment only upon a plain
showing that Congress has exceeded its constitutional bounds.” United
States v. Morrison, 529 U.S. 598, 607 (2000) (citing United States v. Harris,
106 U.S. 629, 635 (1883)).
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A. Preemption and Anticommandeering
The district court ruled, and Plaintiffs argue on appeal, that 25 U.S.C.
§§ 1901-23 18 and 1951-52 19 exceed Congress’s constitutional powers by
violating the anticommandeering doctrine and accordingly do not preempt
any conflicting state law. We review de novo the constitutionality of a federal
statute. See United States v. Perez-Macias, 335 F.3d 421, 425 (5th Cir. 2003).
We start our discussion by explaining the principles underpinning two
intertwined areas of constitutional law: preemption and anticommandeering.
First, preemption. This concept is derived from the Supremacy Clause of
the Constitution, which provides that “[t]his Constitution, and the Laws of
the United States which shall be made in Pursuance thereof[] . . . 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; see also Crosby v. Nat’l
Foreign Trade Council, 530 U.S. 363, 372 (2000) (“A fundamental principle
of the Constitution is that Congress has the power to preempt state law.”).
Therefore, when “Congress enacts a law that imposes restrictions or confers
rights on private actors” and a “state law confers rights or imposes
restrictions that conflict with the federal law,” under the Supremacy Clause,
“the federal law takes precedence and the state law is preempted.” Murphy
v. NCAA, 138 S. Ct. 1461, 1480 (2018). “Even without an express provision
for preemption . . . state law is naturally preempted to the extent of any
conflict with a federal statute.” Crosby, 530 U.S. at 372.
18
Title 25 U.S.C. §§ 1901-03 sets 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.
19
Section 1951 sets forth information-sharing requirements for state courts.
Section 1952 authorizes the Secretary of the Interior to promulgate rules and regulations
that are necessary for ICWA’s implementation.
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The anticommandeering doctrine, by contrast, is rooted in the Tenth
Amendment, which states 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, and “conspicuously absent from the list of powers given to
Congress is the power to issue direct orders to the governments of the
States.” Murphy, 138 S. Ct. at 1476. “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.” Id. at 1477 (quoting New York v.
U.S., 505 U.S. 144, 178 (1992)).
In the present context, these two doctrines—preemption and
anticommandeering—represent opposite sides of the same coin. See New
York, 505 U.S. at 156 (explaining that in cases “involving the division of
authority between federal and state governments,” the dual inquiries as to
whether a congressional enactment is authorized under Article I or violates
the Tenth Amendment “are mirror images of each other”). This is because
for a federal law to preempt conflicting state law, two conditions must be
satisfied. First, the federal law “must represent the exercise of a power
conferred on Congress by the Constitution.” Murphy, 138 S. Ct. at 1479.
Second, since the Constitution “confers upon Congress the power to
regulate individuals, not States,” New York, 505 U.S. at 166, the provision at
issue must be a regulation of private actors. Murphy, 138 S. Ct. at 1479. As
discussed in more detail infra, a law does not fail this second inquiry simply
because it also regulates states that participate in an activity in which private
parties engage. Id. at 1478. Rather, the key question is whether the law
establishes rights enforceable by or against private parties. See id. at 1480
(citing Morales v. Trans World Airlines, Inc., 504 U.S. 374, 391 (1992)). When
a federal law fails this second step by directly commanding the executive or
legislative branch of a state government to act or refrain from acting without
commanding private parties to do the same, it violates the
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anticommandeering doctrine. 20 See, e.g., New York, 505 U.S. at 188 (stating
that “[t]he Federal Government may not compel the States to enact or
administer a federal regulatory program”); Printz v. United States, 521 U.S.
898, 932 (1997). On the other hand, if Congress enacts a statute pursuant to
an enumerated power and the statute does not violate the
anticommandeering doctrine or another constitutional provision, then the
federal law necessarily has preemptive force. 21
20
Though Congress is prohibited from commandeering states’ legislatures and
executive officers, 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 condition the receipt of federal funds under
its spending power. See id. at 167. Some of the Defendants 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 even if
its provisions are construed as mandatory, we need not reach the question of whether it is
justified as an optional incentive program in which states voluntarily participate.
21
Of course, like any other unconstitutional law, a federal statute that violates the
anticommandeering doctrine exceeds Congress’s legislative authority. See New York, 505
U.S. at 155-56. The Court has stated, however, that a statute is beyond Congress’s Article
I power for purposes of the premption analysis either when the statute does not “represent
the exercise of a power conferred on Congress by the Constitution,”—that is, when it
addresses a subject matter that is not included in the powers that the Constitution grants
the federal government—or when the statute breaches the anticommandeering doctrine,
regardless of the subject matter addressed by the legislation. See Murphy, 138 S. Ct. at 1479.
These are two distinct inquires. Otherwise, Congress could never violate the
anticommandeering doctrine when regulating in a field over which it holds plenary
authority. But the Supreme Court has held that this is not how the Constitution works. See
Reno v. Condon, 528 U.S. 141, 142 (2000) (stating that, “in New York [v. United States, 505
U.S. 144 (1992)] and Printz [v. United States, 521 U.S. 898 (1997)], the Court held that
federal statutes were invalid, not because Congress lacked legislative authority over the
subject matter, but because those statutes violated” the anticommandeering doctrine); cf.,
e.g., Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996) (explaining that “[e]ven when
the Constitution vests in Congress complete law-making authority over a particular area,”
that authority is subject to other constitutional constraints); Williams v. Rhodes, 393 U.S.
23, 29 (1968) (“[T]he Constitution is filled with provisions that grant Congress . . . specific
power[s] to legislate in certain areas; these granted powers are always subject to the
limitation that they may not be exercised in a way that violates other specific provisions of
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1. Article I Authority
We first address whether ICWA represents a valid exercise of
Congress’s Article I power. “Proper respect for a co-ordinate branch of the
government requires the courts of the United States to give effect to the
presumption that congress will pass no act not within its constitutional
power. This presumption should prevail unless the lack of constitutional
authority to pass an act in question is clearly demonstrated.” Harris, 106
U.S. at 635.
The district court concluded that Congress overstepped its powers in
enacting ICWA by breaching the anticommandeering doctrine, but it never
addressed whether the Act fell within Congress’s Article I power separate
and apart from any supposed anticommandeering violation. On appeal,
Plaintiffs squarely argue that Congress exceeded its authority—without
respect to any anticommandeering violation—in enacting ICWA. 22 For the
reasons that follow, we disagree.
The historical development of the federal Indian affairs power is
essential to understanding its sources and scope. See Heller, 554 U.S. at 581.
Earlier, we reviewed the Framers’ dissatisfaction with the untenable division
of authority over Indian affairs between the states and the national
Government under the Articles of Confederation. We explained how this led
the Constitution.”). We therefore address separately whether ICWA is within the range
of subject matter on which Article I authorizes Congress to legislate and whether the law
violates the anticommandeering inquiry.
22
“[A] court of appeals sits as a court of review, not of first view.” Montano v.
Texas, 867 F.3d 540, 546 (5th Cir. 2017). Notwithstanding this general rule, “there are
circumstances in which a federal appellate court is justified in resolving an issue not passed
on below, as where the proper resolution is beyond any doubt, or where injustice might
otherwise result.” Singleton v. Wulff, 428 U.S. 106, 121 (1976) (cleaned up). Given the
extensive litigation and the substantial and exceptional briefing from both the parties and
amici, we conclude that it would work an injustice at this juncture not to resolve the
question of Congress’s authority to enact ICWA. See id. Moreover, we ultimately
conclude that the proper resolution of the question is beyond any doubt.
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the Framers to endow the national government with exclusive, plenary power
in regulating Indian affairs under the new Constitution. See supra
Background Part I. This intent, we observed, is revealed through a holistic
reading of the Constitution; the combination of the charter’s Treaty,
Property, Supremacy, Indian Commerce, and Necessary and Proper Clauses,
among other provisions, operate to bestow upon the federal government
supreme power to deal with the Indian tribes. See Ablavsky, Beyond the Indian
Commerce Clause, supra at 1043-44. Understandably, then, the Supreme
Court has consistently characterized the federal government’s Indian affairs
power in the broadest possible terms. See, e.g., United States v. Lara, 541 U.S.
193, 200 (2000) (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
N.M., 458 U.S. 832, 837 (1982) (discussing Congress’s “broad power . . . to
regulate tribal affairs under the Indian Commerce Clause”); White Mountain
Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980) (same); Santa Clara Pueblo
v. Martinez, 436 U.S. 49, 72 (1978) (“As we have repeatedly emphasized,
Congress’ authority over Indian matters is extraordinarily broad . . . .”);
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 the Constitution itself”).
Conversely, the Constitution totally displaced the states from having
any role in these affairs and “divested [them] of virtually all authority over
Indian commerce and Indian tribes.” Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 62 (1996); see also Ablavsky, Beyond the Indian Commerce Clause,
supra at 1043-44 (noting that the federal government’s Indian affairs powers
collectively amounted to what present-day doctrine terms field preemption).
Responding to the problem under the Articles of Confederation of states
openly flouting the federal strategy with respect to the Indians, the Framers
specifically intended that the Constitution would prevent the states from
exercising their sovereignty in a way that interfered with federal Indian
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policy. See William C. Canby, § 2.1 American Indian Law in a
Nutshell, (7th Ed.) [hereinafter Canby, American Indian Law].
As in its dealings with foreign nations, it was important that the United States
speak with one voice in making peace with or deploying military force against
the Indians without being undercut by the various contrary policies individual
states might adopt if left to their own devices.
The writings and actions of both the Washington Administration and
the First Congress amply demonstrate this early conception of the national
Government as having primacy over Indian affairs. President George
Washington himself explained in a letter to the Governor of Pennsylvania
that the federal Government, under the new Constitution, “possess[ed] the
only authority of regulating an intercourse with [the Indians], and redressing
their grievances.” Letter from George Washington to Thomas Mifflin (Sept.
4, 1790), in 6 The Papers of George Washington:
Presidential Series 188, 189 (Mark A. Mastromarino ed., 1996). And
the First Congress reinforced this exceptionally broad understanding of
federal authority through the adoption of the Indian Intercourse Act of 1790,
Act of July 22, 1790, §§ 1-3, 1 Stat. 137-38. See, e.g., Marsh v. Chambers, 463
U.S. 783, 790 (1983) (“An act ‘passed by the first Congress assembled under
the Constitution, many of whose members had taken part in framing that
instrument, is contemporaneous and weighty evidence of its true meaning.’”
(alteration omitted) (quoting Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297
(1888)). The legislation provided exclusively for federal management of
essential aspects of Indian affairs: the regulation of trade with Indians,
prohibition on purchases of Indian land except by federal agents, and the
federalization of crimes committed by non-Indians against Indians. See
Cohen’s, supra, § 1.03[2]. And early Congresses repeatedly reaffirmed
this expansive understanding of federal power by reenacting the statute in
various forms throughout the late eighteenth and early nineteenth century.
See Act of June 30, 1834, ch. 161, 4 Stat. 729; Act of Mar. 30, 1802, ch. 13, 2
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Stat. 139; Act of Mar. 3, 1799, ch. 46, 1 Stat. 743; Act of May 19, 1796, ch. 30,
1 Stat. 469; Act of Mar. 1, 1793, ch. 19, 1 Stat. 329.
These acts further evince that, from its earliest days, Congress viewed
itself as having an obligation to sustain the Indians and tribes as a separate
people belonging to separate nations and to protect them from harm by the
states and their inhabitants. See Lummi Indian Tribe v. Whatcom Cnty., 5 F.3d
1355, 1358 (9th Cir. 1993) (internal citations omitted) (“Courts considering
the [Indian Intercourse] Act’s purpose have agreed that Congress intended
to protect Indians from the ‘greed of other races,’ and from ‘being victimized
by artful scoundrels inclined to make a sharp bargain.’” (first quoting United
States v. Candelaria, 271 U.S. 432, 442 (1926); then quoting Tuscarora Nation
of Indians v. Power Auth., 257 F.2d 885, 888 (2d Cir. 1958), vacated as moot sub
nom., McMorran v. Tuscarora Nation of Indians, 362 U.S. 608 (1960)));
Stephen L. Pevar, The Rights of Indians and Tribes 96 (4th
ed. 2012). This duty has deep historical roots. As related above, the federal
Government engaged with the Indians in the decades following ratification as
part of its westward expansion project, utilizing not only diplomatic tools like
treaties, but also military might. See supra Background Part I. By virtue of its
manifold and dominant powers over Indian affairs, the national Government
gradually subjugated the western lands, eventually enveloping the Indian
tribes and extinguishing many aspects of their external sovereignty, including
their ability to deal with other countries as independent nations.
As a consequence of the Indians’ partial surrender of sovereign power,
the federal Government naturally took on an attendant duty to protect and
provide for the well-being of the “domestic dependent [Indian] nations.”
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 13 (1831) (stating that Indian
tribes “look to our government for protection; rely upon its kindness and its
power; appeal to it for relief to their wants”); see also Mancari, 417 U.S. at
552 (“In the exercise of the war and treaty powers, the United States
overcame the Indians and took possession of their lands, sometimes by force,
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leaving them . . . [a] dependent people, needing protection . . . .” (quoting
Bd. of Cnty. Comm’rs v. Seber, 318 U.S. 705, 715 (1943)); supra Background
Part II. That is, owing to the federal Government’s expansive Indian affairs
powers and the way in which it has wielded those powers to divest Indians of
their ancestral lands, the Government bears a responsibility to protect the
tribes from external threats. Similarly, the Government has an overarching
duty to provide for the welfare of tribes. See Canby, American Indian
Law, supra § 3.1; Cohen’s, supra, § 5.04. 23 Numerous pieces of Indian
federal legislation have been passed pursuant to this federal duty. 24 Indeed,
we know of no court that has found Congress’s power wanting when
Congress has invoked its duty to the tribes and enacted legislation clearly
aimed at keeping its enduring covenant. See, e.g., Mancari, 417 U.S. 551-52
(“Of necessity the United States assumed the duty of furnishing . . .
protection [to the Indians], and with it the authority to do all that was
required to perform that obligation . . . .” (quoting Seber, 318 U.S. at 715));
23
As discussed, this obligation has been characterized as akin to a guardian-ward
relationship, or, in more contemporary parlance, a trust relationship. See supra Background
Part II; compare Cherokee, 30 U.S. at 13 (referring to the tribes as “domestic dependent
nations” and explaining “[t]heir relation to the United States resembles that of a ward to
his guardian”), with Menominee Indian Tribe of Wis. v. United States, 136 S. Ct. 750, 757
(2016) (noting the “general trust relationship between the United States and the Indian
tribes”) (internal quotation marks omitted).
24
See, e.g., Indian Health Care Improvement Act, 25 U.S.C. § 1602 (explaining
that the legislation was passed “in fulfillment of [the Government’s] special trust
responsibilities and legal obligations to Indians”); Indian Self-Determination and
Education Assistance Act, 25 U.S.C. § 450a(a) (“The Congress hereby recognizes the
obligation of the United States to respond to the strong expression of the Indian people for
self-determination by assuring maximum Indian participation in the direction of
educational as well as other Federal services to Indian communities so as to render such
services more responsive to the needs and desires of those communities.”); Elementary
and Secondary Education Act, 20 U.S.C. § 7401 (“It is the policy of the United States to
fulfill the Federal Government’s unique and continuing trust relationship with and
responsibility to the Indian people for the education of Indian children.”); American Indian
Agricultural Resource Management Act, 25 U.S.C. § 1307 (“[T]he United States has a
trust responsibility to protect, conserve, utilize, and manage Indian agricultural lands
consistent with its fiduciary obligation and its unique relationship with Indian tribes.”).
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Kagama, 118 U.S. at 383-84 (“Indian tribes are the wards of the nation. They
are communities dependent on the United States . . . From their very weakness
and helplessness . . . there arises the duty of protection, and with it the power.
This has always been recognized by the executive, and by congress, and by
this court, whenever the question has arisen.”); Perrin v. United States, 232
U.S. 478, 486 (1914) (“It must also be conceded that, in determining what is
reasonably essential to the protection of the Indians, Congress is invested
with a wide discretion, and its action, unless purely arbitrary, must be
accepted and given full effect by the courts.”); Worcester, 31 U.S. at 556-57
(explaining that the Constitution vests Congress with broad Indian affairs
powers and that Congress has “[f]rom the commencement of our
government . . . passed acts to regulate trade and intercourse with the
Indians; which treat the[ tribes] as nations, respect their rights, and manifest
a firm purpose to afford that protection which treaties stipulate”); Cherokee
Nation, 30 U.S. at 13. 25
Chief among the external threats to the Indian tribes were the states
and their inhabitants. See Kagama, 118 U.S. at 384 (The Indian tribes “owe
no allegiance to the states, and receive from them no protection. Because of
the local ill feeling, the people of the states where they are found are often
their deadliest enemies.”); Canby, American Indian Law, supra
§ 3.1. And the Supreme Court has long recognized and repeatedly reaffirmed
the federal Government’s ongoing duty to protect tribes from the states and
vice versa—as well as its power to do so. See Kagama, 118 U.S. at 384;
Cherokee Nation, 30 U.S. at 13; Worcester, 31 U.S. at 556-57; Mancari, 417 U.S.
551-52.
25
Though some of the cited cases are permeated with paternalistic overtones and
objectionable descriptions of Indians, it is no less true today than it was centuries ago that
the national Government owes an obligation to provide for the welfare of the Indians—and
that it is armed with the power to do so. See, e.g., Mancari, 417 U.S. 551-52.
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In light of the foregoing, ICWA represents the convergence of key
aspects of federal Indian law. First, as Congress expressly noted in its
congressional findings, ICWA was enacted pursuant to the “plenary power
over Indian affairs” that the Constitution places in the federal government.
26 25 U.S.C. § 1901(1). This authority is exclusive to the federal government,
and the Framers specifically intended to prevent the states from interfering
with its exercise, either by taking their own disparate stances in dealing with
tribal governments or by otherwise exercising their sovereignty in a manner
contrary to federal Indian policy. See Seminole Tribe of Fla., 517 U.S. at 62;
Ablavsky, Beyond the Indian Commerce Clause, supra at 1043-44. Just as the
Constitution was meant to preclude the states from undertaking their own
wars or making their own treaties with the Indian tribes, see James Madison,
Vices of the Political System of the United States, in 9 The Papers of
James Madison 345, 348 (Robert A. Rutland et al. eds., 1975), so too does
it empower the federal government to ensure states do not spoil relations
with the Indian tribes through the unwarranted taking and placement of
Indian children in non-Indian foster and adoptive homes. 27 As with the
26
We find it notable that, in enacting ICWA, Congress explicitly contemplated
whether it was constitutionally authorized to do so. See H.R. Rep. No. 95-1386, at 13-15
(discussing the constitutionality of ICWA, including that ICWA falls within Congress’s
plenary power over Indian affairs); Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (“The
customary deference accorded the judgments of Congress is certainly appropriate when, as
here, Congress specifically considered the question of the Act’s constitutionality.”).
Though this judgment is not dispositive, we grant it due deference. See Perrin, 232 U.S. at
486 (“[I]n determining what is reasonably essential to the protection of the Indians,
Congress is invested with a wide discretion[.]”).
27
Judge Duncan contends that the principle that the federal government may
prevent states from interfering with federal policy toward the tribes does not apply here
because ICWA does not totally exclude states from Indian child custody proceedings. He
contends that ICWA instead “does the opposite of ‘excluding’” by “leav[ing] many
adoptions under state jurisdiction . . . while imposing ‘Federal standards’ on those state
proceedings.” Duncan, Circuit Judge, Op. at 48 (citing §§ 1911(b) & 1902). But
Judge Duncan’s suggestion that ICWA “co-opts” the machinery of state courts in
service to the federal government is highly misleading. Duncan, Circuit Judge,
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federal government’s dealings with any other nation, the Constitution
dictates that the government address relations with the Indian tribes on
behalf of the nation as a whole without state interference, be it with respect
to war making, peace treaties, or child custody practices.
Second, ICWA falls within the federal government’s continuing trust
relationship with the tribes, which includes a specific obligation to protect the
tribes from the states. We earlier recounted the arbitrary and abusive child
removal and assimilation practices that led Congress to conclude that it was
necessary and proper for it to enact ICWA. See supra Background Part IV-V;
see also Antoine, 420 U.S. at 203. Briefly stated, throughout the late
nineteenth and well into the twentieth century, the federal government was
intimately involved in programs ostensibly to “educate” Indian children at
off-reservation schools that sought to imbue them with white Christian
values and permanently shed them of and sever them from their tribal
heritage. Although the federal Government eventually discontinued this
assimilationist policy, Congress found that abusive Indian child custody
practices continued at the state level, often leading to the “wholesale” and
unwarranted removal of Indian children from their homes by state child
welfare agencies and adjudicatory bodies, see H.R. Rep. No. 95-1386, at 9;
Op. at 49. Far from pressing the states into federal service, ICWA minimizes any intrusion
on state sovereignty by permitting states to exercise some jurisdiction over Indian Child
custody proceedings so long as the state courts respect the federal rights of Indian children,
families, and tribes. Section “1911(a) establishes exclusive jurisdiction in the tribal courts
for proceedings concerning an Indian child who resides or is domiciled within the
reservation.” Holyfield, 490 U.S. at 36 (internal quotation marks omitted) (emphasis
added). And while Section 1911(b) allows states to exercise some concurrent jurisdiction
over cases involving “children not domiciled on the reservation,” it establishes that
jurisdiction over such proceedings still “presumptively” lies with the tribal courts. Id. at 36
(internal quotation marks omitted) (emphasis added). This means that, except in limited
circumstances, the case may remain in state court only with the consent of the Indian
child’s parents, custodian, and tribe. See § 1911(b). This is all to say, that the statute allows
states to participate in an activity that is presumptively and could wholly be reserved to the
tribes or the federal government is an indulgence of state interests, not an invasion thereof.
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see also Indian Child Welfare Act of 1977: Hearing Before the S. Select Committee
on Indian Affs., 95th Cong. 320 (1977) (statement of James Abourezk,
Chairman, S. Select Comm. on Indian Affs.) (describing the massive removal
as resulting in “cultural genocide”). Congress heard and received extensive
evidence on this plundering of tribal communities’ children, including
testimony that the vast removal of Indian children from their homes and
communities constituted an existential threat to tribes. See 124 Cong. Rec.
38,103 (1978) (statement of Minority sponsor Rep. Robert Lagomarsino)
(“For Indians generally and tribes in particular, the continued wholesale
removal of their children by nontribal government and private agencies
constitutes a serious threat to their existence as on-going, self-governing
communities.”); see also H.R. Rep. No. 95-1386, at 9-10 (declaring that the
removal of Indian children was a “crisis of massive proportions,”
representing “perhaps the most tragic and destructive aspect of Indian life”).
After reviewing this testimony and evidence concerning the massive
removal of Indian children from their tribal communities by the states,
Congress found that “there is no resource that is more vital to the continued
existence and integrity of Indian tribes than their children”; “that an
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.” 25
U.S.C. § 1901(3)-(4). And Congress directly attributed this threat to the
states “exercising their recognized jurisdiction over Indian child custody
proceedings through administrative and judicial bodies,” observing that they
had “often failed to recognize the essential tribal relations of Indian people
and the cultural and social standards prevailing in Indian communities and
families.” Id. § 1901(5).
Thus, ICWA also falls within Congress’s “plenary powers to legislate
on the problems of Indians” in order to fulfill its enduring trust obligations
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to the tribes. Antoine, 420 U.S. at 203. Indeed, the congressional findings in
the statute expressly invoke this “responsibility for the protection and
preservation of Indian tribes and their resources” and state “that the United
States has a direct interest, as trustee, in protecting Indian children.” 25
U.S.C. § 1901(2)-(3). The law was intended to combat an evil threatening
the very existence of tribal communities, and it would be difficult to conceive
of federal legislation that is more clearly aimed at the Government’s enduring
trust obligations to the tribes. Moreover, it fulfills the government’s duty to
protect the tribes from the states by regulating relations between the two—a
power that the Framers specifically intended that the Constitution bestow on
the federal government. 28 See Canby, American Indian Law § 2.1
28
The opposing opinion misapprehends the significance to our analysis of the
federal government’s history of removing Indian children from their families and tribes to
place them at off-reservation boarding schools. See Duncan, Circuit Judge, Op. at
50-51. In the view of the opposing opinion, that the boarding school policy began in the
latter half of the nineteenth century, and not the Founding era, means that the federal
government’s assimilation policy is irrelevant in determining whether Congress was
authorized to enact ICWA. This is squarely contrary to the Supreme Court’s explicit
direction that historical “practice [is] an important interpretive factor even when the
nature or longevity of that practice is subject to dispute, and even when that practice began
after the founding era.” Noel Canning, 573 U.S. at 525 (emphasis added). But more
importantly, Judge Duncan’s observation about the start of the boarding school policy
misses the point: Since the Nation’s founding, the federal government has viewed itself as
owing an affirmative duty to promote tribal welfare generally and to provide for Indian
children specifically, as well as having the power to do so—obligations that arise under what
is now described as a trust relationship between the tribes and the government. See Br. of
Prof. Ablavsky at 20 (describing federal financing of placement of Indian children in Quaker
homes during the Washington administration); see also Fletcher, Federal Indian Law
§ 5.2. This relationship, at one time, led the federal government to pursue misguided
policies that harmed the tribes, including its efforts at assimilating Indian children through
the use of boarding schools during the nineteenth and twentieth centuries. And decades
after the height of the federal government’s ill-founded promotion of Indian boarding
schools, the states continued to perpetuate the destruction of tribal culture by removing
massive numbers of Indian children from the custody of their parents. See supra
Background Part IV-V. In the face of these abusive child welfare practices and pursuant to
the government’s trust duty to the tribes—which, again, is rooted in the Nation’s
Founding era—Congress enacted ICWA to protect the tribes. Stated differently,
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(“The central policy . . . was one of separating Indians and non-Indians and
subjecting nearly all interaction between the two groups to federal control.”).
Plaintiffs raise several arguments in favor of cabining Congress’s
authority to redress the evils attending state child welfare proceedings
involving Indian children. We review their contentions and find them
wanting.
First, seeking to surmount the mountain of case law sustaining
Congress’s plenary authority to regulate with respect to Indians, Plaintiffs
point out that the Court remarked that this power is “not absolute” in
Delaware Tribal Business Committee v. Weeks, 430 U.S. 73, 84 (1977). A
cursory review of the cited authority reveals that it affords no support to
Plaintiffs’ position. The above-quoted statement was made with regard to
the justiciability of a challenge to Congress’s “exercise of control over tribal
property.” Id. at 83. In other words, the Court was addressing only whether
it in fact had authority to adjudicate the dispute—not the extent of
Congress’s authority to regulate Indian tribes. In any event, the Court
concluded that the controversy was justiciable and upheld the challenged
enactment. Id. at 90. Delaware Tribal Business Committee in no way shackles
Congress’s authority to regulate Indian tribes.
Plaintiffs next contend that the meaning of commerce in the Indian
and Interstate Commerce Clauses is equivalent. Plaintiffs thus seek to import
Interstate Commerce Clause jurisprudence into the Indian Commerce
Clause in order to limit Congress’s power under the latter; they argue that
Founding-era history confirms Congress’s “plenary power[]” and responsibility “to
legislate on the problems of Indians,” Antoine, 420 U.S. at 203, and the history of Indian
child removal demonstrates that the unwarranted breakup of Indian families was such a
problem. Congress was effectuating its trust obligations to the tribes when it acted to halt
the wrongful Indian child custody practices that had once been carried out by the federal
government and were continuing to be practiced by states at the time of ICWA’s
enactment, and this is exactly what the Constitution empowers the federal government to
do.
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the latter clause does not authorize ICWA because children are not “persons
. . . in commerce” and child custody cases do not substantially affect
commerce with Indian tribes. We find Plaintiffs’ construction of the Indian
Commerce Clause unduly cramped, at odds with both the original
understanding of the clause and the Supreme Court’s more recent
instructions. See Printz, 521 U.S. at 905 (looking to “historical understanding
and practice” as well as “the jurisprudence of this Court” to determine
whether a federal enactment was constitutional). More fundamentally, the
history, text, and structure of the Constitution demonstrate that the federal
Government, including Congress, has plenary authority over all Indian affairs
and that this power is in no way limited to the regulation of economic activity.
And, as stated, Congress does not derive its plenary power solely from the
Indian Commerce Clause, but rather from the holistic interplay of the
constitutional powers granted to Congress to deal with the Indian tribes as
separate nations. See Ablavsky, Beyond the Indian Commerce Clause, supra at
1026.
The history refutes Plaintiffs’ attempt to equate the Interstate and
Indian Commerce Clauses. Indeed, since the framing of the Constitution,
“Indian ‘commerce’ [has] mean[t] something different” than “interstate
commerce.” Id. The Framers debated and approved the Indian Commerce
Clause separately from the Interstate Commerce Clause, and, during
ratification, the clauses were viewed as so distinct in content that “no one
during ratification interpreted the Indian Commerce Clause to shed light on
the Interstate . . . Commerce Clause[], or vice versa.” Id. at 1027; see also
Matthew L.M. Fletcher, ICWA and the Commerce Clause, in The Indian
Child Welfare Act at 30: Facing the Future 32 (Fletcher et al.
eds., 2009) [hereinafter Fletcher, ICWA and the Commerce Clause]. Though
both provisions use the term “commerce,” the historical evidence from the
time of the Constitution’s framing indicates that interpreting “commerce”
identically in the Interstate and Indian Commerce Clauses is a “trap” that
“would tend to obliterate the original meaning and intent of the Indian
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Commerce Clause.” Fletcher, ICWA and the Commerce Clause, supra, at 31.
Put simply, “[c]ommerce with Indian tribes must be interpreted on its own
terms rather than in the shadow of . . . the Interstate Commerce Clause.”
Ablavsky, Beyond the Indian Commerce Clause, supra, at 1028, 1029 (noting
that eighteenth century references to “commerce” with Indians included the
exchange of religious ideas with tribes and sexual intercourse with Indians);
see also Fletcher, ICWA and the Commerce Clause, supra at 8-9.
Legislation from the beginning of the Constitutional era further
demonstrates that the Constitution confers synergistic and comprehensive
powers on the federal Government to manage relations with Indian tribes,
regardless of whether the regulated activity is economic in nature. As noted
above, the Indian Intercourse Act of 1790 embraced many noneconomic
subjects, including the regulation of criminal conduct by non-Indians against
Indians. In enacting the law, the First Congress plainly conceived of its
power to extend into regulation of noneconomic activity relating to Indian
tribes. See Jack M. Balkin, Commerce, 109 Mich. L. Rev. 1, 24-26 (2010)
(discussing the Act and its successors and stating that “Congress clearly
believed that it could reach both economic and noneconomic activity under
the Indian Commerce Clause,” given that the Act reaches noneconomic
criminal conduct, such as murder); see also Akhil Reed Amar, America’s
Constitution and the Yale School of Constitutional Interpretation, 115 Yale
L.J. 1997, 2004 n.25 (2006). Since then, Congress has repeatedly exercised
its Indian affairs authority for matters far beyond mere economic exchange.
See, e.g., Indian Health Care Improvement Act, 25 U.S.C. §§ 1601 et seq.;
Tribally Controlled Community College Assistance Act, 25 U.S.C.
§ 1801(7)(B).
Furthermore, “[t]he scope of federal power under the Indian
commerce clause has developed under Supreme Court decisions differently
than the powers over foreign and interstate commerce.” Cohen’s, supra,
§ 4.01[1][a]. The Court has explicitly underscored the distinction between
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the clauses, explaining that “the Indian Commerce Clause accomplishes a
greater transfer of power from the States to the Federal Government than
does the Interstate Commerce Clause.” Seminole Tribe, 517 U.S. at 62
(observing that, though “the States still exercise some authority over
interstate trade[, they] have been divested of virtually all authority over
Indian commerce and Indian tribes”). In short, it is “well established that
the Interstate Commerce and Indian Commerce Clauses have very different
applications”; unlike the former clause, which “is concerned with
maintaining free trade among the States,” “the central function of the Indian
Commerce Clause is to provide Congress with plenary power to legislate in
the field of Indian affairs.” Cotton Petroleum Corp. v. New Mexico, 490 U.S.
163, 192 (1989) (emphasis added); see also United States v. Lomayaoma, 86
F.3d 142, 145 (9th Cir. 1996) (noting that the Indian Commerce clause
“confers more extensive power on Congress than does the Interstate
Commerce Clause”). And the Supreme Court has continually made clear
that Congress’s Indian affairs power is not limited to regulating economic
activity. See Lara, 541 U.S. at 200 (affirming power of tribes to criminally
prosecute nonmembers); United States v. Holliday, 70 U.S. (3 Wall.) 407,
410-11, 416-17 (1865) (upholding under the Indian Commerce Clause a
federal statute that criminally sanctioned the sale of liquor to Indians,
reasoning that the law “regulates the intercourse between the citizens of the
United States and [Indian] tribes, which is another branch of commerce, and
a very important one”); Worcester, 31 U.S. at 559 (explaining that the array
of Indian affairs powers conferred on Congress by the Constitution
“comprehend all that is required for the regulation of our intercourse with
the Indians”). Any contention that ICWA is beyond Congress’s authority to
legislate with regard to Indian affairs is unfounded.
Alternatively, Plaintiffs argue that, even if the Constitution grants
Congress plenary power with respect to Indian affairs, ICWA nonetheless
exceeds Congress’s legislative authority because it reaches Indian children
who are not yet enrolled tribal members. We find no merit in this argument.
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Pursuant to its Indian affairs power, Congress has long regulated persons
without any tribal connection when their conduct affects Indians. See, e.g.,
Indian Intercourse Act, § 1, 1 Stat. 137 (requiring any person who seeks “to
carry on any trade or intercourse with the Indian tribes” to obtain a license
from the federal government); United States v. Mazurie, 419 U.S. 544, 556-58
(1975) (upholding federal criminal statute, passed pursuant to the Indian
Commerce Clause and applied to non-Indians for conduct on private, non-
Indian land within a reservation). Indeed, “Congress’ plenary powers to
legislate on the problems of Indians” often results in statutes that impact—
and are directly aimed at—non-Indians. Antoine, 420 U.S. at 203; see also
Dick v. United States, 208 U.S. 340, 357 (1908) (“As long as these Indians
remain a distinct people, with an existing tribal organization, recognized by
the political department of the government, Congress has the power to say
with whom, and on what terms, they shall deal . . . .”). This type of regulation
has been upheld repeatedly, even when it extends outside the bounds of the
reservation or Indian country. See, e.g., United States v. Nice, 241 U.S. 591,
597 (1916) (“The power of Congress to regulate or prohibit traffic in
intoxicating liquor with tribal Indians within a state, whether upon or off an
Indian reservation, is well settled. It has long been exercised, and has
repeatedly been sustained by this court.”) (emphasis added); United States v.
Forty-Three Gallons of Whiskey, 93 U.S. (3 Otto) 188, 195 (1876) (sustaining
Congress’s power to require forfeiture of liquor sold outside of Indian
country by a non-Indian to a tribal member); Holliday, 70 U.S. (3 Wall.) at
416-17 (upholding statute that criminally sanctioned sale of liquor by a non-
Indian to an Indian outside of Indian country); Cohen’s, supra, § 5.01[3]
(explaining that the Indian Commerce Clause comprehends “transactions
outside of Indian country.”). Simply put, Congress’s Indian affairs power
does not hinge on whether an entity affected by a regulation is a member of
an Indian tribe, and there is no authority in the case law for the novel
constraint on congressional power that Plaintiffs proffer.
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Judge Duncan’s objections to Congress’s power to enact ICWA
center on concerns that the statute impermissibly interferes with state
sovereignty by legislating federal protections applicable to Indian children in
state child welfare proceedings. He raises similar contentions when arguing
that ICWA contravenes the anticommandeering principle, which we address
below in our anticommandeering discussion. See infra Discussion Part II.A.2.
But that issue is distinct from the question of whether Congress under Article
I may legislate on the particular subject matter at issue: providing minimum
protections for Indian children and families in child custody proceedings in
order to prevent and rectify the massive removal of Indian children from their
communities. 29 See supra note 21. To the extent the opposing opinion alleges
a Tenth Amendment violation independent of any anticommandeering
problem, centuries of Supreme Court precedent declaring Congress’s duty
to protect tribes from the states and Congress’s corresponding “plenary
power[] to legislate on the problems of Indians” compel us to reject Judge
Duncan’s arguments for imposing new restraints on this authority.
Antoine, 420 U.S. at 203; see also, e.g., Mancari, 417 U.S. 551-52; Kagama, 118
U.S. at 383-84. Indeed, preventing the states from exercising their sovereign
power in a manner that interferes with federal policy toward the Indian tribes
is precisely what the Constitution was intended to do. See Worcester, 31 U.S.
at 559 (“[The Constitution] confers on congress the powers of war and
peace; of making treaties, and of regulating commerce with foreign nations,
29
The opposing opinion misreads us as somehow suggesting that the “Tenth
Amendment vanishes” when Congress has plenary power to legislate in a certain field.
See Duncan, Circuit Judge, Op. at 28. To the contrary, we have explained that
the question of Congress’s Article I authority to legislate on a given subject matter is
separate from the anticommandeering inquiry and other federalism concerns—as well as
other constitutional constraints on Congress’s legislative authority. See supra note 21. And
our analysis therefore tracks this basic understanding about the distinct constitutional
inquiries presented: first, we address whether ICWA is within the range of Congress’s
Indian affairs authority, and second, we consider whether ICWA contravenes the
anticommandeering doctrine. Compare Discussion Part II.A.1 with Discussion Part.II.A.2.
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and among the several states, and with the Indian tribes. These powers
comprehend all that is required for the regulation of our intercourse with the
Indians. They are not limited by any restrictions on their free actions. The
shackles imposed on this power, in the confederation, are discarded.”). It
was exactly this concern that led the Framers to confer on the federal
government exclusive, plenary power over Indian affairs through myriad
interrelated constitutional provisions. See Ablavsky, Beyond the Indian
Commerce Clause at 1043-44.
Judge Duncan’s argument suffers from another fundamental
defect. His overarching premise is that ICWA violates the Tenth
Amendment—and thus exceeds Congress’s Article I authority—because it
“encroaches” on an area of “traditional” state regulation, the field of
domestic relations. Duncan, Circuit Judge, Op. at 15, 40 n. 58,. Yet,
as Judge Higginson cogently explains, this assertion is squarely at odds
with the Supreme Court’s decision in Garcia v. San Antonio Metropolitan
Transit Authority, where the Court emphatically rejected as unprincipled and
unadministrable a conception of Tenth Amendment protections that turns
on whether a regulated activity is one that is traditionally within a state’s
purview. Higginson, Circuit Judge, Op. at 1-2; see Garcia, 469 U.S.
528, 546-47 (1985) (“We therefore now reject, as unsound in principle and
unworkable in practice, a rule of state immunity from federal regulation that
turns on a judicial appraisal of whether a particular governmental function is
‘integral’ or ’traditional.’”)
First, “[t]here is no ‘general doctrine implied in the Federal
Constitution that the two governments, national and state, are each to
exercise its powers so as not to interfere with the free and full exercise of the
powers of the other.’” Maryland v. Wirtz, 392 U.S. 183, 195 (1968) (quoting
Case v. Bowles, 327 U.S. 92, 101 (1946)). Rather, pursuant to the Supremacy
Clause, “the Federal Government, when acting within a delegated power,
may override countervailing state interests,” whether those interests are
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labeled traditional, fundamental, or otherwise. Id. In ratifying the
Constitution, the states consented to the subordination of their interests—
even those interests that are traditional state prerogatives—to those of the
federal government when it acts pursuant to its constitutional powers. See
Garcia, 469 U.S. at 549. “In the words of James Madison to the Members of
the First Congress: ‘Interference with the power of the States was no
constitutional criterion of the power of Congress. If the power was not given,
Congress could not exercise it; if given, they might exercise it, although it
should interfere with the laws, or even the Constitution of the States.’” Id.
(quoting 2 Annals of Cong. 1897 (1791)).
Moreover, on a more practical level, requiring courts to attempt to
ascertain whether a given area of regulation is sufficiently within the
historical province of states to qualify for protection would “result in line-
drawing of the most-arbitrary sort.” Id. at 545. “[T]he genesis of state
governmental functions stretches over a historical continuum from before
the Revolution to the present, and courts would have to decide by fiat
precisely how longstanding a pattern of state involvement had to be for
federal regulatory authority to be defeated.” Id. And, as the Garcia Court
observed, aside from longevity, there is a total lack “of objective criteria” by
which to identify unenumerated “fundamental’ elements of state
sovereignty.” Id. at 549.
The Garcia Court therefore held that the entirety of the constitutional
protections for states’ retained sovereignty in the federalist system are found
in the limitations inherent in Congress’s enumerated Article I powers 30 and
30
The modern anticommandeering doctrine was developed post-Garcia, and it is
also rooted in the Tenth Amendment’s reservation of state sovereignty. See, e.g., New
York, 505 U.S. at 188; Printz, 521 U.S. at 932. And the Court has of course long recognized
that states retain sovereign immunity from most private suits, including in post-Garcia
decisions. See, e.g., Seminole Tribe, 517 U.S. at 47. Garcia, nevertheless, remains good law,
as evidenced by citations to it in the Court’s leading anticommandeering cases, see New
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“in the structure of the Federal government itself,” which assigns the states
a role in, among other things, selecting the executive and legislative branches
of the federal government. Id. at 550-51. This structure reflects the Framers’
desire “to protect the States from overreaching by Congress” through their
participation in the democratic system and the political process, and not by
judicial assessment of whether a federal practice intrudes on some inviolable
area of state sovereignty that went unmentioned in the Constitution despite
its supposed importance. Id. In short, Garcia made clear that any “attempt
to draw the boundaries of state regulatory immunity in terms of ‘traditional
governmental function’ is not only unworkable but is also inconsistent with
established principles of federalism.” Id. at 554.
As Judge Higginson points out, this is precisely the type of
disfavored line drawing in which Judge Duncan’s opinion engages: it
erroneously attempts to shield states from ICWA’s minimum protections on
the ground that the law touches on domestic relations, a sphere of regulation
“traditionally” within the purview of states. Higginson, Circuit
Judge, Op. at 1-2. The opposing opinion thus “risks resuscitating a
misunderstanding of state sovereignty that entangles judges with the
problematic policy task of deciding what issues are so inherent in the concept
and history of state sovereignty that they fall beyond the reach of Congress.”
Higginson, Circuit Judge, Op. at 2.
Recognizing that Garcia’s reasoning dooms its argument, the
opposing opinion attempts to distinguish that decision based on the fact that
the statute at issue in Garcia was enacted pursuant to Congress’s Interstate
Commerce Clause authority, whereas ICWA stems from Congress’s power
over Indian affairs. See Duncan, Circuit Judge, Op. at 40 n.58.
However, the Garcia Court’s reasoning for expressly rejecting a Tenth
York, 505 U.S. at 155; Printz, 521 U.S. at 932, meaning the type of unenumerated spheres
of state sovereignty Judge Duncan relies upon simply do not exist.
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Amendment test that looks to whether a federal regulation encroaches on a
‘traditional governmental function’ applies with equal force regardless of the
enumerated power pursuant to which Congress acts. Moreover, it would be
nonsensical for the Tenth Amendment to impose more stringent federalism
limitations on Congress when it regulates under its Indian affairs authority
than under its Interstate Commerce power. It is well settled that states retain
sovereign authority under the Tenth Amendment “only to the extent that
the Constitution has not divested them of their original powers and
transferred those powers to the Federal Government,” id. at 549, and “the
Indian Commerce Clause accomplishes a greater transfer of power from the
States to the Federal Government than does the Interstate Commerce
Clause.” Seminole Tribe, 517 U.S. at 62. In other words, if any distinction
exists between the limitations federalism places on Congress’s Indian affairs
power and its Interstate Commerce power, it would be that Congress has
more freedom to regulate with respect to Indian affairs, not less. See id.;
Cotton Petroleum Corp., 490 U.S. at 192; see also Lomayaoma, 86 F.3d 145;
Ablavsky, Beyond the Indian Commerce Clause, supra at 1043-44.
The opposing opinion further contends that Garcia is inapposite
because that case “concerned whether ‘incidental application’ of general
federal laws ‘excessively interfered with the functioning of state
governments.’” Duncan, Circuit Judge, Op. at 40 n.58 (quoting
Printz, 521 U.S. at 932). But the same is true with ICWA. Like the provision
of the Fair Labor Standards Act at issue in Garcia that applied to both public
and private employers, ICWA is a generally applicable law. Under the
statute, as explained infra Discussion Part II.A.2.b, any burdens faced by
states are “nothing more than the same . . . obligations” that “private
[actors] have to meet.” Garcia, 469 U.S. at 554. Because ICWA’s mandates
may be borne either by private actors or state actors, any burdens on states
are “merely incidental applications” of the statute. Printz, 521 U.S. at 932.
Judge Duncan thus fails to persuasively distinguish Garcia, confirming
that the opposing opinion’s argument for limiting Congress’s Indian affairs
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authority under the Tenth Amendment is “unsound in principle and
unworkable in practice.” Garcia, 469 U.S. at 546.
The opposing opinion also posits, in essence, that Congress’s
authority to enact ICWA turns on whether there is either a Supreme Court
decision blessing a statute that operates just like ICWA or a Founding-era
federal law that regulates Indian children and applies within state child
welfare proceedings. See Duncan, Circuit Judge, Op. at 29-56.
Because neither exist, ICWA must fall, according to the opposing opinion.
Such reasoning is misguided.
First, it is unsurprising that there is no Founding-era federal Indian
statute conferring rights that apply in state proceedings. As Judge Costa
notes, it would have been anachronistic and bizarre for the early Congresses
to have passed a law specifically pertaining to child custody proceedings
because it was not until the middle of the nineteenth century that state
adoption law shifted to allow for the adjudication of child placements in
judicial proceedings. See Costa, Circuit Judge, Op. at 16-17; see also
Naomi Cahn, Perfect Substitutes or the Real Thing?, 52 Duke L.J. 1077, 1112-
17 (2003). And there was no need during the Founding era for legislation that
operated like ICWA as there was no massive removal of Indian children from
their families at the hands of state administrative or judicial bodies. It was
only during the 1970s that the scale of the ongoing, state-driven problem of
Indian child removal was brought to Congress’s attention. See supra
Background Part IV. Over a four-year span, Congress considered
voluminous evidence of the systematic removal of Indian children from their
families and tribes through state proceedings. Fletcher, Federal Indian
Law, supra § 8.8. Faced with the unique and alarming nature of this evil,
Congress determined it was necessary to enact ICWA in order to protect
Indian children, families, and tribes within those state proceedings. Thus,
deciding ICWA’s constitutionality by looking to whether the Founders
enacted a federal law conferring rights to Indian families and tribes within
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child custody proceedings is as nonsensical as deciding that federal regulation
of the internet is unconstitutional because the early Congresses lacked the
prescience to regulate a non-existent technology.
Second, the absence of a Supreme Court decision squarely addressing
a federal Indian statute that creates rights applicable in state proceedings
does not lend credence to the opposing opinion’s position. As discussed infra
Discussion Part II.A.2.a.i, the Supreme Court has repeatedly held that state
courts are bound by the Supremacy Clause to apply validly preemptive
federal law, and there is thus ample Supreme Court precedent supporting
Congress’s authority to enact laws applicable in state proceedings. See, e.g.,
McCarty v. McCarty, 453 U.S. 210, 235-36 (1981) (federal military benefits
statute guaranteeing “retired pay” to a retired servicemember preempted
state’s community property law that otherwise would have provided upon
divorce for dividing the retirement pay between the former spouses);
Hisquierdo v. Hisquierdo, 439 U.S. 572, 590 (1979) (federal Railroad
Retirement Act’s scheme for pension benefits, which excluded a spouse of a
railroad employee from entitlement to such benefits upon divorce,
preempted state law’s definition of community property subject to division).
That there may be no case affirming a federal statute that creates rights
related to Indians that apply in state courts evidences only the history just
discussed and the fact that few questioned Congress’s ability to legislate in
this manner given the wealth of Supreme Court precedents upholding the
preemptive force of federal law. Indeed, ICWA itself has been a part of the
United State Code for over forty years without a significant Tenth
Amendment challenge to the law reaching the Supreme Court or the courts
of our sister circuits, which would surely be puzzling if the statute were truly
the radical, unprecedented federal overreach that the opposing opinion
contends. Thus, the lack of a Supreme Court case directly addressing an
Indian law like ICWA that creates rights applicable in state court proceedings
speaks not to the absence of federal authority to enact such a statute, but
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instead to historical circumstance and federal authority that is so well
established as to be unquestionable.
To summarize, ICWA’s constitutionality does not hinge on Judge
Duncan’s exceptionally pinched framing that would have the statute rise
or fall based on the historical sanctioning of an exact analogue that Congress
would have had no occasion to enact. Rather, the salient question is whether
the history and text of the Constitution and congressional practice suggest
that ICWA is within Congress’s plenary Indian affairs authority. See Noel
Canning, 573 U.S. at 533 (“The Founders knew they were writing a
document designed to apply to ever-changing circumstances over centuries.
After all, a Constitution is ‘intended to endure for ages to come,’ and must
adapt itself to a future that can only be ‘seen dimly,’ if at all.” (quoting
McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 415 (1819))); Heller, 554 U.S.
at 528. Given the extensive history of federal government efforts to provide
for the welfare of Indian children and tribes, including legislation specifically
designed to protect Indians from mistreatment by the states and their
citizens, this question can only be answered in the affirmative.
Searching in vain for case law to support its unorthodox position, the
opposing opinion improvidently relies on two inapposite Supreme Court
decisions, Seminole Tribe of Florida v. Florida, 517 U.S. 44 (1996), and United
States v. Lara, 541 U.S. 193 (2004). In Seminole Tribe, the Court considered
an issue wholly absent from the present case: Congress’s power to abrogate
states’ sovereign immunity. 517 U.S. at 47. That case concerned the Indian
Gaming Regulatory Act, which was passed pursuant to the Indian Commerce
Clause. Id. One provision in the law authorized tribes to sue states in federal
court to compel them to negotiate in good faith to establish a tribal-state
compact governing gaming activities. Id. The Court nullified that provision;
it reasoned that, although the Constitution vests Congress with “complete
law-making authority” with respect to Indian affairs, “the Eleventh
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Amendment [generally] prevents congressional authorization of suits by
private parties against unconsenting states.” Id. at 72.
Judge Duncan emphasizes this uncontroversial statement, but it
does not advance his argument. Duncan, Circuit Judge, Op. at 35-
36. In holding that Congress could not abrogate a state’s sovereign immunity
pursuant to its Indian affairs power, Seminole Tribe simply recognized that,
even when Congress holds plenary authority over a field of legislation, that
power is still subject to limitations imposed by other constitutional
provisions. See id.; Williams, 393 U.S. at 29; Condon, 528 U.S. at 149. It is
for this reason that, as explained supra note 21, we first address Congress’s
Article I authority to legislate over ICWA’s subject matter and then
separately consider whether ICWA is consistent with the
anticommandeering doctrine and other constitutional guarantees.
To the extent Judge Duncan asserts that Seminole Tribe prohibits
Congress from regulating in state “sovereign matters like adoption
proceedings,” Duncan, Circuit Judge, Op. at 36, we disagree.
Seminole Tribe addressed only limitations on Congress’s power to override
states’ sovereign immunity from suit by private parties. See id. at 47. It has
no bearing on the scope of Congress’s Article I authority when, as here,
private suits against a state are not at issue. Indeed, the Court carefully noted
that its opinion in no way touched upon other aspects of the Tenth
Amendment. See id. at 61 n.10 (expressly declining to opine on whether the
statute contravened the anticommandeering doctrine because this argument
“was not considered below . . . and is not fairly within the question
presented”); see also id. at 183 n.65 (Souter, J., dissenting) (cautioning that
the views expressed in his dissenting opinion on the issue of state sovereign
immunity “should not be understood [as] tak[ing] a position on” the “scope
of the Tenth Amendment” in other respects). Furthermore, the Supreme
Court has expressly held that even in fields like domestic relations that are
generally the exclusive territory of state regulation, Congress can enact
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legislation that preempts contrary state law. See, e.g., McCarty, 453 U.S. at
235-36. In sum, any reliance on Seminole Tribe as imposing a limit on
Congress’s ability to exercise its Indian affairs authority to create federal
rights that apply within child custody proceedings is misplaced. 31
The Supreme Court’s decision and reasoning in Lara, 541 U.S. at 196,
also does not apply to the present case. There, the Court considered the
constitutionality of a statute enacted in response to an earlier Court ruling in
Duro v. Reina, 495 U.S. 676 (1990). In Duro, the Court held that tribes had
been dispossessed of their inherent authority to prosecute nonmember
Indians by virtue of their status as dependent sovereigns subject to the
authority of the United States. Id. at 679. Congress promptly passed a law
seeking to avoid the Court’s ruling in Duro by “recogniz[ing] and
reaffirm[ing]” that tribes’ inherent sovereignty includes the power to
exercise criminal jurisdiction over nonmember Indians. Lara, 541 U.S. at
196; see also United States v. Enas, 255 F.3d 662, 669 (9th Cir. 2001) (citing
25 U.S.C. § 1301(2)). That statute was challenged in Lara as exceeding
Congress’s authority. See 541 U.S. at 200. The case thus presented the
specific question of whether Congress could statutorily alter limits that had
been placed on tribes’ inherent sovereign powers as a result of their
dependent status.
The Court answered this question in the affirmative, reasoning that
Congress was in effect “relax[ing] restrictions that the political branches”
had previously placed on the exercise of inherent tribal authority. Id. at 196.
In recognizing Congress’s power to remove such restrictions, the Court
31
We note that Judge Duncan mischaracterizes the Defendants as supposedly
making the “core” argument that simply because Congress has plenary authority over
Indian affairs it “can ipso facto” regulate sovereign state affairs. Duncan, Circuit
Judge, Op. at 33-34, 36 n.52. This contention is not raised in the Defendants’ briefing
nor was it advanced at oral argument. Defendants’ actual argument is that, as an initial
matter, Congress has authority to enact ICWA and second that ICWA does not violate the
anticommandeering doctrine.
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discussed several relevant considerations. For example, one consideration
was that Congress, with the Court’s approval, had a long-established practice
of adjusting the limits on the sovereign authority of tribes and other
“dependent entities” such as Hawai‘i and Puerto Rico. Id. 203-04. This
history of congressional action was germane to deciding whether Congress
could continue to adjust the scope of tribal autonomy. However, the Lara
Court’s considerations are of no relevance where, as with ICWA, Congress
is not altering the scope of tribes’ retained sovereign power.
Instead, in enacting ICWA, Congress simply employed its power to
set policy with respect to the Indian tribes by conferring minimum federal
protections on Indian children, parents, and tribes in state child custody
proceeding. Stated differently, the considerations in Lara are inapplicable
because, unlike the statute at issue in Lara, ICWA affirmatively grants new
rights, protections, and safeguards to individual Indians and tribes in state
proceedings and does not restore or remove any inherent sovereign authority
the tribes possessed prior to their becoming dependents of the United States.
Take, for instance, § 1911(b), which permits tribes to intervene in an off-
reservation child custody case and invoke ICWA’s placement preferences.
That this provision cannot be read to restore sovereign authority to a tribe is
clear from the fact that it grants the very same right to an Indian child’s
parents or relatives; a power cannot be sovereign in nature if it can just as
easily be exercised by individual tribal members as by tribes themselves. Cf.
Lara, 541 U.S. at 200 (upholding tribes’ inherent sovereign power to
prosecute nonmember Indians). Similarly, § 1912(b) provides indigent
Indian parents or custodians a right to appointed counsel in state child
custody proceedings—a right not conferred on the sovereign tribes at all.
These provisions grant rights to Indian tribes, parents, and relatives pursuant
to Congress’s power to regulate relations between states, the federal
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government, and the tribes, and they simply do not implicate the Indian
tribes’ inherent sovereign power. 32
In sum, Lara’s unique analytical approach cannot be applied
wholesale to assess an enactment like ICWA that does not restore tribal
sovereignty but instead affirmatively regulates Indian affairs by establishing a
range of federal protections that apply when an Indian child is involved in a
state child custody proceeding. Lara’s reasoning is therefore far removed
from the Article I issue presented in this case.
Based on the Framers’ intent to confer on the federal Government
exclusive responsibility for Indian affairs, the centuries-long history of the
Government’s exercise of this power, and the extensive body of binding
Supreme Court decisions affirming and reaffirming this authority, we
conclude that ICWA “represent[s] the exercise of [] power[s] conferred on
Congress by the Constitution.” Murphy, 138 S. Ct. at 1479. At a bare
minimum, ICWA is “necessary and proper,” U.S. Const. art. I, sec. 8—
that is, “plainly adapted,” McCulloch v. Maryland, 17 U.S. (4 Wheat) 316, 421
(1819)—to solving “the problems of Indians,” Antoine, 420 U.S. at 203, and
thus fulfilling the federal government’s trust duty to the tribes as it is squarely
targeted at rectifying “perhaps the most tragic and destructive aspect of
Indian life.” H.R. Rep. No. 95-1386, at 9-10. 33 A contrary holding would
render Congress impotent to remedy and prevent repetition of the
depredations visited upon Indian children, tribes, and families, an injustice
to which the federal Government itself has contributed and apologized. See
32
Judge Duncan is correct that in Lara the Court noted that it was not
confronted “with a question dealing with potential constitutional limitations on efforts to
legislate far more radical changes in tribal status.” Lara, 541 U.S. at 205; Duncan,
Circuit Judge, Op. at 33-34 n.33. But as explained above, ICWA does not effect any
change whatsoever in tribal sovereignty. Judge Duncan is therefore incorrect that the
instant challenge to ICWA presents the question Lara left undecided.
33
Notably, Plaintiffs do not expressly contend that ICWA exceeds the auxiliary
powers granted to Congress under the Necessary and Proper Clause.
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146 Cong. Rec. E1453 (Sept. 12, 2000) (quoting apology of Assistant
Secretary for Indian Affairs, Department of the Interior remarks on Sept. 8,
2000). Such a result would be not only a sad irony, but a grievous judicial
straitjacketing of a coordinate branch of government. We decline to vitiate
Congress’s authority in a field in which the Supreme Court has held that it
wields plenary power. See Lara, 541 U.S. at 200 (2000); Ramah Navajo Sch.
Bd., Inc., 458 U.S. at 837; White Mountain Apache Tribe, 448 U.S. at 142.
Instead, we follow the Court’s sustained admonitions that Congress is
empowered fully to make good on its trust obligations to Indian tribes. See,
e.g., Mancari, 417 U.S. 551-52; Antoine, 420 U.S. at 203; Kagama, 118 U.S. at
383-84.
2. ICWA Does Not Violate the Anticommandeering Principle.
We turn to the second prong of the preemption analysis and consider
whether ICWA runs afoul of the anticommandeering doctrine. Under the
Articles of Confederation, the federal government largely lacked the power
to govern the people directly and instead was restricted to giving commands
to the states that it was often powerless to enforce. New York, 505 U.S. at
161-62 (citing Lane Cnty. v. Oregon, 74 U.S. (Wall.) 71, 76 (1868)). To rectify
this impotency, the Framers inverted this relationship in the Constitution,
empowering Congress to “exercise its legislative authority directly over
individuals rather than over States.” Id. at 164. Citing this history, Justice
O’Connor inaugurated the modern anticommandeering doctrine, in New
York v. United States, stating that it represents the Framers’ structural
decision to withhold from Congress the power to directly command state
executives and state legislatures to do its bidding. See id.
The Constitution’s Supremacy Clause, provides, however, 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. Thus, a distinction exists between a law that unconstitutionally
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“conscript[s] state governments as [the federal government’s] agents,” New
York, 505 U.S.at 178, and a law that establishes federal rights or obligations
that the states must honor despite any conflict with state law. We consider,
then, whether ICWA falls into the former camp or the latter.
a. In Requiring State Courts to Apply Preemptive Federal
Law, ICWA Does Not Violate the Anticommandeering
Doctrine.
The district court determined that ICWA unconstitutionally
commandeers the states by requiring state courts to apply its minimum
protections in their child custody proceedings. However, when considering
whether a federal law violates the anticommandeering doctrine, the Supreme
Court has consistently drawn a distinction between a state’s courts and its
political branches.
Because the Supremacy Clause obligates state courts to apply federal
law as the “supreme Law of the Land” and provides that “the Judges in
every State shall be bound thereby,” the anticommandeering principle that
Justice O’Connor formulated in New York does not apply to properly enacted
federal laws that state courts are bound to enforce. As Justice Scalia made
clear in Printz, “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 applied the law of
other sovereigns all the time,” including federal law as mandated by the
Supremacy Clause. Id. Thus, it is well-established that Congress has the
power to pass laws enforceable in state courts. See Palmore v. United States,
411 U.S. 389, 402 (1973); Testa v. Katt, 330 U.S. 386, 394 (1947); see also
Second Employers’ Liability Cases, N.H. & H.R. Co., 223 U.S. 1, 57 (1912);
Claflin v. Houseman, 93 U.S. 130, 136-37 (1876). Although these “[f]ederal
statutes enforceable in state courts do, in a sense, direct state judges to
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enforce them, . . . 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. In other
words, it is inherent in the Supremacy Clause’s provision that federal law
“shall be the supreme Law of the Land” that state courts must enforce
federal law. U.S. Const. art. VI, cl. 2.
In the district court’s erroneous view, ICWA’s standards do not bind
states courts because ICWA itself does not supply a federal cause of action.
Although the district court noted the settled principle that state courts must
apply federal law to a federal cause of action, it did not recognize the equally
settled obligation on state courts to honor federal rights when they are
implicated in a case arising out of a state-law cause of action. Failing to
appreciate this duty, the court below thought that ICWA cannot bind state
courts because it “modif[ies]” the substantive standards applicable to child
custody cases, which arise from state law. Thus, the district court believed
that ICWA improperly commandeers state courts and therefore cannot
preempt conflicting state law.
There is no support in the Supreme Court’s precedents for this novel
limit on federal preemption. See, e.g., Haywood v. Drown, 556 U.S. 729, 736
(2009) (“[A]lthough States retain substantial leeway to establish the
contours of their judicial systems, they lack authority to nullify a federal right
or cause of action they believe is inconsistent with their local policies.”
(emphasis added)). The Supreme Court has long made clear that, even in
areas of traditional state prerogative, such as domestic relations, a federal
right may preempt state causes of action “to the extent of any conflict”
between the two. Hillman v. Maretta, 569 U.S. 483, 490-91 (2013) (quoting
Crosby, 530 U.S. at 372). In other words, when the standard application of
substantive state family law “clearly conflict[s]” with “federal enactments”
in an area in which Congress may validly exercise its Article I authority, state
law “must give way.” Id. (quoting Ridgway v. Ridgway, 454 U.S. 46, 55
(1981)) (federal statute requiring that life insurance benefits be paid
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according to a specific “order of precedence” preempted state law directing
that proceeds be paid to a different beneficiary).
More to the point, the Supreme Court has expressly held that federal
law can “modify” the substance of state law claims. Take, for example,
McCarty v. McCarty, 453 U.S. 210 (1981). There, a federal military benefits
statute provided for a different division of retirement benefits upon divorce
than a state’s community property law. Id. at 235-36. The Court held that
the federal law preempted state law, thereby altering the substantive law
applicable to a state-law cause of action. Id.; see also Egelhoff v. Egelhoff ex rel.
Breiner, 532 U.S. 131, 143 (2001) (holding that ERISA preempted state law
regarding allocation of certain assets upon divorce during state probate
proceeding); Hisquierdo v. Hisquierdo, 439 U.S. 572, 590 (1979) (holding that
federal law preempted state law’s definition of community property subject
to division with respect to federal pension benefits). And in Jinks v. Richland
County, the Court affirmed that federal law cannot only “modify” the
substance of a state law claim, but indeed can keep alive a state law cause of
action that would otherwise be time-barred. 34 538 U.S. 456, 459 (2003)
(upholding the federal supplemental jurisdiction statute’s provision tolling
state law claims while they are pending in federal court, thus permitting such
claims, if they are dismissed from federal court, to proceed in state court,
though they otherwise may be barred by the running of a state’s limitations
period).
As amici point out, these laws are not unique: a host of federal statutes
change the standards applicable to state causes of action, including in family
34
While it is unquestionable that federal law may alter the “‘substance’ of state-
law rights of action,” the Supreme Court has left unresolved the validity of “federal laws
that regulate state-court ‘procedure.’” See Jinks, 538 U.S. at 464. We need not weigh in
on this unsettled question because ICWA’s challenged provisions grant rights and
protections to Indian tribes and families that are substantive in nature. Cf. id. at 464-65
(tolling of state law limitations period is substantive).
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law proceedings. See, e.g., Servicemembers Civil Relief Act, 50 U.S.C.
§ 3911, et seq.; Parental Kidnapping Prevention Act, 28 U.S.C. § 1738A; Full
Faith and Credit for Child Support Orders Act, 28 U.S.C. § 1738B; Foreign
Sovereign Immunities Act, 28 U.S.C. § 1330, et seq.; Intercountry Adoption
Act of 2000, 42 U.S.C. § 14954. And state courts have long applied these
requirements without ever questioning Congress’s authority to impose them.
For example, in In re Larson, a California appeals court held that the
federal Soldiers’ and Sailors’ Civil Relief Act (SSCRA), which affords rights
to servicemembers who are “prejudiced” in state court proceedings “by
reason of [their] military service,” overrode otherwise applicable state law.
183 P.2d 688, 690 (Cal. Dist. Ct. App. 1st 1947), disapproved of on other grounds
by In re Marriage of Schiffman, 620 P.2d 579 (Cal. 1980) (citing Pub. L. No.
86-721, 54. Stat. 1180, now titled Servicemembers Civil Relief Act, 50 U.S.C.
§ 391). In that case, the state trial court had granted a mother’s petition to
have her child’s last name changed to hers from that of her former spouse.
Id. at 690-91. The father appealed, averring that, because he was in the armed
forces and detained as a prisoner of war in Germany at the of time of the
mother’s petition, he was entitled to relief under the SSCRA. Id. at 690.
Acknowledging that the mother had “proceeded in accordance with the
applicable statutes of this state,” the appeals court nonetheless recognized
that the federal statute superseded state law and vacated the lower court’s
order to permit the father to challenge the petition. Id. at 690-91. At no point
did the state court suggest that the SSCRA impinged on state sovereignty.
See also, e.g., In re China Oil & Gas Pipeline Bureau, 94 S.W.3d 50, 59 (Tex.
App. 2002) (applying Foreign Sovereign Immunities Act burden of proof to
determine whether foreign state had waived immunity from state law breach
of contract, breach of fiduciary duty, and fraud claims); State ex rel. Valles v.
Brown, 639 P.2d 1181, 1186 (N.M. 1981) (applying Parental Kidnapping
Prevention Act to determine whether the state court could modify a child
custody decree).
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In light of the Supreme Court’s express decisions upholding federal
law’s ability to alter substantive aspects of state claims and the robust history
of federal statutes that do just that, there can be little doubt that the district
court erred by determining that ICWA’s provisions preempting state law
were instead a violation of the anticommandeering doctrine. Thus, to the
extent that the rights created by ICWA conflict with states’ child custody
laws, the Supremacy Clause requires state judges to honor ICWA’s
substantive provisions. See New York, 505 U.S. at 178-79 (explaining that
state judges are required under the Supremacy Clause to enforce federal law).
i. Sections 1912(e)-(f), 1915(a)-(b)
Applying these principles to the case at bar, we conclude that “to the
extent of any conflict” between the rights created by ICWA and state law,
Hillman v. Maretta, 569 U.S. at 490, state courts are obliged to honor those
rights by applying ICWA’s substantive evidentiary standards for foster care
placement and parental termination orders, 25 U.S.C. § 1912(e)-(f), as well
as the federal law’s child placement preferences, id. § 1915(a)-(b). Each of
these provisions creates federal rights in favor of Indian children, families,
and tribes that potentially alter the substantive standards applicable in child
custody proceedings. We note that these provisions do in fact conflict with
the otherwise applicable law of the State Plaintiffs. For example, in
furthering its goal of protecting “the best interests of Indian children,” id.
§ 1902, ICWA prohibits terminating the parental rights of an Indian child’s
biological parents absent a determination “beyond a reasonable doubt . . . that
the continued custody of the child by the parent . . . is likely to result in serious
emotional or physical damage to the child.” Id. § 1912(f). The State
Plaintiffs, on the other hand, generally use the far less stringent “best
interests of the child” analysis and “clear and convincing” evidentiary
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standard. 35 Consequently, as between these differing standards, state courts
are compelled to employ ICWA’s heightened protections in proceedings
involving Indian children. Indeed, state courts have not hesitated do so. 36
See, e.g., In re W.D.H., 43 S.W.3d 30, 37 (Tex. App. 2001) (“We conclude
that it is not possible to comply with both the two-prong test of the Family
Code, which requires a determination of the best interest of the child under
the ‘Anglo’ standard, and the ICWA, which views the best interest of the
Indian child in the context of maintaining the child’s relationship with the
Indian Tribe, culture, and family.”); Yavapai–Apache Tribe v. Mejia, 906
S.W.2d 152, 170 (Tex. App. 1995) (stating that ICWA “was specifically
directed at preventing the infiltration of Anglo standards” in custody
proceedings involving Indian children); In re Adoption of M.T.S., 489 N.W.2d
285, 288 (Minn. Ct. App. 1992) (concluding that ICWA’s preference for
placing an Indian child with an Indian family member provides a “higher
standard of protection” for an Indian guardian than the state’s best interests
standard, which would otherwise apply in determining a child’s custodial
35
See Ind. Code §§ 31-35-2-4(b)(2) and 31-37-14-2 (2019) (setting forth a four-
element test to terminate parental rights, including that termination is “in the best interests
of the child,” and requiring proof of each element by “clear and convincing” evidence);
La. Child. code art. 1015, 1035, 1037 (2019) (stating that in order to terminate parental
rights a court must find by “clear and convincing evidence” that a parent has committed
one of an enumerated list of offenses and that it is in the “best interests of the child” to
terminate the rights); Tex. Fam. Code § 161.001 (2019) (requiring a showing by “clear
and convincing evidence” “that termination is in the best interest of the child” and that
the parent committed one of an enumerated list of offenses).
36
Some state courts have determined that certain of ICWA’s provisions do not
conflict with—and therefore do not preempt—state law but rather mandate additional
protections that state courts must implement. See, e.g., K.E. v. State, 912 P.2d 1002, 1004
(Utah Ct. App. 1996) (holding that ICWA does not preempt the state’s “statutory grounds
for termination of parental rights” but instead “requires a specific finding for termination
proceedings” that continued custody by the parent or Indian custodian is likely to result in
serious emotional or physical damage to the child “in addition to those [findings] required
by state law and imposes a separate burden of proof for that finding.” (citing 25 U.S.C.
§ 1912(f)).
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placement (citing 25 U.S.C. §§ 1915(a), 1921)). This is “no more than an
application of the Supremacy Clause.” New York, 505 U.S. at 178.
In sum, § 1912(e) and (f)’s evidentiary standards and § 1915(a) and
(b)’s placement’s preferences simply supply substantive rules enforceable in
state court and do not violate the Tenth Amendment.
ii. Sections 1915(e), 1917, and 1951(a)
We likewise find no constitutional infirmity in ICWA’s provisions
that require state courts to maintain and make available certain records
pertaining to custody proceedings involving Indian children. See 25 U.S.C.
§§ 1915(e), 1917, and 1951(a). Section 1915(e) requires state courts to retain
a record “evidencing the efforts to comply” with ICWA’s placement
preferences and “ma[k]e available” this record, upon request, to the
Secretary or an Indian child’s tribe. Id. § 1915(e). Under § 1917, once an
adopted Indian child attains majority, the state court that “entered the final
decree” of adoption “shall,” upon the Indian adoptee’s application,
“inform” her of her biological parents’ tribal affiliation and provide other
information that “may be necessary to protect any rights from the
individual’s tribal relationship.” Id. § 1917. And § 1951(a) requires state
courts to provide the federal government with a copy of the adoption decree
in any proceeding involving an Indian child. Id. § 1951(a).
Though these recordkeeping provisions arguably do not supply rules
of decision like those in §§ 1912(e)-(f) and 1915(a)-(b), the original
understanding of the Supremacy Clause nonetheless compels state courts to
effectuate their mandate. As explained in Printz v. United States, “the first
Congresses required state courts to record applications for citizenship . . .
[and] to transmit abstracts of citizenship applications and other
naturalization records to the Secretary of State.” 521 U.S. at 905-06 (citing
Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103; Act of June 18, 906 1798, ch. 54,
§ 2, 1 Stat. 567). From the dawn of the constitutional era, then, federal law
placed specific recordkeeping and sharing requirements on state courts, and
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these duties were viewed as congruent with the state courts’ obligations
under the Supremacy Clause. The history thus makes clear that this sort of
requirement cannot be considered commandeering in violation of the Tenth
Amendment. See Marsh, 463 U.S. at 790. Plaintiffs have provided no
authority for deviating from this original understanding, and so we hew to it.
State Plaintiffs contend that, rather than applying to state courts,
§§ 1915(e) and 1951(a) instead impose obligations on state agencies and
thereby violate the anticommandeering doctrine. We address these
provisions in turn and disagree with the States’ conclusion as to each.
Though § 1915(e) applies to the “State,” it does not specify whether
that term refers to state courts or agencies. The regulation implementing
§ 1915(e), however, expressly permits states to designate either their courts
or agencies as “the repository for th[e] information” required to be
maintained by § 1915(e).” 25 C.F.R. § 23.141 (“The State court or agency
should notify the BIA whether these records are maintained within the court
system or by a State agency.”). Substantively, the regulation requires only
that “court records” be maintained. 81 Fed. Reg. at 38,849-50. This
imposes no direct burden on states.
State Plaintiffs do not challenge the BIA’s construction of § 1915(e). 37
Thus, their complaint that § 1915(e) and its implementing regulation
impermissibly burdens their agencies rings hollow, given that Plaintiffs
themselves have elected to designate their agencies, rather than courts, as the
entities charged with complying with these provisions. States are not
37
Such a challenge would be unavailing in any event. Because the BIA’s
determination that state courts may maintain the records contemplated by § 1915(e) is at
minimum a reasonable interpretation of an ambiguous statute that the BIA administers, see
Miss. Band Choctaw Indians v. Holyfield, 490 U.S. at 40 n.13 (“Section 1915(e) . . . requires
the court to maintain records ‘evidencing the efforts to comply with the order of preference
specified in this section.’” (emphasis added)), it is entitled to Chevron deference. See
Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984); infra Discussion
Part II.D.
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“pressed into federal service” when they affirmatively choose to obligate
their executive, rather than judicial, officers to implement an otherwise valid
federal obligation. See Printz, 521 U.S. at 905. In other words, § 1915(e) and
its implementing regulation are not “direct orders to the governments of the
States” but rather let states exercise their discretion to require either their
courts or child welfare agencies to maintain and make available the required
records. Murphy, 138 S. Ct. at 1478. The constitutionality of these provisions
does not rise or fall based on a state’s preference.
For similar reasons, we disagree with Judge Duncan’s contention
that § 1951(a), which requires state courts to furnish adoption records to the
federal government, invalidly commandeers state agencies. Duncan,
Circuit Judge, Op. at 104-06 . Notably, no party takes this position.
This is likely because on its face the provision applies only to state courts.
See 25 U.S.C. § 1951(a) (requiring “[a]ny State court entering a final decree
or order in any Indian child adoptive placement” to provide certain records).
And the records that must be furnished by a state court pursuant to this
provision are not the type of records commonly held by state agencies;
instead, the records are naturally produced as part of state court proceedings,
and state courts are therefore in the best position to maintain and provide the
records to the federal government. 38 Id. That the regulations implementing
§ 1951(a) purport to provide states the flexibility to instead designate an
agency to fulfill the duties it imposes does not change that the law is by default
aimed at state courts. See 25 C.F.R. § 23.140 (specifying that designating an
agency relieves state courts of their obligations under § 1951(a)). And a
state’s wholly voluntary choice to utilize its political branches in place of its
38
Section 1951(a) specifically requires that the following information be supplied
to the Secretary: (1) the names and tribal affiliation of the Indian child; (2) the names and
addresses of the child’s biological parents; (3) the names and addresses of the adoptive
parents; and (4) the identity of an agency that has information relating to the child’s
adoptive placement. 25 U.S.C. § 1951(a).
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courts cannot, as we have explained, constitute commandeering of those
political branches.
We therefore conclude that state courts are bound by the Supremacy
Clause to apply §§ 1915(e), 1917, and 1951(a). 39
b. The Challenged Provisions Do Not Commandeer Other
State Actors.
We next consider whether ICWA commandeers state actors other
than state courts. Our determination that the preemption and
commandeering analyses are mirror images of one another leads us to the
conclusion that if ICWA regulates private actors—and therefore preempts
conflicting state law—it does not contravene the anticommandeering
doctrine. A survey of the Supreme Court’s precedents in this area makes
clear that a law meets this requirement so long as it establishes rights that are
legally enforceable by or against private parties. This test is necessarily
satisfied when Congress enacts a general regulation applicable to any party
who engages in an activity, regardless of whether that party is a State or
private actor. The Supreme Court has thus stressed in its Tenth Amendment
decisions that “the anticommandeering doctrine does not apply when
Congress evenhandedly regulates an activity in which both States and private
actors engage.” Murphy, 138 S. Ct. at 1478. It is unsurprising, then, that in
39
We also disagree with Judge Duncan’s asserted distinction between § 1917
and the other recordkeeping provisions. Duncan, Circuit Judge, Op. at 97-98 &-
98 n.138. Judge Duncan maintains that § 1917, which confers upon adult Indian
adoptees the right to obtain from courts information pertaining to their tribal relationship,
is a valid preemption provision because it is “best read” as regulating private actors, not
states. But the same could be said for § 1915(e), which confers rights upon Indian tribes to
obtain records. And both provisions require state courts to retain records so that an Indian
individual or tribe may later obtain them. Thus, if § 1917 is best read as applying to private
actors, so too is § 1915(e). We find it unnecessary to resolve this question, however,
because like §§ 1915(e) and 1951(a), § 1917 places duties on state courts to maintain
records—a special type of obligation that was understood from the nation’s very beginning
to validly bind state courts under the Supremacy Clause. See Printz, 521 U.S. at 905-06.
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each case in which the Court has found an anticommandeering violation, the
statute at issue directly and exclusively commanded a state’s legislature or
executive officers to undertake an action or refrain from acting without
mandating that private actors do the same.
For example, in the first modern anticommandeering case, New York
v. United States, the Supreme Court held that a federal law impermissibly
commandeered state actors 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. 505 U.S. at 175-76. The Court was clear: Congress cannot compel
“the States to enact or enforce a federal regulatory program.” Id. at 176
(emphasis added). Notably, the statute did not place any legally enforceable
rights or restrictions on private parties, instead operating only upon the
states.
Similarly, in Printz v. United States, the Court held that a provision of
the Brady Handgun Violence Prevention Act requiring state chief law
enforcement officers to conduct background checks on handgun purchasers
“conscript[ed] the State’s officers directly” and was therefore invalid. 521
U.S. at 935. The Court explained that the statute violated the
anticommandeering principle because it was aimed solely at state executive
officers, requiring them “to conduct investigation in their official capacity,
by examining databases and records that only state officials have access to.
In other words, the suggestion that extension of this statute to private citizens
would eliminate the constitutional problem posits the impossible.” Id. at 932
n.17 (N.B. that “the burden on police officers [imposed by the Brady Act]
would be permissible [under the Tenth Amendment] if a similar burden were
also imposed on private parties with access to the relevant data” (first alteration
in original) (emphasis added) (internal quotation marks and citation
omitted)). Accordingly, the Court rejected as irrelevant the Government’s
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argument that the Act imposed only a minimal burden on state executive
officers, stating 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. Again, the law did nothing to alter the rights or obligations of private
parties, but served only to bind the States.
Recently, in Murphy v. NCAA, the Court concluded that a federal law
that prohibited states from authorizing sports gambling ran afoul of the
anticommandeering doctrine. 138 S. Ct. at 1478. The statute violated state
sovereignty, the Court explained, by “unequivocally dictat[ing] what a state
legislature may and may not do.” Id. In reaching this conclusion, the Court
reviewed its Tenth Amendment jurisprudence and clarified the distinction
between statutes that impermissibly commandeer state actors and those that
may incidentally burden the states but, nevertheless, do not offend the Tenth
Amendment. The mediating principle, the Court announced, is that a
regulation is valid so long as it “evenhandedly regulates an activity in which
both States and private actors engage.” Id. at 1478. This occurs when a
statute confers either legal rights or restrictions on private parties that
participate in the activity, and thus the law is “best read” as regulating
private parties.
A review of two cases cited by Murphy in which the Court upheld
statutes imposing incidental burdens or obligations on states is instructive as
to what permissible, evenhanded regulation entails. First, in Reno v. Condon,
the Court unanimously upheld the Driver’s Privacy Protection Act (DPPA),
a federal regulatory scheme that restricted the ability of states and private
parties to disclose a driver’s personal information without consent. 528 U.S.
141, 151 (2000). In determining that the anticommandeering doctrine did not
apply, the Court distinguished the law from those invalidated in New York
and Printz:
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[T]he DPPA does not require the States in their sovereign
capacity to regulate their own citizens; rather it regulates the
States as the owners of [Department of Motor Vehicle] data
bases. It does not require the [state] 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. The statute, moreover, “applied equally to state[s] and private” resellers
of motor vehicle information. Murphy, 138 S. Ct. at 1479; see Condon, 528
U.S. at 151 (explaining that the statute was “generally applicable”). That
compliance with the DPPA’s provisions would “require time and effort on
the part of state employees” posed no constitutional problem, then, because
private actors engaged in the regulated enterprise were also subject to the
statute’s requirements. Condon, 528 U.S. at 150. In short, because the law
created restrictions enforceable against private resellers, it satisfied the “best
read” test as articulated in Murphy.
Second, in Baker v. South Carolina, the Court also rejected a Tenth
Amendment challenge to a federal enactment. 485 U.S. 505, 513-15 (1988).
At issue in that case was a 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. Id. at 507-08. The Court
treated the provision “as if it directly regulated States by prohibiting outright
the issuance of [unregistered] bearer bonds.” Id. at 511. But critically, the
provision applied not only to states but to any entity issuing the bonds,
including “local governments, the Federal Government, [and] private
corporations.” Id. at 526-27. In upholding the provision, the Court reasoned
that it merely “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 (requiring “state officials . . . to devote substantial effort” to comply
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with the statute is “an inevitable consequence” of Congress validly
regulating the state’s activity). Such a federal law thus does not commandeer
state actors, but merely establishes standards applicable to any actor who
chooses to engage in an activity that Congress may validly regulate through
legislation. See id. It creates legally enforceable obligations—in Baker, a
prohibition—that affect private parties.
As both a textual and practical matter, the provisions Plaintiffs
challenge apply “evenhandedly” to “an activity in which both States and
private actors engage.” Murphy, 138 S. Ct. at 1478. Sections 1912(a) and (d),
for example, impose notice and “active efforts” requirements, respectively,
on the “party” seeking the foster care placement of, or termination of
parental rights to, an Indian child. 40 Because plaintiffs bring a facial
challenge, there is no need to look beyond the language of these provisions—
which plainly is facially neutral, see Wash. State Grange v. Wash. State
Republican Party, 552 U.S. 442, 449-50 (2008) (“In determining whether a
law is facially invalid, we must be careful not to go beyond the statute’s facial
requirements and speculate about ‘hypothetical’ or ‘imaginary’ cases.”); see
also United States v. Raines, 362 U.S. 17, 22 (1960) (“The delicate power of
pronouncing an Act of Congress unconstitutional is not to be exercised with
reference to hypothetical cases thus imagined.”). 41 The statute applies to
40
Section 1912(a) requires “the party seeking the foster care placement of, or
termination of parental rights to, an Indian child” to “notify the parent or Indian custodian
and the Indian child’s tribe . . . of the pending proceedings and of their right to
intervention.” 25 U.S.C. § 1912(a) (emphasis added).
Section 1912(d) states that “[a]ny party seeking to effect a foster care placement
of, or termination of parental rights to, an Indian child” to “satisfy the court that active
efforts have been made to provide remedial services . . . to prevent the breakup of the Indian
family and that these efforts have proved unsuccessful.” Id. § 1912(d) (emphasis added).
41
Our court recently reaffirmed this principle. In Freedom Path, Inc. v. Internal
Revenue Service, we examined a facial challenge to an IRS Revenue Ruling by an
organization that had received a proposed denial from the IRS of its application for tax-
exempt status. See 913 F.3d 503, 506 (5th Cir. 2019). We explained that “[t]o find the
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any party seeking a foster care placement or the termination of parental
rights, regardless of whether that party is a state agent or private individual.
Id.
Furthermore, even were we to consider how these provisions are
actually applied in child custody proceedings, it is clear that they do in fact
apply to private parties. ICWA defines “foster care placement” to embrace
“any action removing an Indian child from its parent or Indian custodian for
temporary placement in a foster home or institution or the home of a guardian
or conservator.” 25 U.S.C. § 1903(1)(i) (emphasis added). As Defendants
observe, actions to appoint guardians or conservators are often private
actions that do not involve the state as a party. See, e.g., J.W. v. R.J., 951 P.2d
1206, 1212-13 (Alaska 1998) (determining that a custody dispute between a
father and stepfather constituted a “foster care placement” under ICWA);
In re Guardianship of J.C.D., 686 N.W.2d 647, 649 (S.D. 2004); In re Custody
of C.C.M., 202 P.3d 971, 977 (Wash. C.t App. 2009) (holding that
grandparents’ petition for nonparental custody of their Indian grandchild
“qualifies as an action for foster care placement under ICWA”). Similarly,
private parties may bring proceedings to terminate parental rights. See, e.g.,
Tex. Fam. Code. Ann. § 102.003 (permitting, among others, a
“parent,” “the child through a court-appointed representative,” or “a
guardian” to bring such an action); 33 Tex. Prac. Handbook of Tex.
unconstitutionality [the organization] claims requires that we go beyond the language of the
Revenue Ruling and analyze the way in which the IRS applies it beyond the text. On a facial
challenge, however, we do not look beyond the text . . . [A] facial challenge to a statute considers
only the text of the statute itself, not its application to the particular circumstances of an
individual.” Id. at 508 (internal quotation marks and citations omitted) (emphasis added)
(quoting Field Day, LLC v. Cnty. of Suffolk, 463 F.3d 167, 174 (2d Cir. 2006)). And, even
if we were to construe Plaintiffs’ complaint as an as-applied challenge, the proper remedy
would not be the wholesale invalidation of the statutory provisions that the district court’s
order effected and for which Plaintiffs and Judge Duncan argue. Rather, demonstrating
that the statute may be applied unconstitutionally warrants only an injunction against the
statute being applied in that unconstitutional manner. See Citizens United v. Fed. Election
Comm’n, 558 U.S. 310, 331 (2010).
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Family Law § 19:2 (2018); see also Matter of Adoption of T.A.W., 383 P.3d
492, 496 (Wash. 2016) (holding that ICWA’s “active efforts provision . . .
appl[ies] to privately initiated terminations” and remanding for trial court to
determine whether “active efforts ha[d] been” made to prevent the breakup
of the Indian family); D.J. v. P.C., 36 P.3d 663, 673 (Alaska 2001) (“[W]e
hold that ICWA applies to termination proceedings when a party other than
the state seeks the termination.”); S.S. v. Stephanie H., 388 P.3d 569, 573–74
(Ariz. Ct. App. 2017) (“[W]e conclude that ICWA applies to a private
termination proceeding just as it applies to a proceeding commenced by a
state-licensed private agency or public agency.”); In re N.B., 199 P.3d 16, 19
(Colo. App. 2007) (“ICWA’s plain language is not limited to action by a
social services department.”). Thus, from both a textual and practical
standpoint, it cannot seriously be disputed that these provisions apply to
private parties. See 25 U.S.C. § 1903(1)(i); J.W., 951 P.2d at 1212-13.
Similarly, § 1912(e) and (f)—which require qualified expert witness
testimony before, respectively, either the foster care placement of, or
termination of parental rights to, an Indian child—are also evenhanded
regulations that do not effect an invalid commandeering. 42 Neither provision
expressly refers to state agencies. And when read in conjunction with
§ 1912(d)’s language placing burdens on “[a]ny party” involved in foster
care or parental termination proceedings relating to Indian children,
§ 1912(e) and (f) must also reasonably be understood to apply to “any party”
42
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.” 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,
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.” Id. § 1912(f).
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engaged in these proceedings. This understanding, moreover, comports with
how state courts have read and applied these provisions. See, e.g., In re
Mahaney, 51 P.3d 776, 786 (Wash. 2002) (holding that § 1912(e)’s expert
witness requirement applied to an action exclusively between private
parties—an Indian mother and her children’s paternal grandmother—
regarding a foster care placement); D.J., 36 P.3d at 673 (holding that
§ 1912(f) applied to an action between an Indian child’s maternal
grandmother and his biological father regarding the termination of the
father’s parental rights); Matter of Baby Boy Doe, 902 P.2d 477, 484 (Idaho
1995) (holding that prospective adoptive parents satisfied “their burden of
proof” under § 1912(f) “with testimony of [a] qualified expert witness[]”).
Thus, § 1912(e) and (f), like § 1912 (a) and (d), are generally applicable
provisions. See Murphy, 138 S. Ct. at 1478; see also Condon, 528 U.S. at 151.
State Plaintiffs’ contention that the aforementioned provisions
commandeer state executive officers is reminiscent of the argument made by
South Carolina—and rejected by the Court—in Condon. There, South
Carolina claimed that the DPPA “thrusts upon the States all of the day-to-
day responsibility for administering its complex provisions . . . and thereby
makes state officials the unwilling implementors of federal policy.” 528 U.S.
at 149-50 (internal quotation marks omitted). But ICWA, like the DPPA,
does not require states “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. at 151. Unlike the statutes in New York,
Printz, and Murphy, § 1912 does not create obligations or restrictions
enforceable solely against states. See Murphy, 138 S. Ct. at 1481 (determining
that a provision of the gambling regulation at issue did not constitute a valid
“preemption provision because there is no way in which [it] c[ould] be
understood as a regulation of private actors”) (emphasis added); Printz, 521
U.S. at 932 n.17 (explaining that extending “to private citizens” the federal
statute’s directives “posits the impossible”); New York, 505 U.S. at 160
(“[T]his is not a case in which Congress has subjected a State to the same
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legislation applicable to private parties.”). Instead, its provisions simply
impose the same, generally applicable burden on any party engaged in a
custody proceeding involving an Indian child. Cf. Condon, 528 U.S. at 151
(noting that the regulation of data bases applied to “private resellers” of
motor vehicle information along with states); Baker, 485 U.S. at 526-27
(stating that the requirement that bearer bonds be registered in order to be
eligible for a federal income tax exemption applied to “local governments,
the Federal Government, [and] private corporations”). Thus, § 1912 (a),
(d), (e), and (f) “evenhandedly regulate[] an activity in which both States and
private actors engage,” and the anticommandeering doctrine does not apply.
See Murphy, 138 S. Ct. at 1478.
Judge Duncan posits two reasons why the evenhandedness
principle ought not apply to the challenged provisions. First, he asserts that
ICWA compels states to regulate private individuals. Duncan, Circuit
Judge, Op. at 89-91. Not so. As discussed, ICWA is a comprehensive
federal regulatory scheme that regulates private individuals by creating rights
and restrictions in favor of Indian individuals and tribes in child custody
proceedings involving Indian children. In so doing, ICWA places legal
obligations on parties to these proceedings, whether individuals or state
actors. See Condon, 528 U.S. at 150 (finding no anticommandeering problem
in the fact that compliance with the DPPA would “require time and effort on
the part of state employees”). Just as the DPPA “regulate[d] the States as
the owners of data bases,” id. at 151, ICWA regulates the states as
participants in Indian child custody proceedings—placing the same
requirements on states as it does on any private party. This fits the bill of an
evenhanded regulation. 43
43
Judge Duncan’s assertion that ICWA imposes “critical duties” on state
actors is irrelevant to determining whether the statute is consistent with the
anticommandeering doctrine. Duncan, Circuit Judge, Op. at 91. Nowhere in the
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Second, Judge Duncan asserts that ICWA regulates states in their
sovereign capacity. Duncan, Circuit Judge, Op. at 91-92. Whereas
Congress regulated states as participants in the market for bonds in Baker and
the market for driver’s information in Condon, Judge Duncan contends
that ICWA does not regulate states as market participants but rather as
sovereigns carrying out their duty to protect children. But in Condon, the
statute at issue “regulate[d] the disclosure of personal information contained
in the records of state motor vehicle departments.” 528 U.S. at 143. The
regulation of motor vehicles, of course, is a quintessential state function. As
explained above, the provision was nevertheless upheld because it
“regulate[d] the States as the owners of data bases;” that is, as participants
in the market for drivers’ personal information. Id. at 151. The situation is
the same here. Though family law is as a general matter committed to the
states, but see, e.g., McCarty, 453 U.S. at 235-36, the activity at issue here—
child custody proceedings—involves private parties as litigants. 44 ICWA,
Court’s commandeering cases has it made mention of, or found dispositive, whether the
obligations imposed on states by a regulation were important to the statutory scheme’s
success. In Condon, for example, that the DPPA’s restrictions applied to states was surely
“crucial” to the law’s efficacy. See 528 U.S. at 143-44 (noting that “Congress found that
many States . . . sell driver’s personal information” and that the statute “establishes a
regulatory scheme” that expressly “restricts the States’ ability to disclose a driver’s
personal information”); id. at 143 (citing 139 Cong. Rec. 9468 (Nov. 16, 1993)
(explaining that a purpose of “this legislation is to protect a wide range of individuals, [to]
protect them from the State agencies [that,] often for a price, a profit to the State, [] release
lists”) (statement of Sen. Warner)); see also Baker, 485 U.S. at 510-11 (noting that the
challenged provision “completes th[e] statutory scheme” setup by Congress). The
evenhandedness inquiry does not turn on whether the statute imposes “critical” duties—
or even “trivial” duties, for that matter—on states, but rather whether those duties apply
equally to both states and private actors. See Murphy, 138 S. Ct. at 1478.
44
Citing Printz, Judge Duncan also asserts that the “salient question” in
determining whether the evenhandedness exception applies is “whether a federal law
requires states officials to act ‘in their official capacity’ to implement a federal program.”
Duncan, Circuit Judge, Op. at 93 (quoting Printz, 521 U.S. at 932 n.17). This test
cannot be squared with the Court’s cases. In Condon, for example, compliance with the
DPPA required action by state officials acting in their official capacity. See 528 U.S. at 150
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then, “regulates the States as” participants in these proceedings, and the
reasoning of Baker and Condon applies equally here.
Because § 1912 (a), (d), (e), and (f) are “evenhanded,” we conclude
they are necessarily “best read” as pertaining to private actors within that
phrase’s meaning in Murphy. Id. at 1478, 1479. This follows from our earlier
conclusion that a law is “best read” as regulating private actors—and
therefore can be given preemptive effect—when it creates legal rights and
obligations enforceable by or against private actors. Because an evenhanded
regulation genuinely applies to private parties (as well as states), it necessarily
establishes legal rights and obligations applicable to private parties (as well as
states).
This is demonstrated by even a cursory review of § 1912 (a), (d), (e),
and (f). The obligations the provisions impose are enforceable against any
private party seeking a foster placement for, or the termination of parental
rights to, an Indian child. And, viewed inversely, these obligations are an
array of rights in favor of and enforceable by private parties. Section 1912(a)
grants Indian parents and tribes the right to notice of pending child custody
proceedings. Id. § 1912(a). Further, § 1912(d) grants to Indian children,
tribes, and families the right to maintain their tribal and family unit “subject
(“We agree with South Carolina’s assertion that the DPPA’s provisions will require time
and effort on the part of state employees . . . .”); see also Baker, 485 U.S. at 514-15 (“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.”). The salient question, rather, is whether the
statute applies equally to both states and private actors. This is clear from the portion of
Printz Judge Duncan purports to rely on. As the Court in Printz explained, the
background check requirement at issue “undoubtedly” would have been consistent with the
anticommandeering doctrine if its burdens could have been extended equally to both state
actors and private actors. 521 U.S. at 932 n.17 (emphasis added). The problem, however,
was that the burden the statute placed on state law enforcement officers by its very nature
could not possibly be borne by private persons. Id. (“[T]he suggestion that extension of
this statute to private persons would eliminate the constitutional problem posits the
impossible.”).
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only to certain (federal) constraints.” Id. § 1912(d); Murphy, 138 S. Ct. at
1480. Specifically, the provision confers upon private actors an enforceable
right to demand in custody proceedings that “active efforts” be made to keep
an Indian family intact before the foster care placement of, or termination of
parental rights to, an Indian child. See D.J., 36 P.3d at 674 (reversing the
termination of parental rights to an Indian child because, inter alia, the trial
court failed to make findings as to whether active efforts had been made to
prevent the breakup of the Indian family). Sections 1912(e) and (f) similarly
provide enforceable federal rights to Indian parents to maintain their families
absent testimony from qualified expert witnesses regarding detriment to the
child from the parents’ continued custody. 25 U.S.C. § 1912(e), (f).
Plaintiffs’ argument that ICWA is not evenhanded—and thus is not
best read as applying to private parties—because state actors are more
frequently bound by its provisions is also misplaced. As an initial matter, a
“best read” inquiry that turns on the factual question of whom is most likely
to engage in the regulated conduct would demand record evidence that is
absent here, and there is no indication that the Supreme Court has ever
performed such a fact-bound evaluation as part of its commandeering
analyses. More importantly, an “evenhanded” law is “best read” as
regulating private parties not because its burdens may happen to fall upon
states more or less frequently than private actors as a factual matter, but
instead, as we have explained, because such a law necessarily establishes rights
or obligations that are legally enforceable by or against private parties.
The Murphy Court’s discussion of Morales v. Trans World Airlines,
Inc., in which the Court considered whether the federal Airline Deregulation
Act of 1978 (ADA) preempted States from passing their own laws prohibiting
allegedly deceptive airline fare advertisements, confirms this conclusion. Id.
at 1480 (citing Morales, 504 U.S.at 391). At issue in Morales was a provision
of the ADA that removed earlier federal airline regulations. 504 U.S. at 378.
“To ensure that the States would not undo federal deregulation with
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regulation of their own,” the ADA provided that “no State or political
subdivision thereof . . . shall enact or enforce any law, rule, regulation,
standard or other provision having the force and effect of law relating to rates,
routes, or services of any [covered] air carrier.” Murphy, 138 S. Ct. at 1480
(alteration in original) (quoting 49 U.S.C. § 1305; Morales, 504 U.S. at 378).
The Court held that the provisions validly preempted state law. Id. at 391.
As the Court in Murphy explained:
[t]his language [in the ADA] might appear to operate directly
on the States [and thus constitute an invalid attempt at
preemption], but it is a mistake to be confused by the way in
which a preemption provision is phrased . . . [I]f we look
beyond the phrasing employed in the Airline Deregulation
Act’s preemption provision, it is clear that this provision
operates just like any other federal law with preemptive effect.
It confers on private entities (i.e., covered carriers) a federal
right to engage in certain conduct subject only to certain
(federal) constraints.
Id. at 1480. The Court’s analysis did not turn on the frequency with which
state and private actors engaged in the regulated conduct; indeed, it is
axiomatic that private actors could not regulate airlines. Rather, as the
Murphy Court made clear, what was dispositive in determining that the
statute was “best read” as regulating private actors—and thus preempted
state law —was that it created legally enforceable private rights. Id. at 1480.
Accordingly, Plaintiffs’ argument is of no moment. Sections 1912 (a), (d),
(e), and (f) are evenhanded regulations, and they therefore do not violate the
anticommandeering doctrine and may validly preempt conflicting state law.
Although Plaintiffs limit their arguments on appeal primarily to the
aforementioned portions of § 1912, the district court’s ruling that ICWA
violates the anticommandeering doctrine was far more sweeping, invalidating
all portions of the statute that alter the substantive law applicable in cases
arising out of state causes of action. As discussed, the district court’s theory
that ICWA commandeers state courts in this manner is based on a flawed
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premise. See supra Discussion Part II.A.2.i. ICWA’s provisions beyond
those already discussed in § 1912 also validly preempt conflicting state law
because they are part of a comprehensive statute, the “whole object of”
which, Printz, 521 U.S. at 900, is to “confer[] on private entities”—namely
Indian children, families, and tribes—“a federal right.” Murphy, 138 S. Ct.
at 1480; see 25 U.S.C. § 1902 (declaring Congress’s policy in enacting ICWA
of “protect[ing] the best interests of Indian children and promot[ing] the
stability and security of Indian families and tribes”). An inquiry into ICWA’s
individual provisions, moreover, reveals that they operate to confer rights on
private actors. For instance, § 1911, grants the Indian custodian of an Indian
child and that child’s tribe the right to intervene in child custody
proceedings. 45 Section 1912(b) confers upon indigent Indian parents “the
right to court-appointed counsel in any removal, placement, or termination
proceeding.” Id. § 1912(b). And § 1913(b) affords Indian parents the right
to withdraw their consent to a foster care placement at any time. Id.
§ 1913(b). 46
45
Several jurisdictions have recognized that § 1911(c) creates federal rights in favor
of tribes and therefore have concluded that the provision preempts otherwise applicable
state law permitting only licensed attorneys to represent parties. See, e.g., In re Elias L., 767
N.W.2d 98, 104 (Neb. 2009). These courts have explained that the tribal right to intervene
is unfettered and that otherwise applicable state law would “not only burden the right of
tribal intervention, it will essentially deny that right in many cases.” State ex rel. Juvenile
Dep’t of Lane Cnty. v. Shuey, 850 P.2d 378, 381 (Or. Ct. App. 1993); see also In re N.N.E.,
752 N.W.2d 1, 12 (Iowa 2008); J.P.H. v. Fla. Dep’t of Children & Families, 39 So. 3d 560
(Fla. Dist. Ct. App. 2010) (per curiam). In essence, these state courts have understood that
they are bound to permit tribes to intervene without being represented by licensed counsel
because to require otherwise would “frustrate[] the deliberate purpose of Congress” in
enacting this measure. Hillman, 569 U.S. at 494 (internal quotation marks and citation
omitted).
46
ICWA’s placement preference provisions, § 1915(a) & (b), likewise create
federal rights for Indian children, tribes, and families that apply in Indian child custody
proceedings. Because the placement preferences are valid premptive federal laws, state
adjudicators are bound under the Supremacy Clause to apply these provisions. See supra
Discussion Part II.A.2.a(i).
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Given that the entire purpose and effect of the provisions the district
court erroneously invalidated is to confer rights and protections upon private
actors, viz., Indian tribes, families, and children, we conclude that they are
“best read” as regulating private parties. Murphy, 138 S. Ct. at 1479, 1480
(“In sum, regardless of the language used by Congress . . . , every form of
preemption is based on a federal law that regulates the conduct of private
actors, not the States.”). That the Supremacy Clause prevents states from
interfering with these federal rights does not transform ICWA into an
unconstitutional command to state actors. See Murphy, 138 S. Ct. at 1480.
Rather, such a restriction on states is inherent to preemption. See id. at 1479.
Indeed, Judge Duncan acknowledges that the placement preferences apply in
state court and preempt contrary state law. He broadly suggests, however, that the
placement preferences also separately “direct action by state agencies and officials.”
Duncan, Circuit Judge, Op. at 83-84. But reading the placement-preference
provisions to require state agencies to perform executive or legislative tasks is contrary to
the statute’s plain text. The provisions merely require the body adjudicating an Indian
child custody proceeding to apply the preferences contained therein in deciding contested
claims unless there is good cause not to. See 25 U.S.C. § 1915(a) (“In any adoptive
placement of an Indian child . . ., a preference shall be given, in the absence of good cause
to the contrary . . . .); id. § 1915(b) (“In any foster care or preadoptive placement, a
preference shall be given, in the absence of good cause to the contrary . . . .”).
As Judge Duncan concedes, this straight-forward interpretation does not
present an anticommandeering problem. See New York, 505 U.S. at 178-79 (“Federal
statutes enforceable in state courts 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.”); cf. Murphy, 138 S. Ct. at 1480-81 (observing that “every form of preemption is
based on a federal law that regulates the conduct of private actors” and invalidating a
federal statute that barred states from authorizing sports gambling because the statute did
“not confer any federal rights on private actors” and instead could be understood only as
“a direct command to the States”). Judge Duncan’s interpretation of § 1915(a) & (b)
as separately directing state administrative action—which he argues is unconstitutional—
is thus not only plainly unreasonable given the text of the statute, but also contrary to settled
canons of statutory construction. See United States v. Jin Fuey Moy, 241 U.S. 394, 401
(1916) (stating that a statute must be interpreted to avoid constitutional doubt if reasonably
possible).
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It would thus be error on multiple levels to conclude that ICWA
unconstitutionally commandeers state actors, and we decline to do so. 47
47
The opposing opinion again makes much of the unremarkable fact, already
discussed above, see supra note 21, that though Congress may hold plenary authority over a
given field of legislation, any laws passed pursuant to that plenary power must still be
consistent with the anticommandeering doctrine and other constitutional principles. See
Duncan, Circuit Judge, Op. at 27-29. In a misguided attempt to illustrate this
point, the opposing opinion conjures up various hypothetical federal laws concerning
subjects on which Congress exercises exclusive legislative authority that would alter the
rules applicable to various state causes of actions in state proceedings. For example, the
opposing opinion imagines a federal law “mandating different comparative fault rules in
state court suits involving Swedish visa holders,” and appears to postulate that,
notwithstanding Congress’s plenary power in regulating commerce with foreign nations,
see U.S. Const. art. I, § 8, cl. 3, such a law would be beyond Congress’s legislative
authority. Duncan, Circuit Judge, Op. at 29.
First, these are far-fetched, counterfactual, law-school exam hypotheticals that are
wholly detached from the kind of real and pressing human problems that ICWA addresses;
rational legislators would neither see the need for such legislation nor enact such unfair and
unworkable laws. As Justice Frankfurter observed, “[t]he process of Constitutional
adjudication does not thrive on conjuring up horrible possibilities that never happen in the
real world and devising doctrines sufficiently comprehensive in detail to cover the remotest
contingency. Nor do we need go beyond what is required for a reasoned disposition of the
kind of controversy now before the Court.” Garcia, 469 U.S. 528 (quoting New York v.
United States, 326 U.S. 572, 583 (1946) (Frankfurter, J.)). Though a ridiculous law can be
imagined, it is unnecessary to fence off an inviolable area of sovereignty reserved to the
states in order to prevent it. And it bears emphasizing that we nowhere contend, as Judge
Duncan pretends, that Tenth Amendment principles like the anticommandeering
doctrine “vanish” in the face of Congress’s plenary authority over Indian affairs.
Duncan, Circuit Judge, Op. at 69. This is a strawman, as evidenced by the fact
that we specifically address Plaintiffs’ anticommandeering contentions after concluding
that ICWA is within the subject matter upon which Congress is authorized to legislate.
Moreover, it is unclear precisely what point Judge Duncan is attempting to
make with his parade of supposed horribles. He appears to consider it obvious that his
imagined laws would “of course” exceed Congress’s power solely because they set
standards applicable to state causes of action in state court proceedings. Duncan,
Circuit Judge, Op. at 35. But, as Judge Duncan himself fully acknowledges
elsewhere in his opinion, it is well established that Congress can validly set substantive
standards in state court proceedings when acting pursuant to its Article I powers, including
by “altering” the substance of state causes of action. Duncan, Circuit Judge, Op.
at 102-03 (“The Supreme Court has ruled that federal standards may supersede state
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To summarize, ICWA is a law of the United States made in pursuance
of the Congress’s constitutional authority. Further, ICWA does not violate
the anticommandeering doctrine because it does not directly command state
legislatures or executive officials to enact or administer a federal program.
Rather, any burden it places on state actors is incidental and falls
evenhandedly on private parties participating in the same regulated activity.
Under the Supremacy Clause, then, ICWA is the supreme law of the land,
and judges in every state shall be bound thereby. ICWA and the Final Rule
therefore preempt conflicting state law, and the district court erred by
concluding otherwise.
B. 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.
standards even in realms of traditional state authority such as family and community
property law. . . . [W]henever a federal standard supersedes a state standard, the federal
standard can be said to ‘modify a state created cause of action.’”); see also Jinks, 538 U.S.
at 464-65 (holding that federal laws that “change the ‘substance’ of state-law rights of
action” do not violate state sovereignty). And, while Judge Duncan expresses some
doubt as to Congress’s authority to regulate the procedure by which state courts’ handle
state-created causes of action, he wholly concedes that ICWA creates substantive
standards, not procedural ones. Duncan, Circuit Judge, Op. at 102 (“ICWA
enacts substantive child-custody standards applicable in state child custody proceedings . .
. To the extent those substantive standards compel state courts . . . we conclude they are
valid preemption provisions.”). Thus, if Judge Duncan is arguing that his hypothetical
laws would outstrip Congress’s power because they would regulate state court procedure
rather than substance, he has already conceded that ICWA is not like those laws. And if he
is arguing that the laws would be unconstitutional merely because they apply to state causes
of actions in state court proceedings, his position is squarely contradicted by on-point
Supreme Court precedent and his own words in this very case.
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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 Mancari, 417 U.S.
at 555. This means that the law is strongly presumed to be constitutional,
and we will invalidate it only when the classification bears no rational
connection to any legitimate government purpose. See F.C.C. v. Beach
Commc’ns, Inc., 508 U.S. 307, 314-15 (1993).
The district court granted summary judgment to the Plaintiffs,
concluding that § 1903(4)—setting forth ICWA’s definition of “Indian
child” for purposes of determining when ICWA applies in state Indian child
custody proceedings—is a racial classification that cannot withstand strict
scrutiny. 48 Because ICWA’s provisions are based on classifications of
Indians, such as “Indian child,” “Indian family,” and “Indian foster home,”
we must first examine whether these are political or race-based classifications
and thus which level of scrutiny applies. “We review the constitutionality of
federal statutes de novo.” Nat’l Rifle Ass’n of Am., Inc. v. Bureau of Alcohol,
Tobacco, Firearms, & Explosives, 700 F.3d 185, 192 (5th Cir. 2012).
1. Level of Scrutiny
Congress has exercised plenary power “over the tribal relations of the
Indians . . . from the beginning.” Lone Wolf, 187 U.S. at 565. 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
48
As described above, we conclude that Plaintiffs have standing to challenge 25
U.S.C. § 1915(a) to (b) and Final Rule §§ 23.129 to 23.132 on equal protection grounds.
The district court’s analysis of whether the ICWA classification was political or race-based
focused on § 1903(4), presumably because § 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.
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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 the foundational case of Morton v. Mancari, the Supreme Court
rejected an equal-protection challenge to a BIA employment preference for
Indians over non-Indians that applied regardless of whether the Indian
beneficiary lived or worked on or near a reservation. Id. at 539 n.4, 555. The
Court began by noting that Congress has repeatedly enacted preferences for
Indians like the one at issue and that these preferences have several
overarching purposes: “to give Indians a greater participation in their own
self-government; to further the Government’s trust obligation toward the
Indian tribes; and to reduce the negative effect of having non-Indians
administer matters that affect Indian tribal life.” Id. at 541-42 (footnotes
omitted). The Court then stated that central to the resolution of whether the
preference constituted a political or racial classification was “the unique legal
status of Indian tribes under federal law and . . . the plenary power of
Congress, based on a history of treaties and the assumption of a ‘guardian-
ward’ status, to legislate on behalf of federally recognized Indian tribes.” Id.
at 551.
In view of this “historical and legal context,” the Court upheld the
preference, determining that it served a “legitimate, nonracially based goal.”
Id. at 553-54. Specifically, the preference was “reasonably designed to
further the cause of Indian self-government and to make the BIA more
responsive to the needs of its constituent groups.” Id. at 554. Significantly,
the Court observed that because the preference was limited to members of
federally recognized tribes, it thus was “not directed towards a ‘racial’ group
consisting of ‘Indians’ . . . In this sense, the preference is political rather than
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racial in nature.” Id. at 553 n.24. This was true even though individuals were
also required to possess “one-fourth or more degree Indian blood” to be
eligible for the preference. Id. The ruling, moreover, was consistent with
“numerous’ Court decisions upholding legislation that singled out Indians
for special treatment. Id. at 554-55. The Court concluded its opinion by
broadly holding that “[a]s long as the special treatment can be tied rationally
to the fulfillment of Congress’ unique obligation toward the Indians, such
legislative judgments will not be disturbed.” Id. at 555.
The district court erroneously construed Mancari narrowly and
sought to distinguish it from ICWA for two primary reasons. First, the
district court read Mancari’s blessing of special treatment for Indian to be
limited to laws “directed at Indian self-government and affairs on or near
Indian lands.” The district court apparently concluded that ICWA did not
meet either of these requirements, and reasoned that strict scrutiny therefore
applied. Second, the district court observed that ICWA’s definition of Indian
child—which includes children under eighteen years of age who are eligible
for membership in a federally recognized tribe and have a biological parent
who is a member of a tribe, 25 U.S.C. § 1903(4)(b)—extends beyond
members of federally recognized tribes, whereas the preference in Mancari
was restricted to current tribal members and thus “operated to exclude many
individuals who are racially to be classified as Indians.” Citing tribal
membership laws that include a requirement of lineal descent, see, e.g.,
Navajo Nation Code § 701, the district court concluded that, since
ICWA covers Indian children who are eligible for membership in a tribe,
“[t]his means one is an Indian child [within the meaning of ICWA] if the
child is related to a tribal ancestor by blood.” In the view of the district court,
ICWA therefore “uses ancestry as a proxy for race,” and the law is therefore
subject to strict scrutiny.
We disagree with the district court’s reasoning and conclude that
Mancari stands for the broader proposition that as long as “legislation that
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singles out Indians for . . . special treatment can be tied rationally to the
fulfillment of Congress’ unique obligation toward the Indians,” the statute
“will not be disturbed.” Mancari, 417 U.S. at 554-55. In other words, if a
statute is reasonably related to the special government-to-government
political relationship between the United States and the Indian tribes, it does
not violate equal protection principles. Mancari—and its progeny—confirm
that classifications relating to Indians need not be specifically directed at
Indian self-government to be considered political classifications for which
rational basis scrutiny applies. Id. at 555 (“As long as the special treatment
can be tied rationally to the fulfillment of Congress’ unique obligation toward
the Indians, such legislative judgments will not be disturbed.”); see also, e.g.,
Washington v. Confederated Bands & Tribes of Yakima Indian Nation, 439 U.S.
463, 500-01 (1979) (“It is settled that ‘the unique legal status of Indian tribes
under federal law’ permits the Federal Government to enact legislation
singling out tribal Indians, legislation that might otherwise be constitutionally
offensive.” (quoting Mancari, 417 U.S. at 551-52)).
In United States v. Antelope, for instance, the Court expressly
recognized that, although some of its earlier decisions relating to Indians
“involved preferences or disabilities directly promoting Indian interests in
self-government,” its precedent “point[s] more broadly to the conclusion
that federal regulation of Indian affairs is not based upon impermissible
classifications.” 430 U.S. 641, 646-47 (1977) (first citing Mancari, 417 U.S.
at 553 n.24; then citing Fisher v. District Court, 424 U.S. 382 (1976) (per
curiam)) (holding that a federal statute subjecting individual Indians to
federal criminal jurisdiction due to their status as tribal members did not
violate equal protection); see also, e.g., Washington v. Wash. State Comm.
Passenger Fishing Vessel Ass’n, 443 U.S. 658, 673 n.20 (1979) (determining
that a treaty granting Indians certain preferential fishing rights did not violate
equal protection because the Court “has repeatedly held that the peculiar
semisovereign and constitutionally recognized status of Indians justifies
special treatment on their behalf when rationally related to the Government’s
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‘unique obligation toward the Indians’” (quoting Mancari, 417 U.S. at 555));
Moe v. Confederated Salish & Kootenai Tribes, 425 U.S. 463, 479-80 (1976)
(sustaining tribal members’ immunity from state sales tax for cigarettes sold
on the reservation and explaining that “[a]s long as the special treatment can
be tied rationally to the fulfillment of Congress’ unique obligation toward the
Indians, such legislative judgments will not be disturbed.” (quoting Mancari,
417 U.S. at 555)).
Moreover, even if preferences for Indians were limited to those
directly furthering tribal self-government—a proposition that, as
demonstrated, is unsupportable—it is clear that ICWA is aimed squarely at
this legislative purpose. As discussed, prior to enacting ICWA, Congress
considered testimony about the devastating impacts of removing Indian
children from tribes and placing them for adoption and foster care in non-
Indian homes. See supra Background Part IV. The Tribal Chief of the
Mississippi Band of Choctaw Indians, we noted, testified that “the chances
of Indian survival are significantly reduced” by removing Indian children
from their homes and raising them in non-Indian households where they are
“denied exposure to the ways of their People . . . [T]hese 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.” Hearing on S. 1214 before the S. Select. Comm. on Indian
Affairs, 95th Cong. 157 (1977).
This testimony undoubtedly informed Congress’s finding that
children are the most vital resource “to the continued existence and integrity
of Indian tribes,” which itself reflects Congress’s intent to further tribal self-
government. 25 U.S.C. § 1901(3). Moreover, the Supreme Court has
recognized that in enacting ICWA, “Congress was concerned not solely
about the interests of Indian children and families, but also about the impact
on the tribes themselves of the large numbers of Indian children adopted by
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non-Indians. The numerous prerogatives accorded the tribes through
ICWA’s substantive provisions must, accordingly, be seen as a means of
protecting not only the interests of individual Indian children and families,
but also of the tribes themselves.” Holyfield, 490 U.S. at 50 (internal citations
omitted)); see also id. (noting evidence before Congress at the time ICWA was
considered that the “[r]emoval of Indian children from their cultural setting
seriously impacts . . . long-term tribal survival” (quoting S. Rep. No. 597,
95th Cong., 2d Sess. 52 (1977)). Thus, it is clear that Congress intended
ICWA to further both tribal self-government and the survival of tribes. See
25 U.S.C. § 1901(3); see also Cohen’s, supra § 11.01[2] (“ICWA’s
objective of promoting the stability and security of Indian tribes and families
encompasses the interest of Indian nations in their survival as peoples and
self-governing communities . . . .”).
We also are unpersuaded by the district court’s reasoning that
differential treatment for Indians is only subject to rational basis review when
it applies to Indians living on or near reservations. 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.” (quoting United States v. Ramsey, 271 U.S. 467, 471 (1926));
Perrin, 232 U.S. at 482 (acknowledging Congress’s power to regulate Indians
“whether upon or off a reservation and whether within or without the limits
of a state”). And courts have repeatedly upheld government preferences for
Indians, regardless as to whether the Indians receiving “special treatment”
were located on or near a reservation. See, e.g., Am. Fed’n of Gov’t Emps. v.
United States, 330 F.3d 513, 516, 521 (D.C. Cir. 2003) (rejecting an equal
protection challenge to a federal defense spending measure that provided a
contracting preference for firms with less than “51 percent Native American
ownership” even though the preference was “not restricted to Indian
activities on or near reservations or Indian land”). Indeed, the preference in
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Mancari itself did not require that the Indians benefiting from the
employment preference live on or near a reservation, and the non-Indian
employees who challenged the preference averred that “none of them [were]
employed on or near an Indian reservation.” Mancari, 417 U.S. at 539 n.4.
The district court’s additional rationale for finding an equal
protection violation here—that unlike the statute in Mancari, ICWA’s
definition of Indian child extends to children who are only eligible for
membership but not-yet enrolled in a tribe—is also flawed. Though the
district court made much of the fact that a child’s tribal eligibility generally
turns on having a blood relationship with a tribal ancestor, this does not
equate to a proxy for race, as the district court believed.
Originally, Indian tribes “were self-governing sovereign political
communities.” Wheeler, 435 U.S. at 322-23; see also Sarah Krakoff,
Inextricably Political: Race, Membership, and Tribal Sovereignty, 87 Wash. L.
Rev. 1041 (2012) [hereinafter Krakoff]. The Constitution, moreover,
recognizes tribes’ political status both explicitly and implicitly. See, e.g.,
U.S. Const. art. I, § 8 (empowering Congress “to regulate commerce
with foreign Nations, among the several States, and with the Indian Tribes”).
And as explained, the history of the post-ratification period demonstrates
that the federal government treated tribes as quasi-sovereigns from the very
start. 49 See Ablavsky, Beyond the Indian Commerce Clause, supra at 1061-67.
Though the relationship between the government and the tribes has evolved
since then, it has always been considered a relationship between political
49
To be sure, this course of dealing was not between powers on equal footing; the
Court, as noted, has described the tribes as “wards of the nation” and “dependent on the
United States,” which, in turn, owes a “duty of protection” to Indian tribes. Kagama, 118
U.S. at 383-84 (emphasis omitted); see also Mancari, 417 U.S. at 551 (characterizing the
relationship between the tribes and federal government as that of “guardian-ward”). But
this dependent, quasi-sovereign status does not change that tribes are fundamentally
political bodies with whom the federal government must manage relations as with any other
nation.
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entities. See Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831)
(Marshall, C.J.) (describing Indian tribes as “domestic dependent nations”);
Kahawaiolaa v. Norton, 386 F.3d 1271, 1278 (9th Cir. 2004) (“Historically,
the formal relationship between the United States and American Indian
tribes has been political, rather than race-based.”); Cohen’s, supra
§ 4.01[1][a]; see generally Krakoff, supra, at 1060-78.
Beginning in 1934 with passage of the Indian Reorganization Act, the
federal government entered into a new chapter wherein it officially
acknowledged Indian tribes’ rights of self-governance by authorizing tribes
to apply for federally-recognized status. See Indian Reorganization Act, 25
U.S.C. §§ 5101 et seq. Official federal recognition of Indian tribes is “a formal
political act” that “institutionaliz[es] the government-to-government
relationship between the tribe and the federal government.” Cal. Valley
Miwok Tribe v. United States, 515 F.3d 1262, 1263 (D.C. Cir. 2008) (quoting
Cohen’s, supra § 3.02[3] (2005 ed.)); see also Krakoff, supra, at 1075.
Though inevitably tied in part to ancestry, tribal recognition and tribal
sovereignty center on a group’s status as a continuation of a historical
political entity. See 25 C.F.R. § 83.11(c), (e) (criteria for a tribe to receive
federal recognition include that the tribe has “maintained political influence
or authority over its members as an autonomous entity from 1900 until the
present” and that its members “descend from a historical Indian tribe”);
Sarah Krakoff, They Were Here First: American Indian Tribes, Race, and the
Constitutional Minimum, 69 Stan. L. Rev. 491, 538 (2017) (explaining that
the descent criterion for federal recognition is “a proxy for connection[] to a
political entity, specifically a tribe, which existed historically”); Federal
Acknowledgment of American Indian Tribes, 80 Fed. Reg. 37862, 37,867
(2015). In this way, federally recognized tribal status is an inherently political
classification. See Mancari, 417 U.S. at 553 n.24.
In view of this history, we cannot say that simply because ICWA’s
definition of “Indian child” includes minors eligible for tribal membership
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(who have a biological parent who is a tribal member), the classification is
drawn along racial lines. Tribal eligibility does not inherently turn on race,
but rather on the criteria set by the tribes, which are present-day political
entities. 50 Just as the United States or any other sovereign may choose to
whom it extends citizenship, so too may the Indian tribes. 51 That tribes may
50
As the Tribes explain, under some tribal membership laws, eligibility extends to
children without Indian blood, such as the descendants of persons formerly enslaved by
tribes who became members after they were freed or the descendants of persons of any
ethnicity who have been adopted into a tribe. See, e.g., Treaty with the Cherokees, 1866,
U.S.—Cherokee Nation of Indians, art. 9, July 19, 1866, 14 Stat. 799 (providing that the
Cherokee Nation “further agree that all freedmen who have been liberated by voluntary act
of their former owners or by law, as well as all free colored persons who were in the country
at the commencement of the rebellion, and are now residents therein, or who may return
within six months, and their descendants, shall have all the rights of native Cherokees”);
Cherokee Nation v. Nash, 267 F. Supp. 3d 86, 132, 140-41 (D.D.C. 2017) (holding that
Cherokee Freedmen enjoy full citizenship rights as members of the Cherokee Nation
because Congress has never abrogated or amended the relevant treaty terms). 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 affiliated with non-federally recognized tribes, do not
fall within ICWA’s definition of “Indian child.” When it comes to ICWA’s definition of
Indian child, race is thus both underinclusive—because it does not capture these
descendants of freed enslaved persons or other adoptive members who are not “racially”
Indians—and overinclusive—because it embraces “racially” Indian children who are not
enrolled in or eligible for membership in a recognized tribe or who lack a biological parent
who is a member of a recognized tribe.
51
For illustrative purposes, we note that jus sanguinis, or citizenship based on
descent, is a common feature of the citizenship laws of foreign nations. See, e.g., Irish
Nationality and Citizenship Act, 2001 (Act. No. 15/2001) (Ir.) (individuals with any direct
ancestor who was an Irish citizen are eligible for Irish ancestry, provided that the
applicant’s parent was recorded in Ireland’s foreign births register); Kodikas Ellenikes
Ithageneias [KEI] [Code of Greek Citizenship] A:1,10 (Gr.) (establishing that children of
Greek parents are Greek by birth, and providing that aliens of Greek ethnic origin are
eligible to obtain citizenship by naturalization); The Law of the Republic of Armenia on the
Citizenship of the Republic of Armenia (Nov. 6, 1995), as amended through Feb. 26, 2017,
by RA Law No. 75-N (Arm.) (providing that a person may be granted Armenian citizenship
without residing in Armenia or speaking Armenian if he or she is of Armenian ancestry);
Law of Return, 5710-1950, SH No. 51 p. 159 (1950) (Isr.) (extending the right of citizenship
to any “Jew” wishing to immigrate to Israel); Law of Return (Amendment No. 2), 5730-
1970, SH No. 586 p. 34 (1970) (Isr.) (clarifying that “Jew” means any person born of a
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use ancestry as part of their criteria for determining membership eligibility
does not change that ICWA does not classify in this way; instead, ICWA’s
Indian child designation classifies on the basis of a child’s connection to a
political entity based on whatever criteria that political entity may
prescribe. 52 See Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32 (1978)
(“A tribe’s right to define its own membership for tribal purposes has long
been recognized as central to its existence as an independent political
community.”).
Jewish mother or who converted to Judaism, and vesting the right of citizenship in any
child, grandchild, or spouse of a Jew, as well as any spouse of a child of a Jew or any spouse
of a grandchild of a Jew); Legge 5 febbraio 1992, no. 91, G.U. Feb. 15, 1992, n.38 (It.)
(guaranteeing citizenship to any person whose father or mother are citizens, and providing
that Italian citizenship may be granted to aliens whose father or mother or whose direct
ancestors to the second degree were citizens by birth); Law of 2 April 2009 on Polish
Citizenship, Dz. U. z. 2012 r. poz. 161 (Feb. 14, 2012) (Pol.) (stating that individuals within
two degrees of Polish ancestry may be eligible for Polish citizenship). That one may be
eligible for citizenship based on their ancestry does not, of course, alter the fact that
citizenship and eligibility therefor—like actual and potential membership in a federally
recognized tribe—are political matters concerning the rights and obligations that come
from membership in a polity.
52
Moreover, even if ICWA did classify on the basis of blood quantum as do some
other laws respecting Indian affairs, it does not necessarily follow that strict scrutiny would
apply. See generally Matthew L.M. Fletcher, Politics, Indian Law, and the Constitution, 108
Cal. L. Rev. 495, 532-46 (2020) (arguing that, based on the historical understanding of
the Indian affairs power, Congress has complete authority to determine who is an Indian
and it is never a suspect classification); Mancari, 417 U.S. at 552 (applying rational basis
review to law that classified on the basis of blood quantum). Because ICWA simply looks
to tribal eligibility and the tribal membership of a child’s birth parents, we need not decide
what level of scrutiny applies when Congress classifies on the basis of more remote Indian
ancestry. We note, however, that some scholars have explained that “the appearance of
‘Indian’ within the [text of the] U.S. Constitution likely dooms [any] equal protection
challenge to Indian classifications.” Gregory Ablavsky, Race, Citizenship, and Original
Constitutional Meanings 70 Stan. L. Rev. 1025, 1074 (2018). Either the use of “‘Indian’
in the Constitutional is a political classification” and thus “the use of Indian in ICWA and
similar statutes must also be read as a political classification,” or the references to Indians
in the Constitution must be understood as “bound up with historical conceptions of race”
and “the Constitution itself” therefore acknowledges and “authorizes distinctions based
on Native ancestry.” Id.
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The district court determined, and Plaintiffs now argue, that ICWA’s
definition of “Indian child” “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.” We disagree.
In Rice, the Court held 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. Id. 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 Hawai[‘]i.” Id. at 509.
(citation and internal quotation marks omitted). The Court emphasized that
the statute classified citizens “solely because of their ancestry,” determining
that the legislature’s purpose in doing so was to use ancestry as a proxy for
race. Id. at 514-17. In reaching its ruling, the Rice Court expressly reaffirmed
Mancari’s central holding that, because classifications based on Indian tribal
membership are “not directed towards a ‘racial’ group consisting of
‘Indians,’” but instead apply “only to members of ‘federally recognized’
tribes,” they are “political rather than racial in nature.” Rice, 528 U.S. at
519-20 (quoting Mancari, 417 U.S. at 553 n.24).
The facts and legal issues in Rice are clearly distinguishable from the
present case. As a threshold matter, Rice specifically involved voter eligibility
in a state-wide election for a state agency, and the Court found only that the
law at issue violated the Fifteenth Amendment. As should be obvious, the
Fifteenth Amendment, which deals exclusively with voting rights, is not
implicated in this case. But even assuming Rice’s holding would apply to an
equal protection challenge, ICWA’s definition of “Indian child” is a
fundamentally different sort of classification than the challenged law in Rice.
The Court in Rice specifically noted that native Hawaiians did not
enjoy the same status as members of federally recognized tribes, who are
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constituents of quasi-sovereign political communities. Id. at 522. Instead,
ancestry was the sole, directly controlling criteria for whether or not an
individual could vote in the OHA election. But unlike the ancestral
requirement in Rice, ICWA’s eligibility standard simply recognizes that some
Indian children have an imperfect or inchoate tribal membership. That is,
the standard embraces Indian children who possess a potential but not-yet-
formalized affiliation with a current political entity—a federally recognized
tribe. See Mancari, 417 U.S. at 553 n.24.
An appreciation for how tribal membership works makes this
manifest. As Congress understood in enacting ICWA, tribal membership
“typically requires an affirmative act by the enrollee or her parent,” 81 Fed.
Reg. at 38,782, and a “minor, perhaps infant, Indian does not have the
capacity to initiate the formal, mechanical procedure necessary to become
enrolled in his tribe,” H.R. Rep. No. 95-1386, at 17 (1978). Thus,
Congress was not drawing a racial classification by including the eligibility
requirement but instead recognizing the realities of tribal membership and
classifying based on a child’s status as a member or potential member of a
quasi-sovereign political entity, regardless of his or her ethnicity. And
because ICWA does not single out children “solely because of their ancestry
or ethnic characteristics,” Rice, 528 U.S. at 515, Rice is inapposite.
In short, we find Rice wholly inapplicable except insofar as it
reaffirmed the holdings of Mancari and its progeny that laws that classify on
the basis of Indian tribal membership are political classifications. It therefore
does not alter our conclusion that ICWA’s definition of “Indian child” is a
political classification subject to rational basis review. See Mancari, 417 U.S.
at 555.
Plaintiffs also separately contend that ICWA’s lowest-tiered adoptive
placement preference for “other Indian families” constitutes a racial
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classification. 53 See 25 U.S.C. § 1915(a)(3). This preference, they argue,
treats Indian tribes as “fungible” and does not account for the array of
differences between tribes, which, in turn, evinces a desire to keep Indian
children within a larger Indian “race.” We disagree for reasons similar to
our holding regarding ICWA’s Indian child designation. Like the hiring
preference in Mancari, this adoption placement preference—like all of
ICWA’s placement preferences—“applies only to members of federally
recognized tribes.” Mancari, 417 U.S. at 554 n.24 (internal quotation marks
omitted); see also 25 U.S.C. § 1903(3) (defining “Indian” as encompassing
only members of federally recognized tribes). Because on its face the
provision is limited to “members of federally recognized tribes,” “the
preference is political rather than racial in nature.” Mancari, 417 U.S. at 554
n.24 (internal quotation marks omitted). Accordingly, it, too, is subject only
to rational basis review. 54
2. Rational Basis Review
Having determined that ICWA’s Indian child and family designations
are political classifications, we need look no further than Rice to determine
their constitutionality. Even in setting aside the Hawai‘i election law at issue,
the Court stated in no uncertain terms that statutes that fulfill “Congress’
unique obligation toward the Indians” are constitutional. Id. at 520 (quoting
Mancari, 417 U.S. at 555). “Of course,” the Rice Court elaborated, “as we
53
25 U.S.C. § 1915(a) provides:
In 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.
54
For the same reasons, ICWA’s foster care placement preferences based on tribal
membership trigger only rational basis review. See 25 U.S.C. § 1915(b).
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have established in a series of [post-Mancari] cases, Congress may fulfill its
obligations and responsibilities to the Indian tribes by enacting legislation
dedicated to their circumstances and needs.” Id. at 519 (citing Wash. State
Comm. Passenger Fishing Vessel Ass’n, 443 U.S. at 673 n.20; Antelope, 430 U.S.
at 645-47; Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 84-85 (1977); Moe,
425 U.S. at 479-80; Fisher, 424 U.S. at 390-91).
This is precisely what ICWA does. We have already described at
length the “circumstances and needs” that gave rise to ICWA. Id.; see supra
Background Part IV-V. Suffice it to say that, in enacting the statute,
Congress explicitly found that “an 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.” 25 U.S.C. § 1901(4). It further concluded “that
the 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.
§ 1901(5). It therefore enacted ICWA “to protect the best interests of Indian
children and to promote the stability and security of Indian tribes and
families.” Id. U.S.C. § 1902. By systematically favoring the placement of
Indian children with Indian tribes and families in child custody proceedings,
Congress sought to ensure that children who are eligible for tribal
membership are raised in environments that engender respect for the
traditions and values of Indian tribes, thereby increasing the likelihood that
the child will eventually join a tribe and contribute to “the continued
existence and integrity of Indian tribes.” Id. § 1901(3). It cannot be
reasonably gainsaid that these measures have some rational connection to
Congress’s goal of fulfilling its broad and enduring trust obligations to the
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Indian tribes. 55 See Mancari, 417 U.S. at 555. Indeed, Judge Duncan does
not truly argue to the contrary. Instead, he raises what amount to two
arguments that ICWA uses impermissible means to further Congress’s
obligations to the Indian tribes.
First, Judge Duncan argues that ICWA is irrational because it
extends beyond internal tribal affairs and intrudes into state proceedings.
Duncan, Circuit Judge, Op. at 65. As we discuss at length when
addressing Plaintiffs’ federalism-based arguments, ICWA’s creation of
federal rights that state courts must honor is not a violation of state
sovereignty. More fundamentally, however, the degree to which a law
intrudes on state proceedings has no bearing on whether that law is rationally
linked to protecting Indian tribes. One can imagine any number of
overbearing measures that would advantage Indians at the expense of the
states or other members of society that would nonetheless promote Indian
welfare. A federal law could simply effectuate a direct transfer of wealth from
state coffers to the Indian tribes, for example, which would almost certainly
run afoul of various constitutional provisions. But there would be no debate
that the law rationally furthered the well-being of tribes, which is sufficient
to overcome an equal protection challenge when rational basis review applies.
See Nordlinger v. Hahn, 505 U.S. 1, 10 (1992) (“[U]nless a classification
warrants some form of heightened review because it jeopardizes exercise of a
fundamental right or categorizes on the basis of an inherently suspect
characteristic, the Equal Protection Clause requires only that the
classification rationally further a legitimate [government] interest.”).
Though Judge Duncan couches this objection as an aspect of
rational basis review, he appears to apply a far more searching standard of
55
In addition to the reasons stated above, that ICWA furthers Congress’s
legislative aim of discharging its duties to tribes is strongly suggested by the fact that 486
federally recognized tribes—over 80% of all such tribes in this nation—have joined as amici
in support of upholding ICWA’s constitutionality.
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scrutiny. 56 For example, he relies on the Rice Court’s statement that, because
the OHA elections in that case affected the state as a whole, extending
“Mancari to th[at] context would [] permit a State, by racial classification, to
fence out whole classes of its citizens from decisionmaking in critical state
affairs.” Duncan, Circuit Judge, Op. at 61-62 (quoting 528 U.S. at
522). As we have stated, though, Rice centered on the Fifteenth Amendment,
and even if the law were instead examined under the Fourteenth
Amendment, it would be subject to strict scrutiny because it classified on the
basis of race and discriminated with respect to a fundamental constitutional
right. See Nordlinger, 505 U.S. at 10. ICWA does neither. See San Antonio
Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 33 (1973) (limiting “fundamental
rights” for purposes of equal protection analysis to those rights protected by
56
Judge Duncan contends that he is “faithfully following the tailoring analysis
for Indian classifications laid out by Mancari, Rice, and Adoptive Couple.” Duncan,
Circuit Judge, Op. at 64 n.93. But the Supreme Court has expressly stated that
“classifications based on tribal status” are not “suspect,” Confederated Bands & Tribes of
Yakima Indian Nation, 439 U.S. at 501, and, again, the Court has repeatedly reaffirmed that
laws that neither infringe on a fundamental right nor involve a suspect classification warrant
only rational basis review, which does not include the type of “tailoring analysis” Judge
Duncan employs. See, e.g., Beach Commc’ns, Inc., 508 U.S., at 313 (“In areas of social
and economic policy, a statutory classification that neither proceeds along suspect lines nor
infringes fundamental constitutional rights must be upheld against equal protection
challenge if there is any reasonably conceivable state of facts that could provide a rational
basis for the classification.”). If Judge Duncan reads the cases he cites to sub silentio
overrule Supreme Court precedent to establish that Indian classifications are inherently
suspect or otherwise subject to a stricter tailoring requirement than any other non-suspect
classification, his conclusion runs counter to virtually every federal appeals court to have
explicitly considered the issue. See, e.g., Am. Fed’n of Gov’t Employees, AFL-CIO v. United
States, 330 F.3d 513, 520 (D.C. Cir. 2003) (“[O]rdinary rational basis scrutiny applies to
Indian classifications just as it does to other non-suspect classifications under equal
protection analysis.”(citation omitted)); Artichoke Joe’s California Grand Casino v. Norton,
353 F.3d 712, 732 (9th Cir. 2003) (“The [Mancari] Court held that legislative classifications
furthering that same purpose were political and, thus, did not warrant strict scrutiny instead
of ordinary, rational-basis scrutiny[.]”). In other words, it is firmly established that
ordinary rational basis scrutiny applies in an equal protection challenge to an Indian
classification, and under standard rational basis review, factors like the degree of intrusion
on state sovereignty are simply not relevant to whether one can imagine a legitimate
government interest furthered by the classification.
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the constitution). Thus, whether ICWA incidentally disadvantages some
groups in state court proceedings is of no moment. See Romer v. Evans, 517
U.S. 620, 632 (1996) (stating that “a law will be sustained” on rational basis
review “if it can be said to advance a legitimate government interest, even if
the law seems unwise or works to the disadvantage of a particular group, or if
the rationale for it seems tenuous” (citing New Orleans v. Dukes, 427 U.S.
297 (1976))).
Moreover, even if such a factor were relevant to ICWA’s validity, we
would disagree that the law’s purpose or effect is analogous to the Hawai‘i
law at issue in Rice. Unlike the OHA election qualifications, ICWA regulates
relations between states, the federal government, and the Indian tribes. The
law is an example of congressional control over federal-tribal affairs—an
interest completely absent in Rice. See Rice, 528 U.S. at 518 (noting that to
sustain Hawai‘i’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, 386 F.3d at 1279
(rejecting an equal protection challenge brought by Native Hawaiians, who
were excluded from the U.S. Department of the Interior’s formal tribal
acknowledgement process, and concluding that the recognition of Indian
tribes was political). Thus, there is no concern that ICWA excludes a class
of citizens from participation in their own self-government; even when
ICWA reaches into state court adoption proceedings, those proceedings are
simultaneously affairs of states, tribes, and 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.”). The Rice Court’s caution
against fencing off a class of citizens from participation in state affairs thus
does not apply to ICWA for multiple reasons.
What remains of Judge Duncan’s contentions amount to
objections that ICWA’s Indian child and family designations are under- and
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over-inclusive. ICWA applies to Indian children who are only eligible for
tribal membership and may never join a tribe, he points out, as well as when
an Indian child’s biological parents do not oppose placement of an Indian
child with a non-Indian family. Based on this, Judge Duncan argues that
the law could be applied in scenarios where it does not further Congress’s
goals of ensuring the continued survival of Indian tribes and preventing the
unwilling breakup of Indian families. Duncan, Circuit Judge, Op. at
67-71. Similarly, because ICWA in some instances favors placement of an
Indian child with an Indian family of a different tribe over placement with a
non-Indian family, Judge Duncan contends that the statute treats the
tribes as fungible and does not always promote Congress’s goal of linking
Indian children with their particular tribes. Duncan, Circuit Judge,
Op. at 71-73. But the Supreme Court has clearly stated that these are not
grounds for invalidating a law on rational basis review.
“Rational-basis review tolerates overinclusive classifications,
underinclusive ones, and other imperfect means-ends fits.” St. Joan Antida
High Sch. Inc. v. Milwaukee Pub. Sch. Dist., 919 F.3d 1003, 1010 (7th Cir. 2019)
(collecting Supreme Court cases). “[L]egislation ‘does not violate the Equal
Protection Clause merely because the classifications [it makes] are
imperfect.’” New York City Transit Auth. v. Beazer, 440 U.S. 568, 592 n.39
(1979) (quoting Dandridge v. Williams, 397 U.S. 471, 485 (1970)). “Even if
the classification involved here is to some extent both underinclusive and
overinclusive, and hence the line drawn by Congress imperfect, it is
nevertheless the rule that in a case like this ‘perfection is by no means
required.’” Id. (quoting Vance v. Bradley, 440 U.S. 93, 108 (1979)). On
rational-basis review, a statutory classification “comes to us bearing a strong
presumption of validity, and those attacking the rationality of the legislative
classification have the burden to negative every conceivable basis which might
support it.” Beach Commc’ns, Inc., 508 U.S. at 314-15 (emphasis added)
(cleaned up). All of this is to say that it is immaterial whether one can imagine
scenarios in which ICWA’s classifications do not further ICWA’s goals; that
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the classifications could further legitimate goals in some instances is wholly
sufficient to sustain the law’s constitutionality. 57
57
Judge Duncan contends that his arguments are somehow different from
contentions that ICWA is overinclusive because “[e]ligibility—one of only two ways to
trigger ICWA—makes the law cover children (like the ones here) with no actual connection
to a tribe” and “allowing ICWA to override birth parents’ wishes to place their children
with non-Indians . . . makes nonsense of ICWA’s key goal of preventing the break-up of
Indian families.” Duncan, Circuit Judge, Op. at 68-69 n.95. But a law that
employs a classification that applies to some individuals or in some situations in which it
does not further the legislature’s objectives is the precise definition of an overinclusive law,
and the Supreme Court has repeatedly reaffirmed that such a statute survives rational basis
review. See, e.g., Burlington N. R. Co. v. Ford, 504 U.S. 648, 653–54 (1992) (upholding
against equal protection challenge state’s differing venue rules for domestically
incorporated corporations because legislature could have rationally concluded that many
corporations are headquartered in their state of incorporation and venue rule would
promote convenient litigation, despite many corporations not having their principal place
of business in their state of incorporation); Vance v. Bradley, 440 U.S. 93, 106 (1979)
(upholding Foreign Service’s mandatory 60-year retirement age because Congress could
rationally believe that it promoted the maintenance of “a vigorous and competent”
Service, notwithstanding many people over 60 being more “vigorous and competent” than
many people under 60); Dandridge v. Williams, 397 U.S. 471, 486 (1970) (upholding state’s
cap on welfare awarded to families with dependent children because it was rational to
believe it would encourage families to seek employment, despite the fact that many such
families contain “no person who is employable”). Thus, even if Judge Duncan is
correct that some Indian children as classified by ICWA never ultimately join an Indian
tribe and that some Indian birth parents do not object to the placement of their children
with non-Indian families, this does not mean that ICWA does not pass constitutional
muster. It is enough that Congress could have rationally believed that some Indian children
would join a tribe and some Indian birth parents would object to a non-Indian family
placement.
Perhaps seeking to overcome this clear infirmity in its reasoning, the opposing
opinion makes much of the Supreme Court’s statement in Adoptive Couple v. Baby Girl that
it would “raise equal protection concerns” to apply ICWA in a manner that “put certain
vulnerable children at a great disadvantage solely because an ancestor—even a remote
one—was an Indian.” Duncan, Circuit Judge, Op. at 62, 70 (quoting 570 U.S. at
655). He contends that ICWA violates equal protection principles because it allegedly
disadvantages Indian children by making it more difficult for non-Indians to adopt them.
But the Court was merely cautioning in dictum that ICWA may be vulnerable to an as-
applied challenge in the rare situation in which applying its classification to a specific set of
facts is wholly irrational. See City of Cleburne, Tex. v. Cleburne Living Ctr., 473 U.S. 432,
448 (1985) (holding that applying city ordinance to particular plaintiffs violated equal
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Further, ICWA is irrational in the scenarios that Judge Duncan
proposes only if we artificially cabin the interests that ICWA may serve. But
“it is entirely irrelevant for constitutional purposes whether the conceived
reason for the challenged distinction actually motivated the legislature.” Id.
And “a legislative choice is not subject to courtroom fact-finding and may be
based on rational speculation unsupported by evidence or empirical data.”
Id. In other words, Judge Duncan errs by limiting his analysis to ICWA’s
goals as he narrowly defines them; any conceivable legitimate goal may be
grounds to sustain ICWA’s constitutionality so long as one can rationally
articulate a way in which the law’s Indian child and family classifications
would theoretically further it.
In this light, it is clear that ICWA’s classifications are not irrational
even in the situations Judge Duncan suggests. It is rational to think that
ensuring that an Indian child is raised in a household that respects Indian
values and traditions makes it more likely that the child will eventually join
an Indian tribe—thus “promot[ing] the stability and security of Indian
tribes,” 25 U.S.C. § 1902—even when the child’s parents would rather the
child be placed with a non-Indian family. And we reject the notion that
ICWA’s preference for Indian families treats tribes as fungible. As
Defendants point out, many contemporary tribes descended from larger
historical bands and continue to share close relationships and linguistic,
protection because classification was irrational in that specific instance). This is a different
matter than Plaintiffs’ facial challenge to the statute, which requires that the “challenger .
. . establish that no set of circumstances exists under which the Act would be valid.” United
States v. Salerno, 481 U.S. 739, 745 (1987). “The fact that [ICWA] might operate
unconstitutionally under some conceivable set of circumstances is insufficient to render it
wholly invalid[.]” Id. Lastly, we reject Judge Duncan’s supposition that the Indian
children whom Plaintiffs seek to adopt would be put at “great disadvantage” by being
placed in the care of an Indian relative or family pursuant to ICWA’s preferences.
Duncan, Circuit Judge, Op. at 68-70. That is a value-laden policy determination
that courts are ill-equipped to make, especially without the type of detailed fact-finding as
to specific home placements that is largely absent from the record before us.
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cultural, and religious traditions, so placing a child with another Indian family
could conceivably further the interest in maintaining the child’s ties with his
or her tribe or culture. See, e.g., Greg O’Brien, Chickasaws: The
Unconquerable People, Mississippi History Now (September 23, 2020, 9:20
AM), https://mshistorynow.mdah.state.ms.us/articles/8/chickasaws-the-
unconquerable-people (noting that, “[c]ulturally, the Chickasaws were (and
are) similar to the Choctaws; both groups spoke a nearly identical language,
their societies were organized matrilineally (meaning that ancestry was
traced only through the mother’s line), political power was decentralized so
that each of their seven or so villages had their own chiefs and other leaders,
and they viewed the sun as the ultimate expression of spiritual power for its
ability to create and sustain life”). By providing a preference for placing
Indian children with a family that is part of a formally recognized Indian
political community that is interconnected to the child’s own tribe, ICWA
enables that child to avail herself of the numerous benefits—both tangible
and intangible—that come from being raised within this context. And even
if this were not the case, Congress could rationally conclude that placing an
Indian child with a different tribe would fortify the ranks of that other tribe,
contributing to the continued existence of the Indian tribes as a whole. See
25 U.S.C. §§ 1901(3), 1902; Holyfield, 490 U.S. at 49.
In sum, § 1903(4)’s definition of an “Indian child” and § 1915(a)(3)’s
Indian family preference can be rationally linked to the trust relationship
between the tribes and the federal government, as well as to furthering tribal
sovereignty and self-government. They therefore do not violate
constitutional equal protection principles, and the district court erred by
concluding otherwise. 58 See Mancari, 417 U.S. at 555.
58
We similarly conclude that ICWA’s foster care preferences survive rational basis
review and thus do not violate equal protection.
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C. Nondelegation Doctrine
We next review Plaintiffs’ challenge to 25 U.S.C. § 1915(c) under the
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”
impermissibly “delegated legislative power.” Whitman v. Am. Trucking
Ass’ns, 531 U.S. 457, 472 (2001). Section 1915(c) allows Indian tribes to
establish through tribal resolution a different order of preferred placement
than that set forth in § 1915(a) and (b). 59 Section 23.130 of the Final Rule
provides that a tribe’s established placement preferences apply over those
initially specified in ICWA. 60 The district court determined that these
provisions violated the nondelegation doctrine, reasoning that § 1915(c)
grants Indian tribes the power to change legislative preferences with binding
effect on the states and that Indian tribes are not part of the federal
government of the United States and therefore cannot exercise federal
legislative or executive regulatory power over non-Indians on non-tribal
lands.
As an initial matter, Defendants argue that the district court’s analysis
of the constitutionality of these provisions ignores the inherent sovereign
authority of tribes. They contend that § 1915(c) merely recognizes and
incorporates a tribe’s exercise of its inherent sovereignty over Indian children
and therefore is not a delegation of authority from Congress. Ultimately,
however, we need not decide whether the Indian tribes’ inherent sovereign
59
The provision states: “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).
60
“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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authority extends to establishing rights that can be conferred on its potential
members in state court proceedings because Congress can extend tribal
jurisdiction by delegating its power through an “express authorization [in a]
federal statute.” Strate v. A-1 Contractors, 520 U.S. 438, 445 (1997); see also
United States v. Enas, 255 F.3d 662, 666-67 (9th Cir. 2001) (en banc)
(explaining the “dichotomy between inherent and delegated power” and that
“[w]hen Congress bestows additional power upon a tribe—augments its
sovereignty, one might say—this additional grant of power is referred to as
‘delegation’”); cf. Mazurie, 419 U.S. at 557 (“We need not decide whether
this independent authority is itself sufficient for the tribes to impose
Ordinance No. 26. It is necessary only to state that the independent 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.’”) (alterations in original).
As we have stated, Congress possesses the authority to enact ICWA
pursuant to its constitutional legislative power. See supra Discussion Part
II.A. And 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.”
Mazurie, 419 U.S. at 556-57.
Such a rule may arguably be justified by the fact that the Supreme
Court has long recognized that Congress may incorporate the laws of another
sovereign into federal law without violating the nondelegation doctrine. In
United States v. Sharpnack, 355 U.S. 286, 293-94 (1958), for instance, the
Supreme Court upheld a federal statute that prospectively incorporated
states’ criminal law and made it applicable in federal enclaves within each
state, though the states, of course, lacked the power to legislate in these
enclaves. Rather than an impermissible delegation of Congress’s legislative
power, the Court reasoned that the law was a “deliberate continuing
adoption by Congress” of state law as binding federal law. Id.; see also Gibbons
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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.”); United States v. Palmer, 465 F.2d 697, 699-700 (6th Cir. 1972)
(holding that the incorporation of state law into 18 U.S.C. § 1955, which
prohibits operating an illegal gambling business and defines such an illicit
business as one that violates state or local law, does not violate the
nondelegation doctrine). This same reasoning applies to laws enacted by
Indian tribes, for “Indian tribes are unique aggregations possessing attributes
of sovereignty over both their members and their territory.” Mazurie, 419
U.S. at 557; see also S. Pac. Transp. Co. v. Watt, 700 F.2d 550, 556 (9th Cir.
1983) (determining that the Secretary of the Interior did not improperly
subdelegate administrative authority by requiring tribal consent as a
condition precedent to granting a right-of-way across tribal lands to a railroad
because the Secretary simply “incorporate[d] into the decision-making
process the wishes of a body with independent authority over the affected
lands”).
Section 1915(c) provides that a tribe may pass, by its own legislative
authority, a resolution reordering the placement preferences set forth by
Congress in § 1915(a) or (b). Pursuant to this section, a tribe may assess, for
example, 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. It is beyond debate that it would be within Indian tribes’ authority
to set these same standards in tribal child custody proceedings. See, e.g.,
Fisher, 424 U.S. 390 (upholding exclusive tribal jurisdiction over adoption
proceedings among tribal members located in Indian country); Montana, 450
U.S. at 564 (noting tribes’ “inherent power to determine tribal membership
[and] regulate domestic relations among members”). And just as the law at
issue in Sharpnack incorporated the laws of a state on a matter with respect
to which the state was authorized to legislate and applied it in an area in which
the state was not authorized to legislate, so § 1915(c) incorporates the law of
Indian tribes on a matter within the tribes’ jurisdiction and makes it
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applicable in an area that might otherwise be beyond the tribes’ power to
regulate. Thus, § 1915(c) can be characterized as a valid “deliberate
continuing adoption by Congress” of tribal law as binding federal law.
Sharpnack, 355 U.S. at 293-94; 25 U.S.C. § 1915(c); 81 Fed. Reg. at 38,784
(statement by 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”).
But § 1915(c)’s validity is not dependent solely on this framing.
Courts have frequently upheld delegations of congressional authority to
Indian tribes without reference to federal incorporation of their law. In
United States v. Mazurie, for example, the Supreme Court considered a
federal law that 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 owned land
within the boundaries of the reservation. See 419 U.S. at 547, 557. As the
Court later explained, Congress indicated its intent to delegate authority to
tribes in the statute’s requirement that liquor transactions conform “‘with
an ordinance duly adopted’ by the governing tribe.” Rice v. Rehner, 463 U.S.
713, 730-31 (1983) (quoting 18 U.S.C. § 1161) (examining the same statute
challenged in Mazurie). The Court ruled that such a delegation of
congressional power did not violate the nondelegation doctrine. Mazurie, 419
U.S. at 546, 557. Tribes possess “a certain degree of independent authority
over matters” relating to their “internal and social relations,” the Court
reasoned, including the “distribution and use of intoxicants” within the
reservation’s bounds. Id. And this independent tribal authority provided
Congress with a sufficient basis for vesting in tribes Congress’s own power
to regulate Indian affairs. Id.
Similarly, in Bugenig v. Hoopa Valley Tribe, the Ninth Circuit, sitting
en banc, determined that Congress had expressly delegated authority to the
Hoopa Valley Tribe to regulate conduct by nonmembers. See 266 F.3d 1201,
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1223 (9th Cir. 2001) (en banc). In that case, the Hoopa Tribe had ratified a
constitution in 1972 stating that the Tribe’s jurisdiction “extend[s] to all
lands within the confines of the” reservation and that the Tribe could
regulate “the use and disposition of property upon the reservation,”
including by non-members. Id. at 1212. Later, Congress passed a statute
stating that “existing gove[r]ning documents of the Hoopa Valley Tribe and
the governing body established and elected thereunder . . . are hereby ratified
and confirmed.” Id. at 1207-08 (quoting 25 U.S.C. § 1300i-7). The Tribe
then passed a resolution prohibiting harvesting timber within a certain zone
on the reservation. Id. at 1208. Shortly after the resolution’s adoption, a non-
member purchased property in this zone and began clearing its timber. Id.
The Tribe attempted to enjoin her timber removal, arguing that Congress
had vested in it the authority to regulate within the reservation, regardless of
ownership. Id. at 1209. The Ninth Circuit agreed. Reading together the
tribal constitution and the congressional enactment that “ratified and
confirmed” the Tribe’s governing documents, the court found that Congress
had “delegated authority to regulate all the lands within the” reservation,
including those owned by non-Indians. Id. at 1216. The court also
determined that the delegation was valid because “Congress can delegate to
Indian tribes those powers that are within the sphere of the Indian Commerce
Clause.” Id. at 1223 n.12.
Like the statutes in Mazurie and Bugenig, § 1915(c) contains an express
delegation to tribes. See 25 U.S.C. § 1915(c) (permitting “the Indian child’s
tribe” to alter the order of placement preferences). And because the
authority to alter placement preferences with respect to specific tribes is
within Congress’s power, Congress can validly delegate this authority to
Indian tribes. See Buenig, 266 F.3d at 1223 n.12. Thus, Congress has validly
“augment[ed]” tribal power by delegating additional authority via § 1915(c).
Enas, 255 F.3d at 667.
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Judge Duncan presents two arguments as to why § 1915(c)
violates nondelegation principles. First, he contends that the provision
delegates Congress’s core legislative power and thereby violates the
bicameralism and presentment requirements that Congress must adhere to
when enacting law. DUNCAN, CIRCUIT JUDGE, OP. at 110-11. Second, he
argues that, even if § 1915(c) is construed as a delegation of regulatory
authority, it violates nondelegation principles because it entrusts the
authority to a party outside the federal government. Duncan, Circuit
Judge, Op. at 112. Neither contention is ultimately persuasive. . At the
threshold, we note that Judge Duncan takes up the contention that
§ 1915(c) specifically violates bicameralism and presentment wholly sua
sponte; no party or amicus raised it in the district court, before the panel, or
in en banc briefing. 61 This is likely because the nondelegation doctrine
already provides that Congress may not delegate to other actors the core
legislative power that would be subject to the bicameralism and presentment
requirements, see Loving v. United States, 517 U.S. 748, 758 (1996), and thus
the nondelegation inquiry, already accounts for bicameralism and
presentment. See John F. Manning, The Nondelegation Doctrine as a Canon of
Avoidance, 2000 Sup. Ct. Rev. 223, 240 (2000) (“The nondelegation
doctrine protects [important] interests by forcing specific policies through
the process of bicameralism and presentment[.]”); see also Jackson v.
61
The district court also did not raise or pass on this issue. We ordinarily do not
consider issues in this posture. See Burell v. Prudential Ins. Co. of Am., 820 F.3d 132, 140
(5th Cir. 2016) (“To preserve an argument, it must be raised to such a degree that the
district court has an opportunity to rule on it.” (cleaned up)); Firefighters’ Ret. Sys. v.
EisnerAmper, L.L.P., 898 F.3d 553, 561 (5th Cir. 2018) (“It is the general rule, of course,
that a federal appellate court does not consider an issue not passed upon below.” (internal
quotation marks omitted)). Moreover, “[i]n our adversarial system of adjudication, we
follow the principle of party presentation . . . ‘[I]n the first instance and on appeal . . ., we
rely on the parties to frame the issues for decision and assign to courts the role of neutral
arbiter of matters the parties present.’” United States v. Sineneng-Smith, 140 S. Ct. 1575,
1579 (2020) (third set of alterations in original) (quoting Greenlaw v. United States, 554 U.S.
237 (2008)).
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Stinnett, 102 F.3d 132, 135 n.3 (5th Cir. 1996) (rejecting a reading of a statute
that would “approach[] a violation of the Presentment Clause and the
nondelegation doctrine” (emphasis added)). In a nondelegation challenge,
the nondelegation question both subsumes and precedes the presentment
and bicameralism questions, rending those latter inquiries superfluous.
Bicameralism and presentment are only separately implicated—to the
exclusion of nondelegation—when Congress devises a scheme by which it (or
its legislative agent) purports to enact law through a process other than that
prescribed by Article I, Section 7 of the Constitution. “Absent retained
congressional veto power or other such retained authority . . . which is
‘legislative in its character and effect,’ the presentment clauses are not
[separately] implicated and the only question is one involving the delegation
doctrine.” United States v. Scampini, 911 F.2d 350, 352 (9th Cir. 1990)
(quoting INS v. Chadha, 462 U.S. 919, 952 (1983)) (internal citation
omitted); see also Metro. Washington Airports Auth. v. Citizens for Abatement
of Aircraft Noise, Inc., 501 U.S. 252, 276 (1991) (“Congress cannot exercise its
legislative power to enact laws without following the bicameral and
presentment procedures specified in Article I.” (emphasis added)). An
arrangement in which specifically Congress or its agents attempt to enact
legislation through an unconstitutional process is the only situation that can
give rise to a procedural violation of bicameralism or presentment without
also implicating nondelegation; it is still Congress that is purporting to enact
law but doing so without complying with constitutionally mandated
procedures. In light of this framing, it makes sense that the Supreme Court
has consistently performed only a nondelegation analysis when examining
challenges to the vesting of power in parties other than Congress or its agents.
See, e.g., Mazurie, 419 U.S. at 556-58; Loving, 517 U.S. at 758; Am. Trucking
Ass’ns, 531 U.S. at 472-76; Mistretta v. United States, 488 U.S. 361, 371-79
(1989). Neither Congress nor its agents are involved in the tribal resolution
contemplated by § 1915(c). The cases Judge Duncan relies upon
addressing the procedures Congress must use when enacting legislation are
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therefore of little relevance to the present case. E.g., Chadha, 462 U.S. at
959, Clinton v. City of New York, 524 U.S. 417, 447–48 (1998); Metro.
Washington Airports Auth. 501 U.S. at 276.
Evaluated under the proper rubric, § 1915(c) does not represent an
invalid delegation. As to Judge Duncan’s first contention, he appears to
argue that § 1915(c) implicates the core legislative power because Congress,
in setting a default rule that tribes may alter under congressionally-defined
circumstances, has effectively permitted the tribes to “change specifically
enacted Congressional priorities.” Duncan, Circuit Judge, Op. at
109. We note the counterintuitive nature of the opposing opinion’s proposed
holding that Congress delegates too much discretion when it provides some
guidance and exercises some control over an issue by setting a default
standard rather than leaving the implementation of a statute entirely to the
delegee’s discretion. Moreover, countless other federal statutes set a default
standard that applies unless another party chooses to act, and these laws
often grant the delegee far more power to negate the normal functioning of
federal law than does § 1915(c). See, e.g., 16 U.S.C. § 1536 (permitting an
Endangered Species Committee made up of high-ranking executive branch
officials to suspend the otherwise applicable requirements of the Endangered
Species Act for particular projects); 7 U.S.C. § 136p (allowing the
Environmental Protection Agency (EPA) to exempt state and federal
agencies from the Federal Insecticide, Fungicide and Rodenticide Act); 43
U.S.C. § 1652 (permitting the Secretary of the Interior and other federal
officials to “waive any procedural requirements of law or regulation which
they deem desirable to waive in order to” construct the Trans-Alaska
Pipeline); 42 U.S.C. § 1315 (permitting states, with approval from the
Department of Health and Human Services, to customize their Medicaid
programs in ways that would otherwise violate the Social Security Act).
Indeed, many federal statutes specifically delegate to another, separate
sovereign the authority to alter the federal standard in matters related to the
sovereign’s jurisdiction. See, e.g., 20 U.S.C. § 1415(b)(6)(B) (providing that
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the statute of limitation for bringing an administrative claim under the
Individuals with Disabilities Education Act is two-years “or, if the State has
an explicit time limitation for presenting such a complaint under this
subchapter, in such time as the State law allows”); 11 U.S.C. § 522
(permitting state law to alter the default property exemptible from a
bankruptcy estate); 12 U.S.C. § 2279aa-12(b)(2) (permitting states to enact
law overriding exemption from state registration and qualification laws for
securities guaranteed by the Federal Agricultural Mortgage Corporation); 42
U.S.C. § 14503(a), (e) (exempting nonprofit and governmental entities from
liability for the acts of volunteers but allowing state law to override exemption
in several specific ways). 62 Courts have repeatedly affirmed Congress’s
authority to allow another party to override the federal default for specific
applications of a law without violating nondelegation principles. See, e.g.,
Am. Fuel & Petrochemical Mfrs. v. EPA, 937 F.3d 559, 578 (D.C. Cir. 2019),
cert. denied sub nom. Valero Energy Corp. v. EPA, 140 S. Ct. 2792 (2020)
(mem.) (upholding against nondelegation challenge law permitting the EPA
to alter otherwise statutorily mandated renewable fuel quotas); Defs. of
Wildlife v. Chertoff, 527 F. Supp. 2d 119, 124 (D.D.C. 2007) (noting that
permitting executive officials to waive environmental laws for limited
purposes does not violate nondelegation where it did not “alter the text of
62
Judge Duncan attempts to distinguish between laws that permit another
party to waive statutory requirements and those that permit a party to “re-write enacted
statutes.” Duncan, Circuit Judge, Op. at 111. n.149. But the opposing opinion
offers no reasoned analysis as to why a waiver, which effectively deletes text from a statute
for specific applications of the law or adds text establishing specific exceptions to a statutory
regime, is less of a “rewrit[ing of] enacted statutes” than the reordering of the placement
preferences for limited applications of ICWA that the statute authorizes Indian tribes to
bring about. This failing is particularly apparent in Judge Duncan’s handling of the
cited federal laws that permit another sovereign to override a statutory default, just as
ICWA does here. Duncan, Circuit Judge, Op. at 113 n.150. Simply repeating the
phrase “alter the text” is no substitute for meaningfully distinguishing these laws, and the
opposing opinion does nothing to explain how § 1915(c) authorizes “alter[ing] the text” of
a statute any more than the myriad other federal laws cited here that permit a party other
than Congress to change a statute’s functioning for certain limited applications.
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any statute, repeal any law, or cancel any statutory provision” because the
statute itself “retains the same legal force and effect as it had when it was
passed by both houses of Congress and [was] presented to the President”);
In re Border Infrastructure Envtl. Litig., 284 F. Supp. 3d 1092, 1140 (S.D. Cal.
2018), aff’d, 915 F.3d 1213 (9th Cir. 2019), cert. denied sub nom. Animal Legal
Def. Fund v. Dep’t of Homeland Sec., 139 S. Ct. 594 (2018) (same).
Judge Duncan’s second contention—that Congress may not
delegate authority of any sort to a party outside the federal government—is
also easily disposed of. Whether framed as a prospective incorporation of
another sovereign’s law or a delegation of regulatory authority, the Supreme
Court has long approved of federal statutes that permit another sovereign to
supply key aspects of the law, including an explicit delegation of authority to
the Indian tribes. See Mazurie, 419 U.S. at 556-57; Gibbons, 22 U.S. (9
Wheat.) at 80, Wilkerson v. Rahrer, 140 U.S. 545, 562 (1891) (“[W]hile the
legislature cannot delegate its power to make a law, it can make a law which
leaves it to municipalities or the people to determine some fact or state of
things, upon which the action of the law may depend.”). But see
Knickerbocker Ice Co. v. Stewart, 253 U.S. 149, 164 (1920) (holding that
Congress may not delegate to the states its exclusive authority over admiralty
and maritime law because the Constitution specifically entrusts that power
to Congress to maintain nationwide uniformity). Indeed, the Supreme Court
itself routinely looks to the law of other sovereigns to fill in important aspects
of federal statutes. In the context of a § 1983 claim, for instance, analogous
state personal injury torts supply, inter alia, the statute of limitations in which
the federal claim may be brought. See Wallace v. Kato, 549 U.S. 384, 387
(2007) (“Section 1983 provides a federal cause of action, but in several
respects relevant here federal law looks to the law of the State in which the
cause of action arose.”). The inescapable message of these long-standing
statutes and Supreme Court precedents is clear: Congress does not invalidly
delegate regulatory power simply because it prospectively incorporates into
federal law the decision-making of another sovereign on a matter within that
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sovereign’s jurisdiction. 63 Cf. Kentucky Div., Horsemen’s Benev. & Protective
Ass’n, Inc. v. Turfway Park Racing Ass’n, Inc., 20 F.3d 1406, 1417 (6th Cir.
1994) (“[T]he separation of powers principle and, a fortiori, the
nondelegation doctrine, simply are not implicated by Congress’ ’delegation’
of power to the States.”).
It is thus unsurprising that Judge Duncan offers no binding
precedent to support a rule that regulatory power cannot be delegated outside
the federal government, relying entirely on concurrences and secondary
sources for his novel approach. See Duncan, Circuit Judge, Op. at
112. And, because he offers no explanation or limiting principle to
differentiate the present case from those cited above, one is struck by the
sheer breadth of the opposing proposed opinion’s holding, which would
likely render myriad federal laws invalid and conflict with binding Supreme
Court precedents. See, e.g., Mazurie, 419 U.S. at 556-57.
In sum, § 1915(c) validly integrates tribal sovereigns’ decision-making
into federal law, regardless of whether it is characterized as a prospective
incorporation of tribal law or an express delegation by Congress under its
Indian affairs authority. Accordingly, § 1915(c) does not violate the
nondelegation doctrine. 64
63
Even if the Indian tribes were not sovereigns in their own right, it does not
necessarily follow that incorporating their decision-making into federal law would violate
the nondelegation doctrine, as the Supreme Court has historically upheld even delegations
of authority to private entities against such challenges. See Currin v. Wallace, 306 U.S. 1, 1
(1939); United States. v. Rock Royal Co-op., 307 U.S. 533, 577–78 (1939).
64
Because we would not hold that any provision of ICWA is unconstitutional, a
severability analysis is unnecessary. However, even if we were to conclude that certain
portions of ICWA violate the Constitution, we would hold that ICWA’s severability clause,
25 U.S.C. § 1963, is fully enforceable, meaning that only those specific provisions of the
law that are unconstitutional are invalid and the remainder of the statute remains in full
effect. See Seila Law LLC v. Consumer Fin. Protect. Bureau, 140 S. Ct. 2183, 2209 (2020)
(“When Congress has expressly provided a severability clause, our task is simplified. We
will presume that Congress did not intend the validity of the statute in question to depend
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D. The Final Rule
The district court held that, to the extent §§ 23.106 to 23.122, 23.124
to 23.132, and 23.140 to 23.141 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 authority to implement ICWA; and
(3) reflected an impermissible construction of § 1915. Reviewing the district
court’s legal conclusions de novo, we conclude that the Final Rule does not
contravene the APA. Fath v. Texas Dep’t of Transp., 924 F.3d 132, 136 (5th
Cir. 2018).
1. The Constitutionality of ICWA
Because we conclude, for reasons discussed earlier in this opinion,
that the challenged provisions of ICWA are constitutional, we also determine
that the district court erred by concluding that the Final Rule was invalid
because it implemented an unconstitutional statute. Thus, the statutory basis
for the Final Rule is constitutionally valid.
2. The Scope of the BIA’s Authority
Congress authorized the Secretary of the Interior to promulgate
“rules and regulations as may be necessary to carry out the provisions” of
ICWA. 25 U.S.C. § 1952. Pursuant to this provision, the BIA, acting under
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
on the validity of the constitutionally offensive provision unless there is strong evidence
that Congress intended otherwise.” (internal quotation and ellipses omitted)).
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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 1979 BIA did not
interpret the language and legislative history of 25 U.S.C. § 1952 to indicate
that Congress intended the BIA to supervise state judiciaries, and it noted
that enacting federal regulations that were primarily applicable in state court
proceedings would raise federalism concerns. Id. The agency concluded that
such binding regulations were “not necessary” in any event because the BIA
then believed that state courts were “fully capable” of honoring the rights
created by ICWA. Id.
In 2016, however, the BIA changed course and issued the Final Rule,
which, in an effort to bring about greater uniformity in Indian child custody
cases, sets binding standards governing the rights of Indian children, families,
and tribes in such proceedings. See 25 C.F.R. §§ 23 et seq.; 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-by-state determinations about
how to implement ICWA would continue to result in widely differing
standards of protection “with potentially devastating consequences” for the
Indian populations that ICWA was intended to benefit. See id.
Echoing the district court’s reasoning, Plaintiffs argue that the BIA
did not provide a sufficient explanation for its change in position regarding
its authority to issue binding regulations. It is not clear, however, whether
they also contend that, regardless of the adequacy of the explanation for the
new position, the BIA simply lacks authority under § 1952 to promulgate
binding regulations. In any event, we assume Plaintiffs properly present both
challenges. As to the latter argument that the BIA lacks authority under
ICWA to issue binding regulations, we employ the familiar framework set
forth in Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837,
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842-43 (1984). Under Chevron, we review “an agency’s construction of the
statute which it administers,” by asking “two questions.” Id. at 842. First,
we must examine whether the statute is ambiguous. Id. “If the intent of
Congress is clear, that is the end of the matter; for the court, as well as the
agency, must give effect to the unambiguously expressed intent of
Congress.” Id. at 842-43. 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
843. 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
rules and regulations that implement private rights that state courts must
honor. In stating that “the Secretary shall promulgate such rules and
regulations as may be necessary to carry out the provisions of this chapter,”
the text of § 1952 confers broad authority on the Department to promulgate
rules and regulations it deems necessary to carry out ICWA. This language
clearly grants the BIA the authority to promulgate standards that are binding
upon all parties; this is inherent in the statute’s use of the term “rules,” for
a rule is not a rule if it can be disregarded at will. Still, the Final Rule does
place a duty on state courts to respect the rights it implements, which we will
grant is somewhat unusual in the world of administrative law. See 81 Fed.
Reg. 38,778. Because it may be arguable that “Congress has not directly
addressed the precise question at issue”—that is, whether the BIA is
authorized to promulgate rules and regulations that effectively bind state
courts—we will assume arguendo that § 1952 is ambiguous on the subject. See
Chevron, 467 U.S. at 843.
The BIA’s interpretation of § 1952 is valid under the second Chevron
step because it is a reasonable construction of the statute. See 467 U.S. at
843-44. As Defendants point out, § 1952’s language is substantively identical
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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 Publ’ns Serv., Inc., 411 U.S. 356, 369 (1973) (quoting 42
U.S.C. § 1408) (cleaned up); see also City of Arlington v. F.C.C., 569 U.S. 290,
306 (2013) (noting a lack of “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”); AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366, 377-78
(1999) (determining that the Federal Communications Commission had
authority to issue regulations based on statutory language permitting the
agency to “prescribe such rules and regulations as may be necessary in the
public interest to carry out” the statute). Here, § 1952’s text is nearly
identical to the statutory language at issue in Mourning, and the Final Rule’s
binding standards for Indian child custody proceedings are obviously 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 BIA was reasonable in interpreting § 1952 to confer on it the authority to
promulgate the Final Rule.
Neither Plaintiffs nor Judge Duncan argues that setting binding
standards for child custody proceedings is unrelated to ICWA’s purpose, for
clearly it is not. Instead, Plaintiffs and Judge Duncan primarily contend
that the BIA reversed its position without providing an adequate
explanation. 65
65
Like with Plaintiffs, it is not clear whether Judge Duncan separately argues
that, regardless of the adequacy of the explanation given for the change, it is unreasonable
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We must note the conceptual difference between the Chevron inquiry,
which asks whether an agency’s substantive interpretation of a statute is a
reasonable one, and the procedural question of whether an agency provided
an adequate explanation for its decision to switch from one statutory
interpretation to another. See Nat’l Cable & Telecomms. Ass’n v. Brand X
Internet Servs., 545 U.S. 967, 1001 n.4 (2005) (noting that any inconsistency
in an agency’s explanation for changing course “bears on whether the
[agency] has given a reasoned explanation for its current position, not on
whether its interpretation is consistent with the statute”). To be sure, there
are situations where the procedures by which an agency adopts a new
statutory interpretation—including whether the agency provided a reasoned
explanation for changing its position—may be relevant to whether a court
should defer to an agency’s interpretation of a statute. More specifically,
when it is necessary for a court to interpret a statute committed to an
agency’s implementation, Chevron deference may be withheld if the agency
failed to adequately explain why it shifted to its current interpretation. Cf.
Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). But the
Chevron framework is inapposite where a plaintiff directly challenges an
agency rulemaking as violating the APA—as opposed to the statute that is
being interpreted—because the agency arbitrarily departed from a prior
statutory interpretation. When a plaintiff merely argues that an agency
in the first instance for the BIA to interpret § 1952 to authorize the Final Rule because
Congress could not have intended to allow the agency to set standards applicable in state
courts. But any such argument would simply be inconsistent with the Supreme Court’s
holdings in Mourning and related cases regarding the breadth of authority delegated by
broadly worded rules-enabling statutes. Under these precedents, so long as a rule is
reasonably related to the statute’s purpose, it is not unreasonable to interpret the BIA’s
delegated authority to encompass it. See Mourning, 411 U.S. at 369. Moreover, Congress
clearly considered it to be within its power to set standards applicable in child custody
proceedings, as there is no dispute that many provisions of ICWA do precisely that. There
is thus no reason to presume that Congress would implicitly exclude such authority from
its broad authorization to the BIA to promulgate rules it deems necessary to ICWA’s
implementation.
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violated the APA by not providing sufficient reasons for its change of
position, it is unnecessary for a court to actually decide whether the new
statutory interpretation is correct to resolve the question; indeed, an agency
can violate the APA by switching to a statutory interpretation that is wholly
reasonable under Chevron if it does so without providing an adequate
explanation for the change. See Brand X, 545 U.S. at 1001 (stating that an
agency “is free within the limits of reasoned interpretation to change course
if it adequately justifies the change” (emphasis added)); 5 U.S.C. § 706(2)(A),
(C) (calling for courts to separately evaluate whether an agency action is
arbitrary and capricious and whether an agency action is in excess of statutory
authority). And because there is no need to interpret the statute when the
challenge is only to the adequacy of an agency’s explanation for its changed
position, there is no need to determine whether to defer to the agency’s new
interpretation under Chevron. Judge Duncan therefore errs by
characterizing the question of whether the BIA provided an adequate
explanation for its changed position as a component of Chevron step two.
Moreover, we disagree that the BIA failed to provide an adequate
explanation for its change of course. “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 a “reasoned explanation” for its
new policy, but “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
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for it, and that the agency believes it to be better, which the conscious change
of course adequately indicates.” Id.
In the preamble to the Final Rule, the BIA directly addressed its
reasons for departing from its earlier interpretation that it had no authority
to promulgate binding regulations applicable in child custody proceedings.
The agency explained that, contrary to its previous position that nothing in
the text of the statute indicated a congressional intent to authorize such
binding regulations, Supreme Court precedent established that the text of
§ 1952 conferred “a broad and general grant of rulemaking authority” and
“presumptively authorize[s the] agenc[y] to issue rules and regulations
addressing matters covered by the statute.” 81 Fed. Reg. at 38,785
(collecting Supreme Court cases). The BIA also justified its determination
that ICWA granted it the authority to promulgate binding regulations based
on having “carefully considered public comments on the issue” and, in light
of this commentary, having reconsidered and rejected its statements in 1979
that it lacked such authority. See id. at 38,785-86. And the BIA directly
responded to the federalism concerns raised in 1979 and by present-day
commentators. It explained that such concerns were misplaced because the
Constitution conferred upon Congress plenary power over Indian affairs and
that, when “a power is delegated to Congress in the Constitution, the Tenth
Amendment expressly disclaims any reservation of that power to the States.”
Id. at 38,789 (internal quotation marks omitted) (quoting New York, 505 U.S.
at 156). Because Congress’s plenary power authorized it to enact ICWA and
because Congress had validly delegated authority to the BIA in § 1952 to
implement ICWA, the agency determined that the Final Rule did not
unconstitutionally encroach on state authority. See id.
Further, the BIA 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
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courts could undermine the statute’s underlying purposes.” 81 Fed. Reg. at
38,787. In Miss. Band of Choctaw Indians v. Holyfield, the Supreme Court
considered the meaning of the term “domicile” in 25 U.S.C. § 1911, which
ICWA left undefined and the BIA left open to state interpretation under its
1979 Guidelines. 490 U.S. at 43, 51. “Section 1911 lays out a dual
jurisdictional scheme” in which tribal courts have exclusive jurisdiction over
custody proceedings concerning an Indian child “who resides or is domiciled
within the reservation of” her tribe, whereas state courts have concurrent
jurisdiction with tribal courts “in the case of children not domiciled on the
reservation.” Id. at 36. 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 Court’s reasoning in Holyfield applies with equal force here.
Congress’s concern with safeguarding the rights of Indian families and
communities was not limited to § 1911 but rather extended to all provisions
of ICWA. Thus, as the BIA explained, the provisions of ICWA that the
statute left open to state interpretation in 1979, including many that Plaintiffs
now challenge, were subject to the same lack of uniformity the Supreme
Court identified as contrary to Congress’s intent in Holyfield. 81 Fed. Reg.
at 38,779, 38,782 (explaining that the result of “conflicting State-level”
interpretations of ICWA “is that many of the problems Congress intended
to address by enacting ICWA persist today”). In view of Holyfield and “37
years of real-world ICWA application,” id. at 38,786, the BIA concluded that
issuing binding rules for child custody proceedings was “necessary to carry
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out the provisions” of ICWA, an authority that was included in Congress’s
broad grant of rulemaking authority under § 1952. The BIA thus supplied a
“reasoned explanation” for reversing its earlier position on its need and
authority to issue binding regulations, Fox Television Stations, 556 U.S. at 515.
Judge Duncan’s belief that ICWA is inconsistent with principles
of federalism suffuses his critique of the BIA’s explanation for its change of
interpretation. Because the BIA’s prior interpretation was constitutionally
permissible and its new interpretation is not, he appears to argue, Congress
could not have intended the new interpretation, and whatever explanation
the BIA provided for the change was therefore inadequate. See Duncan,
Circuit Judge, Op. at 120-22. For the reasons discussed above with
respect to ICWA’s statutory provisions, we disagree that the BIA’s new
interpretation of its § 1952 authority violates the Constitution. But more
importantly, in judging the adequacy of the BIA’s explanation, it does not
necessarily matter whether the BIA’s new interpretation is actually
constitutional, nor even whether Congress in fact intended § 1952 to confer
authority to promulgate rules that would be binding in state court
proceedings. These questions are relevant only to whether the BIA’s new
interpretation of § 1952 is a substantively reasonable interpretation and a
constitutional application of the statute, which, again, are separate questions
from the procedural matter of whether the agency gave a sufficient
explanation for its decision to change course.
When specifically examining whether an agency met the procedural
requirement that it provide an adequate explanation, all that is necessary is a
“minimal level of analysis” from which the agency’s reasoning may be
discerned, Encino Motorcars, 136 S. Ct. at 2125—regardless of whether the
court finds the reasoning fully persuasive. In other words, the agency
decision must simply be non-arbitrary. When an agency “display[s]
awareness that it is changing position” and provides coherent reasons for
doing so, the test is satisfied. Id. at 2126. Here, it is enough that the BIA
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“believe[d]” its prior interpretation of § 1952 to be an incorrect reflection of
Congressional intent and set forth its reasons for thinking so. Fox Television
Stations, 556 U.S. at 515. The same is true for the BIA’s reasoned
determination that its issuance of binding regulations does not pose
federalism problems. It does not matter to this inquiry whether a court thinks
the agency’s interpretation or legal analysis is incorrect, nor that a court
disagrees with the agency’s decision as a policy matter. See id.; cf. Duncan,
Circuit Judge, Op. at 123 (arguing that conflicting state court decisions
were not numerous and long-standing enough to justify issuing regulations to
enforce uniformity).
Contrary to Plaintiffs’ contentions, the BIA explained why it changed
its interpretation of § 1952 and why it believed the Final Rule was needed
based on its years of study and public outreach. See 81 Fed. Reg. 38,778-79,
38,784-85. In promulgating the rule, the BIA relied on Supreme Court
precedent, its own expertise in Indian affairs, its specific experience in
administering ICWA and other Indian child-welfare programs, state
interpretations and best practices, 66 public hearings, and tribal consultations.
See id. Thus, the BIA’s change of course was 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.
3. The BIA’s Construction of § 1915
Title 25 U.S.C. § 1915 sets forth 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 advised that the term “good
cause” in § 1915 “was designed to provide state courts with flexibility in
66
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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determining the disposition of a placement proceeding involving an Indian
child.” 44 Fed. Reg. at 67,584. However, § 23.132(b) of the 2016 Final Rule,
now specifies that “[t]he party seeking departure from [§ 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. § 23.132(b). The district court determined that
Congress unambiguously intended the ordinary preponderance-of-the-
evidence standard to apply and that the BIA’s imposition of a higher standard
was therefore not entitled to Chevron deference.
Defendants contend 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 the Final Rule’s
fixed definition of “good cause” is contrary to ICWA’s intent to provide
state courts with flexibility.
We conclude that the BIA’s interpretation of § 1915 is 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 deciding that Congress unambiguously intended that a preponderance-of-
the-evidence standard was necessary to show good cause under § 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
§ 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. v. E.P.A., 571 F.3d 20, 36 (D.C. Cir. 2009) (internal quotation marks
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omitted) (quoting Cheney R.R. Co. v. ICC, 902 F.2d 66, 69 (D.C. Cir. 1990));
accord In Defense of Animals v. United States Dep’t of the Interior, 751 F.3d
1054, 1066 n.20 (9th Cir. 2014) (same); see also Texas Office Pub. Util. Counsel
v. F.C.C., 183 F.3d 393, 443 (5th Cir. 1999) (noting that the expressio unius
canon is of “limited usefulness . . . in the administrative context”). “[T]hat
Congress spoke in one place but remained silent in another, as it did here,
rarely if ever suffices for the direct answer that Chevron step one requires.”
Catawba Cty. v. E.P.A., 571 F.3d at 36 (internal quotation marks and citation
omitted); see also Adriondack Med. Ctr. v. Sebelius, 740 F.3d 692 (D.C. Cir.
2014) (“The expressio unius canon is a ‘feeble helper in an administrative
setting, where Congress is presumed to have left to reasonable agency
discretion questions that it has not directly resolved.’” (quoting Cheney R.R.
Co., 902 F.2d at 68-69)); Tex. 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 quotation marks and citations omitted)).
Judge Duncan argues that there is no indication that Congress
intended to require a heightened standard of proof for § 1915. Duncan,
Circuit Judge, Op. at 125-26. But this misses the point. The question
is not whether Congress intended to require a heightened standard, but
rather whether it intended to prohibit one. The statute is silent as to the
matter, and when “the statute is silent . . . with respect to the specific issue,”
we assume that Congress delegated the matter to agency discretion and
proceed to Chevron step two. 67 Chevron, 467 U.S. at 842.
67
This is why Plaintiffs’ and Judged Duncan’s references to Grogan v. Garner, 498
U.S. 279, 286 (1991), are inapposite. Grogan addressed the standard of proof that applied
to exceptions from dischargability of debt in the Bankruptcy Code, see id., a set of laws that
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Under Chevron step two, the BIA’s determination as to the applicable
evidentiary standard is reasonable. See Chevron, 467 U.S. at 844. As stated,
the broad grant of rule-making authority in § 1952 permits the BIA to enact
rules that are not foreclosed by statute “so long as [they are] reasonably
related to the purposes of the enabling legislation.” Mourning, 411 U.S. at 36.
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 preamble to 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. (citing, inter alia, In re MKT, 368 P.3d 771, 786 (Okla.
2016); Gila River Indian Cmty. v. Dep’t. of Child Safety, 363 P.3d 148, 152-53
(Ariz. Ct. App. 2015); In re Alexandria P., 228 Cal. App. 4th 1322, 1340 (Cal.
Ct. App. 2014)). Because the BIA’s interpretation of § 1915 as not
prohibiting a heightened standard of proof is not inconsistent with the
statutory provision, and because § 23.132(b) was based on the persuasive
reasoning in state court decisions and is designed to further congressional
intent, we conclude it is reasonable and entitled to Chevron deference.
In considering Chevron step two, Judge Duncan again blends the
question of whether the BIA fulfilled the APA’s procedural requirement that
it provide an adequate explanation for changing the way it interprets a statute
it administers—a claim the Plaintiffs have not raised with respect to
§ 23.132(b)—with the substantive question of whether it is reasonable to
courts are tasked with interpreting in the first instance. Congress had not delegated to an
agency the authority to issue rules interpreting the Bankruptcy Code, and the Grogan court
was therefore tasked with determining the best interpretation of the statutory provision,
not simply whether a particular agency interpretation was reasonable. Thus, the Grogan
Court’s ruling that, under those circumstances, statutory silence suggested that the
preponderance-of-the-evidence standard applied does not indicate that statutory silence
prohibits an agency from applying a heightened evidentiary standard to the issue.
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interpret the BIA’s rulemaking authority to authorize the provision.
Duncan, Circuit Judge, Op. at 128. Though we disagree that the
BIA failed to provide a reasoned explanation for its changed position, this is
neither here nor there. Our precedents at most establish that, in a direct
challenge to an agency rulemaking as beyond statutory authority, the
agency’s departure from longstanding practice justifies a more searching
review at Chevron step two to determine whether the new position is
reasonable. See Chamber of Com. of United States of Am. v. United States Dep’t
of Labor, 885 F.3d 360, 380 (5th Cir. 2018) (stating that we greet sudden
claims that a long-standing statute grants sweeping new powers with “a
measure of skepticism” (quoting Util. Air Regul. Grp. v. EPA, 573 U.S. 302,
324 (2014))). This is a different question from whether the agency provided
an adequate explanation for shifting away from a longstanding
interpretation. 68 And even if the BIA’s explanation for changing course were
insufficient, our caselaw does not indicate that such a deficiency inherently
renders the agency’s new interpretation an unreasonable construction of the
statute. Plaintiffs have alleged only that § 23.132(b) is prohibited by § 1915.
Thus, the sole issue is whether the regulation is permissible under ICWA.
See Chevron, 467 U.S. at 842-43. The adequacy of the explanation for the
BIA’s new position is separate from, and immaterial to, this question.
Judge Duncan offers no argument as to why it is unreasonable to
interpret § 1915 to permit the BIA to require the clear-and-convincing
evidence standard beyond his reference to the expressio unius canon, which
we have already found insufficient to foreclose the BIA’s application of that
standard. And because the BIA was reasonable in interpreting § 1915 not to
68
To be sure, how long an agency adhered to a prior statutory interpretation may
be a relevant consideration when a plaintiff does allege a procedural APA violation because
an agency’s explanation for a change of course must account for reliance interests
engendered by its prior policy. See Fox Television Stations, Inc., 556 U.S. at 515 (citing
Smiley, 517 U.S. at 742). But Plaintiffs have not raised such a challenge to § 23.132(b).
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prohibit a heightened standard of proof, we conclude that § 23.132(b) did not
exceed the BIA’s statutory authority. See 5 U.S.C. § 706(a)(2).
***
For these reasons, we conclude as follows: First, Plaintiffs have
standing to press their claims except as to §§ 1913(d) and 1914. Next, the en
banc court holds that Congress was authorized to enact ICWA. We conclude
that this authority derives from Congress’s enduring obligations to Indian
tribes and its plenary authority to discharge this duty. And, although the en
banc majority decides otherwise as to some provisions and the en banc court
is equally divided as to others, we would hold that none of ICWA’s provisions
violate the Tenth Amendment’s anticommandeering doctrine. Thus, we
would hold that ICWA validly preempts any conflicting state law, and we
dissent from the en banc majority’s decision to the extent it differs from this
conclusion.
In addition, for the en banc court, we hold that ICWA’s “Indian
Child” designation and the portions of the Final Rule that implement it do
not offend equal protection principles because they are based on a political
classification and are rationally related to the fulfillment of Congress’s
unique obligation toward Indians, and we REVERSE the district court’s
determination to the contrary. And, though the en banc court is equally
divided on the matter, we would likewise determine that ICWA’s adoptive
placement preference for “other Indian families,” and its foster care
placement preference for a licensed “Indian foster home,” and the
regulations implementing these preferences are consistent with equal
protection.
We also hold for the en banc court that § 1915(c) does not contravene
the nondelegation doctrine because the provision is either a valid prospective
incorporation by Congress of another sovereign’s law or a delegation of
regulatory authority. We therefore REVERSE this aspect of the district
court’s ruling.
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Further, we hold for the en banc court that the BIA acted within its
statutory authority in issuing binding regulations, and we hold for the en banc
court that the agency did not violate the APA when it changed its position on
the scope of its authority because the agency provided a reasonable
explanation for its new stance. And we hold for the en banc court that the
portions of the Final Rule that implement all parts of ICWA other than
§§ 1912(d)-(f) and 1915(e) do not violate the APA. We thus REVERSE the
district court’s contrary conclusions.
Although a majority of the en banc court disagrees, we would also
conclude that the portions of the Final Rule implementing §§ 1912(d)-(f) and
1915(e) are valid because these statutory provisions are constitutional, and
we would hold that the provision of the Final Rule implementing § 1915’s
“good cause” standard is reasonable. We thus dissent from the en banc
majority’s decision that these portions of the Final Rule are invalid.
Because we conclude that that the challenged provisions of ICWA are
constitutional in all respects and that the Final Rule validly implements the
statute, we would reverse the district court in full and render judgment in
favor of Defendants on all claims. We dissent from those portions of the en
banc majority’s decision that fail to do so.
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Stuart Kyle Duncan, Circuit Judge: †
We consider challenges to the Indian Child Welfare Act of 1978
(“ICWA”), 92 Stat. 3069, 25 U.S.C. §§ 1901–1963, and its implementing
regulations, 81 Fed. Reg. 38,778 (June 14, 2016) (“The Final Rule”).
ICWA is a federal law that regulates state foster-care and adoption
proceedings involving Indian children. The law is challenged by three states,
which claim it abridges their sovereignty, and by several couples seeking to
adopt Indian children, who claim it unfairly blocks them from doing so. The
case is one of first impression and raises many intricate issues. That should
come as no surprise, given that “[t]he condition of the Indians in relation to
the United States is perhaps unlike that of any other two people in existence
. . . . marked by peculiar and cardinal distinctions which exist no where else.”
Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1, 16 (1831) (Marshall, C.J.); see
also Cohen’s Handbook of Federal Indian Law § 1.01 (2019)
[hereinafter “Cohen’s”] (“The field of Indian law and policy is
†
Judges Smith, Elrod, Willett, Engelhardt, and Oldham join
Judge Duncan’s opinion in full. Judge Jones joins all except Parts III(A)(2) (equal
protection as to “Indian child”) and that portion of Part III(B)(2)(a) concerning
preemption by the appointed counsel provision in 25 U.S.C. § 1912(d).
Chief Judge Owen joins Part III(B) (anti-commandeering/preemption) and
Part III(D)(3) (“good cause” standard in 25 C.F.R. § 23.132(b) violates APA). See infra
Owen, C.J., concurring in part and dissenting in part.
Judge Southwick joins Parts III(B)(1)(a)(i)–(ii) (anti-commandeering as to
§ 1912(d)–(f)); Part III(B)(2)(a) (preemption); Part III(B)(2)(b) (in part) (no preemption,
only as to § 1912(d)–(f)); Part III(B)(2)(c) (in part) (preemption, except as to the discussion
of § 1951(a)); and Part III(D)(1) (in part) (Final Rule violates APA to extent it implements
§ 1912(d)–(f)).
Judge Haynes joins Part I (standing); Part III(A)(3) (equal protection as to
“other Indian families”); Parts III(B)(1)(a)(i), III(B)(1)(a)(iv), III(B)(1)(a)(ii) (in part),
III(B)(1)(b) (in part), and III(B)(2)(b) (in part) (anti-commandeering/preemption as to
§§ 1912(d)–(e) and 1915(e)); Part III(D)(1) (in part) (Final Rule violates APA to extent it
implements provisions found unconstitutional in those portions of Parts III(A) and (B) that
Judge Haynes joins); and Part III(D)(3) (“good cause” standard in 25 C.F.R.
§ 23.132(b) fails at Chevron step one). See infra Haynes, J., concurring.
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extraordinarily complex, rich, controversial, and diverse.”). To guide the
reader through our lengthy decision, we provide this summary.
First, we conclude ICWA exceeds Congress’s power to the extent it
governs state proceedings. Congress, to be sure, has “plenary” authority to
legislate on Indian affairs. United States v. Lara, 541 U.S. 193, 200 (2004)
(quoting Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989)). But
ICWA does something that, to our knowledge, no federal Indian law has ever
tried: it governs states’ own administrative and judicial proceedings. That is
an unheard-of exercise of the Indian affairs power, and neither Supreme
Court precedent nor founding-era practice justifies it. And ICWA is all the
more jarring because of its subject matter: domestic relations. That subject
“belongs to the laws of the states, and not to the laws of the United States,”
and is “one in regard to which neither the congress of the United States, nor
any authority of the United States, has any special jurisdiction.” Ex parte
Burrus, 136 U.S. 586, 594 (1890). And yet ICWA co-opts the states to create,
in essence, a federal adoption system for Indian children. The Constitution
does not empower Congress to do that. To say otherwise would mock “our
federal system, [in which] the National Government possesses only limited
powers [and] the States and the people retain the remainder.” Bond v. United
States, 572 U.S. 844, 854 (2014).
Second, in the alternative, we conclude many parts of ICWA are
unconstitutional or unlawful. ICWA’s unequal standards for “Indian
children” and “Indian families” violate the Fifth Amendment’s equal
protection guarantee by failing to rationally link children to tribes. Many
provisions commandeer states by conscripting their agencies, officials, and
courts into a federal regulatory program. Another provision delegates to
Indian tribes the power to change enacted federal law setting child placement
preferences. Declaratory relief is proper as to those provisions. Finally, a
2016 rule implementing ICWA violates the Administrative Procedure Act by
2
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exceeding the agency’s authority over state courts. To that extent, the rule
must be declared unlawful.
Our decision does not affect all of ICWA. Some provisions do not
govern state proceedings—such as those giving tribes exclusive jurisdiction
over on-reservation children, those permitting states and tribes to adjust their
jurisdictions, and those granting funds for tribal programs. These provisions
are not challenged here and do not fall within our decision. With that
qualification, we affirm the district court’s judgment declaring parts of
ICWA and the Final Rule unconstitutional and unlawful.
Table of Contents
Background ............................................................................................ 4
I. Indian Child Welfare Act .................................................................. 4
II. Final Rule .......................................................................................... 7
III. Parties ............................................................................................... 9
IV. District Court Proceedings ............................................................... 11
Standard of Review .......................................................................... 13
Discussion ............................................................................................. 13
I. Article III Standing ........................................................................... 13
II. Challenge to Congress’s Power to Enact ICWA.............................. 21
III. Challenges to Specific ICWA Provisions ......................................... 52
A. Fifth Amendment Equal Protection .............................................. 53
B. Commandeering and Preemption .................................................. 69
1. Commandeering.......................................................................... 73
2. Preemption.................................................................................. 88
3
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C. Nondelegation ............................................................................ 100
D. Administrative Procedure Act .................................................... 109
E. Remedy ....................................................................................... 121
Background
I. Indian Child Welfare Act
In 1978, Congress enacted ICWA out of concern that too many Indian
children were being unjustifiably removed from their families and adopted by
non-Indians. Specifically, Congress found that “an alarmingly high
percentage of Indian families [were being] 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 [were being]
placed in non-Indian foster and adoptive homes and institutions.” 25 U.S.C.
§ 1901(4). Congress also found that “the States, exercising their recognized
jurisdiction over Indian child custody proceedings through administrative
and judicial bodies, ha[d] often failed to recognize the essential tribal
relations of Indian people and the cultural and social standards prevailing in
Indian communities and families.” § 1901(5). ICWA therefore set
“minimum Federal standards” for removing Indian children and placing
them in foster and adoptive homes “which will reflect the unique values of
Indian culture.” § 1902. These standards sought “to protect the best
interests of Indian children and to promote the stability and security of Indian
tribes and families.” Id. As authority for the law, Congress invoked its
“plenary power over Indian affairs,” grounded in the Indian Commerce
Clause and “other constitutional authority.” § 1901(1); see U.S. Const.
art. I, § 8, cl. 3 (vesting Congress with “Power . . . [t]o regulate Commerce
. . . with the Indian Tribes”).
4
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ICWA applies to a “child custody proceeding” involving an “Indian
child.” § 1903(1), (4). 1 Such proceedings include foster care placements,
terminations of parental rights, and preadoptive and adoptive placements.
§ 1903(1)(i)–(iv). If a proceeding involves an Indian child living on a tribe’s
reservation, the tribe has exclusive jurisdiction. § 1911(a). For off-reservation
Indian children, state courts exercise concurrent jurisdiction with tribal
courts, but must transfer a proceeding to tribal jurisdiction upon request of
either parent or the child’s tribe, absent good cause or a parent’s objection.
§ 1911(b); see also Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 162 (Tex.
App.—Houston [14th Dist.], Aug. 24, 1995, pet. denied) (explaining “state
courts may exercise jurisdiction concurrently with the tribal courts” in
proceedings involving off-reservation children).
For proceedings remaining under state jurisdiction, ICWA imposes
numerous requirements. For instance, a party seeking foster placement, or
termination of parental rights, must notify the Indian child’s parent and tribe
of that party’s “right to intervene.” §§ 1911(c), 1912(a). 2 Indigent parents
have the “right to court-appointed counsel.” § 1912(b). Any party has “the
right to examine all reports or other documents filed with the court[.]”
§ 1912(c). To prevail, the party seeking placement or termination must prove
that “active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian
family” and “have proved unsuccessful.” § 1912(d). The party must also
offer evidence, “including testimony of qualified expert witnesses,” that the
1
An “Indian child” is 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 in an Indian
tribe and is the biological child of a member of an Indian tribe.” § 1903(4).
2
The Secretary of the Interior must be notified if the parent or custodian cannot
be found. § 1912(a).
5
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parent’s continued custody will likely cause the child “serious emotional or
physical damage.” § 1912(e)–(f). Proof must be by “clear and convincing
evidence” for foster placement, § 1912(e), and “beyond a reasonable doubt”
for termination, § 1912(f).
If parents voluntarily consent to a placement or to termination of
rights, they can withdraw consent “at any time” before the process ends.
§ 1913(b)–(c). Following an adoption, the birth parents may withdraw
consent based on fraud or duress for up to two years. § 1913(d). A child,
parent, or tribe may also sue to invalidate the placement or termination for
any violation of §§ 1911, 1912, or 1913. § 1914.
ICWA also dictates where Indian children may be placed. In adoptions
governed by state law, an Indian child must be placed, absent “good cause,”
with “(1) a member of the child’s extended family; (2) other members of the
Indian child’s tribe; or (3) other Indian families.” § 1915(a). Similarly, in
foster or pre-adoptive placements, an Indian child must be placed (again,
absent good cause) with: (1) extended family; (2) a foster home “licensed,
approved, or specified” by the tribe; (3) a licensed “Indian foster home”; or
(4) an “institution for children” either tribe-approved or operated by a
suitable Indian organization. § 1915(b)(i)–(iv). In any case, the child’s tribe
may “establish a different order of preference by resolution,” which the
“agency or court effecting the placement shall follow,” provided “the
placement is the least restrictive setting appropriate to the particular needs
of the child.” § 1915(c). The “State” must maintain a record of an Indian
child’s placement that “evidenc[es] the efforts to comply with the order of
preference specified in [§ 1915]” and that “shall be made available at any
time upon request of the Secretary or the Indian child’s tribe.” § 1915(e).
ICWA also requires state courts to maintain and transmit various
records. For instance, upon request of an adopted Indian eighteen or older, a
6
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court must provide “the tribal affiliation, if any, of the individual’s biological
parents and . . . such other information as may be necessary to protect any
rights flowing from the individual’s tribal relationship.” § 1917. Additionally,
a state court must provide the Secretary with a copy of a final adoption decree
“together with such other information as may be necessary to show” various
matters. § 1951(a). 3
Finally, ICWA contains a severability clause providing that, “[i]f any
provision . . . or the applicability thereof is held invalid, the remaining
provisions . . . shall not be affected thereby.” § 1963. 4
II. Final Rule
In 1979, the Bureau of Indian Affairs (“BIA”) promulgated guidelines
(the “1979 Guidelines”) to assist state courts in applying ICWA. See 44 Fed.
Reg. 67,584 (Nov. 26, 1979); see also 25 U.S.C. § 1952 (authorizing Secretary
of Interior to “promulgate such rules and regulations . . . necessary” to
implement ICWA). The 1979 Guidelines were “not intended to have binding
legislative effect.” 44 Fed. Reg. at 67,584. BIA found nothing in ICWA or its
legislative history to suggest that Congress intended the Department to
exercise “supervisory authority” over courts deciding Indian child-custody
matters. Id. Such authority would be “so at odds with concepts of both
3
Those matters are: (1) the child’s name and tribal affiliation, (2) the names and
addresses of biological parents, (3) the names and addresses of adoptive parents, and
(4) “the identity of any agency having files or information relating to such adoptive
placement.” § 1951(a)(1)–(4); see also 25 C.F.R. §§ 23.140–141 (additional recordkeeping
requirements applicable to both courts and agencies).
4
ICWA contains other provisions unrelated to state child-custody proceedings,
such as provisions permitting jurisdictional agreements between states and Indian tribes
(§ 1919); provisions addressing the Secretary’s approval of tribal re-assumption of
jurisdiction (§ 1918); and provisions concerning grants and funding for tribal child and
family programs (§§ 1931–1933). As explained infra III(E), our decision does not affect
these provisions.
7
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federalism and separation of powers that it should not be imputed to
Congress in the absence of an express declaration of Congressional intent to
that effect.” Id. Rather, “[p]rimary responsibility” for interpreting ICWA
“rests with the courts that decide Indian child custody cases.” Id. In
particular, the Guidelines mentioned the “good cause” standard, which was
“designed to provide state courts with flexibility in determining the
disposition of a placement proceeding involving an Indian child.” Id.; see
§ 1915(a)–(b).
In 2016, BIA changed course and promulgated new regulations (the
“Final Rule”) that “set binding standards for Indian child-custody
proceedings in State courts.” 81 Fed. Reg. 38,778, 38,785 (June 14, 2016).
BIA stated it “no longer agrees with statements it made in 1979 suggesting
that it lacks the authority to issue binding regulations.” Id. at 38,786. It now
found binding standards “necessary,” see § 1952, given “divergent
interpretations of ICWA provisions by State courts and uneven
implementation by State agencies.” 81 Fed. Reg. at 38,787. In particular, the
new regulations restrict what constitutes “good cause” to depart from
ICWA’s placement preferences. See id. at 38,843–47. The “good cause”
standard, the new regulations assert, is not determined by the “best interests
of the child” but is instead “a limited exception” to the preferences. Id. at
38,847. Accordingly, the new regulations limit “good cause” to five factors.
See 25 C.F.R. § 23.132(c). Moreover, the party seeking departure “should”
bear the burden of proving good cause “by clear and convincing evidence.”
Id. § 23.132(b). BIA acknowledged that the clear-and-convincing standard
“is not articulated in section 1915,” but asserted courts have “almost
universally concluded” it is the right standard. 81 Fed. Reg. at 38,843.
Finally, BIA explained the Final Rule only “advises” that the standard
“‘should’ be followed,” but “does not categorically require that outcome”
and “declines to establish a uniform standard of proof on this issue.” Id.
8
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III. Parties
A. Plaintiffs
Plaintiffs are the states of Texas, Louisiana, and Indiana (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 Danielle
Clifford (the “Cliffords”) (collectively, “Individual Plaintiffs”). 5
1. A.L.M., Y.R.J., and the Brackeens
In 2015, A.L.M. was born in New Mexico to unmarried parents. His
biological mother is a member of the Navajo Nation and his biological father
is a member of the Cherokee Nation. Soon after birth, his mother brought
A.L.M. to live in Texas with his paternal grandmother. The Child Protective
Services Division (“CPS”) of the Texas Department of Family and
Protective Services (“DFPS”) removed A.L.M. when he was 10 months old
and placed him in foster care with the Brackeens. In 2017, his biological
parents voluntarily terminated their rights to A.L.M. and, along with his
guardian ad litem, supported the Brackeens’ adoption petition. At the
adoption hearing, representatives of the Navajo and Cherokee Nations
agreed to designate Navajo as A.L.M.’s tribe because the Navajo had located
an alternate placement with non-family tribal members in New Mexico. The
Texas family court denied the Brackeens’ petition, concluding they failed to
prove by clear and convincing evidence good cause to depart from ICWA’s
placement preferences. The DFPS announced its intention to remove
A.L.M. from their care and transfer him to the Navajo family. The Brackeens
5
References to “Plaintiffs” include both State Plaintiffs and Individual Plaintiffs.
9
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obtained an emergency stay and filed this lawsuit. The proposed Navajo
placement then withdrew, and the Brackeens finalized A.L.M.’s adoption.
The Brackeens are now engaged in Texas state court proceedings to
adopt A.L.M.’s half-sister, Y.R.J., who was born in June 2018 to A.L.M.’s
biological mother. The Navajo Nation again opposes the Brackeens’ petition
to adopt Y.R.J. based on ICWA’s placement preferences. The proceedings
are ongoing. See In re Y.J., No. 02-19-235-CV, 2019 WL 6904728, at *1 (Tex.
App.—Fort Worth, Dec. 19, 2019, pet. filed) (remanding for further
proceedings).
2. Baby O., Hernandez, and the Librettis
In 2016, Baby O. was born in Nevada to plaintiff Hernandez, a non-
Indian. Her biological father, E.R.G., is descended from members of the
Ysleta del sur Pueblo Tribe (“Pueblo”) but was not an enrolled member
when Baby O. was born. With E.R.G.’s support, Hernandez decided to have
the Librettis adopt Baby O., who accompanied the Librettis home three days
after her birth. The Pueblo Tribe intervened in the Nevada custody
proceedings and identified numerous alternative Indian-family placements
for Baby O. under ICWA. After the Librettis joined this lawsuit, however, the
tribe withdrew its objections and the Librettis finalized Baby O.’s adoption in
late 2018.
3. Child P. and the Cliffords
Born in 2011 in Minnesota, Child P. was placed in foster care in 2014
when her biological parents were arrested and charged with various drug-
related offenses. For two years Child P. moved from placement to placement
until Minnesota terminated her mother’s rights and placed her with the
Cliffords in 2016, who have since sought to adopt her. Child P.’s maternal
grandmother, R.B., is a member of the White Earth Band of the Ojibwe Tribe
(the “White Earth Band”). After Child P. initially entered foster care in
10
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2014, the White Earth Band notified the court that she was ineligible for
membership. After Child P. was placed with the Cliffords, however, the tribe
changed its position, notified the court that Child P. was eligible for
membership, and has since announced that Child P. is a member. As a result,
Minnesota removed Child P. from the Cliffords and placed her with R.B. in
2018. The state trial court concluded that the Cliffords had not established
“good cause” to deviate from ICWA’s preferences by “clear and convincing
evidence,” a decision since affirmed on appeal. See In re S.B., No. A19-225,
2019 WL 6698079, at *6 (Minn. Ct. App. Dec. 9, 2019). Child P.’s adoption,
however, has not been finally approved; until it is, the Cliffords remain
eligible to adopt her.
B. Defendants
Defendants are the United States of America and various federal
agencies and officials, referred to collectively as the “Federal Defendants.” 6
Shortly after this suit was filed, the Cherokee Nation, Oneida Nation,
Quinault Indian Nation, and Morongo Band of Mission Indians (collectively,
the “Tribal Defendants”) were allowed to intervene as defendants. On
appeal, we granted the Navajo Nation’s motion to intervene as a defendant. 7
IV. District Court Proceedings
Plaintiffs sued in federal district court seeking injunctive relief and a
declaration that ICWA and the Final Rule violate various provisions of the
6
Specifically, they are the United States Department of the Interior and its
Secretary Deb Haaland, in her official capacity; the BIA and its Acting Assistant Secretary
for Indian Affairs Darryl LaCounte, in his official capacity; and the United States
Department of Health and Human Services and its Secretary Xavier Becerra, in his official
capacity.
7
References to “Defendants” include both Federal Defendants and Tribal
Defendants.
11
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Constitution and the APA. Defendants moved to dismiss for lack of standing.
The district court denied the motion, finding that at least one Plaintiff had
standing to bring each claim. Plaintiffs then moved for summary judgment on
all their claims, which the district court granted in part and denied in part.
See Brackeen v. Zinke, 338 F. Supp. 3d 514 (N.D. Tex. 2018).
First, the district court ruled that ICWA discriminates on the basis of
a racial classification that fails to satisfy strict scrutiny and therefore violates
the Fifth Amendment’s equal protection component. Second, the court
ruled that ICWA’s provision empowering Indian tribes to re-order
placement preferences improperly delegates federal legislative power. Third,
the court ruled that various provisions of ICWA “commandeer” state
agencies, officials, and courts in violation of Article I and the Tenth
Amendment and do not validly preempt conflicting state laws. Fourth, the
court ruled that various provisions of the Final Rule violate the APA. Finally,
the court ruled that ICWA as a whole exceeds Congress’s power under the
Indian Commerce Clause. 8 The court’s final judgment therefore declared
certain provisions of ICWA and the Final Rule unconstitutional. 9
On appeal, a panel of our court reversed the district court on all
grounds. Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019). Judge Owen
dissented in part. Id. at 441–46 (Owen, J., dissenting in part). We granted
en banc rehearing. Brackeen v. Bernhardt, 942 F.3d 287 (2019).
8
The court denied summary judgment on Plaintiffs’ Fifth Amendment claim based
on parents’ fundamental rights to “make decisions concerning the care, custody, and
control of their children.” Troxel v. Granville, 530 U.S. 57 (2000). The court reasoned those
rights had never been extended to foster families, prospective adoptive parents, or
“adoptive parents whose adoption is open to collateral attack.” Brackeen, 338 F. Supp. 3d
at 546. Plaintiffs have not appealed that ruling.
9
Specifically, it declared unconstitutional 25 U.S.C. §§ 1901–23 and 1951–52, as
well as 25 C.F.R. §§ 23.106–22, 23.124–32, and 23.140–41.
12
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Standard of Review
“We review a grant of summary judgment de novo, applying the same
standard as the district court.” All. for Good Gov’t v. Coal. for Better Gov’t,
901 F.3d 498, 504 (5th Cir. 2018) (citation omitted). “We review de novo the
constitutionality of federal statutes.” United States v. McGinnis, 956 F.3d
747, 752 (5th Cir. 2020) (citation omitted). We must set aside final agency
action under the APA if “such action was ‘arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.’” Sw. Elec. Power Co. v.
EPA, 920 F.3d 999, 1013 (5th Cir. 2019) (quoting 5 U.S.C. § 706(2)(A)).
Discussion
We proceed as follows. First, we address whether Plaintiffs have
Article III standing to assert their claims, and conclude they do (infra I).
Next, we address whether ICWA exceeds Congress’s constitutional power
over Indian affairs (infra II). Agreeing with the district court in part, we
conclude that ICWA exceeds Congress’s power to the extent it governs state
child-custody proceedings. Alternatively (infra III), we address the court’s
holdings that parts of ICWA and the Final Rule violate the Fifth Amendment
equal protection guarantee (III(A)); the anti-commandeering and
preemption doctrines (III(B)); the nondelegation doctrine (III(C)); and the
APA (III(D)). Concluding that parts of ICWA and the Final Rule are
unconstitutional or unlawful on those grounds, we then address the
appropriate remedy (III(E)).
I. Article III Standing
We first address whether Plaintiffs have Article III standing. The
district court ruled they did, concluding that the State Plaintiffs had standing
to assert claims that ICWA exceeds Congress’s power, commandeers states,
and violates the nondelegation doctrine; that the Individual Plaintiffs had
13
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standing to assert equal protection claims; and that all Plaintiffs had standing
to challenge the Final Rule under the APA.
We review standing de novo. Stringer v. Whitley, 942 F.3d 715, 720 (5th
Cir. 2019). Article III standing requires plaintiffs to show an injury traceable
to defendants’ conduct that a judicial decision would likely redress. See Thole
v. U.S. Bank N.A., 140 S. Ct. 1615, 1618 (2020) (citing Lujan v. Defs. of
Wildlife, 504 U.S. 555, 560–61 (1992)); see also Texas v. United States, 945
F.3d 355, 374 (5th Cir. 2019) (standing requires “injury, causation, and
redressability”) (citation omitted). At least one plaintiff must have standing
“for each claim he seeks to press and for each form of relief that is sought.”
Town of Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650 (2017) (citation
omitted). “[T]he presence of one party with standing is sufficient to satisfy
Article III’s case-or-controversy requirement.” Rumsfeld v. Forum for Acad.
& Inst. Rights, Inc., 547 U.S. 47, 52 n.2 (2006).
A.
The claims that ICWA exceeds Congress’s power, commandeers
states, and improperly delegates legislative power are, in essence, claims that
ICWA encroaches on states’ prerogatives to administer child-custody
proceedings. State Plaintiffs have standing to bring these claims, which assert
injuries unique to states, caused by the Federal Defendants’ administration
of ICWA, and redressable by a favorable decision.
We have found that states “may have standing based on (1) federal
assertions of authority to regulate matters [states] believe they control,
(2) federal preemption of state law, and (3) federal interference with the
enforcement of state law.” Texas v. United States, 809 F.3d 134, 153 (5th Cir.
2015) (citations omitted), aff’d by equally divided Court, 136 S. Ct. 2271 (2016)
14
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(Mem.). 10 Those principles easily encompass State Plaintiffs’ claims that
ICWA hijacks their child-custody machinery and improperly supplants their
child-custody standards, either directly or by delegation to tribes. They also
explain why State Plaintiffs have standing to assert under the APA that the
Final Rule improperly issued regulations purporting to bind state
administration of child-custody proceedings. See id. at 151–54 (holding
federal statute may afford states standing to vindicate injury to their “quasi-
sovereign” interests) (citing Massachusetts v. EPA, 549 U.S. 497, 518–20
(2007)); Texas, 945 F.3d at 384 (states have standing to challenge statute
infringing sovereign interest in “applying their own laws and policies”); see
also 5 U.S.C. § 702 (affording right of judicial review to persons “suffering
legal wrong because of agency action, or adversely affected or aggrieved by
agency action”). 11
B.
The equal protection claims assert ICWA and the Final Rule wrongly
discriminate against Indian children and non-Indian families. The Individual
Plaintiffs claim this unequal treatment permeates the law and regulations,
beginning with the threshold definition of “Indian child.” See 25 U.S.C.
10
See also Tex. Office of Pub. Util. Council v. FCC, 183 F.3d 393, 449 (5th Cir. 1999)
(“States have a sovereign interest in ‘the power to create and enforce a legal code.’”)
(quoting Alfred L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 601 (1982)).
11
Defendants contest State Plaintiffs’ standing to bring a nondelegation challenge
to § 1915(c), which allows tribes to vary ICWA’s placement preferences. Defendants say
any injury is speculative because no evidence shows that a tribally-reordered preference has
affected proceedings in the plaintiff states. See Lujan, 504 U.S. at 560 (injury must be
“actual or imminent, not conjectural or hypothetical” (internal quotation marks omitted)).
We disagree. As State Plaintiffs note, one Texas tribe, the Alabama-Coushatta, has filed its
reordered preferences with the Texas DFPS. The claimed injury from § 1915(c) is thus
sufficient to support standing. See, e.g., Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158
(2014) (“An allegation of future injury may suffice if the threatened injury is ‘certainly
impending,’ or there is a ‘substantial risk that the harm will occur.’”) (cleaned up).
15
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§ 1903(4). They claim the placement preferences for Indian children,
§ 1915(a)–(b), “impose a naked preference for ‘Indian families’ over families
of any other race,” and make non-Indians show “good cause” to depart from
them, id. They claim the collateral attack provisions, §§ 1913(d) and 1914,
make their adoptions of Indian children more vulnerable to being overturned.
Finally, they claim the Final Rule implementing these provisions adds to their
injuries. 12 The State Plaintiffs assert similar claims on behalf of “children in
their care,” alleging ICWA and the Final Rule “require [their] agencies and
courts” to “carry out the racially discriminatory policy objectives of
[ICWA]” and to expend “resources and money” in doing so. All Plaintiffs
seek a declaration that §§ 1913(d), 1914, and 1915 are unconstitutional and an
injunction prohibiting the Federal Defendants from implementing those
sections “by regulations, guidelines, or otherwise.” They also seek
declaratory relief and an injunction prohibiting the Federal Defendants from
enforcing funding mechanisms tied to states’ compliance with ICWA. See 42
U.S.C. §§ 622(b)(9), 677(b)(3)(G).
We agree with the district court that the Individual Plaintiffs have
standing to challenge ICWA and the Final Rule. 13 As persons seeking to
adopt Indian children, the Individual Plaintiffs are “objects” of the contested
provisions, and the “ordinary rule” is that they have standing to challenge
them. Contender Farms, L.L.P. v. U.S. Dep’t of Agric., 779 F.3d 258, 264–266
(5th Cir. 2015) (quoting Lujan, 504 U.S. at 561). Their adoptions have been
burdened, in various ways, by ICWA’s unequal treatment of non-Indians.
12
See, e.g., 25 C.F.R. §§ 23.129–32 (implementing preferences); id. § 23.132(b)
(party seeking departure from preferences must prove “good cause” by “clear and
convincing evidence”); id. §§ 23.136–37 (implementing collateral attack provisions).
13
We therefore need not consider whether the State Plaintiffs have standing to
bring equal protection claims on behalf of Indian children in their care.
16
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For instance, the Brackeens’ adoption of A.L.M. was hampered and delayed
by the preferences, 14 burdens they are again suffering in trying to adopt
A.L.M.’s half-sister, Y.R.J. See Y.J., 2019 WL 6904728, at *5 (noting the
Navajo seek “a judgment that Y.J. be placed in accordance with ICWA
preferences”). Moreover, the Brackeens’ adoption of A.L.M. (and Y.R.J.
too, if successful) will be open to collateral attack under ICWA. 15 Similarly,
the Cliffords’ attempt to foster Child P. has been thwarted by the pre-
adoptive preferences—they failed to show good cause to depart by “clear and
convincing evidence”—and they will be hampered by the adoptive
14
Defendants argue that, because the Brackeens’ adoption of A.L.M. was
completed in January 2018, their claims regarding A.L.M. are moot. We disagree. The
situation falls within the “capable of repetition, yet evading review” exception to mootness
because (1) A.L.M.’s adoption was “in its duration too short to be fully litigated prior to
[its being settled]”; and (2) given the Brackeens’ announced intent to adopt other Indian
children, “there was a reasonable expectation that [they] would be subjected to the same
action again.” Kucinich v. Tex. Democratic Party, 563 F.3d 161, 164 (5th Cir. 2009) (citation
omitted). Judge Wiener’s partial dissent argues neither prong applies. As to prong one,
he contends the Brackeens “could have litigated their ICWA challenges in state court
during A.L.M.’s July 2017 adoption proceedings, long before” the district court’s October
2018 judgment. Wiener Op. at 5 n.18. We disagree. The Brackeens were contesting the
preferences during the state proceedings, but those proceedings were settled in December
2017 due to the fortuity that the Navajo placement “was no longer available” and no others
materialized. As to the second prong, Judge Wiener contends the Brackeens’ “stated
reluctance to adopt other Indian children was too vague.” Id. We disagree. The Brackeens
needed to show only a “reasonable expectation” they would again face ICWA’s burdens.
Kucinich, 563 F.3d at 164. They did so by alleging they “intend[ed]” to foster and adopt
other Indian children, and then by supplementing the record to document their effort to
adopt Y.R.J., beginning with their letter to the state agency in September 2018. See, e.g.,
FEC v. Wis. Right to Life, Inc., 551 U.S. 449, 463 (2007) (second prong satisfied when
plaintiff “credibly claimed that it planned” to engage in similar activity subject to prior
regulation).
15
Specifically, the Brackeens’ adoption of A.L.M. remains open to attack under
§ 1914, and their prospective adoption of Y.R.J. would be open to attack under both
§§ 1913(d) and 1914. Unlike § 1913(d), which allows a collateral attack based on fraud or
duress only for two years after the adoption, § 1914 specifies no time frame for a collateral
attack based on a claimed violation of any provision of §§ 1911–1913.
17
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preferences in their planned adoption of Child P. If the Brackeens and the
Cliffords were Indians, or if the children they sought to adopt were non-
Indians, none of these obstacles would exist.
Those unequal burdens are injuries-in-fact for equal protection
purposes. An equal protection injury consists in “[d]iscriminatory treatment
at the hands of the government.” Time Warner Cable, Inc. v. Hudson, 667 F.3d
630, 636 (5th Cir. 2012) (alteration in original). 16 If plaintiffs show such
disparate treatment, then “no further showing of suffering based on that
unequal positioning is required for purposes of standing.” Time Warner, 667
F.3d at 636; see also Ne. Fla. Chapter of Associated Gen. Contractors v. City of
Jacksonville, 508 U.S. 656, 666 (1993) (“The ‘injury in fact’ in an equal
protection case . . . is the denial of equal treatment resulting from the
imposition of the barrier, not the ultimate inability to obtain the benefit.”).
The Individual Plaintiffs have made that showing here. 17 And their injuries
16
See also Moore v. Bryant, 853 F.3d 245, 250 (5th Cir. 2017) (explaining “the
gravamen of an equal protection claim is differential governmental treatment”); Contender
Farms, 779 F.3d at 266 (“An increased regulatory burden typically satisfies the injury in
fact requirement.”) (citation omitted).
17
The Federal Defendants argue no Plaintiff has standing to challenge the collateral
attack provisions because it is “speculative” whether any such attack will occur. We
disagree. The injury arises from those provisions’ unequal treatment of the adoptions, not
from any collateral attack itself. That injury is concrete, “irrespective of whether the
plaintiff[s] will sustain an actual or more palpable injury as a result of the unequal
treatment.” Time Warner, 667 F.3d at 636 (citation omitted). We disagree with Judge
Dennis that this injury is not imminent under Barber v. Bryant, 860 F.3d 345 (5th Cir.
2017). Dennis Op. at 41–42. There, plaintiffs brought equal protection claims against a
Mississippi law that protected persons holding traditional beliefs about marriage, sexual
relations, and sex from discriminatory state action in specified areas, such as licensing or
celebrating marriages. Barber, 860 F.3d at 351. We held plaintiffs lacked a “certainly
impending” injury because they had not alleged they “plan[ned] to engage” in any conduct
covered by the statute. Id. at 357. Although one plaintiff did “stat[e] his intention to
marry,” he did not allege that he was seeking marriage-related services from someone who
might refuse or “even that he intended to get married in Mississippi.” Id. The Brackeens
18
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are traceable, in part, to the Federal Defendants’ implementing ICWA
through the Final Rule and to their inducing state officials to apply ICWA
through the leverage of child welfare funds. See K.P. v. LeBlanc, 627 F.3d 115,
123 (5th Cir. 2010) (traceability requires only that defendants “significantly
contributed” to injury); see also Inclusive Cmtys. Project, Inc. v. Dep’t of
Treasury, 946 F.3d 649, 655 (5th Cir. 2019) (causation “doesn’t require a
showing . . . that the defendant’s actions are the very last step in the chain of
causation” and “isn’t precluded where the defendant’s actions produce a
determinative or coercive effect upon the action of someone else”) (quoting
Bennett v. Spear, 520 U.S. 154, 167, 169 (1997)) (internal quotation marks
omitted).
Finally, our decision would redress the Individual Plaintiffs’ injuries.
Redressability means a decision’s “practical consequences” would
“significant[ly] increase . . . the likelihood” of relief. Utah v. Evans, 536 U.S.
452, 464 (2002). “The relief sought needn’t completely cure the injury,
however; it’s enough if the desired relief would lessen it.” Inclusive Cmtys.
Project, 946 F.3d at 655 (citation omitted); see also Dep’t of Tex., Veterans of
the Foreign Wars of U.S. v. Tex. Lottery Comm’n, 760 F.3d 427, 432 (5th Cir.
2014) (en banc) (a decision need only relieve “a [plaintiff’s] discrete injury,”
not his “every injury”) (citation omitted). Here, the requested relief would
redress the Individual Plaintiffs’ injuries in numerous ways. For instance, it
would make overcoming ICWA’s preferences easier, because the Individual
Plaintiffs would no longer have to justify departure “by clear and convincing
are in a different position. Unlike the Barber plaintiffs, the Brackeens have engaged in
conduct covered by §§ 1913 and 1914—adopting Indian children—and their adoptions are
now vulnerable to collateral attack, unlike adoptions of non-Indian children. That
“[d]iscriminatory treatment at the hands of the government” is a present injury-in-fact,
regardless of whether “an actual or more palpable injury” will later materialize in the form
of a collateral attack. Time Warner, 667 F.3d at 636.
19
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evidence.” 25 C.F.R. § 23.132(b) (implementing § 1915(a)–(b)). It would
also remove state child welfare officials’ obligations to implement the
preferences, efforts “critical to the success of the . . . preferences.” 81 Fed.
Reg. at 38,839; see also infra III(B)(1)(a)(iii) (discussing state officials’
required assistance with finding preferred placements). Additionally, Federal
Defendants would be barred from inducing state officials to implement
ICWA, including the preferences, by withholding funding. 18 Finally, the
requested relief would make the adoptions less vulnerable to being
overturned: it would declare unenforceable the collateral attack provisions
themselves (§§ 1913(d), 1914), the underlying grounds for invalidity
(§§ 1911–1913), as well as the implementing regulations (25 C.F.R.
§§ 23.136–137). So, while a favorable decision would not guarantee the
success of the Individual Plaintiffs’ adoptions, its “practical consequences”
would “lessen” their “discrete injur[ies]” caused by ICWA’s unequal
treatment of Indian children and non-Indian families. Evans, 536 U.S. at 464;
Inclusive Cmtys. Project, 946 F.3d at 655; Dep’t of Tex., Veterans of Foreign
Wars of the U.S., 760 F.3d at 432. 19 That is enough to satisfy redressability.
18
See 42 U.S.C. § 622(b)(9) (to qualify for Title IV-B funds, a state’s child welfare
plan must describe “the specific measures taken by the State to comply with the Indian
Child Welfare Act”); id. § 624(a) (authorizing HHS Secretary to pay child welfare funds
to a state “that has a plan developed in accordance with section 622”); see also 45 C.F.R.
§§ 1355.34(b)(2)(ii)(E), 1355.36 (HHS regulations authorizing withholding of Title IV-B
and Title IV-E funds based on, inter alia, failure to comply with ICWA).
19
Redressability does not turn on whether our decision would determine the
outcome of the Brackeens’ adoption of Y.R.J. So, we need not address Judge Costa’s
view that redressability may never depend on the impact of a federal decision on a state
court. See Costa Op. at 3–11. We note that Judge Costa concedes the Brackeens have
standing to bring APA claims because “a declaratory judgment against the Interior
Secretary would bind her when it comes to enforcing the department’s challenged
regulations.” Id. at 9 (citing Franklin v. Massachusetts, 505 U.S. 788, 803 (1992)). We agree.
Consider, though, that one ground for the Brackeens’ APA claims is that the Final Rule
implements ICWA provisions that violate their equal protection rights. Thus, to decide
20
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II. Challenge to Congress’s Power to Enact ICWA
We first consider whether ICWA is unconstitutional because
Congress lacks power to regulate state child-custody proceedings involving
Indian children. The district court held ICWA exceeds Congress’s power.
The panel reversed, reasoning that “the Indian Commerce Clause grants
Congress plenary power over Indian affairs.” Brackeen, 937 F.3d at 434
(citing Lara, 541 U.S. at 200). On en banc rehearing, Defendants continue to
defend ICWA as a valid exercise of Congress’s “plenary and exclusive
authority over Indian affairs,” derived from the Indian Commerce Clause,
U.S. Const. art. I, § 8, cl. 3, and the Treaty Clause, art. II, § 2, cl. 2, as
well as “preconstitutional powers.”
We agree with Defendants that Congress has ample power to legislate
respecting Indians, and also that the Supreme Court has described that power
in broad terms that go beyond trade. We cannot agree, however, that
Congress’s authority is broad enough to justify ICWA’s intrusion on state
child-custody proceedings. To the contrary, the Supreme Court has warned
that an exercise of Congress’s Indian power that “interfere[s] with the power
or authority of any State” would mark a “radical change[] in tribal status.”
Lara, 541 U.S. at 205. ICWA presents precisely such an interference with
state authority. We therefore hold that, to the extent ICWA governs child-
custody proceedings under state jurisdiction, it exceeds Congress’s power. 20
that APA claim, we would in any event have to address whether the relevant parts of ICWA
violate equal protection. See 5 U.S.C. § 706(2)(B) (courts may “hold unlawful and set aside
agency action . . . contrary to constitutional right”); see also Tex. Office of Pub. Utility
Counsel, 183 F.3d at 410 (“The intent of Congress in 5 U.S.C. § 706(2)(B) was that courts
should make an independent assessment of a citizen’s claim of constitutional right when
reviewing agency decision-making.”) (citation omitted).
20
We reject Defendants’ argument that this issue is not before us because the
district court did not rule on it. To the contrary, the district court ruled on the issue of
21
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A.
In urging us to uphold ICWA, Defendants rely heavily on two
propositions: that Congress’s Indian affairs power goes beyond commerce
with tribes and that the power is “plenary and exclusive.” We therefore
consider at the outset whether those propositions, of their own force, justify
ICWA. They do not. Both propositions are true as far as they go, but relying
on them to uphold ICWA would set virtually no limit on Congress’s authority
to override state sovereignty and control state government proceedings.
Defendants are correct that, under binding Supreme Court precedent,
Congress’s authority to legislate on Indian affairs extends beyond regulating
commerce with Indian tribes. Despite their textual proximity, the Indian
Commerce Clause has a “very different application[]” from the Interstate
Commerce Clause. Cotton Petroleum Corp., 490 U.S. at 192. “[T]he central
function of the Indian Commerce Clause,” the Court has explained, “is to
provide Congress with plenary power to legislate in the field of Indian
affairs.” Id. (citing Morton v. Mancari, 417 U.S. 535, 551–52 (1974);
Cohen’s at 207–08 & nn.2, 3, 9–11 (1982)). Longstanding patterns of
federal legislation bear this out. For example, in addition to commercial fields
like land 21 and mineral development, 22 Congress has enacted Indian-related
congressional authority as a necessary part of Defendants’ preemption claims. See Murphy
v. NCAA, 138 S. Ct. 1461, 1479 (2018) (preemption requires considering, first, whether the
law “represent[s] the exercise of a power conferred on Congress by the Constitution”).
21
See, e.g., 25 U.S.C. § 177 (requiring federal approval of any “purchase, grant,
lease, or other conveyance of lands . . . from any Indian nation or tribe of Indians”); id. §
81 (requiring Secretary of Interior approval for contracts leasing Indian lands); Fed. Power
Comm’n v. Tuscarora Indian Nation, 362 U.S. 99, 119 (1960) (purpose of 25 U.S.C. § 177 is
to “prevent unfair, improvident or improper disposition” of Indian lands).
22
See, e.g., 25 U.S.C. §§ 2101–2108 (development of tribal mineral resources).
22
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legislation in non-commercial fields like criminal law, 23 education, 24
probate, 25 health care,26 and housing assistance. 27 Consequently, we cannot
agree with Plaintiffs that ICWA is unconstitutional because it does not
regulate tribal “commerce.” Whatever the validity of that argument as a
matter of original constitutional meaning, cf. Adoptive Couple v. Baby Girl, 570
U.S. 637, 659–65 (2013) (Thomas, J., concurring), it is foreclosed by
Supreme Court cases interpreting the Indian Commerce Clause to extend
beyond commercial interactions with tribes.
Defendants are also correct that the Supreme Court has often
described Congress’s Indian power as “plenary and exclusive.” See, e.g.,
23
See, e.g., 18 U.S.C. § 1153 (placing certain crimes by “[a]ny Indian” within Indian
country under federal criminal jurisdiction); McGirt v. Oklahoma, 140 S. Ct. 2452, 2482
(2020) (state lacked jurisdiction to prosecute Indian defendant under Major Crimes Act
for crime committed on reservation); Lara, 541 U.S. at 199–200 (upholding statute
conferring on tribes criminal jurisdiction over nonmember Indians); United States v.
Antelope, 430 U.S. 641 (1977) (upholding Major Crimes Act); United States v. Kagama, 118
U.S. 375, 385 (1886) (same).
24
See, e.g., 25 U.S.C. § 2000 (“It is the policy of the United States to fulfill the
Federal Government’s unique and continuing trust relationship with and responsibility to
the Indian people for the education of Indian children . . . .”). See also COHEN’S
§ 22.03[1][a] (“Beginning with the 1794 Treaty with the Oneida, over 150 treaties between
tribes and the United States have included educational provisions. For almost as long a
time, Congress has legislated to provide for Indian education generally.”) (footnotes
omitted).
25
See, e.g., 25 U.S.C. § 2205 (authorizing tribes to adopt probate codes for
distribution of trust or restricted lands located on reservations or otherwise subject to tribal
jurisdiction).
26
See, e.g., 25 U.S.C. § 1601(1) (“Federal health services to maintain and improve
the health of the Indians are consonant with and required by the Federal Government’s
historical and unique legal relationship with, and resulting responsibility to, the American
Indian people.”). See also Cohen’s § 22.04 (discussing federal healthcare for Indian
tribes).
27
See, e.g., 25 U.S.C. §§ 4101–4243 (establishing housing grant program for tribes).
23
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Lara, 541 U.S. at 200 (citing Washington v. Confederated Bands & Tribes of the
Yakima Indian Nation, 439 U.S. 463, 470–71 (1979) (“Yakima Nation”);
Negonsott v. Samuels, 507 U.S. 99, 103 (1993); United States v. Wheeler, 435
U.S. 313, 323 (1978)). The Court has used that broad phrase in various
ways—sometimes to signal “the breadth of congressional power to legislate
in the area of Indian affairs,” sometimes to confirm “the supremacy of
federal over state law in this area,” and other times “as a shorthand for
general federal authority to legislate on health, safety, and morals within
Indian country, similar to the states’ police powers.” Cohen’s § 5.02[1]
(citing inter alia Lara, 541 U.S. at 200; Yakima Nation, 439 U.S. at 470;
Cotton Petroleum Corp., 490 U.S. at 192). 28 More recently, the Court has
formulated the principle this way: “As dependents, the [Indian] tribes are
subject to plenary control by Congress.” Michigan v. Bay Mills Indian Cmty.,
572 U.S. 782, 788 (2014) (citing Lara, 541 U.S. at 200). 29
Merely describing Congress’s authority as “plenary,” however, does
not settle ICWA’s validity. “The power of Congress over Indian affairs,” the
Supreme Court has explained, “may be of a plenary nature; but it is not
absolute.” Del. Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 84 (1977) (quoting
United States v. Alcea Band of Tillamooks, 329 U.S. 40, 54 (1946) (plurality
28
See also Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J.
1012, 1014 (2015) ) (“Ablavsky, Indian Commerce”) (“Plenary power, as used by the Court,
has two distinct meanings. Sometimes the Court uses the term interchangeably with
‘exclusive,’ to describe federal power over Indian affairs to the exclusion of states. But the
Court also uses the term to describe the doctrine that the federal government has
unchecked authority over Indian tribes, including their internal affairs.”) (footnotes
omitted).
29
Cf. McGirt, 140 S. Ct. at 2462 (“This Court long ago held that the Legislature
wields significant constitutional authority when it comes to tribal relations, possessing even
the authority to breach its own promises and treaties.”) (citing Lone Wolf v. Hitchcock, 187
U.S. 553, 566–68 (1903)).
24
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op.)); see also COHEN’S § 5.04[1] (“Federal power to regulate Indian affairs
is ‘plenary and exclusive,’ but not absolute.”) (footnotes omitted). In this
realm, as in any, Congress’s power is limited by other constitutional
guarantees. See New York v. United States, 505 U.S. 144, 156 (1992)
(“Congress exercises its conferred powers subject to the limitations
contained in the Constitution.”). 30 Among the most critical is the
Constitution’s structural guarantee of state sovereignty. See, e.g., Printz v.
United States, 521 U.S. 898, 918–19 (1997) (“Although the States
surrendered many of their powers to the new Federal Government, they
retained ‘a residuary and inviolable sovereignty,’ [which] . . . is reflected
throughout the Constitution’s text”) (quoting The Federalist No. 39,
at 245 (J. Madison)). No Supreme Court decision even hints that Congress’s
Indian affairs power trumps state sovereignty. To the contrary, the Court has
held that Congress’s power to regulate Indian commerce—despite being
“under the exclusive control of the Federal Government”—cannot
“dissipate” the “background principle of state sovereign immunity.”
Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 72 (1996). Similarly, the Court
has recognized that states did not surrender “their immunity against Indian
tribes when they adopted the Constitution.” Blatchford v. Native Vill. of
30
See, e.g., Hodel v. Irving, 481 U.S. 704, 710, 718 (1987) (holding federal law
regulating “descent and devise of Indian lands” violated the Takings Clause); Weeks, 430
U.S. at 83–84 (“plenary” congressional power “in matters of Indian affairs” subject to
“equal protection component of the Fifth Amendment”); Mancari, 417 U.S. at 551–55
(same); United States v. Creek Nation, 295 U.S. 103, 109–10 (1935) (power over Indian lands
“subject to . . . pertinent constitutional restrictions,” including Takings Clause). A
different question is to what extent the Constitution applies to the tribes themselves. “As
separate sovereigns pre-existing the Constitution, tribes have historically been regarded as
unconstrained by those constitutional provisions framed specifically as limitations on
federal or state authority.” United States v. Bryant, 136 S. Ct. 1954, 1962 (2016) (quoting
Santa Clara Pueblo v. Martinez, 436 U.S. 49, 56 (1978)). Thus, “[t]he Bill of Rights does
not apply to Indian tribes.” Plains Commerce Bank v. Long Family Land & Cattle Co., 554
U.S. 316, 337 (2008).
25
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Noatak and Circle Vill., 501 U.S. 775, 781–82 (1991). Those decisions defy the
radical notion that Congress may deploy its “plenary” Indian power without
regard to state sovereignty or the Tenth Amendment. See also infra II(B)
(discussing additional precedents).
To say otherwise, as Defendants do, would erase the distinction
between federal and state power—namely, that “[t]he Constitution confers
on Congress not plenary legislative power but only certain enumerated
powers,” with “all other legislative power . . . reserved for the States.”
Murphy v. NCAA, 138 S. Ct. 1461, 1476 (2018) (emphasis added). Nor does
it follow that, because the Constitution gives Congress power over Indian
affairs, “the Tenth Amendment expressly disclaims any reservation of that
power to the States.” New York, 505 U.S. at 156. That begs the question,
then, whether the Indian power includes authority to govern state child-custody
proceedings. That “question[] of great importance and delicacy,” id. at 155
(cleaned up), has not been squarely resolved by the Supreme Court. But the
Court has strongly suggested the answer: it has warned that an exercise of
Congress’s Indian affairs power that “interfere[s] with the power or
authority of any State” would mark a “radical change[]” in tribal relations
with the states. Lara, 541 U.S. at 205; see also infra II(B). And, as we explain
below, no founding-era treaty, statute, or congressional practice supports
ICWA’s unprecedented reach. See infra II(C).
We therefore cannot agree with Judge Dennis that ICWA’s
intrusion on state government proceedings fails even to implicate the Tenth
Amendment. See Dennis Op. at 67. According to Judge Dennis, when
Congress deploys its Indian power, the Tenth Amendment vanishes. A court
need ask only whether Congress “may legislate on the particular subject
matter at issue”—here, Indian children and families “in child custody
proceedings.” Id. Because Congress has “plenary power” over that subject,
26
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raising the Tenth Amendment as a barrier would “impos[e] new restraints
on [Congress’s] authority.” Id.
That is a remarkable view. Imagine its applying to hypothetical
exercises of Congress’s other “plenary” powers—say, its “plenary power to
make rules for the admission of aliens,” Kleindienst v. Mandel, 408 U.S. 753,
766 (1972), or its “plenary power over the Territories,” District of Columbia
v. Carter, 409 U.S. 418, 430 (1973), or its “plenary power to legislate for the
District of Columbia,” Palmore v. United States, 411 U.S. 389, 393 (1973), or
its “plenary power . . . to regulate foreign commerce,” Buttfield v. Stranahan,
192 U.S. 470, 496 (1904). Suppose Congress enacted rules in those areas that
purported to govern state proceedings, as ICWA does. Imagine a federal law
mandating different comparative fault rules in state tort suits involving
Swedish visa holders. Or unique proof standards for Guamanians in state
probate proceedings. Or laxer parol evidence rules for D.C. residents
embroiled in state contract litigation. Or stricter adverse possession rules for
French merchants in state property disputes. Would those federal laws,
directly controlling state administrative and civil proceedings, be immune
from the Tenth Amendment because Congress’s authority in those areas is
“plenary”? Of course not. Neither is ICWA. 31
In sum, the settled proposition that “tribes are subject to plenary
control by Congress,” Bay Mills, 572 U.S. at 788, does not answer the novel
question whether Congress can control state child-custody proceedings
involving Indian children. We now turn to that question.
31
We agree with Judge Dennis that these hypotheticals are “far-fetched” and
“ridiculous.” Dennis Op. at 104 n.47. That is the point of a reductio ad absurdum.
27
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B.
To answer it, we consider whether any Supreme Court precedent—
or, failing that, any longstanding founding-era congressional practice—
justifies the use of Congress’s Indian affairs power to govern state child-
custody proceedings involving Indian children. See, e.g., Printz, 521 U.S. at
905 (explaining “contemporaneous legislative exposition of the Constitution
. . . , acquiesced in for a long term of years, fixes the construction to be given
its provisions”) (citing Myers v. United States, 272 U.S. 52, 175 (1926)). As
we explain below (infra II(B)(1)–(2), II(C)), we find neither precedent nor
historical evidence justifying the modern use of Congress’s power here. See
Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 549 (2012) (“NFIB”)
(“Sometimes the most telling indication of a severe constitutional problem is
the lack of historical precedent for Congress’s action.”) (cleaned up).
We pause to make a point about method. Our analysis does not ask—
as Judge Dennis supposes—whether any “Founding-era federal law . . .
applie[d] within state child welfare proceedings.” Dennis Op. at 72.
Judge Costa also tags us with a similarly absurd view. See Costa Op. at
16 (imagining we seek a founding-era practice “explicitly bless[ing] federal
intervention in state domestic relations proceedings” pursuant to the Indian
affairs power) (emphasis added). But that approach to discerning the original
extent of federal power “border[s] on the frivolous.” District of Columbia v.
Heller, 554 U.S. 570, 582 (2008). No one thinks, and we do not claim, that
states were adjudicating adoptions in 1787. Instead, we examine whether
comparable founding-era uses of the Indian power justify ICWA’s modern
intrusion into state custody proceedings. 32 See, e.g., infra at 38 (asking
32
See, e.g., Printz, 521 U.S. at 905–09 (examining whether founding-era federal
laws requiring state courts to perform various naturalization functions justified the Brady
Act’s requiring state police to perform gun background checks).
28
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whether ICWA is justified by “comparable founding-era exercises of
Congress’s Indian affairs power”). Testing whether the old maps onto the
new is standard constitutional analysis. 33 So, we do not ask the specific (and
meaningless) question whether founding-era Indian power was used to
govern “state domestic relations proceedings”; we do ask the more general
(and meaningful) question whether that power was used to govern “state
proceedings,” “state governments,” “state governmental functions,” or “a
state’s own proceedings that involve Indians.” See infra II(C). Thus, the
supposed rebuttals to our analysis—that state court “adjudication of child
placements” did not exist “until the middle of the nineteenth century,”
Dennis Op. at 72 , and “would not exist for another eight decades” after
the founding era, Costa Op. at 16—incinerate a straw man.
That clarification made, we proceed to our analysis.
1.
No Supreme Court decision supports Congress’s deploying its Indian
affairs power to govern state government proceedings. Indeed, the Court’s
precedents point in the opposite direction: such use of the Indian power
marks a “radical change[] in tribal status” because it “interfere[s] with the
power [and] authority of [the] State[s].” Lara, 541 U.S. at 205.
The logical place to begin is Fisher v. District Court of Sixteenth Judicial
District of Montana, 424 U.S. 382 (1976), because it involves the same subject
as this case: tribal authority over adoptions. Pursuant to the Indian
Reorganization Act, 25 U.S.C. § 5123 (formerly cited as 25 U.S.C. § 476),
33
See, e.g., Heller, 554 U.S. at 582 (“Just as the First Amendment protects modern
forms of communications, and the Fourth Amendment applies to modern forms of search,
the Second Amendment extends, prima facie, to all instruments that constitute bearable
arms, even those that were not in existence at the time of the founding.”) (citing Reno v.
ACLU, 521 U.S. 844, 849 (1997); Kyllo v. United States, 533 U.S. 27, 35–36 (2001)).
29
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the Northern Cheyenne Tribe vested its tribal court with exclusive
jurisdiction over adoptions among tribe members. Fisher, 424 at 387. The
Supreme Court upheld the exclusion of state-court jurisdiction because it
would “interfere with the powers of self-government conferred upon the
[tribe].” Id. The Court emphasized, however, that the tribe’s exclusive
jurisdiction was limited to adoptions where the child, the birth parents, and
the adoptive parents were “each and all members of the [tribe]” and “reside
within the exterior boundaries of the [reservation].” Id. at 384 n.6. The Court
therefore concluded the tribal ordinance implemented an “overriding federal
policy” that ousted state-court jurisdiction “over litigation involving
reservation Indians.” Id. at 390. 34
The law at issue in Fisher is the mirror opposite of ICWA. Fisher held
Congress could keep states out of on-reservation adoptions among tribe
members. By contrast, this case asks whether Congress can directly regulate
state proceedings involving off-reservation adoptions by non-Indians. See,
e.g., 25 U.S.C. § 1915(a) (applying ICWA preferences to “any adoptive
placement of an Indian child under State law”). 35 Fisher involved Congress’s
valid attempt to promote a tribe’s “right . . . to govern itself independently
of state law.” 424 U.S. at 386. But this case asks whether Congress can
legislate standards governing a state’s own child-custody proceedings. To be
sure, Fisher does not squarely address whether Congress has power to do so.
34
The Court also rejected an equal protection challenge to the ordinance, which
we discuss infra II(A)(2).
35
We note that one aspect of ICWA is similar to the law upheld in Fisher. Section
1911(a) reserves to a tribe exclusive jurisdiction “over any child custody proceeding
involving an Indian child who resides or is domiciled within the reservation of such tribe.”
Our decision does not affect that section because it does not regulate state proceedings.
30
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But the decision provides no support for the proposition that Congress may
use its Indian affairs power to regulate state proceedings.
Speaking directly to that question is United States v. Lara, 541 U.S.
193 (2004), a more recent examination of the Indian affairs power. Lara was
a double jeopardy case in which the Indian defendant, Lara, was first
prosecuted by a different tribe and then prosecuted for a similar crime by the
United States. 541 U.S. at 196–97. Lara’s tribal prosecution was authorized
by 25 U.S.C. § 1301(2), which allows tribes to prosecute other tribes’
members. Id. at 197–98. 36 He argued his tribal prosecution was an exercise of
“delegated federal authority,” such that his federal prosecution constituted
double jeopardy. Id. The Supreme Court disagreed, concluding that
§ 1301(2) recognized tribes’ “inherent power” to prosecute nonmember
Indians and that the federal prosecution did not place Lara in double
jeopardy. Id. at 198, 210. The Court discussed several “considerations”
leading it to conclude the statute validly exercised Congress’s Indian affairs
power. Id. at 200–07.
First, as noted, the Court confirmed that Congress has “broad general
powers to legislate in respect to Indian tribes,” powers typically described as
“plenary and exclusive.” Id. at 200 (quoting Yakima Nation, 439 U.S. at
470-71). Second, the Court had consistently approved adjustments of “tribal
sovereign authority” similar to the expansion of criminal jurisdiction here.
Id. at 202–03. Third, the Court found § 1301(2) did not have an “unusual
legislative objective,” given Congress’s history of “ma[king] adjustments to
the autonomous status of other such dependent entities,” such as the
Philippines or Puerto Rico. Id. at 203. Fourth, the Court found no “explicit
36
The Supreme Court had previously held tribes could not prosecute members of
other tribes in Duro v. Reina, 495 U.S. 676, 688 (1990), but Congress responded with
§ 1301(2).
31
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language in the Constitution suggesting a limitation” on Congress’s action.
Id. at 204. Fifth, the Court found the jurisdictional change “limited” because
the tribe already had jurisdiction over its own members as well as “authority
to control events that occur upon [its] own land.” Id. The Court cautioned,
however, that it was “not now faced with a question dealing with potential
constitutional limits on congressional efforts to legislate far more radical
changes in tribal status. In particular, this case involves no interference with the
power or authority of any State.” Id. at 205 (emphasis added). 37
ICWA’s encroachment on state child-custody proceedings cannot
survive scrutiny under these Lara factors. To begin with, unlike in Lara,
Defendants point us to no Supreme Court cases approving an expansion of
“tribal sovereign authority” remotely like the one contemplated by ICWA.
Id. at 202–03. Nor—as discussed infra—have Defendants identified any
founding-era congressional history of regulating state proceedings, thus
marking ICWA as having an “unusual legislative objective.” Id. at 203.
Indeed, ICWA is also “unusual” in that it intrudes into the domestic
relations realm “long . . . regarded as a virtually exclusive province of the
States.” Sosna v. Iowa, 419 U.S. 393, 404 (1975). Whereas in Lara no
“explicit [constitutional] language” barred expanding one tribe’s criminal
jurisdiction over other tribe members, 541 U.S. at 204, the Tenth
Amendment plainly reserves to states “[t]he whole subject of the domestic
relations of . . . parent and child . . . .” Burrus, 136 U.S. at 593–94. Unlike the
“limited” jurisdictional expansion in Lara, ICWA forces tribes into off-
reservation state proceedings involving non-Indians. 541 U.S. at 204. Finally,
and most obviously, ICWA seeks the “radical change[] in tribal status”
37
Additionally, the Court explained that its prior decisions implicitly recognized
that Congress could relax limitations on tribes’ criminal jurisdiction. Lara, 541 U.S. at 205–
07 (citing, inter alia, Oliphant v. Suquamish Tribe, 435 U.S. 191 (1978); Duro, 495 U.S. 676).
32
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foreshadowed in Lara: ICWA’s stated purpose is to “interfere[] with the
power [and] authority of [the] State[s].” Id. at 205. 38
Finally, Seminole Tribe, 517 U.S. 44, confirms that Congress cannot
deploy its Indian affairs power to override state sovereignty. In that case, the
Court rejected the proposition that the Indian Gaming Regulatory Act,
enacted under the Indian Commerce Clause, could validly abrogate state
sovereign immunity. Id. at 72–73. The Court squarely held that Congress’s
“exclusive” authority over Indian commerce does not “dissipate” a state’s
immunity from federal suit: “[T]he background principle of state sovereign
immunity embodied in the Eleventh Amendment is not so ephemeral as to
dissipate when the subject of the suit is an area, like the regulation of Indian
commerce, that is under the exclusive control of the Federal Government.”
Id. at 72. Seminole Tribe’s holding removes any basis for Defendants’ core
argument that, because Congress’s Indian affairs authority is “plenary,”
Congress can ipso facto regulate state sovereign matters like adoption
proceedings. To the contrary, “[e]ven when the Constitution vests in
Congress complete law-making authority over a particular area” like Indian
38
Judge Dennis contends the Lara factors “are of no relevance” because, in
ICWA, “Congress is not altering the scope of the tribes’ retained sovereign power” but is
instead “grant[ing] new rights, protections, and safeguards” to tribes and families.
Dennis Op. at 77. We disagree. Nowhere does Lara limit its analysis to federal laws that
“alter[] . . . tribes’ retained sovereign power,” as Judge Dennis claims. Rather, Lara
deploys various “considerations” to assess whether the Constitution “authorizes”
Congress’s use of its Indian affairs power. See Lara, 541 U.S. at 200. Those considerations
bear directly on ICWA’s validity. To be sure, the statute in Lara passed muster because it
merely “relax[ed]” prior statutory restrictions on “the tribes’ exercise of inherent
prosecutorial power.” Id. at 200, 207. But Lara expressly reserved the question whether
there are “potential constitutional limits on congressional efforts to legislate far more
radical changes in tribal status,” and “[i]n particular” for statutes that “interfere[] with
the power or authority of [a] State.” Id. at 205. The question that Lara reserved is the one
presented by ICWA—whether by “interfer[ing] with the power or authority of [a] State,”
id., ICWA exceeds Congress’s authority to legislate for Indian tribes.
33
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affairs, id., the exercise of that power remains subject to the Constitution’s
guarantees of state sovereignty. 39
2.
Defendants cite various Supreme Court decisions as support for
ICWA, but none suffice.
Defendants cite Lara repeatedly, but only for the general proposition
that Congress’s Indian affairs power has been described as “plenary and
exclusive.” They do not, however, discuss Lara in any detail nor analyze
ICWA’s validity under the considerations Lara sets out. As already
discussed, incanting the formula that Congress’s power in this area is
“plenary and exclusive” begs the question whether Congress may use that
power to regulate state child-custody proceedings. The same can be said for
other broad formulations of the Indian affairs power Defendants cite. For
example, Tribal Defendants quote the seminal opinion in Worcester v. Georgia
for the proposition that federal treaties and laws “contemplate . . . that all
39
Judge Dennis claims Seminole Tribe “has no bearing” on this question
because it “addressed only limitations on Congress’s power to override states’ sovereign
immunity from suit by private parties.” Dennis Op. at 75. That is incorrect. States’
immunity from private suits is “a fundamental aspect of the sovereignty which the States
enjoyed before the ratification of the Constitution,” and which is confirmed “by the Tenth
Amendment.” Alden v. Maine, 527 U.S. 706, 713 (1999); see also Blatchford, 501 U.S. at 781–
82 (rejecting notion that state surrender of immunity against tribes was “inherent in the
constitutional compact”). Thus, contrary to Judge Dennis’s view, Seminole Tribe is not
cabined to the “states’ sovereign immunity from suit by private parties,” but bears directly
on whether Congress’s Indian power may ipso facto override state sovereignty as a general
matter. Judge Dennis also asserts that Seminole Tribe “carefully noted that its opinion
in no way touched upon other aspects of the Tenth Amendment.” Dennis Op. at 75.
That misreads the decision. The footnote Judge Dennis cites only declined to decide
whether the gaming law at issue violated the Tenth Amendment by “mandat[ing] state
regulation of Indian gaming,” a question “not considered below.” Seminole Tribe, 517 U.S.
at 61 n.10. Neither the cited footnote, nor anything else in the decision, creates the artificial
distinction Judge Dennis seeks to create here.
34
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intercourse with [Indians] shall be carried on exclusively by the government of
the union.” 31 U.S. (6 Pet.) 515, 519 (1832) (emphasis added); see also id. at
561 (op. of Marshall, C.J.) (same). It is unclear what that proposition has to
do with this case. Worcester itself has no bearing on it: the decision held that
Georgia could not apply its criminal laws on Cherokee territory and in
contravention of a federal treaty. See id. at 561 (explaining that “[t]he
Cherokee nation, then, is a distinct community occupying its own territory
. . . in which the laws of Georgia can have no force”). 40
Federal Defendants cite Washington v. Washington State Commercial
Passenger Fishing Vessel Ass’n (“Fishing Vessel”), 443 U.S. 658 (1979),
presumably because that decision required the state of Washington to
accommodate the treaty rights of Indians with respect to off-reservation
fishing sites. Indeed, at en banc argument, Federal Defendants identified
Fishing Vessel as their best case. 41 Rec. of Oral Argument at 8:45–9:50. But
the treaty-based limitation on state regulation allowed in Fishing Vessel is
40
In a similar vein is the Supreme Court’s recent decision in McGirt, 140 S. Ct.
2452. The Court held that certain lands in Oklahoma remained “Indian country” for
purposes of the Major Crimes Act, 18 U.S.C. § 1153(a), and thus that Oklahoma state
courts lacked jurisdiction to try an Indian defendant for crimes he committed on those
lands. Id. at 2459. McGirt reiterates the familiar propositions that Congress has “significant
constitutional authority when it comes to tribal relations,” id. at 2462—in that case, the
authority to establish an Indian reservation—and that “State courts generally have no
jurisdiction to try Indians for conduct committed in ‘Indian country,’” id. at 2459 (citing
Negonsott v. Samuels, 507 U.S. 99, 102–03 (1993)). The decision, however, offers no support
for the proposition that Congress’s Indian affairs power extends to controlling state
proceedings. The Court remarked only that “States have no authority to reduce federal
reservations lying within their borders,” id. at 2462, a settled proposition harkening back
to Chief Justice Marshall’s admonition in Worcester.
41
Even so, counsel effectively admitted Fishing Vessel does not go far enough to
support ICWA. When pressed for prior authority allowing Congress’s “plenary” power to
interfere with state child-custody proceedings, counsel responded that “this”—i.e. the
instant challenge to ICWA—“is the case that presents that [issue].” Rec. of Oral
Argument at 10:30–10:55.
35
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nothing like ICWA’s intrusion into state child-custody proceedings. The
1850s-era treaties in Fishing Vessel guaranteed tribes the “right of taking fish,
at all usual and accustomed grounds and stations . . . in common with all
citizens of the Territory.” 443 U.S. at 674. The Court read those treaties to
guarantee tribes a portion of yearly fishing runs, which could not be
invalidated by state law or regulation. Id. at 684–85. 42 Requiring state
regulatory forbearance to federal treaties, however, is worlds away from
Congress’s dictating separate standards for state child-custody proceedings
involving Indian children. Furthermore, unlike in Fishing Vessel, here
Defendants cannot rely on over a century of federal treaties bearing on the
precise subject matter at issue. Cf. Lara, 514 U.S. at 203–04 (finding Indian
affairs power justified by Congress’s history of similar actions); see also id. at
201 (treaties “can authorize Congress to deal with ‘matters’ with which
otherwise ‘[it] could not deal’”). 43
Tribal Defendants cite several decisions for the proposition that
Congress may legislate with respect to Indian activity that does not occur “on
or near the reservation.” This general principle is true, of course, but again
it begs the question whether ICWA validly regulates state child-custody
42
Fishing Vessel is one in a long line of cases resolving conflicts between tribal treaty
rights and non-tribal interests or state regulation. See, e.g., Herrera v. Wyoming, 139 S. Ct.
1686 (2019); Puyallup Tribe v. Dep’t of Game of Wash., 391 U.S. 392 (1968); Seufert Bros.
Co. v. United States, 249 U.S. 194 (1919); United States v. Winans, 198 U.S. 371 (1905).
43
Federal Defendants also cite Antoine v. Washington, 420 U.S. 194 (1975), which,
similar to Fishing Vessel, recognized Congress may ratify agreements with Indian tribes that
preclude states from applying contrary state law. In Antoine, a tribe ceded part of its land to
the United States in exchange for preserving hunting and fishing rights. The Court held
that the Supremacy Clause prevented the State of Washington from applying its hunting
and fishing laws to Indians on the ceded lands. See id. at 203–04 (citing, inter alia, Choate
v. Trapp, 224 U.S. 665 (1912); Perrin v. United States, 232 U.S. 478 (1914); Dick v. United
States, 208 U.S. 340 (1908)). Neither Antoine, nor any decision it relied on, suggests
Congress may impose Indian-specific standards on state proceedings.
36
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proceedings. The cited cases themselves offer no guidance on that question.
For example, United States v. McGowan held that Congress validly
denominated as “Indian country” a tract of federal land occupied by an
Indian colony, remarking that Congress may legislate for the “protection of
the Indians wherever they may be.” 302 U.S. 535, 539 (1938) (citation
omitted). Morton v. Ruiz invalidated under the APA an agency policy
excluding federal assistance for tribe members living near reservations,
noting “[t]he overriding duty of our Federal Government to deal fairly with
Indians wherever located.” 415 U.S. 199, 236 (1974). Perrin v. United States
upheld a federal ban on selling alcohol on lands ceded by the Yankton Sioux
Tribe, based on Congress’s power “to prohibit the introduction of
intoxicating liquors into an Indian reservation, . . . and to prohibit traffic in
such liquors with tribal Indians, whether upon or off a reservation and
whether within or without the limits of a state.” 232 U.S. 478, 482 (1914). 44
Finally, United States v. Kagama upheld Congress’s power to enact a criminal
code for crimes committed by Indians on Indian reservations, observing that
only the federal government possessed that power and that “the theater of
its exercise is within the geographical limits of the United States.” 118 U.S.
375, 384–85 (1886). As this summary shows, these decisions say nothing
about whether Congress may exercise its Indian affairs power to regulate a
state sovereign function like child-custody proceedings. 45 And, to the extent
44
Nor does Perrin’s modern sequel, United States v. Mazurie, 419 U.S. 544 (1975),
support Defendants’ position. Like Perrin, Mazurie only concerns Congress’s Indian
commerce power to regulate alcohol sales to Indians and the “introduction of alcoholic
beverages into Indian country.” Mazurie, 419 U.S. at 554 (and collecting cases). Mazurie
upheld Congress’s use of that power to ban alcohol sales by a non-Indian who owned land
within a reservation. Id. at 546–47, 555–56.
45
Judge Higginson claims our view would resurrect the “governmental
function” analysis rejected by Garcia v. San Antonio Metropolitan Transit Authority, 469
U.S. 528, 546–47 (1985). Higginson Op. at 1; see also Dennis Op. at 68–74. We
disagree. In deciding whether federal wage standards could apply to municipal employees,
37
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these decisions touch on that question, they deny Congress’s power to do so.
See, e.g., Kagama, 118 U.S. at 383 (observing the federal code “does not
interfere with the process of the state courts within the reservation . . . [but]
is confined to the acts of an Indian of some tribe, of a criminal character,
committed within the limits of the reservation”). 46
C.
Finding no Supreme Court precedent justifying ICWA’s intrusion on
state sovereignty, we next examine whether ICWA is nonetheless supported
by any comparable founding-era exercises of Congress’s Indian affairs power.
“[E]arly congressional enactments ‘provid[e] contemporaneous and weighty
Garcia rejected the test in National League of Cities v. Usery, 426 U.S. 833, 852 (1976), which
exempted from federal regulation “integral” or “traditional” state government functions.
Garcia, 469 U.S. at 546–47. Garcia is inapposite for several reasons. First, Garcia addressed
the Commerce Clause, not the Indian affairs power. As discussed, whether the latter
encroaches on state authority is one key to its valid use by Congress. See, e.g., Lara, 541
U.S. at 205 (asking whether use of the Indian affairs power “involve[d] . . . interference
with the power or authority of any State”). Second, our view does not depend, as Usery
did, on “apprais[ing] . . . whether a particular governmental function is ‘integral’ or
‘traditional.’” Garcia, 469 U.S. at 546–47. Instead, we ask whether the Indian affairs power
has ever been used to regulate state government proceedings of any kind. Third, Garcia
concerned whether “incidental application” of general federal laws “excessively interfered
with the functioning of state governments.” Printz, 521 U.S. at 932 (discussing, inter alia,
Usery and Garcia). Here, by contrast, we address a law whose “whole object . . . [is] to direct
the functioning of the state [administrative and judicial proceedings]” in child custody
cases. Id.; see also infra III(B)(1)(b) (explaining ICWA does not “evenhandedly” regulate
state and private activity).
46
Defendants also suggest ICWA is authorized by “preconstitutional powers.”
But they fail to explain how that is so. As State Plaintiffs point out, the Supreme Court’s
reference to “preconstitutional powers” in Lara referred to the United States’ early
relationship with Indian tribes, which at that time resembled “military and foreign policy
[more] than a subject of domestic or municipal law.” 541 U.S. at 201. While such authority
spoke to the issue in Lara—Congress’s power to alter the scope of tribes’ inherent
sovereignty—it has no bearing on ICWA, a law having nothing to do with military or foreign
policy and everything to do with state domestic law.
38
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evidence of the Constitution’s meaning.’” Nev. Comm’n on Ethics v.
Carrigan, 564 U.S. 117, 122 (2011) (alteration in original) (quoting
Printz, 521 U.S. at 905). When assessing the constitutionality of a federal
law, the Supreme Court looks to founding-era legislation for any light it may
shed on the scope of Congress’s authority. See, e.g., Printz, 521 U.S. at 905–
07 (canvassing “statutes enacted by the first Congresses” to determine
whether Congress could compel state officers to implement federal law). 47
Evidence that the first Congresses used federal power over Indian tribes to
regulate state proceedings would be “contemporaneous and weighty
evidence” that the Constitution permits ICWA’s encroachment on state
child-custody proceedings. Bowsher v. Synar, 478 U.S. 478 U.S. 714, 723–24
(1986). “Conversely,” if no such evidence exists, “we would have reason to
believe that the power was thought not to exist.” Printz, 521 U.S. at 905.
Amici Indian law experts, as well as the Navajo Nation intervenors, have
amassed considerable evidence illuminating early use of the Indian affairs
power, which we have carefully considered. See Br. for Prof. Gregory
Ablavsky as Amicus Curiae at 5–20 (“Ablavsky Br.”); Br. for Indian Law
Scholars as Amici Curiae at 3–8 (“Indian Law Scholars Br.”); Br. for
Intervenor Navajo Nation at 11–12 & nn. 5–6 (“Navajo Nation Br.”). We
cannot agree, however, that this evidence supports ICWA’s modern-day
intrusion into state child-custody proceedings.
47
See also Bowsher v. Synar, 478 U.S. 714, 723–24 (1986) (relying on Congress’s
“Decision of 1789” to reject congressional role in officer removal); Marsh v. Chambers, 463
U.S. 783, 790 (1983) (placing particular weight on “[a]n act ‘passed by the First Congress
assembled under the Constitution, many of whose members had taken part in framing that
instrument’” (quoting Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888))); McCulloch
v. Maryland, 17 U.S. (4 Wheat.) 316, 401 (1819) (reasoning “[t]he power [to incorporate
the Bank of the United States] was exercised by the first congress elected under the present
constitution”).
39
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Ample founding-era evidence shows that Congress’s Indian affairs
power was intended to be both broad in subject matter and exclusive of state
authority. The framing generation understood Congress’s power to include,
for example, “making war and peace, purchasing certain tracts of [Indians’]
lands, fixing the boundaries between [Indians] and our people, and
preventing the latter settling on lands left in possession of the former.” 33
Journals of the Continental Congress, 1774-1789, 458
(Roscoe R. Hill ed., 1936). 48 Additionally, it was understood that Congress’s
power would displace the prior authority of states under the Articles of
Confederation to deal directly with tribes. Defending this centralization,
James Madison wrote that Congress’s power to regulate commerce with
Indian tribes was “very properly unfettered” from “obscure and
contradictory” limitations in the Articles that extended national power only
to Indians “not members” of States and made it subservient to state
legislation. The Federalist No. 42, at 219 (James Madison) (George W.
Carey & James McClellan eds., 2001). 49 Confirming this view was Anti-
Federalist Abraham Yates, Jr., who concluded, to his chagrin, that the new
Constitution would “totally surrender into the hands of Congress the
management and regulation of the Indian affairs.” Abraham Yates, Jr.
(Sydney), To the Citizens of the State of New-York (June 13-14, 1788), reprinted
48
See also Joseph Story, Commentaries on the Constitution of
the United States § 533, at 381 (Rotunda & Nowak ed. 1987) (“Story”)
(describing federal Indian power as the “right of exclusive regulation of trade and
intercourse with [Indians], and the . . . authority to protect and guarantee their territorial
possessions, immunities, and jurisdiction”).
49
See also St. George Tucker, View of the Constitution of the
United States 196 (Liberty Fund 1999) (1803) (discussing Articles’ “obscure” and
“contradictory” limitations on national power over Indians) (citing The Federalist
No. 42); Story § 533, at 380 (observing Articles attempted to “accomplish impossibilities
[respecting power over Indians]; to reconcile a partial sovereignty in the Union, with
complete sovereignty in the states”).
40
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in 20 The Documentary History of the Ratification of
the Constitution 1153, 1156–58 (John P. Kaminski et al. eds., 2004).
This view was later echoed by the Washington administration: “[T]he
United States have, under the constitution, the sole regulation of Indian
affairs, in all matters whatsoever.” Letter from Henry Knox to Israel Chapin
(Apr. 28, 1792), reprinted in 1 American State Papers: Indian
Affairs 231–32 (Lowrie & Clarke eds., 1832).
Especially relevant is the first Congress’s enactment of the Trade and
Intercourse Act, see Act of July 22, 1790, 1 Cong. Ch. 33, 1 Stat. 137, which,
with its statutory successors, was the primary federal statute governing
Indian affairs until the 1830s. See Ablavsky, Indian Commerce, at 1023. The
Act prohibited “any trade or intercourse with the Indian tribes” without a
federal license; prohibited the sale of land by Indians or Indian tribes unless
executed by federal treaty; and extended federal criminal jurisdiction to
crimes committed by non-Indians against Indians. Congress later amended
the Act to require federal approval to cross into Indian country and to
authorize the United States military to arrest violators of the Act. See Act of
May 19, 1796, 4 Cong. Ch. 30, § 3, 1 Stat. 469, 470; id. §§ 5, 16.
None of this evidence speaks to the question before us, which is
whether Congress may use its Indian affairs power to regulate a state’s own
child-custody proceedings. As already observed, the fact that Congress’s
power goes beyond regulating tribal trade begs the question whether it allows
Congress to regulate state governments. Also beside the point is the fact that
Congress’s power was intended to exclude state authority over tribes. This
prevented states from, for instance, nullifying federal treaties securing Indian
lands. 50 That evidence would be relevant if the issue were whether ICWA
50
See, e.g., Worcester, 31 U.S. at 561 (explaining that “[t]he Cherokee nation . . . is
a distinct community occupying its own territory . . . in which the laws of Georgia can have
41
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could exclude state courts from adoptions involving tribe members. See Fisher,
424 U.S. at 390 (upholding exclusion of state jurisdiction for adoptions
among tribe members). But ICWA presents the opposite scenario: it seeks to
force federal and tribal standards into state proceedings. Amici point us to no
founding-era evidence even suggesting Congress thought its Indian affairs
power extended that far. 51 The most pertinent example of Indian legislation
from the first Congress—the Trade and Intercourse Act—addresses various
aspects of the federal government’s relationship with Indians. It says nothing
about regulating a state’s own proceedings that involve Indians.
Amici and the Navajo Nation also cite evidence that early Congresses
used their authority to protect Indian children. But their evidence again fails
to speak to the issue before us. For example, amici point to evidence that the
federal government was “reluctantly” involved in the “widespread trade in
captured children, both Indian and white,” such as by “paying federal
monies as ransom for children.” Ablavsky Br. at 19 (citing, inter alia,
Christina Snyder, Slavery in Indian Country: The Changing Face of Captivity
in Early America 173–74 (2010)). They also point to federal superintendence
of Indian children by “placing [them] within Anglo-American communities”
and founding a “federally-run boarding school system.” Ablavsky Br. at 19,
20 (citing 25 U.S.C. §§ 271-304b; Frederick E. Hoxie, A Final
no force”); see also Ablavsky, Indian Commerce, at 1045–50 (describing Georgia’s ultimately
unsuccessful efforts to assert its “territorial sovereignty” against Cherokee treaty).
51
Judge Dennis similarly relies on evidence of early state resistance to federal
Indian treaties, such as New York’s undermining the Fort Stanwix Treaty with the Six
Nations and Georgia’s own conflicting treaties with Creek Indians. See Dennis Op. at 8
(citing Cohen’s § 1.02[3]; Robert N. Clinton, The Dormant Indian Commerce Clause, 27
Conn. L. Rev. 1055, 1147 (1995)). This evidence has the same flaws as amici’s, however.
It supports Congress’s traditional power to bar states from subverting federal Indian
treaties. But it does not involve, and so says nothing about, Congress’s power to impose
Indian-specific standards on state proceedings.
42
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Promise: The Campaign to Assimilate the Indians,
1880-1920, 189–210 (1984)). And they cite various federal policies vis-à-vis
Indian children, such as funding education, allotting lands to Indian orphans,
and establishing trust funds. See Indian Law Scholars Br. at 3–8. 52 Finally, the
Navajo Nation cites numerous federal treaties that make “repeated promises
. . . for the welfare of tribal children.” Navajo Nation Br. at 11–12 & nn.5–6. 53
We assume only for argument’s sake that all this evidence concerns
founding-era practices relevant to the original understanding of the Indian
affairs power. But see infra II(D) (explaining the federal boarding-school
system dates from the late nineteenth century). Even then, the evidence
shows only that the federal government has long shouldered responsibility
for protecting Indian children. None of it, however, speaks to whether
Congress may regulate state government proceedings involving Indian
children. 54
52
See, e.g., Treaty with the Oneida, etc., art. III, Nov. 11, 1794, 7 Stat. 47 (providing
for education of tribe’s children); Treaty with the Kaskaskia art. III, Aug. 13, 1803, 7 Stat.
78 (providing funding for a Catholic priest “to instruct as many of their children as possible
in the rudiments of literature”); Treaty with the Choctaw art. XIV, Sept. 27, 1830, 7 Stat.
333 (providing lands to unmarried children and orphans); Treaty with the Shawnee art.
VIII, May 10, 1854, 10 Stat. 1053 (establishing trust fund for orphans); Treaty with the
Cherokee, art. XXV, July 19, 1866, 14 Stat. 799 (providing for education of Cherokee
orphan children in an “asylum” controlled by Cherokee government).
53
See, e.g., Treaty with the Nez Percés art. V, June 11, 1855, 12 Stat. 957 (providing
two schools supplied with books, furniture, stationery, and teachers for free to the tribe’s
children); Treaty with the Seminoles art. III, May 9, 1832, 7 Stat. 368 (promising “a blanket
and a homespun frock” to each Seminole child); Treaty with the Delawares, Supp. Art.,
Sept. 24, 1829, 7 Stat. 327 (requiring “thirty-six sections of the best land” be sold for “the
support of schools for the education of Delaware children”); Articles of Agreement with
the Creeks, Nov. 15, 1827, 7 Stat. 307 (providing $5,000 for “education and support of
Creek children at the school in Kentucky”).
54
Judge Dennis relies heavily on this kind of evidence to support his argument
that the “trust relationship” between the Federal Government and Indian tribes justifies
ICWA. Dennis Op. at 16–17, 20–21, 59; see, e.g., Cohen’s § 5.04[3][a] (“One of the
43
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D.
Relying on much of the same historical evidence we have examined,
Judge Dennis mounts an elaborate originalist defense of ICWA. See
Dennis Op. at 5–25, 52–66. We agree with Judge Dennis that ICWA’s
validity hinges on Congress’s founding-era exercise of its Indian affairs
power. See id. at 5 (citing N.L.R.B. v. Noel Canning, 573 U.S. 513, 524 (2014);
Heller, 554 U.S. at 605–10). But we sharply disagree with his analysis. As
explained, no founding-era treaty, statute, or practice features anything like
ICWA’s foisting federal standards on state governments. See supra II(C).
ICWA’s goal of managing tribal-state relations may harken back to the late
eighteenth century, but its methods were first born in the late 1970s. The
leading Indian law treatise puts it accurately: “While reaffirming basic
principles of tribal authority over tribal members, ICWA also inserts federal
and tribal law into family matters long within the domain of the states.”
Cohen’s § 11.01[1]. By enacting rules for state officials and for state
proceedings, ICWA outstrips the historical record and so cannot be
supported by any original understanding of the Indian affairs power.
We offer these additional responses to Judge Dennis.
First, Judge Dennis invokes the exclusivity of Congress’s Indian
power to support ICWA. Because the power “is exclusive to the federal
government,” it “totally displaced the states from having any role in [Indian]
affairs.” Dennis Op. at 58, 53; see id. at 53 (comparing Indian affairs power
to “field preemption”); see also Costa Op. at 13–14 (relying on
“exclusive” and “undivided” nature of federal Indian power). Judge
basic principles of Indian law is that the federal government has a trust or special
relationship with Indian tribes.”). As explained below, the trust relationship fails to support
the notion that Congress may impose federal standards on state child-custody proceedings.
See infra II(D).
44
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Dennis contends that ICWA deploys this exclusive authority against states.
“Just as the Constitution was meant to preclude the states from undertaking
their own wars or making their own treaties with the Indian tribes,” he
argues, “so too does it empower the federal government to ensure states do
not spoil relations with the Indian tribes” by placing Indian children with
non-Indian families. Id. at 58 (citation omitted). We disagree.
The exclusivity of Congress’s Indian power does not help justify
ICWA. Quite the contrary. ICWA does the opposite of “excluding” states
from Indian adoptions: it leaves many adoptions under state jurisdiction, see
25 U.S.C. § 1911(b), while imposing “Federal standards” on those state
proceedings. Id. § 1902. If ICWA were akin to the founding-era practice of
reserving war-making and treaty powers to the United States, then ICWA
would “totally displace[] the states from having any role” in Indian
adoptions. Dennis Op. at 53. 55 As discussed, that is what Congress did in
Fisher when it excluded tribal adoptions from state jurisdiction. See supra
II(B)(1) (discussing Fisher, 424 U.S. 382). ICWA is not that. It does not bar
state jurisdiction but co-opts it, thereby imposing federal yardsticks on state
55
The same follows from Judge Dennis’s examples of “[s]tate officials . . .
[who] acknowledged the federal government’s plenary authority over Indian affairs under
the new constitution.” Dennis Op. at 13. Those examples involved war- and treaty-
making authority that the state officials conceded was entrusted to the federal government
under the new Constitution. For instance, in a December 1789 letter, South Carolina
Governor Charles Pinckney implored President Washington to conclude a treaty with
“hostile Indian tribes” leagued with the Spanish. See Dennis Op. at 13 (quoting Letter
from Charles Pinckney to George Washington (Dec. 14, 1789), 4 Papers of George
Washington: Presidential Series 401, 404 (Dorothy Twohig ed., 1993)). The
“similar acknowledgments” by the Georgia and Virginia legislatures, id. (citing Ablavsky,
Indian Commerce, at 1043), also involved treaties and war: Georgia’s request that the federal
government negotiate a peace treaty with the Creek, and Virginia’s inquiry about the
propriety of supplying tribes with ammunition. See Ablavsky, Indian Commerce, at 1043.
45
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officials and state proceedings. The exclusivity of federal Indian power
argues for invalidating ICWA, not upholding it. 56
Second, Judge Dennis invokes the federal government’s “trust
relationship” with Indian tribes to support ICWA. Dennis Op. at 59. This
“unique” relationship creates federal obligations “to preserve tribal self-
governance, promote tribal welfare, and . . . manag[e] tribal assets.” Id. at 16–
17 (citing Matthew L.M. Fletcher, Principles of Federal
Indian Law § 5.2 (1st ed. 2017) [hereinafter Fletcher]); see also
Cohen’s § 5.04[3][a]. In this relationship, Judge Dennis finds “a
specific obligation to protect the tribes from the states,” which he claims
ICWA furthers. Dennis Op. at 59. Principally, he evokes the federal
government’s late-nineteenth-century policy of “Christianizing” Indian
children in boarding schools, id. at 22–25, 59–60, arguing that ICWA
remedies similarly “abusive Indian child custody practices continued at the
state level.” Id. at 59. ICWA thus fulfills the federal government’s trust
obligation by “protect[ing] the tribes from the states.” Id. at 61. Again, we
disagree.
Even assuming there is a federal duty to (as Judge Dennis phrases
it) “protect the tribes from the states,” it would not authorize ICWA’s
imposition on state proceedings. No founding-era example shows the United
States fulfilling its trust obligations that way. History tells a different story.
The trust doctrine arose out of early treaties, statutes—principally, the
56
We do not imply that Congress may never delegate to states authority over Indian
matters. See, e.g., Bryant, 136 S. Ct. at 1960 (observing that, “[i]n 1953, Congress . . . g[ave]
six States [criminal] ‘jurisdiction over specified areas of Indian country within the States
and provid[ed] for the [voluntary] assumption of jurisdiction by other States’”) (first three
brackets added; internal quotation marks omitted)). But no one defends ICWA on that
basis, presumably because ICWA does the opposite: it imposes federal and tribal standards
on proceedings within state jurisdiction. See 25 U.S.C. §§ 1901(5), 1903(1), 1911(b).
46
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Trade and Intercourse Act and its successors, supra II(C)—and the Supreme
Court decisions in Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543 (1823),
Cherokee Nation, and Worcester. See Cohen’s § 5.04[3][a]; Fletcher
§ 5.2; William C. Canby, Jr., American Indian Law in a
Nutshell 16–17 (7th ed. 2020) [hereinafter Canby]. 57 Those sources do
show the federal government sometimes acted to restrain states on behalf of
tribes, but only in the sense of preventing states from unauthorized trading,
encroaching on tribal land, or subverting treaties. 58 Never did the United
57
The key passages undergirding the trust doctrine are from Chief Justice
Marshall’s Cherokee Nation opinion:
[I]t may well be doubted whether those tribes which reside within the
acknowledged boundaries of the United States can, with strict accuracy, be
denominated foreign nations. They may, more correctly, perhaps, be
denominated domestic dependent nations. They occupy a territory to which we
assert a title independent of their will, which must take effect in point of
possession when their right of possession ceases. Meanwhile they are in a state of
pupilage. Their relation to the United States resembles that of a ward to his
guardian.
They look to our government for protection; rely upon its kindness and its power;
appeal to it for relief to their wants; and address the president as their great father.
They and their country are considered by foreign nations, as well as by ourselves,
as being so completely under the sovereignty and dominion of the United States,
that any attempt to acquire their lands, or to form a political connexion with them,
would be considered by all as an invasion of our territory, and an act of hostility.
30 U.S. (5 Pet.) at 17–18; see also Cohen’s § 5.04[3][a] (explaining Marshall’s Cherokee
Nation opinion “provided the basis for analogizing the government-to-government
relationship between tribes and the federal government as a trust relationship”).
58
See Cohen’s § 5.04[3][a] (explaining Trade and Intercourse Acts “imposed a
statutory restraint on alienation on all tribal land for the purpose of ensuring federal rather
than state or individual control over acquisition of Indian land”); Canby at 17 (under the
same Acts, “[n]on-Indians were prohibited from acquiring Indian lands by purchase or
treaty . . . , or from settling on those lands or entering them for hunting or grazing”); see
also Worcester, 31 U.S. at 557 (the Acts “manifestly consider the several Indian nations as
distinct political communities, having territorial boundaries, within which their authority
47
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States purport to “protect tribes” by enacting federal standards for state
proceedings. See also supra II(C) (discussing absence of such evidence from
founding-era sources). The same is true for early federal laws regarding
crimes against Indians. See, e.g., Canby at 17 (noting “[d]epredations by
non-Indians against Indians were made a federal crime”). These laws
provided federal compensation for victims, id., and later for prosecution
under federal jurisdiction. 59 While such laws excluded state jurisdiction, they
did not pretend to enact standards for state courts or officials. Indeed, in
upholding a later federal law punishing on-reservation Indian crimes, the
Supreme Court stressed that the law “does not interfere with the process of
the state courts within the reservation, nor with the operation of state laws.”
Kagama, 118 U.S. at 383. 60
That brings us to Judge Dennis’s main historical example—the
era of federal “assimilation” of Indian children in boarding schools. Dennis
Op. at 22–25, 59. As we grasp his argument, Judge Dennis contends that,
because the federal government once engaged in this widespread removal and
is exclusive, and having a right to all the lands within those boundaries, which is not only
acknowledged, but guarantied [sic] by the United States”).
59
See, e.g., Mary Christina Wood, Indian Land and the Promise of Native Sovereignty:
The Trust Doctrine Revisited, 1994 Utah L. Rev. 1471, 1497 n.122 (discussing so-called
“bad men” clauses in, for example, the Treaty with the Northern Cheyenne and Northern
Arapahoe art I, May 10, 1868, 15 Stat. 655).
60
Judge Dennis emphasizes Kagama’s statement that Indian tribes “owe no
allegiance to the states, and receive from them no protection,” and that “[b]ecause of the
local ill feeling, the people of the states where they are found are often their deadliest
enemies.” Dennis Op. at 67 (quoting Kagama, 118 U.S. at 384). That colorful dicta has
no bearing on the issue before us. As discussed, Kagama decided only that the United States
could punish as a federal crime the murder of an Indian by an Indian on a reservation, even
though situated within a state. See 118 U.S. at 377–78; see also id. at 383 (noting the law was
“confined to the acts of an Indian of some tribe, of a criminal character, committed within
the limits of the reservation”); see also supra II(B)(2) (discussing Kagama).
48
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re-education of Indian children, it must also have power to prevent states
from engaging in similar “abusive Indian child custody practices.” Id. at 59. 61
We reject this argument.
To begin with, Judge Dennis’s key evidence dates from the late
nineteenth century, not the founding era. See, e.g., Cohen’s § 1.04 (“In
1879, Indian education began to shift to federal boarding schools so that
Indian students could be removed completely from family and tribal life.”). 62
It therefore provides less insight into Congress’s Indian power as conceived
by the founding generation. See Printz, 521 U.S. at 905 (explaining that
“contemporaneous legislative exposition of the Constitution . . . , acquiesced
in for a long term of years, fixes the construction to be given its provisions”
(citing Myers, 272 U.S. at 175) (emphasis added)); 63 cf. Heller, 554 U.S. at 614
(observing that “discussions [that] took place 75 years after the ratification
of the Second Amendment . . . do not provide as much insight into its original
meaning as earlier sources”).
61
The Federal Defendants similarly defend ICWA on the grounds that “Congress
plainly has authority to address the massive removal of children from tribal communities.”
62
See also Cohen’s § 1.04 (during this period “[t]he full brunt of reeducation
was directed toward Indian children, who were shipped away from the reservation or
brought together at reservation schools”); Ablavsky Br. at 20 (discussing the “federally-
run boarding school system, which took Indian children, often without their parents’
consent, as part of its efforts to civilize them”) (citing 25 U.S.C. §§ 271–304b;
Frederick E. Hoxie, A Final Promise: The Campaign to Assimilate
the Indians, 1880–1920, 189–210 (1984)).
63
See also Marsh, 463 U.S. at 790 (observing that “[a]n act passed by the first
Congress assembled under the Constitution, many of whose members had taken part in
framing that instrument, . . . is contemporaneous and weighty evidence of its true
meaning” (citation omitted) (cleaned up)); McCulloch, 17 U.S. at 401 (relying on fact that
the contested power “was exercised by the first congress elected under the present
constitution”).
49
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But even if this evidence concerned founding-era practice, it would
not prove what Judge Dennis claims. As we have said again and again,
none of the history shows the United States using its Indian power to legislate
for state governments. The boarding-school era makes the same point from a
different angle. It shows the federal government adopting a policy towards
Indian children—one roundly condemned today—and then changing its own
policy in a more enlightened direction. See Cohen’s § 1.05 (recounting “[a]
marked change in attitude toward Indian policy [that] began in the mid-1920s
. . . away from assimilation policies and toward more tolerance and respect
for traditional aspects of Indian culture”). It is a mystery how an era of
misguided federal policy proves Congress can dictate rules for states. None
of this is to say there have been no abuses in how states have handled Indian
adoptions. It is only to say that, in seeking a remedy, Congress cannot turn
state governments into federal adoption agencies. The Tenth Amendment
and the Constitution’s structure forbid it.
One final point. According to Judge Costa’s separate opinion,
there is nothing “novel” about ICWA’s “interfer[ing] with state domestic
relations proceedings” because “the federal government has been a constant,
often deleterious presence in the life of the Indian family from the
beginning.” Costa Op. at 15. But relying on the same evidence as Judge
Dennis, including the boarding-school era, see id. at 12–17, Judge Costa
also fails to identify a single example of Congress’s deploying its Indian
power to regulate a state’s administrative or judicial machinery. 64 Thus, his
64
Judge Costa does dial the volume up to eleven, however. “[T]he most tragic
irony” of our opinion, he claims, is that after two centuries of federal power “often used to
destroy tribal life,” we would “reject[] that power when it is being used to sustain tribal
life.” Id. at 12. “It would be news to Native Americans,” he continues, that the same
federal power used to wage war against them, steal their lands, displace them, and
“‘civiliz[e]’” their children “does not [also] reach the Indian family.” Id. Where to begin?
First, nothing prevents the federal government from mending its ways and using its power
50
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denial that ICWA is a “novel” use of that power is baffling. Id. at 15. That
view would likely surprise the leading Indian law commentator, Felix Cohen,
who wrote that “ICWA . . . inserts federal and tribal law into family matters
long within the domain of the states.” Cohen’s § 11.01[1]. It would also
surprise then-Assistant Attorney General Patricia Wald, who testified to
Congress about ICWA (and who would later serve as Chief Judge of the D.C.
Circuit). Flagging the “serious constitutional question” raised by ICWA,
Wald warned “that the federal interest in the off-reservation context is so
attenuated that the 10th Amendment and general principles of federalism
preclude[] the wholesale invasion of state power contemplated by [ICWA].”
H.R. Rep. No. 95-1386, at 39–40 (1978), as reprinted in 1978
U.S.C.C.A.N. 7530, 7562–63. Of course, Wald’s views—or Felix
Cohen’s, for that matter—do not settle ICWA’s constitutionality. But at
least those commentators recognized, unlike Judge Costa, that ICWA’s
intrusion on state power was unprecedented.
***
We sum up this part. Neither judicial nor congressional precedent
supports ICWA’s trespass on state child-custody proceedings. While
offering evidence that Congress has deployed its Indian affairs power
broadly, exclusive of state authority, and in aid of Indian children, neither
Defendants nor their amici nor Judge Dennis offer founding-era examples
“to sustain tribal life.” It has tried to do that for nearly a century. See Cohen’s § 1.05
(era of “Indian Reorganization,” beginning in 1928, “shift[ed] . . . toward more tolerance
and respect for traditional aspects of Indian culture”). The issue before us, however, is
whether the federal government’s benevolence may include conscripting state
governments as adoption agencies. If the Indian affairs power is a blank check, as Judges
Dennis and Costa appear to think, the answer is yes. Second, no one denies that federal
power “reach[es] the Indian family.” Costa Op. at 12. The issue here is whether it also
reaches the state administrative and judicial proceedings that ICWA purports to govern.
51
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of Congress’s using this power to intrude on state governmental functions as
ICWA does. “Legislative novelty is not necessarily fatal; there is a first time
for everything. But sometimes the most telling indication of a severe
constitutional problem is the lack of historical precedent for Congress’s
action.” NFIB, 567 U.S. at 549 (Roberts, C.J.) (cleaned up) (quoting Free
Enter. Fund v. Pub. Co. Accounting Oversight Bd., 561 U.S. 477, 505 (2010)).
The founding generation launched the Constitution in an atmosphere of
intense suspicion about federal encroachment on state sovereignty. See
Centinel Letter I (Oct. 5, 1787) (warning power of the proposed government
would “necessarily absorb the state legislatures and judicatories” and
“melt[] [the United States] down into one empire”), reprinted in The
Essential Antifederalist 102 (W.B. Allen & Gordon Lloyd eds.,
2002). If Congress had deployed its Indian affairs power to govern state
governments, some evidence would remain. Finding none, we have “reason
to believe that the power was thought not to exist.” Printz, 521 U.S. at 905.
The Constitution gives Congress sweeping powers over Indians. But
the power Congress claims in ICWA finds no support in any Supreme Court
decision or founding-era practice. To permit Congress to regulate state
child-custody proceedings, whenever they involve Indian children, is
incompatible with “our federal system, [in which] the National Government
possesses only limited powers [and] the States and the people retain the
remainder.” Bond, 572 U.S. at 854. To the extent ICWA governs
child-custody proceedings under state jurisdiction, it exceeds Congress’s
power.
III. Challenges to Specific ICWA Provisions
Alternatively, we address Plaintiffs’ claims that parts of ICWA violate
the Fifth Amendment (III(A)); the commandeering doctrine (III(B)); the
52
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nondelegation doctrine (III(C)); and the APA (III(D)). We then consider the
appropriate remedy (III(E)).
A. Fifth Amendment Equal Protection
We first address whether ICWA violates the equal protection
component of the Fifth Amendment. See Adarand Constructors, Inc. v. Pena,
515 U.S. 200, 215–27, 235 (1995); Bolling v. Sharpe, 347 U.S. 497, 499 (1954).
“Fifth Amendment equal protection claims against federal actors are
analyzed under the same standards as Fourteenth Amendment equal
protection claims against state actors.” Butts v. Martin, 877 F.3d 571, 590 (5th
Cir. 2017) (citing Weinberger v. Wiesenfeld, 420 U.S. 636, 638 n.2 (1975)).
Laws that classify citizens by race or ancestry trigger “the ‘most rigid
scrutiny.’” Fisher v. Univ. of Tex., 570 U.S. 297, 309–10 (2013) (citing, inter
alia, Rice v. Cayetano, 528 U.S. 495, 517 (2000); Bolling, 347 U.S. at 499;
quoting Loving v. Virginia, 388 U.S. 1, 11 (1967)). Laws that do not classify in
those ways, however, must still be “rationally related to a legitimate
governmental purpose.” Clark v. Jeter, 486 U.S. 456, 461 (1988) (citing San
Antonio Indep. Sch. Dist. v. Rodriguez, 411 U.S. 1, 17 (1973)).
Plaintiffs claim ICWA violates equal protection: (1) by treating
“Indian children” differently from non-Indian children; and (2) by
preferring “Indian families” over non-Indian families. Both classifications,
they argue, are racial and fail strict scrutiny. Alternatively, Plaintiffs say
neither classification rationally links children with their tribes. Relying
heavily on Mancari, Defendants counter that ICWA adopts “political”
classifications subject to rational basis review. They say ICWA turns on a
child’s actual or potential tribal affiliation, not race, and so rationally furthers
“Congress’s ‘unique obligation toward the Indians.’” They also defend
ICWA’s preference for Indian over non-Indian families because “many
tribes have deep historic and cultural connections with other tribes, and . . .
53
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many Indian children may be eligible for membership in more than one
tribe.”
Siding with Plaintiffs, the district court concluded ICWA classifies by
race and fails strict scrutiny. The court stressed that ICWA covers children
“simply eligible for [tribal] membership who have a biological Indian
parent.” 65 Brackeen, 338 F. Supp. 3d at 533. Surveying membership criteria,
the court reasoned that ICWA applies if a child is “related to a tribal ancestor
by blood.” Id. The court also found that ICWA fails strict scrutiny because it
is not narrowly tailored to maintaining tribal ties. ICWA applies to “eligible”
children who may “never be members of their ancestral tribe.” Id. at 533, 536
ICWA also “priorit[izes] a child’s placement with any Indian,” regardless of
tribe, thus “impermissibly . . . treat[ing] ‘all Indian tribes as an
undifferentiated mass.’” Id. at 535 (cleaned up) (quoting United States v.
Bryant, 136 S. Ct. 1954, 1968 (2016) (Thomas, J., concurring)).
1. Even assuming ICWA classifies by tribe, not race,
it still must rationally link children to tribes.
The parties dispute whether ICWA classifies by race or tribe. Under
Supreme Court precedent, which we examine below, that is a close question.
Whatever the answer, though, the cases teach that the classifications still
must rationally further ICWA’s goal of linking children with tribes. Because
we resolve the equal protection challenges on that basis (infra III(A)(2)–(3)),
we need not decide whether ICWA classifies by race. Here we provide
necessary context for our analysis by surveying the Court’s
Indian-classification cases from Mancari (1974) to Adoptive Couple (2013).
65
See § 1903(4) (defining Indian child as an unmarried minor who is either a tribal
member or “eligible for membership in an Indian tribe and . . . the biological child of a
member of an Indian tribe”).
54
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The seminal case is Mancari, which upheld a federal preference for
hiring “Indians” at the Bureau of Indian Affairs (“BIA”). 417 U.S. at 551–
55. “Indian” meant a tribe member with “one-fourth or more degree Indian
blood.” Id. at 553 n.24. The Court found this a “political rather than racial”
preference because it excluded many “racial[]” Indians and was granted to
Indians only “as members of quasi-sovereign tribal entities.” Id. at 553 n.24,
554. Separately, the Court required the preference to be “reasonable and
rationally designed to further Indian self-government.” Id. at 555. 66
Importantly, the preference “d[id] not cover any other Government agency
or activity,” and so did not raise “the obviously more difficult question that
would be presented by a blanket exemption for Indians from all civil service
examinations.” Id. at 554. 67
66
As the Court explained, the preference: (1) was “an employment criterion
reasonably designed to further the cause of Indian self-government,” Mancari, 417 U.S. at
554; (2) insured “participation by the governed in the governing agency,” id.; (3) was akin
to requiring officials to reside in the jurisdictions they govern, id.; (4) applied only to the
BIA, whose “legal status [w]as truly sui generis” because it “governed . . . [tribal entities]
in a unique fashion,” id.
67
Given our discussion of Mancari, we are puzzled by Judge Costa’s insistence
that we harbor “the notion that the Constitution prohibits the federal government from
granting preferences to tribe members.” Costa Op. at 18. Judge Costa quotes
nothing from our opinion to prove that claim. To the contrary, we recognize that Mancari
permits certain federal preferences for tribe members. See 417 U.S. at 538, 541 (upholding
BIA hiring preference for Indians and noting “[t]he federal policy of according some hiring
preference to Indians in the Indian service dates at least as far back as 1834”) (citations
omitted). But the issue here—one Mancari itself recognized—is the permissible extent of
those preferences. See id. at 554 (observing that “the BIA is truly sui generis,” that “the
preference does not cover any other Government agency or activity,” and consequently
that “we need not consider the obviously more difficult question that would be presented
by a blanket exemption for Indians from all civil service examinations”). Judge Costa
pivots from this baseless claim to accuse us of “activis[m],” Costa Op. at 20, and to
propose a debate—one far afield from the issues in this case—over whether “[o]riginalism
usually goes AWOL when the issue is whether the government may grant preferences to
historically disadvantaged groups,” id. at 18. We decline the invitation.
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From 1974 to 1979, the Court applied Mancari to turn back similar
equal protection challenges. It upheld laws: (1) granting a tribe sole
jurisdiction over on-reservation adoptions; 68 (2) barring states from taxing
on-reservation sales; 69 (3) disbursing treaty funds based on tribe
membership; 70 (4) creating a criminal code for Indian lands; 71 (5) authorizing
states to exercise jurisdiction over in-state Indian lands; 72 and (6) securing
fishing rights to certain tribes. 73 These cases emphasized two things about
permissible Indian classifications. First, they turn on tribal status, not race.
Second, they reasonably further tribal interests—for instance, in self-
government, economic development, and protecting Indian lands. 74
68
Fisher, 424 U.S. at 384 n.5, 387, 389–91.
69
Moe v. Confederated Salish & Kootenai Tribes of the Flathead Reservation, 425 U.S.
463, 475–80 (1976).
70
Weeks, 430 U.S. at 79–85.
71
Antelope, 430 U.S. at 646–47 & n.7.
72
Yakima Nation, 439 U.S. at 471–76, 484.
73
Fishing Vessel, 443 U.S. at 684–85f.
74
See, e.g., Fisher, 424 U.S. at 387–91 (noting the law classified not by race but by
the tribe’s “quasi-sovereign status,” and “further[ed] . . . Indian self-government” by
excluding state jurisdiction); Moe, 425 U.S. at 475–80 (“special [tax] treatment” turned on
treaty and furthered “Congress’ unique obligation toward the Indians” (quoting Mancari,
417 U.S. at 555) (cleaned up)); Weeks, 430 U.S. at 79–85 (distribution turned on whether
recipients were descendants of Delawares who maintained tribal membership); Antelope,
430 U.S. at 646 & n.7 (criminal code applied based on whether defendants were “enrolled
[tribe] members” and acted “within . . . Indian country” (citing Mancari, 417 U.S. at 553
n.24)); Yakima Nation, 439 U.S. at 471–76, 500–02 (state jurisdiction turned only on
“tribal status and land tenure,” and was “fairly calculated” to balance non-Indian rights
with “tribal self-government”); Fishing Vessel, 443 U.S. at 673 & n.20 (fishing rights turned
on tribal status, not race).
56
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Moving ahead several years, two decisions have clarified how equal
protection applies to Indian classifications. Those are Rice and Adoptive
Couple. 75
Rice asked whether the Hawaii Constitution could allow only
“Hawaiians” to elect trustees of a state “Hawaiian Affairs” agency. 528 U.S.
at 499. The Court held that the classification violated the Fifteenth
Amendment. Id. The definition of “Hawaiian”—“any descendant of the
aboriginal peoples” inhabiting the islands since 1778—was “a proxy for
race” because it traced a person’s genetic relationship to aboriginal “races.”
Id. at 514–16. Relevant here, Rice held the voting restriction was not justified
by Mancari. Id. at 518–22.
Even assuming native Hawaiians were like Indian tribes, the Court
refused to “extend the limited exception of Mancari to [this] new and larger
dimension.” Id. at 518, 520. Mancari’s hiring preference was “rationally
75
Plaintiffs argue that a more radical limit on Mancari arises from the Supreme Court’s
1995 decision in Adarand. That decision addressed a federal program that paid highway
contractors to hire subcontractors controlled by “socially and economically disadvantaged
individuals.” 515 U.S. at 204. The program presumed social disadvantage if individuals
were “black, Hispanic, Asian Pacific, Subcontinent Asian, [or] Native Americans.” Id. at
207 (citation omitted) (emphasis added). Without discussing Mancari, the Court treated
these as “race-based presumptions,” id. at 208, subject to strict scrutiny. Although
Adarand did not specifically address the Native American category, more than one federal
judge has cautioned that Adarand may undercut Mancari. See id. at 244–45 & n.3 (Stevens,
J., dissenting) (warning the majority’s reasoning “would view the special preferences that
the National Government has provided to Native Americans since 1834 as comparable to”
race discrimination (citing Mancari, 417 U.S. at 541, 551–52, 553–54 & n.24)); Williams v.
Babbitt, 115 F.3d 657, 665 (9th Cir. 1997) (“If Justice Stevens is right about the logical
implications of Adarand, Mancari’s days are numbered.”); but see Am. Fed’n of Gov’t
Emps., AFL-CIO v. United States, 330 F.3d 513, 520–23 (D.C. Cir. 2003) (rejecting
argument that Adarand impacts scrutiny for appropriations preference “promoting the
economic development of federally recognized Indian tribes”). Because we do not decide
whether ICWA’s classifications are race-based, however, we need not address whether
Adarand undercuts Mancari.
57
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designed to further Indian self-government” in a “sui generis” context. Id. at
520 (quoting Mancari, 417 U.S. at 554, 555). But the decision could not
support limiting voting for state offices to “a class of tribal Indians.” Id. This
was because Mancari concerned only “the internal affair of a quasi
sovereign” (a tribe), while the election in Rice concerned the entire “State of
Hawaii.” Id. “To extend Mancari to this context,” the Court held, “would
be to permit a State, by racial classification, to fence out whole classes of its
citizens from decisionmaking in critical state affairs.” Id. at 522. Thus, in
deciding Rice, the Court clarified that Mancari’s “limited” hiring preference
for Indians could not support preferring Indians in “critical state affairs” like
an election. Id. at 520, 522. 76
The second key decision is Adoptive Couple, which interpreted ICWA
in a dispute between an Indian child’s adoptive parents and her biological
father. 570 U.S. at 643–46. The Court held that certain ICWA provisions—
its termination standard (§ 1912(f)), active-efforts requirement (§ 1912(d)),
and placement preferences (§ 1915(a))—do not apply where the child’s
biological father never had custody because he had abandoned the child. Id.
at 648, 651–56. 77 Relevant here, the Court warned that certain applications of
ICWA may deny a child equal protection.
76
See, e.g., Kahawaiolaa v. Norton, 386 F.3d 1271, 1279 (9th Cir. 2004) (explaining
Rice stands for the proposition that “Congress may not authorize special treatment for a
class of tribal Indians in a state election”).
77
The Court explained that the termination standard—requiring a showing that
the parent’s “continued custody” may seriously harm the child, § 1912(f)—would not
apply where a parent never had custody. Adoptive Couple, 570 U.S. at 648. Similarly, the
active-efforts requirement—requiring “active efforts” to “prevent the breakup of the
Indian family,” § 1912(d)—would not apply where the parent had abandoned the child
(there being no Indian family to “break up”). Id. at 651–53. Finally, the placement
preferences would not apply “if no alternative party that is eligible to be preferred . . . has
come forward.” Id. at 654.
58
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Specifically, the Court warned against applying ICWA to “put certain
vulnerable children at a great disadvantage solely because an ancestor—even
a remote one—was an Indian.” Id. at 655. It observed that “a biological
Indian father could abandon his child in utero and refuse any support for the
birth mother . . . and could then play his ICWA trump card at the eleventh
hour to override the mother’s decision and the child’s best interests.” Id. at
656. If ICWA required that result, “many prospective adoptive parents
would surely pause before adopting any child who might possibly qualify as
an Indian under the ICWA.” Id. “Such an interpretation,” the Court stated,
“would raise equal protection concerns.” Id.
In sum, in equal protection challenges the Supreme Court has
permitted Indian classifications based on tribal status (not race), if they
rationally further federal obligations to tribes. This is logical, given the
Constitution itself includes the category of “Indian Tribes.” See U.S.
Const. art. I, § 8, cl. 3 (vesting Congress with power to “regulate
Commerce . . . with the Indian Tribes”). 78 At the same time, the Court has
warned that Indian classifications may raise equal protection concerns when
deployed outside the tribal context. A classification may go beyond internal
tribal matters and interfere with state affairs (as in Rice), or it may
disadvantage a child with tenuous links to a tribe (as in Adoptive Couple).
ICWA’s classifications exist in the twilight between tribe and race. As
Defendants point out, ICWA links its “Indian child” definition to tribes: a
child must be a tribe member or at least “eligible” for membership and the
78
See also, e.g., United States v. Zepeda, 792 F.3d 1103, 1117 (9th Cir. 2015)
(Kozinski, J., concurring in the judgment) (“The Supreme Court has stressed time and
time again that federal regulation of Indian tribes does not equate to federal regulation of
the Indian race.” (citing Fisher, 424 U.S. at 390), Antelope, 430 U.S. at 646, and Mancari,
417 U.S. at 553 n.24)).
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offspring of a member. See § 1903(4). As Plaintiffs respond, however,
whether a child is “eligible” for membership often turns on a child’s
quantum of Indian blood. For instance, one child in this case, Y.L.M., is
eligible for membership in the Navajo Tribe because she is one-half “Navajo
Indian Blood.” As Plaintiffs forcefully argue, the fact that ICWA may apply
depending on the degree of “Indian blood” in a child’s veins comes queasily
close to a racial classification. 79
For present purposes, we need not decide whether ICWA classifies by
race or tribe. Regardless, the Supreme Court still requires the law’s
classifications be “reasonable and rationally designed” to further federal
obligations toward tribes. Rice, 528 U.S. at 520 (quoting Mancari, 417 U.S. at
555). As explained below, ICWA’s separate standards for Indian children—
standards which govern state proceedings, apply to children with tenuous
connections to a tribe, and allow birth parents’ wishes to be overridden—fail
to rationally further tribal interests. That is even more evident with respect
to ICWA’s preference for Indian over non-Indian families, which is divorced
from Congress’s goal of keeping children linked to their tribe. 80
79
See, e.g., Zepeda, 792 F.3d at 1117 (Kozinski, J., concurring in the judgment)
(making applicability of Indian Major Crimes Act turn, even partially, on “proof of some
quantum of Indian blood” creates an “overt racial classification”); id. at 1119–20 (Ikuta, J.,
concurring in the judgment) (use of “blood quantum test” in same law is foreclosed by
Rice’s “opposition to ‘ancestral tracing of this sort’”(cleaned up) (quoting Rice, 528 U.S.
at 510)).
80
Judge Dennis takes issue with our tailoring analysis on two related grounds.
First, he chides us for not “truly” arguing that ICWA fails rational basis review but instead
only arguing that “ICWA uses impermissible means” to further Congress’s tribal
obligations. Dennis Op. at 120. Second, he contends we “apply a far more searching
standard of scrutiny” than rational basis. Id. at 120–21. The simple answer to both
contentions is that we are faithfully following the tailoring analysis for Indian classifications
laid out by Mancari, Rice, and Adoptive Couple. Judge Dennis’s analysis, by contrast,
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2. The “Indian child” classification fails to rationally
further ICWA’s goal of linking children to tribes.
For three related reasons, ICWA’s disparate standards for “Indian
children” fail to rationally further federal obligations toward Indian tribes.
First, ICWA creates separate standards for Indian children that
extend beyond internal tribal affairs and intrude into state proceedings.
Mancari long ago cautioned that a “blanket exemption” for Indians in the
civil service system would raise “obviously . . . difficult” equal protection
problems. 417 U.S. at 554. Rice amplified this warning, holding an Indian
classification could not “extend” beyond a tribe’s “internal affair[s]” into
an “affair of the State,” like an election. 528 U.S. at 520–22. ICWA does just
what Mancari foretold and Rice forbade: it creates disparate standards for
Indian children in state proceedings. By exporting a blanket Indian exception
into state proceedings, ICWA violates Rice and severs any connection to
internal tribal concerns.
Compare this intrusion on state jurisdiction with the law upheld in
Fisher. Supra II(B)(1). Fisher approved exclusive tribal jurisdiction for
adoptions where the child, birth parents, and adoptive parents were “each
and all members of the [tribe] and . . . reside[d] within the exterior
boundaries of the [reservation].” 424 U.S. at 384 n.6. That limited measure
was “justified” because it “further[ed] the congressional policy of Indian
self-government.” Id. at 391. By contrast, ICWA dictates different standards
for Indian children within “the States[’] . . . recognized jurisdiction.”
§ 1901(5). By imposing “Indian child” standards on state proceedings,
proceeds as if those precedents had no bearing on this question at all, which is incorrect.
See infra III(A)(2)–(3).
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ICWA severs the link to tribal self-government or any other tribal interest
identified by the Supreme Court.
In disagreeing with this analysis, Defendants and Judge Dennis
misread Rice. First, they claim Rice merely reaffirmed Mancari and nothing
more. Dennis Op. at 117. Not so: Rice specified that Mancari’s “limited”
and “sui generis” Indian classification could not apply outside the tribal
context to a state-wide election. 528 U.S. at 520–22. Thus, Judge Dennis
is wrong to argue that “the degree to which [ICWA] intrudes on state
proceedings has no bearing on whether [ICWA] is rationally linked to
protecting Indian tribes.” Dennis Op. at 120. To the contrary, Rice said
this is a critical factor: an Indian classification cannot be transplanted from
the “internal affair[s]” of tribes into external matters concerning all state
citizens. 508 U.S. at 520; see, e.g., Kahawaiolaa v. Norton, 386 F.3d 1271, 1279
(9th Cir. 2004) (explaining that, after Rice, “Congress may not authorize
special treatment for a class of tribal Indians in a state election”). Next,
Defendants and Judge Dennis say Rice, unlike this case, concerned the
Fifteenth Amendment. Dennis Op. at 121. That is true but misses the
point. Rice said an Indian class could not be used “in critical state affairs.”
528 U.S. at 522. Child-custody proceedings are no less critical to states than
was the agency election in Rice. See, e.g., Palmore v. Sidoti, 466 U.S. 429, 433
(1984) (“The State . . . has a duty of the highest order to protect the interests
of minor children, particularly those of tender years.”). Finally, Defendants
argue that, unlike in Rice, ICWA does not “bar any person . . . from
participating in child-custody proceedings” (emphasis added). That is beside
the point. Rice did not turn on whether people’s rights were “barred” or only
limited. Its point was that a tribal classification—which could limit
participation in a tribe’s “internal affair[s]”—cannot do so in “affair of the
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[s]tate,” like the state election in Rice or the state custody proceedings here.
Id. at 520. 81
Second, ICWA covers children only “eligible” for tribal membership.
Enacting ICWA, Congress declared “there is no resource that is more vital
to the continued existence and integrity of Indian tribes than their children.”
§ 1901(3) (emphasis added). But ICWA applies not only to child tribe
members, but also to a child only “eligible for membership in an Indian tribe
and . . . the biological child of a member of an Indian tribe.” § 1903(4)
(emphasis added). As Defendants tell us, “[m]embership in an Indian tribe
is generally not conferred automatically upon birth,” but requires
“affirmative steps” by parents or guardians. See 81 Fed. Reg. at 38,783
(explaining “Tribal membership . . . is voluntary and typically requires an
affirmative act by the enrollee or her parent”). This means ICWA applies to
a child who is not, and may never become, a tribe member.
Federal Defendants respond that, because a child’s “formal
enrollment” in a tribe depends on parents or guardians, eligibility is a
“proxy” for the child’s “not-yet-formalized tribal affiliation.” This is just a
complicated way of saying that a child only eligible for membership may never
become a member, and may have no other tangible connection to a tribe. The
cases before us illustrate the point better than any abstract discussion could.
81
Judge Dennis goes so far as to say that state child-custody proceedings
involving Indian children are somehow no longer purely state affairs. Relying on Congress’s
finding that Indian children are tribes’ “vital” “resource[s],” 25 U.S.C. § 1901(3), he
claims: “[E]ven when ICWA reaches into state court adoption proceedings, those
proceedings are simultaneously affairs of states, tribes, and Congress.” Dennis Op. at
122. No authority supports that remarkable claim. ICWA’s own findings recognize that
“the States” have “their recognized jurisdiction over Indian child custody proceedings
through administrative and judicial bodies,” 25 U.S.C. § 1901(5), and its provisions
maintain the distinction between state and tribal jurisdiction, id. § 1911(a), (b).
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Take A.L.M., whom the Brackeens eventually adopted, with his birth
parents’ approval, over objections by the Navajo Nation. A.L.M.’s only tie
to the Navajo is that his mother is a member (his father is Cherokee). But
neither A.L.M. nor his birth parents have ever lived on the Navajo
reservation during A.L.M.’s life, except for the “day he was born and the
next day.” The Navajo never tried to participate in A.L.M.’s adoption
proceedings. And the only reason A.L.M. is considered Navajo (and not
Cherokee) is that “representatives of the Cherokee and Navajo
Nations . . . reached an agreement in the hallway outside the hearing room
that A.L.M. would become a member of the Navajo Nation because only the
Navajo had identified a potential foster placement.” Or take Child P., whom
the Cliffords are trying to adopt over objections by the White Earth Band of
Ojibwe Indians. Child P. is linked to the White Earth Band through her
maternal grandmother, R.B. Before Child P. was placed with the Cliffords,
the tribe wrote the state court that Child P. was ineligible for membership.
After placement, however, the tribe changed its position and declared Child
P. eligible. This triggered ICWA’s placement preferences: Child P. was taken
from the Cliffords and placed with R.B., whose foster license had been
previously revoked by the state.
As these cases illustrate, ICWA permits a child’s inchoate tribal
membership to override her placement in state proceedings. 82 ICWA thereby
82
Judge Dennis waves away this (and the next) tailoring flaw in ICWA because
he claims they only make the law “under- and over-inclusive.” Dennis Op. at 122–23.
We disagree. First, Judge Dennis again disregards what Mancari, Rice, and Adoptive
Couple teach about tailoring: overbroad Indian classifications divorced from tribal interests
create equal protection problems. See Mancari, 417 U.S. at 554; Rice, 528 U.S. at 520–22;
Adoptive Couple, 570 U.S. at 655. Second, the “eligibility” criterion does not merely make
ICWA “over-inclusive.” Eligibility—one of only two ways to trigger ICWA—makes the
law cover children (like the ones here) with no actual connection to a tribe. Third, as
discussed below, allowing ICWA to override birth parents’ wishes to place their children
with non-Indians does not mean ICWA only has “imperfect means-ends fit[].” Dennis
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“put[s] certain vulnerable children at a great disadvantage solely because an
ancestor—even a remote one—was an Indian.” Adoptive Couple, 570 U.S. at
655. This squarely raises the “equal protection concerns” forecast by the
Supreme Court in Adoptive Couple. 83
Third, ICWA overrides the wishes of biological parents who support
their child’s adoption outside the tribe. When enacting ICWA, Congress
proclaimed that too many Indian families were being “broken up” when non-
tribal agencies engaged in the “often unwarranted” “removal” of children
and placed them with “non-Indian” families. § 1901(4). But ICWA applies
even when an Indian child’s parents do not oppose adoption outside the tribe.
In other words, ICWA applies in circumstances entirely unlike those that
gave rise to the law—situations where no Indian family is being “broken up”
by state authorities and where parents themselves acquiesce in children’s
being placed in “non-Indian foster [or] adoptive homes.” Id.
Again, the cases before us illustrate the point. Take Baby O., the child
of Altagracia Hernandez (a non-Indian) and E.R.G. (descended from
members of the Ysleta del sur Pueblo Tribe). Both parents supported Baby
O.’s adoption by the non-Indian Librettis—indeed, Hernandez is a plaintiff
in this case alongside the Librettis. Yet the Pueblo, asserting E.R.G. was a
Op. at 123 (citation omitted). Instead, it makes nonsense of ICWA’s key goal of preventing
the break-up of Indian families. See 25 U.S.C. § 1901(4). Finally, Judge Dennis
discounts ICWA’s first tailoring flaw—namely, its intrusion into state proceedings in
defiance of Mancari and Rice. Taken together, these three flaws show ICWA fails to
rationally further its goals.
83
Few provisions in Title 25 define “Indian” to include persons “eligible” for
tribal membership. See, e.g., 25 U.S.C. § 2511(3) (defining “Indian” this way for purposes
of tribal school grants). None of these provisions, however, has any impact on state
proceedings as ICWA does. Cf., e.g., § 2502(a)(1) (authorizing federal grants to tribes that
operate certain schools). Consequently, none is affected by our holding that ICWA’s
inclusion of “eligible” members is one factor that severs its connection to tribal interests.
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member, intervened and proposed numerous Indian-family placements
under ICWA. Or again take A.L.M., whose Navajo mother and Cherokee
father both testified they support A.L.M.’s adoption by the non-Indian
Brackeens. Nonetheless, the Navajo sought to block the Brackeens’ adoption
of A.L.M. in favor of placing the child with unrelated tribe members, and is
now doing the same with the Brackeens’ attempt to adopt A.L.M.’s half-
sister, Y.R.J. See In re Y.J., 2019 WL 6904728, at *3–5.
As Plaintiffs point out, allowing ICWA to override birth parents’
wishes in this way again raises the “equal protection concerns”
foreshadowed by Adoptive Couple. In that case, the Court warned ICWA was
open to equal protection challenge if it allowed a tribe member “to override
the mother’s decision and the child’s best interests” and thus “put certain
vulnerable children at a great disadvantage solely because an ancestor—even
a remote one—was an Indian.” 570 U.S. at 655–56. What the Court foretold
there is what has happened here to A.L.M, Y.R.J., and Baby O.: their parents’
wishes were potentially or actually overridden by a non-custodial tribe
member’s invocation of ICWA. Applying ICWA in this way does nothing to
further Congress’s original aim of preventing Indian families’ being “broken
up” by the “unwarranted removal” of their children and placement with
non-Indian families. § 1901(4).
In sum, we conclude that ICWA’s “Indian child” classification
violates the equal protection component of the Fifth Amendment. 84
84
As the district court found, this conclusion directly impacts the placement
preferences in § 1915(a) and (b), the collateral attack provisions in §§ 1913 and 1914, and
the Final Rule provisions in 25 C.F.R. §§ 23.129–132.
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3. The “Indian family” classification fails to rationally
further ICWA’s goal of linking children to tribes.
We next consider Plaintiffs’ claim that ICWA impermissibly
discriminates against non-Indian families. While Plaintiffs challenge ICWA’s
placement preferences as a whole on this basis, the logical focus of the claim
is on the adoptive preference for “other Indian families” in § 1915(a), as well
as the preference for a licensed “Indian foster home” in § 1915(b). See
§§ 1915(a)(3), 1915(b)(iii). In these provisions, ICWA’s preference for
“Indian” over “non-Indian” families is most evident. Plaintiffs argue this
privileging of Indian over non-Indian families is a racial classification that fails
strict scrutiny. As with the Indian child classification, however, we assume
arguendo that “Indian family” is a tribal, not a racial, category. We do so
because we agree with Plaintiffs’ alternative argument that the preference
fails to rationally further Congress’s goal of keeping Indian children linked to
their own tribe. As Plaintiffs correctly point out, “placing a tribal child with
a different Indian tribe does not even conceivably advance the continued
existence and integrity of the child’s tribe.”
ICWA’s overriding purpose was to safeguard the continued
“existence and integrity of Indian tribes” by protecting “their children”
from unwarranted removal. § 1901(3). Congress invoked the United States’
interest “in protecting Indian children who are members or eligible for
membership in an Indian tribe.” Id. Congress also faulted states for “often
fail[ing] to recognize the essential tribal relations of Indian people.”
§ 1901(5). Many of ICWA’s provisions seek to further this tribe-focused goal.
For instance, a tribe has exclusive jurisdiction of adoptions involving an
Indian child domiciled “within the reservation of such tribe.” § 1911(a)
(emphasis added). Right to intervene is given to “the Indian child’s tribe.”
§ 1911(c). And some of ICWA’s placement preferences are tribe-based—
obviously the preference for “other members of the Indian child’s tribe”
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(§ 1915(a)(2)), but also the preference for “a member of the child’s extended
family” (§ 1915(a)(1), 1915(b)(i)), who is presumably of the same tribe.
ICWA, however, also has provisions broadly preferring “Indian
families” over non-Indian families. A non-Indian family seeking to adopt or
foster an Indian child, absent “good cause to the contrary,” will fail if “other
Indian families” or “Indian foster home[s]” are available. §§ 1915(a)(3),
1915(b)(iii). Nothing requires these Indian families or homes to be of a child’s
tribe. See § 1903(3) (relevantly defining “Indian” as “any person who is a
member of an Indian tribe”). In fact, they are virtually assured not to be:
otherwise, they would qualify as “other members of the Indian child’s tribe.”
§ 1915(a)(2).
We agree with Plaintiffs that a naked preference for Indian over non-
Indian families does nothing to further ICWA’s stated aim of ensuring that
Indian children are linked to their tribe. This conclusion follows a fortiori
from our conclusion that ICWA’s Indian child category is insufficiently
linked to federal tribal interests. The Indian child category encompassed
children who were not, and may never be, members of a tribe. Even more,
ICWA’s preference for “Indian families” lacks any connection to a child’s
tribe: as explained, the Indian families preferred over non-Indian families are,
by definition, not members of the child’s tribe. Thus, the preference has no
rational link to maintaining a child’s links with his tribe. Similarly, the Indian
child category ran afoul of Mancari, Fisher, and Rice by creating a blanket
exception for Indian children in state child-custody proceedings. The Indian
family category does the same: by definition, Indian families have a
statutorily-conferred advantage over non-Indian families with respect to state
adoptions and foster placements. Even assuming the Indian family category
is tribal and not racial, ICWA extends the category far beyond Mancari and
Fisher, and infiltrates the kind of “critical state affairs” that Rice forbade. See
Rice, 528 U.S. at 522.
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In response, Federal Defendants argue that this “Indian family”
preference is not merely a “preference for ‘generic “Indianness.”’” They
assert it instead “reflects the reality that many tribes have deep historic and
cultural connections with other tribes, and that many Indian children may be
eligible for membership in more than one tribe.” We are unpersuaded. Even
accepting that some tribes are interrelated, ICWA’s Indian family preference
is not limited in that way. Rather, the preference privileges Indian families of
any tribe, regardless of their connection to the child’s tribe, over all non-
Indian families. ICWA’s classification therefore does not rationally further
linking children to their tribes.
In sum, we conclude ICWA’s preferring Indian over non-Indian
families violates the equal protection component of the Fifth Amendment.
B. Commandeering and Preemption
The district court concluded numerous provisions of ICWA
“commandeer” state agencies and courts in violation of Article I and the
Tenth Amendment. 85 See Brackeen, 338 F. Supp. 3d at 538–41. The court also
ruled that the preemption doctrine does not save these provisions because
they “directly command states.” Id. at 541. On appeal, Defendants argue
ICWA does not commandeer states because it evenhandedly regulates an
activity in which both states and private parties engage. They also claim the
challenged provisions merely create federal rights enforceable in state courts
under the Supremacy Clause.
The anti-commandeering doctrine recognizes the “fundamental
structural” principal that “the Constitution . . . withhold[s] from Congress
85
Specifically, the court found invalid §§ 1901–23 and 1951–52, which “include the
congressional findings and declaration of policy, definitions, child custody proceedings,
record keeping, information availability, and timetables.”
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the power to issue orders directly to the States.” Murphy, 138 S. Ct. at 1475;
see generally Printz, 521 U.S. 898; New York, 505 U.S. 144; FERC v.
Mississippi, 456 U.S. 742 (1982); Hodel v. Va. Surface Mining & Reclamation
Ass’n., Inc., 452 U.S. 264 (1981). To be sure, Congress may encourage states
to regulate as it wishes. For instance, Congress may “attach conditions on
the receipt of federal funds” under the Spending Clause. New York, 505 U.S.
at 167 (quoting South Dakota v. Dole, 483 U.S. 203, 206 (1987)). Or it may
offer states the option of regulating “private activity . . . according to federal
standards or having state law pre-empted by federal regulation.” Id. (citing
Hodel, 452 U.S. at 288). What Congress cannot do, however, is issue “a
simple command to state governments to implement legislation enacted by
Congress.” Id. at 176. Nor may it “compel the States to enact or administer
a federal regulatory program.” Id. at 188. This anti-commandeering doctrine
reflects a basic principle: “[t]he Constitution confers on Congress not
plenary legislative power but only certain enumerated powers,” and
“conspicuously absent” from those is “the power to issue direct orders to
the governments of the States.” Murphy, 138 S. Ct. at 1476.
The Supreme Court has deployed this doctrine to declare
unconstitutional federal legislation commanding state legislatures, officers,
and agencies. For instance, Congress could not make state legislatures “take
title” to radioactive waste, nor make state executive agencies “regulat[e]
[waste] according to the instructions of Congress.” New York, 550 U.S. at
175–76; see also Murphy, 138 S. Ct. at 1476 (the law in New York “issued orders
to either the legislative or executive branch of state government”). Congress
also could not compel state or local officers to conduct background checks
under a federal firearms law. Printz, 521 U.S. at 903–04, 933. Such a
requirement—even if it involved only “discrete, ministerial tasks,” id. at
929—would amount to “the forced participation of the States’ executive in
the actual administration of a federal program.” Id. at 918. Finally, Congress
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could not prohibit states from “author[izing]” sports gambling because that
would “unequivocally dictate[] what a state legislature may and may not do.”
Murphy, 138 S. Ct. at 1470, 1478.
Different dynamics come into play when asking—as the district court
did here—whether federal law commandeers state courts. This is due to the
Supremacy Clause, which binds “the Judges in every State” to follow validly
enacted federal law. U.S. Const. art. VI, cl. 2; see Kansas v. Garcia, 140 S.
Ct. 791, 801 (2020) (Supremacy Clause “provides ‘a rule of decision’ for
determining whether federal or state law applies in a particular situation”
(quoting Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 324 (2015))).
Thus, Congress may, “in a sense, direct state judges” by enacting federal law
state courts must apply. New York, 505 U.S. at 178–79. 86 Similarly, state
judges must apply federal law that validly preempts applicable state law.
Murphy, 138 S. Ct. at 1479. So, if federal law is enforceable in state courts or
preempts state law, no “commandeering” arises from the fact that state
courts must apply the federal enactment—rather, this is what the Supremacy
Clause demands. New York, 505 U.S. at 179; see also Printz, 521 U.S. at 907
(state courts “have been viewed distinctively in this regard” because “unlike
legislatures and executives, they applied the law of other sovereigns all the
time”). The Supremacy Clause, however, assumes the same limit on
Congress’s power that the anti-commandeering doctrine does—that
Congress may regulate only individuals, not state governments. 87 In that
86
See also id. at 179 (explaining “this sort of federal ‘direction’ of state judges is
mandated by the text of the Supremacy Clause”); Printz, 521 U.S. at 907 (suggesting “the
Constitution was originally understood to permit imposition of an obligation on state judges
to enforce federal prescriptions”).
87
See New York, 505 U.S. at 178 (federal laws enforceable in state courts “involve
congressional regulation of individuals, not congressional requirements that States
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regard, then, the operation of the Supremacy Clause overlaps with anti-
commandeering.
Finally, we should not lose sight of why anti-commandeering is
critical. First, the doctrine protects the division of power between federal and
state governments, which “secures to citizens the liberties that derive from
the diffusion of sovereign power” and “reduce[s] the risk of tyranny and
abuse from either front.” New York, 505 U.S. at 181–82 (citations omitted).
Second, the doctrine “promotes political accountability” by letting voters
know “who to credit or blame” for good or bad policies. Murphy, 138 S. Ct.
at 1477. 88 Third, the doctrine “prevents Congress from shifting the costs of
regulation to the States.” Murphy, 138 S. Ct. at 1477. 89
With that background in mind, we proceed to our analysis. We first
address Plaintiffs’ anti-commandeering challenges (infra III(B)(1)). We next
address whether the preemption doctrine saves any of the challenged
provisions (infra III(B)(2)). As the Supreme Court has done in this area, we
analyze the challenged provisions separately. 90 ICWA touches many aspects
regulate”); Murphy, 138 S. Ct. at 1481 (explaining “every form of preemption is based on a
federal law that regulates the conduct of private actors, not the States”).
88
See also New York, 505 U.S. at 169 (“[W]here the Federal Government directs
the States to regulate, it may be state officials who will bear the brunt of public disapproval,
while the federal officials who devised the regulatory program may remain insulated from
the electoral ramifications of their decision.”).
89
See also Printz, 521 U.S. at 930 (“By forcing state governments to absorb the
financial burden of implementing a federal regulatory program, Members of Congress can
take credit for ‘solving’ problems without having to ask their constituents to pay for the
solutions with higher federal taxes.”).
90
See, e.g., Murphy, 138 S. Ct. at 1470 (analyzing only the component of the
Professional and Amateur Sports Protection Act, 28 U.S.C. § 3702(1), that prohibits states
from “authoriz[ing] by law” sports betting); Printz, 521 U.S. at 902–03 (analyzing only
those Brady Act sections, 18 U.S.C. § 922(s)(2), 922(s)(6)(C), 922(s)(6)(B), applicable to
a “chief law enforcement officer”); New York, 505 U.S. at 152–54, 174–77 (analyzing
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of state child-custody proceedings. It would not be implausible to find
constitutionally problematic provisions alongside permissible ones. 91
1. Commandeering
As discussed, the anti-commandeering doctrine typically asks
whether federal law conscripts state agencies or officials. This part therefore
focuses on Plaintiffs’ claims that ICWA compels action by state child welfare
agencies. Where Plaintiffs instead challenge provisions compelling state
courts, we consider those claims under preemption analysis, infra.
a. ICWA’s active-efforts, expert-witness,
placement-preference, placement-record, and
notice provisions commandeer state agencies.
No Defendant denies that ICWA requires action by state child welfare
agencies. This is unsurprising. What prompted ICWA, after all, were
concerns about Indian families’ treatment by “State[ ] . . . administrative and
judicial bodies.” § 1901(5) (emphasis added). ICWA obviously covers
matters—child-custody proceedings—lying within the purview of state
agencies. 92 ICWA’s regulations, moreover, describe actions that must be
taken by “State agencies,” “governmental organizations,” and “State
separately the “take title” provision of the Low-Level Radioactive Waste Policy
Amendments Act, 42 U.S.C. § 2021e(d)(2)(C)).
91
See, e.g., Murphy, 138 S. Ct. at 1481 (analyzing regulation of state legislatures in
PASPA § 3702(1) separately from the “closely related provision” in § 3702(2) regulating
“private conduct”); New York, 505 U.S. at 173–75 (two of the Act’s “incentives” were
valid under Spending Clause and preemption, whereas “take-title” provision
commandeered states).
92
See, e.g., Tex. Hum. Res. Code § 40.002(b)(1), (2) (providing Texas
Department of Family and Protective Services “shall . . . provide protective services for
children” as well as “family support and family preservation services”); Tex. Fam.
Code § 262.001(a) (authorizing “governmental entity with an interest in the child” to
take actions to protect child).
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actors.” 93 For instance, ICWA’s placement preferences “create[ ] an
obligation on State agencies and courts to implement the policy outlined in the
statute.” 81 Fed. Reg. at 38,839 (emphasis added). Thus, the idea that ICWA
compels state agencies seems incontestable. As the district court concluded,
Texas “indisputably demonstrated that the ICWA requires [Texas’s]
executive agencies to carry out its provisions.” Brackeen, 338 F. Supp. 3d at
540. It specifically found that the relevant agency, the DFPS,
must, among other things[:] serve notice of suit on Indian
tribes, verify a child’s tribal status, make a diligent effort to find
a suitable placement according to the ICWA preferences and
show good cause if the preference are not followed, ensure a
child is enrolled in his tribe before referring him for adoption,
and keep a written record of the placement decision.
Id. at 540 & n.18. Defendants dispute none of this. 94
Turning to the specific challenges before us, we conclude the
following ICWA provisions commandeer state agencies.
93
See, e.g., 81 Fed. Reg. at 38,779 (ICWA sought to remedy failures by “State
agencies and courts”); id. at 38,780 (noting “[s]everal ICWA provisions do apply, either
directly or indirectly, to State and private agencies”); id. at 38,790 (“active efforts” require
“substantial and meaningful actions by agencies,” meaning “agencies of government”);
id. at 38,791 (agreeing “active efforts” “require States to affirmatively provide Indian
families with substantive services”); id. at 38,792 (definition of “agency” includes
“governmental organizations”); id. at 38,814 (“active efforts” requirement “ensure[s]
that State actors . . . provide necessary services to parents of Indian children”). See also,
e.g., Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 45 n.18 (1989) (observing
ICWA sought to address “the failure of State officials [and] agencies” to consider “the
special problems and circumstances of Indian families”) (internal quotation omitted).
94
Judge Dennis’s opinion does not squarely address whether ICWA
commands state agencies. We understand his view to be that the point is immaterial
because ICWA “evenhandedly regulates an activity in which both States and private actors
engage.” Dennis Op. at 89 (quoting Murphy, 138 S. Ct. at 1478). We disagree and
respond below.
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i. Active efforts (§ 1912(d)). We begin with the “active efforts”
requirement in § 1912(d). Any “party” seeking to place an Indian child in
foster care, or to terminate parental rights, must “satisfy the court that active
efforts have been made to provide remedial services . . . designed to prevent
the breakup of the Indian family and that these efforts have proved
unsuccessful.” Id. State agencies are “parties” that seek placement or
termination with respect to Indian children. 95 Consequently, ICWA’s active-
efforts requirement demands extensive action by state and local agencies as a
condition to fulfilling their obligations to Indian children. 96 For example, in
Doty-Jabbaar v. Dallas County Child Protective Services, a state appellate court
concluded a county agency failed ICWA’s active-efforts requirement before
terminating a birth mother’s rights. 19 S.W.3d 870, 875–76 (Tex. App.—
Dallas 2000, pet. denied). Although the agency had given the mother a seven-
point plan including “drug treatment, parenting classes, and psychological
evaluations,” the court found insufficient evidence that “these remedial
services and rehabilitation programs had proven unsuccessful.” Id. at 875. 97
95
See, e.g., N.M. v. Tex. Dep’t of Fam. & Prot. Servs., No. 03-19-00240-CV, 2019
WL 4678420, at *1 (Tex. App. —Austin Sept. 26, 2019, no pet.) (ICWA case involving
Texas DFPS’s efforts “to terminate the parent-child relationship of N.M. and the
children’s father”); Tex. Fam. Code §§ 153.371(10), 101.0133 (as child’s managing
conservator, DFPS has “the right to designate the [child’s] primary residence,” including
foster placement); see also 81 Fed. Reg. at 38,792 (“any party” in § 1912 includes
“governmental organizations”).
96
See 25 C.F.R. § 23.2 (defining “active efforts” to mean “affirmative, active,
thorough, and timely efforts” to “maintain or reunite an Indian child with his or her
family”); see also, e.g., In re D.E.D.I., 568 S.W.3d 261, 262–63 (Tex. App.—Eastland 2019,
no pet.) (trial court “specifically found” that DFPS “made active efforts to provide
remedial services and rehabilitation programs” under ICWA).
97
Cf., e.g., In re J.L.C., 582 S.W.3d 421, 433–34 (Tex. App.—Amarillo 2018, pet.
ref’d) (finding ICWA active-efforts burden satisfied because “the [DFPS] had
appropriately engaged [the parent] with services but the Department’s efforts had failed”)
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ICWA’s regulations confirm that active-efforts demands action by
state agencies. Through the “‘active efforts’ provision . . . Congress
intended to require States to affirmatively provide Indian families with
substantive services.” 81 Fed. Reg. at 38,791. The “active-efforts
requirement,” they emphasize, “is one critical tool to ensure that State actors
. . . provide necessary services to parents of Indian children.” Id. at 38,814
(emphasis added). 98 The Final Rule even specifies the efforts required by
§ 1912(d)—including eleven categories of remedial services—“[w]here an
agency is involved in the child-custody proceeding.” 25 C.F.R. § 23.2. 99
We therefore conclude that the active-efforts requirement in
§ 1912(d) commandeers states in violation of Article I and the Tenth
Amendment. See also Brackeen, 937 F.3d at 443 (Owen, J., dissenting in
part) (concluding § 1912(d) “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”).
ii. Expert witnesses (§ 1912(e), (f)). We reach the same conclusion as
to the “expert witness” requirements in § 1912(e) and (f). These provisions
prohibit placement or termination absent “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
98
See also id. at 38,814 (active-efforts requirement sought to remedy failures by
“agencies of government”); id. at 38,790 (the “active efforts requirement” is one of
ICWA’s “primary tools” to address failures by “agencies of government” and should
therefore be “interpreted in a way that requires substantial and meaningful actions by
agencies to reunite Indian children with their families”).
99
The term “agency” includes “governmental organizations.” 81 Fed. Reg. at
38,792; see also 80 Fed. Reg. 10,146, 10,151 (“[a]gency” includes a “public agency and their
employees, agents or officials involved in and/or seeking to place a child in a child custody
proceeding”).
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damage to the child.” § 1912(e) (foster placement); § 1912(f) (termination).
ICWA thus “requires the testimony of qualified expert witnesses for foster-
care placement and for adoptive placements.” 81 Fed. Reg. at 38,829 (citing
§ 1912(e), (f)); see also 25 C.F.R. § 23.122(a) (specifying expert
qualifications). As a result, state agencies must present the testimony of
expert witnesses, with specific qualifications, when they seek to place an
Indian child in foster care or terminate parental rights. See also Brackeen, 937
F.3d at 443–44 (Owen, J., dissenting in part) (concluding § 1912(e) “places
the burden on a State, not a court, to present expert witness testimony in
order to effectuate foster care for Indian children”).
For instance, a Texas appellate court recently found that the DFPS
failed to justify terminating parental rights under ICWA because “the
Department failed to produce testimony of a ‘qualified expert witness’ as
required under the Act.” S.P. v. Tex. Dep’t of Fam. & Prot. Servs., No. 03-17-
00698-CV, 2018 WL 1220895, at *3 (Tex. App.—Austin Mar. 9, 2018, no
pet.). Although DFPS offered testimony by the child’s caseworker that
termination was in the child’s best interest, the court concluded the
caseworker did not have “the requisite expertise to satisfy the federal
requirement.” Id. at *4. For instance, the caseworker was not “recognized
by the Muscogee tribe,” nor did she have “substantial experience in the
delivery of child and family services to Indians or knowledge of [the tribe’s]
prevailing social and cultural standards and childrearing practices.” Id. 100
The court therefore concluded the state agency failed to meet the “qualified
100
See 80 Fed. Reg. at 10,157 (ICWA guidelines providing, inter alia, that a qualified
expert “should have specific knowledge of the Indian tribe’s culture and customs”).
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expert witness” requirement in § 1912(f) and reversed the termination of
parental rights. Id. at *4–5. 101
We conclude that § 1912(e) and (f) require state agencies and officials
to bear the cost and burden of adducing expert testimony to justify placement
of Indian children in foster care, or to terminate parental rights. The expert-
witness requirements in § 1912(e) and (f) therefore commandeer states.
iii. Placement preferences (§ 1915(a)–(d)). We also conclude that the
placement preferences in § 1915(a)–(d) violate the anti-commandeering
doctrine to the extent they direct action by state agencies and officials. These
provisions require that, absent good cause, “preference shall be given” to
specific adoptive and foster placements for an Indian child. 102 Insofar as these
preferences constrain state courts, we examine below whether they are valid
preemption provisions. Quite apart from state courts, however, the
preferences appear to independently demand efforts by state agencies and
officials.
ICWA’s regulations support this reading. The placement
preferences, they state, “create[ ] an obligation on State agencies and courts
to implement the policy outlined in the statute” and “require that State
agencies and courts make efforts to identify and assist extended family and
Tribal members with preferred placements.” 81 Fed. Reg. at 38,839
101
See also, e.g., In re K.S., 448 S.W.3d 521, 539, 544–45 (Tex. App.—Tyler 2014,
pet. denied) (affirming state agency’s termination of parental rights under ICWA based on
testimony of a “Cherokee Nation representative” who “was qualified as an expert
witness” under § 1912(f)).
102
See § 1915(a) (requiring adoptive preference in favor of (1) extended family,
(2) other tribe members; or (3) other Indian families); § 1915(b) (requiring different foster-
care preferences); § 1915(c) (tribes may re-order preferences); § 1915(d) (preference
decisions must accord with “prevailing social and cultural standards” of pertinent Indian
community).
78
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(emphases added). These “State efforts to identify and assist preferred
placements are critical to the success of the statutory placement preferences.”
Id. at 38,839–40 (emphasis added) (collecting decisions). Further confirming
this view, ICWA’s guidelines, see 80 Fed. Reg. 10,146, specify duties that
“[t]he agency seeking a preadoptive, adoptive or foster care placement of an
Indian child must always follow.” 80 Fed. Reg. at 10,157 (emphases added).
For example, to justify deviating from the preferences, the agency must prove
that “a diligent search has been conducted to seek out and identify placement
options”—including detailed notices to the parents or custodian, “known,
or reasonably identifiable” extended family, the child’s tribe, and—for foster
or preadoptive placements—ICWA-specified institutions. Id. And, as
discussed, ICWA guidelines specify that the “agency” that must undertake
these efforts includes a “public agency and their employees, agents or
officials.” Id. at 10,151. 103
State decisions confirm that ICWA’s placement preferences may
result in demanding extensive actions by state child welfare agencies. For
example, in Native Village of Tununak v. State, the Alaska Supreme Court
addressed the duties of the Alaska Office of Child Services (“OCS”) to
implement the placement preferences. 334 P.3d 165, 177–78 (Alaska 2014).
To safeguard ICWA’s preferences, courts “must searchingly inquire about
. . . OCS’s efforts to comply with achieving[] suitable § 1915(a) placement
preferences” and, in turn, OCS must “identify[] early in a [child welfare
proceeding] all potential preferred adoptive placements.” Id. at 178. 104
103
Surprisingly, Tribal Defendants contend the preferences apply “exclusively to
state courts” and “are not mandates requiring that state executive branch employees
enforce federal law.” ICWA’s regulations show the opposite is true.
104
See also, e.g., Alexandra K. v. Dep’t of Child Safety, No. 1 CA-JV 19-0081, 2019 WL
5258095, at *1 (Ariz. Ct. App. Oct. 17, 2019) (observing “[t]he [Arizona Department of
Child Safety] case manager testified DCS had not located any ICWA-compliant placement
79
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In sum, to the extent the placement preferences in § 1915(a)–(d)
require implementation efforts by state agencies and officials, that violates
the anti-commandeering doctrine.
iv. Placement record (§ 1915(e); 25 C.F.R. §23.141). We also conclude
that the related placement-record requirements in § 1915(e) commandeer
states (along with its implementing regulation in 25 C.F.R. § 23.141). This
provision requires “the State” to “maintain[ ] . . . [a] record” of any Indian
child placements under state law. § 1915(e). The record must “evidenc[e]
the efforts to comply with the order of preference specified in [§ 1915]” and
“shall be made available at any time upon the request of the Secretary or the
Indian child’s tribe.” Id. In turn, the Final Rule specifies: (1) the record’s
minimum contents, 25 C.F.R. § 23.141(b); (2) that “[a] State agency or
agencies may be designated to be the repositories for this information,” id.
§ 23.141(c), and (3) that “[t]he State court or agency should notify the
[Bureau of Indian Affairs] whether these records are maintained within the
court system or by a State agency,” id.
As then-Judge Owen reasoned in her panel dissent, these
requirements commandeer states because they are “direct orders to the
States.” 937 F.3d at 444, 446 (Owen, J., dissenting in part). The statute
and regulation each command “the State” to create, compile, and maintain
the required record and furnish it upon request to the child’s tribe or the
and that the Navajo Nation had not suggested any”); People in Interest of M.D., 920 N.W.2d
496, 503 (S.D. 2018) (noting “[South Dakota Department of Social Services] workers also
testified during the dispositional hearing to their familiarity with ICWA placement
preferences, [and] their efforts to find a suitable placement for all the children”); id. at 504
(concluding that “because DSS explored the availability of a suitable placement for child
with a diligent search, but was unsuccessful, there was good cause for departure from the
placement preferences”) (quoting David S. v. State, Dep’t of Health & Social Servs., 270
P.3d 767, 782 (Alaska 2012)) (cleaned up).
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Secretary. § 1915(e); 25 C.F.R. § 23.141(a). Furthermore, the regulations
explain that § 1915(e) “work[s] in concert” with the placement preferences
to “require that State agencies and courts make efforts to identify and assist
extended family and Tribal members with preferred placements.” 81 Fed.
Reg. at 38,839. 105 Consequently, as Judge Owen correctly concluded, the
placement-record requirements offend “the very principle of separate state
sovereignty” because their “whole object . . . [is] to direct the functioning of
the state executive” in service of a federal regulatory program. 937 F.3d at
445 (Owen, J., dissenting in part) (quoting Printz, 521 U.S. at 932).
Tribal Defendants attempt to justify these requirements as merely
making states perform administrative actions, such as “provid[ing] the
federal government with information.” See also Printz, 521 U.S. at 918
(declining to address constitutionality of laws “requir[ing] only the provision
of information to the Federal Government” by state officials).106 But the
challenged provisions demand more than “provid[ing] information.” The
required record must not only compile documents but also “evidenc[e]” the
state’s “efforts to comply” with ICWA’s placement preferences.
§ 1915(e). 107 The whole point is to help implement the placement
105
See also id. (explaining Congress intended “reading Sections 1915(a) and 1915(e)
together” to “demand[ ] documentable ‘efforts to comply’ with the ICWA placement
preferences”).
106
Judge Dennis also cites Printz, 521 U.S. at 905–06, for the proposition that
early federal laws required state courts to record citizenship applications and transmit
naturalization records. Dennis Op. at 86. But Printz did not decide whether those laws
set a constitutional precedent. See 521 U.S. at 918. And, even assuming the recordkeeping
obligations in § 1915(e) may be fulfilled by state courts, those obligations go well beyond
the early examples in Printz. See also infra III(B)(2)(c) (discussing similar obligations
imposed on state courts by § 1951(a)).
107
See also 25 C.F.R. § 23.141(a), (b) (to justify departing from preferences, record
“must contain . . . detailed documentation of the efforts to comply with the placement
preferences”); 81 Fed. Reg. at 38,839 (“Section 1915(e) requires that, for each placement,
81
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preferences, which, as explained, demand action by state agencies. See also 81
Fed. Reg. at 38,839 (preferences “create[] an obligation on State agencies
and courts”). More than an obligation to “provide information,” then,
§ 1915(e) demands states document the “forced participation of the States’
executive in the actual administration of a federal program.” Printz, 521 U.S.
at 918. 108
v. Notice (§ 1912(a)). Finally, we find § 1912(a) unconstitutional
because it commandeers state agencies. Under this section, any “party”
seeking to place an Indian child in foster care, or to terminate parental rights,
“shall notify the parent or Indian custodian and the Indian child’s tribe, by
registered mail with return receipt requested, of the pending proceedings and
of their right of intervention.” Id. 109 The regulations describe this as “one of
ICWA’s core procedural requirements in involuntary child-custody
proceedings.” 81 Fed. Reg. at 38,809. It applies to state agencies. See id. at
the State must maintain records evidencing the efforts to comply with the order of
preference specified in section 1915.”).
108
Judge Dennis sees no commandeering because the regulation implementing
§ 1915(e) “permits states to designate either their courts or agencies . . . as the entities
charged with complying with” the requirement. Dennis Op. at 87; see 25 C.F.R.
§ 23.141(c) (allowing designation of “[a] State agency or agencies” as “repository for this
information”); id. (requiring “State court or agency” to notify BIA whether records are
kept “within the court system or by a State agency”). We disagree. Whatever option the
state chooses, either its agencies or its courts are co-opted into administering a federal
program. Judge Dennis’s premise seems to be that requiring state courts to implement
§ 1915(e) would not be commandeering. That is mistaken. As explained below, forcing state
courts to administer a federal recordkeeping regime violates anti-commandeering just as
much as forcing agencies to do it. See infra III(B)(2)(c) (addressing recordkeeping
requirement in § 1951(a)).
109
If the identity or location of the parent, custodian, or tribe cannot be determined,
“such notice shall be given to the Secretary in like manner, who shall have fifteen days after
receipt to provide the requisite notice.” Id. The proceeding may not commence until ten
days after receipt of notice by the parent, custodian, tribe, or the Secretary. Id.
82
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38,792 (“any party” in § 1912(a) includes “governmental organizations”). 110
The provision thereby imposes detailed 111 obligations on state agencies,
which the Final Rule concedes will consume significant time and money. 112
As explained, the anti-commandeering doctrine forbids Congress
from imposing administrative duties on state agencies and officials. See, e.g.,
New York, 550 U.S. at 176, 188 (Congress cannot issue “a simple command
to state governments to implement legislation enacted by Congress,” nor
“compel the States to enact or administer a federal regulatory program”).
Because that is what § 1912(a) does, it is unconstitutional.
b. ICWA does not “evenhandedly
regulate” state and private activity.
Defendants’ principal response on anti-commandeering is to invoke
the principle that the doctrine “does not apply when Congress evenhandedly
regulates an activity in which both States and private actors engage.”
Murphy, 138 S. Ct. at 1478. For instance, they point out that private parties,
as well as state agencies, may seek to be appointed as a child’s guardian or
110
See also, e.g., In re Morris, 815 N.W.2d 62, 72–76, 83 (Mich. 2012) (discussing
§ 1912(a) notice requirement and conditionally reversing order based on failure of court to
ensure that state Department of Human Services notified child’s tribe); In re Desiree F., 99
Cal. Rptr. 2d 668, 696 (Cal. Ct. App. 2000) (finding it was “the duty of the Fresno County
Department of Social Services to notify the Tribe or the Secretary” and invalidating court
orders due to “the failure of the respective county welfare agencies and juvenile courts to
comply with the clear provisions of the ICWA”).
111
See, e.g., 25 C.F.R. § 23.111(a)(1), (c) (court must ensure “party seeking
placement” sends notice “by registered or certified mail with return receipt requested”);
id. § 23.111(d)(1)–(6) (14 different statements that must appear in notice); id. § 23.111(e)
(if parent, custodian, or tribe not ascertainable, requiring notice to BIA, including “as much
information as is known regarding the child’s direct lineal ancestors”).
112
81 Fed. Reg. at 38,863 (estimating at 81,900 the “[t]otal annual burden hours”
for “State court[s] and/or agenc[ies]” to provide notices); id. at 38,864 (estimating at
$260,442 the “annual cost burden” of providing required notices).
83
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conservator or to terminate parental rights. Similarly, Judge Dennis
observes that some of the challenged provisions (notice and active efforts)
refer to “any party” seeking placement or termination, and thus apply
“regardless of whether that party is a state agent or private individual.” See
§ 1912(a), (d); Dennis Op. at 94. In advancing this argument, both Tribal
Defendants and Judge Dennis rely heavily on South Carolina v. Baker,
485 U.S. 505 (1988), and Reno v. Condon, 528 U.S. 141 (2000). Dennis Op.
at 92–93. They are right to do so, because those decisions undergird the
“evenhanded regulation” principle. See Murphy, 138 S. Ct. at 1478–79
(discussing Baker and Condon). But examining those decisions shows the
principle does not apply to ICWA.
Baker involved a federal law denying a tax exemption to interest
earned on state and local bonds issued in unregistered (“bearer”) form. 485
U.S. at 510. The law treated private bonds similarly. Id. The Supreme Court
rejected South Carolina’s argument that the law commandeered states by
coercing them to enact and administer a registered bond scheme. Id. at 513–
14. At most, the law “effectively prohibit[ed]” states from issuing bearer
bonds pursuant to a “‘generally applicable’” law treating state and private
bonds equally. Id. at 514 (citation omitted). The Court emphasized that the
challenged law “d[id] not . . . seek to control or influence the manner in
which States regulate private parties.” Id. Relying on Baker, Condon rejected
South Carolina’s commandeering challenge to a federal law restricting state
DMVs from disclosing drivers’ personal information. 528 U.S. at 144. The
law also restricted private disclosure and resale of such information. Id. at
146. Distinguishing its commandeering decisions in New York and Printz, the
Court explained that, here, the challenged law “d[id] not require the States
in their sovereign capacity to regulate their own citizens,” did not require
state legislatures to enact any laws, and “d[id] not require state officials to
assist in the enforcement of federal statutes regulating private individuals.”
84
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Id. at 151. Additionally, the law regulated states only as “the owners of data
bases,” and as part of “the universe of entities that participate as suppliers
to the market for motor vehicle information.” Id.
For two main reasons, the “evenhanded regulation” principle from
Baker and Condon has no application here. First, the laws challenged in those
cases, unlike ICWA, did not compel states “to regulate their own citizens.”
Condon, 528 U.S. at 151; see also Murphy, 138 S. Ct. at 1479. ICWA
emphatically does. As explained, ICWA requires state agencies to provide
remedial services to Indian families (§ 1912(d); 25 C.F.R. § 23.2; 81 Fed. Reg.
at 38,814); to adduce expert witness testimony (§ 1912(e), (f); 25 C.F.R.
§ 23.122(a); 81 Fed. Reg. at 38,829); to assist Indian families and tribes with
preferred placements (§ 1915(a)–(d); 81 Fed. Reg. at 38,839–40); to compile
records evidencing efforts to comply with placement preferences (§ 1915(e);
25 C.F.R. § 23.141); and to provide detailed notices to parents, custodians,
and tribes (§ 1912(a); 25 C.F.R. § 23.111). This is especially evident as to the
placement preferences: ICWA “creates an obligation on State agencies and
courts to implement” the preferences by “mak[ing] efforts to identify and
assist extended family and Tribal members.” 81 Fed. Reg. at 38,839
(emphasis added). These efforts are “critical to the success of the statutory
placement preferences.” Id. at 38,839–40. The fact that ICWA imposes
“critical” duties on state actors concerning private persons sets it worlds
apart from the tax law in Baker (which, at most, effectively prohibited states
from issuing bearer bonds) and the privacy law in Condon (which restricted
agency disclosure of drivers’ information). Instead, ICWA fits Condon’s
description of laws that commandeer states by “requir[ing] state officials to
assist in the enforcement of federal statutes regulating private individuals.”
Condon, 528 U.S. at 151.
Second, unlike the laws in Baker and Condon, ICWA regulates states
“in their sovereign capacity.” Condon, 528 U.S. at 151; see also Murphy, 138
85
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S. Ct. at 1478. In Baker and Condon, Congress regulated states as participants
in the bond market (Baker, 485 U.S. at 510) and the “market for motor
vehicle information” (Condon, 528 U.S. at 151). Because private parties also
participated in those markets, and were treated similarly, those decisions
could speak of Congress “evenhandedly regulat[ing] an activity in which
both States and private parties engage.” Murphy, 138 S. Ct. at 1479. ICWA is
a different animal. It regulates states, not as market participants, but as
sovereigns fulfilling their “duty of the highest order to protect the interests
of minor children, particularly those of tender years.” Palmore, 466 U.S. at
433. The contrast with regulating state participation in bond or data markets
could hardly be greater. As State Plaintiffs correctly observe, “child welfare
is not a market regulated by Congress in which public and private actors
participate,” but is instead “the sovereign obligation of the States.” Once
again, ICWA’s regulations clinch the point: they assert that ICWA balances
federal interests in Indian families and tribes “with the States’ sovereign
interest in child-welfare matters.” 81 Fed. Reg. at 38,789 (emphasis added).
Judge Dennis responds that, because certain ICWA provisions
may apply to private parties as well as state agencies, this triggers the
Baker/Condon “evenhanded regulation” principle. Dennis Op. at 93–101.
We disagree. First, this view overlooks that Baker and Condon do not apply
to a federal law that regulates states as sovereigns 113 and compels them to
113
Judge Dennis suggests that Condon addressed a law regulating states as
sovereigns, and not as market participants, because “regulation of motor vehicles . . . is a
quintessential state function.” Dennis Op. at 98. We disagree. Congress enacted the
privacy law in Condon because it “found that many States . . . sell [drivers’] personal
information to individuals and businesses,” 528 U.S. at 143, just as “private persons” do,
id. at 146. The law thus “regulate[d] the States as the owners of data bases,” not as
sovereigns. Id. at 151.
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regulate private parties. 114 Baker, 485 U.S. at 514; Condon, 528 U.S. at 151;
see also Murphy, 138 S. Ct. at 1479. ICWA does both. Second, Judge
Dennis’s view mistakes the “activity” ICWA regulates. Cf. Murphy, 138
S. Ct. at 1478 (considering “an activity in which both States and private
actors engage”). ICWA directly regulates state “child custody
proceeding[s].” § 1903(1). This is not regulation of an “activity” states
engage in alongside private actors, like bond issuance or data sharing. Instead,
this is regulation of state administrative and judicial “proceedings” in service
of a federal regulatory goal. The anti-commandeering doctrine forbids that.115
Third, under Judge Dennis’s view, Congress could conscript state
officials into a federal program, provided it requires private actors to
participate too. The anti-commandeering cases do not support that view. The
salient question, rather, is whether a federal law requires state officials to act
114
We disagree with Judge Dennis that the duties imposed on state employees
by the federal law in Condon are anything like ICWA’s commandeering of state agencies.
See Dennis Op. at 98. In Condon, state DMV employees had to spend “time and effort”
to “learn and apply” the patchwork of federal restrictions on disclosing driver information.
528 U.S. at 144–45, 150. But the employees were “not require[d] . . . to assist in the
enforcement of [the] federal statute[].” Id. at 151. ICWA, by contrast, requires state
agencies to “implement” the heart of the law—placement preferences—by “identify[ing]
and assist[ing]” potential placements. 81 Fed. Reg. at 38,839–40; see also id. at 38,839
(stating the preferences “create[ ] an obligation on State agencies and courts to implement
the policy outlined in the statute”) (emphasis added). Judge Dennis also misunderstands
our point that state agencies’ role here is “critical.” See Dennis Op. at 97 n.43. The point
is not that commandeering depends on whether the state actor’s forced action is “critical”
or “trivial.” Rather, the point is that ICWA’s regulations describe state agencies as playing
a “critical” role in “implement[ing]” the law, see 81 Fed. Reg. at 38,839–40, a telltale sign
that the agencies are being “compel[led] . . . to . . . administer a federal regulatory
program,” New York, 505 U.S. at 188.
115
See New York, 505 U.S. at 178 (explaining “Congress . . . may not conscript state
governments as its agents”); Murphy, 138 S. Ct. at 1479 (Congress cannot “regulate the
States’ sovereign authority to ‘regulate their own citizens’”) (quoting Condon, 528 U.S. at
151)).
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“in their official capacity” to implement a federal program. See Printz, 521
U.S. at 932 n.17 (Brady Act did not “merely require [state officers] to report
information in their private possession” but instead to do so “in their official
capacity”). ICWA does so. That parts of ICWA may also compel private
parties does not dilute the fact that ICWA “compel[s] the States to . . .
administer a federal regulatory program.” New York, 505 U.S. at 188. 116
2. Preemption
We now consider whether the challenged ICWA provisions do not
commandeer states but are, instead, valid preemption provisions. See
Murphy, 138 S. Ct. at 1479 (considering whether PASPA § 3702(1) was “a
valid preemption provision”). The district court ruled preemption could not
save any of those provisions because they “directly command states” and not
“‘private actors.’” Brackeen, 338 F. Supp. 3d at 541 (quoting Murphy, 138 S.
Ct. at 1481). On appeal, Defendants argue the challenged provisions confer
federal rights on Indian children, families, and tribes that preempt conflicting
state laws.
“Preemption doctrine reflects the basic concept, grounded in the
Supremacy Clause, that federal law can trump contrary state law.” Butler v.
Coast Elec. Power Ass’n, 926 F.3d 190, 195 (5th Cir. 2019) (citing Arizona v.
United States, 567 U.S. 387, 398–99 (2012)). This occurs when federal law
116
As part of his argument that certain sections of ICWA are “evenhanded” (and
therefore do not commandeer states), Judge Dennis also finds that these sections are
“necessarily ‘best read’ as pertaining to private actors.” Dennis Op. at 99. But this
argument grafts onto commandeering a preemption principle—namely, that a federal law
preempts only if it is “best read as one that regulates private actors.” Murphy, 138 S. Ct. at
1479. Judge Dennis cites no authority for the proposition that the two analyses may be
blended into one. Moreover, the most recent Supreme Court decision addressing
commandeering and preemption—Murphy—treats the two analyses separately. See 138 S.
Ct. at 1478–79 (commandeering); id. at 1479–81 (preemption). We will therefore follow the
Supreme Court and address the “best read” issue under preemption, not commandeering.
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conflicts with state law, expressly preempts state law, or excludes state
legislation by occupying an entire field. See Murphy, 138 S. Ct. at 1480
(identifying “three different types of preemption—‘conflict,’ ‘express,’ and
‘field’”) (citation omitted). 117 To have any kind of preemptive effect,
however, a federal law must meet two conditions: it (1) “must represent the
exercise of a power conferred on Congress by the Constitution,” and (2)
must be “best read” as a law that “regulates the conduct of private actors,
not the States.” Murphy, 138 S. Ct. at 1479, 1481. 118
At the outset, we note that ICWA implicates “conflict” preemption
only. ICWA lacks an express preemption clause and no one contends ICWA
occupies the field of Indian child-custody proceedings. 119 We also note that
various ICWA provisions potentially conflict with state laws. 120 For instance,
ICWA grants an indigent parent the right to appointed counsel, § 1912(b),
which may exceed some state guarantees. ICWA also grants a child’s tribe
the right to intervene, § 1911(c), a right not automatically granted by some
state laws. Substantively, ICWA imposes an onerous standard for
terminating parental rights—proof “beyond a reasonable doubt” that
continued custody “is likely to result in serious emotional or physical damage
117
See also generally City of El Cenizo, Tex. v. Texas, 890 F.3d 164, 176–81 (5th Cir.
2018) (field and conflict preemption); Franks Inv. Co., LLC v. Union Pac. R. Co., 593 F.3d
404, 407–08 (5th Cir. 2010) (express preemption).
118
See also Alden, 527 U.S. at 731 (explaining “the Supremacy Clause enshrines as
‘the supreme Law of the Land’ only those Federal Acts that accord with the constitutional
design”) (citing Printz, 521 U.S. at 924).
119
See, e.g., In re A.B., 245 P.3d 711, 718–19 (Utah 2010) (ICWA does not implicate
express or field preemption); In re W.D.H., 43 S.W.3d 30, 35–36 (Tex. App.—Houston
[14th Dist.] 2001, pet. denied) (ICWA implicates only conflict preemption).
120
See generally New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 333–34 (1983)
(discussing special considerations governing preemption of state law by “federal and tribal
interests”) (and collecting decisions).
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to the child.” § 1912(f). States, by contrast, generally allow termination based
on “clear and convincing evidence” that a parent has committed certain
offenses and that termination is in “the best interest of the child.” See, e.g.,
Tex. Fam. Code § 161.001(b)(1), (2). 121 ICWA’s placement preferences
may also conflict with state standards, under which placements depend on
the child’s best interests. 122 Such conflicts, while not inevitable, 123 should
come as no surprise. Whereas states seek only to promote a child’s best
interests, ICWA also seeks to “promote the stability and security of Indian
tribes and families.” § 1902.
With that background in mind, we proceed to the preemption analysis.
We assume for purposes of this part only that ICWA is a valid exercise of
Congress’s power. See Murphy, 138 S. Ct. at 1479. We therefore focus on
whether the challenged provisions are “best read” as regulating private
instead of state actors. Id.
a. The provisions that regulate private
actors are valid preemption provisions.
Contrary to the district court’s ruling, see Brackeen, 338 F. Supp. 3d at
541, we conclude that several provisions of ICWA are valid preemption
provisions because they are best read as regulating private actors. For
121
See also, e.g., In re W.D.H., 43 S.W.3d at 37, 36 (explaining Texas law “is based
on the ‘Anglo’ standard for determining the best interest of the child,” which is “‘notably
different’” from ICWA’s termination standard) (first quoting Doty-Jabbaar, 19 S.W.3d at
877); and then citing Yavapai-Apache Tribe, 906 S.W.2d at 168).
122
Compare 81 Fed. Reg. at 38,840 (explaining “[ICWA] requires that States apply
a preference for the listed placement categories” in § 1915), with Tex. Fam. Code
§ 162.016(b) (court shall grant adoption if “the adoption is in the best interest of the
child”); La. Child. Code arts. 1217(B), 1255(B) (the court’s “basic consideration” in
adoption decree “shall be the best interests of the child”).
123
See, e.g., In re A.B., 245 P.3d at 720–21 (tribe’s right to seek invalidation under
§ 1914 does not conflict with state notice-of-appeal requirements).
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example, ICWA gives a child’s Indian custodian and tribe the “right to
intervene at any point” in a state court foster care or termination proceeding.
§ 1911(c). An indigent parent or Indian custodian has “the right to court-
appointed counsel” in certain proceedings. § 1912(b). 124 Any party has “the
right to examine all reports or other documents” filed in proceedings.
§ 1912(c). ICWA also confers various parental rights in voluntary
termination proceedings, such as the right to have the terms of consent “fully
explained in detail” and in comprehensible language (§ 1913(a)); the right to
withdraw consent to a placement at any time or to a termination or adoption
prior to final decree (§ 1913(b), (c)); and the right to withdraw consent based
on “fraud or duress” up to two years after an adoption decree (§ 1913(d)).
An Indian child, parent, custodian, or tribe may seek invalidation of a
placement or termination action based on a violation of sections 1911, 1912,
and 1913. § 1914. Additionally, a “biological parent” or prior Indian
custodian may petition for return of custody when an adoption is set aside or
the adoptive parents consent. § 1916(a). Finally, upon reaching age 18, an
adopted Indian may obtain from the court information about his birth
parents’ “tribal affiliation,” along with other information “necessary to
protect any rights flowing from [his] tribal membership.” § 1917.
The district court held none of the challenged provisions—including
these—could validly preempt state law because they “directly command
states.” Brackeen, 338 F. Supp. 3d at 541. We disagree as to the provisions
discussed above, which are best read to address private actors, not states. We
therefore conclude those provisions (§§ 1911(c); 1912(b); 1913, 1914, 1916(a),
124
Judge Jones does not agree that § 1912(b) is a valid preemption provision
and so does not join this part to the extent it concludes otherwise.
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and 1917 125) are valid preemption provisions. 126 See Haywood v. Drown, 556
U.S. 729, 736 (2009) (explaining states “lack authority to nullify a federal
right or cause of action”).
b. The provisions that command state agency
action are not valid preemption provisions.
Conversely, we conclude that the provisions of ICWA discussed in the
commandeering part are not valid preemption provisions. They are best read
as regulating states, not private actors. Murphy, 138 S. Ct. at 1479.
In our commandeering discussion, supra III(B)(1), we considered
ICWA’s provisions requiring active efforts (§ 1912(d)), expert witnesses
(§ 1912(e), (f)), placement preferences (§ 1915(a)–(d)), placement records
(§ 1915(e)), and notice (§ 1912(a)). We found these provisions impose duties
on state agencies to provide remedial services to Indian families (§ 1912(d);
25 C.F.R. § 23.2; 81 Fed. Reg. at 38,814); to adduce expert witness testimony
125
State Plaintiffs suggest that, by requiring an adult adoptee be informed of his
birth parents’ tribal affiliation, § 1917 improperly imposes on courts a “non-judicial
obligation[].” We disagree. The right granted by § 1917 resembles rights recognized in
various state laws providing courts may unseal adoption records upon request of adoptees.
See generally Shannon Clark Kief, Annotation, Restricting Access to Judicial Records of
Concluded Adoption Proceedings, 103 A.L.R. 5th 255 (2002) (collecting and analyzing cases).
Judge Dennis argues that, if § 1917 creates a preemptive right (as we conclude), then
so does the placement-record provision in § 1915(e). Dennis Op. at 89 n.39. We disagree.
Unlike § 1917, § 1915(e) imposes a detailed recordkeeping regime on states designed to
implement the placement preferences. See supra III(B)(1)(a)(iv).
126
See, e.g., In re J.L.T., 544 S.W.3d 874, 879 (Tex. App.—El Paso 2017, no pet.)
(§ 1911(c) preempts state rule requiring tribe to file written pleading to intervene); Dep’t of
Human Servs. v. J.G., 317 P.3d 936, 944 (Or. Ct. App. 2014) (§ 1914 preempts Oregon
“preservation rule”); In re K.B., 682 N.W.2d 81, 2004 WL 573793, at *3 (Iowa Ct. App.
2004) (table) (concluding “when a tribe has a statutory right of intervention under ICWA,
state-law doctrines of estoppel may not be applied to deprive it of that right”); State ex rel.
Juvenile Dept. of Lane Cnty. v. Shuey, 850 P.2d 378, 379–81 (Or. Ct. App. 1993) (tribe’s right
of intervention in § 1911(c) preempts state laws requiring tribe be represented by attorney).
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(§ 1912(e), (f); 25 C.F.R. § 23.122(a); 81 Fed. Reg. at 38,829); to assist Indian
families and tribes with preferred placements (§ 1915(a)–(d); 81 Fed. Reg. at
38,839–40); to compile records evidencing efforts to comply with placement
preferences (§ 1915(e); 25 C.F.R. § 23.141); and to furnish notice to parents,
custodians, and tribes (§ 1912(a)). We therefore concluded these provisions
transgress the commandeering rule.
That also means they are not valid preemption provisions. “[E]very
form of preemption is based on a federal law that regulates the conduct of
private actors, not the States.” Murphy, 138 S. Ct. at 1481. These provisions
regulate, not private persons, but the conduct of state agencies and officials.
They therefore cannot validly preempt conflicting state law. See, e.g., Printz,
521 U.S. at 935 (explaining a federal “command [to] the States’ officers . . . to
administer or enforce a federal regulatory program” is “fundamentally
incompatible with our constitutional system of dual sovereignty”).
Federal Defendants respond that these provisions merely grant Indian
children and parents “federally conferred rights,” which “may constrain
state child-protection agencies” but do not “directly regulate[ ] States.” We
disagree. As we have explained at length, these provisions do not merely
“constrain” state agencies but, instead, require state agencies to undertake
extensive actions. See supra III(A)(1). Thus, it is immaterial whether they can
somehow be characterized, through verbal legerdemain, as securing
“federally conferred rights.” 127 The salient point is that “[t]here is no way in
which th[ese] provision[s] can be understood as a regulation of private actors.”
127
For instance, Federal Defendants awkwardly re-cast § 1912(d) as securing to
Indian children “the right not to be placed in foster care . . . without proof that ‘active
efforts have been made to provide remedial services and rehabilitative programs.’” This
overlooks the key point that the provision “require[s] States to affirmatively provide Indian
families with substantive services.” 81 Fed. Reg. at 38,791.
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Murphy, 138 S. Ct. at 1481 (emphasis added). They instead regulate state
agencies, which means they commandeer states and cannot have valid
preemptive effect. See, e.g., New York, 505 U.S. at 178 (“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.”).
c. The placement preferences, placement standards, and termination
standards are valid preemption provisions for state courts. The
recordkeeping requirement is not.
The district court ruled that certain ICWA provisions were not valid
preemption provisions because they require state courts to “incorporat[e]
federal standards that modify state created causes of action.” Brackeen, 338
F.Supp.3d at 539, 542. The court focused on ICWA’s requirement that
courts apply the § 1915 placement preferences, which it characterized as “a
direct command from Congress to the states.” Id. at 540. More broadly, the
court concluded that whenever ICWA commands courts to apply “federal
standards” in state causes of action, it commandeers states and does not
validly preempt state law. Id. at 541. On appeal, Defendants argue that the
district court’s rationale failed to account for the “well established power of
Congress to pass laws enforceable in state courts,” which those courts must
apply under the Supremacy Clause. See, e.g., New York, 505 U.S. at 178.
To resolve this question, we first review some background principles.
The Supremacy Clause binds state courts of competent jurisdiction, save in
narrow circumstances, to adjudicate federal causes of action. See, e.g.,
Haywood, 556 U.S. at 734–36; Howlett v. Rose, 496 U.S. 356, 367–75 (1990);
Testa v. Katt, 330 U.S. 386, 394–95 (1947). 128 This obligation sometimes
128
This rule does not apply “only in two narrowly defined circumstances: first
when Congress expressly ousts state courts of jurisdiction; and second, when a state court
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includes applying federal procedural rules connected with the federal action.
See, e.g., Dice v. Akron, Canton & Youngstown R.R., 342 U.S. 359, 363 (1952)
(state court required to apply FELA jury-trial right despite state rule
requiring court to make certain findings); Cent. Vt. Ry. Co. v. White, 238 U.S.
507, 512 (1915) (state court required to apply FELA burden of proof despite
contrary state rule). Additionally, a state procedural rule may be preempted
if it interferes with a federal cause of action. See, e.g., Felder v. Casey, 487 U.S.
131, 147-150 (1988) (state notice-of-injury prerequisite preempted in § 1983
actions); Brown v. W. Ry. of Ala., 338 U.S. 294, 298–99 (1949) (state pleading
rule barred because it interfered with federal rights). By contrast, however,
no authority supports the proposition that Congress may prescribe
procedural rules for state-law claims in state courts. See, e.g., Felder, 487 U.S.
at 138 (recognizing the “unassailable proposition . . . that States may
establish the rules of procedure governing litigation in their own courts”);
Suesz v. Med-1 Solutions, LLC, 757 F.3d 636, 651 (7th Cir. 2014) (Sykes, J.,
concurring) (“[I]t’s doubtful that Congress has the power to prescribe
procedural rules for state-law claims in state courts.”) (citing, inter alia,
Anthony Bellia, Jr., Federal Regulation of State Court Procedures, 110 Yale L.
J. 947 (2001)).
The question we address here fits neatly into none of these categories.
ICWA creates no federal cause of action state courts must enforce. Nor does
ICWA enact federal procedural rules that state courts must prefer over their
own procedures. Nor does ICWA impose procedural rules for state-law
claims in state courts. 129 That, as noted, would likely be a bridge too far.
refuses jurisdiction because of a neutral state rule regarding the administration of the
courts.” Haywood, 556 U.S. at 735 (internal quotation marks and citations omitted).
129
Jinks v. Richland County, 538 U.S. 456 (2003), does not support the proposition
that Congress may impose procedural rules on state claims in state courts. Jinks upheld
Congress’s authority to toll state limitations periods for state-law claims while removed to
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Instead, ICWA enacts substantive child-custody standards applicable in state
child-custody proceedings. For instance, ICWA requires courts to place
Indian children with certain persons (§ 1915), and also requires courts to
make specific findings under a heightened standard of proof before an Indian
child may be placed in a foster home or his parents’ rights terminated
(§ 1912(e) and (f)).
To the extent those substantive standards compel state courts (as
opposed to state agencies), we conclude they are valid preemption provisions.
As already discussed, the Supremacy Clause requires state courts to apply
validly enacted federal law. See Printz, 521 U.S. at 907; New York, 505 U.S.
at 178–79. The Supreme Court has ruled that federal standards may
supersede state standards even in realms of traditional state authority such as
family and community property law. See, e.g., Boggs v. Boggs, 520 U.S. 833
(1997); McCarty v. McCarty, 453 U.S. 210 (1981); Hisquierdo v. Hisquierdo,
439 U.S. 572 (1979); see also Egelhoff v. Egelhoff ex rel. Briener, 532 U.S. 141,
151–52 (2001) (observing “we have not hesitated to find state family law pre-
empted when it conflicts with ERISA”) (citing Boggs, 520 U.S. at 833). For
instance, Egelhoff held ERISA preempted a state probate rule and so dictated,
contrary to state law, the beneficiaries of pension and insurance proceeds.
532 U.S. at 147–50. Similarly, McCarty held a federal military benefits law
preempted state community property rules, thus altering the property
division upon divorce. 453 U.S. at 223–35. And, more recently, Hillman v.
Maretta held that a federal law setting the “order of precedence” for paying
federal court under supplemental jurisdiction. Id. at 459, 462–63; see 28 U.S.C. § 1367(d).
The Court rejected the argument that this rule violated state sovereignty by regulating
state-court “procedure,” because “tolling of limitations periods falls on the ‘substantive’
side of the line.” 538 U.S. at 464–65. The Court disclaimed any holding that “Congress
has unlimited power to regulate practice and procedure in state courts.” Id. at 465.
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federal life-insurance benefits preempted a state cause of action that directed
the benefits to another person. 569 U.S. 483, 491–94 (2013).
This preemption rule embraces some of the ICWA provisions
challenged here. Specifically, ICWA’s substantive standards requiring state
courts to observe placement preferences (§ 1915) and make placement or
termination findings (§ 1912(e) and (f)) are valid preemption provisions. The
district court’s view that these standards “modify state created causes of
action,” Brackeen, 338 F.Supp.3d at 539, is a matter of terminology not legal
analysis: whenever a federal standard supersedes a state standard, the federal
standard can be said to “modify a state created cause of action.” In McCarty,
for instance, the federal benefits law could be said to “modify” a state cause
of action for dividing marital property. McCarty, 453 U.S. at 223–35. The
same for Hillman, where the preempted state law “interfere[d]” with the
federal scheme “by creating a [state] cause of action” directing proceeds to
beneficiaries other than those specified by federal law. 569 U.S. at 494.
In any event, instead of casting preemption in terms of whether federal
law “modifies” a state cause of action, the Supreme Court has put the
analysis more straightforwardly: “[S]tate law is naturally preempted to the
extent of any conflict with a federal statute.” Crosby v. Nat’l Foreign Trade
Council, 530 U.S. 363, 373 (2000); see also, e.g., Arizona, 567 U.S. at 399
(“[S]tate laws are preempted when they conflict with federal law.”). If
ICWA’s placement preferences apply in a state proceeding, preemption
means a state court must prefer them to conflicting state standards. 130 But
“this sort of federal ‘direction’ of state judges is mandated by the text of the
130
Elsewhere in this opinion, we conclude the § 1915 placement preferences violate
the equal protection component of the Fifth Amendment. See supra III(A)(2), (3). Our
discussion in this Part of the preemptive effect of those preferences is separate from and
independent of our holding that the preferences violate the Fifth Amendment.
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Supremacy Clause,” and so is not commandeering. New York, 505 U.S. at
178–79. 131
We reach a different conclusion, however, as to § 1951(a), which
requires state courts to provide the Secretary with a copy of an Indian child’s
final adoption decree, “together with . . . other information.” The district
court held this provision unconstitutional, casting it as part of ICWA’s
command to states to “administer” a federal regulatory program. Brackeen,
338 F.Supp.3d at 541-42. On appeal, Defendants argue the provision is
merely an “information-sharing” requirement the Supreme Court all but
approved in Printz. We disagree. Printz left open whether requiring “the
provision of information to the Federal Government” amounts to
commandeering. See 521 U.S. at 918 (noting “we . . . do not address” that
issue because it is “not before us”). As State Plaintiffs point out, however,
§ 1951(a) makes state courts do more than share information. The provision
spearheads a “recordkeeping” regime that demands state courts (1) transmit
to the Secretary a variety of information, see 25 C.F.R. § 23.140; 132
(2) maintain a specified “record” of every Indian child placement, see id.
§ 23.141(a), (b); 133 and (3) “make the record available within 14 days of a
131
State Plaintiffs worry that this principle would permit Congress “to prescribe
sentences for state-law drug offenses, or to require imposition of strict liability in auto-
accident cases.” We think not. We cannot fathom where Congress would get the power to
do those things. Here, we have assumed—for this part only—that Congress has the power
to enact ICWA. But see supra II (separately concluding Congress lacks power to enact
ICWA to extent it governs state proceedings).
132
The information pertains to the child’s tribal affiliation, the names and
addresses of the child’s birth and adoptive parents, and “the identity of any agency having
files or information relating to such adoptive placement.” § 1951(a)(1)–(4); see also 25
C.F.R. § 23.140(a)(1)–(6) (detailing additional requirements).
133
“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
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request” by the tribe or Secretary, id. § 23.141(a). States have the option of
designating either their courts or agencies as the “repository” for this
information. Id. § 23.141(c). The regulations estimate complying with this
regime will consume large amounts of state court and agency resources every
year. See 81 Fed. Reg. at 38,863.
Unlike the other provisions discussed in this part, § 1951(a) is not a
substantive child-custody standard state courts must apply under the
Supremacy Clause. Rather, the provision imposes an extensive
recordkeeping obligation directly on state courts and agencies. This is not a
valid preemption provision because it regulates the conduct of states, not
private actors. Cf. Murphy, 138 S. Ct. at 1481 (explaining “every form of
preemption is based on a federal law that regulates the conduct of private
actors, not the States”). By conscripting state courts and agencies into
administering this system, § 1951(a) violates the principle that “Congress
cannot compel the States to enact or enforce a federal regulatory program.”
Printz, 521 U.S. at 935. We therefore hold that § 1951(a) violates the
commandeering doctrine and is not a valid preemption provision.
***
Summing up part III, we find the following provisions
unconstitutional to the extent they command state agencies (supra
III(B)(1)(a), (B)(2)(c)):
• The active-efforts requirement in § 1912(d)
• The expert-witness requirement in § 1912(e) and (f)
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.” Id. § 23.141(b).
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• The placement preferences in § 1915(a) and (b)
• The placement-record requirement in § 1915(e)
• The notice requirement in § 1912(a)
• The recordkeeping requirement in § 1951(a).
We also conclude that none of these are valid preemption provisions (supra
III(B)(2)(b)).
On the other hand, we find the following are valid preemption
provisions (supra III(B)(2)(a), (c)):
• The right to intervene in § 1911(c)
• The right to appointed counsel in § 1912(b)
• The right to examine reports and documents in § 1912(c)
• The right to withdraw consent in § 1913(b) and (c)
• The right to collaterally attack a decree in § 1913(d)
• The right to petition to invalidate a decree in § 1914
• The right to petition for return of custody in § 1916(a)
• The right to obtain tribal affiliation information in § 1917
• Courts’ obligation to apply the placement preferences in § 1915
• Courts’ obligation to apply the placement and termination
standards in § 1912(e) and (f).
C. Nondelegation
We now consider whether ICWA § 1915(c) unconstitutionally
delegates legislative power to Indian tribes. As discussed, ICWA establishes
preferences for placements of Indian children. See § 1915(a), (b). Section
1915(c) empowers tribes to reorder those preferences:
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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.
§ 1915(c). ICWA’s regulations confirm that a tribe’s rewritten preferences
trump the order established by Congress. 134
The district court ruled § 1915(c) and its implementing regulations
violate the nondelegation doctrine for two reasons. First, the court held that
§ 1915(c) invalidly attempts to delegate Congress’s “inherent legislative
power to create law.” Brackeen, 338 F. Supp. 3d at 536. Second, even if
§ 1915(c) delegates only regulatory power, that power cannot be delegated
outside the federal government to an Indian tribe. The panel reversed,
reasoning that the provision merely exercised Congress’s longstanding
authority to “incorporate the laws of another sovereign into federal law” and
that tribes have “inherent authority” to regulate their members and
domestic relations. Brackeen, 937 F.3d at 436–37. We agree with the district
court that § 1915(c) impermissibly delegates legislative power to Indian
tribes.
1.
“The nondelegation doctrine is rooted in the principle of separation
of powers that underlies our tripartite system of Government.” Mistretta v.
134
See 25 C.F.R. § 23.130(b) (“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.”); id. § 23.131(c) (“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, so long as the placement is the least-restrictive
setting appropriate to the particular needs of the Indian child, as provided in paragraph (a)
of this section.”).
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United States, 488 U.S. 361, 371 (1989). Typically, a nondelegation claim
challenges Congress’s “transferring its legislative power to another branch
of Government.” Gundy v. United States, 139 S. Ct. 2116, 2121 (2019)
(plurality op.); see also, e.g., Whitman v. Am. Trucking Ass’ns, 531 U.S. 457,
472 (2001) (a delegation challenge asks “whether the statute has delegated
legislative power to [an] agency”). Such challenges are usually unsuccessful
because the Supreme Court requires Congress to provide only an
“intelligible principle” guiding execution of the delegated authority. See
Touby v. United States, 500 U.S. 160, 165 (1991); see also, e.g., United States v.
Whaley, 577 F.3d 254, 263 (5th Cir. 2009) (the “modern [nondelegation] test
is whether Congress has provided an ‘intelligible principle’ to guide the
agency’s regulations,” which “can be broad”) (citations omitted). But
§ 1915(c), as the district court correctly recognized, presents an atypical
nondelegation issue for two main reasons: the statute delegates lawmaking—
not merely regulatory—authority, and it does so to an entity outside the
federal government.
“The fundamental precept of the delegation doctrine is that the
lawmaking function belongs to Congress, and may not be conveyed to
another branch or entity.” Loving v. United States, 517 U.S. 748, 758 (1996)
(citing U.S. Const., art. I, § 1; Field v. Clark, 143 U.S. 649, 692 (1892)).
That forbidden conveyance is what § 1915(c) purports to do. It does not
delegate to tribes authority merely to regulate under Congress’s general
guidelines. Cf., e.g., Touby, 500 U.S. at 165 (nondelegation not implicated
“merely because [Congress] legislates in broad terms, leaving a certain
degree of discretion to executive or judicial actors”) (citing J.W. Hampton,
Jr., & Co. v. United States, 276 U.S. 394, 409 (1928)). Rather, it empowers
tribes to change the substantive preferences Congress enacted in § 1915(a)
and (b) and to bind courts, agencies, and private persons to follow them. As
the district court correctly reasoned, “[t]he power to change specifically
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enacted Congressional priorities and impose them on third parties can only
be described as legislative.” Brackeen, 338 F. Supp. 3d at 537; see also INS v.
Chadha, 462 U.S. 919, 952 (1983) (explaining “action that had the purpose
and effect of altering the legal rights, duties and relations of persons” is
“essentially legislative in purpose and effect”). This “delegation of power to
make the law,” Chief Justice Marshall explained long ago, “cannot be done.”
Loving, 517 U.S. at 759 (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1,
42 (1825) (Marshall,C.J.)); see also A.L.A. Schechter Poultry Corp. v. United
States, 295 U.S. 495, 529 (1935) (“The Congress is not permitted to abdicate
or to transfer to others the essential legislative functions with which it is
vested.”).
If Congress wants to enact a new order of preferences, it must follow
the constitutional demands of presentment and bicameralism. See U.S.
Const. art. I, § 1; id. § 7, cl. 2, 3; see also, e.g., Chadha, 462 U.S. at 951
(“[T]he Framers were acutely conscious that the bicameral requirement and
the Presentment Clauses would serve essential constitutional functions.”).
But § 1915(c) orchestrates their evasion. Just as Congress cannot authorize
laws to be amended by a single chamber, see Chadha, 462 U.S. at 959, or by
the President, see Clinton v. City of New York, 524 U.S. 417, 447–48 (1998), it
may not empower laws to be rewritten by an outside entity. For instance, in
Metropolitan Washington Airports Authority v. Citizens for the Abatement of
Aircraft Noise, Inc., 501 U.S. 252, 276 (1991), Congress established a Board of
Review, composed of nine members of Congress, that exercised veto power
over a regional airport authority. The Court held the Board’s authority was
an unconstitutional delegation of federal power: Congress may “act with
conclusive effect” only “through enactment by both Houses and
presentment to the President.” Id. at 275 n.19 (quoting Bowsher, 478 U.S. at
759 (Stevens, J., concurring in the judgment)). If Congress could delegate
such authority to another entity, “it would be able to evade the carefully
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crafted restraints spelled out in the Constitution.” Id. at 275 n.20 (quoting
Bowsher, 478 U.S. at 755 (Stevens, J., concurring in the judgment)). 135
These principles bar the delegated authority exercised by a tribe under
§ 1915(c). In § 1915(a) and (b), Congress set forth a statutory order of
preferences for placing Indian children, but § 1915(c) gives tribes the
authority by “resolution” to overrule this order. The tribe can thereby
“amend[] the standards” Congress enacted, Chadha, 462 U.S. at 954,
sapping them of “legal force or effect,” Clinton, 524 U.S. at 438. As a result,
a state court or agency must no longer follow the priorities voted on by
Congress and signed by the President in adjudicating an Indian child’s
placement. Instead they “shall follow” the tribe’s priorities. § 1915(c).
Whether Congress “intended such a result” is “of no moment.” Clinton,
524 U.S. at 445-46. Congress cannot validly enact something called “Public
Law [95-608] as modified by [an Indian child’s tribe].” Id. at 448. The
Constitution bars Congress from authorizing action that “alter[s] the legal
rights, duties, and relations of persons . . . outside the Legislative Branch.”
Metro. Wash. Airports, 501 U.S. at 276 (quoting Chadha, 462 U.S. at 951). 136
135
Judge Dennis suggests that, by discussing the Constitution’s presentment
and bicameralism requirements, we have sua sponte raised an issue not addressed by the
district court or the parties. Dennis Op. at 132. Not so. Nondelegation, presentment,
and bicameralism are interrelated doctrines, as Judge Dennis himself recognizes. See
id. (stating that the nondelegation inquiry “already accounts for bicameralism and
presentment”) (citing, inter alia, John F. Manning, The Nondelegation Doctrine as a Canon
of Avoidance, 2000 Sup. Ct. Rev. 223, 240 (2000)).
136
Judge Dennis tries to compare § 1915(c) to federal laws that “set a default
standard that applies unless another party chooses to act.” Dennis Op. at 134. The cited
laws, however, empower agencies or other government actors only to grant waivers from
otherwise applicable requirements, not to re-write enacted statutes. See id. at 134–35
(citing, inter alia, 16 U.S.C. § 1536(h)(1), allowing a committee to “grant an exemption”
from certain requirements of the Endangered Species Act). Indeed, one of the cases Judge
Dennis cites upheld a similar waiver provision against a nondelegation challenge in part
because “the Secretary ha[d] no authority to alter the text of any statute, repeal any law, or
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Finally, even assuming § 1915(c) delegates only regulatory—as
opposed to legislative—authority, it is still unconstitutional because it
delegates that authority outside the federal government. “By any measure,
handing off regulatory power to a private entity is ‘legislative delegation in its
most obnoxious form.’” Dep’t of Transp. v. Ass’n of Am. R.R., 575 U.S. 43,
62 (2015) (Alito, J., concurring) (quoting Carter v. Carter Coal Co., 298 U.S.
238, 311 (1936)); see also, e.g., Gary Lawson, Delegation and Original Meaning,
88 Va. L. Rev. 327, 351–53 (2002) (explaining that delegating executive
power to non-federal actors violates Article II Appointments and Take-Care
Clauses). An Indian tribe is “not part of the Government at all,” which
“would necessarily mean that it cannot exercise . . . governmental power.”
Ass’n of Am. R.R., 575 U.S. at 1253 (Thomas, J., concurring). To be sure,
Indian tribes are often described as “possessing attributes of sovereignty,”
United States v. Mazurie, 419 U.S. 544, 557 (1975) (citing Worcester, 31 U.S.
at 557), but this sovereignty has “‘a unique and limited
character’ . . . center[ed] on the land held by the tribe and on tribal members
within the reservation.” Plains Commerce Bank v. Long Family Land & Cattle
Co., 554 U.S. 316, 327 (2008) (quoting United States v. Wheeler, 435 U.S. 313,
323 (1978) and citing Mazurie, 419 U.S. at 557). As relevant here, Indians
have no sovereignty over non-Indians and no sovereignty over state
proceedings. See, e.g., Plains Commerce Bank, 554 U.S. at 330 (“[E]fforts by
a tribe to regulate nonmembers, especially on non-Indian fee land, are
‘presumptively invalid.’”) (quoting Atkinson Trading Co. v. Shirley, 532 U.S.
cancel any statutory provision, in whole or in part.” Def. of Wildlife v. Chertoff, 527 F. Supp.
2d 119, 124 (D.D.C. 2007) (addressing Secretary of Homeland Security’s authority to
waive federal environmental law under the REAL ID Act of 2005) (emphasis added).
Unlike the waiver provisions Judge Dennis cites, § 1915(c) empowers tribes to “alter
the text” of the placement preferences Congress enacted in § 1915(a) and (b).
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645, 659 (2001)); see also infra (discussing this proposition in greater
detail). 137
In sum, § 1915(c) violates the nondelegation doctrine, either because
it delegates Congress’s lawmaking function or because it delegates authority
to entities outside the federal government altogether.
2.
Defendants’ arguments to the contrary are unavailing.
Defendants first argue that § 1915(c) is not a delegation at all but only
another example of Congress’s adopting the laws of another sovereign. For
example, they rely on United States v. Sharpnack, 355 U.S. 286 (1958), which
upheld the Assimilative Crimes Act (“ACA”) against a nondelegation
challenge. Applying to federal enclaves, the ACA criminalizes actions that
“would be punishable . . . within the jurisdiction of the State, Territory,
Possession, or District in which such place is situated.” Id. at 287–88; see 18
U.S.C. § 13(a). “Rather than being a delegation by Congress of its legislative
authority to the States,” Sharpnack held this practice is “a deliberate
137
Judge Dennis counters that § 1915(c) is like “long approved” federal laws
“that permit another sovereign to supply key aspects of the law”—for instance, when 42
U.S.C. § 1983 incorporates a state limitations period. Dennis Op. at 136. We disagree.
Section 1915(c) permits tribes, not merely to “supply key aspects of the law,” but to change
the order of preferences Congress enacted. Supplementing § 1983 actions with state
limitations periods is a different animal. Congress “endorse[d] the borrowing of state-law
limitations provisions” in § 1988, but only “where doing so is consistent with federal law.”
Owens v. Okure, 488 U.S. 235, 239 (1989). It is one thing for a state statute to supplement
an otherwise-silent federal provision; it is quite another for a state (or a tribe) to alter the
provisions of enacted federal law. In a similar vein, Judge Dennis also cites federal laws
supposedly delegating to “separate sovereign[s]” authority to change “the federal
standard in matters related to the sovereign’s jurisdiction.” Dennis Op. at 134–35
(emphasis omitted) (citing, e.g., 20 U.S.C. § 1415(b)(6)(B), allowing state law to set time
limitation for bringing an IDEA administrative claim). This again misses the point. None
of these laws allows a different sovereign to alter the text of enacted federal law.
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continuing adoption by Congress for federal enclaves” of crimes that “have
been already put in effect by the respective States.” 355 U.S. at 294.
Defendants contend ICWA § 1915(c) merely follows the pattern of the
ACA by incorporating another sovereign’s law. We disagree. The ACA’s
strategy is to “borrow[] state law to fill gaps in the federal criminal law on
enclaves.” Parker Drilling Mgmt. Servs., Ltd. v. Newton, 139 S. Ct. 1881, 1891
(2019) (cleaned up). Section 1915(c) of ICWA does not “fill gaps” in federal
law; it empowers tribes to change federal law. Cf., e.g., Lewis, 523 U.S. at 160
(explaining the ACA fills gaps only “where Congress has not defined the
missing offenses”) ( cleaned up). Moreover, the Supreme Court has clarified
that the ACA cannot adopt state laws that “effectively rewrite an offense
definition that Congress carefully considered.” Id. at 164 (citing Williams v.
United States, 327 U.S. 711, 718 (1946)). As a result, the ACA’s “continuing
adoption” of state law does not evade the Constitution’s lawmaking
requirements. ICWA does: § 1915(c) contemplates that tribal
“resolution[s]” will supersede law already enacted in §§ 1915(a) and (b). 138
Defendants next rely on United States v. Mazurie. That decision
addressed whether, pursuant to a federal statute, a tribe could regulate
alcohol sales on non-Indian fee lands within the boundaries of its reservation.
419 U.S. at 546–48. The Supreme Court held the tribe could do so on two
grounds. First, limitations on delegating legislative power are “less stringent
in cases where the entity exercising the delegated authority itself possesses
independent authority over the subject matter.” Id. at 556 (citing United
States v. Curtiss-Wright Export Corp., 299 U.S. 304, 319–22 (1936)). Second,
138
The same may be said for the Federal Tort Claims Act (“FTCA”), on which
Defendants also rely. The FTCA makes the United States liable in tort “in accordance with
the [state] law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1).
Like the ACA, the FTCA completes the federal framework by adopting state law.
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“tribes are unique aggregations possessing attributes of sovereignty over
both their members and their territory,” which empowers them to
“regulate[] their internal and social relations.” Mazurie, 419 U.S. at 557
(citing Worcester, 31 U.S. at 557; Kagama, 118 U.S. at 381–82; McClanahan v.
Ariz. State Tax Comm’n, 411 U.S. 164, 173 (1973)). Mazurie does not apply to
§ 1915(c) for three reasons.
First, Indian tribes lack “independent authority” over off-reservation
matters. The Supreme Court—citing Mazurie—has held that tribes’
“unique and limited” sovereignty “centers on the land held by the tribe and
on tribal members within the reservation.” Plains Commerce Bank, 554 U.S.
at 330 (citing Mazurie, 419 U.S. at 557). Section 1915(c), however, empowers
tribes to alter placement preferences with respect to off-reservation
activities. Second, tribes have only sharply limited authority over
nonmembers. See, e.g., Montana v. United States, 450 U.S. 544, 565 (1981)
(holding a tribe’s “inherent sovereign powers . . . do not extend to the
activities of nonmembers of the tribe”). Section 1915(c), however, empowers
tribes to affect the rights of non-Indian foster and adoptive parents. Third,
and most importantly, Mazurie does not even hint that tribes have authority
to bind state courts and agencies. To the contrary, the statute in Mazurie
explicitly provided that tribal ordinances could be promulgated only “so long
as state law was not violated.” 419 U.S. at 547 (citing 18 U.S.C. § 1161).
Thus, Mazurie could not support the proposition that Congress can delegate
to a tribe authority to bind state courts or agencies. Defendants cite no other
authority for that unheard-of proposition. 139
139
Judge Dennis suggests that, regardless of a tribe’s inherent sovereignty,
Congress can extend a tribe’s jurisdiction over state proceedings through “express
authorization” in a federal statute or treaty. Dennis Op. at 128 (quoting Strate v. A-1
Contractors, 520 U.S. 438, 445 (1997)). No authority supports that proposition. The case
Judge Dennis cites addresses, like Mazurie, only whether Congress may authorize
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***
For these reasons, we hold that § 1915(c) and its implementing
regulations unconstitutionally delegate federal legislative power.
D. Administrative Procedure Act
We now consider whether the Final Rule violates the APA. The
district court held it did for three reasons. First, the court set aside the parts
of the Final Rule that implement the statutory provisions the court found
unconstitutional. Brackeen, 338 F.Supp.3d at 541-41. Second, in the
alternative the court found the BIA exceeded its authority by issuing
regulations binding on state courts. Id. at 542-44. See 81 Fed. Reg. at 38,785–
86. Third, the court separately found invalid 25 C.F.R. § 23.132(b), which
requires that “good cause” to depart from the placement preferences be
proved by clear and convincing evidence. Id. at 544-46. The panel reversed.
Brackeen, 937 F.3d at 437–41. It found ICWA constitutional, id. at 437, and
the BIA’s interpretive views entitled to Chevron deference, id. at 438–41.
We review the agency’s interpretation of ICWA under the two-step
framework from Chevron, USA, Inc. v. Natural Resources Defense Council, Inc.,
467 U.S. 837 (1984); see generally, e.g., Sw. Elec. Power Co., 920 F.3d at 1014
(discussing Chevron). At step one, we ask “whether Congress has directly
spoken to the precise question at issue.” Chevron, 467 U.S. at 842. We
answer that question by “exhaust[ing] all the ‘traditional tools’ of
construction,” including “text, structure, history, and purpose.” Kisor v.
Wilkie, 139 S. Ct. 2400, 2415 (2019) (quoting Chevron, 467 U.S. at 843 n.9;
tribes to exercise authority over nonmembers within their reservations. See Bugenig v. Hoopa
Valley Tribe, 266 F.3d 1201, 1223 (9th Cir. 2001) (en banc) (upholding federal statute that
“ratified” tribe’s governing documents giving it power to regulate reservation property,
including nonmembers’ property).
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Pauley v. BethEnergy Mines, Inc., 501 U.S. 680, 707 (1991) (Scalia, J.,
dissenting)). If that holistic reading of the statute settles the matter, Chevron
ends: we “must give effect to the unambiguously expressed intent of
Congress.” Chevron, 467 U.S. at 842–43. On the other hand, if the statute is
“truly ambiguous” on the question, Kisor, 139 S. Ct. at 2414, we proceed to
step two, “asking whether the agency’s construction of the statute is
‘permissible.’” Sw. Elec. Power Co., 920 F.3d at 1014 (quoting Chevron, 467
U.S. at 843). A permissible construction is one that “reasonabl[y]
accommodat[es] . . . conflicting policies that were committed to the agency’s
care by the statute.” Chevron, 467 U.S. at 845 (quoting United States v.
Shimer, 367 U.S. 374, 382 (1961)).
1.
Having found parts of ICWA unconstitutional (supra III(A)–(C)), we
agree with the district court that the Final Rule is invalid to the extent it
implements those unconstitutional statutory provisions. See Brackeen, 338
F.Supp.3d at 541–42; see also 5 U.S.C. § 706(2)(A) (authorizing courts to set
aside “unlawful” agency action); see also F.C.C. v. Fox Television Stations,
Inc., 556 U.S. 502, 516 (2009) (explaining “unlawful” agency action
“includes unconstitutional action”); Texas v. United States, 497 F.3d 491,
500–01 (5th Cir. 2007) (observing “[t]he authority of administrative agencies
is constrained by the language of the statutes they administer”) (citing
Massachusetts v. EPA, 549 U.S. 497, 532 (2007)). In the alternative, we
address below the more specific grounds on which the district court
concluded the Final Rule was unlawful.
2.
The district court found the Final Rule invalid because it purports to
bind state courts’ implementation of ICWA. Its ruling appears to rely on both
Chevron step one and two. See Brackeen, 338 F.Supp.3d at 542–44. Defending
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the ruling on appeal, Individual Plaintiffs focus on step two, arguing the
BIA’s “novel interpretation” of its authority in the Final Rule—which
reverses BIA’s position in the 1979 guidelines—does not merit Chevron
deference. See Chamber of Commerce v. U.S. Dep’t of Labor, 885 F.3d 360,
380–81 (5th Cir. 2018) (treating this “novel interpretation” argument under
Chevron step two). We resolve this question under step two. Therefore, we
assume ICWA is “silent or ambiguous” on whether the BIA has authority to
bind state courts. Chevron, 467 U.S. at 843. We ask only whether the BIA’s
2016 stance is a “permissible construction of the statute.” Id.
In 1979, mere months after enactment, the BIA emphatically
concluded that ICWA did not authorize the agency to bind state courts’
implementation of the statute. 44 Fed. Reg. at 67,584. It would be “an
extraordinary step,” the BIA wrote, “[f]or Congress to assign to an
administrative agency such supervisory control over courts.” Id. The agency
recognized that § 1952 authorized it to issue rules “necessary to carry out
[ICWA].” Id. But § 1952, the BIA explained, allowed it to make binding rules
only for those parts of ICWA delegating interpretive responsibility to the
Secretary of the Interior. Id. 140 “Nothing” in the section’s text or history,
however, suggested Congress wanted the agency to “exercise supervisory
control over state or tribal courts or to legislate for them with respect to
Indian child custody matters.” Id. The agency declined to attribute to
Congress “a measure so at odds with concepts of both federalism and
separation of powers . . . in the absence of an express declaration of
140
As an example, the agency cited § 1918, under which “the Secretary is directed
to determine whether a plan for reassumption of jurisdiction is ‘feasible’ as that term is
used in the statute.” 44 Fed. Reg. at 67,584. The agency noted it had already promulgated
regulations covering this section as well as “other areas where primary responsibility for
implementing portions of the Act rest with this Department.” Id. (citing 44 Fed. Reg.
45,092 (July 31, 1979)).
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Congressional intent to that effect.” Id. After operating with this
understanding for 37 years, however, the agency reversed course in 2016,
determining that § 1952 authorizes it to “set binding standards for Indian
child-custody proceedings in State courts.” 81 Fed. Reg. at 38,785.
When an agency abruptly departs from a longstanding position, its
“‘current interpretation . . . is entitled to considerably less deference.’”
Chamber of Commerce, 885 F.3d at 381 (quoting Watt v. Alaska, 451 U.S. 259,
272–73 (1981)). Here, the agency “claims to discover in a long-extant statute
an unheralded power” of binding state courts’ implementation of ICWA,
and so we “greet its announcement with a measure of skepticism.” Util. Air
Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (“UARG”). Indeed, BIA’s
“turnaround” from its previous stance “alone gives us reason to withhold
approval or at least deference for the Rule.” Chamber of Commerce, 885 F.3d
at 381 (citing Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 142 (1976)). This
principle is especially prescient where, as here, the agency’s new position is
“not a contemporaneous interpretation of [ICWA]” and “flatly contradicts
the position which the agency had enunciated at an earlier date, closer to the
enactment of the governing statute.” Id. (quoting Gilbert, 429 U.S. at 142);
see also Udall v. Tallman, 380 U.S. 1, 16 (1965) (giving “particular[]
. . . respect” to the “contemporaneous construction of a statute by the men
charged with the responsibility of setting its machinery in motion”) (cleaned
up). To be sure, an agency’s changing its mind does not alone defeat Chevron
deference. See, e.g., Gonzalez-Veliz v. Barr, 938 F.3d 219, 234 (5th Cir. 2019)
(“An agency is not permanently bound to the first reasoned decision that it
makes.”). But the agency must “show that there are good reasons for the new
policy” by providing a “reasoned explanation” for departing from its
previous position. Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2126
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(2016) (quoting Fox Television Stations, 556 U.S. at 515–16). 141 The BIA has
failed to do so here.
The 1979 BIA explained that empowering a federal agency to control
state courts would be an “extraordinary” subversion of federalism and
separation of powers. 44 Fed. Reg. at 67,584. BIA’s 2016 response to this
point can charitably be described as anemic. The agency now says it
“reconsidered” its 1979 view because “Congress enacted ICWA to curtail
State authority in some respects,” including state court authority. 81 Fed.
Reg. at 38,788–89. But that fails to address the serious question central to the
agency’s 1979 position—namely, whether Congress intended the BIA to
control state courts. The agency also now points out that Congress can “pass
laws enforceable in state courts.” Id. at 38,789 (citing, inter alia, Testa, 330
U.S. at 394). But that settled principle long pre-dates the 1979 guidelines and,
again, says nothing about whether a federal agency can control state courts.
Moreover, as discussed, the Final Rule also purports to control state agencies,
supra III(B)(1), which raises anti-commandeering problems the BIA ignores.
The BIA also invokes Congress’s “plenary power over Indian affairs,” 81
Fed. Reg. at 38,789, but we have explained that mouthing that shibboleth is
141
Judge Dennis criticizes us for including the agency’s reversal “as a
component of Chevron step two.” Dennis Op. at 143. As our discussion shows, however,
both our court and the Supreme Court have considered under Chevron step two an agency’s
reversal-of-position, as well as its belated discovery of novel authority in statutes it has long
administered. See Encino Motorcars, 136 S. Ct. at 2125–26; UARG, 573 U.S. at 324; Chamber
of Commerce, 885 F.3d at 380–81, 387; see also, e.g., Environmental Integrity Project v. EPA,
969 F.3d 529, 544 (5th Cir. 2020) (explaining “we take the agency’s change of position into
account” in deciding whether to apply Skidmore deference). Judge Dennis himself
concedes that, when assessing an agency’s reading of a statute, “Chevron deference may be
withheld if the agency failed to adequately explain why it shifted to its current
interpretation.” Dennis Op. at 142 (citing Encino Motorcars, 136 S. Ct. at 2125). That is
the question we confront here—whether the BIA failed to justify its discovery in § 1952 of
authority whose existence it had denied for the prior forty years.
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not enough to override state sovereignty. Supra II(A). Finally, purportedly
addressing the “Federalism concerns it noted in 1979,” the BIA now cites
the Supreme Court’s Brand X decision. 81 Fed. Reg. at 38,789 (citing Nat’l
Cable & Telecomm. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 983 (2005)).
But Brand X has nothing to do with federalism; rather, it addresses when a
federal court’s interpretation of a statute may deny Chevron deference to a
federal agency’s later interpretation. See id. at 982 (holding federal court
trumps if “its construction follows from the [statute’s] unambiguous
terms”).
The 1979 BIA also concluded that neither § 1952’s language or history
showed Congress gave the agency supervisory power over state courts. 44
Fed. Reg. at 67,584. The agency reasoned that, by authorizing rules
“necessary to carry out” ICWA, § 1952 only empowered the BIA to issue
regulations “to carry out the responsibilities Congress had assigned to [the
Department] under [ICWA].” Id. BIA’s 2016 response fails to engage this
reasoning. It merely says that § 1952 is a “broad and general grant of
rulemaking authority” and that courts have held that similar provisions
“presumptively authorize agencies to issue rules and regulations addressing
matters covered by the statute.” 81 Fed. Reg. at 38,786. That ducks the point
entirely. No one doubts the language in § 1952 authorizes agency rulemaking.
See, e.g., Mourning v. Family Pub. Serv., 411 U.S. 356, 369 (1973). The 1979
BIA asked a different question: whether § 1952 authorizes regulations that
bind state courts in state proceedings. See 44 Fed. Reg. at 67,584 (“Nothing
in the language or legislative history of § 1952 compels the conclusion that
Congress intended to vest this Department with such extraordinary
power.”). No case cited by the 2016 BIA confronts that question. 142 Only
142
See 81 Fed. Reg. at 38,785 (citing AT&T Corp. v. Iowa Utils. Bd., 525 U.S. 366,
378 (1999); Am. Hosp. Ass’n v. Nat’l Labor Relations Bd., 499 U.S. 606, 609–10 (1991);
114
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one—AT&T Corp. v. Iowa Utilities Board—even comes close, but it holds
only that a federal agency can control a state commission’s participation in a
federal telecommunications regime. See 525 U.S. 366, 378 n.6 (1999) (asking
whether “the state commissions’ participation in the administration of the
new federal regime is to be guided by federal-agency regulations”). Here we
have the opposite question: whether a federal agency can control state courts
and agencies acting under state jurisdiction. The 1979 BIA concluded ICWA
did not intend that “extraordinary step,” 44 Fed. Reg. at 67,584, and the
2016 BIA offers no reason whatsoever for thinking otherwise.
Finally, the BIA defends its new approach as needed to harmonize
“sometimes conflicting” state court interpretations of ICWA over past
decades. 81 Fed. Reg. at 38,782. Merely because state courts have sometimes
disagreed about ICWA, however, says nothing about whether Congress
empowered the BIA to control how state courts interpret it. Cf. 44 Fed. Reg.
at 67,584 (stating 1979 BIA’s view that state courts “are fully capable of
carrying out the[ir] responsibilities [under ICWA] without being under the
direct supervision of this Department”). Regardless, the BIA’s 2016
examples hardly show the “necessity” for such authority. Its prime example
is that some courts created an “existing Indian family” exception to
ICWA. 143 But, as the agency admits, the exception was repudiated by the
court that created it, is now recognized by “[o]nly a handful” of courts, and
Mourning, 411 U.S. at 369; City of Arlington v. FCC, 133 S. Ct. 1863, 1874 (2013); Qwest
Comm’ns Int’l Inc. v. FCC, 229 F.3d 1172, 1179 (D.C. Cir. 2000)). Of these cases, Judge
Dennis focuses on Mourning because the agency-empowering language there was “nearly
identical” to § 1952. Dennis Op. at 141 & n.65. That is irrelevant, however, because
Mourning did not address a federal agency’s power over state courts or agencies; instead, it
addressed the scope of the Federal Reserve Board’s power to prevent merchants from
evading certain Truth in Lending Act disclosure requirements. 411 U.S. at 361–62.
143
See 81 Fed. Reg. 38782 (citing, e.g., Thompson v. Fairfax Cty. Dep’t of Family
Servs., 747 S.E.2d 838, 847–48 (Va. Ct. App. 2013)).
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has been rejected by a “swelling chorus” of others. 81 Fed. Reg. at 38,801–
02.
Also unpersuasive is the BIA’s reliance on Holyfield. Id. at 38,786.
Holyfield held that Congress did not intend state law to define the term
“domicile” in ICWA § 1911, which gives tribes sole jurisdiction over on-
reservation children. 490 U.S. at 44–47. The BIA claims that, in 1979, it
lacked “the benefit of the Holyfield Court’s carefully reasoned decision”
showing how ICWA could be undermined by “a lack of uniformity” among
state courts. 81 Fed. Reg. at 38,787. That does not hold water. Holyfield pitted
one state court’s errant interpretation of ICWA against correct
interpretations by “several other state courts”—hardly an interpretive crisis.
490 U.S. at 41 & n.14. Moreover, the case involved ICWA’s “key
jurisdictional provision” dividing tribal from state authority, id. at 45, not any
provision governing how state courts apply ICWA. Cf. 44 Fed. Reg. at 67,584
(1979 BIA disclaiming authority over provisions concerning “the
responsibilities of state or tribal courts under the Act”). And Holyfield was
on the books for 27 years before BIA claimed the decision inspired its 2016
policy change. 81 Fed. Reg. at 38,787. We treat that late-breaking revelation
“with a measure of skepticism.” UARG, 573 U.S. at 324.
We therefore conclude the 2016 Rule fails to provide a “reasoned
explanation” 144 for reversing the agency’s nearly forty-year-old
144
Judge Dennis disagrees, arguing the BIA needed to provide only a “minimal
level of analysis” for its new position. Dennis Op. at 146 (quoting Encino Motorcars, 136
S. Ct. at 2125). But that is not the standard. When agencies “change their existing
policies,” they must “provide a reasoned explanation for the change.” Encino Motorcars,
136 S. Ct. at 2125; see also id. (explaining “a reasoned explanation is needed for disregarding
facts and circumstances that underlay or were engendered by the prior policy”) (quoting
Fox Television Stations, 556 U.S. at 515–16). As explained, the 2016 BIA has not provided a
“reasoned explanation” for its about-face. It has provided a series of non sequiturs.
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interpretation of § 1952 and discovering novel authority to bind state courts.
Encino Motorcars, 136 S. Ct. at 2126 (quoting Fox Television Stations, 556 U.S.
at 515–16). “An arbitrary and capricious regulation of this sort is itself
unlawful and receives no Chevron deference.” Id. (citing United States v.
Mead Corp., 533 U.S. 218, 227 (2001)).
3.
The district court separately invalidated 25 C.F.R. § 23.132(b), part of
the Final Rule that interprets the “good cause” standard in § 1915. That
provision mandates specific placements for Indian children “in the absence
of good cause to the contrary.” See § 1915(a), (b). In turn, the Final Rule
states: “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.” 25 C.F.R. § 23.132(b)
(emphasis added); see also 81 Fed. Reg. at 38,844. The district court
invalidated this part of the rule under Chevron step one, concluding it
imposes a heightened burden of proof on § 1915 without statutory warrant.
Brackeen, 338 F.Supp.3d at 545-46. We agree.
The step one inquiry is whether the statute unambiguously forecloses
the agency’s interpretation—here, specifying a heightened burden for
proving “good cause” under § 1915. That section says nothing about a
burden of proof, as the BIA admits. See 81 Fed. Reg. at 38,843 (noting the
clear-and-convincing standard “is not articulated in section 1915”). The
presumption, then, is that the section incorporates, not a heightened
standard of proof, but the normal preponderance standard. See, e.g., Grogan
v. Garner, 498 U.S. 279, 286 (1991) (statutory “silence” is “inconsistent with
the view that Congress intended to require a special, heightened standard of
proof”). But we need not rely solely on that presumption: at step one, we
look beyond the “particular statutory provision in isolation” and read the
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statute “as a symmetrical and coherent regulatory scheme.” Sw. Elec. Power
Co., 920 F.3d at 1023 (cleaned up). Doing so, we find that Congress imposed
a “clear and convincing evidence” standard in a nearby provision: § 1912(e)
forbids foster placement unless “clear and convincing evidence” shows
likely harm from the parent’s continued custody. The next subsection,
§ 1912(f), demands an even higher showing—“beyond a reasonable
doubt”—before terminating the parent’s rights. Congress thus deliberately
included heightened standards for proving certain matters in § 1912(e) and
(f), but not for proving “good cause” in § 1915. 145 We thus conclude Congress
elected not to impose a heightened standard in § 1915, foreclosing the
agency’s interpretation at Chevron step one. See Chamber of Commerce, 885
F.3d at 369 (when statute “unambiguously forecloses” agency
interpretation, “that is the end of the matter”) (quoting Chevron, 467 U.S. at
842–43) (cleaned up).
Judge Dennis suggests this “negative-implication” canon of
statutory construction does not apply when assessing the permissible scope
of agency action. Dennis Op. at 148–49. See generally Jennings v. Rodriguez,
138 S. Ct. 830, 844 (2018) (discussing negative-implication or expressio unius
est exclusio alterius canon) (citing Scalia & Garner, Reading Law 107
(2012)). We disagree. Courts are to use “all the ‘traditional tools’ of
construction” at Chevron step one. Kisor, 139 S. Ct. at 2415 (quoting
Chevron, 467 U.S. at 843 n.9). And both the Supreme Court and our court
have deployed the negative-implication canon in the step one analysis. 146 The
145
See Keene Corp. v. United States, 508 U.S. 200, 208 (1993) (“‘[W]here Congress
includes particular language in one section of a statute but omits it in another . . ., it is
generally presumed that Congress acts intentionally and purposely in the disparate
inclusion or exclusion.’”) (quoting Russello v. United States, 464 U.S. 16, 23 (1983)).
146
See, e.g., Barnhart v. Sigmon Coal Co., Inc., 534 U.S. 438, 452 (2002); Brown v.
Gardner, 513 U.S. 115, 120 (1994); Acosta v. Hensel Phelps Constr. Co., 909 F.3d 723, 732
118
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Chevron cases Judge Dennis cites—which in any event are all out-of-
circuit—merely show that the canon sometimes does not resolve step one.
For instance, by including an agency mandate in one section but not another,
Congress “may simply not have been focusing on the point in the second
context” and so left “the choice . . . up to the agency.” Clinchfield Coal Co.
v. Fed. Mine Safety & Health Rev. Comm’n, 895 F.2d 773, 779 (D.C. Cir.
1990); see also, e.g., Catawba County v. EPA, 571 F.3d 20, 36 (D.C. Cir. 2009).
There is no evidence of that here, however. To the contrary, Congress
explicitly mandated heightened standards-of-proof in sections addressing
foster and adoptive placements (§ 1912(e) and (f)), but not in a nearby section
(§ 1915) addressing departures from placement preferences. Far from
suggesting Congress left the standard-of-proof up to the agency, this pattern
“signals the intentional omission” of a heightened standard from § 1915, a
decision the agency cannot second-guess. Chamber of Commerce, 885 F.3d at
373 (citing Russello, 464 U.S. at 23).
Sitting this debate out, the Federal Defendants’ sole response is that
the Final Rule suggests but does not require the clear-and-convincing-evidence
standard. They argue that § 23.132(b) says only that courts “should” impose
that standard, and also point out that the regulations state the rule “does not
categorically require [it]” and “declines to establish a uniform standard of
proof.” 81 Fed. Reg. 38,843. We are unsure what to make of this strange
argument. The Final Rule’s whole purpose was to impose “uniformity” on
state courts, id. at 38,779, and the term “should” often “create[s] mandatory
standards.” Should, Garner’s Dictionary of Legal Usage (3d ed.
2011). Moreover, the state courts hearing Plaintiffs’ cases have not read the
(5th Cir. 2018); Chamber of Commerce, 885 F.3d at 373; Luminant Generation Co., LLC v.
EPA, 675 F.3d 917, 929 (5th Cir. 2012); Miss. Poultry Ass’n, Inc. v. Madigan, 992 F.2d 1359,
1363–64 & n.29 (5th Cir. 1993).
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rule as a mere suggestion. Thus, whatever credence we might give to the
Federal Defendants’ view, we would still find the rule invalid at step one
because it seeks to create (and has in fact created) a heightened standard-of-
proof in contravention of § 1915.
Alternatively, we would find this part of the rule invalid at Chevron
step two. As discussed above, we view with “skepticism” an agency’s
departure from longstanding practices, especially those adopted
contemporaneously with the statute’s enactment. Chamber of Commerce, 885
F.3d at 381 (quoting UARG, 573 U.S. at 324); supra III(D)(1). The BIA’s
2016 treatment of the § 1915 “good cause” determination is strikingly at odds
with its 1979 position. In 1979, the BIA wrote that ICWA’s “use of the term
‘good cause’ was designed to provide state courts with flexibility in
determining the disposition of a placement proceeding involving an Indian
child.” 44 Fed. Reg. at 67,484. This supported BIA’s position that
“[p]rimary responsibility for interpreting” ICWA’s language “rests with the
courts that decide Indian child custody cases.” Id. In 2016, BIA did a 180-
degree reversal—seeking to impose a one-size-fits-all standard on what it
previously stated was a “flexible” inquiry—without giving the “reasoned
explanation” needed to justify discarding a longstanding agency view.
Gonzalez-Veliz, 938 F.3d at 234 (quoting Encino Motorcars, 136 S. Ct. at 2126).
The agency’s sole justification was that state courts have “almost
universally” adopted this standard. 81 Fed. Reg. at 38,843. But that
undermines the agency’s position. A near-consensus by state courts in
applying the statute—one they have “primary responsibility” for
administering, 44 Fed. Reg. at 67,487—hardly justifies the BIA’s newfound
view that it must impose uniformity on those same courts.
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E. Remedy
We now address the question of remedy. Plaintiffs’ second amended
complaint, the one operative here, sought a declaration that specific sections
of ICWA are unconstitutional and an injunction prohibiting the Federal
Defendants from implementing or administering those sections. It also
sought vacatur of the Final Rule. The district court, however, granted only
declaratory relief as to specific provisions of ICWA and the Final Rule, and
Plaintiffs have not cross-appealed seeking to modify the district court’s
judgment. See, e.g., Cooper Indus., Ltd. v. Nat’l Union Fire Ins. Co. of
Pittsburgh, Pa., 876 F.3d 119, 127 (5th Cir. 2017) (explaining that “even a
prevailing party must file a cross-appeal to seek a modification of a
judgment”) (citing Ward v. Santa Fe Indep. Sch. Dist., 393 F.3d 599, 604 (5th
Cir. 2004)). Having found discrete parts of ICWA and the Final Rule
unconstitutional and unlawful, we would therefore affirm the district court’s
judgment to that extent. Specifically: (1) we would declare that the noted
sections of ICWA are unconstitutional; 147 and (2) we would declare that the
noted provisions of the Final Rule are unlawful under § 706 of the APA. 148
Finally, a word about severability. The modern Supreme Court
applies a “severability doctrine” to determine whether invalid parts of a
statute may be excised from the rest. See, e.g., Free Enter. Fund, 561 U.S. at
508 (“‘Generally speaking, when confronting a constitutional flaw in a
statute, we try to limit the solution to the problem,’ severing any
Those are: (1) 25 U.S.C. §§ 1915(a), 1915(b), 1913(d), 1914 (equal protection);
147
(2) 25 U.S.C. §§ 1912(a), 1912(d), 1912(e), 1912(f), 1915(a), 1915(b), 1915(e), 1951(a) (anti-
commandeering); and (3) 25 U.S.C. § 1915(c) (nondelegation).
Those are: (1) all parts of the Final Rule that implement the ICWA provisions
148
declared unconstitutional; (2) all parts of the Final Rule that purport to bind state courts;
and (3) the requirement in 25 C.F.R. § 23.132(b) that good cause to depart from the
placement preferences be proved “by clear and convincing evidence.”
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‘problematic portions while leaving the remainder intact.’”) (quoting Ayotte
v. Planned Parenthood of Northern New Eng., 546 U.S. 320, 328–29 (2006)).
For at least two reasons, however, we need not perform that analysis here.
First, Plaintiffs do not challenge all of ICWA but only particular
provisions. We can therefore grant Plaintiffs appropriate relief without
delving into severability. 149 In that way, this case differs from cases where
deciding severability was necessary to fashion appropriate relief. Cf., e.g.,
Barr v. Am. Ass’n of Pol. Consultants, 140 S. Ct. 2335, 2349 (2020) (plaintiffs
invoked “ordinary severability principles” to argue for complete relief on
their First Amendment claim); Seila Law LLC v. Consumer Fin. Prot. Bureau,
140 S. Ct. 2183, 2208 (2020) (observing “[t]here is a live controversy
between the parties on th[e] question [of severability], and resolving it is a
necessary step in determining petitioner’s entitlement to its requested
relief”). Second, the parties’ briefing contains little substantive analysis on
this point. We decline to perform a severability analysis of a complex statute
like ICWA when the parties have not deeply engaged with the issue. 150
149
See, e.g., 28 U.S.C. § 2201(a) (authorizing courts to “declare the rights and other
legal relations of any interested party” in “a case of actual controversy within its
jurisdiction”); 5 U.S.C. § 706(2) (authorizing courts to “hold unlawful and set aside
agency action, findings, and conclusions” under various circumstances).
150
Even were we so inclined, we note that ICWA contains a severability clause. See
25 U.S.C. § 1963. In that event, “[a]t least absent extraordinary circumstances, the Court
should adhere to the text of the severability or nonseverability clause” because the clause
“leaves no doubt about what the enacting Congress wanted if one provision of the law were
later declared unconstitutional.” American Ass’n, 140 S. Ct. at 2349.
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No. 18-11479
Priscilla R. Owen, Chief Judge, concurring in part, dissenting in part.
I
A
I first consider whether the States have standing. For the reasons
articulated in Judge Dennis’s and Judge Costa’s opinions, 1 the States
do not have standing to assert in this suit that the Indian Child Welfare Act
of 1978 (ICWA) 2 violates the Equal Protection Clause of the Fifth
Amendment. As to all other claims, I conclude that the States do have
standing.
The States have asserted various, often overlapping, claims in Counts
I through IV and Count VII of the live complaint in the district court—the
Second Amended Complaint. Briefly summarized, the States seek a
determination that Congress did not have the authority to supplant state law
in child-welfare and adoption cases with certain directives in ICWA, and that
Congress cannot require state courts to follow ICWA. The States also
contend that the Bureau of Indian Affairs (BIA) violated the Administrative
Procedure Act (APA) and the federal Constitution when it promulgated the
Final Rule (Count I). The States contend that the Indian Commerce Clause
did not empower Congress to enact certain provisions of ICWA (Count II);
that adoption, foster care, and pre-adoptive placement of “Indian children”
are not permissible subjects of regulation under the Tenth Amendment
(Count III); that ICWA and the Final Rule violate anti-commandeering
principles under the Tenth Amendment (Count III); that ICWA and the
Final Rule violate the Equal Protection Clause of the Fifth Amendment
1
See Dennis, J., concurring and dissenting, part I(A)(1), p. 39 n.13; Costa, J.,
concurring and dissenting, part I, p. 3 n.2.
2
25 U.S.C. §§ 1901-1923, 1951-1952.
1
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No. 18-11479
(Count IV); and that ICWA and the Final Rule violate the non-delegation
doctrine of Article I, Section 1 because they “delegate to Indian tribes the
legislative and regulatory power to pass resolutions in each Indian child
custody proceeding that alter the placement preferences state courts must
follow” (Count VII).
The States complain about the costs of complying with ICWA and the
Final Rule, including the hours and resources that child-welfare agencies
expend, costs borne by the States to employ experts, and the time consumed
in state-court proceedings resolving ICWA issues. The States further
contend they “are directly and substantially injured by the delegation of
power over placement preferences because it violates the Constitution’s
separation of powers through abdication of Congress’s legislative
responsibility and requires State Plaintiffs to honor the legislation and
regulation passed by tribes in each child custody matter, which can vary
widely from one child to the next and one tribe to another.”
The States have adequately alleged that they are injured by ICWA and
the Final Rule for standing purposes. 3 The determinative question is
whether those injuries could be redressed if a federal court were to grant the
relief the States seek in this case.
The States seek a declaration that parts of ICWA are unconstitutional
and therefore that state rather than federal law governs. To the extent the
States are seeking to supplant ICWA with state substantive and procedural
law in child-welfare proceedings, such a declaration would not redress the
3
See Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 (1992) (“[T]he plaintiff must have
suffered an injury in fact—an invasion of a legally protected interest which is (a) concrete
and particularized . . . and (b) actual or imminent, not conjectural or hypothetical.”
(citations, footnote, and internal quotation marks omitted)).
2
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No. 18-11479
States’ injuries because no state court would be bound by such a declaration.4
Every state court would, of course, be free to decide the constitutionality of
ICWA de novo because the rulings of the federal district court and of this
court would not bind state courts and would not bind private litigants in state
court proceedings. For this reason, the assertion in Judge Duncan’s
opinion that a decision of this court “would also remove state child welfare
officials’ obligations to implement [ICWA’s] preferences” 5 is, with great
respect, incorrect.
The States contended in the district court that because various
provisions of ICWA are unconstitutional, the federal government cannot
require the States to comply with those provisions and therefore could not
withhold federal funding for child welfare as a consequence of non-
compliance with ICWA. Specifically, the States requested the district court
to hold that certain statutes authorizing the Secretary to withhold federal
child welfare funds from states that do not comply with ICWA, including 42
U.S.C. §§ 622(b)(9) and 677(b)(3)(G), are unconstitutional. The States
sought an injunction prohibiting the federal defendants from implementing
or enforcing those statutes in their initial pleadings.
However, the States did not thereafter pursue any relief in the district
court regarding the withholding of funds by the federal defendants. The
States moved for summary judgment, but they did not seek summary
judgment or request injunctive relief in their motion with regard to federal
funding of child welfare. They did not cross-appeal in this court seeking such
relief, nor could they since they did not pursue it in the district court. The
4
See Aransas Project v. Shaw, 775 F.3d 641, 648 (5th Cir. 2014) (per curiam)
(“Redressability requires ‘a likelihood that the requested relief will redress the alleged
injury.’” (quoting Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 103 (1998))).
5
See Duncan, J., concurring and dissenting, part I(B), p. 21.
3
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No. 18-11479
question then arises as to whether there is redressability at this point in the
proceedings, since standing must be present at each stage of litigation. 6
A determination in this case that certain provisions of ICWA, the
Final Rule, or both were unconstitutional would be a binding determination
(res judicata) as between those States and the federal government. This
would mean that the States could categorically direct their child-welfare
agencies to cease compliance with the provisions of ICWA if it were held
unconstitutional. Such relief would address injuries asserted by the States
and establishes the States’ Article III standing to raise the constitutional
challenges to ICWA, other than equal protection. The States would no
longer be burdened with ICWA’s requirements and would not incur the costs
and expenses associated with compliance unless and until, in a state-court
proceeding, individual plaintiffs asserted rights under ICWA and a final
state-court judgment were to hold, contrary to a judgment of this court or the
district court, that ICWA is constitutional and the State is bound by its
requirements in that state-court proceeding. The potential for such a
collision between state and federal courts as to ICWA’s constitutionality
does not mean that federal courts cannot redress the States’ injuries in the
present case. A federal-court judgment in the States’ favor in this case could
conceivably redress their injuries, though in the longer term, a state court’s
view of the constitutionality of ICWA might ultimately carry the day were a
conflict between state-court holdings and federal-court holdings to arise.
6
Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477-78 (1990) (“[The] case-or-
controversy requirement subsists through all stages of federal judicial proceedings, trial and
appellate. To sustain our jurisdiction in the present case, it is not enough that a dispute
was very much alive when suit was filed . . . .” (first citing Deakins v. Monaghan, 484 U.S.
193, 199 (1988); and then citing Steffel v. Thompson, 415 U.S. 452, 459 n.10 (1974))).
4
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No. 18-11479
A judgment in the present case holding that the States prevail against
the federal defendants on their claims that ICWA is unconstitutional could
also potentially be the basis for precluding the federal government from
withdrawing funding for a State’s failure to comply with unconstitutional
statutory or regulatory provisions. Does that mean that the federal
government is prohibited from using a “carrot/stick” approach to persuade
a State to comply with ICWA or else withdraw funding? That issue was not
raised or briefed in the district court or this court. It has not been decided.
But the point is, it is not improbable that the relief that the States do continue
to seek in the present case would, in future litigation between the States and
the federal government, preclude the federal government from withholding
child welfare funds under ICWA as a consequence of the States’ failure to
comply with ICWA. The constitutionality of ICWA would be off the table in
any such future litigation between a State who is a party to this case and the
federal government.
Not all the States’ claims are grounded in the federal Constitution.
The States challenge 24 C.F.R. § 23.132(b) on the basis that the clear-and-
convincing-evidence standard is contrary to 25 U.S.C. § 1915, and on the
basis that in promulgating the Final Rule, the Bureau of Indian Affairs (BIA)
did not provide a reasoned explanation for reversing its prior, long-held
interpretation of ICWA. The relief sought by the States in this regard would
redress their complaint that the Final Rule imposes too high a standard on
state agencies seeking to place a child other than in accordance with ICWA’s
preferences. The Final Rule’s offending provisions would be abrogated and
therefore would not be a factor or at issue in state-court adoption or
placement proceedings. This would redress the injuries identified by the
States.
Accordingly, I concur in parts I(C) and (D) of Judge Dennis’s
opinion, with the exception of the last sentence in part I(D).
5
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B
As to the standing of the individual plaintiffs, I concur in part I(A)(1)
of Judge Dennis’s opinion, and parts I and II(A) and the final paragraph
of part II(B) of Judge Costa’s opinion.
I add these observations. None of the individual plaintiffs have
standing to press any of their claims, other than those with regard to the APA
and the Final Rule, because nothing this court has to say about ICWA binds
any state court in adoption or foster care placement cases when a private
party asserts that ICWA’s provisions are constitutional and must be applied
or that they are unconstitutional and cannot be applied. Private parties in
child-welfare and adoption proceedings would not be bound by a judgment
issued by a federal district court or this court declaring rights as between the
Brackeens, for instance, and the federal defendants, or as between the States
and the federal government.
The assertion in Judge Duncan’s opinion that the individual
plaintiffs’ claims are redressable because the “Federal Defendants would be
barred from inducing state officials to implement ICWA, including the
preferences, by withholding funding,” 7 is, with great respect, erroneous.
None of the individual plaintiffs have standing to argue that the federal
government is precluded from withholding child welfare funds from a State.
They do not argue that they have a right or interest that would permit them
to insert themselves into disputes as to funding between the federal
government and the States under ICWA. The individual plaintiffs cite no
statute or constitutional provision that would confer such a right. Any relief
granted to the States regarding child-welfare funding under ICWA would
redress the individual plaintiffs’ claims, if at all, only incidentally and
7
Duncan, J., concurring and dissenting, part I(B), p. 21.
6
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tangentially. In any event, as discussed above, the States did not pursue in
the district court their request for a declaration that the federal defendants
are barred from withholding child-welfare funding under ICWA. Such relief
was not granted by the district court, and the States do not seek such relief in
this court. No judgment of this court could now grant the relief that Judge
Duncan’s opinion says would redress the individual plaintiffs’ claims
regarding ICWA’s preferences.
The individual plaintiffs do have standing to challenge the Final Rule.
However, even were the Final Rule abrogated in its entirety, ICWA’s
statutory preferences and other requirements would remain intact. The
individual plaintiffs do not have standing to challenge ICWA’s provisions
directly or in the abstract in the present case. A judgment of this court would
not resolve any actual case or controversy as between the individual plaintiffs
and the federal defendants, other than challenges to the Final Rule, for the
reasons considered above and in Judge Dennis’s and Judge Costa’s
opinions.
II
I agree with the conclusion in Judge Dennis’s opinion, 8 as a
general proposition, that Congress had the authority under the Indian
Commerce Clause 9 to enact ICWA. However, I do not join Judge
Dennis’s analysis fully. I join part II(A) of Judge Costa’s opinion as to
this issue.
8
Dennis, J., concurring and dissenting, part II(A)(1).
9
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.”).
7
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III
A
Because I conclude that neither the States nor the individual plaintiffs
have standing to bring direct equal protection challenges to ICWA’s
statutory provisions, I would not and do not reach the merits of any of those
claims. To the extent that equal protection claims have been asserted by the
individual plaintiffs in challenging the Final Rule, I join the final paragraph in
part II(B) of Judge Costa’s opinion. The individual plaintiffs have
standing to assert equal protection challenges to ICWA in this context. I
agree with the conclusion in Judge Dennis’s opinion that ICWA’s
preferences are political not racial. Those preferences withstand rational-
basis scrutiny. I therefore conclude that the Final Rule did not violate the
Equal Protection Clause in implementing ICWA’s statutory preferences,
including the preference for “Indian Families.”
B
Regarding the commandeering and preemption claims, I join part
II(A)(2)(a)(i) of Judge Dennis’s opinion and part III(B) of Judge
Duncan’s opinion.
To clarify, with regard to part III(B)(1)(a)(iii) of Judge Duncan’s
opinion, I agree that 25 U.S.C. §§ 1915(a)-(b), and implementing regulations,
in large measure violate the anti-commandeering doctrine. However, the
placement preferences set forth in that statute and its implementing
regulations, standing alone, do not commandeer, as Judge Duncan’s
opinion explains. 10 Those federal laws preempt contrary state-law
preferences. The commandeering occurs because state agencies are directed
10
Duncan, J., concurring and dissenting, part III(B)(1)(a)(iii), p. 83.
8
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to undertake action to identify and assist individuals who might be entitled to
preference over others seeking to adopt or to provide foster care. To the
extent the state courts and state agencies become aware of individuals who
seek to have ICWA’s preferences applied, ICWA’s preferences should be
followed.
C
Only the State plaintiffs asserted claims that Congress impermissibly
delegated legislative power to Indian tribes in ICWA. With regard to the non-
delegation issues, I join part II(C) of Judge Dennis’s opinion.
D
Regarding the APA claims, I join part III(D)(3) of Judge Duncan’s
opinion. I do not join part III(D)(2) of that opinion because the discussion as
to whether regulations bind state courts is abstract. It is unclear from the
discussion which regulations purport to bind state courts separate and apart
from statutory provisions which do bind state courts to the extent the
statutory provisions are constitutional.
E
I would grant declaratory relief consistent with the conclusions in this
opinion.
9
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JACQUES L. WIENER, JR., Circuit Judge, dissenting in part:
I concur with Judge Dennis’s Opinion, except for its holding on
standing to challenge 25 U.S.C. § 1915(a) and (b) on equal protection
grounds. I also concur with Judge Costa in his partial dissent on standing.
For the reasons more explicitly stated below, I write separately because the
Plaintiffs’ second amended complaint is deficient and should be dismissed
for lack of standing.
Judges Duncan and Dennis each conclude that the Individual
Plaintiffs, through the Brackeens and Cliffords, have Article III standing to
challenge § 1915(a) and (b) of ICWA on equal protection grounds.1 This
conveniently allows the Opinions to proceed to the merits of the Plaintiffs’
equal protection arguments. Like Judge Costa, I disagree with Judges
Duncan’s and Dennis’s conclusions that the Plaintiffs have Article III
standing to challenge § 1915(a) and (b), so I would not reach the merits of the
Plaintiffs’ equal protection claim. In addition to the redressability problems
cited in Judge Costa’s dissent, Judges Duncan and Dennis choose
to ignore three important facts: (1) the date that the most recent complaint
was filed, (2) the Brackeens’ delayed supplementation of the record, and (3)
the fact that the Cliffords could have appealed their case to the Minnesota
Supreme Court but did not do so. Those facts are dispositive of the Plaintiffs’
ability to show standing: The Brackeens and Cliffords (and, by extension, all
of the Individual Plaintiffs) do not have standing to challenge § 1915(a) and
(b), so we do not have jurisdiction to decide whether these parts of ICWA
pass constitutional muster.
1
Judge Dennis concludes that the Plaintiffs do not have standing to challenge
§ 1913(d) and 1914, and I concur for the reasons provided in that opinion.
1
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I. Background
The Plaintiffs filed their initial complaint in October 2017, seeking
declaratory and injunctive relief, claiming that ICWA and the Final Rule are
unconstitutional and violate the Administrative Procedure Act.2 At that time,
the Brackeens were attempting to adopt A.L.M., who qualified as an “Indian
child” under ICWA. A.L.M.’s biological parents voluntarily terminated their
parental rights in May 2017, and the Brackeens completed their adoption of
A.L.M. in January 2018. The Plaintiffs filed a second amended complaint two
months later. Presumably because they knew that standing would be an issue,
the Brackeens stated that they “also intend to provide foster care for, and
possibly adopt, additional children in need. Because of their experience with
the Final Rule and ICWA, however, [they] are reluctant to provide a foster
home for other Indian children in the future.” Despite their reluctance,
however, the Brackeens attempted to adopt A.L.M.’s sister, Y.R.J., who was
born in June 2018—three months after the second amended complaint was
filed. The Plaintiffs supplemented the district court record in October 2018
(after it had entered final judgment), notifying the court that the Brackeens
were attempting to adopt Y.R.J. The Brackeens intervened in a state court
adoption proceeding in November 2018, seeking to terminate the parental
rights of Y.R.J.’s mother—eight months after the second amended complaint
was filed.3
The Plaintiffs also stated in their second amended complaint that the
Cliffords wished to adopt Child P., a six-year-old girl whom the Cliffords had
fostered since July 2016. With the support of Child P.’s guardian ad litem,
2
See Brackeen v. Zinke, 338 F. Supp. 3d 514, 526–46 (N.D. Tex. 2018), rev’d sub
nom. 937 F.3d 406 (5th Cir. 2019), reh’g en banc granted, 942 F.3d 287 (5th Cir. 2019).
3
See In re Y.J., 2019 WL 6904728, at *3 (Tex. App. Dec. 19, 2019).
2
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the Cliffords moved to adopt Child P. The Minnesota court denied their
petition in January 2019 because Child P.’s tribe intervened in her case and
invoked ICWA’s placement preferences.4 The Cliffords appealed the
Minnesota court’s order, but the Minnesota court of appeals affirmed.5 It
does not appear that the Cliffords timely appealed that court’s judgment.
II. Article III Standing
Under Article III of the United States Constitution, federal courts
only have jurisdiction over a “case” or “controversy.”6 “To establish a ‘case
or controversy,’ a plaintiff must establish that it has standing.”7 Standing
requires that a plaintiff show (1) “an injury in fact” that is (2) fairly traceable
to the challenged action of the defendant, and that is (3) likely to be
“redressed by a favorable decision.”8 Judges Duncan and Dennis only
analyze standing to challenge § 1915(a) and (b) on equal protection grounds
as to the Brackeens and the Cliffords. No other Individual or State Plaintiff
can show standing to challenge these provisions of ICWA.
Fatal to the Brackeens’ assertion of standing are the facts that (1) they
had already adopted A.L.M. prior to the Plaintiffs’ filing of the second
amended complaint, and (2) their stated desires to adopt or provide foster
care for other Indian children were too vague to constitute an injury in fact.
The Brackeens must show Article III standing both at the time of the filing of
4
See In re Welfare of the Child in the Custody of: Comm’r of Human Servs., No. 27-
JV-15-483 (4th Dist. Minn. Jan. 17, 2019).
5
In re S.B., No. A19-0225, 2019 WL 6698079, at *6 (Minn. Ct. App. Dec. 9, 2019).
6
See U.S. CONST. art. III, § 2, cl. 1.
7
Legacy Cmty. Health Servs., Inc. v. Smith, 881 F.3d 358, 366 (5th Cir. 2018) (citing
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992)).
8
Lujan, 504 U.S. at 560–61.
3
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the complaint and throughout the lawsuit.9 The court must analyze standing
at the time that the latest complaint is filed.10
The first requirement of standing is that a plaintiff must have suffered
an “injury in fact.”11 An injury in fact must be (1) concrete and particularized
and (2) actual or imminent, not conjectural or hypothetical.12 Some courts
have held that when “plaintiffs seek declaratory and injunctive relief only,
there is a further requirement that they show a very significant possibility of
future harm; it is insufficient for them to demonstrate only a past injury.”13
“A request for injunctive relief remains live only so long as there is some
present harm left to enjoin.”14 “Past exposure to illegal conduct does not in
itself show a present case or controversy regarding injunctive relief . . . if
unaccompanied by any continuing, present adverse effects.” 15
The Brackeens could not show an actual injury in fact at the time the
Plaintiffs filed the second amended complaint because the Brackeens had
already adopted A.L.M. Actual injury requires the Plaintiffs to show that they
9
See Rockwell Int’l Corp. v. United States, 549 U.S. 457, 473–74 (2007) (noting that
standing is assessed at the time the complaint is filed); Arizonans for Off. Eng. v. Ariz., 520
U.S. 43, 45 (1997) (“[A]n actual controversy must be extant at all stages of review, not
merely at the time the complaint is filed.”).
10
See Rockwell, 549 U.S. at 473–74 (“[W]hen a plaintiff . . . voluntarily amends the
complaint, courts look to the amended complaint to determine jurisdiction.”); Cnty. of
Riverside v. McLaughlin, 500 U.S. 44, 51 (1991) (analyzing standing at the time the second
amended complaint was filed).
11
Lujan, 504 U.S. at 560–61.
12
Id. at 560.
13
San Diego Cnty. Gun Rts. Comm. v. Reno, 98 F.3d 1121, 1126 (9th Cir. 1996).
14
Taylor v. Resol. Tr. Corp., 56 F.3d 1497, 1502 (D.C. Cir. 1995).
15
O’Neal v. City of Seattle, 66 F.3d 1064, 1066 (9th Cir. 1995) (omission in original)
(quoting City of L.A. v. Lyons, 461 U.S. 95, 102 (1983)).
4
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are presently affected by ICWA and the Final Rule.16 The Brackeens’ injury
was a “past injury,” which “is insufficient for them to demonstrate” the
injury in fact necessary to obtain injunctive or declaratory relief. 17
Neither could the Brackeens show an imminent injury in fact.18 Their
stated desire to adopt or provide foster care for other Indian children was too
vague because they had not specified a date or time that they would attempt
to adopt Y.R.J. or other Indian children.19 The Brackeens did not attempt to
show that they planned to adopt another Indian child until October 2018—
seven months after the second amended complaint had been filed and after
final judgment had been entered. At the time that the second amended
complaint was filed, the Brackeens’ “intent” to provide foster care for Indian
children, or the “possibility” that they would adopt any, was insufficient to
show injury in fact. As the Supreme Court has explicitly held, “[s]uch ‘some
day’ intentions—without any description of concrete plans, or indeed even
16
See N.J. Physicians, Inc. v. Obama, 653 F.3d 234, 239 (3d Cir. 2011) (noting that
a plaintiff must be “presently impacted” by the defendant’s actions).
17
Reno, 98 F.3d at 1126.
18
Judge Duncan notes that he would reach the same conclusion as to the
Brackeens’ adoption of A.L.M. because it fits within the “capable of repetition, yet evading
review” exception to mootness. This exception is inapposite, so the case would be moot
were it not lacking an injury in fact, because (1) the adoption proceedings were not too short
in duration to be fully litigated, and (2) there is no reasonable expectation that the
Brackeens would be subject to the same injury again. See Davis v. Fed. Election Comm’n, 554
U.S. 724, 735 (2008). As to the first prong, the Brackeens could have litigated their ICWA
challenges in state court during A.L.M.’s July 2017 adoption proceedings, long before
October 2018 when the district court entered judgment against the Defendants. As to the
second prong, the Brackeens’ stated reluctance to adopt more Indian children was too
vague, as discussed above. See Lujan, 504 U.S. at 564 (holding that a sufficient specification
of when the injury in fact will occur is necessary).
19
See Reno, 98 F.3d at 1127 (holding that plaintiffs could not show injury in fact,
because “[t]he complaint does not specify any particular time or date on which plaintiffs
intend to violate the Act”).
5
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any specification of when the some day will be—do not support a finding of
the ‘actual or imminent’ injury that our cases require.”20
The Brackeens’ standing issue in this case is similar to those found in
cases—some of which are cited in Judge Dennis’s Opinion—wherein the
Supreme Court has held that plaintiffs lack standing because their injuries
were not “imminent.” For example, in O’Shea v. Littleton, the Court held
that the plaintiffs lacked standing because, even though they had suffered
past unconstitutional practices they could not prove a present or future
impact as a result of those practices.21 The Court noted that the alleged
imminent threat was not “sufficiently real and immediate to show an existing
controversy simply because [the plaintiffs] anticipate violating lawful
criminal statutes and being tried for their offenses.”22 Similarly, in City of Los
Angeles v. Lyons, the Court rejected the plaintiff’s standing argument, noting
that the complaint “depended on whether [the plaintiff] was likely to suffer
future injury from the use of the chokeholds by police officers.”23
Further, Judges Duncan and Dennis err by considering Y.R.J.’s
proceedings for purposes of standing because the Plaintiffs did not move to
supplement the record with information relating to the Brackeens’ attempted
adoption of Y.R.J. until October 10, 2018. Final judgment had been entered,
20
Lujan, 504 U.S. at 564.
21
414 U.S. 488, 493, 495–96 (1974).
22
Id. at 496.
23
461 U.S. at 105. Although these cases arose in the context of unconstitutional
police practices, which are unlike allegedly unconstitutional adoptive proceedings, they are
instructive. Here, like the plaintiffs in O’Shea and Lyons, the Plaintiffs are seeking future
remedies based on past exposures to harm, which Judges Duncan and Dennis
incorrectly classify as a regulatory burden. On the contrary, there can be no regulatory
burden in a completed adoption proceeding, viz., the completed adoption of A.L.M.
6
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however, on October 4, 2018. The Supreme Court has explicitly held that a
lack of standing cannot be cured by evidence entered into the record after
final judgment.24 Unlike Mathews v. Diaz, in which the Supreme Court held
that a supplemental pleading cured the jurisdictional defect, the Brackeens’
supplementation of the district court record occurred after judgment had
been entered.25
24
See Summers v. Earth Island Inst., 555 U.S. 488, 495 n.* (2009) (“After the
District Court had entered judgment, and after the Government had filed its notice of
appeal, respondents submitted additional affidavits to the District Court. We do not
consider these. If respondents had not met the challenge to their standing at the time of
judgment, they could not remedy the defect retroactively.”).
25
Cf. 426 U.S. 67, 75 (1976). In Mathews, cited by Judge Dennis, the Court
noted that “[a] supplemental complaint would have eliminated this jurisdictional issue;
since the record discloses, both by affidavit and stipulation, that the jurisdictional condition
was satisfied, it is not too late, even now, to supplement the complaint to allege this fact.”
Id. (emphasis added). Mathews involved Federal Rule of Civil Procedure 15(d), which
allows a party to file a supplemental pleading. See id. at 75 n.8; accord Northstar Fin. Advisors
Inc. v. Schwab Inv., 779 F.3d 1036, 1044 (9th Cir. 2015). The Brackeens did not file a
supplemental pleading. Instead, they filed a supplement to the record. Further, Mathews
involved the issue of exhaustion, not standing. See 426 U.S. at 75-76. Finally, Mathews’
language that “even now,” filing a supplemental pleading would not be “too late,” is
dictum. In Mathews, the plaintiffs filed a supplemental pleading after the complaint had
been filed but before final judgment had been entered. Id. at 75 (noting that the pleading was
supplemented “while the case was pending in the District Court”). There was no issue of
filing a supplemental pleading at the Supreme Court level; thus, this language is dictum.
Here, as stated, the Brackeens did not supplement the record until after final judgment was
entered, and this cannot cure the defective complaint. See Prasco, LLC v. Medicis Pharm.
Corp., 537 F.3d 1329, 1337 (Fed. Cir. 2008) (noting that “while ‘later events may not create
jurisdiction where none existed at the time of filing, the proper focus in determining
jurisdiction are the facts at the time the complaint under consideration was filed’”
(brackets and emphasis omitted) (quoting GAF Bldg. Materials Corp. v. Elk Corp., 90 F.3d
479, 483 (Fed. Cir. 1996)).
7
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Finally, the Cliffords do not have standing to challenge § 1915(b)
because their claim is not redressable.26 They could have appealed their
challenges to ICWA in Minnesota state court but likely missed the deadline
to appeal.27 The state of Minnesota is also not a party to this lawsuit, so any
ruling we make on the constitutionality of ICWA would have no effect on the
Cliffords’ adoption proceedings.28
III. Conclusion
It would be convenient if we could ignore facts that are dispositive of
Article III standing—as do Judges Duncan and Dennis—and proceed
to the merits in important constitutional cases such as this. We are, however,
governed by the rule of law. And a federal court cannot weigh in on an issue
over which it lacks jurisdiction, however appealing doing so might be. I
concur with Judge Costa that the Plaintiffs lack standing because their
case is not redressable. And even though I join Judges Dennis’s well-
reasoned and thorough Opinion on the merits, I would reverse the district
court’s order that the Plaintiffs have Article III standing to challenge 25
U.S.C. § 1915(a) and (b) on equal protection grounds.
26
See Susan B. Anthony List v. Dreihaus, 573 U.S. 149, 158 (2014) (noting that
redressability is a requirement for standing)
27
See In re S.B., No. A19-0225, 2019 WL 6698079, at *1 (Minn. Ct. App. Dec. 9,
2019) (showing no notice of appeal to the January 2020 judgment); see also Minn. R. Civ.
App. P. 117 subd 1 (requiring filing of notice of appeal within 30 days of the filing of the
Court of Appeals’ decision).
28
See Okpalobi v. Foster, 244 F.3d 405, 426–27 (5th Cir. 2001) (en banc)
(concluding that the plaintiffs’ claim was not redressable because the defendants were
“powerless to enforce [the Act] against the plaintiffs (or to prevent any threatened injury
from its enforcement”)).
8
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Haynes, Circuit Judge, concurring:
I concur with portions of both Judge Dennis’s and Judge
Duncan’s Opinions (respectively, the “Dennis Opinion” and the
“Duncan Opinion”).1 On standing, I concur with the conclusions of Part I
of the Duncan Opinion that Plaintiffs have standing to bring all their claims.2
On the equal protection issues, I concur in part with Part II(B)(2) of
the Dennis Opinion that the definition of “Indian child” does not violate the
Equal Protection Clause. As to the placement preferences, I conclude that
the first two prongs of ICWA § 1915(a)—concerning the members of the
child’s extended family and tribe—withstand even strict scrutiny, so I concur
with Part II(B)(2) of the Dennis Opinion that they are constitutional; but I
concur with Part III(A)(3) of the Duncan Opinion that the “other Indian
families” prong of ICWA § 1915(a) violates the Equal Protection Clause
because it fails to be rationally tied to fulfilling Congress’s goals of protecting
Indian tribes.
On the anti-commandeering/preemption issues, I concur with the
conclusion in Part II(A)(1) of the Dennis Opinion that Congress had plenary
authority under the Indian Commerce Clause to enact ICWA, but I concur
with Parts III(B)(1)(a)(i) and III(B)(1)(a)(iv) and in part with Parts
III(B)(1)(a)(ii), III(B)(1)(b), and III(B)(2)(b) of the Duncan Opinion that
ICWA §§ 1912(d), (e) and 1915(e) violate the anti-commandeering doctrine
and are invalid preemption provisions. With respect to the remaining
1
All references to the Dennis Opinion and Duncan Opinion are to the enumerated
sections under the “Discussion” portion of each opinion.
2
In that regard, I also agree with the conclusions of Parts I(A)(2)–(D) of the Dennis
Opinion.
1
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statutory provisions at issue, I concur with the Dennis Opinion that they do
not violate the anti-commandeering doctrine and validly preempt state law.
On the nondelegation doctrine issue, I concur with Part II(C) of the
Dennis Opinion that ICWA § 1915(c) does not violate that doctrine.
Lastly, on the Administrative Procedure Act issues, I concur with Part
III(D)(1) of the Duncan Opinion that the Final Rule is invalid to the extent
that it implements the unconstitutional statutory provisions identified above:
ICWA §§ 1912 (d), (e), and 1915(e) and the “other Indian families” prong of
ICWA § 1915(a). However, to the extent that the Final Rule implements
constitutional ICWA provisions, I concur with Part II(D)(1) of the Dennis
Opinion that those portions of the Final Rule are valid. I also concur with
Part II(D)(2) of the Dennis Opinion that BIA did not exceed its authority in
making the Final Rule binding. But I concur with Part III(D)(3) of the
Duncan Opinion that the “good cause” standard in 25 C.F.R. § 23.132(b)
fails at Chevron step one.
2
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Stephen A. Higginson, Circuit Judge, concurring in part, with whom
Judge Costa joins:
I concur in Judge Dennis’s comprehensive opinion except for
Discussion § I.A.2 and write separately to highlight lessons I draw from two
Supreme Court cases.
“Any rule of state immunity that looks to the ‘traditional,’ ‘integral,’
or ‘necessary’ nature of governmental functions inevitably invites an
unelected federal judiciary to make decisions about which state policies it
favors and which ones it dislikes.” Garcia v. San Antonio Metro. Transit Auth.,
469 U.S. 528, 546 (1985). Engaging in this type of policy weighing, the dissent
would strike a statute that has garnered support from Congressional
members on both sides of the aisle, a large number of states, and at least 325
federally recognized Indian tribes and has been the law of the land for over
four decades.
Specifically, the dissent would hold that the “structural guarantee of
state sovereignty” limits Congress’s authority to regulate state child custody
proceedings involving Indian children. It bases this on two observations:
“[n]o Supreme Court decision supports Congress deploying its Indian affairs
power to govern state government proceedings,” and there is no
“comparable founding-era exercise[ ] of Congress’s Indian affairs power.”
Yet, in Garcia, the Court explained why it rejected, “as unsound in
principle and unworkable in practice, a rule of state immunity from federal
regulation that turns on a judicial appraisal of whether a particular
governmental function is ‘integral’ or ‘traditional’”: (1) “it prevents a court
from accommodating changes in the historical functions of States, changes
that have resulted in a number of once-private functions like education being
assumed by the States and their subdivisions”; (2) it “results in line-drawing
of the most arbitrary sort; the genesis of state governmental functions
stretches over a historical continuum from before the Revolution to the
present, and courts would have to decide by fiat precisely how longstanding
a pattern of state involvement had to be for federal regulatory authority to be
defeated”; (3) it is “unworkable,” in part “because of the elusiveness of
1
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objective criteria for ‘fundamental’ elements of state sovereignty”; and (4)
“[s]tate sovereign interests . . . are more properly protected by procedural
safeguards inherent in the structure of the federal system than by judicially
created limitations on federal power.” 469 U.S. at 543–52. Contrary to this
Supreme Court instruction, the dissent risks resuscitating a
misunderstanding of state sovereignty that entangles judges with the
problematic policy task of deciding what issues are so inherent in the concept
and history of state sovereignty that they fall beyond the reach of Congress.
“[T]he fact that the States remain sovereign as to all powers not
vested in Congress or denied them by the Constitution offers no guidance
about where the frontier between state and federal power lies.” Id. at 550.
Instead, it is the nature of our federalist system that states retain sovereign
authority “only to the extent that the Constitution has not divested them of
their original powers and transferred those powers to the Federal
Government.” Id. at 549. As Judge Dennis comprehensively explains, the
Indian Commerce Clause has done exactly that with respect to Indian Affairs.
But it is not only the dissent’s test that diverges from Supreme Court
authority—it would also be its result. The Supreme Court has repeatedly
recognized that Congress can preempt state law that applies in state domestic
relations proceedings. See, e.g., Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S.
141, 146 (2001) (holding that ERISA preempted application of Washington
statute in state probate proceedings); Boggs v. Boggs, 520 U.S. 833, 841 (1997)
(holding that ERISA preempted application of Louisiana community
property law in state probate proceedings); McCarty v. McCarty, 453 U.S.
210, 232–33 (1981) (holding that federal law preempted application of
California community property law in state divorce proceedings); Hisquierdo
v. Hisquierdo, 439 U.S. 572, 590 (1979) (holding that the Railroad Retirement
Act preempted application of California community property law in state
divorce proceedings); Free v. Bland, 369 U.S. 663, 670 (1962) (holding that
federal law preempted application of Texas community property law in state
probate proceedings); Wissner v. Wissner, 338 U.S. 655, 658–59 (1950)
(holding that the National Service Life Insurance Act preempted application
2
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of California community property law in state probate proceedings); McCune
v. Essig, 199 U.S. 382, 389–90 (1905) (holding that the Homestead Act
preempted application of Washington community property law in state
probate proceedings); see also Gregory v. Ashcroft, 501 U.S. 452, 460 (1991)
(“Congress may legislate in areas traditionally regulated by the States.”).
That is exactly what Congress did here. See 25 U.S.C. § 1902 (declaring
Congress’s intent to establish “minimum Federal standards” to be applied
in state child custody proceedings involving Indian children).
The dissent relies primarily on Seminole Tribe v. Florida, 517 U.S. 44
(1996), to support a contrary result. But even Chief Justice Rehnquist—the
author of Seminole Tribe and perhaps the most faithful proponent of state’s
rights—explicitly recognized that Congress may preempt state domestic
relations law. See McCarty, 453 U.S. at 237 (Rehnquist, J., dissenting)
(“[T]he authority of the States should not be displaced except pursuant to the
clearest direction from Congress.” (emphasis added)); see also Bond v. United
States, 572 U.S. 844, 858 (2014) (“‘[I]t is incumbent upon the federal courts
to be certain of Congress’ intent before finding that federal law overrides’ the
‘usual constitutional balance of federal and state powers.’” (quoting Gregory,
501 U.S. at 460)). Although Chief Justice Rehnquist’s position was narrower
than the dissent’s here, see McCarty, 453 U.S. at 232 (finding state
community property law preempted where (1) there was a conflict between
the federal and state laws and (2) the consequences of the state law
sufficiently injured the objectives of the federal program), I highlight it to
demonstrate how consequential the dissent’s retort to clearly stated
congressional authority actually is. Even applying Chief Justice Rehnquist’s
dissenting position, the Indian Child Welfare Act (“ICWA”) stands. The
ICWA establishes “minimum Federal standards” to be applied in state child
custody proceedings involving Indian children—it is hard to image a clearer
indication of Congress’s intent to preempt state law. 25 U.S.C. § 1902.
Just as “[n]one can dispute the central role community property laws
play in . . . community property States,” Boggs, 520 U.S. at 839–40, it is
irrefutable that states have a compelling interest in their child custody
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proceedings. Nevertheless, important, longstanding, and binding Supreme
Court precedent recognizes both the United States’ unique and compelling
obligation to Indians, see United States v. Lara, 541 U.S. 193, 200 (2004)
(“[T]he Constitution grants Congress broad general powers to legislate in
respect to Indian tribes, powers that we have consistently described as
‘plenary and exclusive.’” (citations omitted)); see also McGirt v. Oklahoma,
140 S. Ct. 2452, 2462 (2020) (“This Court long ago held that the Legislature
wields significant constitutional authority when it comes to tribal
relations.”), and dictates that “[t]he relative importance to the State of its
own law is not material when there is a conflict with a valid federal law, for
the Framers of our Constitution provided that the federal law must prevail,”
Free, 369 U.S. at 666.
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Gregg Costa, Circuit Judge, concurring in part and dissenting in part,
with whom Chief Judge Owen joins as to Parts I and II(A) and the final
paragraph of Part II(B), with whom Judges Wiener and Higginson
join, with whom Judge Dennis joins as to Part II, and with whom Judge
Southwick joins as to part I:
Congress passed the Indian Child Welfare Act of 1978 on voice votes,
a procedure typically reserved for noncontroversial legislation. The law
continues to enjoy bipartisan support. See Brief of Members of Congress as
Amici Curiae in Support of Defendants-Appellants and Reversal. Leading
child welfare organizations believe the law “embodies and has served as a
model for the child welfare policies that are [the] best practices generally”
and reflects “the gold standard for child welfare policies and practices in the
United States.” Brief of Casey Family Programs and 30 Other Organizations
Working with Children, Families, and Courts to Support Children’s Welfare
as Amici Curiae in Support of Appellants at 2; Letter from Child Welfare
Advocates to Elizabeth Appel, Off. of Regul. Aff. & Collaborative Action,
U.S. Dep’t of Interior (May 19, 2015), http://www.nativeamericanbar.org/wp-
content/uploads/2014/01/CFP-et-al-Support-Letter-Re-Proposed-ICWA-Regulations.pdf.
Yet more than four decades into its existence, a federal district court
held key parts of the law unconstitutional. That facial invalidation is contrary
to the longstanding views of state courts, where adoption proceedings of
course take place.1 It is ironic that a federal court saw infringements on state
sovereignty that the state courts themselves have not seen.
1
See, e.g., In re K.M.O., 280 P.3d 1203, 1214–15 (Wyo. 2012); In re Phoenix L., 708
N.W.2d 786, 795–98 (Neb. 2006); In re Baby Boy L., 103 P.3d 1099, 1106–07 (Okla. 2004);
In re A.B., 663 N.W.2d 625, 634–37 (N.D. 2003), cert. denied, 541 U.S. 972 (2004); Ruby A.
v. State, Dep’t of Health & Soc. Servs., 2003 WL 23018276, at *4–5 (Alaska Dec. 29, 2003);
In re Marcus S., 638 A.2d 1158, 1158–59 (Me. 1994); In re Armell, 550 N.E.2d 1061, 1067–
68 (Ill. App. Ct. 1990), cert. denied, 498 U.S. 940 (1990); In re Miller, 451 N.W.2d 576, 578–
79 (Mich. Ct. App. 1990) (per curiam); In re Application of Angus, 655 P.2d 208, 213 (Or.
Ct. App. 1982), cert. denied, 464 U.S. 830 (1983); In re Appeal in Pima Cty. Juvenile Action
No. S-903, 635 P.2d 187, 193 (Ariz. Ct. App. 1981), cert. denied, 455 U.S. 1007 (1982); In re
Guardianship of D.L.L., 291 N.W.2d 278, 281 (S.D. 1980). But see In re Santos Y., 92 Cal.
App. 4th 1274 (Cal. Ct. App. 2001) (upholding “as applied” constitutional challenges to
ICWA when the child had never been part of an Indian home).
1
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I.
Such ironies abound in this case. The most astonishing irony results
from this being a federal court challenge to laws that apply in state adoption
proceedings. It will no doubt shock the reader who has slogged through
today’s lengthy opinions that, at least when it comes to the far-reaching
claims challenging the Indian Child Welfare Act’s preferences for tribe
members, this case will not have binding effect in a single adoption. That’s
right, whether our court upholds the law in its entirety or says that the whole
thing exceeds congressional power, no state family court is required to follow
what we say. See, e.g., Penrod Drilling Corp. v. Williams, 868 S.W.2d 294, 296
(Tex. 1993) (per curiam) (noting that Texas state courts are “obligated to
follow only higher Texas courts and the United States Supreme Court”);
ASARCO Inc. v. Kadish, 490 U.S. 605, 617 (1989) (recognizing that state
courts “render binding judicial decisions that rest on their own
interpretations of federal law”).
There is a term for a judicial decision that does nothing more than
opine on what the law should be: an advisory opinion. That is what the
roughly 300 pages you just read amount to.
The rule that federal courts cannot issue advisory opinions is as old as
Article III. See Hayburn’s Case, 2 Dall. 409, 410 n.* (1792); 3 The
Correspondence and Public Papers of John Jay 486–89
(Johnston ed. 1891) (August 8, 1793, letter from Chief Justice Jay refusing to
give the Washington Administration advice on legal questions relating to war
between Great Britain and France); see also Flast v. Cohen, 392 U.S. 83, 96
(1968) (“[I]t is quite clear that ‘the oldest and most consistent thread in the
federal law of justiciability is that the federal courts will not give advisory
opinions.’” (quoting Charles Alan Wright, Federal Courts 34
(1963))). Early courts could just call such a case what it was—a request for
an advisory opinion, see, e.g., Muskrat v. United States, 219 U.S. 346, 361–63
(1911); United States v. Ferreira, 54 U.S. 40, 51–52 (1851); Hayburn’s Case, 2
Dall. at 410 n.*. The modern rise of public law litigation resulted in the
development of doctrines likes standing, ripeness, and mootness to enforce
2
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the “case or controversy” requirement. See Cass R. Sunstein, What’s
Standing After Lujan? Of Citizen Suits, “Injuries,” and Article III, 91 Mich.
L. Rev. 163, 169 (1992) (noting that the Supreme Court did not use the word
“standing” until 1944 (citing Stark v. Wickard, 321 U.S. 288 (1944))). This
compartmentalization of justiciability law risks losing the forest for the trees.
Justiciability doctrines, with their various elements and exceptions, have one
underlying aim: ensuring federal courts only hear cases that actually decide
concrete disputes. Decide is the key word here. When a judicial opinion does
not actually resolve a dispute, it has no more legal force than a law review
article.
The modern doctrinal box most concerned with weeding out advisory
opinions is the redressability element of standing. “Satisfaction of this
requirement ensures that the lawsuit does not entail the issuance of an
advisory opinion without the possibility of any judicial relief, and that the
exercise of a court’s remedial powers will actually redress the alleged injury.”
Los Angeles v. Lyons, 461 U.S. 95, 129 (1983) (Marshall, J., dissenting).
The redressability requirement proves fatal to at least the equal
protection claim (which is really a claim under the Fifth Amendment’s Due
Process Clause because ICWA is a federal law). Nothing we say about equal
protection will redress the Brackeens’ alleged injury of potentially being
subject to preferences that would favor tribe members in the adoption of
Y.R.J.2 Their argument for redressability is that the family court judge may,
or even says he will, follow our constitutional ruling. In other words, our
opinion may advise him on how to decide the adoption case before him. This
description of the plaintiffs’ argument reveals why it doesn’t work. Maybe
the opinion will convince the family court judge, maybe it won’t. The same
is true for law review articles or legal briefs. But what is supposed to separate
2
The States do not have standing to pursue the equal protection claim because
they are not “persons” entitled to the protection of the Fifth Amendment. See South
Carolina v. Katzenbach, 383 U.S. 301, 323–24 (1966). They thus cannot suffer an equal
protection injury of their own. Indeed, neither the opinion from the three-judge panel nor
the en banc majority opinion relies on the States for equal protection standing.
3
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court decisions from other legal writings is that they actually resolve a
dispute.
Yet JUDGE Dennis’s Opinion signs off on plaintiffs’ redressability
theory,3 finding it sufficient that it is “‘substantially likely that [a state court]
would abide by an authoritative interpretation’ of ICWA.”4 Dennis Op. at
45 (quoting Franklin v. Massachusetts, 505 U.S. 788, 803 (1992)); see also id.
at 43 (stating that “the Texas trial court has indicated that it will refrain from
ruling on the Brackeens’ federal constitutional claims pending a ruling from
this court”). Finding redressability based on the possibility that another
court will consider the opinion persuasive would allow the requirements of
standing to be satisfied by advisory opinions—the very thing that the doctrine
was designed to prevent. Justice Scalia nailed the problem with this
reasoning:
If courts may simply assume that everyone (including those
who are not proper parties to an action) will honor the legal
rationales that underlie their decrees, then redressability will
always exist. Redressability requires that the court be able to
afford relief through the exercise of its power, not through the
persuasive or even awe-inspiring effect of the opinion
explaining the exercise of its power.
3 On their own, neither Judge Dennis’s Opinion nor Judge Duncan’s
Opinion garners a majority of the court to find standing for the equal protection claim.
Combining the two opinions, however, a majority concludes there is standing. I thus
address both opinions.
4
Don’t overlook the ellipsis—it obscures something critical. The replaced
language was not referring to a “state court” that might follow the federal decision, but to
“the President and other executive and congressional officials.” Franklin, 505 U.S. at 803.
That lawsuit challenging a decennial reapportionment of congressional seats was brought
against the Secretary of Commerce, who was certainly bound by the judgment, and the
question was whether a ruling against that Cabinet member who oversaw the census could
influence the reapportionment even though the President had ultimate policymaking
authority in the executive branch. Holding that the head of the relevant cabinet agency
could be sued was hardly extraordinary. What is extraordinary—in fact unprecedented—
is to find standing based on the chance that another court might follow the federal decision
not because it has to but because it might want to.
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Franklin, 505 U.S. at 825 (Scalia, J., concurring in part and in the judgment).
It therefore is not enough that the family court judge has indicated he might,
or even will, follow what the federal court decides.
This court has no authority to resolve whether the ICWA-mandated
burden of proof will apply in the Y.R.J. adoption. The binding effect of a legal
decision—in standing lingo, its ability to redress an injury—must flow from
the judgment itself. Id; see also United States v. Juvenile Male, 564 U.S. 932,
937 (2011) (per curiam) (rejecting the notion that a case could be justiciable
because “a favorable decision in this case might serve as useful precedent for
respondent in a hypothetical [future] lawsuit”). But the Brackeens would
come up short even if a decision’s precedential effect could establish
redressability. Texas courts do not have to follow the decisions of lower
federal courts on questions of federal law.5 Penrod Drilling Corp., 868 S.W.2d
at 296; see also Arizonans for Official English v. Arizona, 520 U.S. 43, 58 n.11
(1997) (rejecting as “remarkable” the idea that a state court must follow the
precedent of lower federal courts); Lockhart v. Fretwell, 506 U.S. 364, 375–76
(1993) (Thomas, J., concurring) (explaining that “neither federal supremacy
nor any other principle of federal law requires that a state court’s
interpretation of federal law give way to a (lower) federal court’s
interpretation”).
The bottom line is that both before and after the district court held
ICWA unconstitutional, the Texas judge in the Y.R.J. adoption case (or any
5
Apparently recognizing this problem, the Brackeens argue that “if the Supreme
Court affirmed, all courts would be bound by that decision.” En Banc Brief of Individual
Plaintiffs 63. The argument ignores the principle explained above that redressability must
come from the judgment itself as opposed to the precedential force an opinion may have.
And there is another problem with this argument, one again recognized by Justice
Scalia. Standing is determined at the outset of a lawsuit, and no one then knows whether
the case will be one of the rare ones that makes it to the Supreme Court. Lujan v. Defenders
of Wildlife, 504 U.S. 555, 570 n.5 (1992) (explaining that “standing is to be determined as
of the commencement of suit” and “at that point it could certainly not be known that the
suit would reach this Court”). If standing depended on whether the Supreme Court
granted cert, then a cert denial would wipe away the years of litigation in the lower federal
courts.
5
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other) could come out either way on an equal protection claim. Indeed, the
state court judge has already ruled on some of the constitutional claims
presented here. See In re Y.J., 2019 WL 6904728, at *1 (Tex. App.—Fort
Worth, Dec. 19, 2019) (noting family court’s holding that ICWA violated the
anticommandeering doctrine). A petition challenging that ruling is pending
with the Supreme Court of Texas. See In re Y.J., Tex. S. Ct. No. 20-0081
(petition available at 2020 WL 750104). Some of the issues the petition asks
the state high court to resolve will sound familiar: whether ICWA was
“lawfully enacted by Congress” and whether it “discriminate[s] on the basis
of race.” Id. at 9, 13. What we think about those same issues will have no
binding effect on the state courts that get to resolve the adoption, whether
that be the state supreme court or the family court judge. That irrefutable
point means our ruling on the lawfulness of ICWA preferences cannot
redress the plaintiffs’ injury.
One might wonder if the advisory nature of this case doesn’t always
characterize declaratory judgments. After all, “ordinarily a case or judicial
controversy results in a judgment requiring award of process of execution to
carry it into effect.” Fidelity Nat’l Bank & Tr. Co. v. Swope, 274 U.S. 123, 132
(1927). To be sure, there is an advisory flavor to all declaratory actions: they
resolve rights in a future suit that has not yet fully materialized. Concerns
that declaratory judgments were advisory led the Supreme Court to refuse to
hear some claims for declaratory relief before the enactment of the
Declaratory Judgment Act of 1934. Willing v. Chi. Auditorium Ass’n, 277 U.S.
274, 286–89 (1928) (Brandeis, J.) (explaining that deciding whether a lessee
would have violated a lease by demolishing a building before the demolition
occurred would be a “declaratory judgment[, which] relief is beyond the
power conferred upon the federal judiciary”); Liberty Warehouse Co. v.
Grannis, 273 U.S. 70, 76 (1927) (holding there was no jurisdiction over claim
under Kentucky’s declaratory-judgment law). But see Nashville, Cent. & St.
Louis Ry. v. Wallace, 288 U.S. 249, 258, 264–65 (1933) (holding that federal
courts had jurisdiction over claim brought under state declaratory-judgment
law).
6
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What saves proper declaratory judgments from a redressability
problem—but is lacking here—is that they have preclusive effect on a
traditional lawsuit that is imminent.6 See 10B Wright et al., supra,
§ 2771 (“A declaratory judgment is binding on the parties before the court
and is claim preclusive in subsequent proceedings as to the matters declared
. . . .”); accord Restatement (Second) of Judgments § 33. Take
an insurance coverage dispute, which was the nature of the case upholding
the federal Declaratory Judgment Act and remains the prototypical
declaratory action today. Aetna Life Ins. Co. v. Haworth, 300 U.S. 227 (1937).
A federal court’s declaration, in a case between the insurer and insured, of
whether there is coverage will bind those parties in a subsequent lawsuit
seeking to recover on the policy. See id. at 239, 243–44. That “definitive
determination of the legal rights of the parties” is what allows declaratory
judgments in federal court. Id. at 241. To be justiciable, a declaratory
judgment must seek “specific relief through a decree of a conclusive
character.” Id.; accord MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118, 127
(2007). In contrast, our resolution of the equal protection question will
conclude nothing.
A leading federal procedure treatise recognizes that preclusive effect
is what separates a permissible declaratory judgment from an impermissible
advisory opinion:
The federal Declaratory Judgment Act provides that a
declaratory judgment shall have the force and effect of a final
judgment or decree. The very purpose of this remedy is to
establish a binding adjudication that enables the parties to enjoy
the benefits of reliance and repose secured by res judicata.
Denial of any preclusive effect, indeed, would leave a
6
The more common standing problem for declaratory judgments is whether the
second lawsuit “is of sufficient immediacy and reality.” See 10B Charles Alan
Wright et al., Federal Practice & Procedure § 2757 (4th ed. 2020). That
is part of standing’s injury requirement, which requires an “actual or imminent” harm.
Lujan, 504 U.S. at 560 (1992) (quotations omitted). The redressability problem this
request for declaratory relief poses is less common but no less fundamental.
7
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procedure difficult to distinguish from the mere advisory
opinions prohibited by Article III.
18A Wright et al., supra, § 4446. This requirement explains why you
will not find a declaratory judgment that lacks preclusive effect.
This case will be the first. There is no mutuality of parties, nor is the
state court judge who will decide Y.R.J.’s case a party. The Brackeens have
suggested that a ruling in this federal case would bind the Navajo Nation in
state court. That is not true for multiple reasons. For starters, the Navajo
Nation was not a party in the district court (it intervened on appeal), so
standing on that basis would not have existed when the suit was filed or even
when judgment was entered. See Lujan, 504 U.S. at 570 n.5 (“[S]tanding is
to be determined as of the commencement of suit.”). 7 Relatedly, it is
doubtful that issue preclusion applies to a party that does not litigate in the
trial court. Apart from these defects relating to the timing of Navajo Nation’s
entering this lawsuit, issue preclusion does not usually apply to pure
questions of law like whether ICWA’s preferences violate the Fifth
Amendment. John G. & Marie Stella Kenedy Mem. Found. v. Dewhurst, 90
S.W.3d 268, 288 (Tex. 2002) (explaining that “[d]eterminations of law are
not generally given preclusive effect” in refusing to give effect to federal
court ruling interpreting old land grant under Mexican civil law); see also In
re Westmoreland Coal Co., 968 F.3d 526, 532 (5th Cir. 2020);
Restatement (Second) of Judgments § 29(7) (1982); 18
Wright et al., supra, § 4425, at 697-701 (all recognizing same principle).
This ordinary reluctance to give preclusive effect to questions of law becomes
even stronger when, as here, the two cases are in different forums and neither
7 Lujan is right on point. The plaintiff sought to establish redressability by arguing
that “by later participating in the suit” two federal agencies “created a redressability (and
hence a jurisdiction) that did not exist at the outset.” Id. at 569 n.4. That argument did
not work because “[t]he existence of federal jurisdiction ordinarily depends on the facts as
they exist when the complaint is filed.” Id. (quoting Newman-Green, Inc. v. Alfonzo-Larrain,
490 U.S. 826, 830 (1989)). Any claim of postfiling redressability is even weaker here
because Navajo Nation did not intervene until the appeal.
8
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jurisdiction’s highest court has resolved the issue. Restatement
(Second) of Judgments § 29(7) cmt. i.
Judge Duncan’s Opinion states the plaintiffs need only show that
the “practical consequences” of a ruling by this court would “significantly
increase the likelihood of relief.” Duncan Op. at 20. Note the opinion does
not say—and can’t say because no case does—that redressability can be met
when the “practical consequence” is convincing a state court judge to follow
our lead. That distinction is critical. As I have recounted, state courts have
no obligation to follow a lower federal court’s ruling on federal law. In
contrast, the executive branch officials sued in cases like Franklin would be
bound in later litigation by the federal court’s declaratory judgment. 505 U.S.
at 803 (recognizing that the Commerce Secretary’s role in “litigating [the]
accuracy” of the census meant that declaratory relief against her would
redress plaintiff’s injuries). The Franklin redressability dispute was about
whether the Cabinet member being sued had sufficient influence over the
challenged policy even though the President had the ultimate say (as is always
the case). On that question, a substantial likelihood that the Commerce
Secretary could influence the census conducted by the department she
headed established redressability. 505 U.S. at 803 (recognizing that it was
the Commerce Secretary’s “policy determination concerning the census”
that was being challenged); see also supra note 4. Franklin’s unremarkable
reasoning is why there is redressability for the APA claims—a declaratory
judgment against the Interior Secretary would bind her when it comes to
enforcing the department’s challenged regulations.
But contrary to Judge Duncan’s Opinion, the Plaintiffs’ standing
to challenge regulations cannot bootstrap the claims challenging ICWA’s
statutory preferences into federal court. DaimlerChrysler Corp. v. Cuno, 547
U.S. 332, 352 (2006) (“[O]ur standing cases confirm that a plaintiff must
demonstrate standing for each claim he seeks to press.”). Even without a
regulation requiring “clear and convincing” evidence to justify departing
from the preferences, the statutory preferences remain and must be applied
by state court judges unless they hold them unconstitutional. The benefit the
9
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individual Plaintiffs would receive from a declaration that the “clear and
convincing evidence” regulation is invalid establishes redressability for the
APA claim challenging that regulation; it does not show how a declaration
that the underlying statutory preferences are unconstitutional would redress
plaintiffs’ injuries. But see Duncan Op. at 21–22.
Judge Duncan’s second stab at redressability also improperly
cross-pollinates standing among different claims. Redressability arising from
a declaration that any obligations the placement preferences impose on child
welfare officials violate anti-commandeering principles at most establishes
standing for that “particular claim[],” Allen v. Wright, 468 U.S. 737, 752
(1984), not the equal protection claim that seeks to declare unlawful the
preferences as they apply in state court proceedings. But see Duncan Op. at
21–22. And the statutory preferences remain on the books regardless of
federal funding based on ICWA compliance.8 But see id. at 21.
The final redressability theory in Judge Duncan’s Opinion is that
the “requested relief would make the adoptions less vulnerable to being
overturned” because it “would declare unenforceable the collateral attack
provisions themselves and the underlying grounds for invalidity.” Duncan
Op. at 21 (citing 25 U.S.C. §§ 1911-1914). This again mixes and matches
claims against different provisions instead of requiring the plaintiffs to
“demonstrate standing separately” for each claim. Friends of the Earth, Inc.
v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 185 (2000). More fundamentally,
it brings us back to where I started: no state court judge has to follow what we
say about ICWA. Consequently, even if standing to challenge the collateral
review provisions somehow transfers to support standing for challenging the
separate provisions establishing the preferences in the first place, no state
court has to follow a “ruling” we make about the collateral review provisions.
8 Chief Judge Owen also correctly notes that the funding issue “was not raised
or briefed in the district court or this court.” Owen Op. at 5. Nor is it clear how the
individual plaintiffs, as opposed to the States which cannot assert a Fifth Amendment
claim, are injured by the funding issue.
10
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To a state court judge, our “ruling” is nothing more than pontifications
about the law. Perhaps our view persuades the state court, perhaps not.
So both of the opinions that find standing for the equal protection
claim end up basing that view, at least in part, on the possibility that a Texas
judge might decide to follow our view of the law. Think about the
consequences of this unprecedented view of standing. A plaintiff need only
find a state court judge who says she would defer to a federal court ruling on
the difficult constitutional issue she is facing. Presto! A plaintiff could
manufacture standing for a federal lawsuit even when a declaratory judgment
would not have preclusive effect on any parties to the federal suit. Talk about
upsetting the state/federal balance.
This license to allow outsourcing of traditional state court matters to
federal court brings me back to the opening point. To supposedly vindicate
federalism, we offend it by deciding questions that state court judges are
equipped to decide and have for decades—with the Supreme Court having a
chance to review those rulings. See, e.g., Adoptive Couple v. Baby Girl, 570
U.S. 637 (2013) (case arising in South Carolina courts); cf. Moore v. Sims, 442
U.S. 415, 418, 434–35 (1979) (holding that Younger abstention applies to
family law cases). That we disregard the limits of federal jurisdiction to reach
out and decide issues that are raised directly in adoption cases makes our lack
of faith in our state court colleagues even more troubling. Why aren’t they
capable of deciding these issues that are squarely before them? Any historical
and institutional concerns about state courts’ willingness to vindicate federal
constitutional rights are lessened when a federal statute is being challenged.
If anything, state court judges would be more receptive to concerns, like the
allegations plaintiffs raise here, that a federal law is interfering with
constitutional protections for States and individuals.
If the case-or-controversy requirement means anything, it prevents a
federal court from opining on a constitutional issue on the mere hope that
some judge somewhere may someday listen to what we say. No limitation on
Article III is more fundamental than our inability to issue such an advisory
opinion.
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II.
A.
That brings us to the most tragic irony of today’s opinions. After more
than two centuries of courts’ recognizing sweeping federal power over Indian
affairs when that power was often used to destroy tribal life, our court comes
within a whisker of rejecting that power when it is being used to sustain tribal
life. It would be news to Native Americans that federal authority to wage war
against Indian nations, to ratify treaties laying claim to more than a billion
acres of Indian land, to remove Indian communities to reservations, and to
establish schools aimed at “civilizing” Indian pupils does not reach the
Indian family. See United States v. Lara, 541 U.S. 193, 201–04 (2004); 1
Cohen’s Handbook of Federal Indian Law §§ 1.01–03.
Contrary to what a near-majority of our court concludes, the same power
Congress once relied on to tear Indian children from Indian homes authorizes
Congress to enlist state courts in the project of returning them.
Two centuries of federal domination over Indian affairs are enough to
sustain ICWA’s provisions regulating state domestic relations proceedings.
Congress has “plenary and exclusive” authority “to legislate in respect to
Indian tribes.” Lara, 541 U.S. at 200. This “broad power,” White Mountain
Apache Tribe v. Bracker, 448 U.S. 136, 142 (1980), is found in Article I, which
authorizes Congress to “regulate commerce . . . with the Indian tribes.”
U.S. Const. art. I, § 8. The Indian Commerce Clause “accomplishes a
greater transfer of power from the States to the Federal Government than
does the Interstate Commerce Clause.” Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 62 (1996).
Judge Dennis well articulates how federal supremacy in the field
of Indian affairs grew out of the Founding generation’s understanding of the
relationship between the new nation and tribes. From the outset, the
Continental Congress dealt with Indian tribes just as it did foreign nations,
wielding an indivisible bundle of powers that encompassed war, diplomacy,
and trade. En Banc Brief for Professor Gregory Ablavsky in Support of
Defendants-Appellants and Reversal at 5–6. But under the Articles of
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Confederation, some states claimed much of the same authority, leaving the
state and federal governments jostling for control over Indian relations.
Gregory Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L.J. 1012,
1021–22 (2015) (discussing Articles of Confederation of 1781,
art. IX, para. 4). The Constitution solved this predicament by making federal
authority over Indian commerce, treatymaking, and territorial administration
exclusive. Id. The national government soon claimed, with the apparent
assent of state leaders, undivided power over Indian affairs. Id. at 1041–44.
Dennis Op. at 7–13.
The Framers grounded federal power over Indian affairs in both the
explicit constitutional text and in implicit preconstitutional understandings
of sovereignty.9 Brief of Indian Law Scholars as Amici Curiae in Support of
Defendants-Appellants at 1. They viewed relations between the United
States and Indian tribes as governed by the law of nations. Ablavsky, supra,
at 1059–67. Many early treaties embraced the idea that the United States, as
the more powerful sovereign, owed a duty of protection to tribes. Brief of
Indian Law Scholars, at 1–2 (collecting examples). And the Supreme Court
emphasized that this responsibility for Indian welfare imbued the federal
government with immense power at the expense of the states. See, e.g.,
Worcester v. Georgia, 31 U.S. 515, 560–61 (1832); United States v. Kagama, 118
U.S. 375, 384 (1886); United States v. Rickert, 188 U.S. 432, 437–38 (1903).
How far does this power extend? The Supreme Court has upheld
federal authority to enact special criminal laws, in the name of “continued
guardianship,” affecting U.S. citizens who are Indian tribe members. United
States v. Nice, 241 U.S. 591, 595–99 (1916) (construing the General Allotment
9
Just as the Supreme Court has stressed that background principles of state
sovereign immunity inform interpretation of the Eleventh Amendment, Seminole Tribe, 517
U.S. at 72, the Court has recognized the relevance of the historical context from which the
plenary federal Indian power emerged. See Lara, 541 U.S. at 201 (tracing federal authority
over Indian affairs to “the Constitution’s adoption of preconstitutional powers necessarily
inherent in any Federal Government”); Morton v. Mancari, 417 U.S. 535, 551–53 (1974)
(“The plenary power of Congress to deal with the special problems of Indians is drawn
both explicitly and implicitly from the Constitution itself.”).
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Act of 1887). Congress may violate treaty obligations in its disposal of tribal
property, Lone Wolf v. Hitchcock, 187 U.S. 553, 564, 567–68 (1903) (validating
congressional allotment in conflict with treaty between the United States and
Kiowa and Comanche Tribes); unilaterally determine tribal membership for
the purposes of administering tribal assets, Del. Tribal Bus. Cmte. v. Weeks,
430 U.S. 73, 84–86 (1977) (upholding statute appropriating award made by
Indian Claims Commission); exercise eminent domain over tribal lands,
Cherokee Nation v. S. Kan. Ry. Co., 135 U.S. 641, 656–67 (1890) (upholding
legislation granting railroad right of way through Indian land); and single out
Indian applicants for preferred hiring in federal jobs, Mancari, 417 U.S. at
551–55 (sustaining constitutionality of Indian Reorganization Act of 1934). 10
Where do the states stand in relation to the “plenary and exclusive”
federal power over Indian affairs? They are “divested of virtually all
authority over Indian commerce and Indian tribes.” Seminole Tribe, 517 U.S.
at 62. The states, in ratifying the Constitution, ceded to Congress “the
exclusive right to regulate . . . intercourse with the Indians,” Worcester, 31
U.S. at 590, as clearly as the states gave Congress sole power to “coin money,
establish post offices, and declare war,” id. at 580–81. Even when federal
policy favoring state control over Indian affairs reached its height, Congress
10
The Supreme Court has recognized the extraordinary breadth of federal power
in another area where Congress wields plenary authority: immigration. See Michael Doran,
The Equal-Protection Challenge to Federal Indian Law, 6 U. Pa. J. L. & Pub. Aff. 1, 34–
42 (2020). The foundational cases recognizing plenary federal authority over immigration
and Indian affairs were decided just three years apart and rely on similar reasoning.
Compare Chae Chan Ping v. United States, 130 U.S. 581 (1889), with Kagama, 118 U.S. at
375 (1886); see also Doran, supra, at 34–36 (noting similarities in the reasoning of the cases).
There is also symmetry in the scope of federal power over these two subjects. Just
as limited rational-basis review governs classifications involving tribes, the immigration
power allows the federal government to discriminate among noncitizens in a way that states
may not. Compare Mathews v. Diaz, 426 U.S. 67, 79–80 (1976) (Congress may withhold
Medicare eligibility from certain noncitizens), with Graham v. Richardson, 403 U.S. 365, 376
(1971) (states may not constitutionally deny welfare benefits to certain noncitizens); see also
Doran, supra, at 36–39 & n.193 (drawing this comparison). And because “the regulation of
aliens is so intimately blended and intertwined with responsibilities of the national
government,” “[a]ny concurrent state power that may exist is restricted to the narrowest
of limits.” Hines v. Davidowitz, 312 U.S. 52, 66–68 (1941).
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withheld from the states “general civil regulatory powers . . . over reservation
Indians.” Bryan v. Itasca Cty., 426 U.S. 373, 390 (1976) (interpreting Pub. L.
280); Cohen’s § 1.06 & n.32.
Some examples illustrate the limits of state authority to regulate
Indian affairs even in core areas of state power like criminal law and taxation.
Without Congress’s blessing, states cannot exercise criminal jurisdiction
over Indian country. See Washington v. Confederated Bands and Tribes of the
Yakima Indian Nation, 439 U.S. 463, 470–71 (1979) (discussing federal
authorization of state jurisdiction under Pub. L. 280); United States v. John,
437 U.S. 634, 649–54 (1978) (holding state criminal jurisdiction precluded by
Major Crimes Act of 1885); Kagama, 118 U.S. at 379–80. Congress can
exempt Indians from state property taxes. Bd. of Comm’rs of Creek Cty. v.
Seber, 318 U.S. 705, 715–18 (1943). Even when Congress has not legislated,
exclusive federal authority in the domain of Indian affairs may preempt state
regulation. McClanahan v. State Tax Comm’n of Ariz., 411 U.S. 164, 165
(1973) (invalidating state tax on tribe member’s income earned on
reservation); Bracker, 448 U.S. at 150–52 (striking down state tax on
commercial activities of non-Indians on Indian land).
Judge Duncan’s Opinion proclaims ICWA a novel exercise of
congressional power because it interferes with state domestic relations
proceedings. But as Judge Dennis recounts, the federal government has
been a constant, often deleterious presence in the life of the Indian family
from the beginning. And, as will be discussed, ICWA is hardly the only
statute to impose federal standards on state courts.
Congress’s interest in the destiny of Indian children is older than the
Republic itself. The Continental Congress viewed Indian education as a
wartime strategy, authorizing a grant to Dartmouth College with the hope
that bringing Indian students to the school would deter any possible attack by
British-allied tribes. Matthew L.M. Fletcher & Wenona T. Singel, Indian
Children and the Federal-Tribal Trust Relationship, 95 Neb. L. Rev. 885, 911
(2017). Following Independence, more than one hundred treaties provided
for Indian education. Brief of Indian Law Scholars, at 4. But early federal
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efforts to offer voluntary education programs morphed into a “coercive and
destructive” system of boarding schools designed to assimilate Indian
children. Matthew L.M. Fletcher, Principles of Federal
Indian Law § 3.6 (1st ed. 2017); Brief of Ablavsky, at 20. The federal
government instituted its “civilization” policy by force, punishing Indian
families that resisted turning over their children and hunting down the pupils
who escaped. Fletcher, Federal Indian Law § 3.6. At these
schools, students were beaten for speaking their native languages.
Cohen’s § 1.04; Dennis Op. at 21–24. While these practices have abated,
federal involvement in Indian schooling has not. Under today’s federal
policy of Indian self-determination, Congress provides substantial funding
for Indian education and continues to operate some schools with “tribal input
and . . . tribal control.” Fletcher & Singel, supra, at 964; see also Brief of
Indian Law Scholars, at 4.
In the view of Judge Duncan’s Opinion, this narrative sheds little
light on whether Congress can set standards for state adoptions involving
Indian children because no Supreme Court decision or “founding-era
congressional practice” explicitly blesses federal intervention in state
domestic relations proceedings. Duncan Op. at 2, 29. But adoption as we
know it today did not exist at common law and did not become the subject of
state legislation until the mid-nineteenth century. Stephen B. Presser, The
Historical Background of American Adoption Law, 11 J. Fam. L. 443, 443
(1971). It would have been “anachronistic . . . and bizarre,” in the words of
one amicus, for the founding-era Congress to attempt legislative interference
with state proceedings that would not exist for another eight decades. Brief
of Ablavsky, at 16; see also Brown v. Bd. of Educ., 347 U.S. 483, 489–90 (noting
that the history of the Fourteenth Amendment was “inconclusive” on the
issue of school segregation because “[i]n the South, the movement toward
free common schools, supported by general taxation, had not yet taken hold”
at the time of enactment). Given that “at least during the first century of
America’s national existence . . . Indian affairs were more an aspect of
military and foreign policy than a subject of domestic or municipal law,” it
should come as no surprise that the focus of the broad federal power over
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Indian affairs has shifted over time. Lara, 541 U.S. at 200 (internal citation
omitted).
Still, Judge Duncan’s Opinion declares ICWA—as a “federal
Indian law [that] governs states’ own administrative and judicial
proceedings” for domestic relations—to be highly “unusual,” and finds no
historical analogue for this (highly specific) category of legislation. Duncan
Op. at 2, 34. But while family court proceedings typically are governed by
state law, they are not a “no fly zone” for federal interests. See Brief of Casey
Family Programs, at 24–26 (discussing federal laws that apply in domestic
relations cases). Take the Servicemember’s Civil Relief Act. 50 U.S.C. §§
3901–4043. The law sets rules governing child custody proceedings in state
courts by, among other things, limiting the court’s consideration of a
servicemember’s deployment when determining custody. See id. §§ 3931,
3938. In asserting a federal interest in family court proceedings, the
Servicemember’s Civil Relief Act is not unique. To further the federal
government’s treatymaking and foreign relations powers, the International
Child Abduction Remedies Act charges state courts with administering the
Hague Convention on the Civil Aspects of International Child Abduction to
ensure “prompt return” of abducted children. See 28 U.S.C. §§ 9001–03.
And Judge Higginson cites several examples of federal laws that
preempt state domestic relations law. Higginson Op. at 2-3 (citing cases
involving ERISA, the Railroad Retirement Act, the National Service Life
Insurance Act, and Homestead Act). If these statutes permissibly “govern[]
states’ own administrative and judicial proceedings,” Duncan Op. at 2, why
would Congress lack authority to do the same through its “plenary and
exclusive” power over Indian affairs?
When Congress enacted ICWA, it declared the removal of Indian
children from their homes by state officials “the most tragic and destructive
aspect of American Indian life today.” See H.R. Rep. No. 95-1386, at 9
(1978). Family-separation policies had “contributed to a number of
problems, including the erosion of generations of Indians from Tribal
communities, loss of Indian traditions and culture, and long-term emotional
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effects on Indian children caused by the loss of their Indian identity.” Indian
Child Welfare Act Proceedings, Final Rule, 81 Fed. Reg. 38,864, 38, 780
(June 14, 2016) (citing Hearing Before the Subcommittee on Indian Affairs of the
Senate Comm. on Interior & Insular Affairs on Problems that Am. Indian
Families Face in Raising Their Children & How These Problems Are Affected by
Fed. Action or Inaction, 93 Cong., 2d Sess., at 1–2, 45–51 (1974)). Although
ICWA can never heal these wounds, it sought to stanch their bleeding. As
the culmination of extensive federal involvement in the education and
welfare of Indian children, the law falls well within the broad congressional
power over Indian affairs.
B.
This leads to today’s final irony. Judge Duncan’s Opinion
overrides the plenary federal power over Indian affairs, with its deep textual
and historical roots, based on a principle that finds support in neither text nor
history: the notion that the Constitution prohibits the federal government
from granting preferences to tribe members. Rather than credit copious
originalist evidence of the sweeping federal power over Indian affairs, Judge
Duncan’s Opinion adopts the atextual and ahistorical argument that the
Fifth Amendment’s implicit equal protection guarantee strips Congress of
the power to enact tribal preferences. Duncan Op. at 71; see Bolling v. Sharpe,
347 U.S. 497, 499 (1955) (recognizing that the Fourteenth Amendment’s
guarantee of “‘equal protection of the laws’ is a more explicit safeguard of
prohibited unfairness” than the Fifth Amendment’s Due Process Clause).
That is nothing new. Originalism usually goes AWOL when the issue is
whether the government may grant preferences to historically disadvantaged
groups. See, e.g., Eric J. Segall, Originalism as Faith 127–30
(2018); Cass R. Sunstein, Radicals in Robes 131–42 (2005);
Steven G. Calabresi & Gary Lawson, The Rule of Law as a Law of Law, 90
Notre Dame L. Rev. 483, 490–91 (2014); Michael B. Rappaport,
Originalism and the Colorblind Constitution, 89 Notre Dame L. Rev. 71,
76 (2013); Stephen M. Griffin, Rebooting Originalism, 2008 U. Ill. L. Rev.
1185, 1202–03; Jed Rubenfeld, Affirmative Action, 107 Yale L.J. 427, 430–
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32 (1997); Eric Schnapper, Affirmative Action and the Legislative History of the
Fourteenth Amendment, 71 Va. L. Rev. 753, 754 (1985).11
Ignoring the lack of historical support for a constitutional ban on
federal preferences to historically-disadvantaged groups is especially flagrant
in light of 200-plus years of jurisprudence recognizing vast federal power
over Indian affairs. As that authority flows in part from the federal
government’s plenary power over foreign relations, there is nothing unusual
or unconstitutional about exercising it to grant preferences. Preferring some
nations over others—through alliances, aid, and treaties, among other
things—is the essence of foreign policy. That’s why a preference for tribe
members “does not constitute racial discrimination.” Mancari, 417 U.S. 553;
see Bethany R. Berger, Savage Equalities, 94 Wash. L. Rev. 583, 627 (2019)
(“ICWA’s definition of ‘Indian children,’ which requires either tribal
citizenship or that the child has a tribal citizen parent and is eligible for
citizenship, rests squarely on the kind of ‘political rather than racial’
belonging of which Mancari approved.”). When Congress “single[s] out
[Indians] for special treatment,” it draws upon its expansive authority to
structure relations between the United States and another sovereign.
Mancari, 417 U.S. at 554–55 (describing Indians as “members of quasi-
sovereign tribal entities”); accord Fisher v. Dist. Court, 424 U.S. 382, 390
(1976) (explaining that the jurisdiction of a tribal court “does not derive from
[] race . . . but rather from the quasi-sovereign status of [tribes] under federal
law”). These preferences further centuries-old interests animating the
federal government’s “special relationship” with tribes. Mancari, 417 U.S.
at 541–42, 552.
11
Although Professor Rappaport recognizes that some court decisions rejecting the
constitutionality of affirmative action programs “engage[] in little discussion of the
constitutional text and almost no discussion of the history of the Fourteenth Amendment,”
he tries to push back on the prevailing scholarly view that the original understanding allows
states to pursue such policies. Rappaport, supra, at 76. But even he recognizes that the
historical case is much different when it comes to claims that the federal government
cannot adopt policies that prefer disadvantaged groups. Id. at 71 n.2, 73.
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C.
Why bother with these objections to the substantive aspects of today’s
opinions if, as I have explained, they will have all the binding effect of a law
review article?12 Because the procedural and substantive problems with this
case are two peas in the same activist pod.
Judicial restraint is a double victim of today’s tome. The court ignores
standing requirements that enforce “the proper—and properly limited—role
of the courts in a democratic society.” Warth v. Seldin, 422 U.S. 490, 498
(1975). And a willingness, even eagerness, to strike down a 43-year-old
federal law that continues to enjoy bipartisan support scorns the notion that
“declar[ing] an Act of Congress unconstitutional . . . is the gravest and most
delicate duty” that federal judges are “called on to perform.” Blodgett v.
Holden, 275 U.S. 142, 147–48 (1927) (Holmes, J., concurring).
Whither the passive virtues? Alexander Bickel, The Supreme Court
1960 Term Foreword: The Passive Virtues, 75 Harv. L. Rev. 40 (1961).
Whither the “conviction that it is an awesome thing to strike down an
act of the legislature approved by the Chief Executive”? Robert H.
Jackson, The Struggle for Judicial Supremacy: A Study
of a Crisis in American Power Politics 323 (Legal Classics ed.
2000).
Heaped, one must conclude, on the pile of broken promises that this
country has made to its Native peoples.
12
In addition to a federal court’s inability to create precedent for state courts, the
two equal protection challenges our court upholds will not even be precedential within our
circuit because we are affirming the district court’s ruling by an equally divided vote.
20