Brackeen v. Haaland

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.

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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).

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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.

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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).

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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

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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.

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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,

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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

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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

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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).

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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 with

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