Petition for Writ of Certiorari — Deb Haaland, Secretary of the Interior, et al., Petitioners v. Chad Everet Brackeen, et al.

Supreme Court briefSep 3, 2021

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No. XX-XX

In the Supreme Court of the United States

DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.,

PETITIONERS

CHAD EVERET BRACKEEN, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

APPENDIX TO THE

PETITION FOR A WRIT OF CERTIORARI

BRIAN H. FLETCHER

Acting Solicitor General

Counsel of Record

TODD KIM

Assistant Attorney General

EDWIN S. KNEEDLER

Deputy Solicitor General

FREDERICK LIU

Assistant to the Solicitor

General

RACHEL HERON

Attorney

Department of Justice

Washington, D.C. 20530-0001

SupremeCtBriefs@usdoj.gov

(202) 514-2217

TABLE OF CONTENTS

Page

Appendix A — Court of appeals en banc opinion

(Apr. 6, 2021) ............................................... 1a

Appendix B — Court of appeals panel opinion

(Aug. 9, 2019) .......................................... 397a

Appendix C — District court final judgment

(Oct. 4, 2018) ........................................... 463a

Appendix D — District court order granting in part

and denying in part the plaintiffs’

motions for summary judgment

(Oct. 4, 2018) ........................................... 464a

Appendix E — District court order denying the

defendants’ motions to dismiss

(July 24, 2018) ......................................... 523a

Appendix F — Constitutional and statutory

provisions ................................................ 572a

(I)

APPENDIX A

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 18-11479

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

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

[Filed:

Apr. 6, 2021]

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 4:17-CV-868

(1a)

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.

* JUDGE HO was recused and did not participate. JUDGE

WILSON joined the court after the case was submitted and did not

participate.

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.

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”

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.”).

See Part II(A)(1) of JUDGE DENNIS’S opinion and Part II of

JUDGE COSTA’S opinion.

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 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

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).

Compare Part II(B) of JUDGE DENNIS’S opinion with Part

III(A)(3) of JUDGE DUNCAN’S opinion.

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.

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 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

Compare Part II(A)(2)(a)(i) of JUDGE DENNIS’S opinion with

Part III(B)(1)(a)(iii) of JUDGE DUNCAN’S opinion.

Compare Part II(A)(2)(b) of JUDGE DENNIS’s opinion with Part

III(B)(1)(a)(v) of JUDGE DUNCAN’S opinion.

Compare Parts II(A)(2)(a)(ii) of JUDGE DENNIS’s opinion with

Part III(B)(2)(c) of JUDGE DUNCAN’S opinion.

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).

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).

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 nondelegation 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

Part II(C) of JUDGE DENNIS’S opinion is the en banc majority

opinion on this issue.

Part II(D)(2) of JUDGE DENNIS’S opinion is the en banc majority opinion on this issue.

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).

Part III(D)(3) of JUDGE DUNCAN’S opinion is the en banc majority opinion on this issue.

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.

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).

JAMES L. DENNIS, Circuit Judge:†1

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

†

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 inpart 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.

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 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 T RIBES (March 2020), https://www.

ncsl.org/research/state-tribal-institute/list-of-federaland-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,

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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 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:

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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.

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.,

12a

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, 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

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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 Foundingera 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.

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

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for the district court’s errors and omissions, the Plaintiffs now cite to several historical texts. The 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.

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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 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

16a

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).

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

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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 , 16071789: 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 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

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, 17811795, 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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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, 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.

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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 likeminded Federalists to Indian

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

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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.

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 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 103738, 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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Edling, A REVOLUTION IN FAVOR OF GOVERNMENT:

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 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.

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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 105354. 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.

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,

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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 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,

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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

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.

“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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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 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.

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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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.

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

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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 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,

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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 legislation sought to prevent abuses against Indians by non-Indians and states.

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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 nonIndian 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

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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.

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

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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 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 govern-

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ment 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 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.

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.

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

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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

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

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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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 FederalTribal 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

35a

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-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 “F RIENDS 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

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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 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,

37a

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.

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 neardestruction 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

38a

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 offreservation boarding schools, state courts and child welfare agencies became the primary 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 thirtyfive 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,

39a

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 nonIndian homes,” while in Minnesota in the early 1970s “90

percent of the adopted Indian children [were] in nonIndian 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. Fletcher,

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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.

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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) (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 offreservation 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.

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Holyfield, 490 U.S. at 34. 8

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:

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 adminis-

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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trative 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 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

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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.

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 pref-

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erences, 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 ef-

46a

fect.” 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 “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.

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VIII. The Instant Action

Parties

Plaintiffs

Plaintiffs in this action are the states of Texas, Louisiana, and Indiana, 9 (collectively, “State Plaintiffs”), and

seven individual Plaintiffs—Chad and Jennifer Brackeen (“the Brackeens”), Nick and Heather Libretti (“the

Librettis”), Altagracia Socorro Hernandez (“Hernandez”), and Jason and Danielle Clifford (“the Cliffords”)

(collectively, “Individual Plaintiffs”) (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

There are three federally recognized tribes in Texas: the

Yselta del Sur Pueblo, the Kickapoo Tribe, and the AlabamaCoushatta Tribe. There are four federally recognized tribes in

Louisiana: the Chitimacha Tribe, the Coushatta Tribe, the TunicaBiloxi Tribe, and the Jena Band of Choctaw Indians. There is one

federally recognized tribe in Indiana: the Pokagon Band of Potawatomi Indians.

48a

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 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

49a

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 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

50a

“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.

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

Nation’s motion to intervene as a defendant 10 (together

with Federal and Tribal Defendants, “Defendants”).

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

51a

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.

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.

The district court denied Plaintiffs’ substantive due process claim,

which Plaintiffs do not appeal.

52a

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

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 de-

53a

fendant,” 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 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).

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

54a

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.

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.

“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.

55a

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 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.

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.”).

56a

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 erected an actual barrier to companies already

providing cable services that otherwise would be immediately free to seek a statewide franchise. Id.; see also

57a

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 minorityowned 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

58a

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 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.

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)).

59a

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 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.,

60a

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

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, 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

61a

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.

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).

62a

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

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-orcontroversy 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.”).

63a

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.

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

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.

64a

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 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

65a

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).

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.

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 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

66a

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)).

67a

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.”). There-

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.

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.

68a

fore, 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.

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,

69a

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 anticommandeering doctrine. 20 See, e.g., New

York, 505 U.S. at 188 (stating that “[t]he Federal Gov-

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.

70a

ernment 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

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 the Constitution.”). We therefore address

separately whether ICWA is within the range of subject matter on

71a

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.

which Article I authorizes Congress to legislate and whether the law

violates the anticommandeering inquiry.

“[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.

72a

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 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

73a

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

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 re-

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dressing 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 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) (in-

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ternal 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 wellbeing 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, leaving

them . . . [a] dependent people, needing protection

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. . . .” (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; CO23

Numerous pieces of Indian fedHEN’S , supra, § 5.04.

eral legislation have been passed pursuant to this federal duty. 24 Indeed, we know of no court that has found

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).

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,

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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)); 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

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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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.

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

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.

We find it notable that, in enacting ICWA, Congress explicitly

contemplated whether it was constitutionally authorized to do so.

See H.R. REP. NO. 95-1386, at 13-15 (discussing the constitutionality of ICWA, including that ICWA falls within Congress’s plenary

power over Indian affairs); Rostker v. Goldberg, 453 U.S. 57, 64

(1981) (“The customary deference accorded the judgments of Congress is certainly appropriate when, as here, Congress specifically

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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

considered the question of the Act’s constitutionality.”). Though

this judgment is not dispositive, we grant it due deference. See

Perrin, 232 U.S. at 486 (“[I]n determining what is reasonably essential to the protection of the Indians, Congress is invested with

a wide discretion[.]”).

JUDGE DUNCAN contends that the principle that the federal

government may prevent states from interfering with federal policy toward the tribes does not apply here because ICWA does not

totally exclude states from Indian child custody proceedings. He

contends that ICWA instead “does the opposite of ‘excluding’ ” by

“leav[ing] many adoptions under state jurisdiction . . . while

imposing ‘Federal standards’ on those state proceedings.” DUNCAN, CIRCUIT JUDGE, OP. at 48 (citing §§ 1911(b) & 1902). But

JUDGE DUNCAN’s suggestion that ICWA “co-opts” the machinery

of state courts in service to the federal government is highly misleading. DUNCAN, CIRCUIT JUDGE, Op. at 49. Far from pressing

the states into federal service, ICWA minimizes any intrusion on

state sovereignty by permitting states to exercise some jurisdiction over Indian Child custody proceedings so long as the state

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As with the federal government’s dealings with any

other nation, the Constitution dictates that the government address relations with the Indian tribes on behalf

of the nation as a whole without state interference, be it

with respect to war making, peace treaties, or child custody practices.

Second, ICWA falls within the federal government’s

continuing trust relationship with the tribes, which includes a specific obligation to protect the tribes from the

states. We earlier recounted the arbitrary and abusive

child removal and assimilation practices that led Congress to conclude that it was necessary and proper for it

to enact ICWA. See supra Background Part IV-V; see

also Antoine, 420 U.S. at 203. Briefly stated, throughout the late nineteenth and well into the twentieth century, the federal government was intimately involved in

programs ostensibly to “educate” Indian children at offreservation schools that sought to imbue them with

white Christian values and permanently shed them of

courts respect the federal rights of Indian children, families, and

tribes. Section “1911(a) establishes exclusive jurisdiction in the

tribal courts for proceedings concerning an Indian child who resides or is domiciled within the reservation.” Holyfield, 490 U.S.

at 36 (internal quotation marks omitted) (emphasis added). And

while Section 1911(b) allows states to exercise some concurrent jurisdiction over cases involving “children not domiciled on the reservation,” it establishes that jurisdiction over such proceedings

still “presumptively” lies with the tribal courts. Id. at 36 (internal

quotation marks omitted) (emphasis added). This means that, except in limited circumstances, the case may remain in state court

only with the consent of the Indian child’s parents, custodian, and

tribe. See § 1911(b). This is all to say, that the statute allows

states to participate in an activity that is presumptively and could

wholly be reserved to the tribes or the federal government is an

indulgence of state interests, not an invasion thereof.

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and sever them from their tribal heritage. Although

the federal Government eventually discontinued this assimilationist policy, Congress found that abusive Indian

child custody practices continued at the state level, often

leading to the “wholesale” and unwarranted removal of

Indian children from their homes by state child welfare

agencies and adjudicatory bodies, see H.R. REP. NO. 951386, at 9; see also Indian Child Welfare Act of 1977:

Hearing Before the S. Select Committee on Indian Affs.,

95th Cong. 320 (1977) (statement of James Abourezk,

Chairman, S. Select Comm. on Indian Affs.) (describing

the massive removal as resulting in “cultural genocide”).

Congress heard and received extensive evidence on this

plundering of tribal communities’ children, including

testimony that the vast removal of Indian children from

their homes and communities constituted an existential

threat to tribes. See 124 Cong. Rec. 38,103 (1978) (statement of Minority sponsor Rep. Robert Lagomarsino)

(“For Indians generally and tribes in particular, the continued wholesale removal of their children by nontribal

government and private agencies constitutes a serious

threat to their existence as on-going, self-governing communities.”); see also H.R. REP. NO. 95-1386, at 9-10 (declaring that the removal of Indian children was a “crisis

of massive proportions,” representing “perhaps the

most tragic and destructive aspect of Indian life”).

After reviewing this testimony and evidence concerning the massive removal of Indian children from their

tribal communities by the states, Congress found that

“there is no resource that is more vital to the continued

existence and integrity of Indian tribes than their children”; “that an alarmingly high percentage of Indian

families are broken up by the removal, often unwarranted, of their children from them by nontribal public

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and private agencies”; and “that an alarmingly high percentage of such children are placed in non-Indian foster

and adoptive homes and institutions.”

25 U.S.C.

§ 1901(3)-(4). And Congress directly attributed this

threat to the states “exercising their recognized jurisdiction over Indian child custody proceedings through

administrative and judicial bodies,” observing that they

had “often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”

Id. § 1901(5).

Thus, ICWA also falls within Congress’s “plenary

powers to legislate on the problems of Indians” in order

to fulfill its enduring trust obligations to the tribes.

Antoine, 420 U.S. at 203. Indeed, the congressional

findings in the statute expressly invoke this “responsibility for the protection and preservation of Indian

tribes and their resources” and state “that the United

States has a direct interest, as trustee, in protecting Indian children.” 25 U.S.C. § 1901(2)-(3). The law was

intended to combat an evil threatening the very existence of tribal communities, and it would be difficult to

conceive of federal legislation that is more clearly aimed

at the Government’s enduring trust obligations to the

tribes. Moreover, it fulfills the government’s duty to

protect the tribes from the states by regulating relations

between the two—a power that the Framers specifically

intended that the Constitution bestow on the federal

government. 28 See CANBY, AMERICAN INDIAN LAW

The opposing opinion misapprehends the significance to our

analysis of the federal government’s history of removing Indian

children from their families and tribes to place them at off-reservation

boarding schools. See DUNCAN, CIRCUIT JUDGE, OP. at 50-51. In

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the view of the opposing opinion, that the boarding school policy

began in the latter half of the nineteenth century, and not the

Founding era, means that the federal government’s assimilation

policy is irrelevant in determining whether Congress was authorized to enact ICWA. This is squarely contrary to the Supreme

Court’s explicit direction that historical “practice [is] an important

interpretive factor even when the nature or longevity of that practice is subject to dispute, and even when that practice began after

the founding era.” Noel Canning, 573 U.S. at 525 (emphasis

added). But more importantly, JUDGE DUNCAN’S observation about

the start of the boarding school policy misses the point: Since the

Nation’s founding, the federal government has viewed itself as owing an affirmative duty to promote tribal welfare generally and to

provide for Indian children specifically, as well as having the power

to do so—obligations that arise under what is now described as a

trust relationship between the tribes and the government. See

Br. of Prof. Ablavsky at 20 (describing federal financing of placement of Indian children in Quaker homes during the Washington

administration); see also Fletcher, FEDERAL INDIAN LAW § 5.2.

This relationship, at one time, led the federal government to pursue misguided policies that harmed the tribes, including its efforts

at assimilating Indian children through the use of boarding schools

during the nineteenth and twentieth centuries. And decades after

the height of the federal government’s ill-founded promotion of Indian boarding schools, the states continued to perpetuate the destruction of tribal culture by removing massive numbers of Indian

children from the custody of their parents. See supra Background

Part IV-V. In the face of these abusive child welfare practices

and pursuant to the government’s trust duty to the tribes—which,

again, is rooted in the Nation’s Founding era—Congress enacted

ICWA to protect the tribes. Stated differently, Founding-era history confirms Congress’s “plenary power[]” and responsibility “to

legislate on the problems of Indians,” Antoine, 420 U.S. at 203, and

the history of Indian child removal demonstrates that the unwarranted breakup of Indian families was such a problem. Congress

was effectuating its trust obligations to the tribes when it acted to

halt the wrongful Indian child custody practices that had once been

carried out by the federal government and were continuing to be

practiced by states at the time of ICWA’s enactment, and this is

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§ 2.1 (“The central policy . . . was one of separating

Indians and non-Indians and subjecting nearly all interaction between the two groups to federal control.”).

Plaintiffs raise several arguments in favor of cabining Congress’s authority to redress the evils attending

state child welfare proceedings involving Indian children. We review their contentions and find them wanting.

First, seeking to surmount the mountain of case law

sustaining Congress’s plenary authority to regulate with

respect to Indians, Plaintiffs point out that the Court remarked that this power is “not absolute” in Delaware

Tribal Business Committee v. Weeks, 430 U.S. 73, 84

(1977). A cursory review of the cited authority reveals

that it affords no support to Plaintiffs’ position. The

above-quoted statement was made with regard to the

justiciability of a challenge to Congress’s “exercise of

control over tribal property.” Id. at 83. In other words,

the Court was addressing only whether it in fact had authority to adjudicate the dispute—not the extent of Congress’s authority to regulate Indian tribes. In any

event, the Court concluded that the controversy was justiciable and upheld the challenged enactment. Id. at

90. Delaware Tribal Business Committee in no way

shackles Congress’s authority to regulate Indian tribes.

Plaintiffs next contend that the meaning of commerce

in the Indian and Interstate Commerce Clauses is equivalent. Plaintiffs thus seek to import Interstate Commerce Clause jurisprudence into the Indian Commerce

exactly what the Constitution empowers the federal government to

do.

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Clause in order to limit Congress’s power under the latter; they argue that the latter clause does not authorize

ICWA because children are not “persons . . . in commerce” and child custody cases do not substantially affect commerce with Indian tribes. We find Plaintiffs’

construction of the Indian Commerce Clause unduly

cramped, at odds with both the original understanding

of the clause and the Supreme Court’s more recent instructions. See Printz, 521 U.S. at 905 (looking to “historical understanding and practice” as well as “the jurisprudence of this Court” to determine whether a federal enactment was constitutional). More fundamentally, the history, text, and structure of the Constitution

demonstrate that the federal Government, including

Congress, has plenary authority over all Indian affairs

and that this power is in no way limited to the regulation

of economic activity. And, as stated, Congress does not

derive its plenary power solely from the Indian Commerce Clause, but rather from the holistic interplay of

the constitutional powers granted to Congress to deal

with the Indian tribes as separate nations. See Ablavsky, Beyond the Indian Commerce Clause, supra at

1026.

The history refutes Plaintiffs’ attempt to equate the

Interstate and Indian Commerce Clauses. Indeed,

since the framing of the Constitution, “Indian ‘commerce’ [has] mean[t] something different” than “interstate commerce.” Id. The Framers debated and approved the Indian Commerce Clause separately from

the Interstate Commerce Clause, and, during ratification, the clauses were viewed as so distinct in content

that “no one during ratification interpreted the Indian

Commerce Clause to shed light on the Interstate . . .

Commerce Clause[], or vice versa.” Id. at 1027; see

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also Matthew L.M. Fletcher, ICWA and the Commerce

Clause, in THE INDIAN CHILD WELFARE ACT AT 30:

FACING THE FUTURE 32 (Fletcher et al. eds., 2009)

[hereinafter Fletcher, ICWA and the Commerce Clause].

Though both provisions use the term “commerce,” the

historical evidence from the time of the Constitution’s

framing indicates that interpreting “commerce” identically in the Interstate and Indian Commerce Clauses is

a “trap” that “would tend to obliterate the original meaning and intent of the Indian Commerce Clause.” Fletcher,

ICWA and the Commerce Clause, supra, at 31. Put

simply, “[c]ommerce with Indian tribes must be interpreted on its own terms rather than in the shadow of

. . . the Interstate Commerce Clause.” Ablavsky,

Beyond the Indian Commerce Clause, supra, at 1028,

1029 (noting that eighteenth century references to

“commerce” with Indians included the exchange of religious ideas with tribes and sexual intercourse with Indians); see also Fletcher, ICWA and the Commerce

Clause, supra at 8-9.

Legislation from the beginning of the Constitutional

era further demonstrates that the Constitution confers

synergistic and comprehensive powers on the federal

Government to manage relations with Indian tribes, regardless of whether the regulated activity is economic in

nature. As noted above, the Indian Intercourse Act of

1790 embraced many noneconomic subjects, including

the regulation of criminal conduct by non-Indians

against Indians. In enacting the law, the First Congress plainly conceived of its power to extend into regulation of noneconomic activity relating to Indian tribes.

See Jack M. Balkin, Commerce, 109 MICH. L. REV. 1, 2426 (2010) (discussing the Act and its successors and stating that “Congress clearly believed that it could reach

87a

both economic and noneconomic activity under the Indian Commerce Clause,” given that the Act reaches noneconomic criminal conduct, such as murder); see also

Akhil Reed Amar, America’s Constitution and the Yale

School of Constitutional Interpretation, 115 YALE L.J.

1997, 2004 n.25 (2006). Since then, Congress has repeatedly exercised its Indian affairs authority for matters

far beyond mere economic exchange. See, e.g., Indian

Health Care Improvement Act, 25 U.S.C. §§ 1601 et seq.;

Tribally Controlled Community College Assistance Act,

25 U.S.C. § 1801(7)(B).

Furthermore, “[t]he scope of federal power under the

Indian commerce clause has developed under Supreme

Court decisions differently than the powers over foreign

and interstate commerce.” COHEN ’S, supra, § 4.01[1][a].

The Court has explicitly underscored the distinction between the clauses, explaining that “the Indian Commerce Clause accomplishes a greater transfer of power

from the States to the Federal Government than does

the Interstate Commerce Clause.” Seminole Tribe,

517 U.S. at 62 (observing that, though “the States still

exercise some authority over interstate trade[, they]

have been divested of virtually all authority over Indian

commerce and Indian tribes”). In short, it is “well established that the Interstate Commerce and Indian Commerce Clauses have very different applications”; unlike

the former clause, which “is concerned with maintaining

free trade among the States,” “the central function of

the Indian Commerce Clause is to provide Congress

with plenary power to legislate in the field of Indian affairs.” Cotton Petroleum Corp. v. New Mexico, 490 U.S.

163, 192 (1989) (emphasis added); see also United States

v. Lomayaoma, 86 F.3d 142, 145 (9th Cir. 1996) (noting

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that the Indian Commerce clause “confers more extensive power on Congress than does the Interstate Commerce Clause”). And the Supreme Court has continually made clear that Congress’s Indian affairs power is

not limited to regulating economic activity. See Lara,

541 U.S. at 200 (affirming power of tribes to criminally

prosecute nonmembers); United States v. Holliday, 70

U.S. (3 Wall.) 407, 410-11, 416-17 (1865) (upholding under the Indian Commerce Clause a federal statute that

criminally sanctioned the sale of liquor to Indians, reasoning that the law “regulates the intercourse between

the citizens of the United States and [Indian] tribes,

which is another branch of commerce, and a very important one”); Worcester, 31 U.S. at 559 (explaining that

the array of Indian affairs powers conferred on Congress by the Constitution “comprehend all that is required for the regulation of our intercourse with the Indians”). Any contention that ICWA is beyond Congress’s authority to legislate with regard to Indian affairs is unfounded.

Alternatively, Plaintiffs argue that, even if the Constitution grants Congress plenary power with respect to

Indian affairs, ICWA nonetheless exceeds Congress’s

legislative authority because it reaches Indian children

who are not yet enrolled tribal members. We find no

merit in this argument. Pursuant to its Indian affairs

power, Congress has long regulated persons without

any tribal connection when their conduct affects Indians. See, e.g., Indian Intercourse Act, § 1, 1 Stat. 137

(requiring any person who seeks “to carry on any trade

or intercourse with the Indian tribes” to obtain a license

from the federal government); United States v. Mazurie, 419 U.S. 544, 556-58 (1975) (upholding federal

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criminal statute, passed pursuant to the Indian Commerce Clause and applied to non-Indians for conduct on

private, non-Indian land within a reservation). Indeed,

“Congress’ plenary powers to legislate on the problems

of Indians” often results in statutes that impact—and

are directly aimed at—non-Indians. Antoine, 420 U.S.

at 203; see also Dick v. United States, 208 U.S. 340, 357

(1908) (“As long as these Indians remain a distinct people, with an existing tribal organization, recognized by

the political department of the government, Congress

has the power to say with whom, and on what terms,

they shall deal . . . .”). This type of regulation has

been upheld repeatedly, even when it extends outside

the bounds of the reservation or Indian country. See,

e.g., United States v. Nice, 241 U.S. 591, 597 (1916) (“The

power of Congress to regulate or prohibit traffic in intoxicating liquor with tribal Indians within a state,

whether upon or off an Indian reservation, is well settled. It has long been exercised, and has repeatedly

been sustained by this court.”) (emphasis added);

United States v. Forty-Three Gallons of Whiskey, 93 U.S.

(3 Otto) 188, 195 (1876) (sustaining Congress’s power to

require forfeiture of liquor sold outside of Indian country by a non-Indian to a tribal member); Holliday, 70

U.S. (3 Wall.) at 416-17 (upholding statute that criminally sanctioned sale of liquor by a non-Indian to an Indian outside of Indian country); COHEN’S, supra, § 5.01[3]

(explaining that the Indian Commerce Clause comprehends “transactions outside of Indian country.”). Simply

put, Congress’s Indian affairs power does not hinge on

whether an entity affected by a regulation is a member

of an Indian tribe, and there is no authority in the case

law for the novel constraint on congressional power that

Plaintiffs proffer.

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JUDGE DUNCAN’s objections

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