Amicus Curiae Brief — Deb Haaland, Secretary of the Interior, et al., Petitioners v. Chad Everet Brackeen, et al.

Nos. 21-376, 21-377, 21-378, 21-380

IN THE

Supreme Court of the United States

DEB HAALAND, SECRETARY,

U.S. DEPARTMENT OF THE INTERIOR, et al.,

Petitioners,

v.

CHAD EVERET BRACKEEN, et al.,

Respondents.

CHEROKEE NATION, et al.,

Petitioners,

v.

CHAD EVERET BRACKEEN, et al.,

Respondents.

ON WRIT OF CERTIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIFTH CIRCUIT

BRIEF FOR 87 MEMBERS OF CONGRESS

AS AMICI CURIAE IN SUPPORT OF

FEDERAL AND TRIBAL DEFENDANTS

ALAN E. SCHOENFELD

Counsel of Record

CHARLES C. BRIDGE

MARISSA W. MEDINE

CASSANDRA MITCHELL

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich Street

New York, NY 10007

(212) 230-8800

alan.schoenfeld@wilmerhale.com

Caption Continued On Inside Cover

STATE OF TEXAS,

Petitioner,

v.

DEB HAALAND, SECRETARY,

U.S. DEPARTMENT OF THE INTERIOR, et al.,

Respondents.

CHAD EVERET BRACKEEN, et al.,

Petitioners,

v.

DEB HAALAND, SECRETARY,

U.S. DEPARTMENT OF THE INTERIOR, et al.,

Respondents.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES ..........................................iii

INTEREST OF AMICI CURIAE................................... 1

INTRODUCTION .............................................................. 1

ARGUMENT ....................................................................... 3

I.

CONGRESS HAD THE CONSTITUTIONAL

AUTHORITY TO ENACT ICWA. ................................... 3

II. ICWA DOES NOT VIOLATE THE

TENTH AMENDMENT OR THE ANTICOMMANDEERING DOCTRINE ..................................... 7

A. ICWA Is An Appropriate And

Respectful Exercise Of Congress’s

Plenary Power ....................................................... 7

B. ICWA Does Not Unconstitutionally

Commandeer State Officials ................................ 9

III. SECTION 1915(C) DOES NOT VIOLATE THE

NON-DELEGATION DOCTRINE .................................. 11

IV. ICWA’S PLACEMENT PREFERENCES DO

NOT VIOLATE EQUAL PROTECTION ......................... 13

A. Congress May, And Routinely Does,

Legislate On The Basis Of Tribal

Membership ......................................................... 13

B. Congress May, And Routinely Does,

Legislate For The Benefit Of Indians

Both On And Off Reservations ......................... 17

(i)

ii

TABLE OF CONTENTS—Continued

Page

C. ICWA’s Preference For “Other Indian

Families” and “Indian Foster Home[s]”

Is Consistent With Congress’s

Authority To Legislate For Indians

Generally .............................................................. 21

1.

Congress acts within its power in

distinguishing between Indians

and non-Indians in legislation intended to benefit Indians ............................ 22

2.

The preferences for “other Indian

families” and “Indian foster

home[s]” are narrowly tailored

to serve ICWA’s purpose of

protecting the best interests of

Indian children and Tribes ......................... 26

CONCLUSION ................................................................. 29

APPENDIX A: AMICI CURIAE MEMBERS

OF CONGRESS ......................................................... 1a

iii

TABLE OF AUTHORITIES

CASES

Page(s)

Adoptive Couple v. Baby Girl, 570 U.S. 637

(2013) ............................................................................ 16

Board of County Commisioners v. Seber,

318 U.S. 705 (1943) ................................................... 6, 7

Brackeen v. Haaland, 994 F.3d 249

(5th Cir. 2021)..................................................... passim

Brackeen v. Zinke, 338 F. Supp. 3d 514

(N.D. Tex. 2018) .............................................. 13, 14, 28

Carmicheal v. Rollins, 783 N.W.2d 763

(Neb. 2010)..................................................................... 8

Cherokee Nation v. Georgia, 30 U.S. 1 (1831) ................. 5

Cotton Petroleum Corp. v. New Mexico,

490 U.S. 163 (1989) ................................................... 4, 5

Crosby v. National Foreign Trade Council,

530 U.S. 363 (2000) ..................................................... 10

Dawavendewa v. Salt River Project

Agricultural Improvement & Power

District, 154 F.3d 1117 (9th Cir. 1998) ..................... 24

Delaware Tribal Business Commission v.

Weeks, 430 U.S. 73 (1977) .................................... 15, 22

Duro v. Reina, 495 U.S. 676 (1990) ................................. 24

Egelhoff v. Egelhoff ex rel. Breiner,

532 U.S. 141 (2001) ....................................................... 8

Garcia v. San Antonio Metropolitan Transit

Authority, 469 U.S. 528 (1985).................................... 7

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1 (1824) .............. 12

iv

TABLE OF AUTHORITIES—Continued

Page(s)

Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979) ............... 8

In re Adoption of Holloway, 732 P.2d 962

(Utah 1986) .................................................................. 16

In re Marriage of Bradley, 137 P.3d 1030

(Kan. 2006) ..................................................................... 8

Lone Wolf v. Hitchcock, 187 U.S. 553 (1903) ............... 1, 2

Metlakatla Indian Community, Annette

Islands Reserve v. Egan, 369 U.S. 45 (1962) ............ 6

Mississippi Band of Choctaw Indians v.

Holyfield, 490 U.S. 30 (1989) .............................. 16, 27

Morton v. Mancari, 417 U.S. 535 (1974) ............... passim

Morton v. Ruiz, 415 U.S. 199 (1974) ............................... 17

Murphy v. NCAA, 138 S. Ct. 1461 (2018) ...................... 10

Nestle USA, Inc. v. Doe, 141 S. Ct. 1931 (2021) .............. 1

New York v. United States, 505 U.S. 144 (1992) ............. 7

Oglala Sioux Tribe of Indians v. Andrus,

603 F.2d 707 (8th Cir. 1979) ...................................... 23

Oklahoms Tax Commission v. Citizen Band

Potawatomi Indian Tribe of Oklahoma,

498 U.S. 505 (1991) ....................................................... 2

Oliphant v. Suquamish Indian Tribe,

435 U.S. 191 (1978) ..................................................... 24

Perrin v. United States, 232 U.S. 478 (1914) ................. 18

Rostker v. Goldberg, 453 U.S. 57 (1981) ........................... 4

Seminole Nation v. United States, 316 U.S. 286

(1942) ............................................................................ 29

v

TABLE OF AUTHORITIES—Continued

Page(s)

Seminole Tribe of Florida v. Florida,

517 U.S. 44 (1996) ......................................................... 5

United States v. Antelope, 430 U.S. 641 (1977) ............. 14

United States v. Darby, 312 U.S. 100 (1941) .................... 7

United States v. Holliday, 70 U.S. 407 (1865) ............... 18

United States v. Kagama, 118 U.S. 375 (1886)................ 4

United States v. Lara, 541 U.S. 193 (2004) ............ 2, 3, 24

United States v. Lopez, 514 U.S. 549 (1995)..................... 4

United States v. Mazurie, 419 U.S. 544 (1975) .... 11, 12, 13

United States v. McGowan, 302 U.S. 535 (1938) ........... 17

United States v. Morrison, 529 U.S. 598 (2000) .............. 4

United States v. Quiver, 241 U.S. 602 (1916) ................. 12

United States v. Sandoval, 231 U.S. 28 (1913) ............ 3, 6

United States v. Sharpnack, 355 U.S. 286

(1958) ............................................................................ 12

United States v. Wheeler, 435 U.S. 313 (1978)........... 2, 14

Washington v. Confederated Bands & Tribes of

Yakima Indian Nation, 439 U.S. 463 (1979) ........ 2, 3

Worcester v. Georgia, 31 U.S. 515 (1832)...................... 2, 5

Ysleta Del Sur Pueblo v. Texas, 142 S. Ct. 1929

(2022) .......................................................................... 2, 4

CONSTITUTIONAL AND STATUTORY PROVISIONS

U.S. Const. art. I, § 8, cl. 3 .................................................. 2

11 U.S.C. § 522 ................................................................... 11

vi

TABLE OF AUTHORITIES—Continued

Page(s)

12 U.S.C. § 2279aa-12 ........................................................ 11

20 U.S.C.

§ 1415 ............................................................................ 11

§ 7491 ............................................................................ 15

25 U.S.C.

§ 1301 ............................................................................ 24

§ 1466 ............................................................................ 19

§ 1521 ............................................................................ 21

§ 1601 .............................................................................. 3

§ 1602 ............................................................................ 18

§ 1603 ...................................................................... 15, 18

§ 1612 ...................................................................... 15, 18

§ 1613 ...................................................................... 15, 18

§ 1901 .................................................................... 3, 6, 16

§ 1902 .................................................................. 9, 16, 26

§ 1903 ...................................................................... 13, 17

§ 1911 ............................................................................ 10

§ 1912 ............................................................................ 10

§ 1915 ................................................................ 11, 28, 29

§ 2000 .............................................................................. 3

§§ 2101-2108 .................................................................. 3

§ 3202 ............................................................................ 15

§§ 4101-4243 .................................................................. 3

§ 5116 ...................................................................... 20, 23

§ 5129 ............................................................................ 20

29 U.S.C. § 764 ................................................................... 19

42 U.S.C.

§ 2000e-2 ................................................................. 21,23

§ 9831 ............................................................................ 19

§ 9836 ............................................................................ 19

§ 14503 .......................................................................... 11

vii

TABLE OF AUTHORITIES—Continued

Page(s)

50 U.S.C.

§ 3902 .............................................................................. 8

§ 3932 .............................................................................. 8

§ 3936 .............................................................................. 8

§ 3938 .............................................................................. 8

Act of March 3, 1817, ch. 92, 3 Stat. 383 ......................... 25

General Crimes Act, 18 U.S.C. § 1152 (1976 ed.) .......... 25

Head Start Act, 42 U.S.C. §§ 9801 et seq. ...................... 19

Indian Child Protection and Family Violence

Prevention Act, 25 U.S.C. §§ 3201 et seq. ............... 15

Indian Civil Rights Act, 25 U.S.C.§§ 1301-1304 ........... 24

Indian Health Care Improvement Act,

25 U.S.C. §§ 1601 et seq. ............................................ 15

Indian Trade and Intercourse Act of 1834, § 25,

4 Stat. 733 .................................................................... 25

Servicemembers Civil Relief Act,

50 U.S.C. §§ 3901 et seq ........................................... 6, 8

Tribally Controlled Community College

Assistance Act, 25 U.S.C. § 1801.............................. 15

Tribally Controlled Grant School Endowment

Program, 25 U.S.C. § 2511 ........................................ 15

Tex. Fam. Code § 161.001 ................................................. 10

LEGISLATIVE MATERIALS

H.R. Rep. No. 95-1386 (1991) ....................................... 9, 17

H.R. Rep. No. 102-61 (1991) ............................................. 25

viii

TABLE OF AUTHORITIES—Continued

Page(s)

Indian Child Welfare Act of 1977: Hearing on

S. 1214 Before the Senate Select

Committee on Indian Affairs, 95th Cong.

(1977) ..................................................................... 9, 27

Indian Child Welfare Program, Hearings

Before the Subcommittee on Indian Affairs

of the Senate Committee on Interior and

Insular Affairs, 93rd Cong. (1974) ........................... 27

Indian Health Care Improvement Act:

Hearing on H.R. 2525 and Related Bills

Before the Subcommittee on Indian Affairs

of the House Committee on Interior and

Insular Affairs, 94th Cong. (1975) ............................ 20

S. Rep. No. 102-153 (1991) ................................................ 25

OTHER AUTHORITIES

Krakoff, Sarah, They Were Here First:

American Indian Tribes, Race,

and the Constitutional Minimum,

69 Stan. L. Rev. 491 (2017) ........................................ 14

Tompkins, Jill E., Finding the Indian Child

Welfare Act in Unexpected Places:

Applicability in Private Non-Parent

Custody Actions, 81 U. Colo. L. Rev. 1119

(2010) ............................................................................ 18

ix

TABLE OF AUTHORITIES—Continued

Page(s)

United States Department of Health and

Human Services Office of Minority Health,

https://minorityhealth.hhs.gov/omh/browse

.aspx?lvl=3&lvlID=62#:~:text=The%202010

%20Census%20reveals%20that,reservation

s%20or%20other%20trust%20lands (visited

Aug. 18, 2022) .............................................................. 19

Uthe, Lynn, The Best Interests of Indian

Children in Minnesota, 17 Am. Indian L.

Rev. 237 (1992) ............................................................ 27

INTEREST OF AMICI CURIAE1

This brief is filed by 33 Senators and 54 Members of

the House of Representatives (listed in the appendix to

this brief), each of whom has taken an active role in legislation concerning Indian affairs during his or her tenure as a Member of Congress. Amici have a shared interest in the issues in this case because those issues

implicate Congress’s authority to legislate concerning

Indian affairs, as well as Congress’s ability to carry out

the federal government’s duties and obligations as trustee of the Indian Tribes and their people.

By filing this brief, amici provide the Court with

additional context as to how the Indian Child Welfare

Act (ICWA) furthers Congress’s aims and responsibilities as the branch of government constitutionally vested with plenary power over Indian affairs. Cf. Nestle

USA, Inc. v. Doe, 141 S. Ct. 1931, 1940 (2021) (citing

Amicus Brief for Members of Congress to demonstrate

how Congress settled upon its statutory approach after

“years of studying ‘how to best craft a response’”).

INTRODUCTION

ICWA is a valid and constitutionally sound exercise

of the “[p]lenary authority” over Indian affairs that

Congress has exercised “from the beginning” of the

Republic. Lone Wolf v. Hitchcock, 187 U.S. 553, 565

(1903). Amici respectfully submit that ICWA is consistent with the Constitution and with more than two

1

No counsel for a party authored this brief in whole or in

part, and no entity or person (other than amici and their counsel)

made a monetary contribution intended to fund the preparation or

submission of this brief. Counsel for all parties have consented to

the filing of amicus briefs in this case.

2

centuries of congressional exercise of plenary authority

over Indian affairs—and 190 years of this Court affirming that authority’s existence. See Worcester v. Georgia, 31 U.S. 515, 559 (1832).

“Native American Tribes possess ‘inherent sovereign authority over their members and territories.’”

Ysleta Del Sur Pueblo v. Texas, 142 S. Ct. 1929, 1934

(2022) (quoting Oklahoma Tax Comm’n v. Citizen

Band Potawatomi Indian Tribe of Okla., 498 U.S. 505,

509 (1991)). “Congress too bears vital responsibilities

in the field of tribal affairs”—responsibilities that are

drawn from “our Constitution, treaties, and laws.” Id.

(citing United States v. Lara, 541 U.S. 193, 200 (2004)).

“[D]rawn both explicitly and implicitly from the Constitution itself,” Morton v. Mancari, 417 U.S. 535, 551-552

(1974), Congress’s power to address “the special problems of Indians,” id. at 551, is “significant” and “exclusive,” Washington v. Confederated Bands & Tribes of

Yakima Indian Nation, 439 U.S. 463, 470 (1979); see

also, e.g., United States v. Wheeler, 435 U.S. 313, 319

(1978) (citing as “undisputed fact” the notion that

“Congress has plenary authority to legislate for the Indian tribes in all matters”); Lone Wolf, 187 U.S. at 565

(Congress’s power “has always been deemed a political

one, not subject to be controlled by the judicial department of the government.”).

The constitutional foundation—but not the only

source—of Congress’s plenary authority is the Indian

Commerce Clause, which “provides Congress with the

power to ‘regulate Commerce … with the Indian

Tribes,’ and thus, to this extent, singles Indians out as a

proper subject for separate legislation.” Mancari, 417

U.S. at 552 (quoting U.S. Const. art. I, § 8, cl. 3) alteration in original). “The central function of the Indian

Commerce Clause … is to provide Congress with

3

plenary power to legislate in the field of Indian affairs,”

Lara, 541 U.S. at 200 (internal quotation marks omitted), and both Congress and the Court have consistently understood the power to extend to a broad range of

Indian affairs, from economic activity to housing,

health, education, and beyond. See, e.g., 25 U.S.C.

§§ 1601(1), 2000, 2101-2108, 4101-4243. Congress enacted ICWA pursuant to its Indian Commerce Clause

“and other constitutional authority,” id. § 1901(1), in

furtherance of both Congress’s “responsibility for the

protection and preservation of Indian tribes and their

resources,” id. § 1901(2), and the United States’ “direct

interest, as trustee, in protecting Indian children who

are members of or are eligible for membership in an

Indian tribe,” id. § 1901(3).

Any decision limiting Congress’s authority to pass

ICWA or similar Indian affairs legislation pursuant to

its plenary power would usurp Congress’s proper exercise of its constitutional authority and prevent Congress from fulfilling its historic and enduring fiduciary

duties as trustee to Indian Tribes. Plaintiffs’ challenges

to ICWA all fall short, and the Court should uphold

ICWA’s constitutionality in all respects.

ARGUMENT

I.

CONGRESS HAD THE CONSTITUTIONAL AUTHORITY TO

ENACT ICWA

In “an unbroken current of judicial decisions,”

United States v. Sandoval, 231 U.S. 28, 46 (1913), this

Court has repeatedly reaffirmed Congress’s “plenary

and exclusive power over Indian affairs,” Washington,

439 U.S. at 470; Fed. Parties’ Br. 10-11 (collecting cases). That power flows not only from the Constitution

but also from “treaties and laws” reflecting federal

4

policy toward Indian Tribes. Ysleta Del Sur Pueblo,

142 S. Ct. at 1934. ICWA falls squarely within Congress’s plenary authority, which “has always been recognized by the executive, and by [C]ongress, and by

this [C]ourt, whenever the question has arisen.” United States v. Kagama, 118 U.S. 375, 384 (1886).2

Although the Indian Commerce Clause is a primary

source of Congress’s plenary authority, that authority

spans more broadly than Congress’s authority under

the Interstate Commerce Clause. Plaintiffs attempt to

equate the scope of those two clauses, in arguing that

the Indian Commerce Clause confers on Congress only

the limited authority to legislate with respect to economic activity with Indian Tribes. See Texas Br. 47-55;

Indiv. Pls’. Br. 22-24. They seek to rely upon precedents—principally United States v. Lopez, 514 U.S. 549

(1995), and United States v. Morrison, 529 U.S. 598

(2000)—that clarified or limited the scope of Congress’s

Interstate Commerce Clause powers. See Texas Br.

50-53; Indiv. Pls.’ Br. 23-24.

But neither Lopez nor Morrison concerned federal

Indian law, any superficial comparison between the two

commerce clauses is inapt, and the Court has long rejected it. It is “well established that the Interstate

Commerce and Indian Commerce Clauses have very

different applications.” Cotton Petroleum Corp. v. New

2

As Judge Dennis correctly observed, it is significant “that,

in enacting ICWA, Congress explicitly contemplated whether it

was constitutionally authorized to do so.” Brackeen v. Haaland,

994 F.3d 249, 303 n.26 (5th Cir. 2021) (en banc) (Dennis, J., opinion); see Rostker v. Goldberg, 453 U.S. 57, 64 (1981) (“The customary deference accorded the judgments of Congress is certainly

appropriate when, as here, Congress specifically considered the

question of the Act’s constitutionality.”).

5

Mexico, 490 U.S. 163, 192 (1989). “In particular, while

the Interstate Commerce Clause is concerned with

maintaining free trade among the States even in the

absence of implementing federal legislation, the central

function of the Indian Commerce Clause is to provide

Congress with plenary power to legislate in the field of

Indian affairs.” Id. Thus, cases like Lopez and Morrison are “premised on a structural understanding of the

unique role of the States in our constitutional system

that is not readily imported to cases involving the Indian Commerce Clause.” Id.3

It is plain that Congress’s plenary power over Indian affairs includes the power to enact ICWA. After

Tribes were dispossessed of much of their lands and resources, the federal government assumed a responsibility to the Tribes “and with it the authority to do all that

was required to perform that obligation”—including

wielding “federal power to regulate and protect the

3

See also Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 62

(1996) (“If anything, the Indian Commerce Clause accomplishes a

greater transfer of power from the States to the Federal Government than does the Interstate Commerce Clause. This is clear

enough from the fact that the States still exercise some authority

over interstate trade but have been divested of virtually all authority over Indian commerce and Indian tribes.”); Worcester, 31

U.S. at 580-581 (“By the Constitution, the regulation of commerce

among the Indian tribes is given to congress. This power must be

considered as exclusively vested in congress, as the power to regulate commerce with foreign nations, to coin money, to establish

post offices, and to declare war. It is enumerated in the same section, and belongs to the same class of powers.”); Cherokee Nation

v. Georgia, 30 U.S. 1, 18 (1831) (“The objects, to which the power of

regulating commerce might be directed, are divided into three distinct classes—foreign nations, the several states, and Indian

tribes. When forming this article, the convention considered them

as entirely distinct.”).

6

Indians and their property against interference even by

a state.” Board of Cnty. Comm’rs v. Seber, 318 U.S.

705, 715 (1943); see also, e.g., Metlakatla Indian Cmty.,

Annette Islands Rsrv. v. Egan, 369 U.S. 45, 56 (1962)

(recognizing Congress’s authority to “protect[] against

state invasion all uses of Indian property authorized by

federal treaty, agreement, statute, or regulation”).

ICWA itself states that “Congress, through statutes,

treaties, and the general course of dealing with Indian

tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources.” 25 U.S.C. § 1901(2). And Congress enacted

ICWA in service of its “direct interest, as trustee, in

protecting Indian children who are members of or are

eligible for membership in an Indian tribe.” Id.

§ 1901(3). Indeed, the Constitution gives Congress a

unique responsibility with respect to stewardship of

Indian families and children, based on Congress’s “duty

of exercising a fostering care and protection” over Indian communities. Sandoval, 231 U.S. at 46.

There is ample precedent for federal legislation

protecting individual rights in state processes where

Congress has special power over that particular group.

See, e.g., 50 U.S.C. §§ 3901 et seq. (Servicemembers Civil Relief Act). Grafting Texas’s proposed limitation onto Congress’s enumerated power—that is, the notion

that plenary power should only survive where the subject of the legislation is “far afield from core matters of

state concern,” Texas Br. 36-37—would contravene the

Court’s instruction that state sovereignty should not be

defined by “traditional” government functions, see infra Part II.A, and moreover would find no support in

constitutional text or the constitutional design of our

federal system.

7

II. ICWA DOES NOT VIOLATE THE TENTH AMENDMENT

OR THE ANTI-COMMANDEERING DOCTRINE

A. ICWA Is An Appropriate And Respectful

Exercise Of Congress’s Plenary Power

The Tenth Amendment reflects “but a truism” that

the States retain all powers that have not been delegated to Congress. New York v. United States, 505

U.S. 144, 156 (1992) (quoting United States v. Darby,

312 U.S. 100, 124 (1941)). ICWA, an application of Congress’s plenary and exclusive power to regulate Indian

affairs, is constitutional under the Tenth Amendment.

It is surely sensitive, but hardly novel, when Congress’s power to regulate Indian affairs extends into

state activity. See, e.g., Seber, 318 U.S. at 715-718 (federal statute precluded state taxation). Plenary power

would hardly be power at all if it withered on contact

with any state regulation. When the area of law at issue is traditionally left to the States, the aperture of

plenary power is not somehow narrowed—nor is a

State’s sovereignty somehow more diminished by the

exercise of plenary power. As Judge Higginson explained, the Court has instructed that state sovereignty

is not defined by “look[ing] to the ‘traditional,’ ‘integral,’ or ‘necessary’ nature of governmental functions,”

as that “inevitably invites an unelected federal judiciary to make decisions about which state policies it favors and which ones it dislikes.” Brackeen, 994 F.3d at

442-444 (Higginson, J., concurring) (quoting Garcia v.

San Antonio Metro. Transit Auth., 469 U.S. 528, 546

(1985)). The applicable test is, rather, whether the

Constitution divested the States of those authorities

and transferred them to the federal government, which

the Indian Commerce Clause expressly did with respect to Indian affairs.

8

Indeed, the Court has repeatedly recognized that

federal law can—consistent with the Constitution’s

federalist design—affect the application of state law in

domestic relations proceedings. See, e.g., Egelhoff v.

Egelhoff ex rel. Breiner, 532 U.S. 141, 146 (2001)

(ERISA preempted Washington statute in state probate proceedings); Hisquierdo v. Hisquierdo, 439 U.S.

572, 590 (1979) (Railroad Retirement Act preempted

California community property law in state divorce

proceedings). These statutes validly apply substantive

federal standards to state proceedings consistent with

the Tenth Amendment.

The Servicemembers Civil Relief Act, 50 U.S.C.

§§ 3901 et seq. (the “SCRA”), is another prime example.

States recognize that the SCRA’s protections “are farranging and include forgiveness of certain interest, protection from eviction, termination of leases, and prohibition against financial retaliation by lenders and creditors.” In re Marriage of Bradley, 137 P.3d 1030, 1033

(Kan. 2006); see also Carmicheal v. Rollins, 783

N.W.2d 763, 766 (Neb. 2010). The SCRA stays any civil

proceeding—state or federal—in which the plaintiff or

defendant is in active military service at the time of filing. 50 U.S.C. § 3932(a)(1). The SCRA also directs that

time in military service may not be included in calculating any limitations period with respect to any state or

federal claim, id. § 3936(a), and sets standards applicable to child custody determinations made with respect

to children of servicemembers, id. § 3938. As with ICWA, the SCRA is intended to serve a plenary power

(Congress’s war power) by setting federal standards

for state and federal domestic relations proceedings.

See id. § 3902.

Furthermore, Congress took special care to safeguard state interests when designing ICWA. During

9

the drafting process, Congress actively sought out the

States’ views, which were largely favorable. For example, a representative from Washington State praised

the bill as “an enlightened and practical approach to legal jurisdiction and social services delivery to Indian

people,” Indian Child Welfare Act of 1977: Hearing on

S. 1214 Before the S. Select Comm. on Indian Affairs,

95th Cong. 342 (1977) (“1977 Hearing”) (statement of

Don Milligan), and expressly welcomed federal involvement as the only way to remedy the wrongful removal of Indian children from their communities, id. at

356.

Ultimately, ICWA respected the States’ interests

in matters of domestic relations by striking a careful

and balanced approach—not replacing state law, but

establishing “minimum Federal standards for the removal of Indian children from their families and the

placement of such children in foster or adoptive homes

which will reflect the unique values of Indian culture.”

25 U.S.C. § 1902; see also H.R. Rep. No. 95-1386

(“House Report”), at 19 (1991) (explaining that ICWA

was meant not to “oust the States of their traditional

jurisdiction over Indian children falling within their geographic limits” but to “establish minimum Federal

standards and procedural safeguards in State Indian

child custody proceedings designed to protect the

rights of the child as an Indian, the Indian family and

the Indian tribe”).

B. ICWA Does Not Unconstitutionally Commandeer State Officials

The anti-commandeering doctrine emerged “relatively recently” in response to “a few isolated instances” where authority was extended “in unprecedented

10

ways.” Murphy v. NCAA, 138 S. Ct. 1461, 1476 (2018).

This limited doctrine does not invalidate ICWA.

First, as the Fifth Circuit’s en banc majority recognized, the anti-commandeering doctrine does not apply to the extent that ICWA preempts state law with

federal standards. Brackeen, 994 F.3d at 268 (en banc).

For example, ICWA grants a child’s Tribe the substantive right to intervene in child-custody proceedings, see

25 U.S.C. § 1911(c), which is not guaranteed by state

law. ICWA also requires proof “beyond a reasonable

doubt” before the right to parent can be terminated, id.

§ 1912(f), whereas States may allow termination based

on “clear and convincing evidence.” See, e.g., Tex. Fam.

Code § 161.001(b)(1)-(2). These provisions demonstrate

ICWA’s straightforward and valid preemption of state

law with substantive federal standards enforceable in

state court. See Murphy, 138 S. Ct. at 1480 (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,” “the federal law takes precedence and the

state law is preempted”); Crosby v. National 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.”).

Second, to the extent that ICWA does regulate

state activity, the anti-commandeering doctrine “does

not apply when Congress evenhandedly regulates an

activity in which both States and private actors engage.” Murphy, 138 S. Ct. at 1478. Accordingly, the

Fifth Circuit erred by finding that some provisions unconstitutionally commandeer state actors, because the

text of ICWA applies to any “party” seeking the foster

care placement of, or termination of parental rights to,

an Indian child—regardless of whether that “party” is a

11

state officer or private individual (such as a custodial

parent). Because the plain text of the statute applies

equally to the States and to private actors, the anticommandeering doctrine does not invalidate ICWA.

III. SECTION 1915(C) DOES NOT VIOLATE THE NONDELEGATION DOCTRINE

The Fifth Circuit correctly held that section 1915(c)

of ICWA does not violate the non-delegation doctrine.

Subsections (a) through (c) of Section 1915 enact a

familiar and sensible statutory structure: a congressionally designed default rule that is supplanted by a

different, congressionally sanctioned rule under congressionally defined circumstances. Not only is that

method of lawmaking permissible but, as the Fifth Circuit recognized, it is core to the functioning of “countless” statutes. Brackeen, 994 F.3d at 350 (collecting

examples). It is no less valid when the supplanting rule

is created by a separate sovereign with jurisdiction

over the matter at issue. Id. at 350-351 (citing 20

U.S.C. § 1415(b)(6)(B) (statute of limitations is two

years “or, if the State has an explicit time limitation for

presenting such a complaint under this subchapter, in

such time as the State law allows”)); 11 U.S.C.

§ 522(b)(2) (state law may alter the default property

exemptible from a bankruptcy estate); 12 U.S.C.

§ 2279aa-12(b)(2) (state law may override exemption

from securities registration and qualification laws); 42

U.S.C. § 14503(a), (e) (state law may override exemption of nonprofit and governmental entities from certain liabilities).

Plaintiffs acknowledge—as they must—that Congress may incorporate other sovereigns’ laws into federal law. See Texas Br. 71 (citing United States v. Mazurie, 419 U.S. 544, 556-557 (1975) and United States v.

12

Sharpnack, 355 U.S. 286, 293-294 (1958)); Indiv. Pls.’

Br. 41 n.6; see also Gibbons v. Ogden, 22 U.S. (9 Wheat.)

1, 80 (1824) (“Although Congress cannot enable a State

to legislate, Congress may adopt the provisions of a

State on any subject.”). Yet Plaintiffs misguidedly (and

without citation) assert that the reason is because

“courts must determine how to reconcile the interests

of two sovereigns with an interest in the same physical

territory” and that “Congress is simply explaining how

it wishes courts to do so.” Texas Br. 71. Proceeding

from that defective premise, Plaintiffs argue that

Tribes are not sovereigns for Section 1915(c) purposes

because Tribes lack sovereignty over non-members

who are not on Indian land. Plaintiffs’ arguments are

wrong.

Plaintiffs also ignore Congress’s many reasons for

adopting another sovereign’s law. Congress may, for

example, wish to capitalize on another sovereign’s comparative expertise, or recognize the result of another

sovereign’s deliberative process. Moreover, the Court

has long recognized that “Indian tribes are unique aggregations possessing attributes of sovereignty over

both their members and their territory.” Mazurie, 419

U.S. at 557 (emphasis added). As such, Indian Tribes

are sovereigns for Section 1915(c) purposes because Indian Tribes have sovereign governmental authority to

pass tribal law establishing an order of placement preferences, pursuant to the Tribe’s authority over its own

members and territory. See id.; cf. United States v.

Quiver, 241 U.S. 602, 605-606 (1916) (recognizing “the

policy reflected by the legislation of Congress and its

administration for many years” that internal relations

among tribal members are “to be controlled by the customs and laws of the tribe, save when Congress expressly or clearly directs otherwise[]”). Whether the

13

result of that sovereign act is subsequently incorporated by federal law into an external process that extends beyond the Tribe’s members and territory does

not somehow deprive the act of its sovereign character.

See Mazurie, 419 U.S. at 557. Plaintiffs’ arguments to

the contrary are unavailing.

IV. ICWA’S PLACEMENT PREFERENCES DO NOT VIOLATE

EQUAL PROTECTION

A. Congress May, And Routinely Does, Legislate

On The Basis Of Tribal Membership

ICWA does not apply to all children with a biological Indian parent. Rather, it applies to children who

either (1) are themselves tribal members, or (2) are eligible for tribal membership and have a biological parent who is a tribal member. See 25 U.S.C. § 1903(4).

Thus, ICWA’s applicability to a child ultimately

depends upon the political designation of tribal membership—not race or biology.4 And the reach of federal

Indian law has always involved that political classification as a relevant consideration. See, e.g., Mancari, 417

U.S. at 553 n.24 (upholding constitutionality of employment preference for Indians that applied to individuals who were members of federally recognized Indian Tribes and “one-fourth or more degree Indian

4

In finding an equal protection violation in this case, the district court pointed specifically to ICWA’s definition of “Indian

child,” and incorrectly concluded that it includes “those children

simply eligible for membership who have a biological Indian parent.” Brackeen v. Zinke, 338 F. Supp. 3d 514, 533 (N.D. Tex. 2018),

aff’d in part, rev’d in part sub nom. Brackeen v. Haaland, 994

F.3d 249 (5th Cir. 2021) (en banc). That framing elided the statute’s requirement that the child’s parent be a tribal member. See

25 U.S.C. § 1903(4)(b).

14

blood”). The federal government’s special trust relationship to Indian Tribes derives from the Tribes’ status as sovereigns predating the formation of the United

States, see Wheeler, 435 U.S. at 322-323, and an individual may share in the benefits of that relationship today only by showing his or her ties to those political

communities.5

Because legislation based on tribal membership is

“political rather than racial in nature,” it is subject only

to rational basis review.6 Mancari, 417 U.S. at 553 n.24,

555; see also, e.g., United States v. Antelope, 430 U.S.

641, 645-647 (1977) (rejecting equal protection challenge

to federal criminal statutes applicable to defendants because of their status as Indians). ICWA’s framework of

protections for “Indian children” as a political class easily satisfies the deferential rational basis standard.

Among the many statutes codified in Title 25 that

“single[] out Indians” for particular treatment are those

that, like ICWA, provide benefits and protections to

5

See Brackeen, 994 F.3d at 336-337 (Dennis, J., opinion); see

also Krakoff, They Were Here First: American Indian Tribes,

Race, and the Constitutional Minimum, 69 Stan. L. Rev. 491, 496

(2017) (“[T]ribes (as collectives) must trace their heritage to peoples who preceded European/American settlement in order to establish a political relationship with the federal government.

Tribes, in order to be recognized as such under the Constitution,

therefore must, as an initial definitional matter consist of people

tied together by something akin to lineage.”).

6

Strict scrutiny does not apply because ICWA does not, as

the district court mistakenly held, “use[] ancestry as a proxy for

race.” Zinke, 338 F. Supp. 3d at 534. Rather, it provides protections—like most of Title 25 of the United States Code—“to Indians

not as a discrete racial group, but, rather, as members of quasisovereign tribal entities” with a “unique” relationship to the federal government under the Constitution. Mancari, 417 U.S. at 554.

15

children of tribal members, even if the children are not

themselves members. For example, one component of

the Indian Health Care Improvement Act (IHCIA), 25

U.S.C. §§ 1601 et seq., which supports Indians entering

the health-care profession, includes anyone “who is a

descendant, in the first or second degree” of a tribal

member. See id. §§ 1603(13)(A), 1612, 1613. Congress

similarly provides educational support to the children

of tribal members in the Tribally Controlled Community College Assistance Act, 25 U.S.C. § 1801(7)(B)

(providing educational support to the “biological child

of a member of an Indian tribe”), and the Tribally Controlled Grant School Endowment Program, 25 U.S.C.

§ 2511(3) (providing educational support to the child or

grandchild of a tribal member or one eligible for membership), as well as in the provision of education grants

to Indian communities, 20 U.S.C. § 7491(3)(B) (defining

“Indian” to include “a descendant, in the first or second

degree” of a tribal member).

Even more directly, the Indian Child Protection

and Family Violence Prevention Act, 25 U.S.C. §§ 3201

et seq., which aims to protect Indian children from

abuse, incorporates ICWA’s definition of “Indian child.”

Id. § 3202(7). Like ICWA, that statute was enacted in

furtherance of the United States’ “direct interest, as

trustee, in protecting Indian children,” and in recognition of the importance of Indian children “to the continued existence and integrity of Indian tribes.” Id.

§ 3201(a)(1)(F).

Congress’s choice to reach the children of tribal

members through ICWA and the other statutes discussed above was deliberate and rationally related to

“‘the fulfillment of Congress’[s] unique obligation toward the Indians.’” Delaware Tribal Bus. Comm. v.

16

Weeks, 430 U.S. 73, 85 (1977). Congress enacted ICWA

not only to protect Indian children from the trauma of

unwarranted dislocation, but also to protect Indian

Tribes from the removal of their children, which further imperiled the Tribes’ viability as political entities

as well as their “cultural identity and heritage.” Adoptive Couple v. Baby Girl, 570 U.S. 637, 655 (2013); see

also 25 U.S.C. § 1902 (asserting Congress’s desire,

through ICWA, to “promote the stability and security

of” Tribes and to respect “the unique values of Indian

culture”). As the Act itself states, “there is no resource

that is more vital to the continued existence and integrity of Indian tribes than their children.” 25 U.S.C.

§ 1901(3). And to protect tribal interests, ICWA “recognizes that the tribe has an interest in the child which

is distinct from but on a parity with the interest of the

parents.” Mississippi Band of Choctaw Indians v.

Holyfield, 490 U.S. 30, 52 (1989) (quoting In re Adoption of Holloway, 732 P.2d 962, 969 (Utah 1986)).

In tying the application of ICWA to the tribal membership of a child’s parents, Congress recognized that

not all Tribes automatically grant membership to children of tribal members. On this point, the House Report

noted:

Th[e] minor, perhaps infant, Indian does not

have the capacity to initiate the formal, mechanical procedure necessary to become enrolled in

his tribe to take advantage of the very valuable

cultural and property benefits flowing therefrom. Obviously, Congress has power to act for

[Indian children’s] protection. The constitutional and plenary power of Congress over Indians

and Indian tribes and affairs cannot be made to

hinge upon the cranking into operation of a mechanical process established under tribal law,

17

particularly with respect to Indian children who,

because of their minority, cannot make a reasoned decision about their tribal and Indian

identity.

House Report, at 17. A statute that applied only to

children who were already tribal members would inadvertently exclude swaths of Indian children in need of

protection—for example, almost any newborn, whose

tribal membership may not have been perfected but

who is nonetheless an “Indian child.” 25 U.S.C.

§ 1903(4). That approach also would be at odds with

Congress’s trust obligation to further tribal selfgovernance. See Mancari, 417 U.S. at 555. Congress

ultimately adopted a reasonable and rational standard

that was intended to further that trust obligation.

ICWA easily satisfies the applicable rational basis

test. The district court’s flawed strict scrutiny analysis, if allowed to stand, would defy sound legal reasoning regarding tribal membership; would have sweeping

and unpredictable consequences throughout Title 25 of

the U.S. Code; and would dramatically and unworkably

curtail Congress’s Indian affairs power, which provides

vital federal support to Tribes and their members.

B. Congress May, And Routinely Does, Legislate

For The Benefit Of Indians Both On And Off

Reservations

Congress’s plenary power to legislate with respect

to Indian affairs is not limited to reservations or Indian

lands. See Texas Br. 44-45. On the contrary, “Congress

possesses the broad power of legislating for the protection of the Indians wherever they may be within the

territory of the United States.” United States v.

McGowan, 302 U.S. 535, 539 (1938); see also, e.g., Morton v. Ruiz, 415 U.S. 199, 236 (1974) (“The overriding

18

duty of our Federal Government to deal fairly with

Indians wherever located has been recognized by this

Court on many occasions.”); Perrin v. United States,

232 U.S. 478, 482 (1914) (explaining that congressional

power extends “whether upon or off a reservation and

whether within or without the limits of a state”); United States v. Holliday, 70 U.S. 407, 415-416 (1865) (holding that federal statute applied to Indians “when they

are outside of a reservation, as well as within it”).

ICWA is just one of many instances in which Congress has exercised its plenary power to enact legislation for the benefit of Indians that applies with equal

force both on and off reservations—including in States

like Alaska, where there are more than two hundred

Tribes that do not follow the reservation model. For

example, the IHCIA, which Congress passed “in fulfillment of its special trust responsibilities and legal obligations to Indians,” 25 U.S.C. § 1602, provides for

comprehensive health services for Indians regardless of

their location. Indeed, an entire subchapter of the IHCIA is devoted to “urban Indians”—i.e., Indians living

off-reservation in urban communities.7 Likewise, provisions of the IHCIA aimed at facilitating education

and training in the health professions apply broadly to

all tribal members (as well as their first- or secondgeneration descendants), whether they live on or off a

reservation. See id. §§ 1603(13)(A), 1612, 1613.

7

Notably, in the second half of the twentieth century, the

federal government pursued a policy of encouraging and incentivizing tribal members to relocate to urban areas. See Tompkins,

Finding the Indian Child Welfare Act in Unexpected Places: Applicability in Private Non-Parent Custody Actions, 81 U. Colo. L.

Rev. 1119, 1128-1131 (2010). Largely as a result of these efforts,

the proportion of Indians living in urban areas rose from 13 percent in 1950 to 56 percent in 1990. Id. at 1128.

19

Congress has explicitly extended the reach of a

number of other laws to off-reservation Indians as well.

For instance, the Head Start Act, 42 U.S.C. §§ 9801 et

seq., which aims, among other things, to “promote the

school readiness of low-income children by enhancing

their cognitive, social, and emotional development,” id.

§ 9831, authorizes the Secretary of Health and Human

Services to designate Head Start agencies within communities, including communities of “Indians in any offreservation area designated by an appropriate tribal

government in consultation with the Secretary.” Id.

§ 9836(h). And the Workforce Investment Act of 1998

provides that research grants may be used to conduct

studies of “effective mechanisms for the delivery of rehabilitation services to Indians residing on and off reservations.” 29 U.S.C. § 764(b)(13). Other statutes provide federal funds to Indian Tribes and Tribal members

to be used both on and off reservation. See, e.g., 25

U.S.C. § 1466 (setting up revolving fund to provide

loans for Tribes and Tribal members, including for the

purchase of land both on and off reservation).

Congress has found these statutory provisions necessary because the vast majority of Indians to whom

Congress owes trust obligations—approximately

78%—do not live on reservations or other trust lands.8

Indeed, many of these statutes are geared specifically

toward ensuring that Indians, whether on or off a reservation, have equal access to necessary services and

8

See U.S. Department of Health and Human Services Office

of Minority Health, https://minorityhealth.hhs.gov/omh/browse.asp

x?lvl=3&lvlID=62#:~:text=The%202010%20Census%20reveals%20

that,reservations%20or%20other%20trust%20lands (visited Aug.

18, 2022).

As explained above, the federal government—

specifically, twentieth-century federal policy—bears significant

responsibility for this statistic. See supra note 7.

20

benefits.9 Congress cannot satisfy its trust obligation if

the laws it enacts for the benefit of Indians and Indian

Tribes extend only to 22% of Indians.

In Mancari, the Court resoundingly affirmed Congress’s authority to adopt a statutory employment

preference for Indians in the Bureau of Indian Affairs

that applies regardless of proximity to a reservation.

The district court incorrectly stated that the preference

at issue in Mancari applied only to Indians living on or

near reservations. But in reality, the BIA employment

preferences are not so limited: They provide that

“qualified Indians” shall have “preference to appointment to vacancies in any” positions maintained by the

BIA, not just those on or near a reservation. Mancari,

417 U.S. at 538 (quoting 25 U.S.C. § 5116 (emphasis

added)). Moreover, the Indian Reorganization Act of

1934 (“IRA”)—which codified the BIA employment

preference—defines the term “Indian” to include “all

persons of Indian descent who are members of any recognized Indian tribe,” regardless of whether they live

on or near a reservation. 25 U.S.C. § 5129.

To be sure, Congress has on some occasions crafted

legislation that applies only to conduct that occurs “on

9

One of Congress’s purposes in passing the IHCIA, for example, was to eliminate the disparities that had developed between the provision of health services to Indians living on reservations and those living off reservations. See, e.g., Indian Health

Care Improvement Act: Hearings on H.R. 2525 and Related Bills

Before the Subcomm. on Indian Affairs of the H. Comm. on Interior and Insular Affairs, 94th Cong. 29 (1975) (statement of Rep.

Lloyd Meeds, Chairman of Subcomm. on Indian Affairs) (explaining that the Act addresses the exclusion of “urban Indian populations … from the services of Indian Health Service,” who face

“many of the health problems faced by the Indians on Federal reservations”).

21

or near” an Indian reservation or within “Indian country,” or that assigns preference to Indians who live “on

or near” a reservation. E.g., 42 U.S.C. § 2000e-2(i)

(permitting employment preferences for Indians by

“any business or enterprise on or near an Indian reservation”); 25 U.S.C. § 1521 (establishing Indian Business

Development Program to provide grants to “establish

and expand profit-making Indian-owned economic enterprises on or near reservations”). But these statutes

are not evidence of a limitation on Congress’s plenary

power to legislate with regard to Indian affairs. They

are merely evidence that, when Congress wishes to

narrow the scope of legislation in that manner, it knows

how to say so.

That Congress has occasionally passed legislation

focused on conduct on or near a reservation does not

mean that Congress’s broad constitutional authority is

constrained by reservation boundaries. To hold otherwise would be inconsistent with the original and continuing intent of Congress’s plenary power—to legislate with respect to Indians, wherever they may reside—and would utterly frustrate and incapacitate

Congress in its efforts to fulfill its trust obligations to

the great majority of Indians who live off reservations.

C. ICWA’s Preference For “Other Indian

Families” and “Indian Foster Home[s]” Is

Consistent With Congress’s Authority To

Legislate For Indians Generally

Contrary to the district court’s decision, ICWA’s

placement preference for “other Indian families” and

“Indian foster home[s]” when Indian children cannot be

placed with family members or other members of their

own Tribe also appropriately advances the statute’s

22

enumerated goals.10 First, the preferences for “other

Indian families” and “Indian foster home[s]” are in line

with long-standing precedent of Congress making a political distinction between Indians and non-Indians.

The constitution itself and virtually all of Indian law

draws just such a distinction. See Mancari, 417 U.S. at

552. Accordingly, these placement preferences need

only be rationally related to the fulfillment of Congress’s unique obligation toward Indians, see Delaware

Tribal Bus. Comm., 430 U.S. at 85, and there is ample

evidence that keeping Indian children with Indian families, and in Indian homes, advances the stability and security of Indian Tribes and Indian children. Second,

even if the preferences were cast as racial classifications and thus subject to strict scrutiny, they are narrowly tailored to Congress’s compelling interest in protecting Indian children.

1. Congress acts within its power in

distinguishing between Indians and nonIndians in legislation intended to benefit

Indians

In virtually all of Indian law—from employment

matters to criminal jurisdiction—Congress and the

Court have long distinguished between Indians and

non-Indians, and not between Indians who are members of one Tribe as opposed to another. The district

court wrongly concluded that any categorical distinction between Indians and non-Indians is impermissible,

but that ignores settled law and two hundred years of

10

The en banc Fifth Circuit split evenly on the question of

whether ICWA’s preference for “other Indian families” and “Indian foster home[s]” violated the Equal Protection Clause, thus affirming the District Court’s decision on that point without a precedential opinion. Brackeen, 994 F.3d at 268.

23

congressional practice. The district court’s flawed conclusion and reasoning must not go uncorrected.

Employment preferences for Indians, which date

back at least as far as 1834, see Mancari, 417 U.S. at

541, have long benefitted all Indians as a class. For example, the IRA creates a political preference for all

“Indians” in filling “positions maintained … by the Indian Office, in the administration of functions or services affecting any Indian tribe.” 25 U.S.C. § 5116. Its

“overriding purpose” was to foster “a greater degree of

self-government, both politically and economically,”

among Indian Tribes. Mancari, 417 U.S. at 542; see also Oglala Sioux Tribe of Indians v. Andrus, 603 F.2d

707, 716 (8th Cir. 1979) (describing IRA’s purpose as

establishing “Indian control of Indian services”). The

IRA achieved that purpose without requiring any specific connection between the tribal membership of the

person filling a particular position and the Tribe or

Tribes served by that position.

Similarly, Title VII’s “Indian preference exemption” permits employers to extend preference in employment practices to Indians based on their political

status as Indians. It provides that:

Nothing contained in this subchapter shall apply to any business or enterprise on or near an

Indian reservation with respect to any publicly

announced employment practice of such business or enterprise under which a preferential

treatment is given to any individual because he

is an Indian living on or near a reservation.

42 U.S.C. § 2000e-2(i) (emphasis added). By its plain

terms, the Indian preference exemption permits any

employer on or near a reservation to extend an employment preference to any Indian living on or near any

24

reservation. It is not limited to those Indians who are

members of the Tribe on whose reservation the employer is located, nor is it limited to Indians living on

that reservation. Rather, like the IRA, it grants a general preference to Indians of all Tribes in “recognition

of the longstanding federal policy of providing a unique

legal status to Indians.” Mancari, 417 U.S. at 548; see

also Dawavendewa v. Salt River Project Agric. Improvement & Power Dist., 154 F.3d 1117, 1122 (9th Cir.

1998) (“The purpose of the Indian Preferences exemption is to authorize an employer to grant preferences to

all Indians (who live on or near a reservation)—to

permit the favoring of Indians over non-Indians.”).

Similar distinctions between Indians, generally,

and non-Indians exist in the criminal law. While Indian

Tribes generally lack the authority to impose criminal

penalties on non-Indians, see Oliphant v. Suquamish

Indian Tribe, 435 U.S. 191, 204 (1978), Indian Tribes do

have criminal jurisdiction over all other Indians, including non-member Indians, under the Indian Civil Rights

Act (25 U.S.C. §§ 1301-1304).

In 1991, in response to the Supreme Court’s holding in Duro v. Reina, 495 U.S. 676 (1990), Congress

amended the Indian Civil Rights Act to make clear that

the Tribes’ “powers of self-government” include “the

inherent power of Indian tribes, hereby recognized and

affirmed, to exercise criminal jurisdiction over all Indians.” 25 U.S.C. § 1301(2) (emphasis added); see also

Lara, 541 U.S. at 196 (upholding amendment’s constitutionality). This explicit recognition came after nearly

two centuries of law distinguishing generally between

Indians and non-Indians for purposes of criminal jurisdiction. In 1817, Congress extended federal criminal

jurisdiction to crimes committed in Indian country, but

excluded “any offence committed by one Indian against

25

another.” Act of Mar. 3, 1817, ch. 92, 3 Stat. 383. This

same exception was included in the Indian Trade and

Intercourse Act of 1834, § 25, 4 Stat. 733, and the General Crimes Act, now codified at 18 U.S.C. § 1152 (1976

ed.). As recognized in the legislative history of the 1991

amendment, “Congress has never differentiated between member Indians and non-member Indians” in

defining the scope of tribal criminal jurisdiction.

S. Rep. No. 102-153, at 3 (1991).

In each of these areas of the law, Congress had

good reason to treat all Indians collectively as a single

political class. Many Indians live on the reservations of

Tribes of which they are not members. On some reservations, up to thirty percent of residents are nonmember Indians. See H.R. Rep. No. 102-61, at 4 (1991).

Congress has long recognized that classifying member

and non-member Indians in the same category “is

premised upon the reality and practice of reservation

life: that non-tribal member Indians own homes and

property on reservations, are part of the labor force on

the reservation, and frequently are married to tribal

members.” S. Rep. No. 102-153 at 7. In many instances, this commingling of different Tribes and their members is the result of specific federal policy, because

“over the course of many years, Federal policy forced

the relocation of many tribes onto one reservation.” Id.

Given these realities, if tribal provisions like those

in the IRA or Title VII had to be Tribe-specific, as the

district court’s holding would require, a great many Indians would be excluded from federal services and protections entirely, and denied their rights as beneficiaries of the federal-tribal trust responsibility. As such,

treating Indians generally as a class is not just rationally related—it is often crucial—to Congress’s ability to

fulfill its trust obligation to Indians.

26

2. The preferences for “other Indian

families” and “Indian foster home[s]” are

narrowly tailored to serve ICWA’s

purpose of protecting the best interests

of Indian children and Tribes

Judge Duncan’s opinion for the en banc court “assume[d] arguendo that ‘Indian family’ is a tribal, not a

racial category” but nonetheless concluded that “the

preference fails to rationally further Congress’s goal of

keeping Indian children linked to their own tribe.”

Brackeen, 994 F.3d at 400 (Duncan, J., opinion). This

conclusion misrepresents Congress’s goals in passing

ICWA, ignores legitimate justifications for the preferences, and applies an overly onerous version of the rational basis standard. But even under a heightened

standard of review, the preference for “other Indian

families” and “Indian foster home[s]” is narrowly tailored to serve ICWA’s interest of protecting the interests of Indian children and Tribes.

ICWA was drafted to accomplish two goals in furtherance of Congress’s unique obligation toward Indians: “to protect the best interests of Indian children,”

and “to promote the stability and security of Indian

tribes and families.” 25 U.S.C. § 1902; accord House

Report, at 8. Both interests are served by the placement preferences for “other Indian families” and “Indian foster home[s].”

Placing Indian children with “other Indian families”

and in “Indian foster home[s]” when they cannot be

placed with their own families or Tribes serves the interests of those children. In the years leading up to

ICWA, nearly a third of all Indian children were forcibly removed from their homes and placed in non-Indian

families on the false assumption that “most Indian chil-

27

dren would really be better off growing up non-Indian.”

1977 Hearing 1 (statement of Sen. Abourezk); see also

Mississippi Band of Choctaw Indians, 490 U.S. at 3233. The consequences for the removed children were

devastating. As one psychiatrist testified before Congress, removed children were deprived of their Indian

identities but often were never fully accepted in or assimilated into their new, non-Indian communities. See

Mississippi Band of Choctaw Indians, 490 U.S. at 33

n.1 (“[T]hey were finding that society was putting on

them an identity which they didn’t possess and taking

from them an identity that they did possess.” (quoting

Indian Child Welfare Program, Hearings Before the

Subcomm. on Indian Affairs of the S. Comm. on Interior and Insular Affairs, 93rd Cong. 46 (1974) (statement

of Dr. Joseph Westermeyer)). As a result, many children suffered from “ethnic confusion” and a “pervasive

sense of abandonment.” 1977 Hearing 114 (statement

of Drs. Carl Mindell and Alan Gurwitt). The preference

for other Indian families helps to minimize the disruption and dislocation experienced by removed Indian

children by placing them with families that share similar cultural identities. See Uthe, The Best Interests of

Indian Children in Minnesota, 17 Am. Indian L. Rev.

237, 246, 252 (1992) (describing significance of Indian

cultural identity in well-being of Indian children and

noting that placement of Indian children in Indian

homes increased following ICWA). In fact, because

“many contemporary tribes descended from larger historical bands and continue to share close relationships

and linguistic, cultural, and religious traditions, … placing a child with another Indian family could conceivably

further the interest in maintaining the child’s ties with

his or her tribe or culture.” Brackeen, 994 F.3d at 345

(Dennis, J., opinion).

28

Placement preferences for “other Indian families”

and “Indian foster home[s]” also serve the interests of

Indian Tribes. As Judge Dennis explained, “[i]t is rational to think that ensuring that an Indian child is

raised in a household that respects Indian values and

traditions makes it more likely that the child will eventually join an Indian tribe—thus ‘promot[ing] the stability and security of Indian tribes.’” Brackeen, 994

F.3d at 345.

Contrary to the district court’s conclusions, these

preferences do not impermissibly ignore the differences

between Tribes or treat them as “an undifferentiated

mass.” Zinke, 338 F. Supp. 3d at 535. Rather, the Act

provides that “[t]he standards to be applied in meeting

[its] preference requirements … shall be the prevailing

social and cultural standards of the Indian community

in which the parent or extended family resides or with

which the parent or extended family members maintain

social and cultural ties.” 25 U.S.C. § 1915(d). ICWA

does not treat Indian communities as interchangeable

equivalents; ICWA respects Indian Tribes as culturally

distinct communities, while recognizing that there will

be more commonalities between the “social and cultural

standards” of Indian Tribes than between tribal and

non-tribal communities. See id. § 1915(a)-(b) (creating

adoptive and foster care placement preferences for

family members first, followed by other members of the

Indian child’s tribe and then other Indian families).

Placement with an Indian family, selected in accordance with the social and cultural standards of the child’s

Tribe, minimizes the dislocation, marginalization, and

loss of identity experienced by the removed Indian

child. It is therefore crucial to ICWA’s purpose of protecting the best interests of Indian children and to the

fulfillment of Congress’s “distinctive obligation of

29

trust” in dealing with Indian Tribes. Seminole Nation

v. United States, 316 U.S. 286, 296 (1942).

Indeed, even if strict scrutiny applied—and it does

not—ICWA’s preferences for “other Indian families”

and “Indian foster home[s]” are narrowly tailored to

further a legitimate interest. As already explained,

granting priority to “other Indian families” and “Indian

foster home[s]” furthers Congress’s goals of protecting

the interests of both Indian tribes and children by giving Indian children the opportunity to be raised in

homes that protect Indian traditions and by ensuring

that Tribes will be protected from the existential threat

of future generations’ removal. ICWA is narrowly tailored, impacting only the small portion of a state court’s

docket involving Indian children, where placement with

the child’s extended family or Tribe is not possible, and

where there is not “good cause to the contrary,” 25 U.S.

§ 1915(a), to place the child elsewhere. Further narrowing to discriminate between Tribes would be impractical and would raise fresh concerns that courts

would be impermissibly classifying on the basis of religion or culture, rather than tribal affiliation.

CONCLUSION

The Court should reverse the judgment of the Fifth

Circuit insofar as the Fifth Circuit found ICWA to be

unconstitutional, and affirm the judgment of the Fifth

Circuit insofar as it upheld ICWA’s constitutionality.

30

Respectfully submitted.

ALAN E. SCHOENFELD

Counsel of Record

CHARLES C. BRIDGE

MARISSA W. MEDINE

CASSANDRA MITCHELL

WILMER CUTLER PICKERING

HALE AND DORR LLP

7 World Trade Center

250 Greenwich Street

New York, NY 10007

(212) 230-8800

alan.schoenfeld@wilmerhale.com

AUGUST 2022

APPENDIX

1a

APPENDIX A

AMICI CURIAE MEMBERS OF CONGRESS

1.

Senator Brian Schatz

2.

Senator Lisa Murkowski

3.

Senator Tammy Baldwin

4.

Senator Michael F. Bennet

5.

Senator Richard Blumenthal

6.

Senator Cory A. Booker

7.

Senator Maria Cantwell

8.

Senator Susan M. Collins

9.

Senator Catherine Cortez Masto

10.

Senator Tammy Duckworth

11.

Senator Dianne Feinstein

12.

Senator Margaret Wood Hassan

13.

Senator Martin Heinrich

14.

Senator John Hickenlooper

15.

Senator Mazie K. Hirono

16.

Senator Tim Kaine

17.

Senator Angus S. King, Jr.

18.

Senator Amy Klobuchar

19.

Senator Ben Ray Luján

20.

Senator Edward J. Markey

21.

Senator Jeffrey A. Merkley

22.

Senator Jerry Moran

2a

23.

Senator Patty Murray

24.

Senator Alex Padilla

25.

Senator Gary C. Peters

26.

Senator Jacky Rosen

27.

Senator Bernard Sanders

28.

Senator Kyrsten Sinema

29.

Senator Tina Smith

30.

Senator Dan Sullivan

31.

Senator Jon Tester

32.

Senator Elizabeth Warren

33.

Senator Ron Wyden

34.

Representative Sharice L. Davids

35.

Representative Tom Cole

36.

Representative Pete Aguilar

37.

Representative Don Bacon

38.

Representative Nanette Diaz Barragán

39.

Representative Karen Bass

40.

Representative Donald S. Beyer Jr.

41.

Representative Earl Blumenauer

42.

Representative Salud Carbajal

43.

Representative Tony Cárdenas

44.

Representative Ed Case

45.

Representative Judy Chu

46.

Representative J. Luis Correa

47.

Representative Angie Craig

3a

48.

Representative Peter A. DeFazio

49.

Representative Anna G. Eshoo

50.

Representative Ruben Gallego

51.

Representative Jesús G. “Chuy” García

52.

Representative Jimmy Gomez

53.

Representative Raúl M. Grijalva

54.

Representative Eleanor Holmes Norton

55.

Representative Jared Huffman

56.

Representative Pramila Jayapal

57.

Representative Kaiali’i Kahele

58.

Representative Daniel T. Kildee

59.

Representative Derek Kilmer

60.

Representative Doug LaMalfa

61.

Representative James R. Langevin

62.

Representative Brenda L. Lawrence

63.

Representative Teresa Leger Fernández

64.

Representative Mike Levin

65.

Representative Ted W. Lieu

66.

Representative Alan S. Lowenthal

67.

Representative Betty McCollum

68.

Representative Gwen S. Moore

69.

Representative Tom O’Halleran

70.

Representative Jimmy Panetta

71.

Representative Chellie Pingree

72.

Representative Mark Pocan

4a

73.

Representative Katie Porter

74.

Representative Raul Ruiz

75.

Representative Gregorio Kilili Camacho Sablan

76.

Representative Michael F. Q. San Nicolas

77.

Representative Adam B. Schiff

78.

Representative Kurt Schrader

79.

Representative Kim Schrier

80.

Representative Adam Smith

81.

Representative Darren Soto

82.

Representative Melanie Stansbury

83.

Representative Greg Stanton

84.

Representative Mark Takano

85.

Representative Mike Thompson

86.

Representative Rashida Tlaib

87.

Representative Norma J. Torres