Petition for Writ of Certiorari — Texas, Petitioner v. Deb Haaland, Secretary of the Interior, et al.
Supreme Court briefSep 3, 2021
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No. 21-____
In the Supreme Court of the United States
THE STATE OF TEXAS, PETITIONER
v.
DEB HAALAND, SECRETARY OF THE U.S. DEPARTMENT OF
THE INTERIOR, ET AL.
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION APPENDIX
VOLUME I
KEN PAXTON
Attorney General of Texas
BRENT WEBSTER
First Assistant Attorney
General
JUDD E. STONE II
Solicitor General
Counsel of Record
LANORA C. PETTIT
Principal Deputy Solicitor
General
MICHAEL R. ABRAMS
BETH KLUSMANN
Assistant Solicitors General
OFFICE OF THE
ATTORNEY GENERAL
P.O. Box 12548 (MC 059)
Austin, Texas 78711-2548
Judd.Stone@oag.texas.gov
(512) 936-1700
TA BLE O F C O NTE N TS – V O LU ME I
Appendix A — En Banc Opinion, Brackeen v.
Haaland, No. 18-11479 (5th Cir. Apr. 6, 2021) ....... 1a
TA BLE O F C O NTE N TS – V O LU ME II
Appendix A (cont’d) — En Banc Opinion,
Brackeen v. Haaland, No. 18-11479
(5th Cir. Apr. 6, 2021) ........................................... 344a
Appendix B — Order on Petitions for Rehearing
En Banc, Brackeen v. Bernhardt, No. 18-11479
(5th Cir. Nov. 7, 2019) ........................................... 397a
Appendix C — Opinion, Brackeen v. Bernhardt,
No. 18-11479 (5th Cir. Aug. 9, 2019, as modified
Aug. 16, 2019) ........................................................ 400a
Appendix D — Order on Motions for Summary
Judgment, Brackeen v. Zinke,
No. 4:17-cv-00868-O (N.D. Tex. Oct. 4, 2018) ...... 468a
Appendix E — Final Judgment, Brackeen v.
Zinke, No. 4:17-cv-00868-O (N.D. Tex.
Oct. 4, 2018) ........................................................... 528a
Appendix F — Order on Motions to Dismiss,
Brackeen v. Zinke, No. 4:17-cv-00868-O
(N.D. Tex. July 24, 2018) ...................................... 530a
Appendix G — Relevant Constitutional
Provisions .............................................................. 580a
Appendix H — Relevant Portions of the Indian
Child Welfare Act of 1978, 25 U.S.C. ................... 581a
Appendix I — Relevant Portions of the Final
Rule, 25 C.F.R. ...................................................... 600a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
April 6, 2021
Lyle W. Cayce
Clerk
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,
versus
DEB HAALAND, Secretary, United States Department of
the Interior; DARRYL LACOUNTE, Acting Assistant
Secretary for Indian Affairs; BUREAU OF INDIAN
AFFAIRS; 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; QUIANULT
INDIAN NATION; MORONGO BAND OF MISSION INDIANS,
Intervenor Defendants — Appellants.
(1a)
2a
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CV-868
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
JUDGE HO was recused and did not participate. JUDGE
WILSON joined the court after the case was submitted and did not
participate.
*
3a
anticommandeering doctrine. See id. at 441–46 (OWEN,
J., concurring in part and dissenting in part). This case
was then reconsidered en banc.
Neither JUDGE DENNIS’s nor JUDGE DUNCAN’s
principal opinion nor any of the other writings in this
complex case garnered an en banc majority on all issues.
We therefore provide the following issue-by-issue
summary of the en banc court’s holdings, which does not
override or amend the en banc opinions themselves.
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
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.”).
1
4a
ICWA under Article I of the Constitution. 2 An en banc
majority also holds that ICWA’s “Indian child”
classification does not violate equal protection. 3 The
district court’s ruling to the contrary on those two issues
is therefore reversed. The en banc court is equally
divided, however, as to whether Plaintiffs prevail on
their equal protection challenge to ICWA’s adoptive
placement preference for “other 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
See Part II(A)(1) of JUDGE DENNIS’s opinion and Part II of
JUDGE COSTA’s opinion.
3
Part II(B) of JUDGE DENNIS’s opinion is the en banc majority
opinion on this issue, except as to the constitutionality of “other
Indian families” in § 1915(a)(3) and “Indian foster home” in
§ 1915(b)(iii).
4
Compare Part II(B) of JUDGE DENNIS’s opinion with Part
III(A)(3) of JUDGE DUNCAN’s opinion.
5
Parts III(B)(1)(a)(i), (ii), (iv); III(B)(1)(b); and III(B)(2)(b)
(insofar as it addresses §§ 1912(d)–(f) and 1915(e)) of JUDGE
DUNCAN’s opinion are the en banc majority opinion on these issues.
2
5a
unconstitutional under the anticommandeering doctrine
is therefore affirmed. However, the en banc court is
equally divided on whether the placement preferences,
§ 1915(a)–(b), violate anticommandeering to the extent
they direct action by state agencies and officials 6; on
whether
the
notice
provision,
§ 1912(a),
unconstitutionally commandeers state agencies 7; and on
whether the placement record provision, § 1951(a),
unconstitutionally commandeers 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
Compare Part II(A)(2)(a)(i) of JUDGE DENNIS’s opinion with
Part III(B)(1)(a)(iii) of JUDGE DUNCAN’s opinion.
7
Compare Part II(A)(2)(b) of JUDGE DENNIS’s opinion with
Part III(B)(1)(a)(v) of JUDGE DUNCAN’s opinion.
8
Compare Parts II(A)(2)(a)(ii) of JUDGE DENNIS’s opinion with
Part III(B)(2)(c) of JUDGE DUNCAN’s opinion.
9
Part III(B)(2)(a) of JUDGE DUNCAN’s opinion is the en banc
majority opinion on this issue, except as to the appointed counsel
provision in § 1912(b).
6
6a
placement preferences, § 1915(a) and (b), and the
placement and termination standards, § 1912(e) and (f). 10
The district court’s rulings to the contrary are therefore
reversed.
Next, an en banc majority holds that § 1915(c), which
permits Indian tribes to establish an order of adoptive
and foster preferences that is different from the order
set forth in § 1915(a) and (b), does not violate the 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
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).
11
Part II(C) of JUDGE DENNIS’s opinion is the en banc majority
opinion on this issue.
12
Part II(D)(2) of JUDGE DENNIS’s opinion is the en banc
majority opinion on this issue.
13
Part III(D)(1) of JUDGE DUNCAN’s opinion is the en banc
majority opinion on this issue, insofar as it applies to §§ 1912(d)–(e)
and 1915(e).
10
7a
APA. 14 An en banc majority holds that the Final Rule did
not violate the APA in any other respect. The district
court’s grant of relief under the APA is affirmed to the
extent it is consistent with these holdings and reversed
to the extent it is inconsistent with these holdings.
The judgment of the district court is therefore
AFFIRMED in part and REVERSED in part, and
judgment is accordingly RENDERED.
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).
Part III(D)(3) of JUDGE DUNCAN’s opinion is the en banc
majority opinion on this issue.
14
8a
JAMES L. DENNIS, Circuit Judge: †
The Indian Child Welfare Act (ICWA) of 1978 is a
federal law that regulates the removal and out-of-home
placement of American Indian children. The Act
establishes minimum federal standards that must be met
in any legal proceeding to place an Indian child in a foster
or adoptive home, and it ensures that Indian tribes and
families are allowed to participate in such Indian child
welfare cases. See 25 U.S.C. § 1901 et seq. Congress
enacted ICWA after finding “that an alarmingly high
percentage of Indian families are broken up by the
removal, often unwarranted, of their children from them
by nontribal public and private agencies and that an
alarmingly high percentage of such children are placed
in non-Indian foster and adoptive homes and
† 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.
9a
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 TRIBES (March
2020),
https://www.ncsl.org/research/state-tribalinstitute/list-of-federal-and-state-recognizedtribes.aspx; CENTERS FOR DISEASE CONTROL AND
PREVENTION,
Tribal
Population
https://www.cdc.gov/tribal/tribes-organizationshealth/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
10a
California, Alaska, Arizona, Colorado, Connecticut,
Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan,
Minnesota, Mississippi, Montana, Nevada, New Jersey,
New Mexico, New York, Oklahoma, Oregon,
Pennsylvania,
Rhode
Island,
Utah,
Virginia,
Washington, and Wisconsin, which are collectively home
to 94% of federally recognized Indian tribes and 69% of
the national American Indian and Alaska Native
population.
We do not decide cases by a show of hands of states’
votes, of course, but we cannot ignore the irony of the
situation with which we are faced. Twenty-six states and
the District of Columbia, which are home to a large
majority of federally recognized tribes and the nation’s
overall indigenous population, do not view ICWA as any
sort of burden on their child welfare 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
11a
stop the abusive practices that had removed nearly a
generation of Indian children from their families and
tribes and that threatened the very existence of the
Indian nations. See generally MARGARET JACOBS, A
GENERATION REMOVED: THE FOSTERING AND
ADOPTION OF INDIGENOUS CHILDREN IN THE POSTWAR
WORLD (2014) [hereinafter JACOBS, A GENERATION
REMOVED]. The vast majority of child custody
proceedings in Texas, Louisiana, and Indiana do not
involve Indian children; therefore, ICWA does not apply
in the vast majority of such proceedings in those states
or, for that matter, in any other state.
Defendants are the United States of America, several
federal agencies and officials in their official capacities,
and five intervening Indian tribes. Defendants moved to
dismiss the complaint for lack of subject matter
jurisdiction, but the district court denied the motion,
concluding, as relevant to this appeal, that Plaintiffs had
Article III standing. The district court then granted
summary judgment in favor of Plaintiffs, ruling that
provisions of ICWA and the Final Rule violated equal
protection, the anticommandeering doctrine, the
nondelegation doctrine, and the Administrative
Procedure Act (the “APA”). Defendants appealed.
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.
12a
BACKGROUND
Before the establishment of the United States, the
North American landmass was “owned and governed by
hundreds of Indian tribes.” COHEN’S HANDBOOK OF
FEDERAL INDIAN LAW § 1.01 (Nell Jessup Newton ed.,
2012.) [hereinafter COHEN’S]. These tribes, sovereigns
under international law, came under the jurisdiction of
the United States “through a colonial process that was
partly negotiated and partly imposed.” Id. The
Constitution recognizes the existence of Indian tribes
and, in many respects, treats them as sovereigns in the
same manner as the states and foreign nations. See U.S.
CONST. art. I, § 8, cl. 3 (empowering Congress “[t]o
regulate Commerce with foreign Nations, and among the
several States, and with the Indian Tribes”); Holden v.
Joy, 84 U.S. 211, 242 (1872) (holding that the President’s
Article II, Section 2 power to make treaties with the
Indian tribes is coextensive with the power to make
treaties with foreign nations). But a long line of judicial
opinions confirms that, under U.S. law, Indian tribes
occupy a unique position: they are “domestic, dependent
nations.” Cherokee Nation v. Georgia, 30 U.S. (5 Pet.) 1,
17 (1831). That is, tribes reside within the United States
and are subject to federal power, but they retain
sovereign authority over a range of matters relevant to
their self-government. COHEN’S, supra § 1.01.
Three key principles underpin the field of federal
Indian law. First, Indian tribes possess “inherent powers
of a limited sovereignty that has never been
extinguished.” Id. Because of tribes’ retained
sovereignty, they have a government-to-government
relationship with the United States. Id. Second, the
federal government has expansive and exclusive powers
13a
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 government-to-government relations, state
authority in this field is very limited. Id.
In addition to these precepts, we are mindful of the
uniquely crucial importance of historical perspective in
federal Indian law. See, e.g., CHARLES A. MILLER, THE
SUPREME COURT AND THE USES OF HISTORY 24 (1969)
(“[I]n disputes concerning American Indian tribes the
courts have also considered and often decided cases
principally on the basis of historical materials[.]”). As
Justice Holmes said about a different issue: “Upon this
point a page of history is worth a volume of logic.” New
York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921); see
also N.L.R.B. v. Noel Canning, 573 U.S. 513, 524 (2014)
(“[L]ong settled and established practice is a
consideration of great weight in a proper interpretation
of constitutional provisions[.]” (quoting The Pocket Veto
Case, 279 U.S. 655, 689 (1929)). Particularly significant
to our analysis is the contemporary understanding of the
Constitution’s treatment of Indian Affairs at the time of
its adoption. See, e.g., District of Columbia v. Heller, 554
U.S. 570, 605-10 (2008) (canvassing Founding-era
historical sources to synthesize the original
understanding of the Constitution). We therefore survey
the interrelated history of Indian affairs and the
adoption of the Constitution.
14a
I. A Brief History of the American Indians and the
United States Constitution
In holding key provisions of ICWA unconstitutional,
the district court disregarded two centuries of precedent
and omitted any discussion of the history of the federal
constitutional power to enter treaties or legislate with
respect to the Indian tribes. Seeking to make up for the
district court’s errors and omissions, the Plaintiffs now
cite to several historical texts. The 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
15a
military, confronted looming wars against powerful
Indian confederacies on the northern and southern
borderlands.” Id. Unrest between the tribes, the states,
squatters, and settlers was largely to blame for this
dramatic shift in national mood—hallmarks of the failure
of the central government’s Indian policy under the
Articles of Confederation. Id. at 1006.
The insolvent Continental Congress desperately
desired both peace with the Indians and annexation of
the western land they inhabited in order to repay the
debt it had incurred during the Revolutionary War. Id.
To accomplish these goals, the new nation followed the
practice of the British, who had treated Indian tribes as
“quasi-foreign nations” and used negotiation, treaties,
and war-making as the primary tools for managing
relations. Br. of Prof. Ablavsky at 5. In other words, the
United States 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
16a
to possess Indian affairs powers like those that any
sovereign would hold in conducting affairs with other
sovereigns. See id. (noting that “before the revolution”
these powers “were possessed by the King”). In practice,
however, it was not clear whether, under the Articles, the
states also retained the sovereign power to deal with the
Indian tribes in their own right. See THE FEDERALIST
NO. 42 at 217 (James Madison) (describing the
delineation of authority as “ambiguous”).
Exercising its federal authority, the Continental
Congress appointed commissioners to secure peace
treaties with tribes throughout the nation. COHEN’S,
supra at 1.02[3]. These treaties serve as some of the
earliest documentary bases for the nation’s continuing
trust relationship with the tribes. For example, in return
for peace and other guarantees, the United States
promised the Cherokees that the tribe would be
“received” into “the favour and protection of the United
States of America.” Treaty with the Cherokees,
preamble, 1785, 7 Stat. 18. Similar language was included
in a treaty with the Six Nations tribes at Fort Stanwix in
New York. TREATY WITH THE SIX NATIONS, 1784, 7 Stat.
15 (Treaty at Fort Stanwix).
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
17a
concerning the scope of federal power over Indian
affairs, construing them in a manner that “le[ft] the
federal powers . . . a mere nullity.” 33 Journals of the
Continental Congress at 457. Indeed, Georgia outright
ignored federal treaties and attempted to form its own
compacts with the Creek Indians, see id., “reportedly
resort[ing] to death threats to compel agreement” and
expropriate tribal lands. Ablavsky, The Savage
Constitution, supra at 1028; see also Report of the
Secretary of War on the Southern Indians (July 18,
1787), in 18 EARLY AMERICAN INDIAN DOCUMENTS:
TREATIES AND LAWS, 1607-1789: REVOLUTION AND
CONFEDERATION 449, 450 (Alden T. Vaughan et al. eds.,
1994)
[hereinafter
EARLY AMERICAN INDIAN
DOCUMENTS].
In a memorandum drafted on the eve of the
Constitutional Convention, James Madison described
Georgia’s “wars and Treaties . . . with the Indians,” as
emblematic of the “vices” inherent in the division of
federal and state power under the Articles. JAMES
MADISON, VICES OF THE POLITICAL SYSTEM OF THE
UNITED STATES, in 9 THE PAPERS OF JAMES MADISON
345, 348 (Robert A. Rutland et al. eds., 1975). And in a
letter sent to Congress in the midst of the Convention,
Secretary at War Henry Knox worried that the United
States could not “effectual[y] interfere[]” in the many
skirmishes that pitted states and settlers against Indians
and, he predicted that a “general [I]ndian war may be
expected.” 1 H. Knox, Report of the Secretary at War on
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
1
18a
the Southern Indians (July 18, 1787), in 18 EARLY
AMERICAN INDIAN DOCUMENTS 450. Thus, nationalists
like Madison and Alexander Hamilton “agreed on the
problem”: the new nation was “too weak to exercise the
authority it enjoyed on paper” under the Articles of
Confederation, and a stronger federal government was
needed. Ablavsky, Savage Constitution, supra at 999.
“Indian affairs thus propelled the creation of a more
powerful national state—one that, in Madison’s words,
would possess the “ability to effect what it is proper [it]
should do.’” Id. (alterations in original) (quoting Letter
from James Madison to George Nicholas (May 17, 1788),
in 18 THE DOCUMENTARY HISTORY OF THE
RATIFICATION OF THE CONSTITUTION: COMMENTARIES
ON THE CONSTITUTION PUBLIC AND PRIVATE 24, 28
(John P. Kaminski et al. eds., 1995)). The supporters of a
stronger national authority envisioned a central
government that could “govern not merely in principle
but ‘in reality,’” as Secretary Knox wrote about Indian
affairs. Id. (quoting Report of the Secretary at War on
the Southern Indians (July 18, 1787), in 18 EARLY
AMERICAN INDIAN DOCUMENTS 449, 450).
At the Constitutional Convention, Madison
attributed the failings of Indian policy to state
interference with the Confederation’s authority,
especially its treatymaking power. Id. at 1006. His
solution to Indian affairs was to revise “federalism to
was appointed to the new position of “Secretary of War” in
September 1789. See Harry M. Ward, The Department of War,
1781-1795, at 101-02 (1962); see also Act of Aug. 7, 1789, ch. 7, 1 Stat.
49, 50 (establishing the Department of War and the office of
Secretary of War, a position invested with “such duties as shall be
enjoined on, or entrusted to him by the President of the United
States . . . relative to Indian Affairs”).
19a
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.
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
2
Though the writings and speeches of Madison have
traditionally been regarded as the authoritative encapsulation of the
Federalist case for the Constitution, contemporary research has
upset the assumption that Madison’s views were representative of
the Federalist camp generally. In particular, historians have
harnessed The Documentary History of the Ratification, a rich
source of primary material concerning the Constitutional
Convention and the ratification debates that includes documents
such as letters, petitions, and records of convention debates. See
MAX M. EDLING, A REVOLUTION IN FAVOR OF GOVERNMENT:
ORIGINS OF THE U.S. CONSTITUTION AND THE MAKING OF THE
AMERICAN STATE 18-21 (2003) at 29 [hereinafter Edling, A
REVOLUTION IN FAVOR OF GOVERNMENT] (citing THE
DOCUMENTARY HISTORY OF THE RATIFICATION OF THE
CONSTITUTION: COMMENTARIES ON THE CONSTITUTION PUBLIC
AND PRIVATE 24, 28 (John P. Kaminski et al. eds., 1995)). In addition
to the obvious import of the proceedings during the Constitutional
Convention at which the charter was framed, documentation from
the subsequent ratification debates offers significant insight into
how the Constitution should be interpreted. The Constitution rooted
its legitimacy in the consent of those whom it would come to govern,
declaring that the system it outlined was “ordained and established”
by “We the people,” U.S. CONST. PREAMBLE. To turn the promise
of self-rule into a reality, ratification was conducted through a series
of state conventions with delegates chosen by the voters of each
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state. Ratification thus was itself an act of popular sovereignty and
representative democracy that required the public and its chosen
delegates to be educated and deliberate on the meaning of the
Constitution. See id. at 29-31. These ratification debates provided
the “first widely shared” exposition of important constitutional
provisions, and the discussions that took place therein were the
starting point for constitutional interpretation during the early
republic. Id. Thus, the contemporaneous writings that circulated
among the public and within the state ratification conventions are
as important as the records of the Constitutional Convention itself
in determining the charter’s original public meaning. See id.
Mining this trove, historians have concluded that the issues that
motivated Madison were not emphasized by all Federalists. Many
Federalists did not echo Madison’s prototypical liberal “call for
minority rights and limited government,” but rather argued for the
formation of a strong national state. Id. at 14-15. While Madison was
concerned primarily with creating a constitutional structure that
would protect liberty by restraining concentrations of power and
safeguarding the rights of minorities, Hamilton and others sought
to establish a robust “national government with the ability to act.”
Id.
This latter group of Federalists, having witnessed the failings
of the weak and insolvent nation under the Articles of
Confederation, were fierce advocates for the Constitution’s grant of
unlimited fiscal and military power to the central government,
arguing that centralizing such authority was necessary to defend
against foreign and domestic aggressors and competitors. Id. Chief
among the adversaries they sought to protect against were the
Indian tribes. Indians presented immediate dangers in the
borderlands, and these Federalists feared the tribes would form
confederations with each other, the British to the north, or the
Spanish to the south, creating strong rival powers for control of the
continent. Id. These Federalists also perceived a need to remove the
tribes, by force or by treaties, as obstacles to the new nation’s
capitalization of the interior lands and their resources. See
Ablavsky, Savage Constitution at 1037-38, 1063-67. Countering the
tribes, they believed, would require a strong central government
with unlimited taxing, borrowing, and military powers. In sum, the
need for a strong national government with robust powers to
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Hamilton and likeminded Federalists to Indian affairs,
then, was to create a muscular “fiscal-military state that
would possess the means to dominate the borderlands at
Indians’ expense.” Id. (citing Max M. Edling, A
REVOLUTION IN FAVOR 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
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 105867.
22a
understanding of the Constitution. See id. at 1058-67.
Indeed, “many Federalists repeatedly invoked the
specter of threats posed by the ‘savages’ to justify”
states’ ratifying a stronger federal government and a
standing army. Id. at 1000, 1069. This unifying strategy
worked well: Georgia, for example, ratified the new
Constitution after only three days of debate so that it
could secure federal aid in its ongoing war with the
Creek Indians. Id.
Proponents of the new charter also expressly
contended that its consolidation of power over Indian
affairs in the national government would rectify the
problems that had resulted from the split authority
between the states and Congress under the Articles of
Confederation. Writing in the Federalist Papers,
Madison described the Indian Commerce Clause as
“very properly unfettered” by the ambiguous limits
Article XI of the Articles of Confederation had placed on
state power. THE FEDERALIST NO. 42 at 217 (James
Madison); see also Ablavsky, The Savage Constitution,
supra at 1053-54. The Constitution’s opponents
recognized, too, the import of this redistribution of
power in Indian affairs; Abraham Yates, a leading AntiFederalist, 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
23a
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, 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)
24a
[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, 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
See also Act of May 19, 1796, 4 Cong. ch. 30, § 3, 1 Stat. 469,
470; Act of June 30, 1834, ch. 161, 4 Stat. 729; Act of Mar. 30, 1802,
ch. 13, 2 Stat. 139; Act of Mar. 3, 1799, ch. 46, 1 Stat. 743; Act of Mar.
1, 1793, ch. 19, 1 Stat. 329.
4
“The army had been brought into existence to deal with
western expansion and to coerce the Indians.” EDLING, A
REVOLUTION IN FAVOR OF GOVERNMENT, supra at 140. Indeed, in
3
25a
the early 1790s resulted in gross failure, as an Indian
confederacy handed the American forces the U.S.
Army’s worst defeat by Indians in its entire history.
Ablavsky, Savage Constitution, supra at 1077-78. The
Indians’ routing of American troops underscored their
martial strength and the threat that they posed to the
nation’s ambitions to conquer the western lands. In
response, the government ramped up spending on the
Army over the next few years, swelling its size
severalfold. In subsequent battles with the Indians, the
newly strengthened Army “prevailed, seizing most of
present-day Ohio.” Id. at 1078. The government’s
bellicose stance toward the tribes persisted, and, over
the next century, wars between the Indians and the
United States “remained a near constant” as the
government continued to facilitate westward expansion. 5
the Antebellum era alone, the U.S. Army fought at least ten wars
against the Indians. Ablavsky, Savage Constitution, supra at 1080
& n.483.
5
The history of the dispossession of the Indians continued apace
throughout the nineteenth and well into the twentieth centuries. In
the early years of the nineteenth century, for example, the United
States negotiated treaties that resulted in the nation acquiring
millions of acres, “often paying pennines on the acre for lands worth
many times more.” COHEN’S, supra § 1.03. Later, during the
“allotment” era of 1887 until 1934, Indians’ land holdings plunged
from 138 million acres to only 48 million acres of land due to the
federal government’s policy of splitting tribal members’ undivided
interests in reservation lands into individually-owned lots and then
selling off “surplus” reservation land to non-Indians. Id. § 1.04. By
the measure of some scholars of the Indian history, “the United
States seized some 1.5 billion acres from North America’s native
peoples” in total since the nation’s founding. Claudio Saunt, The
(Jan.
7,
2015),
Invasion
of
America,
AEON
https://aeon.co/essays/how-were-1-5-billion-acres-of-land-sorapidly-stolen. Professor Saunt has authored several books
26a
Id. at 1078. In this way, the Constitution operated as the
Federalists had predicted: the nation developed a strong
military able to quell any threat posed by Indians and,
consequently, to open up the west to Anglo settlement.
Id. at 1077-78.
Finally, early Supreme Court decisions confirm that
the Constitution was understood to place the reins of
authority over Indian affairs squarely and solely in the
hands of the federal government. In Worcester v.
Georgia, 31 U.S. (6 Pet.) 515, 559 (1832), Chief Justice
John Marshall explained that the Constitution
confers on congress the powers of war and peace; of
making treaties, and of regulating commerce with
foreign nations, and among the several states, and
with the Indian tribes. These powers comprehend all
that is required for the regulation of our intercourse
with the Indians. They are not limited by any
restrictions on their free actions. The shackles
imposed on this power, in the confederation, are
discarded.
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
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).
27a
contemplate the Indian territory as completely
separated from that of the states; and provide that all
intercourse with them shall be carried on exclusively by
the government of the union.”); see also Ablavsky,
Beyond the Indian Commerce Clause, supra at 1040; cf.
McGirt v. Oklahoma, 140 S. Ct. 2452, 2463 (2020) (“The
policy of leaving Indians free from state jurisdiction and
control is deeply rooted in this Nation’s history.”
(internal quotation marks omitted)).
In sum, the historical evidence powerfully
demonstrates that the Framers intended the
Constitution, through an array of provisions, to entrust
to the federal government exclusive and supreme
authority in Indian affairs, including the power to
prevent states from interfering with federal policy
toward the Indians. It also reveals that the Founding
Generation, both at the federal and state levels, held this
same understanding regarding the Constitution’s
consolidation of authority in Indian affairs. Wielding its
interconnected, symbiotic powers in this area, the early
federal government at times regulated to encourage
national expansion at the expense of the Indians’
sovereignty and thereby to entrench tribes’ dependency
on the federal government of the United States.
II. The Special Federal Tribal Trust Relationship
As a result of the federal government’s forcible
annexation of the western lands and envelopment of the
Indian nations, the United States developed a special
obligation with respect to the Indian tribes, with the two
sharing what modern courts generally describe as a
unique “trust relationship.” Matthew L.M. Fletcher,
PRINCIPLES OF FEDERAL INDIAN LAW § 5.2 (1st ed.
2017) [hereinafter Fletcher, FEDERAL INDIAN LAW]. In
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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, 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
29a
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. Specifically, it permitted only federal agents to
purchase Indian lands and provided for criminal
sanctions for offenses by non-Indians against Indians.
See COHEN’S, supra § 1.03. Federal legislation protective
of Indians was crucial because, as the Court later
explained, the tribes “owe no allegiance to the states, and
receive from them no protection. Because of the local ill
feeling, the people of the states where they are found are
often their deadliest enemies.” United States v. Kagama,
118 U.S. 375, 384 (1886).
The government’s acknowledgement and assumption
of a special duty of protection is further reflected in
countless treaties between the United States and the
tribes. See, e.g., Worcester, 31 U.S. at 519 (noting that the
United States “assum[ed] the duty of protection” toward
the Cherokee Nation under the Treaty of Holston, July
2, 1791, 7 Stat. 39, 40). Like the Indian Intercourse Act,
these treaties committed the government to protecting
the tribes from a sometimes-hostile non-Indian populace.
See, e.g., Treaty with the Northern Cheyenne and
Northern Arapahoe, art. I, May 10, 1868, 15 Stat. 655,
30a
655 (“If bad men among the whites, or among other
people subject to the authority of the United States, shall
commit any wrong upon the person or property of the
Indians, the United States will . . . cause the offender to
be arrested and punished according to the laws of the
United States, and also reimburse the injured person for
the loss sustained.”); see also Mary Christina Wood,
Indian Land and the Promise of Native Sovereignty:
The Trust Doctrine Revisited, 1994 UTAH L. REV. 1471,
1496-97 (1994). The Supreme Court itself has repeatedly
recognized the duty of protection the treaties
memorialized. See, e.g., Kagama, 118 U.S. at 384 (“From
the[ tribes’] very weakness and helplessness, so largely
due to the course of dealing of the federal government
with them, and the treaties in which it has been
promised, there arises the duty of protection, and with it
the power.”); Worcester, 31 U.S. at 519.
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
31a
Wolf v. Hitchcock, 187 U.S. 553, 565-66 (1903)). In taking
a hands-off, deferential approach to Congress’s
management of Indian affairs, the Court analogized the
federal-tribal relationship as akin to that of a guardian to
its ward. See, e.g., id. at 565 (stating that “Congress
possess[es] paramount power over the property of the
Indians, by reason of its exercise of guardianship over
their interests”); Kagama, 118 U.S. at 384 (“These
Indian tribes are the wards of the nation. They are
communities dependent on the United States[.]”).
Though intended to suggest that the government played
a salutary role in tribal affairs, the guardianship
metaphor instead underscores a prevailing view of
Indians—both wrongheaded and deeply repugnant—as
primitive people, “untutored and improvident, and still
requiring the protection and supervision of the general
government.” Heckman v. United States, 224 U.S. 413,
417 (1912); see also, e.g., Beecher v. Wetherby, 95 U.S. (5
Otto) 517, 525 (1877) (describing the Indians as “an
ignorant and dependent race” subject to the “control [of]
a Christian people”).
In 1934, Congress began a “slow retreat” from this
problematic guardianship model when it enacted the
Indian Reorganization Act. Fletcher, FEDERAL INDIAN
LAW, supra § 5.2 (citing Act of June 18, 1934, 48 Stat.
984, codified as amended at 25 U.S.C. §§ 5101 et seq.).
The Act, for 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
32a
that the government’s relationship with and obligations
to the tribes is instead that of a trustee to a beneficiary.
See, e.g., 25 U.S.C. §§ 5601–02 (recognizing and
reaffirming the federal trust responsibility); 25 U.S.C.
§ 3101 (finding that “the United States has a trust
responsibility toward Indian forest lands”); United
States v. Mitchell, 463 U.S. 206, 225 (1983) (affirming the
“undisputed existence of a general trust relationship
between the United States and the Indian people”); see
also Fletcher, FEDERAL INDIAN LAW, supra § 5.2.
Rather than reflecting and justifying a paternalistic
approach that subordinated tribal sovereignty—as the
guardianship model did—the trust relationship commits
the federal government to preserving tribal selfgovernance. 6 It also obligates and authorizes Congress
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:
6
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.
33a
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.
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
7
See, e.g., Indian Trust Asset Reform Act, 25 U.S.C. §§ 5601–
5602 (recognizing and reaffirming the federal trust responsibility);
National Indian Forest Resources Management Act, 25 U.S.C.
§ 3101 (finding that “the United States has a trust responsibility
toward forest lands”); American Indian Agricultural Resources
Management Act, 25 U.S.C. § 3701 (finding that “the United States
has a trust responsibility to protect, conserve, utilize, and manage
Indian agricultural lands consistent with its fiduciary obligation and
its unique relationship with Indian tribes”); American Indian Trust
Fund Management Reform Act of 1994, 25 U.S.C. § 4043 (Special
Trustee for American Indians must prepare comprehensive
strategic plan to “ensure proper and efficient discharge of the
Secretary’s trust responsibilities to Indian tribes and individual
Indians”); Native American Housing Assistance and SelfDetermination 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.”).
34a
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 into over one hundred treaties with Indian tribes
that obligated the federal government to provide for
Indian education. And stemming from a misguided
paternalistic stance toward the tribes, President
Washington directed American treaty commissioners
dealing with Indian tribes to “endeavor to obtain a
stipulation for certain missionaries . . . to reside in the
nation” in order to “civilize” the population. Matthew
L.M. Fletcher & Wenona T. Singel, Indian Children and
the Federal-Tribal Trust Relationship, 95 NEB. L. REV.
885, 912 (2017) (quoting Letter from George
Washington, President of the United States, to Benjamin
Lincoln, Cyrus Griffin, and David Humphreys, (August
29, 1789), reprinted in 4 AMERICAN STATE PAPERS 65, 66
(Walter Lowrie & Matthew St. Clair Clarke eds., 1832)).
During the late eighteen century the federal
government even expressly involved itself in the transfer
of American Indian children from their families and
35a
tribal communities to non-native homes. Fletcher,
FEDERAL INDIAN LAW, supra § 3.6. Under the
Washington Administration, for instance, federal monies
financed the rearing of Indian children in Quaker homes.
Br. of Prof. Ablavsky at 20. Though springing from an
intention to do good, like much of the government’s past
Indian policy, the Indian removal efforts wrought
monumental and lasting damage on the lives of individual
Indians and tribes. See Fletcher, FEDERAL INDIAN LAW,
supra § 3.6.
The campaign to “Christianize” the supposedly
heathen Native peoples greatly expanded in the late
nineteenth century, with the removal of Indian children
constituting the single most important aspect of the
government’s “civilization” policy. See Fletcher,
FEDERAL INDIAN LAW, supra § 3.6. Government officials
took Indian children from their homes and tribal lands,
at times by force, and enrolled them at coercive, offreservation 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
36a
Richard H. Pratt, THE ADVANTAGES OF MINGLING
INDIANS WITH WHITES (1892), reprinted in
AMERICANIZING THE AMERICAN INDIANS: WRITINGS BY
THE “FRIENDS OF THE INDIAN” 1880–1900 260–61
(Francis Paul Prucha ed. 1973)).
Although the total number of children enrolled in the
boarding schools is unknown, in 1895 alone 157 boarding
schools housed more than 15,000 Indian children. Andrea
C. Curcio, Civil Claims for Uncivilized Acts: Filing Suit
Against the Government for American Indian Boarding
School Abuses, 4 HASTINGS RACE & POVERTY L.J. 45, 57
(2006). Many were run directly by the Bureau of Indian
Affairs (“BIA”). Others were operated by Christian
groups that received federal funds. Schooling was left to
Christian groups because Christianity, and particularly
Protestantism, was seen, at the time, as essential to a
“civilized” life. See Fletcher, FEDERAL INDIAN LAW,
supra § 3.6. The government thus hoped to eradicate the
American Indians’ native religions by converting young
Indians to Christianity.
The use of government-backed force was central to
the creation of these boarding schools. “Indian parents
who opposed the taking of their children to these schools
faced criminal prosecution and possible incarceration.”
Id. Children were “literally kidnap[ped]” so they could
be 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
37a
reform Indian children and assimilate them into Anglo
society. Id. Children were forbidden to speak their native
languages and were punished, including through
beatings, if they lapsed into their native tongues.
COHEN’S, supra § 1.04. And the goal of permanently
severing Indian children’s connections with tribal life did
not stop at the end of the school year. Under an “outing
system,” Indian children were placed in non-Indian
homes far from their reservations during the summer,
ensuring that they never returned to their communities
during their tenure at the boarding schools. Fletcher,
FEDERAL INDIAN LAW, supra § 3.6.
In 1928, a devastating federally commissioned report
produced by the Brookings Institution laid bare the
problems in Indian boarding schools, concluding that
they were “grossly inadequate.” See Lewis Meriam, THE
PROBLEM OF INDIAN ADMINISTRATION 11 (1928). The
report detailed life at the schools, citing “deplorable
health conditions,” including fire risks, “serious
malnutrition, and high-rates of communicable diseases.”
Id. at 192, 318-19. More generally, the report observed
that the “official government attitude” toward Indian
education had been premised “on the theory that it is
necessary to remove the Indian child[ren] as far as
possible from [their] environment” so as to prepare them
for “life among the whites.” Id. at 346, 618. This way of
thinking, the report explained, was fundamentally
flawed and at odds with the “modern point of view in
education,” which favored rearing the child “in the
natural setting of home and family life.” Id. at 346. The
result of the government’s boarding school policy had
been to “largely disintegrate[] the [Indian] family.” Id.
at 15.
38a
By the time of the report, Indian boarding schools
had begun to decline as the BIA charged state public
schools with assuming more responsibility for Indian
education. COHEN’S, supra § 1.04. But the boarding
schools did not vanish; as late as the 1970s, thousands of
Indian children were still being educated at federal
boarding schools. See Indian Child Welfare Act of 1977:
Hearing on S. 1214 Before the Select Comm. on Indian
Affairs, 95th Cong. 603 (1977).
In establishing Indian schools, “the intent of
American policymakers and educators may not have
been to harm Indian people,” but the “end result was the
near-destruction of tribal culture and religion across the
United States.” Fletcher, FEDERAL INDIAN LAW, supra
§ 3.6. The federal government itself has acknowledged
its tragic role in decimating Indian tribes and families by
separating them from their children. In 2000, the
Assistant Secretary of the BIA offered a formal apology
to the Indian tribes:
[The BIA] set out to destroy all things Indian.
This agency forbade the speaking of Indian
languages, prohibited the conduct of
traditional religious activities, outlawed
traditional government, and made Indian
people ashamed of who they were. Worst of all,
the [BIA] committed these acts against the
children entrusted to its boarding schools,
brutalizing them emotionally, psychologically,
physically, and spiritually . . . Never again will
we seize your children, nor teach them to be
ashamed of who they are. Never again.
39a
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 thirty-five
percent of all Indian children were removed from their
families. See Indian Child Welfare Program: Hearings
before the Subcommittee on Indian Affairs of the Senate
Committee on Interior and Insular Affairs, 93rd CONG.
REC. 3 (April 8–9, 1974) (statement of William Byler,
Executive Director, Association of American Indian
Affairs); H.R. Rep. No. 95-1386, at 9 (1978). “In 16 states
surveyed in 1969, approximately 85% percent of all
Indian children in foster care were living in non-Indian
homes,” while in Minnesota in the early 1970s “90
percent of the adopted Indian children [were] in 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
40a
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 nonIndians. 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, 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 nonIndian 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
41a
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. NonIndian child welfare agents, however, interpreted this
practice of extended family care as parental neglect and
cited it as a reason for removing Indian children from
their parents and putting them up for adoption. See
Supreme Court Br. of Indian Law Professors in
Adoptive Couple v. Baby Girl, No. 12–399. In total, this
and similar uninformed and abusive practices resulted in
the removal, as noted, of over a quarter of all Indian
children from their homes in states with large Indian
populations. See H.R. Rep. No. 95-1386, at 9 (1978). Thus,
even though the widespread transfer of Indian children
to non-Indians may not have been specifically intended
as an assimilation project, it nonetheless had that effect.
The mass removal of Indian children had profoundly
adverse effects on the children themselves, who suffered
trauma from being separated from their families and
“problems of adjusting to a social and cultural
environment much different than their own.” Id.; see also
Indian Child Welfare Act of 1977: Hearing Before the S.
Select Committee on Indian Affs., 95th Cong. 114 (1977)
(statement of Carl E. Mindell, M.D., & Alan Gurwitt,
M.D., American Academy of Child Psychiatry) (stating
that “[t]here is much clinical evidence to suggest that
these Native American children placed in off-reservation
non-Indian homes are at risk in their later development”
and that “they are subject to ethnic confusion and a
pervasive sense of abandonment”). Indian parents
42a
suffered greatly, too, of course. The evil of mass removal,
however, was systemic, threatening not only children
and families but the tribes themselves. As Calvin Isaac,
the Chief of the Mississippi Band of Choctaw Indians,
explained to Congress, the aggregate effect of the
removal of Indian children threatened the tribes’
existence:
Culturally, the chances of Indian survival are
significantly reduced if our children, the only
real means for the transmission of the tribal
heritage, are to be raised in non-Indian homes
and denied exposure to the ways of their
People.
Furthermore,
these
practices
seriously undercut the tribes’ ability to
continue as self-governing communities.
Probably in no area is it more important that
tribal sovereignty be respected than in an area
as socially and culturally determinative as
family relationships.
Holyfield, 490 U.S. at 34. 8
V. Congress’s Findings and Aims in Enacting ICWA
In view of the alarming abuses perpetrated through
state Indian child custody proceedings, Congress
enacted ICWA in 1978. Recognizing that a “special
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)).
8
43a
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
administrative and judicial bodies, have often
failed to recognize the essential tribal relations
of Indian people and the cultural and social
standards prevailing in Indian communities and
families.” Id. § 1901(5).
Based on its findings, Congress declared that it was the
policy of the United States
to protect the best interests of Indian children
and to promote the stability and security of
Indian tribes and families by the establishment
of minimum Federal standards for the removal
of Indian children from their families and the
44a
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 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
45a
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
preferences, the state court or agency effecting the
placement “shall follow [the tribe’s] order so long as the
placement is the least restrictive setting appropriate to
the particular needs of the child.” Id. § 1915(c).
The state in which an Indian child’s placement was
made shall maintain records of the placement, which
shall be made available at any time upon request by the
Secretary or the child’s tribe. Id. § 1915(e). An Indian
adoptee who attains the age of majority may request that
the court which entered the adoption order provide her
with information “as may be necessary to protect any
rights flowing from the . . . tribal relationship.” Id. § 1917.
46a
And a state court entering a final decree in an adoptive
placement “shall provide the Secretary with a copy of
such decree or order” and information as necessary
regarding “(1) the name and tribal affiliation of the child;
(2) the names and addresses of the biological parents; (3)
the names and addresses of the adoptive parents; and (4)
the identity of any agency having files or information
relating to such adoptive placement.” Id. § 1951(a).
ICWA’s severability clause provides that “[i]f any
provision of this chapter or the applicability thereof is
held invalid, the remaining provisions of this chapter
shall not be affected thereby.” Id. § 1963.
VII. The Final Rule
ICWA provides that “the Secretary [of the Interior]
shall promulgate such rules and regulations as may be
necessary to carry out [its] provisions.” 25 U.S.C. § 1952.
In 1979, the BIA promulgated guidelines (the “1979
Guidelines”) intended to assist state courts in
implementing ICWA but that lacked “binding legislative
effect.” Guidelines for State Courts; Indian Child
Custody Proceedings, 44 Fed. Reg. 67,584, 67,584 (Nov.
26, 1979). The 1979 Guidelines left the “[p]rimary
responsibility” of interpreting certain language in ICWA
“with the [state] courts that decide Indian child custody
cases.” Id. However, in June 2016, the BIA promulgated
the Final Rule to “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
47a
while the BIA “initially hoped that binding regulations
would not be necessary to carry out [ICWA], a third of a
century of experience has confirmed the need for more
uniformity in the interpretation and application of this
important Federal law.” 81 Fed. Reg. at 38,782 (internal
citation and quotation marks omitted).
The Final Rule provides that state courts have the
responsibility of determining whether a child is an
“Indian child” subject to ICWA’s requirements. 25
C.F.R. §§ 23.107; 81 Fed. Reg. at 38,778, 38,869-73. The
Final Rule also sets forth notice and recordkeeping
requirements for states, see 25 C.F.R. §§ 23.140-41; 81
Fed. Reg. at 38,778, 38,875-76, and requirements for
states and individuals regarding voluntary proceedings
and parental withdrawal of consent, see 25 C.F.R.
§§ 23.124-28; 81 Fed. Reg. at 38,778, 38,873-74. The Final
Rule also restates ICWA’s placement preferences and
clarifies when they apply and when states may depart
from them. See 25 C.F.R. §§ 23.129-32; 81 Fed. Reg. at
38,778, 38,874-75.
VIII.
The Instant Action
A. Parties
1. Plaintiffs
Plaintiffs in this action are the states of Texas,
Louisiana, and Indiana, 9 (collectively, “State Plaintiffs”),
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.
9
48a
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
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
49a
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
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
50a
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
“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.
51a
2. Defendants
Defendants are the United States of America; the
United States Department of the Interior and its
Secretary Deb Haaland, in her official capacity; the BIA
and its Director Darryl La Counte, in his official
capacity; and the Department of Health and Human
Services and its Secretary Xavier Becerra, in his official
capacity (collectively, the “Federal Defendants”).
Shortly after this case was filed in the district court, the
Cherokee Nation, Oneida Nation, Quinalt Indian Nation,
and Morengo Band of Mission Indians (collectively, the
“Tribal Defendants”) moved to intervene, and the
district court granted the motion. On appeal, we granted
the Navajo Nation’s motion to intervene as a defendant10
(together with Federal and Tribal Defendants,
“Defendants”).
B. Procedural History
Plaintiffs filed the instant action against the Federal
Defendants in October 2017, alleging that the Final Rule
and certain provisions of ICWA are unconstitutional and
seeking injunctive and declaratory relief. Plaintiffs
argued that ICWA and the Final Rule violate equal
protection and substantive due process under the Fifth
Amendment and the anticommandeering doctrine that
arises from the Tenth Amendment. Plaintiffs
The Navajo Nation had previously moved to intervene twice
in the district court. The first motion was for the limited purpose of
seeking dismissal pursuant to Rule 19, which the district court
denied. The Navajo Nation filed a second motion to intervene for
purposes of appeal after the district court’s summary judgment
order. The district court deferred decision on the motion pending
further action by this court, at which time the Navajo Nation filed
the motion directly with this court.
10
52a
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.
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).
The district court denied Plaintiffs’ substantive due process
claim, which Plaintiffs do not appeal.
11
53a
DISCUSSION
I. Article III Standing
Defendants first contend that Plaintiffs lack standing
to challenge ICWA and the Final Rule. The district court
denied Defendants’ motion to dismiss on this basis,
concluding that Individual Plaintiffs have standing to
bring an equal protection claim; State Plaintiffs have
standing to challenge provisions of ICWA and the Final
Rule on the ground that they violate the Tenth
Amendment and the nondelegation doctrine; and all
Plaintiffs have standing to bring an APA claim
challenging the validity of the Final Rule.
Article III limits the power of federal courts to
“Cases” and “Controversies.” See Spokeo, Inc. v. Robins,
136 S. Ct. 1540, 1547 (2016) (citing U.S. CONST. art. III,
§ 2). “Standing to sue is a doctrine rooted in the
traditional understanding of a case or controversy.” Id.
To meet the Article III standing requirement, plaintiffs
must demonstrate (1) “an injury in fact” that is (2) “fairly
traceable to the challenged action of the defendant,” and
that is (3) likely to be “redressed by a favorable
decision.” Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61
(1992) (internal quotation marks, citations, and
alterations omitted). A plaintiff seeking equitable relief
must demonstrate a likelihood of future injury in
addition to past harm. See City of Los Angeles v. Lyons,
461 U.S. 95, 105 (1983). This injury must be “concrete
and particularized” and “actual or imminent, not
conjectural or 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
54a
Chester v. Laroe Estates, Inc., 137 S. Ct. 1645, 1650
(2017) (quoting Davis v. Fed. Election Comm’n, 554 U.S.
724, 734 (2008)). Nevertheless, “the presence of one
party with standing is sufficient to satisfy Article III’s
case-or-controversy requirement,” and we therefore
need conclude only that one plaintiff in the present case
satisfies standing with respect to each claim. Rumsfeld
v. Forum for Acad. & Institutional Rights, Inc., 547 U.S.
47, 52 n.2 (2006). “This court reviews questions of
standing de novo.” Nat’l Rifle Ass’n of Am., Inc. v.
McCraw, 719 F.3d 338, 343 (5th Cir. 2013).
A. Standing to Bring Equal Protection Claim
Plaintiffs challenged 25 U.S.C. §§ 1913(d), 1914,
1915(a), and 1915(b), and Final Rule § 23.129 to 23.132 on
equal protection grounds, alleging that these provisions
impose regulatory burdens on non-Indian families
seeking to adopt Indian children that are not similarly
imposed on Indian families who seek to adopt Indian
children. The district court concluded that Individual
Plaintiffs suffered and continue to suffer injuries when
their efforts to adopt Indian children are burdened by
ICWA and the Final Rule; that their injuries are fairly
traceable to the actions of Defendants because ICWA
and the Final Rule mandate state compliance; and that
these injuries are redressable because if ICWA and the
Final Rule were invalidated, then state courts would no
longer be required to follow them. Defendants disagree,
arguing that the Individual Plaintiffs cannot
demonstrate an injury in fact or redressability and thus
lack standing to bring an equal protection claim. We will
consider Plaintiffs’ standing to assert challenges to each
of the provisions at issue in turn.
55a
1. The Challenge to §§ 1913 and 1914
We first conclude that none of the Plaintiffs have
standing to assert an equal protection challenge to
§§ 1913 and 1914. The district court concluded that
§ 1913(d), which allows a parent to petition the court to
vacate a final decree of adoption on the ground that
consent was obtained through fraud or duress, left the
Brackeens’ adoption of A.L.M. vulnerable to collateral
attack for two years following the final judgment.
Defendants argue that § 1914, 12 and not § 1913(d), applies
to the Brackeens’ state court proceedings and that, in
any event, any injury premised on potential future
collateral attack under either provision is too
speculative.
We need not decide which provision applies here, as
none of the Individual Plaintiffs have suffered an injury
under either provision. 13 Plaintiffs do not assert that the
biological parents of any Indian child, any tribe, or any
other party are currently seeking or intend in the future
to invalidate the adoption of any of their adopted children
“Any Indian child who is the subject of any action for foster
care placement or termination of parental rights under State law,
any parent or Indian custodian from whose custody such child was
removed, and the Indian child’s tribe may petition any court of
competent jurisdiction to invalidate such action upon a showing that
such action violated any provision of sections 1911, 1912, and 1913
of this title.” 25 U.S.C. § 1914.
13
State Plaintiffs argue that they have standing to bring an
equal protection challenge in parens patriae on behalf of citizens
other than the Individual Plaintiffs. We disagree. See South
Carolina v. Katzenbach, 383 U.S. 301, 324 (1966) (“[A] State [does
not] have standing as the parent of its citizens to invoke [the Fifth
Amendment Due Process Clause] against the Federal Government,
the ultimate parens patriae of every American citizen.”).
12
56a
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.
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
57a
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 Northeastern Florida Chapter of
Assoc. Gen. Contractors of America v. City of
Jacksonville, 508 U.S. 656, 666 (1993) (in challenging a
governmental program setting aside a certain
percentage of contracts for minority-owned businesses,
plaintiff must “demonstrate that it is able and ready to
bid on contracts and that a discriminatory policy
prevents it from doing so on an equal basis” (emphasis
added)).
By contrast, Plaintiffs’ challenges here to §§ 1913(d)
and 1914 rest on the purely theoretical actions of
potential third parties who may (or may not) invoke
these provisions. Cf. Clapper, 568 U.S. at 414 n. 5. This
case is not like Time Warner, but rather Barber v.
Bryant, in which a group of LGBT individuals and
advocacy organizations brought an equal protection
58a
challenge to a Mississippi statute that permitted parties
accused of LGBT discrimination to assert their sincerely
held religious opposition as a defense. 860 F.3d 345, 351
(5th Cir. 2017). This court found that, like in the present
case, the Barber plaintiffs lacked standing to bring their
equal protection challenge because any hypothetical
future injury they would suffer under the statute was
entirely dependent on unknown third-parties choosing to
undertake a course of conduct purportedly authorized by
the statute—there, discrimination against the plaintiffs.
Id. at 357. Judge Duncan selectively quotes from Barber
to argue that the court based its decision only on the fact
that the plaintiffs had not alleged that they intended to
engage in the activities in relation to which the
Mississippi statute provided a discrimination defense.
DUNCAN, CIRCUIT JUDGE, OP. at 19 n.30. But the Barber
court plainly stated that, “[a]t a minimum, the
challengers would have to allege plans to engage in [the]
conduct in Mississippi for which they would be subject to
a denial of service and would be stripped of a preexisting
remedy for that denial.” Barber, 860 F.3d at 358
(emphasis added). In the absence of allegations that a
third party would take advantage of the statute to act in
a way that would harm the plaintiffs, the plaintiffs failed
to assert the type of imminent injury necessary to
support standing on their equal protection claim. 14
The Barber plaintiffs also raised an Establishment Clause
challenge to the statute, a separate issue not presented here and
about which we express no opinion. See Barber, 860 F.3d at 356
(“The Equal Protection and Establishment Clause cases call for
different injury-in-fact analyses because the injuries protected
against under the Clauses are different.” (internal quotations and
citations omitted)).
14
59a
In much the same way, the Plaintiffs here allege only
that a third party could come along and challenge their
adoptions under the statute, but they make no
allegations that any party has in fact done so or intends
to do so in the future. In other words, these provisions
have yet to place any Plaintiff on unequal footing. No
harm under the statute has materialized and no certain
injury is imminent, as is required for standing to
challenge the provision. Clapper, 568 U.S. at 409. And, to
the extent Plaintiffs argue that an injury arises from
their attempts to avoid collateral attack under § 1914 by
complying with §§ 1911 to 1913, costs incurred to avoid
injury are “insufficient to create standing” where the
injury is not certainly impending. See id. at 416-17.
Accordingly, Plaintiffs lack standing to challenge
§§ 1913(d) and 1914.
2. The Remaining Equal Protection Claims
Turning to the Plaintiffs’ remaining claims, we
conclude that the Brackeens have standing to assert an
equal protection claim as to 25 U.S.C. § 1915(a) and Final
Rule §§ 23.129, 23.130, and 23.132, and that the Cliffords
have standing to press this claim as to § 1915(b) and
Final Rule § 23.131. Because at least one Plaintiff has
standing to assert each of these remaining claims, the
“case-or-controversy requirement” is satisfied, and we
do not analyze whether any other Individual Plaintiff has
standing to raise it. See Rumsfeld, 547 U.S. at 52 n.2.
First, the Brackeens have standing to challenge
§ 1915(a), ICWA’s adoption placement preferences
provision. As Plaintiffs argue, § 1915’s 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
60a
currently opposes in Texas state court. “An increased
regulatory burden typically satisfies the injury in fact
requirement.” Contender Farms, L.L.P. v. U.S. Dep’t of
Agric., 779 F.3d 258, 266 (5th Cir. 2015). However, we
must also consider whether causation and redressability
are met here. See Lujan, 504 U.S. at 560-61. The
Brackeens’ alleged injury is fairly traceable to the
actions of at least some of the Federal Defendants, who
bear some responsibility for the regulatory burdens
imposed by ICWA and the Final Rule. See Contender
Farms, L.L.P., 779 F.3d at 266 (noting that causation
“flow[s] naturally from” a regulatory injury).
Additionally, the Brackeens have demonstrated a
likelihood that their injury will be redressed by a
favorable ruling of this court. In the Brackeens’ ongoing
proceedings to adopt Y.R.J., the Texas trial court has
indicated that it will refrain from ruling on the
Brackeens’ federal constitutional claims pending a ruling
from this court. 15
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
15
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
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 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
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.
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
16
The Cliffords also challenged § 1915(a). We need not address
this challenge, however, as we have already concluded that the
Brackeens—and thus all Plaintiffs—have standing to challenge this
provision. See Rumsfeld, 547 U.S. at 52 n.2 (“[T]he presence of one
party with standing is sufficient to satisfy Article III’s case-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
maternal grandmother, a member of the White Earth
Band. Like the Brackeens’ alleged injury, the Cliffords’
injury is fairly traceable to some of the Federal
Defendants given their responsibility for the burdens
imposed by § 1915(b). Finally, a declaration by the
district court that § 1915(b) violates equal protection
would redress the Cliffords’ injury. Since Child P. has
not yet been adopted, the Cliffords may still petition for
custody. Though no state court—whether within this
circuit or in the Cliffords’ home state of Minnesota—is
bound by a decree of this court, we conclude that it is
“substantially likely that [a state court] would abide by
an authoritative interpretation” of ICWA by this court,
“even though [it] would not be directly bound by such a
determination.” Franklin v. Massachusetts, 505 U.S.
788, 803 (1992). Thus, a favorable ruling “would at least
make it easier for” the Cliffords to regain custody of
Child P. Duarte ex rel. Duarte v. City of Lewisville, 759
F.3d 514, 521 (5th Cir. 2014). In sum, Plaintiffs have
standing to challenge § 1915(a) and (b) and Final Rule
§§ 23.129 to 23.132.
B. Standing to Bring Administrative Procedure
Act Claim
Plaintiffs also bring APA challenges to the Final Rule
promulgated by the BIA. They assert that the Final Rule
violates the APA because ICWA does not authorize the
Secretary of the Interior to promulgate binding rules
and regulations and also contend that the Final Rule’s
construction of § 1915 is invalid. The district court ruled
that State Plaintiffs had standing to bring APA claims,
determining that the Final Rule injured State Plaintiffs
by intruding upon their interests as quasi-sovereigns to
64a
control the domestic affairs within their states. 17 A state
may be entitled to “special solicitude” in our standing
analysis if the state is vested by statute with a procedural
right to file suit to protect an interest and the state has
suffered an injury to its “quasi-sovereign interests.”
Massachusetts v. EPA, 549 U.S. 497, 518-20 (2007)
(holding that the Clean Air Act provided Massachusetts
a procedural right to challenge the EPA’s rulemaking
and that Massachusetts suffered an injury in its capacity
as a quasi-sovereign landowner due to rising sea levels
associated
with
climate
change).
Applying
Massachusetts, this court in Texas v. United States held
that Texas had standing to challenge the Department of
Homeland Security’s (“DHS”) implementation and
expansion of the Deferred Action for Childhood Arrivals
program under the APA. See 809 F.3d 134, 152 (5th Cir.
2015). This court reasoned that Texas was entitled to
special solicitude on the grounds that the APA created a
procedural right to challenge the DHS’s actions, and
DHS’s actions affected states’ sovereign interest in
creating and enforcing a legal code. See id. at 152-53.
Likewise, here, the APA provides State Plaintiffs a
procedural right to challenge the Final Rule. See id.; 5
U.S.C. § 702. Moreover, State Plaintiffs allege that the
Final Rule affects their sovereign interest in controlling
child custody proceedings in state courts. See Texas, 809
F.3d at 153 (recognizing that, pursuant to a sovereign
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.
17
65a
interest in creating and enforcing a legal code, states
may have standing based on, inter alia, federal
preemption of state law). Thus, State Plaintiffs are
entitled to special solicitude in our standing inquiry.
With this in mind, we find that the elements of standing
are satisfied. If, as State Plaintiffs alleged, the Secretary
promulgated a rule binding on states without the
authority to do so, then State Plaintiffs have suffered a
concrete injury to their sovereign interest in controlling
child custody proceedings that was caused by the Final
Rule. Additionally, though state courts and agencies are
not bound by this court’s precedent, a favorable ruling
from this court would remedy the alleged injury to states
by making their compliance with ICWA and the Final
Rule
optional rather
than
compulsory. See
Massachusetts, 549 U.S. at 521 (finding redressability
where the requested relief would prompt the agency to
“reduce th[e] risk” of harm to the state).
C. Standing to Bring Tenth Amendment Claims
For similar reasons, the district court found, and we
agree, that State Plaintiffs have standing to challenge
provisions of ICWA and the Final Rule under the Tenth
Amendment. The imposition of regulatory burdens on
State Plaintiffs is sufficient to demonstrate an injury to
their sovereign interest in creating and enforcing a legal
code to govern child custody proceedings in state courts.
See Texas, 809 F.3d at 153. Additionally, the causation
and redressability requirements are satisfied here, as a
favorable ruling would likely redress State Plaintiffs’
asserted injuries by lifting the mandatory burdens
ICWA and the Final Rule impose on states. See Lujan,
504 U.S. at 560-61.
66a
D. Standing to Bring Nondelegation Claim
Plaintiffs also contend that § 1915(c), which allows a
tribe to establish a different order of placement
preferences than the defaults contained in § 1915(a) and
(b), is an impermissible delegation of legislative power
that binds State Plaintiffs. Defendants argue that State
Plaintiffs cannot demonstrate an injury, given the lack of
evidence that a tribe’s reordering of § 1915(a) and (b)’s
placement preferences has affected any children in
Texas, Indiana, or Louisiana or that such impact is “real
and immediate.” State Plaintiffs respond that tribes can
change ICWA’s placement preferences at any time and
that at least one tribe, the Alabama-Coushatta Tribe of
Texas, has already done so. We conclude that State
Plaintiffs have demonstrated injury and causation with
respect to this claim, as State Plaintiffs’ injury from the
Alabama-Coushatta Tribe’s decision to depart from
§ 1915’s default placement preferences is concrete and
particularized and not speculative. See Lujan, 504 U.S.
at 560. And given that the Alabama-Coushatta Tribe has
already filed their reordered placement preferences with
Texas’s Department of Family and Protective Services,
Texas faces a “substantial risk” that its claimed injury
will occur. Susan B. Anthony List v. Driehaus, 573 U.S.
149, 158 (2014) (“An allegation of future injury may
suffice if the threatened injury is ‘certainly impending,’
or there is a ‘substantial risk that the harm will occur.’”
(internal quotation marks omitted) (quoting Clapper, 568
U.S. at 409, 414 n.5)). Moreover, a favorable ruling from
this court would redress State Plaintiffs’ injury by
making a state’s compliance with a tribe’s alternative
order of preferences under § 1915(c) optional rather than
mandatory. See id.
67a
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)).
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
Title 25 U.S.C. §§ 1901-03 sets forth Congress’s findings,
declaration of policy, and definitions. Sections 1911-23 govern child
custody proceedings, including tribal court jurisdiction, notice
requirements in involuntary and voluntary state proceedings,
termination of parental rights, invalidation of state proceedings,
placement preferences, and agreements between states and tribes.
19
Section 1951 sets forth information-sharing requirements for
state courts. Section 1952 authorizes the Secretary of the Interior
to promulgate rules and regulations that are necessary for ICWA’s
implementation.
18
68a
Clause of the Constitution, which provides that “[t]his
Constitution, and the Laws of the United States which
shall be made in Pursuance thereof[] . . . shall be the
supreme Law of the Land; and the Judges in every State
shall be bound thereby, any Thing in the Constitution or
Laws of any State to the Contrary notwithstanding.”
U.S. CONST. art. VI, cl. 2; see also Crosby v. Nat’l
Foreign Trade Council, 530 U.S. 363, 372 (2000) (“A
fundamental principle of the Constitution is that
Congress has the power to preempt state law.”).
Therefore, when “Congress enacts a law that imposes
restrictions or confers rights on private actors” and a
“state law confers rights or imposes restrictions that
conflict with the federal law,” under the Supremacy
Clause, “the federal law takes precedence and the state
law is preempted.” Murphy v. NCAA, 138 S. Ct. 1461,
1480 (2018). “Even without an express provision for
preemption . . . state law is naturally preempted to the
extent of any conflict with a federal statute.” Crosby, 530
U.S. at 372.
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
69a
conscript state governments as its agents.” Id. at 1477
(quoting New York v. U.S., 505 U.S. 144, 178 (1992)).
In the present context, these two doctrines—
preemption
and
anticommandeering—represent
opposite sides of the same coin. See New York, 505 U.S.
at 156 (explaining that in cases “involving the division of
authority between federal and state governments,” the
dual inquiries as to whether a congressional enactment
is authorized under Article I or violates the Tenth
Amendment “are mirror images of each other”). This is
because for a federal law to preempt conflicting state
law, two conditions must be satisfied. First, the federal
law “must represent the exercise of a power conferred on
Congress by the Constitution.” Murphy, 138 S. Ct. at
1479. Second, since the Constitution “confers upon
Congress the power to regulate individuals, not States,”
New York, 505 U.S. at 166, the provision at issue must be
a regulation of private actors. Murphy, 138 S. Ct. at 1479.
As discussed in more detail infra, a law does not fail this
second inquiry simply because it also regulates states
that participate in an activity in which private parties
engage. Id. at 1478. Rather, the key question is whether
the law establishes rights enforceable by or against
private parties. See id. at 1480 (citing Morales v. Trans
World Airlines, Inc., 504 U.S. 374, 391 (1992)). When a
federal law fails this second step by directly commanding
the executive or legislative branch of a state government
to act or refrain from acting without commanding private
parties to do the same, it violates the anticommandeering
doctrine. 20 See, e.g., New York, 505 U.S. at 188 (stating
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
20
70a
that “[t]he Federal Government may not compel the
States to enact or administer a federal regulatory
program”); Printz v. United States, 521 U.S. 898, 932
(1997). On the other hand, if Congress enacts a statute
pursuant to an enumerated power and the statute does
not violate the anticommandeering doctrine or another
constitutional provision, then the federal law necessarily
has preemptive force. 21
as a method of influencing a State’s policy choices.” New York, 505
U.S. at 166. For example, Congress may condition the receipt of
federal funds under its spending power. See id. at 167. Some of the
Defendants contend that ICWA is authorized under Congress’s
Spending Clause powers because Congress conditioned federal
funding in Title IV-B and E of the Social Security Act on states’
compliance with ICWA. However, because we conclude that ICWA
is constitutionally permissible even if its provisions are construed as
mandatory, we need not reach the question of whether it is justified
as an optional incentive program in which states voluntarily
participate.
21
Of course, like any other unconstitutional law, a federal statute
that violates the anticommandeering doctrine exceeds Congress’s
legislative authority. See New York, 505 U.S. at 155-56. The Court
has stated, however, that a statute is beyond Congress’s Article I
power for purposes of the premption analysis either when the
statute does not “represent the exercise of a power conferred on
Congress by the Constitution,”—that is, when it addresses a subject
matter that is not included in the powers that the Constitution
grants the federal government—or when the statute breaches the
anticommandeering doctrine, regardless of the subject matter
addressed by the legislation. See Murphy, 138 S. Ct. at 1479. These
are two distinct inquires. Otherwise, Congress could never violate
the anticommandeering doctrine when regulating in a field over
which it holds plenary authority. But the Supreme Court has held
that this is not how the Constitution works. See Reno v. Condon, 528
U.S. 141, 142 (2000) (stating that, “in New York [v. United States,
505 U.S. 144 (1992)] and Printz [v. United States, 521 U.S. 898
(1997)], the Court held that federal statutes were invalid, not
71a
1. Article I Authority
We first address whether ICWA represents a valid
exercise of Congress’s Article I power. “Proper respect
for a co-ordinate branch of the government requires the
courts of the United States to give effect to the
presumption that congress will pass no act not within its
constitutional power. This presumption should prevail
unless the lack of constitutional authority to pass an act
in question is clearly demonstrated.” Harris, 106 U.S. at
635.
The district court concluded that Congress
overstepped its powers in enacting ICWA by breaching
the anticommandeering doctrine, but it never addressed
whether the Act fell within Congress’s Article I power
separate
and
apart
from
any
supposed
anticommandeering violation. On appeal, Plaintiffs
squarely argue that Congress exceeded its authority—
without respect to any anticommandeering violation—in
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 which Article I authorizes Congress to legislate
and whether the law violates the anticommandeering inquiry.
72a
enacting ICWA. 22 For the reasons that follow, we
disagree.
The historical development of the federal Indian
affairs power is essential to understanding its sources
and scope. See Heller, 554 U.S. at 581. Earlier, we
reviewed the Framers’ dissatisfaction with the untenable
division of authority over Indian affairs between the
states and the national Government under the Articles of
Confederation. We explained how this led the 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,
“[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.
22
73a
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 55152 (noting that “[t]he plenary power of Congress to deal
with the special problems of Indians is drawn both
explicitly and implicitly from the Constitution itself”).
Conversely, the Constitution totally displaced the
states from having any role in these affairs and “divested
[them] of virtually all authority over Indian commerce
and Indian tribes.” Seminole Tribe of Fla. v. Florida, 517
U.S. 44, 62 (1996); see also Ablavsky, Beyond the Indian
Commerce Clause, supra at 1043-44 (noting that the
federal government’s Indian affairs powers collectively
amounted to what present-day doctrine terms field
preemption). Responding to the problem under the
Articles of Confederation of states openly flouting the
federal strategy with respect to the Indians, the
Framers specifically intended that the Constitution
would prevent the states from exercising their
sovereignty in a way that interfered with federal Indian
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
74a
with one voice in making peace with or deploying
military force against the Indians without being
undercut by the various contrary policies individual
states might adopt if left to their own devices.
The writings and actions of both the Washington
Administration and the First Congress amply
demonstrate this early conception of the national
Government as having primacy over Indian affairs.
President George Washington himself explained in a
letter to the Governor of Pennsylvania that the federal
Government, under the new Constitution, “possess[ed]
the only authority of regulating an intercourse with [the
Indians], and redressing their grievances.” Letter from
George Washington to Thomas Mifflin (Sept. 4, 1790), in
6 THE PAPERS OF GEORGE WASHINGTON: PRESIDENTIAL
SERIES 188, 189 (Mark A. Mastromarino ed., 1996). And
the First Congress reinforced this exceptionally broad
understanding of federal authority through the adoption
of the Indian Intercourse Act of 1790, Act of July 22,
1790, §§ 1-3, 1 Stat. 137-38. See, e.g., Marsh v. Chambers,
463 U.S. 783, 790 (1983) (“An act ‘passed by the first
Congress assembled under the Constitution, many of
whose members had taken part in framing that
instrument, is contemporaneous and weighty evidence of
its true meaning.’” (alteration omitted) (quoting
Wisconsin v. Pelican Ins. Co., 127 U.S. 265, 297 (1888)).
The legislation provided exclusively for federal
management of essential aspects of Indian affairs: the
regulation of trade with Indians, prohibition on
purchases of Indian land except by federal agents, and
the federalization of crimes committed by non-Indians
against Indians. See COHEN’S, supra, § 1.03[2]. And early
Congresses repeatedly reaffirmed this expansive
75a
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)
(internal citations omitted) (“Courts considering the
[Indian Intercourse] Act’s purpose have agreed that
Congress intended to protect Indians from the ‘greed of
other races,’ and from ‘being victimized by artful
scoundrels inclined to make a sharp bargain.’” (first
quoting United States v. Candelaria, 271 U.S. 432, 442
(1926); then quoting Tuscarora Nation of Indians v.
Power Auth., 257 F.2d 885, 888 (2d Cir. 1958), vacated as
moot sub nom., McMorran v. Tuscarora Nation of
Indians, 362 U.S. 608 (1960))); STEPHEN L. PEVAR, THE
RIGHTS OF INDIANS AND TRIBES 96 (4th ed. 2012). This
duty has deep historical roots. As related above, the
federal Government engaged with the Indians in the
decades following ratification as part of its westward
expansion project, utilizing not only diplomatic tools like
treaties, but also military might. See supra Background
Part I. By virtue of its manifold and dominant powers
over Indian affairs, the national Government gradually
subjugated the western lands, eventually enveloping the
Indian tribes and extinguishing many aspects of their
76a
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 . . . .” (quoting Bd.
of Cnty. Comm’rs v. Seber, 318 U.S. 705, 715 (1943));
supra Background Part II. That is, owing to the federal
Government’s expansive Indian affairs powers and the
way in which it has wielded those powers to divest
Indians of their ancestral lands, the Government bears a
responsibility to protect the tribes from external threats.
Similarly, the Government has an overarching duty to
provide for the welfare of tribes. See CANBY, AMERICAN
INDIAN LAW, supra § 3.1; COHEN’S, supra, § 5.04. 23
Numerous pieces of Indian federal legislation have been
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).
23
77a
passed pursuant to this federal duty. 24 Indeed, we know
of no court that has found Congress’s power wanting
when Congress has invoked its duty to the tribes and
enacted legislation clearly aimed at keeping its enduring
covenant. See, e.g., Mancari, 417 U.S. 551-52 (“Of
necessity the United States assumed the duty of
furnishing . . . protection [to the Indians], and with it the
authority to do all that was required to perform that
obligation . . . .” (quoting Seber, 318 U.S. at 715));
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
See, e.g., Indian Health Care Improvement Act, 25 U.S.C.
§ 1602 (explaining that the legislation was passed “in fulfillment of
[the Government’s] special trust responsibilities and legal
obligations to Indians”); Indian Self-Determination and Education
Assistance Act, 25 U.S.C. § 450a(a) (“The Congress hereby
recognizes the obligation of the United States to respond to the
strong expression of the Indian people for self-determination by
assuring maximum Indian participation in the direction of
educational as well as other Federal services to Indian communities
so as to render such services more responsive to the needs and
desires of those communities.”); Elementary and Secondary
Education Act, 20 U.S.C. § 7401 (“It is the policy of the United
States to fulfill the Federal Government’s unique and continuing
trust relationship with and responsibility to the Indian people for
the education of Indian children.”); American Indian Agricultural
Resource Management Act, 25 U.S.C. § 1307 (“[T]he United States
has a trust responsibility to protect, conserve, utilize, and manage
Indian agricultural lands consistent with its fiduciary obligation and
its unique relationship with Indian tribes.”).
24
78a
States, 232 U.S. 478, 486 (1914) (“It must also be
conceded that, in determining what is reasonably
essential to the protection of the Indians, Congress is
invested with a wide discretion, and its action, unless
purely arbitrary, must be accepted and given full effect
by the courts.”); Worcester, 31 U.S. at 556-57 (explaining
that the Constitution vests Congress with broad Indian
affairs powers and that Congress has “[f]rom the
commencement of our government . . . passed acts to
regulate trade and intercourse with the Indians; which
treat the[ tribes] as nations, respect their rights, and
manifest a firm purpose to afford that protection which
treaties stipulate”); Cherokee Nation, 30 U.S. at 13. 25
Chief among the external threats to the Indian tribes
were the states and their inhabitants. See Kagama, 118
U.S. at 384 (The Indian tribes “owe no allegiance to the
states, and receive from them no protection. Because of
the local ill feeling, the people of the states where they
are found are often their deadliest enemies.”); CANBY,
AMERICAN INDIAN LAW, supra § 3.1. And the Supreme
Court has long recognized and repeatedly reaffirmed the
federal Government’s ongoing duty to protect tribes
from the states and vice versa—as well as its power to do
so. See Kagama, 118 U.S. at 384; Cherokee Nation, 30
U.S. at 13; Worcester, 31 U.S. at 556-57; Mancari, 417
U.S. 551-52.
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.
25
79a
In light of the foregoing, ICWA represents the
convergence of key aspects of federal Indian law. First,
as Congress expressly noted in its congressional
findings, ICWA was enacted pursuant to the “plenary
power over Indian affairs” that the Constitution places
in the federal government. 26 25 U.S.C. § 1901(1). This
authority is exclusive to the federal government, and the
Framers specifically intended to prevent the states from
interfering with its exercise, either by taking their own
disparate stances in dealing with tribal governments or
by otherwise exercising their sovereignty in a manner
contrary to federal Indian policy. See Seminole Tribe of
Fla., 517 U.S. at 62; Ablavsky, Beyond the Indian
Commerce Clause, supra at 1043-44. Just as the
Constitution was meant to preclude the states from
undertaking their own wars or making their own treaties
with the Indian tribes, see James Madison, Vices of the
Political System of the United States, in 9 THE PAPERS
OF JAMES MADISON 345, 348 (Robert A. Rutland et al.
eds., 1975), so too does it empower the federal
government to ensure states do not spoil relations with
the Indian tribes through the unwarranted taking and
We find it notable that, in enacting ICWA, Congress explicitly
contemplated whether it was constitutionally authorized to do so.
See H.R. REP. NO. 95-1386, at 13-15 (discussing the constitutionality
of ICWA, including that ICWA falls within Congress’s plenary
power over Indian affairs); Rostker v. Goldberg, 453 U.S. 57, 64
(1981) (“The customary deference accorded the judgments of
Congress is certainly appropriate when, as here, Congress
specifically considered the question of the Act’s constitutionality.”).
Though this judgment is not dispositive, we grant it due deference.
See Perrin, 232 U.S. at 486 (“[I]n determining what is reasonably
essential to the protection of the Indians, Congress is invested with
a wide discretion[.]”).
26
80a
placement of Indian children in non-Indian foster and
adoptive homes 27 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.
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 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.
27
81a
Second, ICWA falls within the federal government’s
continuing trust relationship with the tribes, which
includes a specific obligation to protect the tribes from
the states. We earlier recounted the arbitrary and
abusive child removal and assimilation practices that led
Congress to conclude that it was necessary and proper
for it to enact ICWA. See supra Background Part IV-V;
see also Antoine, 420 U.S. at 203. Briefly stated,
throughout the late nineteenth and well into the
twentieth century, the federal government was
intimately involved in programs ostensibly to “educate”
Indian children at off-reservation schools that sought to
imbue them with white Christian values and
permanently shed them of and sever them from their
tribal heritage. Although the federal Government
eventually discontinued this assimilationist policy,
Congress found that abusive Indian child custody
practices continued at the state level, often leading to the
“wholesale” and unwarranted removal of Indian children
from their homes by state child welfare agencies and
adjudicatory bodies, see H.R. REP. NO. 95-1386, at 9; 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
82a
particular, the continued wholesale removal of their
children by nontribal government and private agencies
constitutes a serious threat to their existence as ongoing, self-governing communities.”); see also H.R. REP.
NO. 95-1386, at 9-10 (declaring that the removal of Indian
children was a “crisis of massive proportions,”
representing “perhaps the most tragic and destructive
aspect of Indian life”).
After reviewing this testimony and evidence
concerning the massive removal of Indian children from
their tribal communities by the states, Congress found
that “there is no resource that is more vital to the
continued existence and integrity of Indian tribes than
their children”; “that an alarmingly high percentage of
Indian families are broken up by the removal, often
unwarranted, of their children from them by nontribal
public and private agencies”; and “that an alarmingly
high percentage of such children are placed in nonIndian 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
83a
Indian tribes and their resources” and state “that the
United States has a direct interest, as trustee, in
protecting Indian children.” 25 U.S.C. § 1901(2)-(3). The
law was intended to combat an evil threatening the very
existence of tribal communities, and it would be difficult
to conceive of federal legislation that is more clearly
aimed at the Government’s enduring trust obligations to
the tribes. Moreover, it fulfills the government’s duty to
protect the tribes from the states by regulating relations
between the two—a power that the Framers specifically
intended that the Constitution bestow on the federal
government. 28 See CANBY, AMERICAN INDIAN LAW § 2.1
28
The opposing opinion misapprehends the significance to our
analysis of the federal government’s history of removing Indian
children from their families and tribes to place them at offreservation boarding schools. See DUNCAN, CIRCUIT JUDGE, OP. at
50-51. In the view of the opposing opinion, that the boarding school
policy began in the latter half of the nineteenth century, and not the
Founding era, means that the federal government’s assimilation
policy is irrelevant in determining whether Congress was
authorized to enact ICWA. This is squarely contrary to the Supreme
Court’s explicit direction that historical “practice [is] an important
interpretive factor even when the nature or longevity of that
practice is subject to dispute, and even when that practice began
after the founding era.” Noel Canning, 573 U.S. at 525 (emphasis
added). But more importantly, JUDGE DUNCAN’s observation about
the start of the boarding school policy misses the point: Since the
Nation’s founding, the federal government has viewed itself as
owing an affirmative duty to promote tribal welfare generally and
to provide for Indian children specifically, as well as having the
power to do so—obligations that arise under what is now described
as a trust relationship between the tribes and the government. See
Br. of Prof. Ablavsky at 20 (describing federal financing of
placement of Indian children in Quaker homes during the
Washington administration); see also Fletcher, FEDERAL INDIAN
LAW § 5.2. This relationship, at one time, led the federal government
to pursue misguided policies that harmed the tribes, including its
84a
(“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
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 exactly what the Constitution empowers the
federal government to do.
85a
control over tribal property.” Id. at 83. In other words,
the Court was addressing only whether it in fact had
authority to adjudicate the dispute—not the extent of
Congress’s authority to regulate Indian tribes. In any
event, the Court concluded that the controversy was
justiciable and upheld the challenged enactment. Id. at
90. Delaware Tribal Business Committee in no way
shackles Congress’s authority to regulate Indian tribes.
Plaintiffs next contend that the meaning of commerce
in the Indian and Interstate Commerce Clauses is
equivalent. Plaintiffs thus seek to import Interstate
Commerce Clause jurisprudence into the Indian
Commerce Clause in order to limit Congress’s power
under the latter; they argue that 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
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with the Indian tribes as separate nations. See Ablavsky,
Beyond the Indian Commerce Clause, supra at 1026.
The history refutes Plaintiffs’ attempt to equate the
Interstate and Indian Commerce Clauses. Indeed, since
the framing of the Constitution, “Indian ‘commerce’
[has] mean[t] something different” than “interstate
commerce.” Id. The Framers debated and approved the
Indian Commerce Clause separately from the Interstate
Commerce Clause, and, during ratification, the clauses
were viewed as so distinct in content that “no one during
ratification interpreted the Indian Commerce Clause to
shed light on the Interstate . . . Commerce Clause[], or
vice versa.” Id. at 1027; see also Matthew L.M. Fletcher,
ICWA and the Commerce Clause, in THE INDIAN CHILD
WELFARE ACT AT 30: FACING THE FUTURE 32 (Fletcher
et al. eds., 2009) [hereinafter Fletcher, ICWA and the
Commerce Clause]. Though both provisions use the term
“commerce,” the historical evidence from the time of the
Constitution’s framing indicates that interpreting
“commerce” identically in the Interstate and Indian
Commerce Clauses is a “trap” that “would tend to
obliterate the original meaning and intent of the Indian
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 89.
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Legislation from the beginning of the Constitutional
era further demonstrates that the Constitution confers
synergistic and comprehensive powers on the federal
Government to manage relations with Indian tribes,
regardless of whether the regulated activity is economic
in nature. As noted above, the Indian Intercourse Act of
1790 embraced many noneconomic subjects, including
the regulation of criminal conduct by non-Indians
against Indians. In enacting the law, the First Congress
plainly conceived of its power to extend into regulation
of noneconomic activity relating to Indian tribes. See
Jack M. Balkin, Commerce, 109 MICH. L. REV. 1, 24-26
(2010) (discussing the Act and its successors and stating
that “Congress clearly believed that it could reach both
economic and noneconomic activity under the Indian
Commerce Clause,” given that the Act reaches
noneconomic criminal conduct, such as murder); see also
Akhil Reed Amar, America’s Constitution and the Yale
School of Constitutional Interpretation, 115 YALE L.J.
1997, 2004 n.25 (2006). Since then, Congress has
repeatedly exercised its Indian affairs authority for
matters far beyond mere economic exchange. See, e.g.,
Indian Health Care Improvement Act, 25 U.S.C. §§ 1601
et seq.; Tribally Controlled Community College
Assistance Act, 25 U.S.C. § 1801(7)(B).
Furthermore, “[t]he scope of federal power under the
Indian commerce clause has developed under Supreme
Court decisions differently than the powers over foreign
and interstate commerce.” COHEN’S, supra, § 4.01[1][a].
The Court has explicitly underscored the distinction
between the clauses, explaining that “the Indian
Commerce Clause accomplishes a greater transfer of
power from the States to the Federal Government than
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does the Interstate Commerce Clause.” Seminole Tribe,
517 U.S. at 62 (observing that, though “the States still
exercise some authority over interstate trade[, they]
have been divested of virtually all authority over Indian
commerce and Indian tribes”). In short, it is “well
established that the Interstate Commerce and Indian
Commerce Clauses have very different applications”;
unlike the former clause, which “is concerned with
maintaining free trade among the States,” “the central
function of the Indian Commerce Clause is to provide
Congress with plenary power to legislate in the field of
Indian affairs.” Cotton Petroleum Corp. v. New Mexico,
490 U.S. 163, 192 (1989) (emphasis added); see also
United States v. Lomayaoma, 86 F.3d 142, 145 (9th Cir.
1996) (noting that the Indian Commerce clause “confers
more extensive power on Congress than does the
Interstate Commerce Clause”). And the Supreme Court
has continually made clear that Congress’s Indian affairs
power is not limited to regulating economic activity. See
Lara, 541 U.S. at 200 (affirming power of tribes to
criminally prosecute nonmembers); United States v.
Holliday, 70 U.S. (3 Wall.) 407, 410-11, 416-17 (1865)
(upholding under the Indian Commerce Clause a federal
statute that criminally sanctioned the sale of liquor to
Indians, reasoning that the law “regulates the
intercourse between the citizens of the United States and
[Indian] tribes, which is another branch of commerce,
and a very important one”); Worcester, 31 U.S. at 559
(explaining that the array of Indian affairs powers
conferred on Congress by the Constitution “comprehend
all that is required for the regulation of our intercourse
with the Indians”). Any contention that ICWA is beyond
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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 criminal
statute, passed pursuant to the Indian Commerce Clause
and applied to non-Indians for conduct on private, nonIndian 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
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been exercised, and has repeatedly been sustained by
this court.”) (emphasis added); United States v. FortyThree Gallons of Whiskey, 93 U.S. (3 Otto) 188, 195
(1876) (sustaining Congress’s power to require forfei
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