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

Supreme Court briefDec 8, 2021

Ask Donna

What actually matters in this document.

Text

Nos. 21-378 & 21-380

IN THE

STATE OF TEXAS,

Petitioner,

DEB HAALAND, SECRETARY OF THE INTERIOR, et al.,

Respondents.

CHAD EVERET BRACKEEN, et al.,

Petitioners,

DEB HAALAND, SECRETARY OF THE INTERIOR, et al.,

Respondents.

On Petitions for Writs of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF FOR NAVAJO NATION IN OPPOSITION

Jeffrey L. Fisher

Edward C. DuMont

Kendall Turner

STANFORD LAW SCHOOL

SUPREME COURT

LITIGATION CLINIC

559 Nathan Abbott Way

Stanford, CA 94305

Doreen N. McPaul

Attorney General

Paul Spruhan

Assistant Attorney General

Counsel of Record

Louis Mallette

Jason Searle

Sage Metoxen

NAVAJO NATION

DEPARTMENT OF JUSTICE

Post Office Box 2010

Window Rock, AZ 86515

(928) 871-6210

paspruhan@nndoj.org

TABLE OF CONTENTS

TABLE OF AUTHORITIES ....................................... ii

STATEMENT OF THE CASE .....................................1

A. Legislative background ...................................2

B. Factual background.........................................5

C. Procedural background ...................................7

REASONS FOR DENYING THE WRIT ...................11

There is no Article III jurisdiction for any

of petitioners’ claims ...........................................12

A. No injury-in-fact ............................................13

B. No redressability ...........................................19

II. Even if Article III jurisdiction were

present, this case would be a poor vehicle

for considering petitioners’ constitutional

claims ...................................................................21

A. Petitioners press their claims in an

omnibus federal declaratory judgment

action that presents the issues in an

abstract manner ............................................21

B. The Fifth Circuit’s decision has limited,

if any, practical effect ....................................23

III. Petitioners’ constitutional claims are

unworthy of review .............................................25

A. Equal protection ............................................25

B. Article I authority .........................................29

C. Commandeering ............................................33

CONCLUSION ...........................................................34

TABLE OF AUTHORITIES

Page(s)

Cases

Abbott Laboratories v. Gardner,

387 U.S. 136 (1967).............................................. 21

Adarand Const. Co. v. Pena,

515 U.S. 200 (1995).............................................. 16

Adoptive Couple v. Baby Girl,

570 U.S. 637 (2013).............................................. 23

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997).................................... 13, 19, 24

Ashwander v. Tennessee Valley Auth.,

297 U.S. 288 (1936).............................................. 30

Bennett v. Spear,

520 U.S. 154 (1997).............................................. 20

Bond v. United States,

564 U.S. 211 (2011).............................................. 33

In re Child of S.B.,

No. A19-0225, 2019 WL 6698079 (Minn.

Ct. App. Dec. 9, 2019) ...................................... 7, 14

In re Child of S.B.,

No. A19-0225, 2020 Minn. LEXIS 17

(Minn. Jan. 9, 2020)......................................... 7, 14

City of Los Angeles v. Lyons,

461 U.S. 95 (1983)................................................ 17

City of Riverside v. McLaughlin,

500 U.S. 44 (1991)........................................... 13-14

Clapper v. Amnesty Int’l USA,

568 U.S. 398 (2013)........................................ 16, 17

Cotton Petrol. Corp. v. New Mexico,

490 U.S. 163 (1989).............................................. 33

iii

Davis v. Fed. Election Comm’n,

554 U.S. 724 (2008).............................................. 15

Davis v. Guam,

932 F.3d 822 (9th Cir. 2019)................................ 28

In the Interest of E.A.C.,

No. 07-21-00145-CV, 2021 Tex. App.

LEXIS 9306 (Tex. Ct. App. Nov. 16, 2021) ......... 20

Flast v. Cohen,

392 U.S. 83 (1962)................................................ 12

Franklin v. Massachusetts,

505 U.S. 788 (1992).............................................. 19

Genesis Healthcare Corp. v. Symczyk,

569 U.S. 66 (2013).......................................... 13, 14

Adoption of Hannah S.,

48 Cal. Rptr. 3d 605 (Cal. Ct. App. 2006) ........... 26

Herrera v. Wyoming,

139 S. Ct. 1686 (2019).......................................... 32

International Longshoremen’s &

Warehousemen’s Union, Local 37 v. Boyd,

347 U.S. 222 (1954).............................................. 22

In the Interest of J.S.,

No. 07-21-00110-CV, 2021 Tex. App.

LEXIS 7701 (Tex. Ct. App. Sept. 17, 2021) ... 20-21

Lewis v. Cont. Bank Corp.,

494 U.S. 472 (1990).............................................. 14

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992)............................ 12, 16, 17, 18

Matthews v. Diaz,

426 U.S. 67 (1976).......................................... 18, 19

Mississippi Band of Choctaw Indians v. Holyfield,

490 U.S. 30 (1989)............................................ 2, 23

Morton v. Mancari,

417 U.S. 535 (1974)........................................ 26, 27

National Fed’n of Indep. Bus. v. Sebelius,

567 U.S. 519 (2012).............................................. 22

Penrod Drilling Corp. v. Williams,

868 S.W.2d 294 (Tex. 1993) ................................. 19

Raines v. Byrd,

521 U.S. 811 (1997).............................................. 12

Rice v. Cayetano,

528 U.S. 495 (2000).............................................. 27

Rockwell Int’l Corp. v. United States,

549 U.S. 457 (2007).............................................. 13

In re Santos Y.,

112 Cal. Rptr. 2d 692 (Cal. Ct. App. 2001) ......... 25

Seminole Tribe v. Florida,

517 U.S. 44 (1989)................................................ 33

Summers v. Earth Island Inst.,

555 U.S. 488 (2009)........................................ 14, 18

TransUnion LLC v. Ramirez,

141 S. Ct. 2190 (2021).......................................... 21

United States v. Antelope,

430 U.S. 641 (1977)........................................ 27, 28

United States v. Lara,

541 U.S. 193 (2004).............................................. 31

United States v. Salerno,

481 U.S. 739 (1987).............................................. 30

Valley Forge Christian Coll. v. Americans United

for Separation of Church & State, Inc.,

454 U.S. 464 (1982).............................................. 12

Village of Arlington Heights v. Metro. Hous.

Dev. Corp.,

429 U.S. 252 (1977).............................................. 20

In re Vincent M.,

59 Cal. Rptr. 3d 321 (Cal. Ct. App. 2007) ........... 26

Washington State Grange v. Washington State

Republican Party,

552 U.S. 442 (2008).............................................. 30

Weinstein v. Bradford,

423 U.S. 147 (1975) (per curiam) ........................ 15

In the Interest of X.E.V.,

No. 08-21-00096-CV, 2021 Tex. App.

LEXIS 8680 (Tex. Ct. App. Oct. 27, 2021) .......... 20

In re Y.J.,

No. 02-19-00235-CV, 2019 WL 6904728

(Tex. Ct. App. Dec. 19, 2019, pet.

denied) .......................................................... 8, 9, 18

In the Interest of Y.J.,

No. 20-0081, 2021 Tex. LEXIS 977 (Tex.

Oct. 15, 2021) ......................................................... 8

Constitutional Provisions

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

Commerce Clause ........................................ passim

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

Commerce Clause ................................................ 33

U.S. Const., art. II, § 2, cl. 2, Treaty

Clause............................................................. 12, 31

U.S. Const., art. III ............................................ passim

U.S. Const., amend. X ................................................ 33

U.S. Const., amend. XIV, Equal

Protection Clause............................................. 7, 25

Treaties

Treaty with the Chickasaw, Oct. 19,

1818, 7 Stat. 192 .................................................. 32

Treaty with the Creeks & Seminoles,

Aug. 7, 1856, 11 Stat. 699 ................................... 31

Treaty with the Navajo, Sept. 9, 1849, 9

Stat. 974 ..................................................... 3, 31, 32

Treaty with the Navajo, June 1, 1868, 15

Stat. 667 ..................................................... 3, 31, 32

Treaty with the Sauk & Foxes, Sept. 21,

1832, 7 Stat. 374 ............................................ 31, 32

Treaty with the Seminole, May 9, 1832,

7 Stat. 368 ............................................................ 32

Treaty with the Senecas, et al., Feb. 23,

1867, 15 Stat. 513 ................................................ 31

Statutes

Indian Child Welfare Act of 1978, Pub. L.

95-608, 92 Stat. 3069, 25 U.S.C. § 1901

et seq. ........................................................... passim

25 U.S.C. § 1901(1) .......................................... 3, 32

25 U.S.C. § 1901(2) .......................................... 2, 32

25 U.S.C. § 1901(3) ................................................ 2

25 U.S.C. § 1902................................................. 3, 4

25 U.S.C. § 1903(3) .......................................... 4, 29

25 U.S.C. § 1903(4) .......................................... 3, 29

25 U.S.C. § 1903(5) ................................................ 5

25 U.S.C. § 1903(8) ................................................ 4

25 U.S.C. § 1912(a) .................................... 3, 10, 20

25 U.S.C. § 1912(d) .......................................... 4, 10

vii

25 U.S.C. § 1912(e) ................................................ 4

25 U.S.C. § 1912(f) ........................................... 4, 10

25 U.S.C. § 1913..................................................... 9

25 U.S.C. § 1913(d) .............................................. 18

25 U.S.C. § 1914..................................................... 9

25 U.S.C. § 1915(a) .......................................... 4, 32

25 U.S.C. § 1915(a)(1) .......................................... 27

25 U.S.C. § 1915(a)(2) ...................................... 5, 28

25 U.S.C. § 1915(b) ...................................... 4, 6, 32

25 U.S.C. § 1915(b)(ii).......................................... 22

25 U.S.C. § 1915(e) .......................................... 4, 10

25 U.S.C. § 1951(a) .......................................... 4, 10

Patient Protection and Affordable Care Act of

2010, Pub. L. No. 111-148, 124 Stat. 119,

42 U.S.C. § 18116 et seq. ..................................... 22

8 U.S.C. § 1253(d)....................................................... 28

8 U.S.C. § 1433 ........................................................... 28

Conn. Gen. Stat. Ann. § 45a-607 ............................... 28

Other Authorities

Fort, Kathryn & Adrian T. Smith, Indian Child

Welfare Act Annual Case Law Update and

Commentary, 8 Am. Indian L.J. 105 (2020) . 23, 24

STATEMENT OF THE CASE

Respondent Navajo Nation has experienced

immense cultural damage caused by past federal and

state policies towards its children. Through boarding

schools, assimilation programs, and destructive childremoval and adoption practices, the Nation’s families

have been separated and its children removed from

their communities. Our children have experienced the

loss of kinship ties, the Navajo language, and Navajo

cultural ways, and such damage has passed down

through multiple generations. At the same time, the

United States long ago promised in two ratified

treaties to protect and promote the happiness and

welfare of the Nation and its children. Through the

enactment of the Indian Child Welfare Act (ICWA),

the United States, at long last, carried out those treaty

obligations. By imposing certain minimum standards

that govern child custody proceedings involving

Indian children, ICWA seeks to prevent future

disruption of Indian families.

The Nation has a strong interest in ICWA and, for

jurisdictional and prudential reasons, submits that

this Court should deny the petitions that have been

filed by the Brackeens and other individual plaintiffs

(hereafter, “petitioners”). Petitioners seek only

prospective relief but have no actual or redressable

injuries. They are also improperly attempting to

bypass state court systems—the courts in which ICWA

cases are actually litigated—and to concoct a

sprawling, abstract federal facial challenge to the

statute. Finally, petitioners’ constitutional claims are

plainly foreclosed by this Court’s precedent.1

A. Legislative background

1. “[T]hrough statutes, treaties, and the general

course of dealing with Indian tribes,” Congress—and

the United States in general—“has assumed the

responsibility for the protection and preservation of

Indian tribes and their resources,” including the most

vital resource of all: “Indian children who are members

of or are eligible for membership in an Indian tribe.”

25 U.S.C. §§ 1901(2), (3). In spite of this federal

responsibility, states became increasingly active

during the twentieth century in regulating the welfare

of children—and, in particular, in removing children

from parents deemed unfit to care for them and

placing those children in new homes. Over the years,

these state-law regimes “resulted in the separation of

large numbers of Indian children from their families

and tribes through adoption or foster care placement,

usually in non-Indian homes.” Mississippi Band of

Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989).

In the 1970s, public concern mounted over these

“abusive child welfare practices.” Mississippi Band of

Choctaw Indians, 490 U.S. at 32. In response,

Congress passed the Indian Child Welfare Act of 1978

(ICWA), 25 U.S.C. § 1901 et seq. In doing so, Congress

invoked its powers under the Indian Commerce

Clause, as well as “other constitutional authority,”

including its treaty

obligations and

trust

For much the same reasons, and for the substantive

reasons stated in the Brief of Cherokee Nation, et al. in

Opposition in No. 21-378, the Nation also opposes review of the

petition filed by the State of Texas.

responsibilities. 25 U.S.C. § 1901(1). Especially

relevant here, in two treaties with Navajo Nation, the

federal government long ago assumed obligations to

provide for the stability of the Navajo people and for

the welfare of Navajo children. In an 1849 treaty, the

United States promised to “legislate and act as to

secure the permanent prosperity and happiness of”

Navajo Nation. Treaty with the Navajo, art. XI, Sept.

9, 1849, 9 Stat. 974. In an 1868 treaty, the United

States promised to provide for the education of Navajo

children. Treaty with the Navajo, art. VI, June 1, 1868,

15 Stat. 667.

2. Through ICWA, Congress confirmed that it is

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.” 25

U.S.C. § 1902. ICWA applies around the country in

state-court custody proceedings involving these

children.

ICWA protects Indian families through multiple

procedural safeguards. First, certain “minimum

Federal standards,” 25 U.S.C. § 1902, must be met in

any child custody proceeding that involves an “Indian

child,” defined as someone under 18 who “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).

Second, any party seeking termination of parental

rights or foster care placement in a state court

proceeding involving an Indian child must give notice

to the child’s parents, custodians, and Tribe of the

proceeding and inform them of their right to intervene.

Id. § 1912(a). Finally, record keeping provisions

require that placement records be maintained and

made available at any time to the Department of the

Interior and the child’s Tribe, and state courts must

provide copies of final decrees for adoptive placements

to the Department of the Interior. Id. §§ 1915(e),

1951(a).

ICWA also ensures the protection of Indian

families through substantive requirements. Any party

seeking foster care placement or termination of

parental rights in the interest of an Indian child must

satisfy the court that “active efforts” have been made

to “prevent the breakup of the Indian family” and that

the efforts have proven to be unsuccessful. 25 U.S.C.

§ 1912(d). Additionally, for the court to order a foster

care placement or a termination of parental rights, a

qualified expert witness must attest that continued

parental custody is likely to result in serious emotional

or physical damage to the child. Id. §§ 1912(e), (f).

ICWA also establishes a set of placement

preferences in adoptive or foster homes that is

designed to “promote the stability and security of

Indian tribes and families” and to “reflect the unique

values of Indian culture.” 25 U.S.C. § 1902. “[I]n the

absence of good cause to the contrary,” “preference”

should be given to the placement of an Indian child

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) (adoption provision); see

also id. § 1915(b) (similar system of preferences for

foster care placements); id. §§ 1903(3), (8) (defining

“Indian” based on a person’s political membership in a

federally recognized tribe).

B. Factual background

This federal lawsuit arises from state-court child

custody cases involving three families.

1. The Brackeens. In early 2016, the Brackeens

accepted a foster care placement of an Indian child

known as A.L.M. The child’s biological mother is an

enrolled member of Navajo Nation, and his biological

father is an enrolled member of the Cherokee Nation.

When A.L.M. was 10 months old, Texas Child

Protective Services removed him from his paternal

grandmother’s custody, Pet. App. 216a, and, pursuant

to ICWA’s notice requirements, notified both Navajo

Nation and Cherokee Nation, id. 52a.2 By agreement

with Cherokee Nation, Navajo Nation proceeded as

the “Indian child’s tribe” for purposes of ICWA. Id.; see

25 U.S.C. § 1903(5) (where an Indian child has

multiple tribal affiliations, the child’s tribe for

purposes of ICWA is the one with “more significant

contacts”).

In May 2017, the parental rights of A.L.M.’s

biological parents were terminated, making him

eligible for adoption in Texas. Pet. App. 52a. Shortly

thereafter, the Brackeens filed a petition in Texas

state court seeking to adopt A.L.M. The Texas family

court confirmed that ICWA’s placement preferences

applied to A.L.M., id. 216a, and the Nation identified

“other members of the Indian child’s tribe” who would

adopt A.L.M., 25 U.S.C. § 1915(a)(2). Specifically,

Navajo Nation put forth a Navajo family to adopt

All citations to the Petition Appendix refer to the appendix

in Brackeen v. Haaland, No. 21-380.

A.L.M. The family court ordered that A.L.M. be placed

with that family. Pet. App. 216a.

The Brackeens appealed the Texas family court’s

decision to apply ICWA’s placement preferences. The

Navajo family then notified the Nation that they could

not face the uncertainty of whether they would get

custody of A.L.M., and they asked to withdraw from

the custody proceedings. Pet. App. 216a. That left the

Brackeens as the only party remaining in A.L.M.’s

adoption proceeding—and left no further role for

ICWA to play. In January 2018, the Brackeens

completed their adoption of A.L.M. Id. 52a.

Meanwhile, in October 2017, the Brackeens filed

suit in the U.S. District Court for the Northern

District of Texas, challenging ICWA on various

constitutional grounds. When they filed this

complaint, the Brackeens noted that they were

seeking to adopt A.L.M. They also stated that due to

their experience in adopting A.L.M., they were

reluctant to adopt or foster additional children. First

Amended Complaint ¶ 119.3

2. The Cliffords. The Cliffords live in Minnesota

and sought to adopt Child P. The child’s maternal

grandmother is a member of the White Earth Band of

Ojibwe Tribe (the “White Earth Band”), and Child P.

is a member of the White Earth Band for purposes of

ICWA. A Minnesota state court applied the foster care

placement preferences under Section 1915(b), placing

Child P. with her maternal grandmother in January

2018. Pet. App. 54a. The Minnesota Court of Appeals

Unless otherwise indicated, docket entries cited in this

brief are to the docket in Brackeen v. Zinke, No. 4:17-CV-00868

(N.D. Tex.).

affirmed the placement, In re Child of S.B., No. A190225, 2019 WL 6698079, at *1 (Minn. Ct. App. Dec. 9,

2019), and the Minnesota Supreme Court denied

review, In re Child of S.B., No. A19-0225, 2020 Minn.

LEXIS 17, at *1 (Minn. Jan. 9, 2020). The Cliffords did

not seek review in this Court. Subsequently, Child P.’s

grandmother adopted her.

3. The Librettis. In 2016, the Librettis, a Nevada

couple, sought to adopt Baby O. The child’s biological

father, E.R.G., descends from members of the Ysleta

del Sur Pueblo Tribe (the “Pueblo Tribe”), but was not

an enrolled member at the time of Baby O.’s birth. The

Pueblo Tribe intervened in the Nevada adoption

proceedings, but the case settled in late 2018, allowing

the Librettis to adopt Baby O. Pet. App. 53a. Like the

Brackeens, the Librettis allege that their experience

in adopting Baby O. has made them reluctant to adopt

and foster additional children. Second Amended

Complaint ¶ 170.

C. Procedural background

1. In October 2017, petitioners—along with the

States of Texas, Indiana, and Louisiana—filed this

action in the U.S. District Court for the Northern

District of Texas against the federal defendants,

claiming that ICWA is unconstitutional on various

grounds. Petitioners requested only injunctive and

declaratory relief.

The district court held that petitioners had

standing due to the burdens that ICWA placed on their

adoption proceedings. Pet. App. 425a. Turning to the

merits, the court declared that ICWA violated the

Equal Protection Clause because it discriminated on

the basis of race. Id. 521a. The court also held that

Congress lacked Article I authority to enact ICWA. Id.

544a. Finally, the court ruled that various provisions

of ICWA commandeered the states. Id. 533a.

2. After the district court issued its decision, the

Brackeens advised the court that they wanted to adopt

A.L.M.’s half-sister, Y.R.J., and had filed a petition to

that effect in Texas state court. Navajo Nation

supports placing Y.R.J. with her maternal great-aunt,

an enrolled member of the Nation who has been vetted

by its ICWA caseworker and the Texas Department of

Family Protective Services. See In re Y.J., No. 02-1900235-CV, 2019 WL 6904728, at *9-10 (Tex. Ct. App.

Dec. 19, 2019, pet. denied). Under Navajo kinship, the

great-aunt is a grandmother to A.L.M. and Y.R.J. and

a matriarch of their maternal Navajo clan. Id. at *4

n.8. She also resides on the Navajo Reservation and

lives near A.L.M. and Y.R.J.’s other siblings, who

understand the Navajo language and practice

traditional Navajo cultural ways. Id. at *3, 11.

Petitioners assert that “Y.R.J.’s mother supports

the Brackeens’ efforts to adopt Y.R.J.” Pet. 6. Evidence

presented to the Texas family court, however, showed

that Y.R.J.’s mother agreed that either the Brackeens

or the great-aunt were suitable to take custody of

Y.R.J. In re Y.J., 2019 WL 6904728, at *11.

No final placement decision has been made. The

Nation, the Brackeens, and the State of Texas recently

filed petitions for discretionary review in the Texas

Supreme Court asking the court to consider various

issues regarding ICWA’s application to Y.R.J.’s case.

The Texas Supreme Court denied review, In the

Interest of Y.J., No. 20-0081, 2021 Tex. LEXIS 977

(Tex. Oct. 15, 2021), and the case has been remanded

to the trial court. There, the trial court may consider

previously raised legal issues on which the Texas

appellate courts did not rule, such as various

challenges to ICWA’s constitutionality. In re Y.J.,

2019 WL 6904728, at *18.

2. On appeal of the district court’s decision, a

three-judge panel of the Fifth Circuit agreed that

petitioners had standing when the cases were filed and

held that any mootness problems were excused

because the injuries they alleged were “capable of

repetition yet evading review.” Pet. App. 428a. The

panel, however, disagreed with the district court’s

equal protection ruling, holding that ICWA’s

protections for “Indian children” are based on a

political, not racial, classification and are “rationally

tied” to Congress’s fulfillment of its unique obligation

toward Indian nations. Pet. App. 441a-42a. The panel

also rejected the district court’s Article I and anticommandeering holdings. Id. 448a, 452a.

3. On rehearing en banc, a majority of the court of

appeals found that petitioners had standing to assert

their equal protection claims. Some judges relied on

petitioners’ past adoptions, and others relied on the

Brackeens’ ongoing attempts to adopt Y.R.J. Several

judges dissented, maintaining that none of the

individual plaintiffs could establish redressability

because their ICWA cases arose solely in state court,

and state courts need not follow the Fifth Circuit’s

views on whether ICWA is constitutional. Pet. App.

388a-89a (Costa, J.); see also id. 374a-75a (Wiener, J.)

(making this point with respect to the Cliffords).4

The en banc court divided equally over whether the

petitioners had standing to challenge rules in Sections 1913 and

1914 regarding the termination of parental rights. Pet. App. 58a,

226a. Petitioners do not directly challenge those provisions here.

The Fifth Circuit judges who reached the merits

of petitioners’ claims agreed with the three-judge

panel that ICWA’s provisions are political, not racial,

classifications. Pet. App. 161a. At the same time, an

equally divided court affirmed the district court’s

invalidation of ICWA’s adoption and foster placement

preference for “Indian families,” reasoning that the

preference is not rationally related to the fulfillment

of Congress’s obligations to Indian tribes. Id. 167a,

286a.

The en banc court further held that Congress had

constitutional power to pass ICWA under the Indian

Commerce Clause and Article I more generally,

explaining that “Congress is empowered fully to make

good on its trust obligations to Indian tribes,”

including the protection of Indian children and their

tribes under ICWA. Pet. App. 110a.

Finally, the court of appeals unanimously held

that the anti-commandeering doctrine does not

prevent Congress from requiring state courts to apply

federal standards in adoption proceedings and that

many ICWA provisions validly supersede state

standards. Pet. App. 321a-24a. At the same time, the

court (at some points acting through a majority and at

others acting through an equally divided court) held

that other provisions of ICWA—specifically, the

“active efforts” mandate codified at 25 U.S.C.

§ 1912(d), as well as provisions dealing with qualified

expert witnesses, id. §§ 1912(e), (f), and notice,

recordkeeping, and record retention, id. §§ 1912(a),

1915(e), 1951(a)—unconstitutionally commandeer

state officials. Pet. App. 7a-8a.

REASONS FOR DENYING THE WRIT

Petitioners ask the Court to decide whether

ICWA’s placement preferences constitute impermissible “racial classifications” and whether components

of the statute are valid exercises of Congress’s Article I

authority. But every Fifth Circuit judge who

addressed

these claims rejected petitioners’

arguments. (The issues over which the Fifth Circuit

disagreed are the subject of other petitions for

certiorari.) Moreover, “at least when it comes to

[petitioners’] far-reaching claims challenging the

Indian Child Welfare Act’s preferences for tribe

members, [the Fifth Circuit’s decision] will not have

binding effect in a single adoption.” Pet. App. 384a

(Costa, J.). Because all child custody proceedings take

place in state courts, which need not follow the views

of Fifth Circuit judges, the Fifth Circuit’s decision “has

no more legal force than a law review article,” id. 386a,

or competing views in a legislative committee report.

Under these circumstances, the Court should

deny certiorari. Jurisdictional and prudential defects

abound, ranging from an absence of standing to

presentation of the issues in an omnibus, abstract

manner. All told, it is highly unlikely this Court would

reach the merits of any of petitioners’ claims.

Meanwhile, this Court will have ample opportunities

in future live cases arising out of actual state-court

child custody proceedings to consider challenges to

ICWA’s provisions that petitioners criticize. Such a

case would be the appropriate setting for the Court to

review any such constitutional claims.

Finally, petitioners’ claims lack merit. As every

judge on the Fifth Circuit recognized or assumed,

ICWA’s provisions governing the custody of Indian

children rest on political, not racial, classifications.

Congress had authority to enact ICWA not only under

the Indian Commerce Clause, but also under the

Treaty Clause. And no provision that petitioners

challenge improperly commandeers state officials.

Further review is unwarranted.

There is no Article III jurisdiction for any of

petitioners’ claims.

This Court should deny review of petitioners’

claims because this case has been improper from the

moment it was filed in federal court.

Federal courts may not issue “advisory opinions”

that do not affect the legal rights of those before them.

See Flast v. Cohen, 392 U.S. 83, 95 (1962). Article III

commands that federal courts limit their reach to only

“Cases” and “Controversies”—that is, lawsuits in

which a plaintiff has a “personal stake” in the outcome.

Raines v. Byrd, 521 U.S. 811, 819 (1997). And the

importance of enforcing this limit on “the role assigned

to the judiciary in [our] tripartite allocation of power”

is “most vivid” where, as here, a federal court is asked

to “declare[] unconstitutional an act of the Legislative

or Executive Branch.” Valley Forge Christian Coll. v.

Americans United for Separation of Church & State,

Inc., 454 U.S. 464, 473-74 (1982) (internal quotation

marks and citations omitted).

In particular, Article III demands that a plaintiff

establish standing by satisfying three coequal

elements, typically referred to as injury, causation,

and redressability. Lujan v. Defenders of Wildlife, 504

U.S. 555, 560-61 (1992). Furthermore, “[t]o qualify as

a case fit for federal-court adjudication, an actual

controversy must be extant at all stages of review, not

merely at the time the complaint is filed.” Arizonans

for Official English v. Arizona, 520 U.S. 43, 67 (1997)

(internal quotation marks and citations omitted).

Thus, if any of the elements of standing cease to exist

during the pendency of the case, the case becomes

moot and must be dismissed. Genesis Healthcare

Corp. v. Symczyk, 569 U.S. 66, 72 (2013).

For the reasons that follow, petitioners cannot

meet these requirements. Petitioners cannot show

that they are being injured or will be injured

imminently by ICWA’s child custody preferences

because the custody proceedings they identified in

their operative complaint have all been resolved, and

no new developments make up for that absence of

continuing harm. In addition, no “favorable” ruling for

petitioners in the courts below could have satisfied the

redressability requirement because those courts’

rulings are not binding on state courts.

A. No injury-in-fact

1. Past adoptions. All three sets of plaintiffs—the

Brackeens, the Cliffords, and the Librettis—claim that

they suffered injuries stemming from past experiences

attempting to adopt Indian children. Because these

adoption cases have all concluded, none of these

plaintiffs has a live injury sufficient to grant them

standing to seek prospective relief.

a. The Brackeens. In their initial complaint in

district court, the Brackeens alleged harm based on

the “delay, and perhaps denial, of their adoption of

A.L.M.” First Amended Complaint ¶ 193. But standing

is assessed as of the time of the operative complaint.

See Rockwell Int’l Corp. v. United States, 549 U.S.

457, 473-74 (2007); City of Riverside v. McLaughlin,

500 U.S. 44, 51 (1991). And by the time the Brackeens

filed their Second Amended Complaint, they had

successfully adopted A.L.M. Pet. App. 52a. At that

point, they no longer had a “‘personal stake in the

outcome of the lawsuit,’” so the case should have been

“dismissed as moot.” Symczyk, 569 U.S. at 72 (quoting

Lewis v. Cont. Bank Corp., 494 U.S. 472, 477-78

(1990)).

b. The Cliffords. Regardless of whether the

Cliffords ever suffered an injury-in-fact, their claims

are now moot. The Minnesota courts denied the

Cliffords’ motion for adoptive placement and affirmed

the placement of Child P. with her maternal

grandmother. In re Child of S.B., No. A19-225, 2019

WL 6698079, at *1 (Minn. Ct. App. Dec. 9, 2019). The

Minnesota Supreme Court denied review in 2020, In

re Child of S.B., No. A19-0225, 2020 Minn. LEXIS 17,

at *1 (Minn. Jan. 9, 2020), and the Cliffords did not

seek review of that placement in this Court, see Pet. 7

n.1. Child P.’s grandmother finalized the adoption

after the Fifth Circuit’s en banc decision. Because the

controversy that provided the basis for their claims

has ceased, the Cliffords, like the Brackeens, no longer

have a personal stake in this litigation.

c. The Librettis. The Librettis can no longer claim

any justiciable injury either because they succeeded in

adopting Baby O. in 2018. Pet. App. 53a. While they

allege that their adoption was “severely delayed” due

to ICWA, Pet. 8, such an assertion does not grant them

standing for prospective relief “because it relates to

past injury rather than imminent future injury that is

sought to be enjoined,” Summers v. Earth Island Inst.,

555 U.S. 488, 495 (2009).

d. No exception to mootness applies here. Judge

Duncan posited that the Brackeens retained standing

based on their adoption of A.L.M. because their alleged

injuries related to that adoption fall within the

“capable of repetition yet evading review” exception to

mootness. Pet. App. 225a n.14. The Cliffords similarly

suggest in their petition to this Court that this

exception applies to them. Pet. 7 n.1. But petitioners

cannot show that this exception excuses the mootness

of their claims.

The exception petitioners invoke applies only

where a controversy is both capable of repetition and,

by its nature, cannot “be fully litigated prior to its

cessation or expiration.” Weinstein v. Bradford, 423

U.S. 147, 149 (1975) (per curiam); see also, e.g.,

Davis v. Fed. Election Comm’n, 554 U.S. 724, 735

(2008) (holding that plaintiff’s challenge to campaign

finance law could not be fully litigated before election).

The Brackeens or Cliffords (or anyone else) could fully

litigate any constitutional claims in a state court

proceeding regarding any future adoption of an Indian

child. In fact, the Brackeens are currently litigating

such a case (involving Y.R.J.) in the Texas courts and

could seek review in this Court of the final state court

judgment.

2. Potential future adoptions. Petitioners have

also made various assertions, in the Second Amended

Complaint and in subsequent filings, that they might

adopt other children in the future. See Second

Amended Complaint ¶ 12 (Brackeens); id. ¶ 13

(Librettis); Pet. 7 n.1 (Cliffords). Judge Dennis

found—at least as to the Brackeens—that the

regulatory burdens they might encounter in that event

were “sufficiently imminent to support standing.” Pet.

App. 64a n.15.

To establish an Article III injury, however,

plaintiffs must “set forth by affidavit or other evidence

specific facts” establishing standing. Lujan, 504 U.S.

at 561 (internal quotation marks and citation

omitted); see also Clapper v. Amnesty Int’l USA, 568

U.S. 398, 412 (2013). The Brackeens’ assertions that

they “intend to provide foster care for, and possibly

adopt, additional children in need” fall far short of that

mark. Second Amended Complaint ¶ 12. It makes no

difference that the Brackeens advance an equal

protection claim for differential treatment; even there,

plaintiffs still must demonstrate—with particularized

facts—that the allegedly unequal burden they face

poses at least an “imminent” injury. Adarand Const.

Co. v. Pena, 515 U.S. 200, 211 (1995).

More fundamentally, petitioners’ assertions of

“possible future injur[ies] are not sufficient” to give

them a personal stake in this litigation. Clapper, 568

U.S. at 409. Lujan is instructive. In that case, the

respondents, wildlife conservation organizations,

sought declaratory and injunctive relief against a new

regulation interpreting the Endangered Species Act.

Lujan, 504 U.S. at 559. Respondents asserted that the

new regulation would accelerate the extinction rates

of endangered species abroad. Id. at 562. The Court

ruled that affidavits submitted by respondents’

members, in which they alleged future intentions to

re-visit foreign countries to observe the endangered

species that lived there, were insufficient to grant

them standing. Id. at 563-64. “[W]ithout any

description of concrete plans, or indeed even any

specification of when” they would go, the affiants had

articulated only “‘some day’ intentions” that did not

amount to the “‘actual or imminent’ injury that our

cases require.” Id. at 564.

The prospect that ICWA’s placement preferences

could affect petitioners in any future adoption is even

more speculative. The Brackeens made no suggestion

in the Second Amended Complaint about how likely it

was that they would seek to adopt another “child in

need.” Indeed, they did not even assert that they

intended to adopt an “Indian child” under ICWA, and

therefore that ICWA would even apply to such

theoretical adoptions. Nor did the Cliffords or Librettis

offer any specifics evincing an imminent injury.

Moreover, even if petitioners had provided concrete

details of relevant future plans, the questions whether

or how ICWA would impede those plans would “rest on

speculation about the decisions of independent actors,”

Clapper, 568 U.S. at 414, such as the child’s parents,

tribe, and extended family members. Such

contingencies prevent petitioners from having

standing. Id. at 413-14.

In short, as plaintiffs seeking prospective relief,

petitioners cannot demonstrate that the regulatory

burdens they may face are sufficiently “‘real and

immediate,’ not ‘conjectural’ or ‘hypothetical,’” to

constitute harm for which a federal court can grant

relief. Lujan, 504 U.S. at 579 (Kennedy, J., concurring)

(quoting City of Los Angeles v. Lyons, 461 U.S. 95, 102

(1983)). Their stated goals to foster or adopt children

in need amount to nothing more than “‘some day’

intentions.” Id. at 564.5

3. The Brackeens’ proceedings regarding Y.R.J.

The Fifth Circuit also suggested that the Brackeens’

current efforts to adopt Y.R.J. confer standing. See

Pet. App. 63a-64a, 225a-26a. The adoption of Y.R.J.,

however, cannot be considered in any standing

analysis. At the time of the Second Amended

Complaint, the Brackeens had not yet sought to adopt

Y.R.J. Id. 64a n.15. In fact, Y.R.J. was not even born

or removed from her mother until June 2018, three

months after the Brackeens filed the Second Amended

Complaint. In re Y.J., No. 02-19-00235-CV, 2019 WL

6904728, at *2 (Tex. Ct. App. Dec. 19, 2019, pet.

denied).

After the district court issued its final judgment

in October 2018, the Brackeens supplemented the

record with information regarding their attempts to

adopt Y.R.J. Pet. App. 373a. But this amendment

came too late. This Court has expressly held that if

plaintiffs do not demonstrate an ongoing injury-in-fact

“at the time of judgment, they cannot remedy the

defect retroactively.” Summers, 555 U.S. at 495 n*.

Judge Dennis cited Matthews v. Diaz, 426 U.S. 67

(1976), for the notion that the Brackeens could cure

their standing problem with a supplementary filing.

Pet. App. 65a n.16. But the plaintiffs there brought the

additional facts to the attention of the district court

For similar reasons, Judge Duncan was incorrect in

suggesting that the Brackeens are injured because their adoption

of A.L.M. is “open to collateral attack under ICWA.” Pet. App.

226a & n.15. No such attack has been filed, nor is there any

reason to believe one will be. Indeed, the two-year period for filing

any such attack expired in January 2020. See 25 U.S.C. § 1913(d).

before it issued its judgment, enabling orderly

litigation over the plaintiffs’ claims. Matthews, 426

U.S. at 75 n.9.

B. No redressability

While each petitioner fails for various reasons to

demonstrate any actual injury, all of their claims

share the same flaw from the standpoint of

redressability: Neither federal district court nor Fifth

Circuit decisions are binding on any of the state courts

in which the petitioners’ custody proceedings were, or

are, pending. “While Texas courts may certainly draw

upon the precedents of the Fifth Circuit or any other

federal or state court, in determining the appropriate

federal rule of decision, they are obligated to follow

only higher Texas courts and the United States

Supreme Court.” Penrod Drilling Corp. v. Williams,

868 S.W.2d 294, 296 (Tex. 1993); see also Arizonans

for Official English, 520 U.S. at 58 n.11 (making same

point with respect to state courts in general).

The Fifth Circuit judges who held that petitioners

established redressability reasoned that, while no

state court can be “bound by a decree of this court,”

“the likelihood that the Texas trial court will follow

[the court of appeals’] interpretation of ICWA” is

sufficient to satisfy Article III. Pet. App. at 65a-67a

(Dennis, J.). But that is not how redressability works.

Indeed, in the very case these Fifth Circuit judges

cited for this theory of redressability, Justice Scalia

explained for the Court that redressability must flow

“from exercise [of a court’s] power, not through the

persuasive or even awe-inspiring effect of the opinion

explaining the exercise of its power.” Franklin v.

Massachusetts, 505 U.S. 788, 825 (1992) (emphasis

omitted).

Perhaps recognizing this problem, Judge Dennis

also noted that the Texas court that is hearing the

Brackeens’ case regarding Y.R.J. has “stat[ed] that it

will defer to [the court of appeals’] ruling.” Pet. App.

65a. Judge Dennis added that a plaintiff “must show

only that its injury is ‘likely to be redressed by a

favorable decision.’” Id. (quoting Village of Arlington

Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 262

(1977) (emphasis added)). But these propositions do

not solve petitioners’ redressability problem.

While a federal court’s decree need not ensure that

the plaintiffs will obtain the redress they seek, a

judicial or administrative decree in a situation like

this must at least have a “determinative or coercive

effect” on another decision-making body to establish

redressability. Bennett v. Spear, 520 U.S. 154, 169

(1997). The Fifth Circuit’s decision has no such effect

here. Texas courts remain as legally free as they were

before the Fifth Circuit’s decision to consider for

themselves whether ICWA’s placement provisions are

constitutional.

Indeed, since the Fifth Circuit published its en

banc opinion, family courts in Texas have continued to

apply ICWA, including the notice provision of Section

1912(a) on which there was an en banc split. See In

the Interest of E.A.C., No. 07-21-00145-CV, 2021 Tex.

App. LEXIS 9306, at *5 (Tex. Ct. App. Nov. 16, 2021)

(holding that trial court did not err in applying both

ICWA and Texas Family Code in termination of

parental rights case); In the Interest of X.E.V., No. 0821-00096-CV, 2021 Tex. App. LEXIS 8680, at *1 (Tex.

Ct. App. Oct. 27, 2021) (stating that proper notice was

given to Cherokee and Ketchikan tribal authorities as

required by ICWA); In the Interest of J.S., No. 07-21-

00110-CV, 2021 Tex. App. LEXIS 7701, at *6 (Tex. Ct.

App. Sept. 17, 2021) (“Pursuant to the ICWA, an

Indian tribe is entitled to notice of a custody

proceeding involving an Indian child.”).

II. Even if Article III jurisdiction were present, this

case would be a poor vehicle for considering

petitioners’ constitutional claims.

Aside from petitioners’ inability to demonstrate

Article III jurisdiction, this case is a poor vehicle for

considering petitioners’ claims. The case involves

constitutional issues divorced from any ongoing child

custody proceeding in which those claims could be

outcome-determinative. Further, no serious problem

would come from this Court’s waiting for a more

suitable vehicle to consider any constitutional

challenges to ICWA that it might wish to hear.

A. Petitioners press their claims in an omnibus

federal declaratory judgment action that

presents the issues in an abstract manner.

This Court has expressed a strong preference for

deciding constitutional issues in a concrete setting

that features an actual application of the statute

involved to real facts. A concrete setting—one in which

the stakes of invalidating a law are “real, and not

abstract”—ensures that federal courts understand

exactly how the statutes at issue work and when they

truly matter. TransUnion LLC v. Ramirez, 141 S. Ct.

2190, 2204 (2021) (citations omitted). These concerns

are similar to the requirement that a case be ripe, in

that the “basic rationale is to prevent the courts,

through avoidance of premature adjudication, from

entangling themselves in abstract disagreements.”

Abbott Laboratories v. Gardner, 387 U.S. 136, 148

(1967); see also International Longshoremen’s &

Warehousemen’s Union, Local 37 v. Boyd, 347 U.S.

222, 224 (1954) (“Determination of the scope and

constitutionality of legislation in advance of its

immediate adverse effect in the context of a concrete

case involves too remote and abstract an inquiry for

the proper exercise of the judicial function.”) (citations

omitted).

Given these principles, petitioners’ constitutional

arguments are not properly presented here. Instead of

challenging any particular ICWA provisions that

supposedly harm them in an ongoing child custody

proceeding, petitioners ask this Court to invalidate all

of ICWA’s placement preferences—even those that

have never been at issue in petitioners’ state court

cases. See, e.g., 25 U.S.C. § 1915(b)(ii) (establishing a

second-tier preference for preadoptive placement in a

foster home approved by the child’s tribe). With the

possible exception of the initial litigation over the

constitutionality of the Affordable Care Act, see

NFIB v. Sebelius, 567 U.S. 519 (2012), it is hard to

think of any case in recent decades in which this Court

has considered an omnibus declaratory judgment

action against an entire piece of federal legislation—a

challenge that involves numerous disparate claims

levied against various parts of the legislation. And for

good reason. Judicial decision-making is aided by

focused consideration of discrete legal issues—the

exact opposite of what petitioners’ scattershot

challenge to ICWA would require.

Perhaps if there were no other way besides a wideranging facial challenge like this to consider whether

ICWA somehow trenches on constitutional values,

then it would make sense to take up petitioners’ claims

in this posture. But there is an obvious and ready

alternative: a state-court child custody proceeding in

which ICWA is actually applied and its

constitutionality is outcome-determinative. Indeed,

those asserting injury by ICWA have filed challenges

in various live child custody cases in state courts and

will continue to do so. In recent years, state appellate

courts have heard two hundred or more ICWA cases

per year. Kathryn Fort & Adrian T. Smith, Indian

Child Welfare Act Annual Case Law Update and

Commentary, 8 Am. Indian L.J. 105, 112 (2020).

The Brackeens, Cliffords, Librettis, and others are

free to challenge ICWA’s constitutionality in actual

state court proceedings and may bring any adverse

ruling to this Court upon final determination from the

state courts. If the Court feels the need to consider the

constitutionality of any portion of ICWA, it can do so

in that more appropriate setting—as it has in the past

in other ICWA challenges. See Mississippi Band of

Choctaw Indians v. Holyfield, 490 U.S. 30 (1989)

(arising out of the Mississippi state court system);

Adoptive Couple v. Baby Girl, 570 U.S. 637 (2013)

(arising out of the South Carolina state court system).

B. The Fifth Circuit’s decision has limited, if

any, practical effect.

Petitioners also greatly exaggerate the practical

effect of the opinions below. Leaving the Fifth Circuit’s

decision undisturbed would not cause any serious

problem while ICWA cases are litigated in state courts

and parties have opportunities to raise any

constitutional claims they might wish to advance.

1. Because the Fifth Circuit’s decision is binding

only on federal courts, no actual child custody case—

in Texas or elsewhere—will necessarily be conducted

any differently as a result of the Fifth Circuit’s

decision here.

All applications of ICWA occur in state court

cases. There is no federal child custody regime. And

“Texas state courts are obligated to follow only higher

Texas courts and the United States Supreme Court.”

Pet. App. 384a (Costa, J.) (internal quotation marks

and citation omitted). The equivalent situation exists,

of course, in other state court systems as well. See

Arizonans for Official English v. Arizona, 520 U.S. 43,

58 n.11 (1997). Therefore, even the parts of the Fifth

Circuit decision that garnered a majority vote “will not

have binding effect in a single adoption.” Pet. App.

384a (Costa, J.). Even in states within the Fifth

Circuit, courts remain free to apply ICWA’s

provisions—and, indeed, are required to do so absent

their own declaration of unconstitutionality. See supra

at 19. The Fifth Circuit’s decision has “all of the

binding effect of a law review article,” Pet. App. 408a09a (Costa, J.)—which is to say, none.

2. Even if the Fifth Circuit’s decision had some

tangible effect on child custody matters within that

circuit, its impact would be limited. Only nine of the

226 cases concerning ICWA that arose in state

appellate courts in 2019 (the last year for which

statistics exist) took place in Texas. Fort & Smith, 8

Am. Indian L.J. at 138-54. No case arose in Louisiana

or Mississippi. Id. Moreover, only two states, Texas

and Ohio, contend here that ICWA is negatively

affecting their child custody regimes. By contrast,

twenty-five states and the District of Columbia

support the law. The overwhelming majority of cases

involving ICWA arise in these jurisdictions, and these

states believe the statute to be the “gold standard” of

child welfare laws. Pet. App. 13a. Consequently, there

is no reason to believe that waiting for a suitable

vehicle to address petitioners’ constitutional claims

will pose any widespread threat to state interests.

III. Petitioners’ constitutional claims are unworthy

of review.

Even if petitioners’ equal protection, Article I, and

commandeering claims were properly presented, they

would still be unworthy of review.

A. Equal protection

Petitioners’ claim that ICWA violates the Equal

Protection Clause as an allegedly “racial” statute does

not implicate any split of authority, and the Fifth

Circuit unanimously and correctly rejected it.

1. No federal appellate court has held that ICWA

draws “racial,” as opposed to political, classifications.

Nor was there any disagreement within the Fifth

Circuit on this issue. In fact, every judge agreed or

assumed that ICWA rests on political classifications.

See Pet. App. 160a (Dennis, J.) (“It therefore does not

alter our conclusion that ICWA’s definition of ‘Indian

child’ is a political classification subject to rational

basis review.”); id. at 286a (Duncan, J.) (“As with the

Indian child classification, however, we assume

arguendo that ‘Indian family’ is a tribal, not a racial,

category.”).

Contrary to petitioners’ assertions, the Fifth

Circuit’s decision does not conflict with any state court

cases either. In In re Santos Y., 112 Cal. Rptr. 2d 692

(Cal. Ct. App. 2001), California’s intermediate

appellate court held that the Constitution does not

allow ICWA to be applied when a child is not being

removed from “an existing Indian family.” Id. at 715,

723. But this case involves no such scenario, and the

California court “decline[d] to address the general

constitutionality of [ICWA].” Id. at 723.6

2. The Fifth Circuit was also right to reject

petitioners’ “racial” classification argument. In

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

upheld a hiring preference for Indians at the Bureau

of Indian Affairs. The Court reasoned that because the

challenged statute defined “Indian” as a person

belonging to a “‘federally recognized’ tribe[],” the

classification was “not directed towards a ‘racial’

group” but was instead “political” in nature. Id. at 553

n.24. The Court noted that it had on “numerous

occasions . . . upheld legislation that singles out

Indians for particular and special treatment.” Id. at

554-55. “As long as the special treatment can be tied

rationally to Congress’ unique obligation towards the

Indians, such legislative judgments will not be

disturbed.” Id. at 555. Consequently, the Fifth Circuit

was correct to hold that ICWA’s definition of “Indian

child” is a political classification and subject only to

rational basis review.

Petitioners protest that Mancari should apply

only in a narrow set of circumstances relating to

“tribal self-government on or near tribal lands.” Pet.

18 (internal quotation marks and citation omitted).

Furthermore, other California appellate courts have since

rejected Santos’s reasoning. See, e.g., Adoption of Hannah S., 48

Cal. Rptr. 3d 605, 610-11 (Cal. Ct. App. 2006); In re Vincent M.,

59 Cal. Rptr. 3d 321, 335 (Cal. Ct. App. 2007) (“There is no equal

protection violation in the application of the ICWA’s provisions to

Indian children, even where those children are not part of an

existing Indian family.”).

But Mancari itself contains no such limitation, and

this Court subsequently made clear that the case

“point[s] more broadly to the conclusion that federal

regulation of Indian affairs is not based upon

impermissible classifications.” United States v.

Antelope, 430 U.S. 641, 646 (1977). Nor is there any

basis for deeming Mancari inapplicable to federal

statutes touching on so-called “critical state affairs.”

Pet. 20. As the Fifth Circuit explained, “Mancari—and

its progeny—confirm that classifications relating to

Indians need not be specifically directed at Indian selfgovernment to be considered political classifications

for which rational basis scrutiny applies.” Pet. App.

148a (Dennis, J.).

Petitioners also argue that Rice v. Cayetano, 528

U.S. 495 (2000), supports their narrow reading of

Mancari. Pet. 20. But Rice does no such thing. First,

the statute at issue in Rice was a state statute

concerning state elections, not a federal statute

fulfilling a federal trust responsibility. Rice, 528 U.S.

at 519. Moreover, the state statute explicitly defined

“Hawaiian” through bare descent, which this Court

concluded was racial and not equivalent to tribal

membership. Id. at 515. Unlike tribes, Native

Hawaiians are not afforded federal recognition and do

not have a government-to-government political

relationship with the United States.

Petitioners next assert that ICWA places “all nonIndian families . . . fourth in line” behind all those who

are racially Indian. Pet. 23. In fact, any non-Indian

person may be first in line if that person is “a member

of the child’s extended family.” 25 U.S.C. § 1915(a)(1).

Similarly, a family need not be racially Indian to

constitute “other members of the Indian child’s tribe,”

under ICWA’s second-tier preference. Id. § 1915(a)(2).

For instance, Cherokee Freedmen––formerly enslaved

African Americans enrolled in the Cherokee Nation––

fall within this preference even though they are not

racially Indian. See Antelope, 430 U.S. at 646 (statute

keyed to whether persons are “enrolled members” of

an Indian tribe is not racial).

Finally, petitioners argue that the term “Indian

child” is a racial classification because it includes not

only children who are members of tribes but also those

who are both eligible for such membership and are the

“biological” child of Indians. Pet. 21-23. But biology

and race are not inextricably linked. See, e.g., Davis v.

Guam, 932 F.3d 822, 837 (9th Cir. 2019) (explaining

that “an ancestral classification is not always a racial

one”). Federal and state laws reference biological

descent without any racial component in a number of

areas—including, importantly, child custody. See, e.g.,

8 U.S.C. § 1433 (granting U.S. citizenship to children

born abroad to U.S. citizen parents); Conn. Gen. Stat.

Ann. § 45a-607 (establishing a presumption that

awarding temporary custody to a relative is in the best

interests of the child and defining “relative” as “a

person related to the child by blood or marriage”). In

addition, many nations—including Ireland, Greece,

Armenia, Israel, Italy, and Poland—base citizenship

on descent or ancestry. Pet. App. 155a-56a n.51. And

the United States respects these determinations. See,

e.g., 8 U.S.C. § 1253(d) (referring to “citizens” of

foreign countries).

ICWA’s definition of “Indian child” is of a piece.

The definition is not drawn along racial lines simply

because it includes minors eligible for tribal

membership (who have a biological parent who is a

tribal member). “Tribal eligibility does not inherently

turn on race, but rather on the criteria set by the

tribes, which are present-day political entities.” Pet.

App. 154a-55a (Dennis, J.). Indeed, ICWA does not

apply to racially Indian children whose parents are not

enrolled members of a tribe.

Put another way, ICWA’s reference to a

“biological” child of an Indian merely defines an

individual’s familial link that must exist between a

child and a tribal citizen. All definitions of “Indian”

and “Indian child” in ICWA are explicitly tied to

membership in sovereign tribal nations. See 25 U.S.C.

§ 1903(3) (defining “Indian” as “any person who is a

member of an Indian tribe”); id. § 1903(4) (defining

“Indian child” as a person under 18 who is a member

of an Indian tribe or is eligible for membership). Such

definitions have no ancestry, descent, or “blood”

requirement on their face, but apply the political

definitions tribal sovereigns have used to define

membership in their own nations.

B. Article I authority

Petitioners argue that Congress lacked authority

under Article I to enact ICWA, contending that

Congress’s authority to legislate concerning Indian

affairs is limited to regulating “commerce.” There is no

circuit conflict regarding this issue, and this case

would be a poor vehicle for considering it anyway given

the Nation’s two ratified treaties. Furthermore, the

Fifth Circuit correctly rejected petitioners’ argument.

1. There was neither confusion nor conflict in the

Fifth Circuit regarding whether Congress had the

power to enact ICWA; all sixteen judges agreed that

petitioners’ “construction of the Indian Commerce

Clause [is] unduly cramped [and] at odds with both the

original understanding of the clause and the Supreme

Court’s more recent instructions.” Pet. App. 90a

(Dennis, J.); see also id. 233a (Duncan, J.) (“[W]e

cannot agree with Plaintiffs that ICWA is

unconstitutional because it does not regulate tribal

‘commerce.’”); id. 363a (Owen, J.); id. 366a (Wiener, J.);

id. 376a (Haynes, J.); id. 398a-401a (Costa, J.). Nor

does any conflict exist beyond the Fifth Circuit on the

issue. Accordingly, there is no need for this Court’s

intervention.

2. Even if the scope of congressional power under

the Indian Commerce Clause were uncertain, this case

would be a poor vehicle for addressing the issue.

Petitioners mount a facial challenge to ICWA, arguing

that Congress lacked the constitutional power to even

pass the statute. Pet. 27-29; Pet. App. 12a. Such

challenges “are disfavored.” Washington State

Grange v. Washington State Republican Party, 552

U.S. 442, 450 (2008). They “often rest on speculation”

and “run contrary to the fundamental principle of

judicial restraint that courts should neither ‘anticipate

a question of constitutional law in advance of the

necessity of deciding it’ nor ‘formulate a rule of

constitutional law broader than is required by the

precise facts to which it is to be applied.’” Id. (quoting

Ashwander v. Tennessee Valley Auth., 297 U.S. 288,

346-47 (1936) (Brandeis, J., concurring)). Accordingly,

a facial challenge is “the most difficult challenge to

mount successfully.” United States v. Salerno, 481

U.S. 739, 745 (1987). To succeed in their argument

that ICWA is facially invalid, petitioners must show

that the statute is invalid in all applications. Id.

Petitioners cannot make any such showing. ICWA

is constitutional—apart from or at least in addition to

Congress’s Indian Commerce Clause power—because,

at least as applied to Navajo children, ICWA carries

out Congress’s Treaty Power. See U.S. Const., art. II,

§ 2, cl. 2. As the Court explained in United States v.

Lara, 541 U.S. 193 (2004), “treaties made pursuant to

the [treaty power] can authorize Congress to deal with

matters with which otherwise Congress could not

deal.” Id. at 201 (internal quotation marks and citation

omitted). This maxim applies with full force to treaties

with tribal nations. Id. Indeed, “for much of the

Nation’s history, treaties, and legislation made

pursuant to those treaties, governed relations between

the Federal Government and the Indian tribes.” Id.

In the Nation’s two ratified treaties, from 1849

and 1868, the federal government promised generally

to provide for the “permanent prosperity and

happiness” of the Navajo People, and specifically to

care for Navajo children. Treaty with the Navajo, art.

XI, Sept. 9, 1849, 9 Stat. 974; Treaty with the Navajo,

art. VI, June 1, 1868, 15 Stat. 667.7 The 1868 treaty

Other treaties include similar promises, manifesting the

federal government’s assumption of the responsibility to provide

for the care of Indian children and the maintenance of their

connections to their tribal communities. More than forty treaties

specifically provide for the welfare of Indian children. See, e.g.,

Treaty with the Senecas, et. al., art. XIX & XXIII, Feb. 23, 1867,

15 Stat. 513 (requiring that the tribes’ children “be subsisted,

clothed, educated, and attended in sickness,” and that the tribe’s

chiefs shall determine “guardianship of orphan children”); Treaty

with the Creeks & Seminoles, art. IX, Aug. 7, 1856, 11 Stat. 699

(providing that each child receive “a blanket, pair of shoes, and

other necessary articles of comfortable clothing”); Treaty with the

also guaranteed that Navajo children would be

educated on the reservation and thereby be unlikely to

be taken away from their families. See Treaty with the

Navajo, art. III & VI, 15 Stat. 667. Such promises must

be construed “in the sense in which they would

naturally be understood by” the tribal nation.

Herrera v. Wyoming, 139 S. Ct. 1686, 1699 (2019)

(citation omitted). And as understood by the Nation,

these treaty provisions promised to the Nation the

ability to maintain cultural and familial connections

between the Nation and its children.

ICWA itself expressly notes that “Congress,

through statutes, treaties, and the general course of

dealing with Indian tribes, has assumed the

responsibility for the protection and preservation of

Indian tribes and their resources.” 25 U.S.C. § 1901(1)

(emphasis added). And ICWA’s drafters based the law

not just in the Indian Commerce Clause, but also in

“other constitutional authority.” Id. § 1901(2). ICWA

protects Indian tribes through, among other

provisions, the placement preferences for a member of

the Indian child’s extended family or a family of that

Indian child’s tribe—the specific sections of ICWA

petitioners ask this Court to invalidate. See id.

§§ 1915(a), (b).

Sauk & Foxes, art. X, Sept. 21, 1832, 7 Stat. 374 (promising

cattle, pork, salt, flour, and maize “principally for the use of the

Sac and Fox women and children”); Treaty with the Seminole,

art. III, May 9, 1832, 7 Stat. 368 (promising to provide “a blanket

and a homespun frock” to each Seminole child); Treaty with the

Chickasaw, art. III, Oct. 19, 1818, 7 Stat. 192 (showing that the

United States intended, by treaty, “to perpetuate the happiness

of the Chickesaw [sic] nation of Indians”).

Given

Congress’s

multiple

sources

constitutional authority, petitioners’ facial challenge

to Article I necessarily fails. At least as applied to

Navajo children, this Court need not decide whether

ICWA is a valid exercise of Congress’s Indian

Commerce Clause power alone.

3. Regardless, the Fifth Circuit’s holding on this

issue is correct for the reasons stated by Cherokee

Nation et al. in their Brief in Opposition to the State

of Texas’s petition in No. 21-378. Unlike the Interstate

Commerce Clause, Congress’s Article I authority over

Indian affairs is not confined to “commerce,” as that

term is understood in other settings. See Seminole

Tribe v. Florida, 517 U.S. 44, 62 (1989) (“The Indian

Commerce Clause accomplishes a greater transfer of

power from the States to the Federal Government

than does the Interstate Commerce Clause,” as the

States “have been divested of virtually all authority

over Indian commerce and Indian tribes.”); Cotton

Petrol. Corp. v. New Mexico, 490 U.S. 163, 192 (1989)

(similar).

C. Commandeering

Petitioners also seek review of the Fifth Circuit’s

conclusion that various sections of ICWA comport with

the anti-commandeering doctrine. No Fifth Circuit

judge found that petitioners, as private individuals,

have standing to press such claims. Nor do petitioners

offer any argument why they have standing to bring a

commandeering claim under the Tenth Amendment,

as opposed to a claim based on the scope of Congress’s

Article I authority. Compare Bond v. United States,

564 U.S. 211 (2011) (holding that private party could

bring a Tenth Amendment challenge on the grounds

that Congress had exceeded its Article I authority).

In any event, for the reasons set forth in Brief of

Cherokee Nation, et al. in Opposition in No. 21-378,

ICWA does not commandeer states simply by setting

minimum standards for state courts to follow when

hearing child custody cases involving Indian children.

CONCLUSION

For the foregoing reasons, the petition for a writ

of certiorari should be denied.

Respectfully submitted,