ICWA after the Fifth Circuit’s En Banc Decision in Brackeen: Federal Indian Affairs Power Affirmed, Targeted Anticommandeering Limits Announced, Tribal Reordering Upheld, and BIA’s “Good Cause” Burden Vacated

ICWA after the Fifth Circuit’s En Banc Decision in Brackeen: Federal Indian Affairs Power Affirmed, Targeted Anticommandeering Limits Announced, Tribal Reordering Upheld, and BIA’s “Good Cause” Burden Vacated

Introduction

This en banc opinion of the United States Court of Appeals for the Fifth Circuit addresses comprehensive constitutional and administrative challenges to the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. § 1901 et seq., and the Department of the Interior’s 2016 “Final Rule” implementing ICWA. The case is procedurally and substantively complex. No single opinion commanded a majority on all issues, so the court issued a per curiam issue-by-issue summary identifying which holdings garnered majority support, which resulted in an “equally divided” court (thereby affirming the district court’s judgment without precedential effect), and which were reversed.

The parties illustrate the competing legal interests at stake: state plaintiffs (Texas, Louisiana, and Indiana) and individual plaintiffs (non-Indian prospective adoptive parents and an Indian child’s biological mother) challenged ICWA and its regulations; the United States and several Tribes (Cherokee Nation; Oneida Nation; Quinault Indian Nation; Morongo Band of Mission Indians; later the Navajo Nation) defended them. The decision analyzes standing, Congress’s Article I authority, equal protection, anticommandeering/preemption, nondelegation, and multiple APA theories.

Summary of the Opinion

Because the en banc court split across multiple questions, the per curiam summary controls the bottom-line results. The most important holdings are:

  • Standing
    • All judges agreed that at least one plaintiff had standing to raise the Article I power, anticommandeering, nondelegation, and APA challenges.
    • The court split 50/50 on standing for certain equal-protection attacks on §§ 1913 and 1914; those district court rulings were affirmed without precedential effect. Plaintiffs had standing to pursue other equal-protection challenges.
  • Congress’s Article I Authority: A majority held Congress had constitutional authority to enact ICWA. The district court was reversed on this point.
  • Equal Protection
    • A majority held ICWA’s “Indian child” definition creates a political (not racial) classification and does not violate equal protection; the district court was reversed.
    • The court split 50/50 on whether two particular placement preferences—“other Indian families,” 25 U.S.C. § 1915(a)(3), and “Indian foster home,” § 1915(b)(iii)—violate equal protection; the district court’s invalidation of those provisions was affirmed without precedential effect.
  • Anticommandeering
    • A majority agreed that three provisions unconstitutionally commandeer state actors: the active efforts requirement, § 1912(d); the expert witness requirements, § 1912(e) and (f); and the placement recordkeeping obligation, § 1915(e). The district court was affirmed on these points.
    • The court split 50/50 on whether: (i) the placement preferences, § 1915(a)-(b), commandeer state agencies; (ii) the ICWA notice provision, § 1912(a), commandeers state agencies; and (iii) the adoption record provision, § 1951(a), commandeers state courts. The district court’s anticommandeering rulings on those three items were affirmed without precedential effect.
  • Valid Preemption (and not Commandeering)
    • A majority held ICWA validly preempts contrary state law with respect to these private-rights provisions: intervention (§ 1911(c)), appointed counsel (§ 1912(b)), right to examine documents (§ 1912(c)), explanation of consent (§ 1913(a)), withdrawal of consent (§ 1913(b)-(d)), invalidation (§ 1914), return of custody (§ 1916(a)), and adult adoptee’s tribal information (§ 1917). The district court was reversed on these points.
    • As to state courts (not state agencies), the court also held that ICWA’s substantive standards validly preempt contrary state rules: placement preferences (§ 1915(a),(b)) and the clear-and-convincing/beyond-a-reasonable-doubt standards for foster-care placement and termination (§ 1912(e),(f)). The district court was reversed on these issues.
  • Nondelegation: A majority held § 1915(c)—which allows a Tribe to reorder ICWA placement preferences by tribal resolution—does not violate the nondelegation doctrine. The district court was reversed.
  • APA (Final Rule)
    • A majority held BIA did not violate the APA by concluding its regulations can bind state courts (i.e., ICWA interprets minimum federal standards in proceedings).
    • But, consistent with the anticommandeering rulings, the Final Rule was held unlawful to the extent it implements the unconstitutional provisions (§§ 1912(d), 1912(e), and 1915(e)).
    • Finally, 25 C.F.R. § 23.132(b)—interpreting ICWA’s “good cause” standard to require proof by clear and convincing evidence—violated the APA.

Result: The district court’s judgment was affirmed in part, reversed in part, and judgment rendered in line with these holdings. Items affirmed by an equally divided en banc court have no precedential effect, even though the district court’s judgment on those items stands by operation of law within that case.

Analysis

A. Precedents Cited and How They Mattered

  • Scope of Federal Indian Affairs Power
    • MORTON v. MANCARI, 417 U.S. 535 (1974): Established that federal classifications tied to tribal membership are political, not racial, if rationally linked to Congress’s trust responsibilities. Critical to upholding ICWA’s “Indian child” definition against equal protection challenge.
    • Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832); UNITED STATES v. KAGAMA, 118 U.S. 375 (1886); United States v. Lara, 541 U.S. 193 (2004): Recognize broad federal authority over Indian affairs and limitations on state power in Indian country—grounding the Article I holding.
    • Seminole Tribe v. Florida, 517 U.S. 44 (1996): While recognizing expansive federal Indian power, also emphasizes that other constitutional limits (e.g., state sovereign immunity) remain applicable.
  • Anticommandeering & Preemption Framework
    • NEW YORK v. UNITED STATES, 505 U.S. 144 (1992); PRINTZ v. UNITED STATES, 521 U.S. 898 (1997); Murphy v. NCAA, 138 S. Ct. 1461 (2018): Congress cannot issue direct orders to states or conscript state executive branches; conversely, valid federal laws of general applicability that regulate private actors may preempt conflicting state law.
    • RENO v. CONDON, 528 U.S. 141 (2000); SOUTH CAROLINA v. BAKER, 485 U.S. 505 (1988): Evenhanded federal regulation applied to both state and private actors may be valid; preemption is proper when federal law regulates private conduct and state law conflicts.
    • McCARTY v. McCARTY, 453 U.S. 210 (1981); HISQUIERDO v. HISQUIERDO, 439 U.S. 572 (1979); EGELHOFF v. EGELHOFF, 532 U.S. 141 (2001): Federal law may displace state domestic relations rules when they are in conflict—key to upholding application of ICWA’s substantive standards to state courts.
  • Administrative Law & Chevron/APA
    • Chevron v. NRDC, 467 U.S. 837 (1984): Agencies receive deference when interpreting ambiguous statutes within their authority.
    • Mourning v. Family Publications, 411 U.S. 356 (1973); AT&T v. Iowa Utilities Board, 525 U.S. 366 (1999): General rulemaking delegations permit agencies to fill statutory gaps reasonably.
    • Encino Motorcars v. Navarro, 136 S. Ct. 2117 (2016): Agency reversals must be accompanied by a reasoned explanation.

B. Legal Reasoning: What the Court Did and Why

1. The Constitutional Power to Enact ICWA

A majority reaffirmed Congress’s broad authority to legislate in Indian affairs. The opinion traces Founding-era practice, treaties, and early statutes reflecting federal primacy, recognizing the “trust relationship” and the “plenary and exclusive” nature of federal power in this domain. This is the cornerstone of the decision and reversed the district court’s contrary ruling.

2. Equal Protection: Political vs. Racial Classifications

  • “Indian child” definition: The court held by majority that ICWA’s definitional trigger—membership or eligibility for membership plus biological child of a member—is a political classification under Mancari, not a racial one. The classification rationally advances Congress’s obligations to tribes, including preventing unwarranted family separations that threatened tribal continuity. This reversed the district court.
  • Preferences for “other Indian families” and “Indian foster homes”: The court split evenly; thus, the district court’s ruling striking those preferences for equal-protection reasons stands in that case, but the en banc court generated no precedential rule either way.

3. Anticommandeering vs. Preemption: Parsing the Line

The court carefully separated (a) unconstitutional demands on state executive machinery and (b) valid federal standards that bind state courts via the Supremacy Clause.

  • Unconstitutional commandeering (majority holdings):
    • § 1912(d) (Active Efforts): Unconstitutionally compels state agencies to provide or arrange remedial services in specified ways.
    • § 1912(e),(f) (Expert Witness Requirements): Unconstitutionally requires state agencies to shoulder expert testimony obligations as a condition of state action.
    • § 1915(e) (Placement Recordkeeping): Unconstitutionally requires state agencies to generate and maintain placement records evidencing compliance efforts.
  • Evenly divided (non-precedential affirmance of district court):
    • Whether § 1915(a)-(b) placement preferences commandeer state agencies.
    • Whether § 1912(a) notice commandeers state agencies.
    • Whether § 1951(a) adoption record transmittal commandeers state courts.
  • Valid federal preemption of contrary state rules:
    • Private-rights provisions—tribal intervention, appointed counsel, document access, consent protections, invalidation, return of custody, and adult adoptee’s access to tribal information—validly preempt contrary state law.
    • As to state courts (not agencies), ICWA’s substantive standards (placement preferences and elevated evidentiary thresholds for foster care and termination) validly preempt contrary state substantive standards, consistent with the Supremacy Clause and cases like McCarty and Egelhoff.

4. Nondelegation: Tribal Authority to Reorder Preferences (§ 1915(c))

A majority rejected the nondelegation challenge. The court viewed § 1915(c) as either a permissible prospective incorporation of tribal law (akin to assimilative regimes recognized in federal law) or an express and permissible delegation to a sovereign with independent authority in tribal affairs. The district court was reversed.

5. APA Challenges to the 2016 Final Rule

  • Binding state courts: A majority held BIA reasonably concluded that its rules can bind state courts when they implement federal minimum standards (ICWA’s domain), consistent with its rulemaking authority in § 1952.
  • Final Rule’s implementation of unconstitutional provisions: Because a majority found commandeering defects in §§ 1912(d), 1912(e), and 1915(e), the Final Rule was unlawful to the extent it implemented those provisions.
  • “Good cause” standard burden of proof: 25 C.F.R. § 23.132(b), which required clear-and-convincing proof to depart from § 1915 preferences, violated the APA. On Chevron analysis and statutory structure, Congress’s silence in § 1915 (contrasted with express heightened burdens in § 1912) foreclosed the agency’s imposition of a heightened standard.

C. Impact: What This Decision Does (and Does Not) Change

  • Binding holdings in the Fifth Circuit
    • Congress’s constitutional authority to enact ICWA is reaffirmed.
    • ICWA’s “Indian child” definition survives equal protection.
    • State executive actors in the Fifth Circuit may not constitutionally be compelled to carry out (i) § 1912(d) active efforts, (ii) § 1912(e)-(f) expert witness requirements, or (iii) § 1915(e) placement recordkeeping.
    • State courts remain bound, via preemption, to honor key substantive ICWA standards: the placement preferences (§ 1915) and heightened foster/termination burdens (§ 1912(e)-(f)), and the enumerated private-rights provisions.
    • Tribal reordering of placement preferences under § 1915(c) remains valid.
    • BIA’s conclusion that it can issue rules binding state courts is sustained; but the “good cause” clear-and-convincing burden in § 23.132(b) is vacated as contrary to the statute.
  • Non-precedential items (equally divided court): Although the district court’s judgment stands in this case on those items, they do not create binding circuit precedent. Future litigants may continue raising those issues.
  • Operational takeaways for courts and agencies
    • State courts must continue to apply ICWA’s substantive standards that validly preempt contrary state law.
    • State agencies in the Fifth Circuit cannot be compelled to supply “active efforts,” agency-procured expert testimony, or maintain the specific § 1915(e) records as federal mandates (unless and until Congress or the Supreme Court directs otherwise).
    • Practitioners should not rely on 25 C.F.R. § 23.132(b)’s “good cause” clear-and-convincing burden within the Fifth Circuit.
  • Doctrinal clarifications that travel beyond ICWA
    • Preemption vs. anticommandeering: The decision underscores how the Supremacy Clause binds state courts to apply valid federal standards even in traditional state subject areas, while policing attempts to compel state agency administration of federal programs.
    • Nondelegation and tribal sovereignty: Congress can incorporate or delegate to tribal sovereigns within the Indian affairs sphere without violating nondelegation principles.
    • APA guardrails: Agency reversals or expansions of rulemaking that affect state courts must be reasoned and consistent with statutory text and structure; contrary burdens that lack statutory anchoring will fall.

D. Complex Concepts, Simplified

  • Equally divided en banc court: When the en banc court splits 50/50 on an issue, it affirms the district court’s judgment in that case but creates no binding precedent. Future panels and district courts remain free to reach a different conclusion.
  • Preemption vs. Anticommandeering:
    • Preemption means a valid federal law displaces conflicting state law. State courts are bound to apply such federal substantive standards by the Supremacy Clause.
    • Anticommandeering prevents Congress from conscripting state executives or legislatures to carry out federal programs. An “evenhanded” federal rule that applies to both private parties and state entities (or regulates a state as a market participant) may not commandeer. But a directive that forces state agencies to implement federal programs often will.
  • Political vs. racial classification: ICWA links protections to tribal citizenship or eligibility, which, under Mancari, is a political status. Such classifications require only a rational relationship to Congress’s trust responsibilities, not strict scrutiny.
  • Nondelegation to tribal sovereigns: Delegating within the Indian affairs sphere to a tribe (or incorporating tribal resolutions) does not violate nondelegation when Congress sets the substantive framework and the tribe exercises recognized sovereign authority within that framework.
  • APA “good cause” ruling: The “good cause” burden of proof was not in the statute. Because Congress expressly set heightened burdens elsewhere in ICWA (§ 1912(e),(f)) but not for § 1915, the agency could not add one by regulation.

Conclusion

The en banc Fifth Circuit’s fractured but carefully mapped decision both affirms and redefines the practical landscape of ICWA within the circuit. On the one hand, Congress’s power to enact ICWA is upheld, and the core premise that “Indian child” is a political classification survives. On the other, the decision polices the limits of federal power under the Tenth Amendment by striking down select provisions that compel state executive implementation—namely, active efforts, state-procured expert testimony, and placement recordkeeping.

At the same time, the court reaffirms that state courts must honor federal substantive standards that validly preempt conflicting state rules, including ICWA’s placement preferences and elevated proof standards for foster-care placements and termination. Tribes retain authority to reorder ICWA placement preferences under § 1915(c). The BIA’s Final Rule largely stands—except for the “good cause” clear-and-convincing burden and to the limited extent the Rule implemented provisions now held unconstitutional.

Although some issues remain unresolved at a precedential level due to equal division, the decision offers a durable doctrinal template: federal supremacy remains robust in the courtroom (preemption), but federal agencies cannot draft state agencies into federal service (anticommandeering). That dual message respects both the Constitution’s Indian affairs architecture and its federalism constraints.

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