Brackeen v. Haaland

994 F.3d 249

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,

v.Deb HAALAND, Secretary, United States Department of the Interior; Darryl LaCounte, Acting Assistant Secretary for Indian Affairs; Bureau of Indian Affairs; United States Department of the Interior; United States of America; Xavier Becerra, Secretary, United States Department of Health and Human Services; United States Department of Health and Human Services, Defendants—Appellants,Cherokee Nation; Oneida Nation ; Quinault Indian Nation; Morongo Band of Mission Indians, Intervenor Defendants—Appellants.

No. 18-11479

United States Court of Appeals, Fifth Circuit.

FILED April 6, 2021

Matthew D. McGill, Attorney, David William Casazza, Lochlan Francis Shelfer, Gibson, Dunn & Crutcher, L.L.P., Washington, DC, for Plaintiffs—Appellees Chad Everet Brackeen, Jennifer Kay Brackeen, Altagracia Socorro Hernandez, Jason Clifford, Frank Nicholas Libretti, Heather Lynn Libretti, and Danielle Clifford.

Beth Ellen Klusmann, Esq., Office of the Attorney General, Office of the Solicitor General, Austin, TX, David J. Hacker, First Liberty Institute, Plano, TX, for Plaintiffs—Appellees State of Texas, State of Indiana, and State of Louisiana.

Adam Howard Charnes, Esq., Kilpatrick Townsend & Stockton, L.L.P., Dallas, TX, Kathryn Fort, Michigan State University College of Law, East Lansing, MI, Keith Michael Harper, Jenner & Block, L.L.P., Washington, DC, Mark Reeves, Kilpatrick Townsend & Stockton, L.L.P., Augusta, GA, for Intervenor Defendants—Appellants Cherokee Nation, Oneida Nation, Quinault Indian Nation, and Morongo Band of Mission Indians.

Rachel Heron, U.S. Department of Justice, Environment & Natural Resources Division-Appellate Section, Washington, DC, for Defendants—Appellants Deb Haaland, Bureau of Indian Affairs, United States Department of Interior, United States of America, Alex Azar, United States Department of Health and Human Services, and Tara Sweeney.

Paul W. Spruhan, Esq., Navajo Nation Department of Justice, Litigation and Employment Unit, Window Rock, AZ, for Intervenor Navajo Nation.

Stephen Richard Ward, Conner & Winters, L.L.P., Tulsa, OK, for Amicus Curiae Quapaw Nation.

Christina Riehl, California Department of Justice, Office of The Attorney General - Public Rights Division/Bureau of Children's Justice, San Diego, CA, for Amici Curiae State of California, State of Alaska, States of Connecticut, Nevada, New York, Oklahoma, Pennsylvania, and District of Columbia, State of Arizona, State of Colorado, State of Idaho, State of Illinois, State of Iowa, State of Maine, State of Massachusetts, State of Michigan, State of Minnesota, State of Mississippi, State of Montana, State of New Jersey, State of New Mexico, State of Oregon, State of Rhode Island, State of Utah, State of Virginia, State of Washington, and State of Wisconsin.

Klint Cowan, Bryan N. B. King, Esq., Attorney, Fellers, Snider, Blankenship, Bailey & Tippens, Oklahoma City, OK, for Amicus Curiae United Keetoowah Band of Cherokee Indians in Oklahoma.

Timothy Mason Sandefur, Goldwater Institute, Phoenix, AZ, for Amici Curiae Goldwater Institute, Cato Institute, Texas Public Policy Foundation, and American Academy of Adoption Attorneys.

Margaret A. Little, New Civil Liberties Alliance, Washington, DC, for Amicus Curiae New Civil Liberties Alliance.

Erin C. Dougherty Lynch, Native American Rights Fund, Anchorage, AK, Daniel Lewerenz, Native American Rights Fund, Washington, DC, for Amicus Curiae 486 Recognized Tribes, Association on American Indian Affairs, National Congress of American Indians, National Indian Child Welfare Association, and other Indian Organizations.

Matthew L. Fletcher, MSU College of Law, Indigenous Law & Policy Center, East Lansing, MI, for Amici Curiae Robert T. Anderson, Barbara A. Atwood, Bethany Berger, Kristen Carpenter, Matthew L. Fletcher, Carole Goldberg, Lorie Graham, Sarah Krakoff, Angela Riley, Addie C. Rolnick, Alex Skibine, Maylinn Smith, Michalyn Steele, Rebecca Tsosie, and Charles Wilkinson.

Hyland Hunt, Deutsch Hunt, P.L.L.C., Washington, DC, for Amicus Curiae Casey Family Programs and 30 Other Organizations Working with Children, Families, and Courts to Support Children's Welfare.

Michelle T. Miano, Attorney, Barnhouse Keegan Solimon & West, L.L.P., Los Ranchos de Albuquerque, NM, for Amicus Curiae Professor Gregory Ablavsky.

Erin C. Dougherty Lynch, Native American Rights Fund, Anchorage, AK, Samuel Daughety, Dentons US, L.L.P., Washington, DC, Daniel Lewerenz, Native American Rights Fund, Washington, DC, Rose N. Petoskey, Dentons US, L.L.P., Washington, DC, for Amicus Curiae 325 Federally Recognized Tribes, Association on American Indian Affairs, National Congress of American Indians, National Indian Child Welfare Association, and Other Indian Organizations.

David Steven Coale, Esq., Paulette Miniter, Lynn Pinker Hurst & Schwegmann, L.L.P., Dallas, TX, for Amicus Curiae Administrative Law and Constitutional Law Scholars.

Danielle Mary Spinelli, Wilmer Cutler Pickering Hale and Dorr, L.L.P., Washington, DC, Alan E. Schoenfeld, WilmerHale, New York, NY, for Amicus Curiae Members of Congress.

Kendra J. Hall, Senior Counsel, Kerry Kay Patterson, Procopio, Cory, Hargreaves & Savitch, L.L.P., San Diego, CA, for Amicus Curiae Native American Women and Indian Tribes and Organizations.

William S. Consovoy, Consovoy McCarthy P.L.L.C., Arlington, VA, for Amicus Curiae The Project on Fair Representation.

Benjamin Michael Flowers, Office of the Attorney General for the State of Ohio, Columbus, OH, for Amicus Curiae State of Ohio.

Krystal Brunner Swendsboe, Wiley Rein, L.L.P., Washington, DC, for Amicus Curiae Christian Alliance for Indian Child Welfare.

Matthew L. Fletcher, MSU College of Law, Indigenous Law & Policy Center, East Lansing, MI, April Youpee-Roll, Esq., Attorney, Munger, Tolles & Olson, L.L.P., Los Angeles, CA, for Amicus Curiae Indian Law Scholars.

Before Owen, Chief Judge, and Jones, Smith, Wiener, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Duncan, Engelhardt, and Oldham, Circuit Judges.^*

Per Curiam:

This en banc matter considers the constitutionality of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq. , and the validity of implementing regulations promulgated by the Bureau of Indian Affairs (BIA) in its 2016 Final Rule (Final Rule). Plaintiffs are several couples who seek to adopt or foster Indian children, a woman who wishes for her Indian biological child to be adopted by non-Indians, and the States of Texas, Louisiana, and Indiana. Defendants are the United States, federal agencies and officials charged with administering ICWA and the Final Rule, as well as several Indian tribes that intervened in support of ICWA. The district court granted Plaintiffs summary judgment in part, declaring that ICWA and the Final Rule contravene multiple constitutional provisions and the Administrative Procedure Act (APA). Defendants appealed. A panel of this court reversed and rendered judgment for the Defendants. See Brackeen v. Bernhardt , 937 F.3d 406, 414 (5th Cir. 2019). One panel member partially dissented, concluding that several provisions of ICWA violated the Tenth Amendment's anticommandeering doctrine. See id. at 441–46 ( OWEN , J., concurring in part and dissenting in part). This case was then reconsidered en banc.

Neither JUDGE DENNIS'S nor JUDGE DUNCAN'S principal opinion nor any of the other writings in this complex case garnered an en banc majority on all issues. We therefore provide the following issue-by-issue summary of the en banc court's holdings, which does not override or amend the en banc opinions themselves.

First is the issue of standing. The en banc court unanimously holds that at least one Plaintiff has standing to challenge Congress's authority under Article I of the Constitution to enact ICWA and to press anticommandeering and nondelegation challenges to specific ICWA provisions. The en banc court also unanimously holds that Plaintiffs have standing to challenge the Final Rule as unlawful under the APA. The en banc court is equally divided as to whether Plaintiffs have standing to challenge two provisions of ICWA, 25 U.S.C. §§ 1913 and 1914, on equal protection grounds, and the district court's conclusion that Plaintiffs can assert this claim is therefore affirmed without a precedential opinion.¹ An en banc majority also holds that Plaintiffs have standing to assert their equal protection challenges to other provisions of ICWA.

On the merits, an en banc majority agrees that, as a general proposition, Congress had the authority to enact ICWA under Article I of the Constitution.² An en banc majority also holds that ICWA's "Indian child" classification does not violate equal protection.³ The district court's ruling to the contrary on those two issues is therefore reversed. The en banc court is equally divided, however, as to whether Plaintiffs prevail on their equal protection challenge to ICWA's adoptive placement preference for "other Indian families," 25 U.S.C. § 1915(a)(3), and its foster care placement preference for a licensed "Indian foster home," § 1915(b)(iii).⁴ The district court's ruling that provisions of ICWA and the Final Rule are unconstitutional because they incorporate the "Indian child" classification is therefore reversed, but its ruling that § 1915(a)(3) and (b)(iii) violate equal protection is affirmed without a precedential opinion.

The court's holdings on Plaintiffs’ various anticommandeering claims are more intricate. An en banc majority holds that ICWA's "active efforts," § 1912(d), expert witness, § 1912(e) and (f), and recordkeeping requirements, § 1915(e), unconstitutionally commandeer state actors.⁵ The district court's judgment declaring those sections unconstitutional under the anticommandeering...