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Case Name Brackeen v. Zinke CW-TX-0002
Docket / Court 4:17-cv-00868 ( N.D. Tex. )
State/Territory Texas
Case Type(s) Child Welfare
Case Summary
On October 25, 2017, foster parents and three states (Texas, Louisiana, and Indiana) filed this lawsuit challenging the constitutionality of the Indian Child Welfare Act (the “ICWA”) and accompanying regulations, including regulations promulgated by the Bureau of Indian Affairs titled Indian ... read more >
On October 25, 2017, foster parents and three states (Texas, Louisiana, and Indiana) filed this lawsuit challenging the constitutionality of the Indian Child Welfare Act (the “ICWA”) and accompanying regulations, including regulations promulgated by the Bureau of Indian Affairs titled Indian Child Welfare Act Proceedings (the “Final Rule”). They also challenged certain provisions of the Social Security Act (“SSA”) that predicated federal funding for portions of state child-welfare payments on compliance with the ICWA. The plaintiffs sued the United States of America, several federal agencies, and intervening Native American tribes in the Northern District of Texas. The plaintiffs requested a declaratory judgment that the ICWA, 25 U.S.C. §§ 1901–1923, 1951–1952, was unconstitutional and unenforceable and an injunction prohibiting the implementation or administration of those sections of the ICWA. They also sought attorney’s fees and costs. Private counsel represented the parents. The case was assigned to Judge Reed C. O’Connor.

Background on the Indian Child Welfare Act
Congress passed the ICWA in the 1970s in response to concerns about the large number of Native American children being removed from families and tribes and being placed in non-Native homes. The ICWA mandated that placement preferences in foster care and adoptive homes favor placing Native children with members of the child’s extended family, or if not possible, with members of the child’s tribe or with other Native families. The ICWA required a showing of “good cause” to override that preference.

Plaintiffs' Specific Claims
The plaintiffs argued that the ICWA and Final Rule sets up a system based on racial and ethnic preferences in violation of state and federal law. Both the state and the individual plaintiffs alleged that the ICWA violated the equal protection guarantee of the Fifth Amendment. All plaintiffs alleged that the Final Rule violated the APA because it was not in accordance with law. They also alleged that the parts of the ICWA, Final Rule, and SSA violated the Commerce Clause and the Tenth Amendment by intruding into state domestic relations and violating anti-commandeering principles. The individual plaintiffs further alleged that the ICWA’s placement preferences violated their Fifth Amendment substantive due process right to an intimate familiar relationship with the children they foster. The state plaintiffs alleged that the ICWA and the Final rule also were an impermissible delegation of federal legislative and executive power to tribal nations in violation of Article I of the Constitution.

Native Tribes Permitted to Intervene as Defendants
On March 26, 2018, Native tribes, including Cherokee Nation, Morongo Band of Mission Indians, Oneida Nation, and Quinault Indian Nation, filed a motion to intervene as defendants, and the court granted it two days later. The four Native tribes immediately moved to dismiss the suit. The Navajo Nation, who filed a separate motion to intervene on April 26, 2018, was not permitted to join the lawsuit as a defendant. The court found that the Navajo Nation’s interest would be adequately represented by the four other tribal nation defendants.

The Parties File Cross-Motions for Summary Judgment
Both the state and individual plaintiffs filed motions for summary judgment in April 2018. The federal defendants meanwhile filed both a motion to dismiss and cross-motion for summary judgment. Several parties filed amicus curiae briefs in support of the plaintiffs, federal defendants, and tribal defendant-intervenors. These included briefs from eight states, several tribal advocacy groups, including the National Indian Child Welfare Association and National Congress of American Indians, and the Goldwater Institute. In June 2018, the Native tribes also filed a motion for summary judgment.

District Court Denies Motion to Dismiss and Finds Plaintiffs Have Standing
Judge O’Connor denied both the federal and tribal defendants’ motions to dismiss on July 24, 2018. He found that the state and individual plaintiffs had standing to bring suit. Further, he rejected the federal defendants’ argument that they failed to waive sovereign immunity, finding the APA waived sovereign immunity on plaintiffs’ claims challenging the agency’s Final Rule and actions and that sovereign immunity did not protect against a challenge to the constitutionality of the ICWA. He also found that Younger abstention was not applicable to this case and plaintiffs seeking relief to preclude application of the ICWA to state-court child custody proceedings did not require abstention in this case.

District Court Grants Summary Judgment to Plaintiffs
After a hearing on the motions for summary judgment, on October 4, 2018, Judge O’Connor granted the plaintiffs’ motions for summary judgment in part and denied in part. 338 F. Supp. 3d 514. The court evaluated the plaintiff’s claims that the ICWA and Final Rule violated: 1) The equal protection requirements of the Fifth Amendment; (2) the Due Process Clause of the Fifth Amendment; (3) the Tenth Amendment; and (4) the proper scope of the Indian Commerce Clause. The state plaintiffs also argued that: (1) the Final Rule violated the Administrative Procedure Act (the “APA”); and (2) the ICWA violated the non-delegation doctrine Article I of the Constitution.

First, the court addressed the plaintiffs’ equal protection claims and the appropriate level of review. The plaintiffs argued strict scrutiny applied because ICWA relied on racial classifications. The defendants responded that the placement preferences relied not on racial classification, but rather political classifications, and therefore, rational basis review should be applied. The court agreed with the plaintiffs and found that the ICWA classification mirrored racial classification and that strict scrutiny applied. The court granted the plaintiffs summary judgment on their equal protection claim because the classifications in the ICWA were not narrowly tailored and did not serve a compelling governmental interest.

Next, the court evaluated the state plaintiffs’ Article I non-delegation claim and granted them summary judgment. The state plaintiffs claimed that the ICWA was unconstitutional because it delegated congressional power to Native American tribes by permitting tribes to reorder congressionally enacted adoption placement preference by tribal decree and apply these orders against the states. The court held that regardless of whether Native tribes were characterized as quasi-sovereigns or domestic dependent nations, the Constitution did not permit them to exercise federal legislative or executive power over non-tribal persons on non-tribal land. Accordingly, it held the delegation in the ICWA and Final Rule permitting tribal placement preferences to apply over those in the ICWA impermissible.

The court also granted the plaintiffs’ summary judgment on their Tenth Amendment anti-commandeering claim. The plaintiffs argued that the ICWA unconstitutionally required state courts and executive agencies to apply federal standards and directives to state created claims. The federal government argued that they had the power to enact the ICWA under the Indian Commerce Clause. The court determined that the ICWA violated three principles laid out in Murphy v. NCAA on the importance of the anti-commandeering doctrine: 1) protecting the Constitution’s structural protections of liberty; 2) promoting political accountability; 3) preventing Congress from shifting the cost of regulation to the states. The court rejected the idea that the ICWA preempts state law, as the ICWA is directly regulating the states.

Finally, the court granted the plaintiffs summary judgment on their claim that the Final Rule violated the APA by implementing an unconstitutional law, exceeding the scope of the BIA’s statutory regulatory authority, and reflecting an impermissibly ambiguous construction of the statute; and is otherwise arbitrary and capricious.

The court denied summary judgment to the individuals plaintiffs on their claim that the ICWA and Final Rule violated the Fifth Amendment Due Process clause. The court refused to recognize a fundamental right of keeping foster families or prospective adoptive families together. Judge O’Connor entered final judgment that day, October 4, 2018, and declared §§ 1901–1923, 1951–1952 of the ICWA and the Final Rule unconstitutional.

Defendants Appeal to the Fifth Circuit & Fifth Circuit Reverses District Court
The defendants appealed to the Fifth Circuit on November 19, 2018, docket number 18-11479. The Navajo Nation once again sought to intervene on the appeal, and this time, the Fifth Circuit permitted them to intervene in support of appellants.

On August 9, 2019, in an opinion written by Circuit Judge James L. Dennis, the Fifth Circuit reversed the district court’s grant of summary judgment to the plaintiffs. 937 F.3d 406. Regarding the plaintiffs’ equal protection claim, the Fifth Circuit court determined that the classification was a political, rather than racial classification and applied rational basis review. The court reversed the anti-commandeering claim and preemption claim, stating that the ICWA regulates private individuals rather than states. Circuit Judge Priscilla Owen wrote an opinion concurring in part and dissenting in part. Judge Owen believed that the ICWA violated the constitution by directing state officers and agents to administer federal law.

En Banc Rehearing Results in Highly Fractured, 325 Page Decision that Partially Reverses, Partially Affirms District Court
On November 7, 2019, the Fifth Circuit granted a rehearing en banc. On April 6, 2021, the en banc Fifth Circuit released a highly fractured opinion, totaling 325 pages. Two principal opinions were filed by Judge James L. Dennis and Judge Stuart Kyle Duncan. Neither principal opinion gained majority support on all issues. A majority of the court agreed that Congress has the authority to enact the ICWA under Article I of the Constitution. They also reversed the district court’s decision that the classification in the ICWA violated the equal protection clause. A majority of the en banc court also found that several provisions of the ICWA do not illegal commandeer the states, but affirmed the district court’s ruling that other parts of the ICWA did unconstitutionally commandeer state officials. The en banc court was split on other issues, including the district court’s ruling the ICWA violated the equal protection by preferring other Native American families over the adoptive parents, saying that the holding was “affirmed without a precedential opinion.”

The en banc majority reversed the district court’s ruling on the preemption and nondelegation doctrine claims. Lastly, the en banc majority held that the BIA did not violate the APA by concluding the Final Rule may issue regulations binding on state courts but held that it did violate the APA by implementing unconstitutional provisions.

Judge Costa wrote a particularly lively opinion concurring in part and dissenting in part. Judge Costa would find that the plaintiffs lacked standing because the circuit court lacked the power to bind state courts conducting adoption proceedings and therefore could not redress the injury. He wrote “it will no doubt shock the reader who has slogged through today’s lengthy opinions. . . this case will not have binding effect in a single adoption.” He further wrote “there is a term for a judicial decision that does nothing more than opine on what the law should be: an advisory opinion. That is what the roughly 300 pages you just read amount to.” He also criticized the other opinions for their narrow view on federal power when it was being used to sustain tribal life, rather than destroy it: “[T]he most tragic irony of today’s opinions” is that “[a]fter more than two centuries of courts' recognizing sweeping federal power over Indian affairs when that power was often used to destroy tribal life, our court comes within a whisker of rejecting that power when it is being used to sustain tribal life. . . . Contrary to what a near-majority of our court concludes, the same power Congress once relied on to tear Indian children from Indian homes authorizes Congress to enlist state courts in the project of returning them.”

The case is ongoing.

Kennon Wales - 04/09/2021

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Issues and Causes of Action
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Constitutional Clause
Due Process
Due Process: Substantive Due Process
Equal Protection
Federalism (including 10th Amendment)
National origin discrimination
Race discrimination
Plaintiff Type
Private Plaintiff
State Plaintiff
Causes of Action Administrative Procedure Act, 5 U.S.C. §§ 551 et seq.
Ex parte Young (federal or state officials)
Defendant(s) Cherokee Nation
Morongo Band of Mission Indians
Navajo Nation
Oneida Nation
Quinalt Indian Nation
United States of America
Plaintiff Description Foster parents and three states: Texas, Louisiana, and Indiana
Class action status sought No
Class action status granted No
Filed Pro Se No
Prevailing Party None Yet / None
Public Int. Lawyer No
Nature of Relief None yet
Source of Relief None yet
Filed 10/25/2017
Case Ongoing Yes
Additional Resources
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  Legal Accountability in the Service-Based Welfare State: Lessons from Child Welfare Reform
Date: Summer 2009
By: Kathleen G. Noonan, Charles F. Sabel, William H. Simon (Center for High Impact Philanthropy , Columbia Law School and Stanford Law School Faculty)
Citation: 34 Law & Soc. Inquiry 523 (Summer 2009)
[ Detail ] [ External Link ]

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