This Report summarizes opinions issued on March 3, 4, and 7 2022 (Part I); and cases granted review on February 28, 2022 (Part II).
Opinion: Haaland v. Brackeen, 21-376; Cherokee Nation v. Brackeen, 21-377; Texas v. Haaland, 21-378; Brackeen v. Haaland, 21-380
Haaland v. Brackeen, 21-376; Cherokee Nation v. Brackeen, 21-377; Texas v. Haaland, 21-378; Brackeen v. Haaland, 21-380. In these consolidated cases, the Court will consider challenges to the constitutionality of various provisions of the Indian Child Welfare Act (ICWA). Against the backdrop of concerns over abusive child welfare practices affecting Indian children, Congress enacted ICWA in 1978 to establish “minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes.” 25 U.S.C. §1902. At issue in this case are three sets of ICWA’s provisions, as well as an administrative rule, all of which govern termination of parental rights and the placement of children in foster or adoptive care. The first set of provisions requires the party seeking the placement or termination of parental rights to (1) notify the child’s tribe of the pending proceedings, 25 U.S.C. §1912(a), and (2) “satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful,” 25 U.S.C. §1912(d). Relatedly, §§1912(e) and (f) provide that no placement or termination of rights “may be ordered . . . in the absence of a determination,” supported by “testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.”
The second set of provisions creates a hierarchy of “preferences” for the placement of Indian children once the decision to remove them from their families has been made. 28 U.S.C. §1915. Section 1915(a) requires, in the absence of “good cause,” that preference be given to adoptive placement with “(1) a member of the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” Section 1915(b) creates a similar set of “preferences” for foster care placement. In addition, §1915(c) authorizes an Indian tribe to reorder the preferences; the state agency or court “shall follow such order” as long as it is the least-restrictive setting appropriate to the needs of the child. The third set of provisions at issue requires a state to keep records of all placements (§1915(e)), and to make them available to the federal government upon request (§1951(a)). Finally, the administrative rule at issue, promulgated by the Secretary of the Interior in 2016 (the 2016 Rule), states that “[t]he party seeking departure from the placement preferences [in §§1915(a) and (b)] should bear the burden of proving by clear and convincing evidence that there is ‘good cause’ to depart from the placement preferences.”
In 2018, three states and seven individuals (including non-Indian couples seeking to adopt Indian children) filed suit in federal district court challenging the above-referenced ICWA provisions as unconstitutional on their face, alleging violations of Article I, the anticommandeering doctrine of the Tenth Amendment, the Fifth Amendment’s equal protection guarantee, substantive due process, and the non-delegation doctrine. The plaintiffs also challenged the administrative rule as unconstitutional, contrary to the statute, and arbitrary and capricious. Several Indian tribes intervened as defendants and they, along with the federal defendants, moved to dismiss the individual plaintiffs’ equal protection claims for lack of standing. After denying that motion, the district court granted the plaintiffs’ motion for summary judgment and declared the above-referenced provisions of ICWA (and the 2016 Rule) unconstitutional. The government and the tribes appealed. In a divided opinion, a panel of the Fifth Circuit affirmed that the plaintiffs had standing but reversed the grant of summary judgment and entered judgment for the government on all claims. The court of appeals granted rehearing en banc and issued a fractured decision affirming in part and reversing in part. 994 F.3d 249.
First, the en banc court majority affirmed that at least one plaintiff had standing to bring each of the claims. On the merits of the anticommandeering claim, the en banc court majority held that ICWA was not unconstitutional to the extent that ICWA compels state courts to apply federal substantive standards. But, the en banc majority held, the provisions of ICWA do violate the anticommandeering doctrine to the extent that they require state agencies and officials to (1) engage in “active efforts” to provide remedial services to Indian families, and (2) bear the cost and burden of adducing expert testimony to justify placement of Indian children in foster care. The majority also held that §1915(e)’s requirement that states maintain Indian child placement records violate the anticommandeering doctrine. An equally divided en banc court affirmed the district court’s conclusion that the following provisions violate the anticommandeering doctrine: (1) the notification requirements in §1912(a); (2) the preference hierarchy in §1915(a) and (b) (to the extent that those provisions direct action by state agencies and officials); and (3) §1951(a)’s requirement that a state provide the federal government with Indian child placement records.
As for the equal protection claim, a majority of the en banc court held that ICWA’s Indian-based classifications are political, rather than racial, classifications, and thus subject only to rational basis review. The majority then upheld the definition of “Indian child” (which includes children both who are members of tribes and who are eligible to become members), finding it to be “rationally linked to the trust relationship between the tribes and the federal government, as well as to furthering tribal sovereignty and self-government.” And a majority concluded that the first- and second-ranked preferences for child placement did not violate equal protection principles. An equally divided court, however, affirmed the district court’s conclusion that § 1915(a)’s third-ranked placement preference—i.e., with “other Indian families”—violates equal protection, on the basis that placement of an Indian child with a different Indian tribe “does nothing to further ICWA’s stated aim of ensuring that Indian children are linked to their [own] tribe.” A majority of the court rejected the remaining constitutional claims, concluding that (1) Congress had authority under Article I, as a general matter, to enact ICWA, and (2) allowing Indian tribes to establish an order of adoptive and foster preferences different from the order in §§1915(a) and (b) does not violate the non-delegation doctrine. As for the 2016 Rule, a majority (1) deemed invalid portions of the rule that implement certain statutory provisions that the court held “unconstitutional,” (2) held that the Secretary’s decision to promulgate a “binding” rule did not violate the APA, and (3) held that the rule’s provision regarding the burden of proof for demonstrating “good cause” for departing from the placement preferences under §1915 is contrary to ICWA.
Four groups of petitioners sought Supreme Court review. The individual petitioners sought review of whether the placement preferences: (1) discriminate on the basis of race in violation of equal protection principles, and (2) exceed Congress’s Article I authority and otherwise commandeer state courts and agencies in violation of the Tenth Amendment. As to their equal protection claim, the individual petitioners argue that, because “’biology’ is the touchstone” as to whether a child is considered an Indian, classifications based on Indian status are racial classifications subject to strict scrutiny. The individual petitioners further argue that a narrow exception for laws based on Indian status that further a “legitimate, nonracially based goal” such as tribal self-government does not apply because ICWA “operates in the ‘critical state affair’ of state-court child-custody proceedings, rather than tribes’ internal affairs.” As to their Article I claim, the individual petitioners argue that nothing in Article I, including the Indian Commerce Clause, provides authority for Congress to assert authority over noncommercial areas traditionally reserved to the states, such as child-placement proceedings. To hold otherwise, they contend, would be to create virtually limitless authority so long as an Indian is involved. The individual petitioners also argue that the ICWA provisions at issue violate the anticommandeering doctrine by ordering state courts to, under state law, “carry out a federal program of routing Indian children to Indian adults.” The individual petitioners assert that, unlike a federally-created cause of action that state courts must otherwise enforce, ICWA commandeers state courts by rewriting the substantive standards that those courts must apply in state-law causes of action when an Indian child is involved.
The state petitioners present claims similar to those of the individual petitioners, including that Congress lacks authority under Article I to regulate child-custody proceedings and that certain provisions of ICWA violate equal protection principles and the anticommandeering doctrine. In addition, the state petitioners argue that the “plenary power” of Congress over Indians that courts have recognized has no basis in the text of the Constitution, and that this case is an appropriate vehicle to rein in an overbroad view of Congress’s authority over Indian affairs. As for the anticommandeering doctrine claim, the state petitioners add that, in declining to invalidate ICWA provisions as applied to state courts, the Fifth Circuit improperly created a “loophole” in the doctrine. Finally, the state petitioners also argue that the ICWA provision delegating to Indian tribes the authority to alter ICWA’s placement preferences violates the non-delegation doctrine. That is because, the states say, a tribe exercising that authority “is not acting as a sovereign but rather as akin to a private actor with no political accountability for the consequences of its actions” and because “ICWA does not lay down an intelligible principle for tribes to follow.”
On the other side are the federal and tribal petitioners. They argue that the ICWA provisions at issue do not violate the anticommandeering doctrine because, unlike laws that compel actions by states, ICWA merely confers rights on private actors, i.e., Indian families and tribes. Moreover, the federal and tribal petitioners contend that ICWA does not compel a state to do anything; rather, it merely sets forth substantive standards to be applied should a state wish to engage in a particular activity (here, foster and adoptive placements). And because both state agencies and private actors can and do seek removal of Indian children from their families, ICWA applies equally to states and private actors alike, thus taking it outside of the reach of the anticommandeering doctrine. The federal and tribal petitioners also argue that ICWA’s recordkeeping and disclosure requirements are constitutional because they are ministerial duties no different from Founding-era statutes imposing similar requirements on states.
As for equal protection, the federal and tribal petitioners first assert that no plaintiff has standing to challenge §1915(a)’s third-ranked placement preference for “other Indian families” (which was the only provision of the placement preferences that the en banc Fifth Circuit concluded was unconstitutional). On the merits, the federal and tribal petitioners argue that the en banc Fifth Circuit correctly held that ICWA’s preference for placing Indian children with Indian families furthers Congress’s interest in the integrity of Indian families and “the stability and security of Indian tribes.” In particular, they argue that the third-ranked preference for “other Indian families” is rationally related to that interest because many tribes that the United States recognizes as separate political units are descended from the same larger historical bands, and that the prevailing social, cultural, and political standards of an Indian community may transcend tribal lines. The federal and tribal petitioners also note that the placement preferences may be overridden where there is “good cause,” thereby allowing departure when ICWA’s default preferences do not serve Congress’s intended goals. The tribal petitioners—but not the federal petitioners—also argue that ICWA is Spending Clause legislation and that by accepting funding, the states have subjected themselves to the conditions embodied in ICWA.
[Editor’s note: Some of the language in the background section of the summary above was taken from the petition for writ of certiorari and brief in opposition.]