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. DAVID BERNHARDT, SECRETARY, U.S. DEPARTMENT OF THE INTERIOR; TARA SWEENEY, in her official capacity as Acting Assistant Secretary for Indian Affairs; BUREAU OF INDIAN AFFAIRS; UNITED STATES DEPARTMENT OF INTERIOR; UNITED STATES OF AMERICA; ALEX AZAR, In his official capacity as Secretary of the 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 for the Fifth Circuit
August 9, 2019
MODIFIED August 16, 2019
Before WIENER, DENNIS, and OWEN, Circuit Judges.
This case presents facial constitutional challenges to the Indian Child Welfare Act of 1978 (ICWA) and statutory and constitutional challenges to the 2016 administrative rule (the Final Rule) that was promulgated by the Department of the Interior to clarify provisions of ICWA. Plaintiffs are the states of Texas, Indiana, and Louisiana, and seven individuals seeking to adopt Indian children. Defendants are the United States of America, several federal agencies and officials in their official capacities, and five intervening Indian tribes. Defendants moved to dismiss the complaint for lack of subject matter jurisdiction, but the district court denied the motion, concluding, as relevant to this appeal, that Plaintiffs had Article III standing. The district court then granted summary judgment in favor of Plaintiffs, ruling that provisions of ICWA and the Final Rule violated equal protection, the Tenth Amendment, the
BACKGROUND
I. The Indian Child Welfare Act (ICWA)
Congress enacted the Indian Child Welfare Act of 1978 (ICWA),
Congress has plenary power over Indian affairs.
25 U.S.C. § 1901(1) (citingU.S. CONST. art. I, section 8, cl. 3 (“The Congress shall have Power . . . To regulate Commerce . . . with the Indian Tribes.“)).“[T]here is no resource that is more vital to the continued existence and integrity of Indian tribes than their children . . . .”
Id. at § 1901(3) .“[A]n alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster
and adoptive homes and institutions.” Id. at § 1901(4) .“States exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.”
Id. at § 1901(5) .
In light of these findings, Congress declared that it was 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 by the establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values
ICWA applies in state court child custody proceedings involving an “Indian child,” defined as “any unmarried person who is under age eighteen and 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.”
ICWA further sets forth placement preferences for foster care, preadoptive, and adoptive proceedings involving Indian children. Section 1915 requires that “[i]n any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a 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.”
The state in which an Indian child‘s placement was made shall maintain records of the placement, which shall be made available at any time upon request by the Secretary or the child‘s tribe.
II. The Final Rule
ICWA provides that “the Secretary [of the Interior] shall promulgate such rules
The Final Rule provides that states have the responsibility of determining whether a child is an “Indian child” subject to ICWA‘s requirements.
III. The Instant Action
A. Parties
1. Plaintiffs
Plaintiffs in this action are the states of Texas, Louisiana, and Indiana,1 (collectively, the “State Plaintiffs“), and seven individual Plaintiffs—Chad and Jennifer Brackeen (the “Brackeens“), Nick and Heather Libretti (the “Librettis“), Altagracia Socorro Hernandez (“Hernandez“), and Jason and Danielle Clifford (the “Cliffords“) (collectively, “Individual Plaintiffs“) (together with State Plaintiffs, “Plaintiffs“).
a. The Brackeens & A.L.M.
At the time their initial complaint was filed in the district court, the Brackeens sought to adopt A.L.M., who falls within ICWA‘s definition of an “Indian Child.” His biological mother is an enrolled member of the Navajo Nation and his biological father is an enrolled member of the Cherokee Nation. When A.L.M. was ten months old, Texas‘s Child Protective Services (“CPS“) removed him from his paternal grandmother‘s custody and placed him in foster care with the Brackeens. Both the Navajo Nation and the Cherokee Nation were notified pursuant to ICWA and the Final Rule. A.L.M. lived with the
b. The Librettis & Baby O.
The Librettis live in Nevada and sought to adopt Baby O. when she was born in March 2016. Baby O.‘s biological mother, Hernandez, wished to place Baby O. for adoption at her birth, though Hernandez has continued to be a part of Baby O.‘s life and she and the Librettis visit each other regularly. Baby O.‘s biological father, E.R.G., descends from members of the Ysleta del sur Pueblo Tribe (the “Pueblo Tribe“), located in El Paso, Texas, and was a registered member at the time Baby O. was born. The Pueblo Tribe intervened in the Nevada custody proceedings seeking to remove Baby O. from the Librettis. Once the Librettis joined the challenge to the constitutionality of the ICWA and the Final Rule, the Pueblo Tribe indicated that it was willing settle. The Librettis agreed to a settlement with the tribe that would permit them to petition for adoption of Baby O. The Pueblo Tribe agreed not to contest the Librettis’ adoption of Baby O., and on December 19, 2018, the Nevada state court issued a decree of adoption, declaring that the Librettis were Baby O.‘s lawful parents. Like the Brackeens, the Librettis alleged that they intend to provide foster care for and possibly adopt additional children in need but are reluctant to foster Indian children after this experience.
c. The Cliffords & Child P.
The Cliffords live in Minnesota and seek to adopt Child P., whose maternal grandmother is a registered member of the White Earth Band of Ojibwe Tribe (the “White Earth Band“). Child P. is a member of the White Earth Band for purposes
2. Defendants
Defendants are the United States of America; the United States Department of the Interior and its Secretary Ryan Zinke, in his official capacity; the BIA and its Director Bryan Rice, in his official capacity; the BIA Principal Assistant Secretary for Indian Affairs John Tahsuda III, in his official capacity; and the Department of Health and Human Services (“HHS“) and its Secretary Alex M. Azar II, in his official capacity (collectively the “Federal Defendants“). Shortly after this case was filed in the district court, the Cherokee Nation, Oneida Nation, Quinalt Indian Nation, and Morengo Band of Mission Indians (collectively, the “Tribal Defendants“) moved to intervene, and the district court granted the motion. On appeal, we granted the Navajo Nation‘s motion to intervene as a defendant2 (together with Federal and Tribal Defendants, “Defendants“).
B. Procedural History
Plaintiffs filed the instant action against the Federal Defendants in October 2017, alleging that the Final Rule and certain provisions of ICWA are unconstitutional and seeking injunctive and declaratory relief. Plaintiffs argued that ICWA and the Final Rule violated equal protection and substantive due process under the Fifth Amendment and the anticommandeering doctrine that arises from the Tenth Amendment. Plaintiffs additionally sought a declaration that provisions of ICWA and the Final Rule violated the nondelegation doctrine and the Administrative Procedure Act (APA). Defendants moved to dismiss, alleging that Plaintiffs lacked standing. The district court denied the motion. All parties filed cross-motions for summary judgment. The district court granted Plaintiffs’ motion for summary judgment in part, concluding that ICWA and the Final Rule violated equal protection, the Tenth Amendment, and the nondelegation doctrine, and that the challenged portions of the Final Rule were invalid under the APA.3 Defendants appealed. A panel of this court subsequently stayed the district court‘s judgment pending further order of this court. In total, fourteen amicus briefs were filed in this court, including a brief in support of Plaintiffs and affirmance filed by the state of Ohio; and a brief in support of Defendants and reversal filed by the states of California, Alaska, Arizona, Colorado, Idaho, Illinois, Iowa, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, New Jersey, New Mexico, Oregon,
STANDARD OF REVIEW
We review a district court‘s grant of summary judgment de novo. See Texas v. United States, 497 F.3d 491, 495 (5th Cir. 2007). Summary judgment is appropriate when the movant has demonstrated “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
DISCUSSION
I. Article III Standing
Defendants first contend that Plaintiffs lack standing to challenge ICWA and the Final Rule. The district court denied Defendants’ motion to dismiss on this basis, concluding that Individual Plaintiffs had standing to bring an equal protection claim; State Plaintiffs had standing to challenge provisions of ICWA and the Final Rule on the grounds that they violated the Tenth Amendment and the nondelegation doctrine; and all Plaintiffs had standing to bring an APA claim challenging the validity of the Final Rule.
Article III limits the power of federal courts to “Cases” and “Controversies.” See Spokeo, Inc. v. Robins, 136 S. Ct. 1540, 1547 (2016) (citing
A. Standing to Bring Equal Protection Claim
Plaintiffs challenged ICWA sections 1915(a)–(b), 1913(d), and 1914 and Final Rule sections 23.129–32 on equal protection grounds, alleging that these provisions impose regulatory burdens on non-Indian families seeking to adopt Indian children that are not similarly imposed on Indian families who seek to adopt Indian children. The district court concluded that Individual Plaintiffs suffered and continued to suffer injuries when their efforts
The district court concluded that ICWA section 1913(d), which allows a parent to petition the court to vacate a final decree of adoption on the grounds that consent was obtained through fraud or duress, left the Brackeens’ adoption of A.L.M. vulnerable to collateral attack for two years. Defendants argue that section 1914,5 and not section 1913(d), applies to the Brackeens’ state court proceedings and that, in any event, an injury premised on potential future collateral attack under either provision is too speculative. We need not decide which provision applies here, as neither the Brackeens nor any of the Individual Plaintiffs have suffered an injury under either provision. Plaintiffs do not assert that A.L.M.‘s biological parents, the Navajo Nation, or any other party seeks to invalidate the Brackeens’ adoption of A.L.M. under either provision. Plaintiffs’ proffered injury under section 1913 or section 1914 is therefore too speculative to support standing. See Lujan, 504 U.S. at 560; see also Clapper v. Amnesty Int‘l USA, 568 U.S. 398, 409 (2013) (“[T]hreatened injury must be certainly impending to constitute injury in fact, and [] [a]llegations of possible future injury are not sufficient.” (cleaned up)). To the extent Plaintiffs argue that an injury arises from their attempts to avoid
collateral attack under section 1914 by complying with sections 1911–13, “costs incurred to avoid injury are insufficient to create standing” where the injury is not certainly impending. See Clapper, 568 U.S. at 417.
The district court also concluded that ICWA section 1915, and sections 23.129–32 of the Final Rule, which clarify section 1915, gave rise to an injury from an increased regulatory burden. We agree. Prior to the finalization of the Brackeens’ adoption of A.L.M., the Navajo Nation notified the state court that it had located a potential alternative placement for A.L.M. in New Mexico. Though that alternative
Defendants contend that the Brackeens’ challenge to section 1915 and sections 23.129–32 is moot. They argue that, because the Brackeens’ adoption of A.L.M. was finalized in January 2018 and the Navajo Nation will not seek to challenge the adoption, section 1915‘s placement preferences no longer apply in A.L.M.‘s adoption proceedings. Plaintiffs argue that section 1915‘s placement preferences impose on them the ongoing injury of increased regulatory burdens in their proceedings to adopt A.L.M.‘s sister, Y.R.J., which the Navajo Nation currently opposes in Texas state court.
“A corollary to this case-or-controversy requirement is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed.” Genesis Healthcare Corp. v. Symczyk, 569 U.S. 66, 71 (2013). “[A] case is moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496 (1969)(internal quotation marks omitted). However, mootness will not render a case non-justiciable where the dispute is one that is “capable of repetition, yet evading review.” See Murphy v. Hunt, 455 U.S. 478, 482 (1982). “That exception applies where (1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration, and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.” Davis, 554 U.S. at 735 (internal citations and quotations omitted). Here, the Brackeens were unable to fully litigate a challenge to section 1915 before successfully adopting A.L.M. Additionally, they have demonstrated a reasonable expectation that they will be subject to section 1915‘s regulatory burdens in their adoption proceedings involving A.L.M.‘s sister, Y.R.J. Thus, the Brackeens’ challenge to section 1915 is justiciable on the grounds that it is capable of repetition, yet evading review. See Hunt, 455 U.S. at 482.
Having thus found an injury with respect to ICWA section 1915 and Final Rule sections 23.129–32, we consider whether causation and redressability are met here. See Lujan, 504 U.S. at 590. The Brackeens’ alleged injury is fairly traceable to the actions of at least some of the Federal Defendants, who bear some responsibility for the regulatory burdens imposed by ICWA and the Final Rule. See Contender Farms, L.L.P., 779 F.3d at 266 (noting that causation “flow[ed] naturally from” a regulatory injury). Additionally, the Brackeens have demonstrated a likelihood that their injury will be redressed by a favorable ruling of this court. In the Brackeens’ ongoing proceedings
B. Standing to Bring Administrative Procedure Act Claim
Plaintiffs first argue that ICWA does not authorize the Secretary of the Interior to promulgate binding rules and regulations, and the Final Rule is therefore invalid under the APA. The district court ruled that State Plaintiffs had standing to bring this claim, determining that the Final Rule injured State Plaintiffs by intruding upon their interests as quasi-sovereigns to control the domestic affairs within their states.6 A state may be entitled to “special solicitude” in our standing analysis if the state is vested by statute with a procedural right to file suit to protect an interest and the state has suffered an injury to its “quasi-sovereign interests.” Massachusetts v. EPA, 549 U.S. 497, 518–20 (2007) (holding that the Clean Air Act provided Massachusetts a procedural right to challenge the EPA‘s rulemaking, and Massachusetts suffered an injury in its capacity as a quasi-sovereign landowner due to rising sea levels associated with climate change). Applying Massachusetts, this court in Texas v. United States held that Texas had standing to challenge the Department of Homeland Security‘s implementation and expansion of the Deferred Action for Childhood Arrivals program (DACA) under the APA. See 809 F.3d 134, 152 (5th Cir. 2015). This court reasoned that Texas was entitled to special solicitude on the grounds that the APA created a procedural right to
challenge the DHS‘s actions, and DHS‘s actions affected states’ sovereign interest in creating and enforcing a legal code. See
Likewise, here, the APA provides State Plaintiffs a procedural right to challenge the Final Rule. See id.;
For similar reasons, the district court found, and we agree, that State Plaintiffs have standing to challenge provisions of ICWA and the Final Rule under the Tenth Amendment. The imposition of regulatory burdens on State Plaintiffs is sufficient to demonstrate an injury to their sovereign interest in creating and enforcing a legal code to govern child custody proceedings in state courts. See Texas, 809 F.3d at 153. Additionally, the causation and redressability requirements are satisfied here, as a favorable ruling from this court would likely redress State Plaintiffs’ injury by lifting the mandatory burdens ICWA and the Final Rule impose on states. See Lujan, 504 U.S. at 590.
D. Standing to Bring Nondelegation Claim
Finally, Plaintiffs contend that ICWA section 1915(c), which allows a tribe to establish a different order of section 1915(a)‘s placement preferences, is an impermissible delegation of legislative power that binds State Plaintiffs. Defendants argue that State Plaintiffs cannot demonstrate an injury, given the lack of evidence that a tribe‘s reordering of section 1915(a)‘s placement preferences has affected any children in Texas, Indiana, or Louisiana or that such impact is “certainly impending.” State Plaintiffs respond that tribes can change ICWA‘s placement preferences at any time and that at least one tribe, the Alabama-Coushatta Tribe of Texas, has already done so. We conclude that State Plaintiffs have demonstrated injury and causation with respect to this claim, as State Plaintiffs’ injury from the Alabama-Coushatta Tribe‘s decision to depart from ICWA section 1915‘s placement preferences is concrete and particularized and not speculative. See Lujan, 504 U.S. at 560. Moreover, a favorable ruling from this court would redress State Plaintiffs’ injury by making a state‘s compliance with a tribe‘s alternative order of preferences under ICWA section 1915(c) optional rather than mandatory. See id.
Accordingly, having found that State Plaintiffs have standing on the aforementioned claims, we proceed to the merits of these claims. We note at the outset that ICWA is entitled to a “presumption of constitutionality,” so long as Congress enacted the statute “based on one or more of its powers enumerated in the Constitution.” See United States v. Morrison, 529 U.S. 598, 607 (2000). “Due respect for the decisions of a coordinate branch of Government demands that we invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.” Id. (citing, among others, United States v. Harris, 106 U.S. 629, 635 (1883)).
II. Equal Protection
The Equal Protection Clause of the Fourteenth Amendment prohibits states from “deny[ing] to any person within its jurisdiction the equal protection of the laws.”
A. Level of Scrutiny
We begin by determining whether ICWA‘s definition of “Indian child” is a race-based or political classification and, consequently, which level of scrutiny applies. The district court concluded that ICWA‘s “Indian Child” definition was a race-based classification. We conclude that this was error. Congress has exercised plenary power “over the tribal relations of the Indians . . . from the beginning, and the power has always been deemed a political one, not subject to be controlled by the judicial department of the government.” Lone Wolf v. Hitchcock, 187 U.S. 553, 565 (1903). The Supreme Court‘s decisions “leave no doubt that federal legislation with respect to Indian tribes . . . is not based upon impermissible racial classifications.” United States v. Antelope, 430 U.S. 641, 645 (1977). “Literally every piece of legislation dealing with Indian tribes and reservations . . . single[s] out for special treatment a constituency of tribal Indians living on or near reservations.” Mancari, 417 U.S. at 552. “If these laws, derived from historical relationships and explicitly designed to help only Indians, were deemed invidious racial discrimination, an entire Title of the United States Code (25 U.S.C.) would be effectively erased and the solemn commitment of the Government toward the Indians would be jeopardized.” Id.
In Morton v. Mancari, the Supreme Court rejected a challenge to a law affording to qualified Indian applicants—those having one-fourth or more degree Indian blood with membership in a federally recognized tribe8—a hiring
preference over non-Indians within the BIA. Id. at 555. The Court recognized that central to the resolution of the issue was “the
FEDERAL INDIAN LAW § 3.02[3], at 138 (2005 ed.) (internal quotation marks omitted)). It “[i]s a prerequisite to the protection, services, and benefits of the Federal Government available to those that qualify.”
The district court construed Mancari narrowly and distinguished it for two primary reasons: First, the district court found that the law in Mancari provided special treatment “only to Indians living on or near reservations.” Second, the district court concluded that ICWA‘s membership eligibility standard for an Indian child does not rely on actual tribal membership as did the statute in Mancari. The district court reasoned that, whereas the law in Mancari “applied ‘only to members of ‘federally recognized’ tribes which operated to exclude many individuals who are racially to be classified as Indians,‘” ICWA‘s definition of “Indian child” extended protection to children who were eligible for membership in a federally recognized tribe and had a biological parent who was a member of a tribe. The district court, citing the tribal membership laws of several tribes, including the Navajo Nation, concluded that “[t]his means one is an Indian child if the child is related to a tribal ancestor by blood.”
We disagree with the district court‘s reasoning and conclude that Mancari controls here. As to the district court‘s first distinction, Mancari‘s holding does not rise or fall with the geographical location of the Indians receiving “special treatment.” See Mancari, 417 U.S. at 552. The Supreme Court has long recognized Congress‘s broad power to regulate Indians and Indian tribes on and off the reservation. See e.g., United States v. McGowan, 302 U.S. 535, 539 (1938) (“Congress possesses the broad power of legislating for the protection of the Indians wherever they may be within the territory of the United States.“); Perrin v. United States, 232 U.S. 478, 482 (1914) (acknowledging Congress‘s power to regulate
Second, the district court concluded that, unlike the statute in Mancari, ICWA‘s definition of Indian child extends to children who are merely eligible for tribal membership because of their ancestry. However, ICWA‘s definition of “Indian child” is not based solely on tribal ancestry or race. ICWA defines an “Indian child” as “any unmarried person who is under age eighteen and 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.”
Our conclusion that ICWA‘s definition of Indian child is a political classification is consistent with both the Supreme Court‘s holding in Mancari and this court‘s holding in Peyote Way Church of God, Inc. v. Thornburgh, 922 F.2d 1210, 1212 (5th Cir. 1991). In Mancari, the hiring preference extended to individuals who were one-fourth or more degree Indian blood and a member of a federally recognized tribe. See 417 U.S. at 554. Similarly, in Peyote Way, this court considered whether equal protection was violated by federal and state laws prohibiting the possession of peyote by all persons except members of the Native American Church of North America (NAC), who used peyote for religious purposes. See 922 F.2d at 1212. Applying Mancari‘s reasoning, this court upheld the preference on the basis that membership in NAC “is limited to Native American members of federally recognized tribes who have at least 25% Native American ancestry, and therefore represents a political classification.” Id. at 1216. ICWA‘s “Indian child” eligibility provision similarly turns, at least in part, on whether the child is eligible for membership in a federally recognized tribe. See California Valley Miwok Tribe v. United States, 515 F.3d 1262, 1263 (D.C. Cir. 2008) (federal recognition “is a formal political act” that “institutionaliz[es] the government-to-government relationship between the tribe and the federal government.“);
The district court concluded, and Plaintiffs now argue, that ICWA‘s definition “mirrors the impermissible racial classification
Rice is distinguishable from the present case for several reasons. Unlike Rice, which involved voter eligibility in a state-wide election for a state agency, there is no similar concern here that applying Mancari would permit “by racial classification, [the fencing] out [of] whole classes of [a state‘s] citizens from decisionmaking in critical state affairs.” See 528 U.S. at 518-22. Additionally, as discussed above, ICWA‘s definition of “Indian child,” unlike the challenged law in Rice, does not single out children “solely because of their ancestry or ethnic characteristics.” See id. at 515 (emphasis added). Further, unlike the law in Rice, ICWA is a federal law enacted by Congress for the protection of Indian children and tribes. See Rice, 528 U.S. at 518 (noting that to sustain Hawaii‘s restriction under Mancari, it would have to “accept some beginning premises not yet established in [its] case law,” such as that Congress “has determined that native Hawaiians have a status like that of Indians in organized tribes“); see also Kahawaiolaa v. Norton, 386 F.3d 1271, 1279 (9th Cir. 2004) (rejecting an equal protection challenge brought by Native Hawaiians, who were excluded from the U.S. Department of the Interior‘s regulatory tribal acknowledgement process, and concluding that the recognition of Indian tribes was political). Additionally, whereas the OHA elections in Rice were squarely state affairs, state court adoption proceedings involving Indian children are simultaneously affairs of states, tribes, and Congress. See
B. Rational Basis Review
Having so determined that rational basis review applies, we ask whether “the special treatment can be tied rationally to the fulfillment of Congress‘s unique
III. Tenth Amendment
The district court concluded that ICWA sections 1901-2311 and 1951-5212 violated the anticommandeering doctrine by requiring state courts and executive agencies to apply federal standards to state-created claims. The district court also considered whether ICWA preempts conflicting state law under the Supremacy Clause and concluded that preemption did not apply because the law “directly regulated states.” Defendants argue that the anticommandeering doctrine does not prevent Congress from requiring state courts to enforce substantive and procedural standards and precepts, and that ICWA sets minimum procedural standards that preempt conflicting state law. We examine the constitutionality of the challenged provisions of ICWA below and conclude that they preempt conflicting state law and do not violate the anticommandeering doctrine. .
A. Anticommandeering Doctrine
The Tenth Amendment provides that “[t]he powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
1. State Courts
Defendants argue that because the Supremacy Clause requires the enforcement of ICWA and the Final Rule by state courts, these provisions do not run afoul of the anticommandeering doctrine. We agree. The Supremacy Clause provides that “the Laws of the United States . . . shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
2. State Agencies
Plaintiffs next challenge several provisions of ICWA that they contend commandeer state executive agencies, including sections 1912(a) (imposing notice requirements on “the party seeking the foster care placement of, or termination of parental rights to, an Indian child“), 1912(d) (requiring that “any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall 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.“), 1915(c) (requiring “the agency or court effecting [a] placement” adhere to the order of placement preferences established by the tribe), and 1915(e) (requiring that “the State” in which the placement was made keep a record of each placement, evidencing the efforts to comply with the order of preference, to be made available upon request of the Secretary or the
In Printz, the Supreme Court affirmed its prior holding that “[t]he Federal Government may not compel the States to enact or administer a federal regulatory program,” and “Congress cannot circumvent that prohibition by conscripting the State‘s officers directly.” 521 U.S. at 925, 935 (quoting New York, 505 U.S. at 188). The Printz Court, rejecting as irrelevant the Government‘s argument that the federal law imposed a minimal burden on state executive officers, explained that it was not “evaluating whether the incidental application to the States of a federal law of general applicability excessively interfered with the functioning of state governments,” but rather a law whose “whole object . . . [was] to direct the functioning of the state executive.” Id. at 931-32. Expanding upon this distinction, the Court in Murphy discussed Reno v. Condon, 528 U.S. 141 (2000), and South Carolina v. Baker, 485 U.S. 505 (1988), and held that “[t]he anticommandeering doctrine does not apply when Congress evenhandedly regulates an activity in which both States and private actors engage.” 138 S. Ct. at 1478.
In Condon, the Court upheld a federal regulatory scheme that restricted the ability of states to disclose a driver‘s personal information without consent. 528 U.S. at 151. In determining that the anticommandeering doctrine did not apply, the Court distinguished the law from those invalidated in New York and Printz:
[This law] does not require the States in their sovereign capacity to regulate their own citizens. The [law] regulates the States as the owners of [Department of Motor Vehicle] data bases. It does not require the South Carolina Legislature to enact any laws or regulations, and it does not require state officials to assist in the enforcement of federal statutes regulating private individuals.
Id. In Baker, the Court rejected a Tenth Amendment challenge to a provision of a federal statute that eliminated the federal income tax exemption for interest earned on certain bonds issued by state and local governments unless the bonds were registered, treating the provision “as if it directly regulated States by prohibiting outright the issuance of [unregistered] bearer bonds.” 485 U.S. at 507-08, 511. The Court reasoned that the provision at issue merely “regulat[ed] a state activity” and did not “seek to control or influence the manner in which States regulate private parties.” Id. at 514. “That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect.” Id. at 514-15. “[S]ubstantial effort[s]” to comply with federal regulations are “an inevitable consequence of regulating a state activity.” Id. at 514.
In light of these cases, we conclude that the provisions of ICWA that Plaintiffs challenge do not commandeer state agencies. Sections 1912(a) and (d) impose notice and “active efforts” requirements on the “party” seeking the foster care placement of, or termination of parental rights to, an Indian child. Because both state agencies and private parties who engage in state
Defendants argue that, to the extent there is a conflict between ICWA and applicable state laws in child custody proceedings, ICWA preempts state law. The Supremacy Clause provides that federal law is the “supreme Law of the Land . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
Congress enacted ICWA 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 which will reflect the unique values of Indian culture.”
ICWA specifies that Congress‘s authority to regulate the adoption of Indian children arises under the Indian Commerce Clause as well as “other constitutional authority.”
Moreover, ICWA clearly regulates private individuals. See Murphy, 138 S. Ct. at 1479-80. In enacting the statute, Congress declared that it was the dual policy of the United States to protect the best interests of Indian children and promote the stability and security of Indian families and tribes.
IV. Nondelegation Doctrine
Article I of the Constitution vests “[a]ll legislative Powers” in Congress.
Defendants argue that the district court‘s analysis of the constitutionality of these provisions ignores the inherent sovereign authority of tribes. They contend that section 1915 merely recognizes and incorporates a tribe‘s exercise of its inherent sovereignty over Indian children and therefore does not—indeed cannot—delegate this existing authority to Indian tribes.
In Mazurie, a federal law allowed the tribal council of the Wind River Tribes, with the approval of the Secretary of the Interior, to adopt ordinances to control the introduction of alcoholic beverages by non-Indians on privately owned land within the boundaries of the reservation. See 419 U.S. at 547, 557. The Supreme Court held that the law did not violate the nondelegation doctrine, focusing on the Tribes’ inherent power to regulate their internal and social relations by controlling the distribution and use of intoxicants within the reservation‘s bounds. Id. Mazurie is instructive here. ICWA section 1915(c) provides that a tribe may pass, by its own legislative authority, a resolution reordering the three placement preferences set forth by Congress in section 1915(a). Pursuant to this section, a tribe may assess whether the most appropriate placement for an Indian child is with members of the child‘s extended family, the child‘s tribe, or other Indian families, and thereby exercise its “inherent power to determine tribal membership [and] regulate domestic relations among members” and Indian children eligible for membership. See Montana, 450 U.S. at 564.
State Plaintiffs contend that Mazurie is distinguishable because it involves the exercise of tribal authority on tribal lands, whereas ICWA permits the extension of tribal authority over states and persons on non-tribal lands. We find this argument unpersuasive. It is well established that tribes have “sovereignty over both their members and their territory.” See Mazurie, 419 U.S. at 557 (emphasis added). For a tribe to exercise its authority to determine tribal membership and to regulate domestic relations among its members, it must necessarily be able to regulate all Indian children, irrespective of their location.19 See Montana, 450 U.S. at 564 (tribes retain inherent power to regulate domestic relations and determine tribal membership); Merrion, 455 U.S. at 170 (tribes retain power to govern tribal citizenship and child custody). Section 1915(c), by recognizing the inherent powers of tribal sovereigns to determine by resolution the order of placement preferences applicable to an Indian child, is thus a “deliberate continuing adoption by Congress” of tribal law as binding federal law. See Sharpnack, 355 U.S. at 293-94; see also
V. The Final Rule
The district court held that, to the extent sections 23.106-22, 23.124-32, and 23.140-41 of the Final Rule were binding on State Plaintiffs, they violated the APA for three reasons: The provisions (1) purported to implement an unconstitutional statute; (2) exceeded the scope of the Interior Department‘s statutory regulatory authority to enforce ICWA with binding regulations; and (3) reflected an impermissible construction of ICWA section 1915. We examine each of these bases in turn.
A. The Constitutionality of ICWA
Because we concluded that the challenged provisions of ICWA are constitutional, for reasons discussed earlier in this opinion, the district court‘s first conclusion that the Final Rule was invalid because it implemented an unconstitutional statue was erroneous. Thus, the statutory basis of the Final Rule is constitutionally valid.
B. The Scope of the BIA‘s Authority
Congress authorized the Secretary of the Interior to promulgate rules and regulations that may be necessary to carry out the provisions of ICWA. See
In reviewing “an agency‘s construction of the statute which it administers,” we are “confronted with two questions.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984). First, we must examine whether the statute is ambiguous. Id. at 842. “If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Id. But “if the statute is silent or ambiguous with respect to the specific issue, the question for the court is whether the agency‘s answer is based on a permissible construction of the statute.” Id. at 842-43. We must uphold an agency‘s reasonable interpretation of an ambiguous statute. Id. at 844.
Under Chevron step one, the question is whether Congress unambiguously intended to grant the Department authority to promulgate binding rules and regulations. ICWA provides that “the Secretary shall promulgate such rules and regulations as may be necessary to carry out the provisions of this chapter.”
Moving to the second Chevron step, we must determine whether the BIA‘s current interpretation of its authority to issue binding regulations pursuant to section 1952 is reasonable. See 467 U.S. at 843-44. Defendants argue that section 1952‘s language is substantively identical to other statutes conferring broad delegations of rulemaking authority. Indeed, the Supreme Court has held that “[w]here the empowering provision of a statute states simply that the agency may make . . . such rules and regulations as may be necessary to carry out the provisions of this Act . . . the validity of a regulation promulgated thereunder will be sustained so long as it is reasonably related to the purposes of the enabling legislation.” Mourning v. Family Publications Serv., Inc., 411 U.S. 356, 369 (1973) (internal quotation marks omitted); see also City of Arlington, Tex. v. F.C.C., 569 U.S. 290, 306 (2013) (noting a lack of
“case[s] in which a general conferral of rulemaking or adjudicative authority has been held insufficient to support Chevron deference for an exercise of that authority within the agency’s substantive field”). Here,
Plaintiffs contend that the BIA reversed its position on the scope of its authority to issue binding regulations after thirty-seven years and without explanation and its interpretation was therefore not entitled to deference. We disagree. “The mere fact
The BIA directly addressed its reasons for departing from its earlier interpretation that it had no authority to promulgate binding regulations, explaining that, under Supreme Court precedent, the text of
In Holyfield, the Supreme Court considered the meaning of the term “domicile,” which
In addition to assessing whether an agency’s interpretation of a statute is reasonable under Chevron, the
C. The BIA’s Construction of ICWA Section 1915
Defendants contend that the Final Rule’s clear-and-convincing standard is merely suggestive and not binding. They further aver that the Final Rule’s clarification of the meaning of “good cause” and imposition of a clear-and-convincing-evidence standard are entitled to Chevron deference. Plaintiffs respond that state courts have interpreted the clear-and-convincing standard as more than just suggestive in practice, and the Final Rule’s fixed definition of “good cause” is contrary to
Though provisions of the Final Rule are generally binding on states, the BIA indicated that it did not intend for
The BIA’s interpretation of
Under Chevron step two, the BIA’s current interpretation of the applicable evidentiary standard is reasonable. See Chevron, 467 U.S. at 844. The BIA’s suggestion that the clear-and-convincing standard should apply was derived from the best practices of state courts. 81 Fed. Reg. at, 38,843. The Final Rule explains that, since
***
For these reasons, we conclude that Plaintiffs had standing to bring all claims and that
PRISCILLA R. OWEN, Circuit Judge, concurring in part and dissenting in part:
I agree with much of the majority opinion. But I conclude that certain provisions
The offending statutes include part of
The Supreme Court has made clear that Congress cannot commandeer a State or its officers or agencies: “[T]he Federal Government may not compel the States to implement, by legislation or executive action, federal regulatory programs.”3 “The anticommandeering doctrine may sound arcane, but it is simply the expression of a fundamental structural decision incorporated into the Constitution, i.e., the decision to withhold from Congress the power to issue orders directly to the States.”4 “The legislative powers granted to Congress are sizable, but they are not unlimited. The Constitution confers on Congress not plenary legislative power but only certain enumerated powers. Therefore, all other legislative power is reserved for the States, as the Tenth Amendment confirms.”5 The Supreme Court has recognized that “conspicuously absent from the list of powers given to Congress is the power to issue direct orders to the governments of the States. The anticommandeering doctrine simply represents the recognition of this limit on congressional authority.”6
The defendants in the present case contend that the Indian Commerce Clause7
They are mistaken. “Where a federal interest is sufficiently strong to cause Congress to legislate, it must do so directly; it may not conscript state governments as its agents.”8
The panel’s majority opinion concludes that the ICWA does “not commandeer state agencies”9 because it “evenhandedly regulate[s] an activity in which both States and private actors engage.”10 This is incorrect with respect to the part of
Though
Certain of the ICWA’s provisions are a transparent attempt to foist onto the States the obligation to execute a federal program and to bear the attendant costs. Though the requirements in
It is an essential attribute of the States’ retained sovereignty that they remain independent and autonomous within their proper sphere of authority. See Texas v. White, 7 Wall. [700,] 725 [(1868)]. It is no more compatible with this independence and autonomy that their officers be “dragooned” (as Judge Fernandez put it in his dissent below, [Mack v. United States], 66 F.3d[ 1025,] 1035 [(9th Cir. 1995)]) into administering federal law, than it would be compatible with the independence and autonomy of the United States that its officers be impressed into service for the execution of state laws.14
Similarly,
The requirements in
The records-keeping requirements in
The Supreme Court expressly left open in Printz whether federal laws “which require only the provision of information to the Federal Government” are an unconstitutional
The panel’s majority opinion concludes that the requirements of
That these statutes and regulations “serve[] very important purposes” and that they are “most efficiently administered” at the state level is of no moment in a commandeering analysis.40 As JUSTICE O-CONNOR, writing for the Court in New York v. United States, so eloquently expressed, “the Constitution protects us from our own best intentions: It divides power among sovereigns and among branches of government precisely so that we may resist the temptation to concentrate power in one location as an expedient solution to the crisis of the day.”41
Notes
(a) The State must maintain a record of every voluntary or involuntary foster-care, preadoptive, and adoptive placement of an Indian child and make the record available within 14 days of a request by an Indian child’s Tribe or the Secretary.
(b) The record must contain, at a minimum, the petition or complaint, all substantive orders entered in the child-custody proceeding, the complete record of the placement determination (including, but not limited to, the findings in the court record and the social worker’s statement), and, if the placement departs from the placement preferences, detailed documentation of the efforts to comply with the placement preferences.
(c) A State agency or agencies may be designated to be the repository for this information. The State court or agency should notify the BIA whether these records are maintained within the court system or by a State agency.
Holyfield, 490 U.S. at 34. This testimony undoubtedly informed Congress‘s finding that children are the most vital resource “to the continued existence and integrity of Indian tribes.”Culturally, the chances of Indian survival are significantly reduced if our children, the only real means for the transmission of the tribal heritage, are to be raised in non-Indian homes and denied exposure to the ways of their People. Furthermore, these practices seriously undercut the tribes’ ability to continue as self-governing communities. Probably in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.