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He Fifth Circuit Court of Appeals Published Its Decision In Case: 18-11479 Document: 00515071068 Page: 1 Date Filed: 08/09/2019 IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED August 9, 2019 No. 18-11479 Lyle W. Cayce Clerk 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 Appeals from the United States District Court for the Northern District of Texas Case: 18-11479 Document: 00515071068 Page: 2 Date Filed: 08/09/2019 No. 18-11479 Before WIENER, DENNIS, and OWEN, Circuit Judges.1 JAMES L. DENNIS, Circuit Judge: 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 nondelegation doctrine, and the Administrative Procedure Act. Defendants appealed. Although we AFFIRM the district court’s ruling that Plaintiffs had standing, we REVERSE the district court’s grant of summary judgment to Plaintiffs and RENDER judgment in favor of Defendants. BACKGROUND I. The Indian Child Welfare Act (ICWA) Congress enacted the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C. §§ 1901 et seq., to address rising concerns over “abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.” Miss. Band Choctaw Indians v. Holyfield, 490 1 Judge Owen will file a partial dissenting opinion shortly. 2 Case: 18-11479 Document: 00515071068 Page: 3 Date Filed: 08/09/2019 No. 18-11479 U.S. 30, 32 (1989). Recognizing that a “special relationship” exists between the United States and Indian tribes, Congress made the following findings: Congress has plenary power over Indian affairs. 25 U.S.C. § 1901(1) (citing U.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 of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.” Id. at § 1902. 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 3 Case: 18-11479 Document: 00515071068 Page: 4 Date Filed: 08/09/2019 No. 18-11479 in an Indian tribe and is the biological child of a member of an Indian tribe.” Id. at § 1903(4). In proceedings for the foster care placement or termination of parental rights, ICWA provides “the Indian custodian of the child and the Indian child’s tribe [] a right to intervene at any point in the proceeding.” Id. at § 1911(c). Where such proceedings are involuntary, ICWA requires that the parent, the Indian custodian, the child’s tribe, or the Secretary of the United States Department of the Interior (Secretary or Secretary of the Interior) be notified of pending proceedings and of their right to intervene. Id. at § 1912. In voluntary proceedings for the termination of parental rights or adoptive placement of an Indian child, the parent can withdraw consent for any reason prior to entry of a final decree of adoption or termination, and the child must be returned to the parent. Id. at § 1913(c). If consent was obtained through fraud or duress, a parent may petition to withdraw consent within two years after the final decree of adoption and, upon a showing of fraud or duress, the court must vacate the decree and return the child to the parent. Id. at § 1913(d). An Indian child, a parent or Indian custodian from whose custody the child was removed, or the child’s tribe may file a petition in any court of competent jurisdiction to invalidate an action in state court for foster care placement or termination of parental rights if the action violated any provision of ICWA §§ 1911–13. Id. at § 1914. 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.” Id. at § 1915(a). Similar requirements are set for foster care or preadoptive placements. Id. at § 1915(b). If a tribe establishes by resolution a different order of preferences, 4 Case: 18-11479 Document: 00515071068 Page: 5 Date Filed: 08/09/2019 No. 18-11479 the state court or agency effecting the placement “shall follow [the tribe’s] order so long as the placement is the least restrictive setting appropriate to the particular needs of the child.” Id. at § 1915(c). 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. Id. at § 1915(e). A state court entering a final decree in an adoptive placement “shall provide the Secretary with a copy of the decree or order” and information as necessary regarding “(1) the name and tribal affiliation of the child; (2) the names and addresses of the biological parents; (3) the names and addresses of the adoptive parents; and (4) the identity of any agency having files or information relating to such adoptive placement.” Id. at § 1951(a). ICWA’s severability clause provides that “[i]f any provision of this chapter or the applicability thereof is held invalid, the remaining provisions of this chapter shall not be affected thereby.” Id. at § 1963. II. The Final Rule ICWA provides that “the Secretary [of the Interior] shall promulgate such rules and regulations as may be necessary to carry out [its] provisions.” 25 U.S.C. § 1952. In 1979, the Bureau of Indian Affairs (BIA) promulgated guidelines (the “1979 Guidelines”) intended to assist state courts in implementing ICWA but without “binding legislative effect.” Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67,584 (Nov. 26, 1979). The 1979 Guidelines left the “primary responsibility” of interpreting certain language in ICWA “with the [state] courts that decide Indian child custody cases.” Id. However, in June 2016, the BIA promulgated the Final Rule to “clarify the minimum Federal standards governing implementation of [ICWA]” and to ensure that it “is applied in all States consistent with the Act’s express language, Congress’s intent in enacting the statute, and to promote 5 Case: 18-11479 Document: 00515071068 Page: 6 Date Filed: 08/09/2019 No. 18-11479 the stability and security of Indian tribes and families.” 25 C.F.R. § 23.101; Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778, 38,868 (June 14, 2016). The Final Rule explained that while the BIA “initially hoped that binding regulations would not be necessary to carry out [ICWA], a third of a century of experience has confirmed the need for more uniformity in the interpretation and application of this important Federal law.” 81 Fed. Reg. at 38,782. The Final Rule provides that states have the responsibility of determining whether a child is an “Indian child” subject to ICWA’s requirements.
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