Bent, But Not Broken ICWA Stands: A Summary of Brackeen v. Haaland - LawLytics
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INDIAN LAW SPECIAL FOCUS
Bent,
But Not
Broken
ICWA Stands:
A Summary of
Brackeen v. Haaland
BY GLENNAS’BA AUGBORNE ARENTS & APRIL E. OLSON
GLENNAS’BA AUGBORNE ARENTS is a citizen of the Navajo Nation (Coyote Pass Clan). She is an
attorney at Rothstein Donatelli LLP, with offices in Tempe, Ariz., and Albuquerque and Santa Fe, N.M. She
represents tribes and tribal entities in health care regulation compliance and program development, civil
litigation, special investigations, Indian child welfare, and employment law matters. Glenna also serves on
the Executive Board of the State Bar of Arizona Indian Law Section. Glenna received her J.D. and Indian
Legal Program Certificate from the Sandra Day O’Connor College of Law at Arizona State University.
APRIL OLSON has served tribal governments for almost 20 years, first as a social worker and now as
an attorney. She graduated from the Indian Legal Program at Arizona State University with a Certificate in
Indian Law and is now a partner in the Tempe office of Rothstein Donatelli LLP. April practices exclusively
in the field of federal Indian law and tribal law, and her experience includes a wide variety of practice
areas. A substantial part of her practice involves Indian Child Welfare Act (ICWA) matters.
62 A R I Z O N A AT T O R N E Y J U LY / A U G U S T 2 0 2 1 w w w. a z b a r. o r g / A Z A t t o r n e y
“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.”
—Judge James Dennis, Brackeen v. Haaland1
On April 6, 2021, after waiting 14 months
to learn whether the Indian Child Welfare Act
(ICWA) would survive, the United States Circuit
Court of Appeals for the Fifth Circuit, sitting en
banc, issued a 325-page decision in Brackeen v.
Haaland.2 Seven of the 16 judges wrote separately
on claims that over two dozen federal ICWA pro-
visions and implementing regulations are uncon-
stitutional. Even for those familiar with ICWA, the
decision is extremely complex.
What does the decision mean for Arizona at-
torneys who practice under ICWA? Here are the
takeaways.
First, the Fifth Circuit upheld ICWA’s constitu-
tionality, affirming decades of U.S. Supreme Court
precedent on Congress’s authority to pass federal
laws that pertain to Indians. Second, the decision
is not binding on Arizona state courts and has no
impact on Arizona state laws that support ICWA.
Third, the starkly divided court did not reach a ma-
jority on several district court holdings and thus,
those rulings are not binding precedent in the Fifth
Circuit. Finally, even the majority rulings of the
court have limited precedential value outside the
Northern District of Texas or state courts.
This article provides a brief background on
ICWA and summarizes the key holdings of the de-
cision.
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INDIAN LAW SPECIAL FOCUS
The “Gold Standard” In August 2019, a ICWA was passed in response to a
ICWA is a federal law that sets minimum panel of the Fifth Cir- long history of federal and state agencies
standards for state court child custody pro- cuit ruled in favor of
ceedings involving Indian children.3 ICWA the defendants on the removing Indian children from their
was passed in response to a long history of merits.7 The panel lat- homes, often for no reason, and placing
federal and state agencies removing Indian er vacated its decision,
them in non-Indian foster or adoptive
children from their homes, often for no rea- and the Fifth Circuit
son, and placing them in non-Indian foster granted an en banc homes or boarding schools in a deliberate
or adoptive homes or boarding schools in rehearing. In January campaign to assimilate Indians into
a deliberate campaign to assimilate Indians 2020, the Fifth Circuit
into Western culture.4 ICWA rectifies these heard oral argument. Western culture.
policies and attempts to prevent future On April 6, 2021, the
practices by setting minimum standards that sharply divided Fifth
govern state child custody proceedings and Circuit published the decision affirming the lenges to ICWA provisions, and (3) challenge
adoptions involving Indian children. district court’s decision in part and reversing ICWA regulations12 under the Administrative
ICWA requires state courts to apply the in part. Procedures Act. The court was equally divided
“gold standard” in child welfare procedures. as to whether plaintiffs had standing to chal-
ICWA only allows the removal of a child The Decision lenge 25 U.S.C. § 1913 and § 1914 on equal
when there is no other safe alternative, it There are three important facts to know protection grounds. Therefore, while the dis-
lessens the trauma of removal by promot- about the decision. trict court’s ruling that the plaintiffs had stand-
ing placement with family and community, First, none of the separate judicial opin- ing to sue on those issues was affirmed, that
and it requires states to employ “active ef- ions resulted in a majority opinion on all of affirmance is without precedential value.
forts”—including providing families with the district court’s rulings. Second, where The court also held that the plaintiffs had
intensive services to prevent the breakup of an equally divided circuit court does not standing to challenge § 1915(a)-(b)13 under
the family—while focusing on the child’s reach a majority opinion on a district court’s the Equal Protection Clause. However, sev-
cultural connections. ICWA remains the law ruling, the circuit court will affirm the dis- eral judges argued that the plaintiffs failed to
of the land after the decision and remains a trict court’s ruling, but the affirmance is prove redressability for standing to challenge
model for good child welfare practices. not precedent.8 The Supreme Court has ex- § 1915(a)-(b). Dissenting judges argued that
plained that it is an appellant that asks the state plaintiffs lacked standing because they
Background court to reverse the lower court’s ruling are not “persons” eligible to bring due pro-
Since at least 2016, the Goldwater Institute, and if the judges are divided, the ruling can- cess claims and the individual plaintiffs lacked
the National Council for Adoption, and not be reversed.9 But that is not to say that standing because even if the court found
other groups have filed at least 10 federal the appellate judges agree with the lower ICWA’s placement preferences unconstitution-
lawsuits attempting to dismantle ICWA. court’s ruling. Rather, affirmance is mere- al, its federal court ruling would not bind state
Lawsuits were filed in Minnesota, Oklaho- ly “the most convenient” way of resolving courts. Judge Gregg Costa reasoned redress-
ma, Arizona and other states. In each case the issue so that judgment can be enforced. ability cannot be based on the “possibility”
the anti-ICWA plaintiffs failed to prevail on And affirmance by equal division does not another court will consider the opinion per-
claims that the ICWA is unconstitutional.5 create precedent.10 In such cases, “the usual suasive––to do so would be to allow “standing
The anti-ICWA parties, however, found a practice is not to express any opinion, for to be satisfied by advisory opinions—the very
favorable forum in the Northern District of such an expression is unnecessary where thing that the doctrine was designed to pre-
Texas. nothing is settled.”11 However, that practice vent.”14
In 2017 several non-Indian individuals was not followed here. Finally, Brackeen v.
seeking to adopt Indian children and three Haaland is distinguishable from previous Congressional Authority and
conservative-leaning states (Texas, Indiana attacks on ICWA because plaintiffs argued Equal Protection15
and Louisiana) filed a complaint in the U.S. that numerous ICWA provisions unconsti- The Fifth Circuit held that Congress had the
District Court for the Northern District of tutionally “commandeered” the states. The authority to enact ICWA under Article I of
Texas alleging ICWA is unconstitutional be- following is a summary of the main issues in the U.S. Constitution. Judge James Dennis,
cause, inter alia, it is race-based. The plain- the decision. writing for the majority on this issue, reasoned
tiffs brought the complaint against federal Congress’s authority “derives from Congress’s
agencies and officials; four tribes intervened Standing enduring obligations to Indian tribes and its
(“defendants”).6 The district court ruled in The Fifth Circuit unanimously held that plenary authority to discharge this duty.”16
favor of the plaintiffs on several grounds, in- the plaintiffs had standing to: (1) challenge Judge Costa, in a concurring opinion on this
cluding that ICWA’s definition of “Indian whether Congress had authority to enact issue, explained that for two centuries courts
child” was unconstitutional because it did ICWA under Article I of the U.S. Con- have recognized the federal government’s
not require actual tribal membership. De- stitution, (2) press anticommandeering, power over Indian affairs, especially when used
fendants appealed to the Fifth Circuit. non-delegation and Equal Protection chal- to “destroy tribal life,” and now, ironically,
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plaintiffs argue that the court should ignore Non-Delegation not violate the APA when it changed its 1979
that precedent when exercise of that federal Article I of the Constitution vests all leg- position that the regulations did not bind
power would support tribal life.17 islative powers in Congress. Under the states, because the agency provided a reason-
The definition of “Indian Child” also non-delegation doctrine, Congress cannot able explanation for its new stance that the
survived challenge. The Fifth Circuit held impermissibly delegate legislative power. regulations were binding on states.19 There-
that “ICWA’s ‘Indian Child’ designation The district court ruled that § 1915(c), fore, it reversed the district court’s rulings on
and the portions of the [ICWA Regula- which permits an Indian child’s tribe to es- this issue.
tions] that implement it do not offend tablish a different order of placement prefer- However, the Fifth Circuit agreed with
Equal Protection principles because they ences, violated the non-delegation doctrine the district court that the regulation estab-
are based on a political classification and because it grants tribes the power to change lishing the burden to prove “good cause” to
are rationally related to the fulfillment of legislative preferences. The Fifth Circuit re- deviate from ICWA’s placement preferences
Congress’s unique obligation toward In- versed, holding that 25 U.S.C. § 1915(c) by “clear and convincing” evidence is in-
dians.”18 Thus, the court reversed the dis- does not contravene the nondelegation doc- valid under the APA.20 The court reasoned
trict court rulings on these issues. trine because the Supreme Court has long that the standard was invalid under step one
Conversely, the Fifth Circuit was equal- recognized that Congress may incorporate of Chevron21 because it created a heightened
ly divided on whether plaintiffs should laws of another sovereign into federal law standard of proof in violation of 25 U.S.C.
prevail on their Equal Protection challenge and § 1915(c) incorporates laws of Indian § 1915 (although § 1915 does not expressly
to the adoptive placement preferences for tribes. provide a standard). Although this part of the
“other Indian families” under 25 U.S.C. § decision is binding on federal courts, it has
1915(a)(3) and foster care placement for Administrative Procedures Act a limited effect in state courts because many
licensed “Indian foster home(s)” under § (APA) states, including Arizona, have adopted the
1915(b)(iii). Therefore, again, while the Plaintiffs argued that the Bureau of Indian clear and convincing standard through case
court affirmed the district court ruling that Affairs (BIA) exceeded the scope if its au- law, statutes and rules.22
§§ 1915(b)(3) and 1915(b)(iii) violate the thority to implement binding ICWA regu-
Equal Protection Clause, those rulings do lations in violation of the APA. The Fifth Preemption
not create precedent. Circuit disagreed, holding that the BIA did The federal preemption doctrine is a funda-
66 A R I Z O N A AT T O R N E Y J U LY / A U G U S T 2 0 2 1 w w w. a z b a r. o r g / A Z A t t o r n e yThis decision raises many
mental principle that derives from questions, but it does not change and § 1915(e) requires “the State”
the Supremacy Clause of the U.S. to maintain a record in any Indian
Constitution.23 Under the doc- the landscape of ICWA practice in child placement proceeding.26
trine, “when ‘Congress enacts a Arizona. The decision should have Judge Dennis pointed out that
law that imposes restrictions or only three states challenged ICWA’s
no impact on the application of
confers rights on private actors’ constitutionality. But only one per-
and a ‘state law confers rights or ICWA in Arizona or Arizona’s state cent of federally recognized tribes
imposes restrictions that conflict laws related to ICWA. and only four percent of the Amer-
with the federal law,’” the feder- ican Indian/Alaska Native popu-
al law preempts the state law.24 lation are located in those three
But preemption can be invalid states. Conversely, 26 states and
if the federal government “commandeers” to issue orders directly to states. The district the District of Columbia filed amicus briefs
the states to act. The district court ruled court concluded that numerous ICWA pro- asking the Fifth Circuit to uphold ICWA.
that several ICWA provisions (including the visions “commandeered” state agencies and Interestingly, 94 percent of federally recog-
congressional findings) commandeered the courts in violation of the Tenth Amendment nized tribes and 69 percent of the American
states and was therefore invalid notwith- to the U.S. Constitution. The Fifth Circuit Indian/Alaska Native population are locat-
standing the preemption doctrine. The Fifth reversed all but three of the district court’s ed in those 26 states that support ICWA.27
Circuit reversed the district court’s ruling as rulings on commandeering. Judge Kyle Nonetheless, the court upheld three district
to several ICWA provisions on preemption Duncan, writing for the majority, held that court rulings on commandeering.
grounds and upheld multiple ICWA provi- the following provisions unconstitutionally
sions.25 commandeered the states: (i) 25 U.S.C. § Conclusion
1912(d), (ii) §§ 1912(e) and (f), and (iii) § The decision raises many questions, but it
Anticommandeering 1915(e), reasoning that § 1912(d) requires does not change the landscape of ICWA
The state plaintiffs challenged ICWA under states to engage in active efforts as “parties,” practice in Arizona. The decision should
the anticommandeering doctrine. Under that §§ 1912(e) and (f) require state agencies to have no impact on the application of ICWA
doctrine, Congress does not have the power present qualified expert witness testimony, in Arizona or Arizona’s state laws related to
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ICWA because Arizona is not in the Fifth on several issues, it did not create binding provisions be unaffected.28 Finally, and per-
Circuit and, as a general principle, feder- precedent on those issues. And, although haps most important, the Fifth Circuit up-
al district court decisions are not binding the court found certain ICWA provisions held the constitutionality of ICWA.
on state courts. Furthermore, as the Fifth unconstitutional, ICWA contains a sever- The deadline to file a petition for writ of
Circuit failed to reach a majority opinion ability clause that requires the remaining certiorari is in September 2021.
endnotes Court Equality v. Piper, Voluntary Dismissal, 16. Brackeen III, 994 F.3d at 361 (Dennis, J.).
1. Brackeen v. Haaland, 994 F.3d 249, 445 No. 17-cv-4597 (D. Minn. Sept. 6, 2019); 17. Id. at 452 (Costa, J.).
(5th Cir. 2021) (“Brackeen III”) (Costa, J., Whitney v. Bernhardt, Notice of Dismissal, 18. Id. at 361 (Dennis, J.).
concurring and dissenting). No. 19-cv-299 (D. Me. Aug. 23, 2019). 19. Id.
2. Brackeen III, 994 F.3d at 249 (en banc). 6. Navajo Nation later intervened on appeal. 20. Id. at 429 (Duncan, J., majority opinion).
3. 25 U.S.C. §§ 1901–1963. 7. See Brackeen v. Bernhardt, 937 F.3d 406, 21. Chevron U.S.A. Inc. v. Natural Res. Def.
4. See Felix S. Cohen et al., Cohen’s Hand- 414, 426 (5th Cir. 2019) (“Brackeen II”). Council, 467 U.S. 837 (1984).
book of Federal Indian Law § 1.04, at 8. Brackeen III, 994 F.3d at 267 (Dennis, 22. Gila River Indian Cmty v. Dep’t of Child
81–82 (2005 ed.). J.); see Neil v. Biggers, 409 U.S. 188, 192 Safety, 238 Ariz. 531, 532 (App. 2015);
5. C.E.S. v. Nelson, Stipulation of Voluntary (1972). Ariz. Rev. Stat. § 8-815; Ariz. R. Juv. P. 8.
Dismissal, No. 15-cv-982 (W.D. Mich. Jan. 9. Neil, 409 U.S. at 192 (citation omitted). 23. U.S. Const. art. VI, cl. 2; see Brackeen III,
27, 2016); National Council of Adoption v. 10. Id.; Eaton v. Price, 364 U.S. 263, 264 994 F.3d at 298 (Dennis, J.).
Jewell, 2017 WL 944066 (4th Cir. 2017); (1960). 24. See Brackeen III, 994 F.3d at 298 (Dennis,
Doe v. Hembree, Order, No. 15-cv-471 11. Eaton, 364 U.S. at 264. J.) (citation omitted).
(N.D. Okla. Mar. 3, 2017); Doe v. Piper, 12. See 25 C.F.R. Part 23. 25. Specifically 25 U.S.C. § 1911(c), § 1912(b),
2017 WL 3381820 (D. Minn. 2017); 13. Establishing an order of preference in foster § 1912(c), §§ 1912(e) and (f), §§ 1913(a)-
Carter v. Tahsuda, 743 Fed. App’x 823 and adoptive placements of an Indian child. (d), § 1914, § 1915(c), § 1916(a), and §
(9th Cir. 2018); Watso v. Jacobson, 929 F.3d 14. See Brackeen III, 994 F.3d at 447 (Costa, 1917. See Brackeen III, 994 F.3d at 268–69
1024 (8th Cir. 2019), cert denied, 140 S. J.). (per curium).
Ct. 1265 (2020); Fisher v. Cook, Order 15. See S.S. v. Stephanie H., 388 P.3d 569, 576 26. Id. at 404–09 (Duncan, J.).
Dismissing Case, No. 19-cv-2034 (W.D. (Ariz. Ct. App. 2017), cert. denied, 138 S. 27. Id. at 270 (Dennis, J.).
Ark. May 28, 2019); Americans for Tribal Ct. 380 (2017). 28. See 25 U.S.C. § 1963.
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