Fifth Circuit to Review Brackeen Decision En Banc

Indian Nations Law Update - November 2019

NATIONAL LAW REVIEW

Thursday, November 21, 2019

The Indian Child Welfare Act of 1978 (ICWA) is a federal law that requires state courts to give tribes notice of child placement proceedings involving Indian children and, under certain circumstances, to transfer jurisdiction to tribal courts and to give placement preference to Indian families. Hostility to the law has engendered strategic lawsuits seeking to strike down both the ICWA statute itself and the Final Rule implementing ICWA, on multiple grounds. A three-judge panel of the Fifth Circuit Court of Appeals had rejected all of the anti-ICWA arguments in a unanimous decision Aug. 9, 2019, Brackeen v. Bernhardt, 937 F.3d 406 (5th Cir. 2019), holding that

1. the special rules that ICWA applies to Indian children are not race-based distinctions subject to Fourteenth Amendment strict scrutiny but, rather, a political classification based on the unique relationship between the United States and tribes;
   
2. the special treatment of Indian children under ICWA “is rationally tied to Congress’s fulfillment of its unique obligation toward Indian nations and its stated purpose of “protect[ing] the best interests of Indian children and ... promot[ing] the stability and security of Indian tribes;”
   
3. the requirements that ICWA places on state courts are consistent with the Supremacy Clause and do not implicate the anti-commandeering mandate of the Tenth Amendment;
   
4. the requirements that ICWA places on state agencies do not violate the anti-commandeering mandate because they “do not require states to enact any laws or regulations, or to assist in the enforcement of federal statutes regulating private individuals;
   
5. ICWA, as an exercise of Congress’ plenary power over Indian affairs under the Commerce Clause, preempts inconsistent state laws;
   
6. provisions of ICWA permitting tribes to adopt placement preferences did not run afoul of the non-delegation doctrine since “[t]he Supreme Court has long recognized that Congress may incorporate the laws of another sovereign into federal law without violating the nondelegation doctrine” and the preferences constitute a “‘deliberate continuing adoption by Congress’ of tribal law as binding federal law;”
   
7. the Final Rule did not violate the APA because, in promulgating it, “BIA relied on its own expertise in Indian affairs, its experience in administering ICWA and other Indian child-welfare programs, state interpretations and best practices, public hearings, and tribal consultations. … and … BIA’s current interpretation is not ‘arbitrary, capricious, [or] an abuse of discretion’ because it was not sudden and unexplained;” and
   
8. the Final Rule’s recommendation that a deviation from prescribed placement preferences be supported by “clear and convincing evidence” was entitled to Chevron deference and did not contradict Congressional intent.
   

On Nov. 7, however, all of the Fifth Circuit’s judges vacated the Aug. 9, decision and agreed to rehear the case en banc (i.e. with all sixteen active status judges participating). The full Court had taken the extraordinary step of deciding to rehear the case on its own motion before deciding instead to grant the plaintiffs’ motion for rehearing. Oral arguments have been scheduled for the week of Jan. 20, 2020. 
While a judge will not normally vote to rehear a case that he or she believes the panel has correctly decided, predictions are hazardous because of the wide range of issues that may have motivated different judges to vote in favor of rehearing. There is no doubt, however, that the forty-one-year-old ICWA is in jeopardy. 

Please use this blog search bar and look at Goldwater for more information about this attack on ICWA.