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Brackeen v. Bernhardt - 937 F.3d 406 (5th Cir. 2019)


The Indian Child Welfare Act 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 United States Constitution. Due respect for the decisions of a coordinate branch of government demands that courts invalidate a congressional enactment only upon a plain showing that Congress has exceeded its constitutional bounds.


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." In June 2016, the Bureau of Indian Affairs (BIA) promulgated the Final Rule, which provided that states have the responsibility of determining whether a child was an “Indian child” subject to ICWA’s requirements. Plaintiffs, states of Texas, Indiana, and Louisiana, and seven individuals seeking to adopt Indian children filed suit against defendants, United States of America, several federal agencies and officials in their official capacities, and five intervening Indian tribes, alleging that the Final Rule and certain provisions of ICWA were unconstitutional. Plaintiffs argued that ICWA and the Final Rule violated equal protection and substantive due process under the Fifth Amendment and the anticommanderring doctrine that arose 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. Defendants appealed.


  1. Did the plaintiffs have standing to bring the complaint?
  2. Were the ICWA and the Final Rule constitutional?


1) Yes. 2) Yes.


The Court of Appeals for the Fifth Circuit held that plaintiffs have standing to bring the complaint given the increased regulatory burden imposed in adoptions proceedings. The Court also held that ICWA and the Final Rule were constitutional because they were based on a political classification that was rationally related to the fulfillment of Congress’s unique obligation towards Indians. Moreover, ICWA preempted conflicting state laws and did not violate the anti-commandeering doctrine as it merely required states to take administrative action to comply with federal standards. Although the Court affirmed the district court's ruling that Plaintiffs had standing, the Court reversed the district court's grant of summary judgment to Plaintiffs and rendered judgment in favor of Defendants.

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