September 17, 2019

Fifth Circuit Holds Indian Child Welfare Act is Constitutional

By Beth Kurtz

Brackeen v. Bernhardt, 2019 WL 3857613 (5th Cir. 2019)

The Fifth Circuit Court of Appeals reversed a 2018 district court decision and held the Indian Child Welfare Act (ICWA): (1) does not amount to race-based discrimination in violation of the Equal Protection Clause; (2) does not violate the Tenth Amendment’s anti-commandeering doctrine; and (3) does not violate the non-delegation doctrine of Article 1 of the U.S. Constitution. The Fifth Circuit also held the Bureau of Indian Affairs (BIA) had authority to promulgate its 2016 ICWA regulations.

Practical Significance

This decision is significant for the child welfare field because the district court’s decision marked the first time a federal court found ICWA unconstitutional since its enactment more than 40 years ago. By rejecting the lower court’s analysis, the Fifth Circuit has affirmed the importance of ICWA and its implementing regulations as a foundational law that guides judges, attorneys, and caseworkers throughout the country. The plaintiffs, the states of Texas, Louisiana and Indiana, along with several individuals who have adopted or have sought to adopt Indian children, may now petition for rehearing en banc before the full Fifth Circuit, or ask the U.S. Supreme Court to hear the case.


In 2018, the U.S. District Court for the Northern District of Texas held that:

  1. ICWA amounts to impermissible race-based discrimination in violation of the Equal Protection Clause as incorporated in the Fifth Amendment;
  2. ICWA violates the anti-commandeering doctrine rooted in the Tenth Amendment;
  3. ICWA violates the non-delegation doctrine based in Article I;
  4. the BIA exceeded its authority in promulgating the 2016 Final Rule.

Fifth Circuit Decision

The Fifth Circuit affirmed the statute’s constitutionality and the permissibility of the regulations and found the district court’s conclusions flawed on four central grounds.

Equal Protection

First, the Fifth Circuit overturned the district court’s equal protection holding, rejecting the conclusion that ICWA violated the Constitution’s guarantee of equal protection of the law (rooted in the Fourteenth and Fifth Amendments). The Supreme Court has long held that legal classifications based on race are subject to “strict scrutiny,” which means they will violate the Equal Protection Clause unless they are narrowly tailored to further compelling government interests. See Fisher v. University of Texas at Austin, 570 U.S. 297, 310 (2013). Legal classifications and distinctions not based on protected statuses, on the other hand, will be constitutional so long as there is a rational basis behind the challenged government action.

In this case, the district court held the provisions of ICWA creating requirements for proceedings pertaining to Indian children amounted to race-based classifications requiring strict scrutiny review. The Fifth Circuit disagreed and likened the ICWA provisions defining “Indian child” to a regulation aimed at the employment of tribal members upheld in Morton v. Mancari, 417 U.S. 535 (1974). In Mancari, the Court recognized the “plenary power of Congress . . . to legislate on behalf of federally recognized Indian tribes,” id. at 551, rooted in the Constitution. The Fifth Circuit explained that this has been the longstanding and wide-reaching source of federal government action pertaining specifically to Indian tribes and those identified with them. The Fifth Circuit also explained that, instead of creating distinctions based on race, ICWA is more logically interpreted as a statute “related to tribal self-government and the survival of tribes” in light of explicit congressional intent to recognize that “in no area is it more important that tribal sovereignty be respected than in an area as socially and culturally determinative as family relationships.” Plaintiffs argued, and the district court found, that such eligibility is based on ancestry, which ultimately amounts to a racial consideration. But the Fifth Circuit pointed out that the focus on eligibility is based on criteria set by each of the federally recognized tribes, which can include individuals who are not racially Indian or exclude those who are.

Having concluded “that ICWA’s definition of ‘Indian child’ is a political classification,” the court needed only to assess whether the classification had a rational basis (rather than the more demanding strict scrutiny review applicable to race-based classifications). The Fifth Circuit easily concluded that that the statute is rationally based on Congress’s “fulfillment of its unique obligation toward Indian nations.”

Tenth Amendment

Next, the Fifth Circuit ruled that ICWA’s application in state courts and to state agencies did not violate the Tenth Amendment to the Constitution. The Supreme Court has held that Congress may not “commandeer” state governments by requiring state legislative or regulatory action to fulfill congressional policy goals. Such commandeering violates the Tenth Amendment, which makes clear that Congress is limited to the legislative authority explicitly laid out in the Constitution, whereas all other legislative authority is reserved for the states. See New York v. United States, 505 U.S. 144 (1992). Congress may incentivize state action by offering federal funding, regulate states and private parties together as actors in interstate commerce, or require state actors to comply with otherwise valid federal law, but may not require a state to legislate or regulate in any particular way or conscript state actors to administer a federal program.

In this case, the district court held that ICWA violated the anticommandeering principle by requiring both state court and state agency action to execute federal policy. The Fifth Circuit disagreed. Regarding ICWA’s impact on state courts, the court explained all federal statutes are binding in state court as a matter of the Supremacy Clause of the Constitution. Accordingly, to the extent ICWA and the implementing regulations “require state courts to enforce federal law, the anticommandeering doctrine does not apply.”

Regarding ICWA’s impact on state agencies by imposing notice requirements, placement preferences, and active efforts to provide remedial services to prevent family disruption, the Fifth Circuit held that ICWA does not impermissibly commandeer state executive actors—such as state child welfare agency staff—because ICWA’s provisions apply to all those engaging in proceedings pertaining to the foster care placement and adoption of Indian children, whether private or state actors. To the extent that ICWA preempts conflicting state law, the court explained that because it is based on valid congressional authority and applies equally to private and state actors, the Supremacy Clause justifies such preemption.

In a brief dissent on state agency commandeering alone, one of the Fifth Circuit appellate panel judges argued that although the statute refers generally to “foster care placement,” it nonetheless has the effect of binding only state government actors (and not private actors) because only the state removes children and places them in foster care. Judge Owen also argued that the majority ignored the fact that 25 U.S.C. § 1915(e), the ICWA record-keeping requirement, explicitly applies only to state governments.

The Fifth Circuit noted that Defendants had presented an alternative argument that ICWA is authorized under Congress’s Spending Clause powers because states can only receive federal child welfare funding under Title IV-B and E of the Social Security Act if they comply with ICWA. The court declined to address this argument, however, after finding ICWA constitutionally permissible on other grounds.


Third, the Fifth Circuit ruled that the district court erred in holding a portion of ICWA violated the non-delegation doctrine. Because all federal legislative power is vested in Congress via Article I of the Constitution, congressional acts that seek to wholly delegate federal legislative power to other actors, such as federal executive agencies, are prohibited by Article I. The Supreme Court has made clear that some delegation is permissible so long as Congress has delegated legislative authority along with a set “intelligible principle” by which the authority receiving such power must act. See Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 472 (2001).

The district court had held that a delegation problem in ICWA arises in 25 U.S.C. § 1915, which outlines placement preferences for Indian children in Section (b) and then, in Section (c), allows a tribe to reorder such preferences if desired. The Fifth Circuit, on the other hand, held that this is not a delegation of congressional authority, but rather, a recognition that federally recognized tribes are sovereigns and “retain their inherent power to determine tribal membership [and] to regulate domestic relations among members” on and off tribal territory. See United States v. Mazurie, 419 U.S. 544, 557, 564 (1975). The court explained that the ICWA provision regarding the potential reordering of placement preferences simply acknowledges such authority.

Validity of the Final Rule

Finally, the Fifth Circuit rejected the district court’s conclusion that the ICWA Final Rule, promulgated by the BIA in 2016, impermissibly exceeded statutory authority. The trial court made two relevant holdings: (1) the BIA acted improperly in issuing the Final Rule in 2016 in its entirety, and (2) even if the issuance of the Final Rule had been proper as a whole, the specific provision requiring a high evidentiary standard for those seeking to show “good cause” for a court to depart from ICWA’s adoptive placement preferences could not stand.

Federal executive agencies, such as the BIA, may interpret and implement federal legislation they are charged with executing through the promulgation of rules and regulations. But where parties with standing allege an agency has exceeded the authority conferred to it by the relevant statute, a court may set aside the agency action per the federal Administrative Procedure Act. In hearing a challenge to agency action, the reviewing court must first determine whether the statute being interpreted has a clear meaning conflicting with the agency action or otherwise resolving the matter at hand. If not, and if the statute is ambiguous, the court must defer to and uphold the enforcing agency’s interpretation of the statute at hand unless the interpretation is unreasonable. Chevron, U.S.A. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842-43 (1984).

Regarding the holding on the Final Rule as a whole, the district court had concluded that because the BIA explicitly stated, in the period after the passage of ICWA, that it did not need to issue a Final Rule guiding the application and interpretation of ICWA, such regulations were “unnecessary” and the statute only allows regulations if deemed necessary. Accordingly, the court held the statute was clear on the topic and precluded the issuance of the 2016 Final Rule. By contrast, the Fifth Circuit explained the text of ICWA offers the possibility of BIA regulations but leaves open whether such regulations will be issued; as such, the text is ambiguous. Although the BIA once determined it need not issue such regulations, ““[t]he mere fact that an agency interpretation contradicts a prior agency position is not fatal” so long as the agency offers adequate reasons for the change. Smiley v. Citibank (S. Dakota), N.A., 517 U.S. 735, 742 (1996). The court then held that the BIA reasonably explained its decision to issue regulations in 2016.

The Fifth Circuit also upheld the validity of 25 C.F.R. § 23.132, a section which recommends courts hearing evidence about whether “good cause” exists to depart from ICWA’s adoptive placement preferences require the moving party to bear the burden of proof of such good cause by clear and convincing evidence. The court explained that “good cause” was ambiguous, and the statute did not specify an evidentiary standard for this issue. Further, the BIA made clear that the heightened evidentiary standard (which is more demanding of a moving party than the default civil standard of preponderance of the evidence) is merely a recommendation for state courts and is not in itself binding. As such, the court found this provision reasonable.

ABA Policy Recognizes ICWA’s Constitutionality

In August 2019, the American Bar Association (ABA) House of Delegates formally endorsed ICWA’s constitutionality via the adoption of ABA Resolution 115C. As the national voice of the legal profession, the ABA joins a broad group of supporters and the United States government in defending ICWA and recognizing “the unique government-to-government relationship between the United States and tribes and the trust responsibility owed by the United States to tribes.”

It remains to be seen whether the Supreme Court will consider the constitutional questions raised here. In 2013, the Court avoided considering the constitutionality of ICWA when it decided the controversial case Adoptive Couple v. Baby Girl, and earlier this year, the Court denied a petition asking it to hear another challenge to ICWA, Carter v. Washburn, which was dismissed on mootness grounds.

Beth Kurtz, JD, is an attorney with the ABA Center on Children and the Law.