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Brackeen v. Bernhardt No. 18-11479

http://www.ca5.uscourts.gov/opinions/pub/18/18-11479-CV1.pdf
(November 7, 2019 Order Announcing Rehearing En Banc).
http://www.ca5.uscourts.gov/opinions/pub/18/18-11479-CV0.pdf
(August 9, 2019 Panel Opinion).
ON PETITIONS FOR REHEARING EN BANC
Before OWEN, Chief Judge, JONES, SMITH, STEWART, DENNIS, ELROD, SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.
Judge HO was recused and did not participate in the Court’s decision.
GRANTED. (November 7, 2019).
This case presented 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 were the states of Texas, Indiana, and Louisiana, and seven individuals seeking to adopt Indian children. Defendants were 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. The Fifth Circuit affirmed that plaintiffs had standing to bring all claims. However, the Court reversed the District Court’s grant of summary judgment for plaintiffs and rendered judgment in favor of defendants on all claims. The Court reasoned 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 toward Indians. The Court further reasoned that ICWA preempted conflicting state laws and did not violate the Tenth Amendment anticommandeering doctrine; and that ICWA and the Final Rule did not violate the nondelegation doctrine. The Court also concluded that the Final Rule implementing the ICWA was valid because the ICWA was constitutional, the Bureau of Indian Affairs did not exceed its authority when it issued the Final Rule, and the agency’s interpretation of ICWA § 1915 was reasonable. Though a dissent agreed with much of the majority opinion, it concluded that certain provisions of the ICWA and related regulations violated the United States Constitution because they directed state officers or agents to administer Federal law. On November 7, 2019, the Court filed an order announcing that the case would be reheard en banc.
On Appeals from the United States District Court for the Northern District of Texas (Reed Charles O’Connor).
Attorney for Appellant – Kyle Douglas Hawkins, Austin, TX
Attorney for Appellee – Matthew Dempsey McGill, Washington, DC

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