Brackeen Decision Summary

Based on my inbox, my ims, and my texts, the best thing I can do this morning is a post on the decision. A few caveats–I will not speculate about what happens next because I don’t know what’s going to happen next and it’s frankly not helpful. This is my own understanding of a ridiculously complicated opinion less than 24 hours after it was released and no one else’s, but I am indebted to a number of practitioners last night who emailed and texted as we worked our way through it. They know who they are.

Judge Dennis and Judge Duncan each wrote about 150 pages, clearly hoping one or the other would gain the majority. Then five additional judges (Owen, Wiener, Haynes, Higginson, Costa) wrote concurrences and dissents and/or both. The first five pages of the document are a per curiam description of where everyone ended up. These five pages are probably the most helpful part of the decision. What makes this decision particularly confounding is that due to the make up of the court, there was an opportunity for an evenly split bench, which is what happened a lot. And as Indian law practitioners know all too well, a split bench doesn’t make for a precedential decision (and are supposed to be super short, but no such luck here).


I think the best place to start is the question I’ve been asked the most–where does this apply? How will this affect my on-going case? First, the mandate issue date on the opinion is not until June 1 (this is in PACER). Therefore, if nothing happens at all (remember, I’m not future speculating), then none of this applies till June 1. Second, I believe the parts of the decision that the majority agrees on is applicable only in the Fifth Circuit. Much like no one in California or Michigan much cares about the Neilson v. Ketchum decision in the Tenth Circuit, there’s no real reason for a vast majority of state courts to wrestle with this case.

The evenly split parts? I like to think of them as an unpublished advisory opinion. Take a look at footnote one to address those parts. The Court uses the term “affirmed without precedential opinion” which does not appear in any Westlaw search I’ve done so far. However, as I pointed out last night, Judge Costa’s concurrence and dissent (which appears at the very end of the document) points out pretty clearly that the federal court decision is not binding on a state court. He then addresses the way in which this decision cannot provide redressability. The language in his first paragraph on page 307 may prove to be the most helpful those who wrote me about on-going cases. I’m going to put it in here because I appreciate his writing:

It will no doubt shock the reader who has slogged through today’s lengthy opinions that, at least when it comes to the far-reaching claims challenging the Indian Child Welfare Act’s preferences for tribe members, this case will not have binding effect in a single adoption. That’s right, whether our court upholds the law in its entirety or says that the whole thing exceeds congressional power, no state family court is required to follow what we say. 

2 from Judge Costa’s decision, 307 in the PDF

ICWA is Constitutional

If you’ve made it this far, let’s start with the good news–these are things the majority agreed on:

[T]he en banc court holds that Congress was authorized to enact ICWA. We conclude that this authority derives from Congress’s enduring obligations to Indian tribes and its plenary authority to discharge this duty. 


In addition, for the en banc court, we hold that ICWA’s “Indian Child” designation and the portions of the Final Rule that implement it do not offend equal protection principles because they are based on a political classification and are rationally related to the fulfillment of Congress’s unique obligation toward Indians.


We also hold for the en banc court that § 1915(c) does not contravene the nondelegation doctrine because the provision is either a valid prospective incorporation by Congress of another sovereign’s law or a delegation of regulatory authority. 


Further, we hold for the en banc court that the BIA acted within its statutory authority in issuing binding regulations, and we hold for the en banc court that the agency did not violate the APA when it changed its position on the scope of its authority because the agency provided a reasonable explanation for its new stance.  

152 from Judge Dennis’s opinion, 159 in the PDF

Judge Dennis would have held for the Defendants and completely reversed the district court on all issues except standing, had he garnered a majority of the court.

In addition, here are the specific ICWA provisions challenged and either found constitutional by the majority:




1912(e), (f) (except for QEW)






or could not garner a majority and are therefore not precedential:

1915 (a)-(b)

1912 (a)

1951 (a)

Provisions of ICWA and the Regs that May Not Apply in the Fifth Circuit

Judge Duncan’s opinion essentially stands for the exact opposite conclusions, but he did not get a majority. He only got a majority on three issues. The majority agreed the following in ICWA are unconstitutional as applied to states under the commandeering doctrine in the Fifth Circuit:

25 U.S.C. 1912(d) (Active efforts provision) (Judge Duncan’s decision, IIII(B)(1)(a)(i))

25 U.S.C. 1912(e), (f) as it applies to the qualified expert witness provision (Judge Duncan’s decision, III(B)(1)(a)(ii))

25 U.S.C. 1915(e) (recordkeeping regarding placements) (Judge Duncan’s decision, III(B)(1)(a)(iv))

In addition, the parts of the Final Rule that implement those provisions are also no longer applicable, though I would draw people’s attention to 25 C.F.R. 23.144 which addresses severabillity. I believe there is an argument to be made that these provisions are only knocked out as to the states in the Fifth Circuit, not to private parties. The Court did not identify the specific rules that implement 1912(d)-(f) and 1915(e), so here is my best guess on which ones may not longer apply in the Fifth Circuit:

25 C.F.R. 23.2 (active efforts definition)

25 C.F.R. 23.120 (active efforts)

25 C.F.R. 23.121 (but only the parts that reference qualified expert witness)

25 C.F.R. 23.122 (qualified expert witness)

The Court did specifically reject by majority the following provisions of the Final Rule:

25 C.F.R. 23.132 (b) (that good cause to deviate from the placement preferences requires a clear and convincing evidence standard/finding)

25 C.F.R. 23.141 (specifically identified as rejected/record keeping)

I apologize for not stating something that I should have said at the start:

This decision has no effect on state ICWA laws, since it is based on commandeering (the feds making the states do something, not the state choosing to do something) or the APA (again, if a state wants to maintain records, it can, and state laws or court decisions that enforce a C&C burden for good cause based on ICWA itself or state law should be fine as well.).

Trust me when I say, there are a LOT of words in this decision (I had to briefly walk away when I hit footnote 2, an extraordinarily long, multipage footnote on Madison and the Federalist papers), but a lot of the words are just that. There’s very little legal substance here. I think it’s revealing to read the attempt at remedy in Judge Duncan’s opinion–as had been argued repeatedly, nothing this court decided would redress the harms claimed by the plaintiffs.

Students at the MSU Indian Law Clinic will be working on additional materials, such as breaking down the decision by judge if possible, and developing a chart (as are a number of other groups). Ours will be directed for the audience of in-house ICWA counsel. I hope this is helpful.

The Brackeen Decision [ICWA] is Out and it is 325 Pages Long

All I can say is to remember when they split evenly, it affirms the district court decision, not the earlier 5th Circuit decision. Beyond that, I’m still trying to figure it out.

Judge Costa’s concurrence/dissent does a lot to explain the implications of the holding. You may want to start on page 306 (!).

Yale Law and Policy Review: ICWA and Commandeering

We’ve been looking forward to this article for a while. Highly recommended.


This Note argues that ICWA does not commandeer the States. Part I grounds the discussion in the history of genocide and colonization of Indian peoples. This historical context is crucial to understanding the passage of ICWA and the current reactionary effort to dismantle it. Part II provides a brief overview of the anti-commandeering doctrine and lays out the commandeering claims that opponents have leveled against ICWA. Additionally, this Part argues that ICWA fully aligns with modern anti-commandeering doctrine for four reasons. First, it is settled doctrine that state courts must enforce federal law. As such, anti-commandeering doctrine does not apply to state courts in the same way as it applies to the state political branches. Second, Congress may impose federal procedures on state courts to vindicate federal rights, federal causes of action, and–we argue–vital federal interests, including the protection of the federal trust obligation to Indian tribes. The procedural requirements imposed by ICWA on state courts fall within all three of these categories. Third, it is established doctrine that Congress may impose record-keeping requirements on the States, including the record-keeping required by ICWA. Fourth, contrary to the claims of its opponents, ICWA even-handedly regulates states and private entities, consistent with the Constitution’s anti-commandeering requirements. Part III explains the dangerous implications of the anti-commandeering argument for tribal sovereignty, demonstrating the high stakes of ICWA litigation for federal Indian law more broadly. The Note concludes with an exploration of how attacks on ICWA based on anti-commandeering doctrine threaten the very structure of federalism in the United States.

Reflections on Oral Argument in Brackeen v. Bernhardt

Four Intervening Tribes Leadership and Attorneys

On Wednesday, an en banc panel of 16 judges in the Fifth Circuit heard oral arguments in Brackeen v. Bernhardt. Judges Davis and Ho were not a part of the panel. The other judges, from the left side of the bench around to the right were:

Graves Jr.

The rest of the information is from my notes during the hearing, and I’m sure contain some mistakes that we will see when a transcript is released.

Of the 16 judges, 5 of them asked a vast majority of the questions–more than 5 questions each. Duncan asked 19, Dennis and Jones asked 11, Smith asked 7 and Costa asked 5. The federal government received 11 questions, Navajo Nation 7, and the Four Intervening Tribes 7. Texas received 19, and the Individual Plaintiffs 16. The Four Intervening Tribes received 4 additional questions on rebuttal (totals are 25 for the pro-ICWA side before rebuttal and 36 for the anti-ICWA side).

If you are trying to follow along to the audio recording, Duncan was most concerned with commandeering and recent Supreme Court commandeering questions. He also pressed Navajo Nation closely on blood quantum. Smith was the one particularly trying to understand the “exclusive” part of plenary power, and later expressed the belief that Texas dedicates scores of social workers to each child in care. And Jones asked the questions on rebuttal that has led to the most number of texts from attorneys asking me “what the [heck]?!” (which I personally thought Adam Charnes handled admirably, given all the oxygen was completely sucked out of the courtroom in that minute by a collective intake of breath).

Dennis, the judge who wrote the lower panel opinion, was the one the plaintiffs had most difficulty hearing, and was the most supportive of the law. Costa also asked skeptical questions of the plaintiffs, and wanted to know more about redressability.

Given the silence or relative silence of so many judges, it is impossible to make any predictions about the eventual opinion. We heard very little from judges who voted against en banc review in Dollar General (the pro-tribe vote), except Dennis. Elrod and Higginson both asked one question each.

Finally, in a very unscientific scroll through Westlaw, the Fifth Circuit has taken anywhere from 3 months (Moore v. Quarterman) from the granting of en banc review to the opinion to 10 months (Alvarez v. Brownsville). The granting of en banc review of Brackeen was in 11/19, so feel free to speculate amongst yourselves when you think the opinion will come out.

Déjà vu all over again

Gregory Ablavsky on the Presentment Clause and Tomorrow’s Argument in Brackeen

Here is “Brackeen, the Indian Child Welfare Act, and the Presentment Clause: A Very Pink Herring” on SLS blogs.

An excerpt:

If the Presentment Clause bars Congress from honoring the divergent policy judgments of other sovereigns, then federalism is in trouble. After all, as the briefs stress and the Supreme Court has explicitly endorsed, Congress has expressly adopted state law as federal law in the Assimilative Crimes Act and the Federal Tort Claims Act. It has expressly authorized states to create wage and hour standards higher than the federal government in the Federal Labor Standards Act. It has allowed states to establish different water and air quality standards from the federal government upon EPA approval, a power that the Court has repeatedly ruled on without saying boo.

Briefing Completed in Advance of This Week’s Oral Arguments in Brackeen [ICWA]

All documents here. Oral arguments are on Wednesday. The Court releases a recording of the arguments which we will publish when available.

Principle Supplemental Briefs:

Appellant Tribes En Banc Brief

Appellant Feds En Banc Brief

2019-12-13 Intervenor Navajo En Banc Brief

Individual Plaintiffs_Supplemental Brief

State_Supplemental Brief

Amicus Briefs pro-ICWA:


Indian Law Profs

Tribes and Tribal Orgs

Con Law Profs

Members of Congress Brief


Ablavsky-Originalism Brief

Native Women and ACLU

Amicus Briefs anti-ICWA




Project on Fair Representation_amicus

Goldwater Institute, et al_amicus

Top 10 American Indian Law Cases of 2019

It was a busy 2018 Term at the Supreme Court. Here are the top cases (although the top case is not a Supreme Court case):

1. Brackeen v. Bernhardt — This has to be the top case, even beating out three Supreme Court cases. Foundational doctrines of Indian law are at stake, state governments are facing off against the United States, and virtually every Indian tribe has affirmed support for the Indian Child Welfare Act. After expedited briefing and argument, the Fifth Circuit reversed a decision striking down ICWA. Now the court will rehear Brackeen en banc.

2. Sharp v. Murphy (formerly Carpenter v. Murphy) — This case captured the attention of Indian country more for the procedural drama (never thought those two words would ever go together) than the merits. A death penalty appeal in which the parties (state, tribe, guy-on-death-row, and US) barely mention that fact, Murphy is a reservation boundaries case that makes for exciting, if not accurate, media (Oklahoma could return to Indian reservation status!). The parties sparred at oral argument, the Court asked for more briefing, the This Land podcast went national, the end of the Term approached, and then . . . nothing. The apparent 4-4 tie of the justices led the Court to push the case to the next Term, and then more nothing. Now the Court has granted cert in McGirt v. Oklahoma, likely to decide the same issues as Murphy but with a full complement of judges.

3. Herrera v. Wyoming — The Court ruled 5-4 that the 1868 treaty right to hunt on unoccupied lands applied to the lands of the Bighorn National Forest. The Court also conclusively overruled Ward v. Racehorse, an ancient decision holding that statehood could abrogate treaty rights.

4. Washington State Dept. of Licensing v. Cougar Den — The Court ruled 5-4, but with no majority opinion, that a treaty right to travel on highways preempted a state tax on fuels moving through grounds transportation (or alternatively, granted a right to move goods without state interference).

The rest of the cases are lower court matters ranked by number of views on Turtle Talk. Here they are:

5. Williams v. Big Picture Loans — The Fourth Circuit ruled that tribal sovereign immunity applies to tribally owned businesses that conduct internet lending operations.

6. Swinomish Tribe v. BNSF — This case is pending before the Ninth Circuit. It received outsized attention because of an order by the panel to BNSF requiring it to explain how its characterization of legal authorities, the record, and the arguments of the tribe met its duty of candor to the court.

7. Free v. Dellinger — This case in the Western District of Oklahoma sought an order enjoining tribal jurisdiction over a nonmember. The case likely received a bunch of hits because that nonmember was Kalyn Free.

8. Davilla v. Enable Midstream Partners — The Tenth Circuit last January ordered the defendant to remove a pipeline from Indian lands.

9. Spurr v. Pope — The Sixth Circuit affirmed tribal court jurisdiction to issue a civil PPO against a nonmember under the 2013 VAWA tribal jurisdictional provisions.

10. FMC Corp. v. Shoshone-Bannock Tribes — The Ninth Circuit affirmed tribal jurisdiction over a nonmember, confirming a tribal court judgment involving millions. FMC was represented by a noted SCT practitioner, so expect a serious Supreme Court challenge in 2020.