Case Notes

Case Note: Brackeen, et. al. v. Zinke, et. al.

Case Note: Brackeen, et. al. v. Zinke, et. al.[1]

On October 10, 2018, the District Court for the Northern District of Texas produced one of the most significant district court cases regarding the Indian Child Welfare Act (ICWA).[2]In this case the court found that ICWA was unconstitutional for violating Equal Protection, the Vesting Clause, the Tenth Amendment, and the Indian Commerce Clause. This case was appealed on November 19, 2018, by the Cherokee Nation, Oneida Nation, Quinalt Indian Nation, and Morongo Band of Mission Indians as Intervenor-Defendants.[3]The BIA filed their notice of appeal on November 30, 2018.[4]

Summary of Facts

This case is comprised of three joined cases involving non-Indian foster parents who were adopting Indian children. The Brackeens were able to adopt their foster child, A.L.M., however the adoption could be challenged for two years.[5]Neither of the potential designation tribes, the Navajo Nation nor the Cherokee Nation intervened; however Navajo Nation did find an alternate placement with non-relatives.[6]The Librettis have not yet petitioned for adoption of their foster child, Baby O; however, they intend to do so.[7]The Ysleta Del sur Tribe has intervened in this case.[8]The Cliffords had their foster child, Child P. removed from their placement to their maternal grandmother, a member of the White Earth Band of Ojibwe, whose foster license was revoked in January 2018.[9]The Cliffords also intend to petition for adoption.[10]Three States – Texas, Indiana, and Louisiana – also joined, claiming that ICWA places “significant responsibilities and costs on state agencies and courts to carry out federal Executive Branch directives.”[11]They also argued that “ICWA’s requirement that state courts submit to mandates from an Indian child’s tribe violates state sovereignty because the Indian tribe is not an equal sovereign deserving full faith and credit.”[12]

Summary of Analysis

The Plaintiffs moved for summary judgement, 

… claiming that the ICWA and the Final Rule violate: (1) the equal protection requirements of the Fifth Amendment; (2) the Due Process Clause of the Fifth Amendment; (3) the Tenth Amendment; and (4) the proper scope of the Indian Commerce Clause. Plaintiffs also argue that (1) the Final Rule Violates the Administrative Procedure Act (the “APA”); and (2) the ICWA violates Article I of the Constitution.[13]

The Plaintiffs argued that under the Fifth Amendment Equal Protection Clause, ICWA is a race-based law that requires strict scrutiny review.[14]The Defendants argued that it is a political status based law that requires only rational basis.[15]The Court analyzed two cases,Rice[16]and Mancari[17], to determine whether it was race-based or political status based.[18]In Rice,the Supreme Court found that a statute limiting election eligibility to only those of Native Hawaiian ancestry could vote in Hawaii was race-based and unconstitutional.[19]In Mancari, the Supreme Court found that a Bureau of Indian Affairs Indian hiring preference was political status based and constitutional.[20]This Court found that ICWA is race-based, like Rice, and subject to strict scrutiny because ICWA includes not only those children who have tribal membership, but also those who do not and may not ever have tribal membership.[21]“By deferring to tribal membership eligibility stands based on ancestry, rather than actualtribal affiliation, the ICWA’s jurisdictional definition of ‘Indian children’ uses ancestry as a proxy for race and therefore must be analyzed by the reviewing court under strict scrutiny.”[22]Under strict scrutiny, the statute must be narrowly tailored to further a compelling governmental interest. The Defendants failed to brief the issue of whether the statutes meet strict scrutiny, and the court found their oral arguments uncompelling.[23]The Defendants argued that maintaining the Indian child’s relationship with the tribe was the compelling interest.[24]The Court assumed those interests were compelling but found that the statute was not narrowly tailored to that interest.[25]The Court found that ICWA is over-inclusive “because it establishes standards that are unrelated to specific tribal interests and applies those standards to potentialIndian children.”[26]The Court found that by including children who were not currently members of a tribe and allowing adoptions by tribes other than that of the child’s tribe, burdens more children than necessary to accomplish the goal of ensuring children remain with their tribes.[27]Ultimately, the Court found it violated the Equal Protection Clause of the Fifth Amendment of the United States Constitution.[28]  

The Plaintiffs second argument was that ICWA violates the vesting clause[29]by “impermissibly grant[ing] Indian tribes the authority to reorder congressionally enacted adoption placement preferences by tribal decree and then apply their preferred order to the states.”[30]The Court found that Congress cannot delegate its exclusively legislative authority to Indian tribes by allowing them to change the adoption preference priorities established by ICWA.[31]Alternatively, the Court found that even if Congress could permissively delegate the adoption preference priorities, they could not delegate that authority to the tribes, as they are non-governmental entities.[32]The Court held that ICWA section 1915(c) violated the vesting clause.[33]

The Plaintiff’s third argument was that ICWA sections 1901-23 and 1951-52 commandeer the States in violation of the Tenth Amendment.[34]The Court agreed, finding that the Indian Commerce Clause does not authorize Congress to require states to adopt and administer comprehensive federal standards in state created causes of action, of which child placement is considered to be a state created cause of action.[35]“Even though the ICWA’s general policy is directed towards protecting Indian children, its specific provisions … directly command states to enforce the ICWA without a comparable federal enforcement mechanism and do not impose any federal restrictions on private actors.”[36]They also found that these sections were a violation of the Indian Commerce Clause for the same reason.[37]

The Plaintiffs fourth argument was that the Final Rule was a violation of the APA.[38]The Court holds that the Final Rule is unconstitutional for upholding a statute that is also unconstitutional.[39]Alternatively, the Court found that the BIA exceeded its authority when promulgating the Final Rule and therefore the Final Rule is invalid to the extent they are binding on the states.[40]The Court then considered whether there was Cheveron[41]deference due for the Final Rule’s evidentiary requirement. The Court held that “because the Court finds that the BIA lacked statutory authority to enact the challenged portions of the Final Rule, and that the evidentiary standard section 1915 is unambiguous, Defendants are not entitled to Cheverondeference and the Final Rule’s change of standard to clear and convincing evidence is contrary to law.”[42]

The Plaintiffs final argument was that ICWA violates the Due Process Clause of the United States Constitution because it violates the fundamental right to keep the family together.[43]However, the Court found that this right has never applied to foster families, and therefore there is no due process violation under ICWA.[44]


Ultimately, the Court found 25 U.S.C. §§ 1901–23, 25 U.S.C. §§ 1951–52, of ICWA and 25 C.F.R. §§ 23.106–22, 25 C.F.R. §§ 23.124–32, and 25 C.F.R. §§ 23.140–41 of the Final Rule unconstitutional.[45]The case has been appealed to the Fifth Circuit and the Court of Appeals entered an injunction against the lower court’s ruling until they have reached a decision.[46]The Appellants’ briefs were filed on February 06, 2019 and the Response Brief was filed on January 22, 2019.[47]Approximately ten Amicus Curiae Briefs have been filed in total.[48]No hearing date has been set. The result of the ongoing appeal will determine whether ICWA will survive to protect Indian children from being unnecessarily removed from their community. 

Anne Bruno (Tribal Law Journal, Co-Editor-in-Chief) of Tucson, Arizona is a third-year law student pursuing UNM School of Law’s Indian Law Certificate.  She has an academic background in Anthropology and American Indian Studies.  Anne has demonstrated a commitment to addressing criminal justice issues in Indian Country, but stated she still is not sure how she will go about making changes.  Anne has experienced work with the United States Attorney’s Office, Indian Country Crimes section and knows the importance of having an impact in the area of criminal law and Indian Country. Anne is interested in working within a tribe after law school, but also has goals of doing policy work on a larger scale.

[1]Brackeen, et. al. v. Zinke, et. al., No. 4:17-cv-00868 (N.D. Tex. Oct. 04, 2018), appeal docketed, No. 18-11479 (5th Cir. Nov. 19, 2018).  

[2]25 U.S.C. §§ 1901, et. seq.

[3]Notice of Appeal, Brackeen, et. al. v. Zinke, et. al., No. 4:17-cv-00868 (N.D. Tex. Nov. 19, 2018), ECF 187.

[4]Notice of Appeal, Brackeen, et. al. v. Zinke, et. al., No. 4:17-cv-00868 (N.D. Tex. Nov. 30, 2018), ECF 190. 

[5]Brackeen at 13.

[6] 12-13.

[7]Id. at 14-15.


[9]Id. at 15.


[11] 16.


[13]Id. at 21. 

[14]Id. at 21-29.


[16]Rice v. Cayentano, 528 U.S. 495 (2000).

[17]Morton v. Mancari, 417 U.S. 535 (1974).

[18]Brackeen, at 21-29.




[22] 26. 


[24] 27.


[26]Id. at 28.

[27] 29.


[29]“All Legislative Powers … shall be vested in a Congress of the United States.” U.S. Const. I, § 1, cl. 1.

[30]Brackeen at 29.

[31]Id. at 31.

[32] 32.


[34] 33.

[35]Id. at 38.

[36] 37-38. 

[37] 46-47. 

[38] 38.

[39] 39. 

[40]Id. at 42.

[41]“a court reviews an agency’s construction of the statute which it administers, it is confronted with two questions. First, always, is the question whether Congress has directly spoken to the precise question at issue. If the intent of Congress is clear, that is the end of the matter; for the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. V. N.R.D.C., Inc., 497 U.S. 837, 842-843 (1984)

[42]Bracken,at 45-46.

[43]Id. at 46.


[45]Final Judgement, Brackeen, et. al. v. Zinke, et. al., No. 4:17-cv-00868, Doc. 167 (N.D. Tex. Oct. 04, 2018), ECF 167.

[46]Order, Brackeen, et. al. v. Zinke, et. al., No. 4:17-cv-00868, Doc. 192 (N.D. Tex. Dec. 03, 2018), ECF 192. 

[47]Appellant’s Brief Filed (by Intervenor-Appellant’s), Brackeen, et. al. v. Bernhardt, et. al., No. 18-11479 (5th Cir. Jan. 16, 2019), ECF BL-83; Appellant’s Brief Filed (by BIA), Brackeen, et. al. v. Bernhardt, et. al., No. 18-11479 (5th Cir. Jan. 16, 2019), ECF BL-91; Appellee’s Brief, Brackeen, et. al. v. Bernhardt, et. al., No. 18-11479 (5th Cir. Feb. 06, 2019), ECF. BL-170.

[48]Docket Sheet, Brackeen, et. al. v. Bernhardt, et. al., No. 18-11-479 (5th Cir. Nov. 19, 2019); SeeMathew L.M. Fletcher, Merits and Amicus Briefs Filed in Brackeen et. al. v. Zinke et. al. Yesterday, Turtle Talk(January 17, 2019), accessed Feb. 17, 2019) (contains copies of Appellate Briefs).  

By Tribal Law Journal Blog

The Tribal Law Journal was established in fall 1998 for the purpose of promoting indigenous self-determination by facilitating discussion of the internal law of the world’s indigenous nations. The internal law of indigenous nations encompasses traditional law, western law adopted by indigenous nations, and a blend of western and indigenous law. Underscoring this purpose is the recognition that traditional law is a source of law.

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