This post originally appeared on Turtle Talk on August 9, 2019.

The Fifth Circuit overturned the Northern District of Texas today with strong language supporting ICWA. The Court found that the plaintiffs did have standing, but found against them on all other counts. There is a dissent forthcoming from Judge Owens.

Equal Protection:

We begin by determining whether ICWA’s definition of “Indian child” is a race-based or political classification and, consequently, which level of scrutiny applies. The district court concluded that ICWA’s “Indian Child” definition was a race-based classification. We conclude that this was error.

 

We disagree with the district court’s reasoning and conclude that Mancari controls here. As to the district court’s first distinction, Mancari’s holding does not rise or fall with the geographical location of the Indians receiving “special treatment.”

Anti-Commandeering:

We examine the constitutionality of the challenged provisions of ICWA below and conclude that they preempt conflicting state law and do not violate the anticommandeering doctrine.

Non-Delegation:

We find this argument unpersuasive. It is well established that tribes have “sovereignty over both their members and their territory.” See Mazurie, 419 U.S. at 557 (emphasis added)”

 

For a tribe to exercise its authority to determine tribal membership and to regulate domestic relations among its members, it must necessarily be able to regulate all Indian children, irrespective of their location.

Authority to Issue Regulations

Here, section 1952’s text is substantially similar to the language in Mourning, and the Final Rule’s binding standards for Indian child custody proceedings are reasonably related to ICWA’s purpose of establishing minimum federal standards in child custody proceedings involving Indian children. See 25 U.S.C. § 1902. Thus, the Final Rule is a reasonable exercise of the broad authority granted to the BIA by Congress in ICWA section 1952.

Conclusion:

For these reasons, we conclude that Plaintiffs had standing to bring all claims and that ICWA and the Final Rule are constitutional because they are based on a political classification that is rationally related to the fulfillment of Congress’s unique obligation toward Indians; ICWA preempts conflicting state laws and does not violate the Tenth Amendment anticommandeering doctrine; and ICWA and the Final Rule do not violate the nondelegation doctrine. We also conclude that the Final Rule implementing the ICWA is valid because the ICWA is constitutional, the BIA did not exceed its authority when it issued the Final Rule, and the agency’s interpretation of ICWA section 1915 is reasonable.