Opinion of the Court
fostering or adopting Indian children. And they challenged §1915(c)—the provision that allows tribes to alter the prioritization order—on the ground that it violates the nondelegation doctrine.[1]
The District Court granted petitioners’ motion for summary judgment on their constitutional claims, and a divided panel of the Fifth Circuit reversed. Brackeen v. Bernhardt, 937 F. 3d 406 (2019). After rehearing the case en banc, the Fifth Circuit affirmed in part and reversed in part. 994 F. 3d 249 (2021) (per curiam). The en banc court concluded that ICWA does not exceed Congress’s legislative power, that §1915(c) does not violate the nondelegation doctrine, and that some of ICWA’s placement preferences satisfy the guarantee of equal protection. Id., at 267–269. The court was evenly divided as to whether ICWA’s other preferences—those prioritizing “other Indian families” and “Indian foster home[s]” over non-Indian families—unconstitutionally discriminate on the basis of race. Id., at 268. The Fifth Circuit therefore affirmed the District Court’s ruling that these preferences are unconstitutional.
Petitioners’ Tenth Amendment arguments effectively succeeded across the board. The Fifth Circuit held that §1912(d)’s “active efforts” requirement, §1912(e)’s and §1912(f)’s expert witness requirements, and §1915(e)’s recordkeeping requirement unconstitutionally commandeer the States. Ibid. It divided evenly with respect to the other provisions that petitioners challenge here: §1912(a)’s notice requirement, §1915(a) and §1915(b)’s placement preferences, and §1951(a)’s recordkeeping requirement. Ibid. So the Fifth Circuit affirmed the District Court’s hold-
- ↑ Petitioners raised several other challenges that are not before this Court, including that ICWA’s implementing regulations are arbitrary and capricious in violation of the Administrative Procedure Act.
