Brackeen v. Zinke

Citation338 F.Supp.3d 514
Decision Date04 October 2018
Docket NumberCivil Action No. 4:17-cv-00868-O
Parties Chad BRACKEEN, et al., Plaintiffs, v. Ryan ZINKE, et al., Defendants, Cherokee Nation, et al., Intervenors-Defendants.
CourtU.S. District Court — Northern District of Texas

338 F.Supp.3d 514

Chad BRACKEEN, et al., Plaintiffs,
v.
Ryan ZINKE, et al., Defendants,

Cherokee Nation, et al., Intervenors-Defendants.

Civil Action No. 4:17-cv-00868-O

United States District Court, N.D. Texas, Fort Worth Division.

Signed October 4, 2018


338 F.Supp.3d 518

Lochlan F. Shelfer, Matthew D. McGill, Gibson Dunn, Washington, DC, Rebekah Perry Ricketts, Scott Kristian Hvidt, Gibson Dunn & Crutcher LLP, Dallas, TX, David Jonathan Hacker, Office of the Texas Attorney General, Austin, TX, for Plaintiffs.

JoAnn Kintz, Steven Edward Miskinis, U.S. Dept. of Justice, Environment Division, Washington, DC, for Defendants.

Adam Howard Charnes, Christin Jeffrey Jones, Kilpatrick Townsend & Stockton LLP, Dallas, TX, Claire R. Newman, Kilpatrick Townsend & Stockton LLP, Seattle, WA, Kathryn Erin Fort, Michigan State University College of Law, East Lansing, MI, Keith M. Harper, Venus McGhee Prince, Kilpatrick Townsend & Stockton LLP, Washington, DC, Thurston H. Webb, Kilpatrick Townsend & Stockton, Atlanta, GA, Maria Wyckoff Boyce, Hogan Lovells US LLP, Houston, TX, Katherine C. Belzowski, Paul Wesley Spruhan, Navajo Nation Department of Justice, Window Rock, AZ, Preston Randolph Mundt, Kelly Hart & Hallman LLP, Fort Worth, TX, for Intervenor-Defendants.

ORDER

Reed O'Connor, UNITED STATES DISTRICT JUDGE

338 F.Supp.3d 519

This case arises because three children, in need of foster and adoptive placement, fortunately found loving adoptive parents who seek to provide for them. Because of certain provisions of a federal law, however, these three children have been threatened with removal from, in some cases, the only family they know, to be placed in another state with strangers. Indeed, their removals are opposed by the children's guardians or biological parent(s), and in one instance a child was removed and placed in the custody of a relative who had previously been declared unfit to serve as a foster parent. As a result, Plaintiffs seek to declare that federal law, known as the Indian Child Welfare Act (the "ICWA"), unconstitutional.

In this case, the State Plaintiffs have filed a Motion for Summary Judgment (ECF No. 72), on April 26, 2018, and the Individual Plaintiffs filed a Motion for Summary Judgment (ECF No. 79), on the same day. Plaintiffs seek judgment as a matter of law on all of their claims. The parties appeared at a hearing on these motions and presented oral arguments on August 1, 2018. See Hr'g Tr., ECF No. 163. For the following reasons, the Court finds Plaintiffs' motions for summary judgment should be and are hereby GRANTED in part and DENIED in part.

I. BACKGROUND

First, the Court identifies the parties, next the legal backdrop of this dispute, and then the parties' claims, drawing in large part on those facts set out in the Order denying Defendants' motions to dismiss. See July 24, 2018 Order, ECF No. 155. Following these sections, this order will analyze the claims.

Plaintiffs are comprised of three states—Texas, Louisiana, and Indiana, (collectively, the "State Plaintiffs"), and seven individual Plaintiffs—Chad Everett and Jennifer Kay Brackeen (the "Brackeens"), Nick and Heather Libretti (the "Librettis"), Altagracia Socorro Hernandez ("Ms. Hernandez"), and Jason and Danielle Clifford (the "Cliffords") (collectively, the "Individual Plaintiffs") (together with the State Plaintiffs, "Plaintiffs"). State Pls.' Br. Supp. Mot. Summ. J. 1–2, ECF No. 74 [hereinafter "State Pls.' Br."]. Defendants are the United States of America; the United States Department of the Interior (the "Interior") and its Secretary Ryan Zinke ("Zinke") in his official capacity; the Bureau of Indian Affairs (the "BIA") and its Director Bryan Rice ("Rice") in his official capacity; the BIA Principal Assistant Secretary for Indian

338 F.Supp.3d 520

Affairs John Tahsuda III ("Tahsuda")1 in his official capacity; the Department of Health and Human Services ("HHS") and its Secretary Alex M. Azar II ("Azar") (collectively the "Federal Defendants"). Id. Shortly after this case was filed, the Cherokee Nation, Oneida Nation, Quinalt Indian Nation, and Morengo Band of Mission Indians (collectively, the "Tribal Defendants") filed an unopposed motion to intervene, which the Court granted. See Trib. Defs.' Mot. Intervene, ECF No. 42; Mar. 28, 2018 Order, ECF No. 45.

Plaintiffs seek to declare unconstitutional certain provisions of the ICWA and its accompanying regulations (codified at 25 C.F.R. part 23), known as the Indian Child Welfare Act Proceedings (the "Final Rule"), as well as certain provisions of the Social Security Act (the "SSA") that predicate federal funding for portions of state child-welfare payments on compliance with the ICWA. Plaintiffs argue that the ICWA and the Final Rule implement a system that mandates racial and ethnic preferences, in direct violation of state and federal law. Am. Comp. ¶ 193, ECF No. 35; 42 U.S.C. § 1996(b) ; TEX. FAM. CODE §§ 162.015, 264.1085 ; LA. CONST. art. 1, § 3. Plaintiffs ask that the Final Rule be declared invalid and set aside as a violation of substantive due process and as not in accordance with law (Counts One and Five). Am. Compl. ¶¶ 265, 349, ECF No. 35; 5 U.S.C. § 705(2)(A). Plaintiffs also ask that the ICWA, specifically sections 1901–23 and 1951–52, be declared unconstitutional under Article One and the Tenth Amendment of the United States Constitution because these provisions violate the Commerce Clause, intrude into state domestic relations, and violate the anti-commandeering principle (Counts Two and Three). Am. Compl. ¶¶ 281, 323, ECF No. 35. Finally, Plaintiffs ask that the ICWA sections 1915(a)–(b) be declared unconstitutional in violation of the equal protection guarantee of the Fifth Amendment to the United States Constitution and Individual Plaintiffs alone ask the same sections be declared unconstitutional in violation of substantive due process. (Counts Four and Six). Id. ¶¶ 338, 367. State Plaintiffs alone bring the final count, seeking a declaration that ICWA section 1915(c) and Final Rule section 23.130(b) violate the non-delegation doctrine (Count Seven). Am. Compl. ¶ 376, ECF No. 35.

A. The ICWA and the SSA

Congress passed the ICWA in 1978 in response to rising concerns over "abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." Miss. Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 32, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). "Congress found that ‘an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.’ " Adoptive Couple v. Baby Girl , 570 U.S. 637, 133 S.Ct. 2552, 2557, 186 L.Ed.2d 729 (2013) (quoting 25 U.S.C. § 1901(4) ). Recognizing "that there is no resource that

338 F.Supp.3d 521

is more vital to the continued existence and integrity of Indian tribes than their children," Congress created a framework to govern the adoption of Indian children.2 See 25 U.S.C. § 1901, et seq. This framework establishes: (1) placement preferences in adoptions of Indian children; (2) good cause to depart from those placement preferences; (3) standards and responsibilities for state courts and their agents; and (4) consequences flowing from noncompliance with the statutory requirements. See id.

The ICWA established "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes." 25 U.S.C. § 1902. The ICWA mandates placement preferences in foster care, preadoptive, and adoptive proceedings involving Indian children. Id. § 1915. It requires that "in any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a place with: (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families."Id. § 1915(a). Similar requirements are set for foster care or preadoptive placements. Id. § 1915(b). If the Indian child's tribal court should establish a different order of the preferences than that set by Congress, the state court or agency "shall follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child." Id. § 1915(c).

Absent good cause, the state court shall transfer proceedings concerning an Indian child to the Indian child's tribal court. 25 U.S.C. § 1911(b). In any state court proceeding for the "foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding." Id. § 1911(c). The ICWA prohibits the termination of parental rights for an Indian child in the absence of "evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." Id. § 1912(f).

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