Case: 18-11479 Document: 00515810731 Page: 1 Date Filed: 04/06/2021 United States Court of Appeals for the Fifth Circuit United States Court of Appeals Fifth Circuit FILED April 6, 2021 No. 18-11479 Lyle W. Cayce Clerk Chad Everet Brackeen; Jennifer Kay Brackeen; State of Texas; Altagracia Socorro Hernandez; State of Indiana; Jason Clifford; Frank Nicholas Libretti; State of Louisiana; Heather Lynn Libretti; Danielle Clifford, Plaintiffs—Appellees, versus Deb Haaland, Secretary, United States Department of the Interior; Darryl LaCounte, Acting Assistant Secretary for Indian Affairs; Bureau of Indian Affairs; United States Department of the Interior; United States of America; Xavier Becerra, Secretary, United States Department of Health and Human Services; United States Department of Health and Human Services, Defendants—Appellants, Cherokee Nation; Oneida Nation; Quinault Indian Nation; Morongo Band of Mission Indians, Intervenor Defendants—Appellants. Appeal from the United States District Court for the Northern District of Texas USDC No. 4:17-CV-868 Case: 18-11479 Document: 00515810731 Page: 2 Date Filed: 04/06/2021 No. 18-11479 Before Owen, Chief Judge, and Jones, Smith, Wiener, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Higginson, Costa, Willett, Duncan, Engelhardt, and Oldham, Circuit Judges.* Per Curiam: This en banc matter considers the constitutionality of the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., and the validity of implementing regulations promulgated by the Bureau of Indian Affairs (BIA) in its 2016 Final Rule (Final Rule). Plaintiffs are several couples who seek to adopt or foster Indian children, a woman who wishes for her Indian biological child to be adopted by non-Indians, and the States of Texas, Louisiana, and Indiana. Defendants are the United States, federal agencies and officials charged with administering ICWA and the Final Rule, as well as several Indian tribes that intervened in support of ICWA. The district court granted Plaintiffs summary judgment in part, declaring that ICWA and the Final Rule contravene multiple constitutional provisions and the Administrative Procedure Act (APA). Defendants appealed. A panel of this court reversed and rendered judgment for the Defendants. See Brackeen v. Bernhardt, 937 F.3d 406, 414 (5th Cir. 2019). One panel member partially dissented, concluding that several provisions of ICWA violated the Tenth Amendment’s anticommandeering doctrine. See id. at 441–46 (Owen, J., concurring in part and dissenting in part). This case was then reconsidered en banc. Neither Judge Dennis’s nor Judge Duncan’s principal opinion nor any of the other writings in this complex case garnered an en banc majority on all issues. We therefore provide the following issue-by-issue summary of the en banc court’s holdings, which does not override or amend the en banc opinions themselves. * Judge Ho was recused and did not participate. Judge Wilson joined the court after the case was submitted and did not participate. 2 Case: 18-11479 Document: 00515810731 Page: 3 Date Filed: 04/06/2021 No. 18-11479 First is the issue of standing. The en banc court unanimously holds that at least one Plaintiff has standing to challenge Congress’s authority under Article I of the Constitution to enact ICWA and to press anticommandeering and nondelegation challenges to specific …
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