Brackeen et al v. Zinke et al

Filing 1

COMPLAINT against All Defendants filed by Chad Everet Brackeen, Jennifer Kay Brackeen, State of Texas. (Filing fee $400; Receipt number 0539-8762985) Plaintiff will submit summons(es) for issuance. In each Notice of Electronic Filing, the judge assignment is indicated, and a link to the Judges Copy Requirements is provided. The court reminds the filer that any required copy of this and future documents must be delivered to the judge, in the manner prescribed, within three business days of filing. Unless exempted, attorneys who are not admitted to practice in the Northern District of Texas must seek admission promptly. Forms, instructions, and exemption information may be found at www.txnd.uscourts.gov, or by clicking here: Attorney Information - Bar Membership. If admission requirements are not satisfied within 21 days, the clerk will notify the presiding judge. (Attachments: # 1 Exhibit 1, # 2 Exhibit 2, # 3 Cover Sheet) (Ricketts, Rebekah)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
_____________________________________

)
)
)
)
and
)
)
TEXAS,
)
)
)
Plaintiffs,
)
)
v.
)
RYAN ZINKE, in his official capacity as Sec- )
)
retary of the United States Department of the
Interior; BRYAN RICE, in his official capac- )
ity as Director of the Bureau of Indian Affairs; )
)
MICHAEL BLACK, in his official capacity
)
as Acting Assistant Secretary for Indian Af)
fairs; the BUREAU OF INDIAN AFFAIRS;
)
and the UNITED STATES DEPARTMENT
)
OF THE INTERIOR,
)
)
Defendants.
_____________________________________ )
CHAD EVERET BRACKEEN and
JENNIFER KAY BRACKEEN

Case No. 4:17-cv-00868

COMPLAINT AND PRAYER FOR
DECLARATORY AND INJUNCTIVE RELIEF
1.

Chad and Jennifer Brackeen want to adopt A.L.M., a two-year-old boy, and provide

him with a loving, safe, and permanent home. The Brackeens have fostered A.L.M. since he was
ten months old, and A.L.M.’s biological parents and grandmother support the adoption. The only
thing standing in the way of the Brackeens’ loving embrace is the federal government.
2.

A Texas family court, applying federal law, refused the Brackeens’ adoption peti-

tion, and ordered A.L.M. removed from the only real home he has known with the Brackeens to

live with a couple he does not know, in a state he has never even visited. The sole justification for
this result is that A.L.M. is labeled an “Indian child” under federal law.
3.

In 1978, Congress decided that the federal government, and, in particular, the De-

partment of the Interior’s Bureau of Indian Affairs (“BIA”), knew best how to manage the fostering
and adoption of Native American children. Though the Constitution reserves domestic relations to
the States, and despite the fact that Congress possesses no enumerated power to legislate in this
way, Congress enacted the Indian Child Welfare Act (“ICWA”), 25 U.S.C. §§ 1901–1963. ICWA,
and the enabling regulations promulgated by the BIA, invade every aspect of state family law as
applied to Indian children. ICWA commandeers state agencies and courts to become investigative
and executive actors carrying out federal policy, and to make child-custody decisions based on
racial preferences.
4.

By enforcing this racially discriminatory policy, the federal government places In-

dian children at risk for serious and lasting harm. And States that refuse to follow ICWA risk
having their child-custody decisions invalidated and federal child welfare funding pulled. Thus,
Congress forces ICWA on the States by threatening the stability and well-being of the family lives
of their youngest and most vulnerable citizens.
5.

This is an action under the Administrative Procedure Act (“APA”), 5 U.S.C.

§§ 551–706, and the United States Constitution, brought to challenge the validity of a final rule
entitled Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778 (June 14, 2016) (the “Final
Rule”) (codified at 25 C.F.R. pt. 23), and certain provisions of ICWA that the Final Rule purports
to interpret and implement.
6.

Plaintiffs Chad and Jennifer Brackeen bring this action because the Final Rule and

ICWA were applied by a Texas family court to deny them the ability to adopt A.L.M., and, as a

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result, the Texas Department of Family Protective Services (“Texas DFPS”), also applying the
Final Rule, seeks to remove A.L.M. from the Brackeens’ home and place him with an unknown
Indian family in New Mexico. The Brackeens’ petition to adopt A.L.M. was denied solely because
the family court concluded that ICWA and the Final Rule applied to the Brackeens’ petition and
that the Brackeens had failed to satisfy, by the Final Rule’s clear and convincing burden of proof,
that “good cause” exists to depart from the Final Rule’s and ICWA’s “placement preferences.” See
23 C.F.R. § 23.132; see also Order Denying Request for Adoption of Child, In re A.L.M., a Child,
No. 323-105593-17 (323rd Dist. Ct., Tarrant Cty., Texas Aug. 22, 2017).
7.

ICWA’s placement preferences require that, “in any adoptive placement of an In-

dian child under State law, a preference shall be given in absence of good cause to the contrary to
a placement with (1) a member of the child’s extended family; (2) other members of the Indian
child’s tribe; or (3) other Indian families.” 25 U.S.C. § 1915(a); see also 25 C.F.R. § 23.130.
8.

By all other legal standards and metrics, the Brackeens were an appropriate adop-

tive family for A.L.M. But because the family court found A.L.M. to be an “Indian child,” and the
Brackeens not to be an “Indian family,” the Brackeens were required to establish “good cause” to
depart from ICWA’s placement preferences in accordance with the Final Rule’s new standard of
proof for “good cause.” The Brackeens, in other words, were put to the burden of establishing
“good cause” because they were a race different from A.L.M.
9.

The decision of the Texas family court to deny the Brackeens’ petition for adoption

is now on appeal, and the family court has entered an order staying any change in A.L.M.’s placement pending that appeal. If either the Final Rule or the pertinent provisions of ICWA are invalidated, the decision of the family court relying on the Final Rule and ICWA would be reversed (or
at least vacated), the threat of A.L.M. imminently being removed from the Brackeens would be

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abated, and the Brackeens would be able to adopt A.L.M. The Brackeens, however, cannot challenge the legality of the Final Rule under the APA in the family court proceedings because such
an action must be brought in a “court of the United States.” 5 U.S.C. § 702.
10.

Plaintiff Texas brings this action because ICWA and the Final Rule intrude upon

its sovereign authority over domestic relations in every child-custody proceeding, because ICWA
demands that Texas DFPS and Texas courts inquire about Indian children in every foster care,
preadoptive, or adoption proceeding.
11.

Plaintiffs thus bring this action for declaratory and injunctive relief and pray that

this court: (1) vacate and set aside the Final Rule; (2) declare that Sections 1901–1923 and 1951–
1952 of ICWA violate the Constitution; (3) declare that Section 1915 of ICWA violates the Constitution; (4) enjoin the defendants from implementing or administering Sections 1901–1923 and
1951–1952 of ICWA; and (5) enjoin the defendants from implementing or administering Section
1915 of ICWA.
PARTIES
12.

Plaintiffs Chad Everet Brackeen and Jennifer Kay Brackeen are foster parents to

the two-year-old child A.L.M., who has lived with them since June 2016. They also are raising
two biological children in their home, aged eight and six. Neither Mr. Brackeen nor Mrs. Brackeen
is “a member of an Indian tribe,” 25 U.S.C. § 1903(3), and therefore the Brackeens are not an
“Indian family” within the meaning of ICWA and the Final Rule.
13.

Plaintiff Texas possesses sovereign authority over family law issues within its bor-

ders. Texas DFPS is the agency responsible for child-custody proceedings and ensuring compliance with ICWA and the Final Rule. Texas courts possess jurisdiction over child custody proceedings arising under the Texas Family Code. When Texas DFPS encounters an Indian child in a child
custody proceeding, almost every aspect of the matter is affected. The legal burden of proof for
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removal is higher, as is the legal burden of proof for obtaining any final order terminating parental
rights or restricting a parent’s custody. Texas DFPS must serve specific notices regarding ICWA
rights on various entities and individuals. ICWA requires the Texas DFPS caseworker to make
active efforts to reunify the child and family. Texas state courts and Texas DFPS must place the
child according to ICWA’s racial preferences. And expert testimony on tribal child and family
practices may be necessary, at a cost to Texas, to adjudicate ICWA cases. These are just some of
the burdens ICWA imposes on Texas.
14.

Texas is the guardian of the health, welfare, safety, and property of its citizens.

Alfred L. Snapp & Son, Inc. v. Puerto Rico, 458 U.S. 592 (1982). Texas represents the interests of
the many children within its custody and care, whether in foster care, preadoption, or adoption
services. Farmers Grp., Inc. v. Lubin, 222 S.W.3d 417, 423 (Tex. 2007). Texas also represents the
interest of its resident parents who are thinking about fostering and/or adopting a child, and who
are currently fostering or in the process of adopting a child, and who are directly and substantially
injured by the application of ICWA and the Final Rule’s discriminatory mandates. Texas cannot
remedy these injuries through its sovereign lawmaking powers because Defendants mandate compliance with ICWA.
15.

Defendant Ryan Zinke is the Secretary of the United States Department of the In-

terior. He is sued in his official capacity.
16.

Defendant Bryan Rice is the Director of the Bureau of Indian Affairs within the

United States Department of the Interior. He is sued in his official capacity.
17.

Defendant Michael Black is the Acting Assistant Secretary for Indian Affairs at the

Bureau of Indian Affairs within the United States Department of the Interior. He is sued in his
official capacity.

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18.

Defendant Bureau of Indian Affairs (“BIA”) is a federal agency within the Depart-

ment of the Interior.
19.

Defendant United States Department of the Interior (the “Department”) is a federal

executive department of the United States.
JURISDICTION AND VENUE
20.

This action arises under the APA and the United States Constitution. This Court

has subject-matter jurisdiction over this action under 28 U.S.C. § 1331 (federal question) and 5
U.S.C. §§ 701–706 (review of agency action). This Court has authority to award the requested
declaratory and injunctive relief, 28 U.S.C. §§ 2201–02, and costs and attorneys’ fees, 28 U.S.C.
§ 2412.
21.

Venue is proper in this Court under 28 U.S.C. § 1391(e)(l) as this is an action

against officers and agencies of the United States, a substantial part of the events giving rise to this
claim occurred in this district, and no real property is involved in the action.
ALLEGATIONS
I.

THE STATUTORY AND REGULATORY FRAMEWORK
A.

State Power Over Domestic Relations

22.

With few exceptions, regulation of domestic relations is an area of law over which

the States possess exclusive power. Sosna v. Iowa, 419 U.S. 393, 404 (1975). “The whole subject
of the domestic relations of husband and wife, parent and child, belongs to the laws of the states,
and not to the laws of the United States.” Ex parte Burrus, 136 U.S. 586, 593–94 (1890).
23.

The power of States over domestic relations is so well-settled that federal courts

lack Article III jurisdiction over domestic relations issues, and child custody disputes in particular.
Burrus, 136 U.S. at 594.

6

24.

All States regulate domestic relations, including marriage, divorce, adoption, and

the rights and responsibilities of parents and children.
25.

For example, Texas regulates the domestic relations of individuals domiciled

within its borders. Title 1 of the Texas Family Code regulates the formation and dissolution of
marriage and marital property rights. Tex. Fam. Code §§ 1.101–9.302. Title 1-a regulates the collaborative family law process. Id. §§ 15.001–15.116. Title 2 regulates the status of children in
relation to their parents. Id. §§ 31.001–47.003. Title 3 protects the public and ensures public safety
through a juvenile justice code. Id. §§ 51.01–61.107. Title 3a regulates truant conduct of children.
Id. §§ 65.001–65.259. Title 4 protects Texas families from domestic violence. Id. §§ 71.001–
93.004. And Title 5 regulates the parent-child relationship, including termination of parental rights,
foster care, and adoption. Id. §§ 101.001–266.013.
26.

Texas places the “best interest of the child” as the “primary consideration” for

courts when determining parentage, possession, and access to the child. Tex. Fam. Code
§ 153.002; see also id. § 161.001(b)(2). Texas’s “fundamental interest in parental-rights termination cases is to protect the best interest of the child.” In re M.S., 115 S.W.3d 534, 548 (Tex. 2003)
(citations omitted).
27.

In Texas, the best interest of the child standard “is aligned with another of the

child’s interests—an interest in a final decision on termination so that adoption to a stable home
or return to the parents is not unduly prolonged.” In re M.S., 115 S.W.3d at 548 (citations omitted).
“Indeed, the U.S. Supreme Court has recognized that prolonged termination proceedings can have
psychological effects on a child of such magnitude that time is of the essence.” Id. (quoting In re
J.F.C., 96 S.W.3d 256, 304 (Tex. 2002) (Schneider, J., dissenting) (quoting Lehman v. Lycoming

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Cty. Children’s Servs. Agency, 458 U.S. 502, 513–14 (1982))). Thus, the Texas Family Code protects children by requiring prompt action on the part of trial and appellate courts when confronting
cases that involve the parent-child relationship. Tex. Fam. Code §§ 105.004, 109.002(a-1),
161.002, 162.005.
28.

ICWA and the Final Rule alter the application of Texas family law to Indian chil-

dren and impose significant delays on permanency for those children.
B.

The Indian Child Welfare Act

29.

In the mid-1970s, there was rising concern 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 (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, 133 S. Ct.
2552, 2557 (2013) (quoting 25 U.S.C. § 1901(4)). “This wholesale removal of Indian children
from their homes prompted Congress” to enact ICWA, 25 U.S.C. §§ 1901–1963. Id.
30.

ICWA establishes “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. An “Indian child” is defined as “any unmarried person who is under age eighteen and is
either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.” Id. § 1903(4).
31.

ICWA mandates placement preferences in foster care, preadoptive, and adoptive

proceedings involving Indian children. 25 U.S.C. § 1915.
32.

“In any adoptive placement under State law,” ICWA mandates that, “in the absence

of good cause to the contrary,” “preference shall be given . . . to a placement with (1) a member of
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the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families.” 25 U.S.C. § 1915(a).
33.

ICWA similarly requires that “in any foster care or preadoptive placement prefer-

ence shall be given, in the absence of good cause to the contrary, to placement with – (i) a member
of the child’s extended family; (ii) a foster home . . . specified by the Indian child’s tribe; (iii) an
Indian foster home . . . approved by an authorized non-Indian licensing authority; or (iv) an institution for children approved by an Indian tribe or operated by an Indian tribe.” 25 U.S.C. § 1915(b).
34.

ICWA requires state agencies and courts to defer to the alteration of the preferences

established by Section 1915(a)–(b), if the Indian child’s tribe establishes a different order of preference by resolution. 25 U.S.C. § 1915(c).
35.

ICWA places an affirmative duty on state agencies and courts to notify potential

intervenors and the federal government about an Indian child matter. 25 U.S.C. § 1912.
36.

In any involuntary child-custody proceeding, ICWA commands state agencies and

courts, when seeking foster care placement of, or termination of parental rights to, an Indian child,
to notify the parents or Indian custodian and the Indian child’s tribe of the pending proceedings
and of their right to intervention under 25 U.S.C. § 1911(c). 25 U.S.C. § 1912(a); 25 C.F.R.
§ 23.11. Copies of these notices must be sent to the Secretary and the BIA. 25 C.F.R. § 23.11. No
foster care placement or termination of parental rights proceeding may be held until at least ten
days after receipt of the notice by the parent or Indian custodian and tribe or the Secretary. 25
U.S.C. § 1912(a). ICWA grants the Indian custodian or tribe up to twenty additional days to prepare for such proceedings. Id.
37.

ICWA demands that state agencies and courts undertake additional duties and costs

to implement its federal program.

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38.

ICWA requires state agencies charged with serving children in foster care and

adoption proceedings to use “active efforts” to prevent the breakup of the family. “Any party [including state agencies] seeking to effect a foster care placement of, or termination of parental rights
to, an Indian child under State law shall satisfy the court that active efforts have been made to
provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proven unsuccessful.” 25 U.S.C. § 1912(d).
39.

ICWA requires state courts to apply federal substantive rules of decision and fed-

eral procedural requirements in state law causes of action that result in state-law judgments.
40.

ICWA requires foster care placement and termination of parental rights proceed-

ings, in the absence of good cause to the contrary, to be transferred to tribal courts for an Indian
child, even if he or she is not domiciled or residing on the reservation. 25 U.S.C. § 1911(b).
41.

ICWA commands state courts to grant mandatory intervention to an Indian custo-

dian and the child’s tribe at any point in the proceedings. 25 U.S.C. § 1911(c).
42.

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.” 25 U.S.C. § 1912(f). The BIA is not required to pay for
the services of expert witnesses. 25 C.F.R. § 23.81.
43.

ICWA dictates when a parent or Indian custodian may consent to a foster care

placement or termination of parental rights, “[a]ny consent given prior to, or within ten days after,
birth of the Indian child shall not be valid.” 25 U.S.C. § 1913(a). “Any parent or Indian custodian
may withdraw consent to a foster care placement under State law at any time and, upon such withdrawal, the child shall be returned to the parent or Indian custodian.” Id. § 1913(b). And “[i]n any

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voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian
child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of
a final decree of termination or adoption, as the case may be, and the child shall be returned to the
parent.” Id. § 1913(c).
44.

ICWA permits the parent of an Indian child to withdraw consent to a final decree

of adoption on the grounds that the consent was obtained through fraud or duress, and upon finding
fraud or duress, a state court must vacate the final decree and return the child to the parent. The
parent may withdraw consent based on fraud or duress for up to two years after the final judgment
of adoption. 25 U.S.C. § 1913(d).
45.

ICWA places record-keeping duties on state agencies and courts.

46.

State agencies and courts must maintain records demonstrating their compliance

with the statute. “A record of each such placement, under State law, of an Indian child shall be
maintained by the State in which the placement was made, evidencing the efforts to comply with
the order of preference specified in this section. Such record shall be made available at any time
upon the request of the Secretary or the Indian child’s tribe.” 25 U.S.C. § 1915(e).
47.

State courts must maintain records and report to the Indian child his or her tribal

affiliation once that child reaches age eighteen. “Upon application by an Indian individual who
has reached the age of eighteen and who was the subject of an adoptive placement, the court which
entered the final decree shall inform such individual of the tribal affiliation, if any, of the individual’s biological parents and provide such other information as may be necessary to protect any
rights flowing from the individual’s tribal relationship.” 25 U.S.C. § 1917.
48.

State courts entering final decrees or orders in an Indian child adoption case must

provide the Secretary with a copy of the decree or order, along with the name and tribal affiliation

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of the child, names of the biological parents, names of the adoptive parents, and the identity of any
agency having files or information relating to the adoption. 25 U.S.C. § 1951.
49.

Failure to comply with ICWA may result in final child-custody orders or place-

ments to be overturned on appeal or by another court of competent jurisdiction. 25 U.S.C. § 1914.
50.

ICWA ensures state agencies and courts comply with its mandates by enabling any

Indian child who is the subject of any action for foster care placement or termination of parental
rights under State law, any parent or Indian custodian from whose custody the child was removed,
and the Indian child’s tribe to petition any court of competent jurisdiction to invalidate a state
court’s decision for failure to comply with ICWA sections 1911, 1912, and 1913. 25 U.S.C.
§ 1914.
51.

Congress further coerces ICWA compliance by requiring states who receive child

welfare services program funding through Title IV-B of the Social Security Act to file annual
reports detailing their compliance with ICWA. According to Title IV-B:
(a) In order to be eligible for payment under this subpart, a State must have a plan
for child welfare services which has been developed jointly by the Secretary and
the State agency designated pursuant to subsection (b)(1), and which meets the requirements of subsection (b).
(b) Each plan for child welfare services under this subpart shall— . . . (9) contain a
description, developed after consultation with tribal organizations (as defined in
section 4 of the Indian Self-Determination and Education Assistance Act) in the
State, of the specific measures taken by the State to comply with the Indian Child
Welfare Act.
42 U.S.C. § 622.
C.

The 1979 BIA Guidelines

52.

Soon after ICWA’s enactment, the BIA promulgated “Guidelines for State Courts;

Indian Child Custody Proceedings” (the “1979 Guidelines”) that were intended to assist the implementation of ICWA, but were “not intended to have binding legislative effect.” 44 Fed. Reg.

12

67,584, 67,584 (Nov. 26, 1979). The 1979 Guidelines recognized that “[p]rimary responsibility”
for interpreting ICWA “rests with the courts that decide Indian child custody cases.” Id. The 1979
Guidelines emphasized that “the legislative history of the Act states explicitly that the use of the
term ‘good cause’ was designed to provide state courts with flexibility in determining the disposition of a placement proceeding involving an Indian child.” Id.
53.

As state courts applied ICWA in the ensuing decades, most held that the “good

cause” exception to ICWA’s placement preferences requires a consideration of the child’s best
interests, including any bond or attachment the child had formed with her current caregivers. See,
e.g., In re Interest of Bird Head, 331 N.W.2d 785, 791 (Neb. 1983); In re Appeal in Maricopa Cty.
Juvenile Action No. A-25525, 667 P.2d 228, 234 (Ariz. Ct. App. 1983); In re Adoption of T.R.M.,
525 N.E.2d 298, 307–08 (Ind. 1988); In re Adoption of M., 832 P.2d 518, 522 (Wash. Ct. App.
1992); In re Adoption of F.H., 851 P.2d 1361,1363–64 (Alaska 1993); In re Interest of A.E., J.E.,
S.E., and X.E., 572 N.W.2d 579, 583–85 (Iowa 1997); People ex rel. A.N.W., 976 P.2d 365, 369
(Colo. Ct. App. 1999); In re Interest of C.G.L., 63 S.W.3d 693, 697–98 (Mo. Ct. App. 2002); In
re Adoption of Baby Girl B., 67 P.3d 359, 370–71 (Okla. Ct. App. 2003); but see Yavapai–Apache
Tribe v. Mejia, 906 S.W.2d 152 (Tex. App.—Houston [14th Dist.] Aug. 24, 1995, no pet.).
54.

Other state courts, developing and applying the “existing Indian family doctrine,”

limited ICWA’s application to circumstances where the child had some significant political or
cultural connection to the tribe. See, e.g., In re Interest of S.A.M, 703 S.W.2d 603, 608–09 (Mo.
Ct. App. 1986); Claymore v. Serr, 405 N.W.2d 650, 653-54 (S.D. 1987); In re Adoption of T.R.M.,
525 N.E.2d 298, 303 (Ind. 1988); Hampton v. J.A.L., 658 So. 2d 331, 335 (La. Ct. App. 1995);
Rye v. Weasel, 934 S.W.2d 257, 261–64 (Ky. 1996); In re Santos Y., 112 Cal. Rptr. 2d 692, 716
n.16 (Cal. App. 2001); In re Morgan, No. 02A01-9608-CH-00206, 1997 WL 716880, at *1 (Tenn.

13

Ct. App. Nov. 19, 1997); Ex parte C.L.J., 946 So. 2d 880 (Ala. Civ. App. 2006); In re N.J., 221
P.3d 1255, 1264–65 (Nev. 2009). The existing Indian family doctrine is premised, in part, on the
significant equal protection concerns that would arise if ICWA applied to children with no political
or cultural connection to a tribe based solely on the child’s ancestry. See In re Bridget R., 49 Cal.
Rpt. 2d 507, 527–29 (Cal. App. 1996); cf. Adoptive Couple, 133 S. Ct. at 2565 (noting that interpreting ICWA’s parental termination provisions as applicable in any case where a child has an
Indian ancestor, “even a remote one, . . . would raise equal protection concerns”).
D.

The Final Rule

55.

In June 2016, almost four decades after ICWA’s passage, the BIA promulgated

Indian Child Welfare Act Proceedings, 81 Fed. Reg. 38,778 (June 14, 2016) (the “Final Rule”)
(codified at 25 C.F.R. pt. 23). The Final Rule purports to “clarify the minimum Federal standards
governing implementation of the Indian Child Welfare Act” and to ensure that the Act “is applied
in all States consistent with the Act’s express language.” 25 C.F.R. § 23.101.
56.

The Department characterizes the Final Rule as a “legislative rule” that “set[s] bind-

ing standards for Indian child-custody proceedings in State courts” and is “entitled to Chevron
deference.” 81 Fed. Reg. at 38,782, 38,786, 38,788.
57.

The Final Rule provides the “minimum Federal standards governing implementa-

tion” of ICWA, 25 C.F.R. § 23.101, and “to ensure compliance with ICWA,” id. § 23.106(a).
58.

The Final Rule requires state agencies and courts to conduct Executive Branch in-

vestigations and duties.
59.

The Final Rule requires “State courts [to] ask each participant in an emergency or

voluntary or involuntary child-custody proceeding whether the participant knows or has reason to
know that the child is an Indian child.” 25 C.F.R. § 23.107(a). These inquiries “should be on the

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record,” and “State courts must instruct the parties to inform the court if they subsequently receive
information that provides reason to know the child is an Indian child.” Id.
60.

When the state agency or court believes the child is an Indian child, the court must

confirm, through “a report, declaration, or testimony included in the record,” that the state agency
or other party used due diligence to identify and work with all of the tribes of which there is reason
to know the child may be a member (or eligible for membership). 25 C.F.R. § 23.107(b). The Final
Rule specifies that the state court must confirm that the state agency conducted a “diligent search
. . . to find suitable placements meeting the preference criteria.” Id. § 23.132(c)(5).
61.

The Final Rule dictates to state agencies and courts when and how notice of an

involuntary foster care placement or termination of parental rights proceeding involving an Indian
child must be provided to an Indian tribe, the child’s parents, and the child’s Indian custodian. 25
C.F.R. § 23.111. The Final Rule prohibits the continuation of foster care placement or termination
of parental rights proceedings in state courts until at least 10 days after receipt of the notice by the
parent or Indian custodian and by the tribe or Secretary of the Interior. 25 C.F.R. § 23.112. Upon
request, the state court must grant the parent, Indian custodian, or tribe up to 20 additional days
from the date upon which notice was received to prepare for the hearing. Id.
62.

The Final Rule prescribes how a state court may proceed with an emergency re-

moval or placement of an Indian child, including when to hold a hearing, how to notify the Indian
child’s custodians, how to make a court record of the proceedings, what evidence must be provided
to the court, and when to end the proceeding. 25 C.F.R. § 23.113.
63.

In an involuntary foster care or termination of parental rights proceeding, the Final

Rule requires state courts to ensure and document that the state agency has used “active efforts”
to prevent the breakup of the Indian family. 25 C.F.R. § 23.120.

15

64.

The Final Rule defines “active efforts” to include “assisting the parent or parents

or Indian custodian through the steps of a case plan and with accessing or developing the resources
necessary to satisfy the case plan.” 25 C.F.R. § 23.2. “To the maximum extent possible, active
efforts should be provided in a manner consistent with the prevailing social and cultural conditions
and way of life of the Indian child’s Tribe and should be conducted in partnership with the Indian
child and the Indian child’s parents, extended family members, Indian custodians, and Tribe.” Id.
65.

State agencies must tailor active efforts to the facts and circumstances of the case,

which may include, for example:
(1) Conducting a comprehensive assessment of the circumstances of the Indian
child’s family, with a focus on safe reunification as the most desirable goal;
(2) Identifying appropriate services and helping the parents to overcome barriers,
including actively assisting the parents in obtaining such services;
(3) Identifying, notifying, and inviting representatives of the Indian child’s Tribe to
participate in providing support and services to the Indian child’s family and in
family team meetings, permanency planning, and resolution of placement issues;
(4) Conducting or causing to be conducted a diligent search for the Indian child’s
extended family members, and contacting and consulting with extended family
members to provide family structure and support for the Indian child and the Indian
child’s parents;
(5) Offering and employing all available and culturally appropriate family preservation strategies and facilitating the use of remedial and rehabilitative services provided by the child’s Tribe;
(6) Taking steps to keep siblings together whenever possible;
(7) Supporting regular visits with parents or Indian custodians in the most natural
setting possible as well as trial home visits of the Indian child during any period of
removal, consistent with the need to ensure the health, safety, and welfare of the
child;
(8) Identifying community resources including housing, financial, transportation,
mental health, substance abuse, and peer support services and actively assisting the
Indian child’s parents or, when appropriate, the child’s family, in utilizing and accessing those resources;
(9) Monitoring progress and participation in services;
16

(10) Considering alternative ways to address the needs of the Indian child’s parents
and, where appropriate, the family, if the optimum services do not exist or are not
available;
(11) Providing post-reunification services and monitoring.
25 C.F.R. § 23.2.
66.

The Final Rule requires state courts to apply federal substantive rules of decision

and federal procedural requirements in state law causes of action that result in state-law judgments.
67.

Only the Indian tribe of which it is believed the child is a member (or eligible for

membership) may determine whether the child is a member of the tribe or eligible for membership.
25 C.F.R. § 23.108(a). “The State court may not substitute its own determination regarding a
child’s membership in a Tribe, a child’s eligibility for membership in a Tribe, or a parent’s membership in a Tribe.” Id. § 23.108(b).
68.

When an Indian child is a member or eligible for membership in only one tribe, that

tribe must be designated as the Indian child’s tribe. But when the child meets the definition of
“Indian child” for more than one tribe, then the Final Rule instructs state agencies and courts to
defer to “the Tribe in which the Indian child is already a member, unless otherwise agreed to by
the Tribes,” or allow “the Tribes to determine which should be designated as the Indian child’s
Tribe.” Id. § 23.109(b)–(c). Only when the tribes disagree about the child’s membership may the
state courts designate the tribe to which the child belongs, and the Final Rule provides criteria the
courts must use in making that designation. Id. § 23.109(c)(2).
69.

The Final Rule instructs state courts that they must dismiss a voluntary or involun-

tary child-custody proceeding when the Indian child’s residence or domicile is on a reservation
where the tribe exercises exclusive jurisdiction over child-custody proceedings. 25 C.F.R.
§ 23.110(a).

17

70.

The Final Rule requires state courts to terminate child-custody proceedings if any

party or the court has reason to believe that the Indian child was improperly removed from the
custody of his parent or Indian custodian. 25 C.F.R. § 23.114.
71.

The Final Rule instructs state agencies and courts on how to transfer proceedings

to tribal courts. The parent, Indian custodian, or the Indian child’s tribe may request transfer at any
time, orally or in writing. 25 C.F.R. § 23.115. The Final Rule then requires the state court to
promptly notify the tribal court in writing of the transfer petition, and it must transfer the proceeding, unless either parent objects, the tribal court declines the transfer, or good cause exists for
denying the transfer. 25 C.F.R. § 23.116–117. The Final Rule establishes when good cause exists
to deny the transfer. 25 C.F.R. § 23.118. If the tribal court accepts the transfer, the Final Rule
instructs that the state court should expeditiously provide the tribal court with all records related
to the proceeding. 25 C.F.R. § 23.119.
72.

The Final Rule prohibits state courts from ordering a foster-care placement of an

Indian child unless clear and convincing evidence is presented, including expert testimony, demonstrating that the child is in serious emotional or physical danger in the parent’s or Indian custodian’s custody. 25 C.F.R. § 23.121(a).
73.

The Final Rule prohibits state courts from terminating parental rights for an Indian

child unless evidence beyond a reasonable doubt is presented, including expert testimony, that the
child is in serious emotional or physical danger. 25 C.F.R. § 23.121(b). The evidence must demonstrate a causal relationship between the conditions in the home and the likelihood of danger to the
child. 25 C.F.R. § 23.121(c)–(d). The Final Rule prohibits the state agency caseworker from serving as an expert witness, and dictates that the Indian child’s tribe will designate the expert witness.
25 C.F.R. § 23.122.

18

74.

In voluntary child-custody proceedings, the Final Rule mandates that state courts

require the participants to state on the record whether the child is an Indian child, or whether they
have reason to believe the child is an Indian child. 25 C.F.R. § 23.124(a). “If there is reason to
believe the child is an Indian child, the State court must ensure that the party seeking placement
has taken all reasonable steps to verify the child’s status,” including “contacting the Tribe of which
it is believed the child is a member (or eligible for membership and of which the biological parent
is a member) to verify the child’s status.” Id. § 23.124(b).
75.

The Final Rule describes what evidence a state court may consider when evaluating

the voluntary consent for termination of parental rights, foster care, preadoptive, and adoptive
placement by a parent or Indian custodian. 25 C.F.R. § 23.125. For foster care placement, consent
may be withdrawn at any time. 25 C.F.R. § 23.125(b)(2)(i). For termination of parental rights and
adoption, consent may be withdraw any time prior to the final decree of termination or adoption.
25 C.F.R. § 23.125(b)(2)(ii)–(iii). Consent given prior to, or within 10 days after, the birth of an
Indian child is not valid. 25 C.F.R. § 23.125(e). The Final Rule also dictates what information
written consent must contain, 25 C.F.R. § 23.126, and how a parent or custodian may withdraw
consent, 25 C.F.R. § 23.127–28.
76.

The Final Rule requires state agencies and courts to follow placement preferences

based on the child’s Indian parentage.
77.

In adoptive placements “preference must be given in descending order . . . to place-

ment of the child with: (1) A member of the Indian child’s extended family; (2) Other members of
the Indian child’s Tribe; or (3) Other Indian families.” 25 C.F.R. § 23.130(a).
78.

“If the Indian child’s Tribe has established by resolution a different order of pref-

erence than that specified in ICWA, the Tribe’s placement preferences apply.” Id. § 23.130(b).

19

79.

In other words, in adoptive placement proceedings, the tribe designated as the In-

dian child’s tribe may enact a resolution that prefers placement with another Indian family of another tribe, even if the Indian child has extended family with which he or she may be placed.
80.

In foster care or preadoptive placement proceedings, “preference must be given . . .

to placement of the child with: (1) A member of the Indian child’s extended family; (2) A foster
home that is licensed, approved, or specified by the Indian child’s Tribe; (3) An Indian foster home
licensed or approved by an authorized non-Indian licensing authority; or (4) An institution for
children approved by an Indian Tribe or operated by an Indian organization which has a program
suitable to meet the child’s needs.” 25 C.F.R. § 23.131(b).
81.

“If the Indian child’s Tribe has established by resolution a different order of pref-

erence than that specified in ICWA, the Tribe’s placement preferences apply, so long as the placement is the least-restrictive setting appropriate to the particular needs of the Indian child . . . .” Id.
§ 23.131(c).
82.

In other words, in foster care and preadoptive placement proceedings, the tribe des-

ignated as the Indian child’s tribe may enact a resolution that prefers placement with an institution
for children approved by another Indian organization, even if the Indian child has extended family
with which he or she may be placed.
83.

A state court may depart from the placement preferences contained in sections

23.130–131 of the Final Rule if there is “good cause.” 25 C.F.R. § 23.132. The Final Rule prescribes circumstances in which the “good cause” standard is met. Id.
84.

After observing that “State courts . . . differ as to what constitutes ‘good cause’ for

departing from ICWA’s placement preferences,” 81 Fed. Reg. at 38,782, the Final Rule newly
mandates that “[t]he party urging that the ICWA preferences not be followed bears the burden of

20

proving by clear and convincing evidence the existence of good cause” to deviate from such a
placement. 81 Fed. Reg. at 38,838 (emphasis added); see also 25 C.F.R. § 23.132(b). Though the
Final Rule says that its regulations “do not categorically require” that state courts apply a clearand-convincing standard of proof—the regulation itself says that a party seeking departure from
the placement preferences “should bear the burden of proving by clear and convincing evidence
that there is good cause,” 25 C.F.R. § 23.132(b)—the Final Rule simultaneously says the clearand-convincing standard “should be followed.” 81 Fed. Reg. at 38,843.
85.

The Final Rule also expressly repudiates the Existing Indian Family doctrine. See

81 Fed. Reg. at 38,802 (“[T]here is no [Existing Indian Family] exception to the application of
ICWA.”). Accordingly, the Final Rule provides that state courts “may not consider factors such as
the participation of the parents or Indian child in Tribal cultural, social, religious, or political activities, the relationship between the Indian child and his or her parents, whether the parent ever
had custody of the child, or the Indian child’s blood quantum.” 81 Fed. Reg. at 38,868 (codified at
25 C.F.R. § 23.103(c)).
86.

And contrary to the idea—previously embraced by the BIA—that “the use of the

term ‘good cause’ was designed to provide state courts with flexibility in determining the disposition of a placement proceeding involving an Indian child,” 44 Fed. Reg. 67,584, 67,584 (Nov. 26,
1979), the Final Rule now claims that “Congress intended the good cause exception to be narrow
and limited in scope,” 81 Fed. Reg. at 38,839. Accordingly, the Final Rule sets forth “five factors
upon which courts may base a determination of good cause to deviate from the placement preferences,” and further “makes clear that a court may not depart from the preferences based on the
socioeconomic status of any placement relative to another placement or based on the ordinary

21

bonding or attachment that results from time spent in a non-preferred placement that was made in
violation of ICWA.” 81 Fed. Reg. at 38,839; see also 25 C.F.R. § 23.132(c)–(e).
87.

The BIA threatens enforcement of the Final Rule through the invalidation of child-

custody proceedings involving Indian children that do not follow ICWA or the Final Rule’s requirements.
88.

The Final Rule requires state courts to vacate adoption decrees, up to two years

after their issuance, if the parents of the Indian child file a petition to vacate the order. 25 C.F.R.
§ 23.136. By contrast, in Texas, “the validity of an adoption order is not subject to attack after six
months after the date the order was signed.” Tex. Fam. Code § 162.012.
89.

If an Indian child has been adopted, the state court must notify the child’s biological

parent or prior Indian custodian and the child’s tribe whenever the final adoption decree has been
vacated or set aside or the adoptive parent has voluntarily consented to the termination of parental
rights. 25 C.F.R. § 23.139.
90.

Once an Indian child reaches age 18, the state court that entered the final adoption

decree must inform that person of his or her tribal affiliation. 25 C.F.R. § 23.138.
91.

Whenever a state court enters a final adoption decree or an order in a voluntary or

involuntary Indian child placement, the Final Rule requires the state court or designated state
agency to provide a copy of the decree or order to the BIA within 30 days along with biographical
information about the child, the biological parents, the adoptive parents, the state agency possessing information about the child, and information about tribal membership of the child. 25
C.F.R. § 23.140.

22

92.

The Final Rule requires states to “maintain a record of every voluntary or involun-

tary foster-care, preadoptive, and adoptive placement of an Indian child and make the record available within 14 days of a request by an Indian child’s Tribe or the Secretary.” 25 C.F.R. § 23.141.
II.

FACTS RELEVANT TO THE INTERESTS OF PLAINTIFFS
A.

A.L.M.’s Adoption Proceedings

93.

A.L.M. was born in Arizona to M.M. and J.J., an unmarried couple. A.L.M. is an

“Indian child” as that term is defined in the Final Rule because he is eligible for membership in an
Indian tribe, his biological mother is an enrolled member of the Navajo Nation, and his father is
an enrolled member of the Cherokee Nation. See 25 C.F.R. § 23.2.
94.

A.L.M. has been living with Chad and Jennifer Brackeen for more than 16 months

and, with the support of A.L.M.’s biological parents and his paternal grandmother, the Brackeens
sought to become his adoptive parents. Because of the Final Rule and Section 1915 of ICWA, the
Brackeens are prevented from adopting a child they raised for more than half his life, and A.L.M.
is threatened with separation from both his prospective adoptive and biological families.
95.

A few days after A.L.M.’s birth, his birth mother took A.L.M. to Fort Worth, Texas

to live with A.L.M.’s paternal grandmother. In June 2016, when A.L.M. was ten months old, Child
Protective Services (“CPS”), a division of the Texas DFPS, removed him from his grandmother
and placed him in the foster care of the Brackeens. A.L.M. was identified as an “Indian child”
within the meaning of ICWA, and as required by the Final Rule, 25 C.F.R. § 23.11, both the Cherokee Nation and the Navajo Nation were notified of A.L.M.’s placement with the Brackeens.
96.

Texas DFPS, the Cherokee Nation, and the Navajo Nation were unable to identify

an ICWA-preferred foster placement for A.L.M., and he remained with the Brackeens.
97.

The Brackeens have raised A.L.M. for over 16 months and regard him as a member

of their family.
23

98.

The parental rights of A.L.M.’s biological parents were terminated on May 2, 2017,

and he is free to be adopted under Texas law.
99.

In June 2017, a year after the Brackeens took custody of A.L.M., the Navajo Nation

submitted a letter to the family court suggesting they had located a potential alternative placement
for A.L.M. with non-relatives in New Mexico.
100.

On July 19, 2017, the Brackeens brought an original petition to adopt A.L.M. in the

323rd District Court, Tarrant County, Texas.
101.

In accordance with the requirements of the Final Rule, see 25 C.F.R. § 23.11, the

Cherokee and Navajo Nations were notified of the adoption proceeding.
102.

Neither the Navajo Nation nor the prospective alternative placement located by the

Navajo Nation intervened in the Texas adoption proceeding or otherwise formally sought to adopt
A.L.M. The Brackeens are the only persons before the Texas family court seeking to adopt A.L.M.
103.

On August 1, 2017, the family court held a hearing regarding the Brackeens’ peti-

tion for adoption.
104.

At the August 1, 2017 hearing, the Navajo Nation’s social worker testified that the

two tribes “came up with [an] agreement” among themselves in the hallway prior to the hearing to
determine the designation of A.L.M.’s tribe. The tribes ultimately decided to designate the Navajo
Nation as A.L.M.’s tribe, but this “determination of [A.L.M.’s] Tribe for purposes of ICWA and
[the Final Rule] do[es] not constitute a determination for any other purpose.” 25 C.F.R.
§ 23.109(c)(3).
105.

The Brackeens argued that ICWA’s placement preferences did not apply in their

adoption case because they were the only party before the family court formally seeking to adopt
A.L.M., see Adoptive Couple, 133 S. Ct. at 2564, and that, in any event, good cause existed to

24

depart from ICWA’s preferences for placing A.L.M. with an Indian family because A.L.M.’s biological parents wanted him to be adopted by the Brackeens, and an expert in developmental psychology testified that A.L.M. will suffer severe emotional and psychological harm if he is removed
from the Brackeens’ care.
106.

Although ICWA does not define “good cause,” the Final Rule requires the Brack-

eens—who were the only party to the proceeding seeking adoption—to “bear the burden of proving by clear and convincing evidence” that there was “good cause” to allow them, as a non-Indian
couple, to adopt A.L.M. 25 C.F.R. § 23.132(b).
107.

To establish good cause, the Brackeens presented the testimony of A.L.M.’s bio-

logical parents, who each testified that they reviewed the placement options and preferred
A.L.M.’s adoption by the Brackeens. See 25 C.F.R. § 23.132(c)(1). A.L.M.’s biological mother
testified that A.L.M. “loves [the Brackeens].” A.L.M.’s biological father testified that the Brackeens are “the only parents [A.L.M.] knows.” In addition, A.L.M.’s paternal grandmother also requested that A.L.M. remain with the Brackeens, testifying that they “have been the primaries in
his life.” A.L.M.’s court-appointed guardian recommended that A.L.M. remain with the Brackeens. Other witnesses testified that taking A.L.M. from the Brackeens would also separate him
from his biological family, with whom he currently has regular contact. Finally, the Brackeens
presented an expert in psychology who concluded that the Brackeens and A.L.M. were strongly
emotionally bonded, and that taking A.L.M. from his family would likely cause significant emotional and physiological harm that could last for many years. The expert further testified that
A.L.M. is particularly at risk for severe emotional and psychological harm due to trauma he experienced in his infancy before he was placed with the Brackeens, and that he is “four to six times

25

more likely” to experience that harm if he is removed from his home to live with strangers in New
Mexico.
108.

Texas DFPS did not dispute that the Brackeens were fit parents to adopt A.L.M.,

or otherwise suggest any reason unrelated to ICWA why the Brackeens’ petition to adopt A.L.M.
should be denied. Texas DFPS maintained, however, that notwithstanding the fact that the Brackeens were the only parties that had petitioned to adopt A.L.M., ICWA’s placement preferences
applied and could be overcome only upon a showing of “good cause.” To rebut the Brackeens’
showing of “good cause,” Texas DFPS pointed to the Final Rule’s clear-and-convincing standard
of proof, arguing that the Brackeens did not satisfy the heightened showing required to justify a
departure from the placement preferences.
109.

On August 22, 2017, the family court entered an order denying the Brackeens’

adoption petition.
110.

Although the Court acknowledged that “Petitioners are the only party before the

Court seeking adoption,” it concluded that “25 U.S.C. § 1915 preferences are applicable,” and that
“preference shall be given to other members of the child’s tribe.” Order Denying Request for
Adoption of Child, In the Interest of A.L.M., No. 323-105593-17 (323rd Distr. Ct., Tarrant County,
Tex. Aug. 22, 2017), ¶ 5. The Court held that the Brackeens “did not meet their burden under” the
Final Rule, 25 C.F.R. § 23.132 (which imposes the “clear and convincing evidence” burden on the
prospective adoptive parents), to “show good cause to depart from” ICWA’s preferences. Id.
111.

Shortly after the family court denied the Brackeens’ petition for adoption, Texas

DFPS, applying the placement preferences applicable to foster-care and preadoptive placements,
see 25 C.F.R. § 23.131, stated its intention to immediately move A.L.M. to the Navajo Nation’s
proposed placement in New Mexico.

26

112.

The Brackeens sought an emergency order staying any change in placement pend-

ing appeal. Texas appeared as amicus curiae in support of the Brackeens’ stay request, arguing
that ICWA violates the right of equal protection of the laws under the United States Constitution.
113.

On September 8, 2017, the family court entered a temporary order staying any

change in placement pending the outcome of the Brackeens’ appeal to the Texas Second District
Court of Appeals, Fort Worth, Texas, holding that such an order was necessary and appropriate to
protect A.L.M.’s safety and welfare during the pendency of the appeal. See Tex. Fam. Code
§ 109.001 (“[T]he court may make any order necessary to preserve and protect the safety and
welfare of the child during the pendency of an appeal as the court may deem necessary and equitable.”).
114.

In accordance with the Final Rule’s provisions concerning preadoptive and foster-

care placements, Texas DFPS stated its intention to move A.L.M. to the Navajo Nation’s proposed
placement with non-relatives in New Mexico if the family court’s ruling is affirmed.
115.

In anticipation of a favorable ruling on appeal, Texas DFPS proposed that, during

the pendency of the appeal, it take A.L.M., without either of the Brackeens, to New Mexico for
“transitional” overnight visits with the Navajo Nation’s proposed alternative placement.
116.

The Brackeens are directly and deeply aggrieved by the Final Rule and ICWA be-

cause these provisions concerning adoptive placements are currently being applied to delay and
perhaps deny altogether their adoption of A.L.M.
117.

The Brackeens are further aggrieved by the Final Rule and ICWA because certain

provisions concerning foster-care and preadoptive placements are currently being applied to
threaten to sever the Brackeens’ relationship with A.L.M. Most immediately, the Brackeens are
threatened with the prospect of having A.L.M. removed from them for overnight “transitional”

27

visits with the Navajo Nation’s alternative placement—a threat that exists only because of the
Final Rule and ICWA.
118.

The Brackeens are further injured by the Final Rule and ICWA because they are

forced to expend substantial sums of money to litigate issues concerning the Final Rule’s and
ICWA’s placement preferences in state court beyond the resources needed to adopt A.L.M. were
he not an Indian child within the meaning of the Final Rule and ICWA.
119.

Until their petition to adopt A.L.M. was denied, the Brackeens intended to provide

foster care for, and possibly adopt, additional children in need. Because of their experience with
the Final Rule and ICWA, the Brackeens are reluctant to provide a foster home for other Indian
children in the future knowing that their family and the child’s life could be subject to severe
disruption because of ICWA and the Final Rule. ICWA and the Final Rule therefore interfere with
the Brackeens’ intention and ability to provide a home to additional children as well. This, in turn,
damages Texas by limiting the supply of available, qualified homes necessary to provide support
for children in need.
B.

The Impact of ICWA and the Final Rule on Texas

120.

Three federally recognized tribes exist in Texas: Ysleta del Sur Pueblo (a.k.a., Ti-

gua) in El Paso, Texas; Kickapoo Tribe of Texas in Eagle Pass, Texas; and Alabama-Coushatta
Tribe of Texas near Livingston, Texas. The Kickapoo and Alabama-Coushatta tribes have reservations in Texas.
121.

In 2010, the U.S. Census Bureau reported that the population of American Indian

and Alaska Native persons living in Texas exceeded 315,000. See U.S. Census Bureau, The American Indian and Alaska Native Population: 2010 at 7, Table 2, American Indian and Alaska Native

28

Population for the United States, Regions, and States, and for Puerto Rico: 2000 and 2010 (Jan.
2012), available at https://www.census.gov/prod/cen2010/briefs/c2010br-10.pdf.
122.

In 2010, the U.S. Census Bureau reported that California and Oklahoma had the

largest American Indian and Alaska Native populations, over 723,000 and 482,000, respectively.
Id. at 6–7. New Mexico had a population of over 219,000 American Indian and Alaska Native
persons. Id. at 7.
123.

Given the three federally recognized tribes within Texas’s borders, Texas’s shared

borders with Oklahoma and New Mexico, and the trend of Californians moving to Texas, 1 Texas
maintains frequent and ongoing contact with Native Americans.
124.

Texas possesses sovereign authority over family law issues within its borders.

Sosna, 419 U.S. at 404.
125.

ICWA and the Final Rule place significant responsibilities and costs on Texas agen-

cies and courts to carry out federal Executive Branch directives.
126.

Texas DFPS handles several Indian child cases every year.

127.

Texas DFPS is authorized to file suits affecting the parent-child relationship, Tex.

Fam. Code § 262.001, and in some circumstances take possession of a child without a court order,
id. § 262.104.
128.

ICWA and the Final Rule affect each and every child-custody matter handled by

Texas DFPS and Texas courts because DFPS must first determine if the child is an Indian child.
129.

Texas law requires Texas DFPS and Texas courts to act in the best interest of the

child in foster care, preadoptive, and adoptive proceedings.

1

Katey Psencik, “Everyone is moving to Texas, according to new report,” Austin American-Statesman, Jan. 31,
2017, available at http://austin.blog.statesman.com/2017/01/05/everyone-is-moving-to-texas-according-to-newreport.

29

130.

ICWA and the Final Rule replace Texas’s best-interest-of-the-child standard with

one that mandates racial or ethnic preferences.
131.

Texas law prohibits Texas DFPS and Texas courts from using racial preferences in

foster care, preadoptive, and adoptive proceedings. Tex. Fam. Code §§ 162.015, 264.1085. While
Texas law exempts ICWA cases from these nondiscrimination rules, the public policy of Texas is
to prohibit racial or ethnic discrimination in foster care placements and adoptions. But for ICWA,
Texas courts would apply Texas law to ICWA cases.
132.

In an adoption proceeding, Texas DFPS and Texas courts must give preference, in

the absence of good cause to the contrary, to placement of an Indian child with (1) a member of
the child’s extended family; (2) other members of the Indian child’s tribe; or (3) other Indian families. 25 U.S.C. § 1915(a).
133.

In a foster care or preadoptive proceeding, Texas DFPS and Texas courts give pref-

erence, in the absence of good cause to the contrary, to placing the child with (1) a member of the
child’s extended family; (2) a foster home specified by the Indian tribe; (3) an Indian foster home;
or (4) an institution for children approved by the Indian tribe or operated by an Indian tribe. 25
U.S.C. § 1915(b).
134.

ICWA requires Texas DFPS and Texas courts to follow a resolution by the Indian

child’s tribe to alter the order of preferences related to the child’s placement in any foster care or
adoption proceeding, even if Texas and the Constitution do not recognize that tribe as an equally
footed sovereign deserving full faith and credit. 25 U.S.C. § 1915(c).
135.

ICWA and the Final Rule require CPS to undertake additional responsibilities, in-

quiries, and costs in every child-custody matter it handles.

30

136.

The CPS Handbook contains DFPS’s policies and procedures for compliance with

ICWA and the Final Rule. A true and correct copy of the relevant sections of the CPS Handbook
is attached as Exhibit 1 to the Complaint.
137.

Section 1225 of the CPS Handbook states: “CPS policy requires workers in every

abuse or neglect case to determine whether a child or the child’s family has Native American
ancestry or heritage. If Native American ancestry is claimed, CPS workers are required to follow
specific procedure to ensure compliance with ICWA.” Ex. 1, Texas DFPS, CPS Handbook § 1225,
available at https://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_pg_1200.asp#CPS_1225.
138.

Section 5340 of the CPS Handbook provides that “[i]f a DFPS lawsuit involves a

Native American child, the Indian Child Welfare Act (ICWA) applies and the legal requirements
change dramatically.” Texas DFPS, CPS Handbook § 5340, available at https://www.dfps.state.
tx.us/handbooks/CPS/Files/CPS_pg_5300.asp#CPS_5340.
139.

Even though ICWA does not apply in every case, CPS case workers must “inquire

about Native American history in every case.” Id. (emphasis in original).
140.

Sections 5840–5844 of the CPS Handbook instruct DFPS caseworkers on when and

how to apply ICWA and the Final Rule to child custody matters.
141.

Section 5841 of the CPS Handbook notes that “[f]ailure to comply with the ICWA

can result in a final order being reversed on appeal.” Texas DFPS, CPS Handbook § 5841, available at https://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_pg_5800.asp#CPS_5840.
142.

Texas DFPS caseworkers must “routinely ask[] families whether they are Native

American; document[] the families’ responses; and consult[] with the attorney representing DFPS
and the regional attorney, if the caseworker believes that a case may involve a Native American
child.” Id.

31

143.

Section 5844 of the CPS Handbook provides that if an Indian child “is taken into

DFPS custody, almost every aspect of the social work and legal case is affected.” Texas DFPS,
CPS

Handbook

§ 5844,

available

at

https://www.dfps.state.tx.us/handbooks/CPS/Files/

CPS_pg_5800.asp#CPS_5840. If ICWA applies, the legal burden of proof for removal, obtaining
any final order terminating parental rights, and restricting a parent’s custody rights is higher; DFPS
must serve the child’s parent, tribe, Indian custodian, and the BIA with a specific notice regarding
ICWA rights, DFPS and its caseworkers “must make active efforts to reunify the child and family”;
the child must be placed according to ICWA statutory preferences; expert testimony on tribal child
and family practices may be necessary; and a valid relinquishment of parental rights requires a
parent to appear in court and a specific statutory procedure, just to name a few. Id.
144.

Texas DFPS caseworkers must fill out and submit Form 1706 for approval in any

ICWA matter. A true and correct copy of Form 1706 is attached as Exhibit 2 to this Complaint.
See Texas DFPS Form 1706, Indian Child Welfare Act Checklist, available at https://www.dfps.
state.tx.us/Application/FORMS/showFile.aspx?Name=1706.doc.
145.

DFPS Form 1706 requires CPS case workers to: (1) assess possible Indian child

status during the initial interview of every child and family it encounters, and every time an additional family member is located; (2) contact Texas DFPS lawyers regarding possible ICWA cases
and consult with them regularly throughout the case; (3) modify removal of custody affidavits to
include ICWA information; (4) verify that any foster or adoptive placement follows ICWA’s preferences unless the tribe alters those preferences or the court finds good cause not to alter them;
(5) send membership query letters to each identified tribe in every Indian child case; (6) send notice of pending custody proceedings involving Indian children to each parent, any Indian custodian,
each identified tribe, the Secretary of Interior, and the BIA area director; (7) send notice to the

32

Secretary of Interior and the BIA area director if any parent, custodian, or tribe is unknown or
cannot be located; (8) contact the tribe by telephone and fax if CPS receives no response to the
formal notice; (9) file notices with proof of service in the relevant court; (10) make active efforts
to preserve the Indian family by conferring with tribal social workers and document the services
provided; and (11) consult with DFPS attorneys regarding ICWA requirements for in court procedures.
146.

Texas DFPS promulgated Appendices 1226-A and 1226-B of the CPS Handbook,

which contain guidelines and checklists for CPS staff, to ensure Texas complies with ICWA and
the Final Rule. See Ex. 1, Texas DFPS, CPS Handbook, Appendix 1226-A: Child-Placing Requirements of the Indian Child Welfare Act and Related Guidelines and Regulations, available at
https://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_px_1226a.aspafd; Ex. 2, Texas DFPS,
CPS Handbook, Appendix 1226-B: Checklist for Compliance with the Indian Child Welfare Act,
available at https://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_px_1226b.asp.
147.

In voluntary child-custody proceedings, if the child is an Indian child, Texas courts

must ensure that the party seeking placement, often Texas DFPS, has taken “all reasonable steps”
to verify the child’s status. 25 C.F.R. § 23.124.
148.

ICWA and the Final Rule require Texas courts to perform federal Executive Branch

functions, such as gathering and distributing information for the federal government.
149.

Texas judges must ask, on the record, each participant at the commencement of

child-custody proceedings whether the person knows or has reason to know the child is an Indian
child and to instruct the parties to inform the court of any such information that arises later. 25
C.F.R. § 23.107(a). If the Texas court believes the child is an Indian child, it must document and
confirm that Texas DFPS (1) used due diligence to identify and work with all of the tribes that

33

may be connected to the child and (2) conducted a diligent search to find suitable placements
meeting the preference criteria for Indian families. Id. §§ 23.107(b), 23.132(c)(5).
150.

ICWA and the Final Rule require Texas DFPS and Texas courts to maintain indef-

initely records of placements involving Indian children, and subject those records to inspection by
the Secretary and the child’s Indian tribe at any time. 25 U.S.C. §§ 1915(e), 1917; 25 C.F.R.
§§ 23.140–41. This increases costs for Texas DFPS and Texas courts which have to maintain additional records not called for under Texas law and hire or assign additional employees to maintain
these records indefinitely.
151.

ICWA and the Final Rule require Texas courts and Texas DFPS to provide various

forms of notification to individuals and entities potentially impacted by a child-custody matter
above and beyond what they are required to do under Texas law. This means Texas DFPS and
Texas courts must spend additional money to comply with ICWA by hiring and training additional
employees, and creating and publishing notifications, just to name a few things.
152.

ICWA and the Final Rule (1) require Texas DFPS to notify an Indian custodian and

a tribe of its absolute right to intervene in the proceedings of an Indian child bearing that tribe’s
heritage; (2) require Texas courts to grant the Indian custodian or tribe additional time to prepare
for such proceedings; (3) require Texas DFPS to satisfy the Texas courts of active efforts to provide remedial services and rehabilitative programs to keep the family together; and (4) require
proof beyond a reasonable doubt that serious emotional or physical damage to the child will result
if parental rights are not terminated. 25 U.S.C. §§ 1911–1912; 25 C.F.R. § 23.111–23.121. Texas
law does not similarly provide for these rights and responsibilities, and permits the termination of
parental rights based on clear and convincing evidence. Tex. Fam. Code §§ 161.001(b), 161.206.

34

153.

Texas law requires Texas DFPS to make reasonable efforts in child-custody pro-

ceedings, but ICWA requires “active efforts.” This substantially changes the cost and burden imposed on Texas DFPS. For example, when referring a family or parent to services, reasonable
efforts means providing a referral, but leaving the family to seek out assistance on their own, while
the active efforts required by ICWA means arranging services and helping families engage in those
services.
154.

Texas courts must notify an Indian child’s biological parents, prior Indian custo-

dian, and tribe if a final adoption decree is vacated. 25 C.F.R. § 23.139.
155.

Texas courts must affirmatively notify the Indian child once he or she reaches age

eighteen of his or her tribal affiliation, increasing costs of maintaining records and resources to
keep track of children for nearly 20 years of their lives in some cases. 25 C.F.R. § 23.138.
156.

ICWA section 1911(c) and the Final Rule change the rules of civil procedure for

Texas state family courts, by dictating that an Indian child’s custodian and the child’s tribe must
be granted mandatory intervention. Texas Rule of Civil Procedure 60 permits Texas courts to strike
the intervention of a party upon a showing of sufficient cause by another party, but ICWA prevents
application of this standard for child-custody cases involving Indian children.
157.

Texas DFPS and Texas courts must defer to the decisions of the child’s Indian tribe

when evaluating membership or eligibility for membership. 25 C.F.R. §§ 108–09.
158.

In a termination of parental rights proceedings, ICWA requires evidence beyond a

reasonable doubt, and requires Texas DFPS to hire expert witnesses at the State’s expense. 25
U.S.C. § 1912(f). Texas law requires only clear and convincing evidence. Tex. Fam. Code
§§ 161.001(b), 161.206

35

159.

ICWA and the Final Rule purport to override Texas law with respect to when a

parent may voluntarily consent to relinquish parental rights. Texas law permits voluntary relinquishment of parental rights 48 hours after birth, Tex. Fam. Code § 161,103(a)(1), but ICWA and
the Final Rule prohibit any consent until 10 days after birth, 25 U.S.C. § 1913(a); 25 C.F.R.
§ 23.125(e).
160.

ICWA purports to override Texas law with respect to revocable voluntary relin-

quishment of parental rights. Texas law permits revocable and irrevocable voluntary relinquishment of parental rights. If the relinquishment is revocable, the revocation must be made before the
eleventh day after the revocation affidavit is executed. Tex. Fam. Code § 161.103(b)(10). ICWA
alters this Texas law by permitting revocation of consent for foster care at any time, 25 U.S.C.
§ 1913(b), and revocation of voluntary termination of parental rights any time prior to entry of a
final decree of termination, id. § 1913(c).
161.

ICWA significantly alters how long a final adoption decree may be challenged.

Under ICWA, a Texas court must vacate a final decree of adoption involving an Indian child and
return the child to the parent if the parent of the child withdraws consent to the final adoption
decree on the grounds that the consent was obtained through fraud or duress. The parent may
withdraw consent based on fraud or duress for up to two years after the adoption. 25 U.S.C.
§ 1913(d); 25 C.F.R. § 23.136. This conflicts directly with Texas law, which provides that an
adoption order is subject to direct or collateral attack only up to six months after the date the order
was signed by the court. Tex. Fam. Code § 162.012(a); Goodson v. Castellanos, 214 S.W.3d 741,
748–49 (Tex. App.—Austin 2007, pet. denied). It also betrays the Texas common law principle
that the best interest of the child is to reach a final child-custody decision so that adoption to a
stable home or return to the parents is not unduly delayed. In re M.S., 115 S.W.3d at 548.

36

162.

ICWA permits the invalidation, by another court of competent jurisdiction, of a

Texas court’s final child-custody order if Texas DFPS or Texas courts did not comply with ICWA.
25 U.S.C. § 1914.
163.

Thus, ICWA requires Texas DFPS and Texas family courts to undertake additional

responsibilities, actions, and costs when caring for an Indian child, and provides Indian custodians
and tribes additional procedural protections not expressly afforded other parties to the proceedings.
164.

For example, Texas must spend time and money on Texas DFPS caseworkers

searching for extended family members of the Indian child, contacting those persons, and consulting with them on the case.
165.

Texas DFPS also must hire expert witnesses, identified by the Indian child’s tribe,

to testify in the foster care and termination of parental rights proceedings.
166.

Texas also must spend money transporting Indian children to their parents or Indian

custodian, and to their trial homes. In the case of the Brackeens and A.L.M., Texas DFPS believes
ICWA requires it to transport A.L.M. to New Mexico to visit the ICWA-mandated family. Due to
A.L.M.’s age, Texas DFPS will need to transport caseworkers with A.L.M. to New Mexico. These
same financial responsibilities fall on Texas in all ICWA cases.
167.

The requirement that Texas maintain records for nearly 20 years in some child-

custody cases and provide various forms of notification to the federal government and potential
ICWA parties, requires additional money and personnel dedicated to compliance. A good example
of this is the CPS Handbook, which dedicates several sections and appendices to documenting and
describing how Texas DFPS and Texas courts must comply with ICWA.

37

168.

If Texas failed to comply with ICWA, it would risk losing Social Security Act

funding for child welfare services, which would threaten the elimination of many important social
services.
CLAIMS ALLEGED BY ALL PLAINTIFFS
COUNT I
VIOLATION OF ADMINISTRATIVE PROCEDURE ACT
(Not in Accordance with Law – Equal Protection, Tenth Amendment, Article I)
169.

Plaintiffs incorporate previous paragraphs as if fully restated here.

170.

Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the Final Rule

complained of herein is a “rule” under the APA, id. § 551(4), and constitutes “[a]gency action
made reviewable by statute and final agency action for which there is no other adequate remedy
in a court,” id. § 704.
171.

The APA prohibits agency actions that are “not in accordance with law.” 5 U.S.C.

§ 706(2)(A). The Final rule is not in accordance with law for a number of independent reasons.
172.

The Final Rule violates the APA because the placement preference regime con-

tained in the unit entitled “Dispositions,” 25 C.F.R. § 23.129 et seq., violates the Brackeens’ and
citizens of Texas’s equal protection rights under the Fifth Amendment of the United States Constitution. Bolling v. Sharpe, 347 U.S. 497, 498–99 (1954). The Final Rule imposes a naked preference for “Indian families” over families of any other race; the Final Rule puts non-Indian families
who wish to adopt an “Indian child” to the extraordinary burden of demonstrating good cause to
depart from the placement preferences by clear and convincing evidence, while any Indian family
would enjoy a presumption that the adoption is in the child’s best interests. The Final Rule’s classification of Indians and non-Indians, and its discrimination against non-Indians, is based on race
and ancestry and violates the constitutional guarantee of equal protection.

38

173.

The Final Rule further violates the APA because the placement preference regime

contained in the unit entitled “Dispositions,” 25 C.F.R. § 23.129 et seq., unlawfully discriminates
against “Indian children” (as defined by the Final Rule) in violation of the Constitution’s guarantee
of equal protection, by subjecting them to a heightened risk of a placement that is contrary to their
best interests and based solely on their race and ancestry. Under Texas law, a child’s placement
generally will be made in accordance with his or her best interests. But the Final Rule’s placement
preferences, its new restriction on evidence that can be considered as a part of an analysis “good
cause” for departing from those preferences, and the new regulation providing that good cause
should be shown by clear and convincing evidence combine to substantially increase the risk that
an Indian child will be placed in accordance with the placement preferences even when that placement would be contrary to his best interests. This burden applies to Indian children solely by dint
of their or their parents’ membership in an Indian tribe—eligibility that often (as in this case) turns
on blood quantum. The Final Rule thus discriminates against Indian children in State child-custody
proceedings in violation of equal protection principles under the Fifth Amendment.
174.

The Final Rule further violates the APA because the adoption and foster-care and

pre-adoptive placement of “Indian children”—the topics regulated by the unit of the Final Rule
entitled “Dispositions,” 25 C.F.R. § 23.129 et seq.,—are not permissible subjects of regulation
under the Tenth Amendment. The Final Rule claims that federal regulation of the placement of
Indian children is authorized by the Indian Commerce Clause. See 81 Fed. Reg. at 38,789; see also
25 U.S.C. § 1901(1). But children are not articles of commerce, nor can their placement be said to
substantially affect commerce with Indian nations. See Adoptive Couple, 133 S. Ct. at 2566–70
(Thomas, J., concurring). The Final Rule therefore is not a valid exercise of federal authority and
is unconstitutional.

39

175.

The Final Rule further violates the APA because the Final Rule regulates the place-

ment of Indian children not directly, but through Texas’s government in violation of the Tenth
Amendment. The Final Rule makes this plain when it purports to issue minimum federal standards
for “placement of an Indian child under State law.” 25 C.F.R. §§ 23.130(a), 23.131(a) (emphasis
added). And it is not just the portion of Texas’s child-custody regulatory regime administered by
Texas courts that the Final Rule commandeers. The Final Rule also demands that Texas apply the
placement preferences in foster-care and preadoptive placements, which, in Texas at least, are
administered in part by Texas DFPS. Even when Congress has power to regulate under one of its
enumerated powers, the Federal government cannot require a Texas agency or official to administer a federal regulatory program. United States v. Printz, 521 U.S. 898, 935 (1997) (“The Federal
Government may neither issue directives requiring the States to address particular problems, nor
command the States’ officers, or those of their political subdivisions, to administer or enforce a
federal regulatory program.”). The Final Rule thus violates the anti-commandeering principle under the Tenth Amendment and is unconstitutional.
176.

The Final Rule further violates the APA because the Final Rule delegates to Indian

tribes the legislative and regulatory power to pass resolutions in each Indian child custody proceeding that alter the placement preferences state courts must follow in violation of Article I of the
Constitution. The Constitution provides that “[a]ll legislative powers herein granted shall be vested
in a Congress of the United States, which shall consist of a Senate and House of Representatives.”
U.S. Const. art. 1, § 1. The Constitution authorizes Congress “[t]o make all Laws which shall be
necessary and proper for carrying into Execution” its general powers. U.S. Const. art. 1, § 8. The
Constitution bars Congress and the BIA from delegating to others the essential legislative and

40

administrative functions with which they are vested. The Final Rule thus violates the non-delegation doctrine of Article I, section 1 of the Constitution and is unconstitutional.
177.

The APA prohibits agency actions that are “arbitrary, capricious, [or] an abuse of

discretion.” 5 U.S.C. § 706(2)(A). The Final Rule is arbitrary and capricious agency action for a
number of reasons, including that it is an unexplained and unsupported departure from the position
adopted in the 1979 Guidelines and held by the defendants for nearly forty years.
178.

The Final Rule further violates the APA because its provision that “[t]he party seek-

ing departure from the placement preferences should bear the burden of proving by clear and convincing evidence that there is ‘good cause’ to depart from the placement preferences,” 81 Fed.
Reg. at 38,874 (codified at 25 C.F.R. § 23.132(b)), is contrary to Section 1915 of ICWA and is
arbitrary and capricious.
179.

The Final Rule further violates the APA in that its limitation on the evidence that

may be considered in the analysis of “good cause,” see 25 C.F.R. § 23.132(c)–(e), is contrary to
Section 1915 of ICWA and is arbitrary and capricious.
180.

The Brackeens are directly aggrieved by the Final Rule’s application to their peti-

tion to adopt A.L.M., its application to their preadoptive placement of A.L.M., its imposition of an
immediate threat that A.L.M. will be taken for out-of-state, overnight “transitional” visits, and by
its imposition of substantial burdens (both time and money) in connection with their effort to adopt
A.L.M.
181.

Texas is directly aggrieved by the Final Rule’s application to each and every child-

custody proceeding in Texas, and, particularly, to those proceedings in which Texas DFPS or a
Texas court discovers that the child is an Indian child as defined by ICWA. The Final Rule imposes
a substantial burden on Texas through the expenditure of resources and money in connection with

41

its efforts to comply with the Final Rule for each child-custody proceeding. And because of the
Final Rule’s burden, it necessarily limits prospective foster and adoptive parents so clearly needed
to care for children, as now demonstrated by the Brackeens’ reluctance to foster additional Indian
children.
182.

Plaintiffs have no adequate remedy at law to redress the burdens now being im-

posed by Final Rule because claims arising under the APA cannot be litigated in Texas courts.
183.

This Court should declare the Final Rule invalid and set it aside.
COUNT II
VIOLATION OF ARTICLE I OF THE CONSTITUTION
(Commerce Clause)

184.

Plaintiffs incorporate previous paragraphs as if fully restated here.

185.

The Commerce Clause of the United States Constitution provides: “The Congress

shall have Power . . . To regulate Commerce with foreign Nations, and among the several States,
and with the Indian tribes.” U.S. Const. art. I, § 8, cl. 3.
186.

At the time the original Constitution was ratified, commerce consisted of selling,

buying, and bartering, as well as transporting for these purposes. See Adoptive Couple, 133 S. Ct.
at 2567 (Thomas, J., concurring).
187.

At the time the original Constitution was ratified, the Indian Commerce Clause was

intended to include “trade with Indians.” See Adoptive Couple, 133 S. Ct. at 2567 (Thomas, J.,
concurring).
188.

The Indian Commerce Clause provides Congress with the power to regulate com-

merce with Indian tribes, but not any Indian person. See Adoptive Couple, 133 S. Ct. at 2567
(Thomas, J., concurring).

42

189.

ICWA locates Congress’s authority for the statute in the Indian Commerce Clause.

See 25 U.S.C. § 1901(1).
190.

Children are not articles of commerce, nor can their placement be said to substan-

tially affect commerce with Indian nations. See Adoptive Couple, 133 S. Ct. at 2566–70 (Thomas,
J., concurring).
191.

No other enumerated power supports Congress’s intrusion into this area of tradi-

tional state authority.
192.

ICWA §§ 1901–1923 & 1951–1952 are therefore unconstitutional under the Com-

merce Clause of Article I.
193.

The Brackeens are directly, personally, and substantially injured by § 1915’s place-

ment preferences and the provisions of the Final Rule purporting to implement those preferences
because they are causing delay, and perhaps denial, of their adoption of A.L.M., they are the basis
for the presently threatened severance of their familial relationship with A.L.M., they are Texas
DFPS’s basis for threatening to take A.L.M. on overnight, out-of-state “transitional” visits, and
because they are requiring the Brackeens to expend substantial resources in an effort to demonstrate “good cause” to depart from them.
194.

Texas is directly aggrieved by ICWA §§ 1901–1923 & 1951–1952 because those

provisions require Texas DFPS and Texas courts to carry out the policy objectives of the federal
government and execute the federal government’s regulatory framework for Indian child in childcustody proceedings. Texas must abide by ICWA in each and every child-custody proceeding,
and, particularly, to those proceedings in which Texas DFPS and Texas courts discover that the
child is an Indian child as defined by ICWA. ICWA imposes a substantial burden on Texas through

43

the expenditure of resources and money in connection with its efforts to comply with ICWA for
each child-custody proceeding.
195.

Plaintiffs have no adequate remedy at law to redress the injuries they are suffering

because of ICWA.
196.

Plaintiffs thus seek a declaration that Sections 1901–1923 & 1951–1952 of ICWA

violate Article I of the United States Constitution and are unconstitutional and unenforceable, and
an injunction barring the Defendants from implementing or administering that provision by regulation, guideline, or otherwise.
COUNT III
VIOLATION OF THE TENTH AMENDMENT
(Domestic Relations & Anti-Commandeering )
197.

Plaintiffs incorporate previous paragraphs as if fully restated here.

198.

The Tenth Amendment to the United States Constitution provides: “The powers not

delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved
to the States respectively, or to the people.” U.S. Const. amend. X.
199.

ICWA sections 1901–1923 and 1951–1952 are not permissible subjects of regula-

tion under the Tenth Amendment.
200.

ICWA’s provisions concerning the adoption and foster-care and pre-adoptive

placement of “Indian children” are not permissible subjects of regulation under the Tenth Amendment.
201.

Since the adoption of the Constitution, family law and domestic relations have been

regarded as being within the virtually exclusive province of the States. Sosna v. Iowa, 419 U.S.
393, 404 (1975); Ohio ex rel. Popovici v. Agler, 280 U.S. 379, 383–84 (1930).
202.

Adoption proceedings are adjudicated exclusively in state family courts.

44

203.

Foster-care and preadoptive placements also are administered exclusively by

States; in Texas, they are administered in the first instance by Texas DFPS.
204.

ICWA locates Congress’s authority for the statute in the Indian Commerce Clause.

25 U.S.C. § 1901(1). The Indian Commerce Clause grants Congress the authority “[t]o regulate
commerce . . . with the Indian tribes.” U.S. Const. art. I, § 8, cl. 3.
205.

Children are not articles of commerce, nor can their placement be said to substan-

tially affect commerce with Indian nations. See Adoptive Couple, 133 S. Ct. at 2566–70 (Thomas,
J., concurring).
206.

No other enumerated power supports Congress’s intrusion into this area of tradi-

tional state authority.
207.

ICWA’s provisions concerning the adoption and foster-care and pre-adoptive

placement of “Indian children” are unconstitutional under the Tenth Amendment because they
regulate the placement of Indian children not directly, but through State governments. Even when
Congress has power to regulate under one of its enumerated powers, the Federal government cannot require a State agency or official to administer a federal regulatory program. United States v.
Printz, 521 U.S. 898, 935 (1997) (“The Federal Government may neither issue directives requiring
the States to address particular problems, nor command the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.”).
208.

ICWA thus violates the anti-commandeering principle under the Tenth Amendment

and is unconstitutional.
209.

ICWA impermissibly commands state governments to administer adoptions and

foster-care and preadoptive placements according to Congress’s instructions. Here, ICWA commanded the Texas state family court to apply ICWA’s placement preferences under 25 U.S.C.

45

§ 1915(a) to the Brackeens’ petition for adopt A.L.M. And it further commands Texas DFPS to
make a foster-care or pre-adoptive placement of A.L.M. in accordance with the placement preferences of 25 U.S.C. § 1915(b). ICWA impermissibly commandeers state governments and therefore
is unconstitutional.
210.

ICWA section 1911, 1912, and 1913, and the Final Rule alter the content of Texas

law by requiring Texas courts to apply federal substantive rules of decision and federal procedural
requirements in state law causes of action that result in state law judgments that form part of the
corpus of state law.
211.

ICWA section 1911 impermissibly alters Texas’s rules of procedure for foster care

placement and termination of parental rights proceedings with federal rules of decision. ICWA
grants an Indian custodian of a child and the child’s tribe mandatory intervention at any point in
the proceedings.
212.

ICWA section 1912 and the Final Rule increase the standard for termination of

parental rights for an Indian child to “evidence beyond a reasonable doubt” and demand expert
witness testimony.
213.

ICWA section 1913 and the Final Rule impermissibly command state governments

and courts to change their laws and rules respecting when and how a parent of an Indian child or
Indian custodian may give voluntary consent to foster care placement or termination of parental
rights.
214.

ICWA section 1913 also impermissibly commands state courts to allow for revo-

cation of voluntary termination of parental rights any time prior to the final decree of termination.
215.

The Final Rule dictates what Texas DFPS and Texas courts must do in cases of

emergency removal or placement of an Indian child.

46

216.

The Final Rule prohibits Texas DFPS and courts from making a determination as

to an Indian child’s membership status with a tribe. Texas must defer to the membership determination of the tribe.
217.

The Final Rule commands Texas courts to allow the invalidation of child-custody

proceeding final orders for up to two years, which is eighteen months beyond what is permitted
under Texas law. Tex. Fam. Code § 162.012.
218.

ICWA requires Texas DFPS and Texas courts to undertake administrative actions

of the federal government.
219.

ICWA sections 1911 and 1912 and the Final Rule require state agencies and courts

to notify potential intervenors about a proceeding, send copies of the notices to Defendants, and
suspend proceedings for at least 10 days.
220.

The Final Rule commands state government agencies and state courts to inquire

about Indian child status throughout child-custody proceedings.
221.

ICWA section 1912 and the Final Rule require Texas DFPS to use “active efforts”

to prevent the breakup of an Indian family.
222.

The Final Rule requires Texas courts to confirm that Texas DFPS used “due dili-

gence” to work with all of the tribes in which the child may be a member and conducted a “diligent
search” for tribal placement of the child.
223.

ICWA sections 1915, 1917, and 1951 and the Final Rule demand that Texas DFPS,

Texas courts, and other States collect information and perform record-keeping functions for the
federal government for child-custody proceedings involving Indian children.
224.

ICWA is unconstitutional under the Tenth Amendment for the additional reason

that it violates the equal footing doctrine and the Full Faith and Credit Clause of the Constitution.

47

225.

The Constitution provides that “Full Faith and Credit shall be given in each State

to the public Acts, Records, and judicial Proceedings of every other State.” U.S. Const., Art. IV,
§ 1. The “Full Faith and Credit Clause does not compel ‘a state to substitute the statutes of other
states for its own statutes dealing with a subject matter concerning which it is competent to legislate.’” Franchise Tax Bd. of Cal. v. Hyatt, 538 U.S. 488, 494 (2003) (citations omitted).
226.

The Full Faith and Credit Clause extends only between States, not States and Indian

tribes. Wilson v. Marchington, 127 F.3d 805 (9th Cir. 1997). “The equal footing clause has long
been held to refer to political rights and to sovereignty. . . . The requirement of equal footing was
designed not to wipe out those diversities but to create parity as respects political standing and
sovereignty.” United States v. Texas, 339 U.S. 707, 716 (1950) (internal citations and quotation
marks omitted).
227.

ICWA demands that Texas and other States defer to the resolutions of tribes alter-

ing the ICWA placement preferences for Indian children, even though those tribes are not on equal
footing with the States and do not deserve full faith and credit under Article IV.
228.

The Final Rule requires Texas DFPS and Texas courts to transfer child-custody

matters to tribal courts when the Indian parent, custodian, or tribe requests it, even though those
tribes are not on equal footing with the States and do not deserve full faith and credit under Article
IV.
229.

ICWA is unconstitutional for the additional reason that it violates the Guarantee

Clause of Article IV, section 4 of the Constitution, which guarantees to every State a republican
form of government. The Guarantee Clause provides that Congress many not interfere with states’
autonomy to such an extent that it prevents them from enjoying untrammeled self-government.
States are “endowed with all the functions essential to separate and independent existence.” Lane

48

Cty. v. Oregon, 74 U.S. 71, 76 (1868). A separate and independent state judiciary is an indispensable element of a republican form of government that Congress may not invade.
230.

Texas courts adjudicate family law and domestic relations cases, including child

custody proceedings. ICWA violates the Tenth Amendment by removing the guarantee that Texas
provide a republican form of government to its citizens, including an independent judiciary that
may develop its own substantive law within the areas of responsibility granted it by the United
States and Texas Constitutions.
231.

The Brackeens are directly, personally, and substantially injured by § 1915 of

ICWA and the provisions of the Final Rule purporting to implement it because they are causing
delay, and perhaps denial, of their adoption of A.L.M., they are the basis for the presently threatened severance of their familial relationship with A.L.M., they are Texas DFPS’s basis for threatening to take A.L.M. on overnight, out-of-state “transitional” visits, and because they are requiring
the Brackeens to expend substantial resources in an effort to demonstrate “good cause” to depart
from them.
232.

Texas is directly aggrieved by ICWA’s and the Final Rule’s commandeering of

State power because they require Texas DFPS and Texas courts to carry out the directives and
policy objectives of the federal government and execute the federal government’s regulatory
framework for Indian child in child-custody proceedings. Texas must abide by ICWA in each and
every child-custody proceeding, and, particularly, to those proceedings in which Texas DFPS and
Texas courts discover that the child is an Indian child as defined by ICWA. ICWA imposes a
substantial burden on Texas through the expenditure of resources and money in connection with
its efforts to comply with ICWA and the Final Rule for each child-custody proceeding.

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233.

Plaintiffs have no adequate remedy at law to redress the injuries they are suffering

because of ICWA.
234.

Plaintiffs thus seek a declaration that Sections 1901–1923 and 1951–1952 of ICWA

violate the Tenth Amendment and are unconstitutional and unenforceable, and an injunction barring the Defendants from implementing or administering that provision by regulation, guideline,
or otherwise.
COUNT IV
VIOLATION OF THE FIFTH AMENDMENT
(Equal Protection)
235.

Plaintiffs incorporate previous paragraphs as if fully restated here.

236.

The Due Process Clause of the Fifth Amendment mandates the equal treatment of

people of all races without discrimination or preference. Bolling v. Sharpe, 347 U.S. 497, 498–99
(1954).
237.

ICWA defines an “Indian child” as an “unmarried person who is under age eighteen

and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe
and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4).
238.

ICWA classifies A.L.M. as an “Indian child.”

239.

ICWA classifies many children in Texas DFPS custody and care as Indian children.

240.

The Brackeens are not an “Indian family” within the meaning of ICWA.

241.

Many prospective foster parents and adoptive parents in Texas are not “Indian fam-

ilies” within the meaning of ICWA.
242.

ICWA’s placement preferences applicable to an adoption or pre-adoptive place-

ment of an “Indian child,” 25 U.S.C. § 1915(a)–(b), impose a naked preference for “Indian families” over families of any other race and puts non-Indian families who wish to adopt an “Indian

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child” to the burden of demonstrating good cause to depart from the placement preferences, while
any Indian family would enjoy a presumption that the adoption or pre-adoptive placement is in the
child’s best interests. ICWA’s classification of Indians and non-Indians, and its discrimination
against non-Indians, is based on race and ancestry and violates the constitutional guarantee of
equal protection.
243.

The Brackeens are directly, personally, and substantially injured by ICWA’s place-

ment preferences because they are causing delay, and perhaps denial, of their adoption of A.L.M.,
they are the basis for the presently threatened severance of their familial relationship with A.L.M.,
they are Texas DFPS’s basis for threatening to take A.L.M. on overnight, out-of-state “transitional” visits, and because they are requiring the Brackeens to expend substantial resources in an
effort to demonstrate “good cause” to depart from them.
244.

Texas, on behalf of itself, its residents, parents, and the children in its care, is di-

rectly aggrieved by ICWA’s placement preferences because they require Texas DFPS and Texas
courts to violate the Equal Protection Clause of the Fifth Amendment and Texas law, which prohibit racial preferences in child-custody proceedings. ICWA requires Texas to carry out the racially discriminatory policy objectives of the federal government and execute the federal government’s discriminatory framework against potential foster and adoptive parents who wish to care
for Indian children. Texas must abide by ICWA in each and every child-custody proceeding, and,
particularly, to those proceedings in which Texas DFPS and Texas courts discover that the child
is an Indian child as defined by ICWA. ICWA imposes a substantial burden on Texas through the
expenditure of resources and money in connection with its efforts to comply with Section 1915(a)
and Section 1915(b) for each child-custody proceeding.

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245.

Plaintiffs have no adequate remedy at law to redress the injuries they are suffering

because of ICWA.
246.

Plaintiffs thus seek a declaration that Section 1915(a) and Section 1915(b) of ICWA

violate principles of equal protection and are unconstitutional and unenforceable, and an injunction
barring the Defendants from implementing or administering that provision by regulation, guideline, or otherwise.
CLAIMS ALLEGED BY THE BRACKEENS
COUNT V
VIOLATION OF ADMINISTRATIVE PROCEDURE ACT
(Not in Accordance with Law – Substantive Due Process)
247.

Plaintiffs incorporate previous paragraphs as if fully restated here.

248.

Defendants are “agencies” under the APA, 5 U.S.C. § 551(1), and the Final Rule

complained of herein is a “rule” under the APA, id. § 551(4), and constitutes “[a]gency action
made reviewable by statute and final agency action for which there is no other adequate remedy
in a court,” id. § 704.
249.

The APA prohibits agency actions that are “not in accordance with law.” 5 U.S.C.

§ 706(2)(A).
250.

In addition to the reasons set forth in Count I of this Complaint, the Final Rule

further violates the APA because the placement preference regime contained in the unit entitled
“Dispositions,” 25 C.F.R. § 23.129 et seq., violates the substantive due process rights of non-Indian prospective adoptive couples raising Indian children, and the rights of those Indian children,
insofar as it permits—indeed, requires—the disruption of intimate familial relationships without a
showing of an adequate state interest to do so. The intimate familial relationship between a prospective adoptive parent and a child is a substantial liberty interest under the Due Process Clause

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of the Fifth Amendment that can be vitiated only when necessary to vindicate an important governmental interest. The Final Rule articulates no adequate justification for vitiating an intimate
familial relationship between a child and prospective adoptive parents in favor of placement with
non-relatives who happen to be “Indian” within the meaning of ICWA, and there is none. The
Final Rule thus violates the substantive due process rights under the Fifth Amendment of the prospective adoptive parents of an Indian child, and the rights of that Indian child.
251.

The Final Rule further violates the APA because the placement preference regime

contained in the unit entitled “Dispositions,” 25 C.F.R. § 23.129 et seq., violates the substantive
due process rights of non-Indian prospective adoptive couples raising Indian children—and the
rights of those Indian children—by excluding from the “good cause” analysis bonding and attachment resulting from their relationship if that relationship later is determined to be “in violation of
ICWA.” 25 C.F.R. § 23.132(e). The intimate familial relationship between a prospective adoptive
parent and a child is a substantial liberty interest under the Due Process Clause of the Fifth Amendment that can be vitiated only when necessary to vindicate an important governmental interest.
Ensuring that prospective adoptive couples are not “reward[ed]” by a state agency’s or state court’s
error in failing to comply with ICWA’s and the Final Rule’s many requirements is not an interest
of the government sufficiently important to justify disrupting the familial bonds between a prospective adoptive couple and the child they are raising. Therefore, the Final Rule’s categorical
exclusion from consideration of an Indian child’s bonding and attachment when it resulted from a
placement later determined to be in violation of ICWA violates the substantive due process component of the Fifth Amendment.
252.

The Brackeens are directly aggrieved by the Final Rule’s application to their peti-

tion to adopt A.L.M., its application to their preadoptive placement of A.L.M., its imposition of an

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immediate threat that A.L.M. will be taken for out-of-state, overnight “transitional” visits, and by
its imposition of substantial burdens (both time and money) in connection with their effort to adopt
A.L.M.
253.

The Brackeens have no adequate remedy at law to redress the burdens now being

imposed by Final Rule because claims arising under the APA cannot be litigated in state court.
254.

This Court should declare the Final Rule invalid and set it aside.
COUNT VI
VIOLATION OF THE FIFTH AMENDMENT
(Due Process—ICWA § 1915)

255.

Plaintiffs incorporate previous paragraphs as if fully restated here.

256.

The United States has a deeply rooted tradition of honoring intimate family rela-

tionships. The Brackeens possess a fundamental right of liberty to intimate familial relationships.
257.

ICWA’s placement preferences applicable to an adoption or pre-adoptive place-

ment of an “Indian child,” 25 U.S.C. § 1915(a)–(b), violate the Brackeens’ substantive due process
rights. The preferences permit the disruption of their intimate familial relationship with A.L.M.
without a showing of an adequate state interest to do so.
258.

The Brackeens’ intimate familial relationship with A.L.M. is a substantial liberty

interest under the Due Process Clause of the Fifth Amendment that can be vitiated only when
necessary to vindicate an important governmental interest.
259.

Placing A.L.M. with non-relatives who happen to be members of the Navajo Nation

is not narrowly tailored to any important government interest.
260.

Unless the existence of an intimate familial relationship such as that which exists

between the Brackeens and A.L.M. categorically constitutes “good cause” to depart from the

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placement preferences under Section 1915(a) and Section 1915(b), ICWA’s placement preferences
are unconstitutional under the Due Process Clause of the Fifth Amendment.
261.

The Brackeens are directly, personally, and substantially injured by ICWA’s place-

ment preferences because they are causing delay, and perhaps denial, of their adoption of A.L.M.,
they are the basis for the presently threatened severance of their familial relationship with A.L.M.,
they are Texas DFPS’s basis for threatening to take A.L.M. on overnight, out-of-state “transitional” visits, and they are requiring the Brackeens to expend substantial resources in an effort to
demonstrate “good cause” to depart from them.
262.

The Brackeens have no adequate remedy at law to redress the injuries they are suf-

fering because of ICWA.
263.

The Brackeens thus seek a declaration that Section 1915(a) and Section 1915(b) of

ICWA violate principles of substantive due process and are unconstitutional and unenforceable,
and an injunction barring the Defendants from implementing or administering those provisions by
regulation, guideline, or otherwise.
CLAIMS ALLEGED BY TEXAS
COUNT VII
VIOLATION OF ARTICLE I OF THE CONSTITUTION
(Non-Delegation Doctrine)
264.

Plaintiffs incorporate previous paragraphs as if fully restated here.

265.

The Constitution provides that “[a]ll legislative Powers herein granted shall be

vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” U.S. Const. art. 1, § 1.
266.

The Constitution authorizes Congress “[t]o make all Laws which shall be necessary

and proper for carrying into Execution” its general powers. U.S. Const. art. 1, § 8, cl. 18.

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267.

The Constitution bars Congress from delegating to others the essential legislative

functions with which it is vested.
268.

ICWA Section 1915(c) and the Final Rule Section 23.130(b) delegate to Indian

tribes the legislative and regulatory power to pass resolutions in each Indian child custody proceeding that alter the placement preferences state courts must follow.
269.

The Final Rule prohibits Texas DFPS and courts from making a determination as

to an Indian child’s membership status with a tribe. Texas must defer to the membership determination of the tribe.
270.

Texas is directly and substantially injured by the delegation of power over place-

ment preferences because it violates the Constitution’s separation of powers through abdication of
Congress’s legislative responsibility and requires Texas to honor the legislation and regulation
passed by tribes in each child-custody matter, which can vary widely from one child to the next
and one tribe to another.
271.

Texas has no adequate remedy at law to redress the injuries it is suffering under

272.

Texas thus seeks a declaration that ICWA Section 1915(c) and Final Rule Section

ICWA.

23.130(b) violate Article I, sections 1 and 8, and are unconstitutional and unenforceable, and an
injunction barring the Defendants from implementing or administering those provisions by regulation, guideline, or otherwise.
COUNT VIII
VIOLATION OF ARTICLE I OF THE CONSTITUTION
(Spending Clause)
273.

Plaintiffs incorporate previous paragraphs as if fully restated here.

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274.

The Spending Clause of the United States Constitution provides: “The Congress

shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and
provide for the common Defence and general Welfare of the United States; but all Duties, Imposts
and Excises shall be uniform throughout the United States.” U.S. Const. art. I, § 8, cl. 1.
275.

Congress’s spending power, however, is not unlimited. S. Dakota v. Dole, 483 U.S.

203, 207 (1987).
276.

The Constitution provides that Congress may enact spending conditions that (1) are

unambiguous and clearly stated in advance, (2) relate to Congress’s purpose in spending the funds,
(3) are not unduly coercive, (4) do not compel state governments to engage in unconstitutional
conduct, and (5) promote the general welfare. Dole, 483 U.S. at 207–08.
277.

ICWA and the Final Rule violate the Spending Clause because they coerce States,

like Texas, into complying with their mandates by threatening the withdrawal of child welfare
grants under Titles IV-B and IV-E of the Social Security Act. Texas stands to lose substantial
funding for child welfare programs if it does not certify compliance with ICWA.
278.

ICWA and the Final Rule also violate the Spending Clause because they compel

States, like Texas, to engage in unconstitutional conduct. The placement preferences that instruct
Texas DFPS and Texas courts to award foster care, preadoptive, and adoptive placements based
on racial classifications, i.e., the Indian child’s race, violate the equal protection component of the
Fifth Amendment to the United States Constitution.
279.

Texas is directly and substantially injured by the coercive nature of ICWA funding

and its requirement that Texas violate other provisions of the Constitution to maintain compliance
and funding.

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280.

Texas has no adequate remedy at law to redress the injuries it is suffering under

281.

Texas thus seeks a declaration that ICWA and the Final Rule violate Article I, sec-

ICWA.

tion 8 and are unconstitutional and unenforceable, and an injunction barring the Defendants from
implementing or administering those provisions by regulation, guideline, or otherwise.
PRAYER FOR RELIEF
Plaintiffs pray that this Court:
1.

Declare that the Final Rule violates the APA, hold it invalid, and set it aside;

2.

Issue a declaratory judgment that ICWA, 25 U.S.C. §§ 1901–1923, 1951–1952, is

unconstitutional and unenforceable;
3.

Issue a declaratory judgment that Section 1915(a) and 1915(b) of ICWA are un-

constitutional and unenforceable;
4.

Issue an injunction prohibiting Defendants from implementing or administering

25 U.S.C. §§ 1901–1923, 1951–1952 by regulation, guidelines, or otherwise;
5.

Issue an injunction prohibiting Defendants from implementing or administering

Section 1915(a) and 1915(b) of ICWA by regulation, guidelines, or otherwise;
6.

Award Plaintiffs costs and reasonable attorneys’ fees as appropriate; and

7.

Grant such further and other relief as this Court deems just and proper.

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Respectfully submitted,
Dated: October 25, 2017
/s/ Rebekah Perry Ricketts
Rebekah Perry Ricketts
State Bar No. 24074883
Gibson, Dunn & Crutcher LLP
2100 McKinney Ave., Suite 1100
Dallas, TX 75201
Telephone: [phone]
Facsimile: [phone]
[e-mail]
Matthew D. McGill (pro hac vice pending)
Lochlan F. Shelfer (pro hac vice pending)
Gibson, Dunn & Crutcher LLP
1050 Connecticut Avenue, N.W.
Washington, D.C. 20036
[phone]
[e-mail]
[e-mail]
Attorneys for Chad and Jennifer Brackeen

KEN PAXTON
Attorney General of Texas
JEFFREY C. MATEER
First Assistant Attorney General
BRANTLEY D. STARR
Deputy First Assistant Attorney General
JAMES E. DAVIS
Deputy Attorney General for Civil Litigation
/s/ David J. Hacker
DAVID J. HACKER
Special Counsel for Civil Litigation
Texas Bar No. 24103323
[e-mail]
OFFICE OF THE ATTORNEY GENERAL
P.O. Box 12548, Mail Code 009
Austin, Texas 78711-2548
[phone]
Attorneys for Texas

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