No. 21- In the Supreme Court of the United States

No. 21-____

In the Supreme Court of the United States

THE STATE OF TEXAS, PETITIONER

v.

DEB HAALAND, SECRETARY OF THE U.S. DEPARTMENT OF

THE INTERIOR, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

PETITION FOR A WRIT OF CERTIORARI

KEN PAXTON

Attorney General of Texas

BRENT WEBSTER

First Assistant Attorney

General

JUDD E. STONE II

Solicitor General

Counsel of Record

LANORA C. PETTIT

Principal Deputy Solicitor

General

MICHAEL R. ABRAMS

BETH KLUSMANN

Assistant Solicitors General

OFFICE OF THE

ATTORNEY GENERAL

P.O. Box 12548 (MC 059)

Austin, Texas 78711-2548

Judd.Stone@oag.

(512) 936-1700

QU E S TIO NS PR E S E NTE D

The Indian Child Welfare Act, 25 U.S.C. ¡ì¡ì 1901-63

(ICWA), creates a child-custody regime for ¡°Indian children,¡± a status defined by a child¡¯s genetics and ancestry.

This regime is designed to make the adoption of Indian

children by non-Indians more difficult. To implement

this race-based system, Congress required state agencies to provide services ¡°to prevent the breakup of the

Indian family¡± and imposed a placement hierarchy¡ª

which may be changed at a child¡¯s tribe¡¯s direction¡ªfavoring Indian-child adoptions by the child¡¯s biological

relatives, the child¡¯s tribe, and then any other Indian.

Congress then directed state courts to employ a detailed

federal set of procedures in state-law Indian-child-custody proceedings. The questions presented are:

1.

Whether Congress has the power under the Indian Commerce Clause or otherwise to enact

laws governing state child-custody proceedings

merely because the child is or may be an Indian.

2.

Whether the Indian classifications used in

ICWA and its implementing regulations violate

the Fifth Amendment¡¯s equal-protection guarantee.

3.

Whether ICWA and its implementing regulations violate the anticommandeering doctrine

by requiring States to implement Congress¡¯s

child-custody regime.

4.

Whether ICWA and its implementing regulations violate the nondelegation doctrine by allowing individual tribes to alter the placement

preferences enacted by Congress.

(I)

PA RTI E S TO T HE P R O C E E D I NG

Petitioner the State of Texas was a plaintiff-appellee

in the court of appeals.

Respondents Chad Everet Brackeen, Jennifer Kay

Brackeen, Altagracia Socorro Hernandez, Jason

Clifford, Danielle Clifford, Frank Nicholas Libretti, and

Heather Lynn Libretti were plaintiffs-appellees in the

court of appeals. They will also separately file a petition

for writ of certiorari.

Respondents Deb Haaland, in her official capacity as

Secretary of the U.S. Department of the Interior; Bryan

Newland, in his official capacity as Acting Assistant Secretary for Indian Affairs; Xavier Becerra, in his official

capacity as Secretary of the U.S. Department of Health

and Human Services; the Bureau of Indian Affairs; the

U.S. Department of the Interior; the U.S. Department of

Health and Human Services; and the United States of

America were defendants-appellants in the court of appeals. *

Respondents Cherokee Nation, Oneida Nation,

Quinault Indian Nation, and Morongo Band of Mission

Indians were intervenors-defendants-appellants in the

court of appeals.

In the court of appeals, Secretary Haaland was automatically

substituted for her predecessor under Federal Rule of Appellate

Procedure 43(c)(2). In the courts below, defendants-appellants included Ryan Zinke, David Bernhardt, and Scott de Vaga.

Acting Assistant Secretary Newland is automatically substituted for his predecessor under this Court¡¯s Rule 35.3. In the courts

below, defendants-appellants included John Tahsuda III, Michael

Black, Tara Sweeney, and Darryl LaCounte.

In the court of appeals, Secretary Becerra was automatically

substituted for his predecessor under Federal Rule of Appellate

Procedure 43(c)(2). Defendants-appellants below included Alex

Azar.

*

(II)

Respondent the Navajo Nation intervened in support

of appellants in the court of appeals.

Respondents the States of Indiana and Louisiana

were plaintiffs-appellees in the court of appeals.

Bryan Rice, in his official capacity as Director of the

Bureau of Indian Affairs, was a defendant in the district

court.

RE L ATE D P RO C E E D ING S

Brackeen v. Zinke, No. 4:17-cv-00868-O, U.S. District

Court for the Northern District of Texas. Judgment entered October 4, 2018.

Brackeen v. Haaland, No. 18-11479, U.S. Court of

Appeals for the Fifth Circuit. Judgment entered April 6,

2021.

(III)

TABLE OF CONTENTS

Page

Questions Presented ......................................................... I

Parties to the Proceeding ................................................ II

Related Proceedings ...................................................... III

Table of Authorities ........................................................ VI

Petition for a Writ of Certiorari ...................................... 1

Opinions Below.................................................................. 2

Jurisdiction ........................................................................ 2

Constitutional and Statutory Provisions Involved ......... 2

Statement .......................................................................... 3

I. Statutory and Regulatory Background ............... 3

A. The Indian Child Welfare Act ........................ 3

B. The Final Rule ................................................. 6

II. Procedural History................................................ 7

A. District Court................................................... 7

B. Court of Appeals .............................................. 9

Reasons for Granting the Petition................................. 11

I. This Court Should Grant Certiorari to Clarify

that Congress Cannot Regulate State ChildCustody Proceedings Through the Indian

Commerce Clause. ............................................... 12

A. This Court has not clearly defined Congress¡¯s

authority over Indians. .................................. 13

B. Courts have taken an overbroad view of

Congress¡¯s authority over Indians. .............. 17

II. The Fifth Circuit¡¯s Decision Conflicts with This

Court¡¯s Equal-Protection Precedents. .............. 19

A. The Fifth Circuit¡¯s decision misreads this

Court¡¯s precedents regarding when Indian

classifications are political. ........................... 20

(IV)

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