Whether the Fifth Circuit erred in invalidating ICWA provisions as impermissibly commandeering states

QUESTIONS PRESENTED In 1978, Congress enacted the Indian Child Welfare Act (“ICWA”) to remedy the “alarmingly high percentage of Indian families [being] broken up by the removal, often unwarranted, of their children by nontribal public and private agencies.” 25 U.S.C. §1901(4). Over the ensuing four decades, state courts have repeatedly sustained ICWA as constitutional, and child-welfare professionals now regard ICWA’s procedural and substantive requirements as the gold standard for child welfare. Below, however, the district court struck down much of ICWA. And while the en banc Fifth Circuit rejected most of the district court’s reasoning, a sharply divided court invalidated several ICWA provisions. The en banc court also affirmed, by an equally divided court, the district court’s judgment invalidating several additional provisions. The questions presented are: 1. Did the en banc Fifth Circuit err by invalidating six sets of ICWA provisions—25 U.S.C. §§1912(a), (d), (e)-(f), 1915(a)-(b), (e), and 1951(a)—as impermissibly commandeering States (including via its equally divided affirmance)? 2. Did the en banc Fifth Circuit err by reaching the merits of the plaintiffs’ claims that ICWA’s placement preferences violate equal protection? 3. Did the en banc Fifth Circuit err by affirming (via an equally divided court) the district court’s judgment invalidating two of ICWA’s placement preferences, 25 U.S.C. §1915(a)(3), (b)(iii), as failing to satisfy the ii rational-basis standard of Morton v. Mancari, 417 U.S. 5385 (1974)?