Full opinion text
Reed O'Connor, UNITED STATES DISTRICT JUDGE This case arises because three children, in need of foster and adoptive placement, fortunately found loving adoptive parents who seek to provide for them. Because of certain provisions of a federal law, however, these three children have been threatened with removal from, in some cases, the only family they know, to be placed in another state with strangers. Indeed, their removals are opposed by the children's guardians or biological parent(s), and in one instance a child was removed and placed in the custody of a relative who had previously been declared unfit to serve as a foster parent. As a result, Plaintiffs seek to declare that federal law, known as the Indian Child Welfare Act (the "ICWA"), unconstitutional. In this case, the State Plaintiffs have filed a Motion for Summary Judgment (ECF No. 72), on April 26, 2018, and the Individual Plaintiffs filed a Motion for Summary Judgment (ECF No. 79), on the same day. Plaintiffs seek judgment as a matter of law on all of their claims. The parties appeared at a hearing on these motions and presented oral arguments on August 1, 2018. See Hr'g Tr., ECF No. 163. For the following reasons, the Court finds Plaintiffs' motions for summary judgment should be and are hereby GRANTED in part and DENIED in part. I. BACKGROUND First, the Court identifies the parties, next the legal backdrop of this dispute, and then the parties' claims, drawing in large part on those facts set out in the Order denying Defendants' motions to dismiss. See July 24, 2018 Order, ECF No. 155. Following these sections, this order will analyze the claims. Plaintiffs are comprised of three states-Texas, Louisiana, and Indiana, (collectively, the "State Plaintiffs"), and seven individual Plaintiffs-Chad Everett and Jennifer Kay Brackeen (the "Brackeens"), Nick and Heather Libretti (the "Librettis"), Altagracia Socorro Hernandez ("Ms. Hernandez"), and Jason and Danielle Clifford (the "Cliffords") (collectively, the "Individual Plaintiffs") (together with the State Plaintiffs, "Plaintiffs"). State Pls.' Br. Supp. Mot. Summ. J. 1-2, ECF No. 74 [hereinafter "State Pls.' Br."]. Defendants are the United States of America; the United States Department of the Interior (the "Interior") and its Secretary Ryan Zinke ("Zinke") in his official capacity; the Bureau of Indian Affairs (the "BIA") and its Director Bryan Rice ("Rice") in his official capacity; the BIA Principal Assistant Secretary for Indian Affairs John Tahsuda III ("Tahsuda") in his official capacity; the Department of Health and Human Services ("HHS") and its Secretary Alex M. Azar II ("Azar") (collectively the "Federal Defendants"). Id. Shortly after this case was filed, the Cherokee Nation, Oneida Nation, Quinalt Indian Nation, and Morengo Band of Mission Indians (collectively, the "Tribal Defendants") filed an unopposed motion to intervene, which the Court granted. See Trib. Defs.' Mot. Intervene, ECF No. 42; Mar. 28, 2018 Order, ECF No. 45. Plaintiffs seek to declare unconstitutional certain provisions of the ICWA and its accompanying regulations (codified at 25 C.F.R. part 23), known as the Indian Child Welfare Act Proceedings (the "Final Rule"), as well as certain provisions of the Social Security Act (the "SSA") that predicate federal funding for portions of state child-welfare payments on compliance with the ICWA. Plaintiffs argue that the ICWA and the Final Rule implement a system that mandates racial and ethnic preferences, in direct violation of state and federal law. Am. Comp. ¶ 193, ECF No. 35; 42 U.S.C. § 1996(b) ; TEX. FAM. CODE §§ 162.015, 264.1085 ; LA. CONST. art. 1, § 3. Plaintiffs ask that the Final Rule be declared invalid and set aside as a violation of substantive due process and as not in accordance with law (Counts One and Five). Am. Compl. ¶¶ 265, 349, ECF No. 35; 5 U.S.C. § 705(2)(A). Plaintiffs also ask that the ICWA, specifically sections 1901-23 and 1951-52, be declared unconstitutional under Article One and the Tenth Amendment of the United States Constitution because these provisions violate the Commerce Clause, intrude into state domestic relations, and violate the anti-commandeering principle (Counts Two and Three). Am. Compl. ¶¶ 281, 323, ECF No. 35. Finally, Plaintiffs ask that the ICWA sections 1915(a)-(b) be declared unconstitutional in violation of the equal protection guarantee of the Fifth Amendment to the United States Constitution and Individual Plaintiffs alone ask the same sections be declared unconstitutional in violation of substantive due process. (Counts Four and Six). Id. ¶¶ 338, 367. State Plaintiffs alone bring the final count, seeking a declaration that ICWA section 1915(c) and Final Rule section 23.130(b) violate the non-delegation doctrine (Count Seven). Am. Compl. ¶ 376, ECF No. 35. A. The ICWA and the SSA Congress passed the ICWA in 1978 in response to rising concerns over "abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes." Miss. Band of Choctaw Indians v. Holyfield , 490 U.S. 30, 32, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989). "Congress found that 'an alarmingly high percentage of Indian families [were being] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.' " Adoptive Couple v. Baby Girl , 570 U.S. 637, 133 S.Ct. 2552, 2557, 186 L.Ed.2d 729 (2013) (quoting 25 U.S.C. § 1901(4) ). Recognizing "that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children," Congress created a framework to govern the adoption of Indian children. See 25 U.S.C. § 1901, et seq. This framework establishes: (1) placement preferences in adoptions of Indian children; (2) good cause to depart from those placement preferences; (3) standards and responsibilities for state courts and their agents; and (4) consequences flowing from noncompliance with the statutory requirements. See id. The ICWA established "minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes." 25 U.S.C. § 1902. The ICWA mandates placement preferences in foster care, preadoptive, and adoptive proceedings involving Indian children. Id. § 1915. It requires that "in any adoptive placement of an Indian child under State law, a preference shall be given, in the absence of good cause to the contrary, to a place with: (1) a member of the child's extended family; (2) other members of the Indian child's tribe; or (3) other Indian families."Id. § 1915(a). Similar requirements are set for foster care or preadoptive placements. Id. § 1915(b). If the Indian child's tribal court should establish a different order of the preferences than that set by Congress, the state court or agency "shall follow such order so long as the placement is the least restrictive setting appropriate to the particular needs of the child." Id. § 1915(c). Absent good cause, the state court shall transfer proceedings concerning an Indian child to the Indian child's tribal court. 25 U.S.C. § 1911(b). In any state court proceeding for the "foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding." Id. § 1911(c). The ICWA prohibits the termination of parental rights for an Indian child in the absence of "evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child." Id. § 1912(f). State agencies and courts must notify potential intervenors and the Director of the BIA of an Indian child matter. 25 U.S.C. § 1912. In any involuntary child custody proceeding, the 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 intervene. 25 U.S.C. § 1912(a). Copies of these notices must be sent to the Secretary of the Interior and the BIA. No foster care placement or termination of parental rights proceeding may be held until at least ten days after receipt of such a notice by the parent or Indian custodian and tribe or the Secretary of the Interior. Id. The ICWA also grants the Indian custodian or tribe up to twenty additional days to prepare for such proceedings. Id. The ICWA dictates that an Indian parent or guardian may not give valid consent to termination of parental rights before ten days after the birth of the Indian child. 25 U.S.C. § 1913(a). Before parental rights are terminated "any parent or Indian custodian may withdraw consent to a foster care placement under State law at any time." Id. § 1913(b). In any voluntary proceeding for termination of parental rights or adoptive placement of an Indian child, the biological parents or the Indian tribe may withdraw consent for any reason prior to the entry of a final decree, and the child shall be returned. Id. § 1913(c). Finally, the 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 for up to two years after the final decree. Id. § 1913(d) ; Ind. Pls.' Br. Supp. Mot. Summ. J. 20, ECF No. 80 [hereinafter "Ind. Pls.' Br."]. The ICWA places recordkeeping duties on state agencies and courts-to demonstrate their compliance with the statute. 25 U.S.C. § 1915(e). Additionally, state courts entering final decrees must provide the Secretary of the Interior with a copy of the decree or order, along with the name and tribal affiliation 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. Id. § 1951. If the state court or prospective guardian fails to comply with the ICWA, the final child custody orders or placements may be overturned, whether on direct appeal or by another court of competent jurisdiction. 25 U.S.C. § 1914. To ensure state agencies and courts comply with the ICWA's mandates, it enables any Indian child who is the subject of any action under the ICWA, 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 the ICWA sections 1911, 1912, and 1913. Id. Section 1914 has also been applied to allow collateral attacks of adoptions after the close of the relevant window under state law. See id. ; Ind. Pls.' Br. 6, ECF No. 80; see e.g., Belinda K. v. Baldovinos , No. 10-cv-2507-LHK, 2012 WL 13571, at *4 (N.D. Cal. Jan. 4, 2012). Congress has also tied child welfare funding to compliance with the ICWA. The SSA requires states who receive child welfare funding through Title IV-B, Part 1 of the SSA to file annual reports, including a description of their compliance with the ICWA. Social Security Amendments Act of 1994, Pub. L. No. 103-432, § 204, 108 Stat. 4398 (1994) ; 42 U.S.C. § 622(a). Title IV-B funding is partially contingent on how well the states demonstrate their compliance with the ICWA. Part 'b' requires that a state's plan must also "contain a description, developed after consultation with tribal organizations ... in the State, of the specific measures taken by the State to comply with the [ICWA]." 42 U.S.C. § 622(b). Congress expanded the requirement for states to comply with the ICWA to receive SSA funding in 1999 and 2008 when it amended Title IV-E to require states to certify ICWA compliance to receive foster care and adoption services funding. Foster Care Independence Act of 1999, Pub. L. No. 106-69, § 101, 113 Stat. 1822 (1999) ; Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub. L. No. 110-351, § 301, 122 Stat. 3949 (2008). Finally, HHS regulations state that the HHS Administration for Children and Families ("ACF") "will determine a title IV-E agency's substantial conformity with title IV-B and title IV-E plan requirements" based on "criteria related to outcomes." 45 C.F.R. § 1355.34(a). Part 'b' of the same section includes compliance with the ICWA. Id. § 1355.34(b). In fiscal year 2018, Congress allocated to Texas approximately $410 million in federal funding for Title IV-B and Title IV-E programs, Louisiana received approximately $64 million, and Indiana received approximately $189 million. Am. Compl. ¶¶ 76-78, ECF No. 35. Plaintiffs argue that HHS and Secretary Azar have the authority to administer funding under Title IV-B and Title IV-E and are vested with discretion to approve or deny a state's compliance with the requirements of 42 U.S.C. §§ 622, 677. Therefore, Plaintiffs claim that funding under Title IV-B and IV-E is dependent on compliance with the ICWA. Am. Compl. ¶ 80, ECF No. 35. B. The 1979 Guidelines and Final Rule In 1979, before passage of the Final Rule, the BIA promulgated the Guidelines for State Courts-the Indian Child Custody Proceedings (the "1979 Guidelines"). 44 Fed. Reg. 67,584 (Nov. 26, 1979). The BIA intended these guidelines to assist in the implementation of the ICWA but they were "not intended to have binding legislative effect." Id. The 1979 Guidelines left the "primary responsibility" for interpreting the ICWA "with the courts that decide Indian child custody cases." Id. The 1979 Guidelines also emphasized that "the legislative history of the [ICWA] 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. As state courts applied the ICWA, some held that the 'good cause' exception to the ICWA placement preferences required a consideration of a child's best interest, including any bond or attachment the child formed. Ind. Pls.' Br. 7, ECF No. 80; see e.g., In re Interest of Bird Head , 213 Neb. 741, 331 N.W.2d 785, 791 (1983) ; In re Appeal in Maricopa Cnty., Juvenile Action No. A-25525 , 136 Ariz. 528, 667 P.2d 228, 234 (Ariz. Ct. App. 1983). Other state courts limited the ICWA's application to situations where the child had some significant political or cultural connection to the tribe. Ind. Pls.' Br. 7, ECF No. 80; 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). In June 2016, the BIA promulgated the Final Rule, which purported to "clarify the minimum Federal standards governing implementation of the [ICWA]" and to ensure that it "is applied in all States consistent with the Act's express language." 25 C.F.R. § 23.101. The regulations declared that while the BIA "initially hoped that binding regulations would not be necessary to carry out [the ICWA], a third of a century of experience has confirmed the need for more uniformity in the interpretation and application of this important Federal law." 81 Fed. Reg. 38,782 (June 14, 2016). Plaintiffs contend the main departure from the previous decades of practice under the ICWA was the Final Rule's definition of the 'good cause' exception to the preference placements and the evidentiary standard required to show good cause. Am. Compl. ¶ 116, ECF No. 35; Ind. Pls.' Br. 60-63, ECF No. 80. The Final Rule noted that "State courts ... differ as to what constitutes 'good cause' for departing from ICWA's placement preferences." 81 Fed. Reg. at 38,782. In response, the Final Rule mandates that "[t]he party urging that ICWA preferences not be followed bears the burden of proving by clear and convincing evidence the existence of good cause" to deviate from such a placement. 81 Fed. Reg. at 38,838 ; see also 25 C.F.R. § 23.132(b). The Final Rule further 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) ). Plaintiffs contrast the text of the 1979 Guidelines where "the use of the term 'good cause' was designed to provide state courts with flexibility" with the Final Rule, which now claims that "Congress intended the good cause exception to be narrow and limited in scope." Compare 44 Fed. Reg. at 67,584 (Nov. 26, 1979), with 81 Fed. Reg. at 38,839 (June 14, 2016). 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 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); Ind. Pls.' Br. 7-9, ECF No. 80. Beyond limiting what state courts may consider in determining "good cause," the Final Rule places more responsibilities on states to determine if the child is an Indian child. 25 C.F.R. § 23.107(a). These inquiries "should be on the 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. ; 25 C.F.R. § 23.107(b). Whenever a state court enters a final adoption decree or an order in an Indian child placement, the Final Rule requires the state court or agency to provide a copy of the decree or order to the BIA. 25 C.F.R. § 23.140. The Final Rule also requires states to "maintain a record of every voluntary or involuntary 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 [of the Interior]." 25 C.F.R. § 23.141. 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. 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. When determining if the child is an Indian child, only the Indian tribe of which the child is believed to be a member 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). When an Indian child is a member or eligible for membership in only one tribe, that tribe must be designated by the state court 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." 25 C.F.R. §§ 23.109(b)-(c). Only when the tribes disagree about the child's membership may state courts independently 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). The Final Rule instructs state courts to dismiss a voluntary or involuntary 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). The Final Rule requires state courts to terminate child custody proceedings if any party or the state 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. C. The Adoption Proceedings 1. The Brackeens and A.L.M. The Brackeens wished to adopt A.L.M, who was born in Arizona to an unmarried couple, M.M. and J.J. Ind. Pls.' App. Supp. Mot. Summ. J. 60, ECF No. 81 [hereinafter "Ind. Pls.' App."]. A.L.M. is an Indian child under the ICWA and 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 biological father is an enrolled member of the Cherokee Nation. Id. ; see 25 C.F.R. § 23.2. A few days after A.L.M. was born, his biological mother brought him to Texas to live with his paternal grandmother. Ind. Pls.' App. 61, ECF No. 81. When he was ten months old, Child Protective Services ("CPS"), a division of the Texas Department of Family and Protective Services ("DFPS"), removed A.L.M. from his grandmother and placed him in foster care with the Brackeens. Id. at 61. Pursuant to the ICWA and the Final Rule, 25 C.F.R. § 23.11, the Cherokee Nation and the Navajo Nation were notified of A.L.M.'s placement with the Brackeens. Id. at 61-62. Because DFPS identified no ICWA-preferred foster placement for A.L.M., he remained with the Brackeens. Id. A.L.M. lived with the Brackeens for more than sixteen months before, with the support of his biological parents and paternal grandmother, the Brackeens sought to adopt him. Id. In May 2017, a Texas state court terminated the parental rights of A.L.M.'s biological parents, making him eligible for adoption under Texas law. Id. at 61. Shortly thereafter, a year after the Brackeens took custody of A.L.M., the Navajo nation notified the state court that it had located a potential alternative placement for A.L.M. with non-relatives in New Mexico. Id. The Brackeens note that this placement would have moved A.L.M away from both his biological parents and the only home he has ever known. Id. at 61-62. In July 2017, the Brackeens filed an original petition seeking to adopt A.L.M. Id. at 62. The Cherokee and Navajo Nations were notified of the adoption proceeding in accordance with the ICWA and the Final Rule. Id. ; see 25 U.S.C. § 1912 ; see 25 C.F.R. § 23.11. No one intervened in the Texas adoption proceeding or otherwise formally sought to adopt A.L.M. Id. at 63. On August 1, 2017, a Texas family court held a hearing regarding the Brackeens' petition for adoption. Id. at 62. The Navajo Nation was designated as A.L.M.'s tribe, but this "determination of [A.L.M.'s] Tribe for purposes of ICWA and [the Final Rule] [did] not constitute a determination for any other purpose." 25 C.F.R. § 23.109(c)(3). Under the ICWA and the Final Rule placement preferences, absent good cause, an Indian child should be placed with a member of the child's extended family, a member of the child's Indian tribe, or another Indian family, in that order. See 25 U.S.C. § 1915(a). The Brackeens argued in state court that the ICWA's placement preferences should not apply because they were the only party formally seeking to adopt A.L.M., and that good cause existed to depart from the preferences. Ind. Pls.' App. 63, ECF No. 81. The Final Rule places the burden on the Brackeens, the party seeking adoption, to prove "by clear and convincing evidence that there was 'good cause' " to allow them, a non-Indian couple, to adopt A.L.M. 25 C.F.R. § 23.132(b). The Brackeens submitted testimony by A.L.M.'s biological parents, his court appointed guardian, and an expert in psychology to show good cause. Ind. Pls.' App. 62, ECF No. 81. However, Texas DFPS pointed to the Final Rule's heightened evidentiary requirements and argued that the Brackeens did not provide clear and convincing evidence of good cause to justify a departure from the placement preferences. Id. at 61-62. In January 2018, the Brackeens successfully petitioned to adopt A.L.M., but under the ICWA and the Final Rule, the Brackeens' adoption of A.L.M. is open to collateral attack for two years. Id. at 64; see 25 U.S.C § 1914 ; Ind. Pls.' Br. at 6, ECF No. 80; see e.g., Belinda K. v. Baldovinos , No. 10-cv-2507-LHK, 2012 WL 13571, at *4 (N.D. Cal. Jan. 4, 2012). Plaintiffs explain that the Brackeens intend to continue to provide foster care for, and possibly adopt, additional children in need. Ind. Pls.' App. 64, ECF No. 81. But they are reluctant, after this experience, to provide foster care for other Indian children in the future. Id. Plaintiffs argue that the ICWA and the Final Rule therefore interfere with the Brackeens' intention and ability to provide a home to additional children. Am. Compl. ¶ 154, ECF No. 35. Additionally, Plaintiffs argue that this legal regime harms Texas's interests by limiting the supply of available, qualified homes necessary to help foster-care children in general and Indian children in particular. Id. 2. The Librettis and Baby O. The Librettis are a married couple living in Sparks, Nevada. See Ind. Pls.' App. 66, ECF No. 81. They sought to adopt Baby O. when she was born in March 2016. Id. at 67. Baby O.'s biological mother, Ms. Hernandez, felt that she would be unable to care for Baby O. and wished to place her for adoption at her birth. Id. at 72. Ms. Hernandez has continued to be a part of Baby O.'s life and she and the Librettis visit each other regularly. Id. at 73. Baby O.'s biological father, E.R.G., descends from members of the Ysleta del sur Pueblo Tribe (the "Pueblo Tribe"), located in El Paso, Texas. Id. at 69. At the time of Baby O.'s birth, E.R.G. was not a registered member of the Pueblo Tribe. Id. at 73. The Pueblo Tribe intervened in the Nevada custody proceedings in an effort to remove Baby O. from the Librettis. Id. at 69. Once the Librettis joined the challenge to the constitutionality of the ICWA and the Final Rule, the Pueblo Tribe indicated its willingness to discuss settlement. Id. at 69. The Librettis have agreed to a settlement with the tribe that would permit them to petition for adoption of Baby O. Id. at 70. But Plaintiffs point out that any settlement would still be subject to collateral attack under the ICWA for two years. Am. Compl. ¶ 168, ECF No. 35. The Librettis intend to petition to adopt Baby O. as soon as they are able and are the only people who have indicated an intent to adopt her. Ind. Pls.' App. at 69-70, ECF No. 81. Similar to the Brackeens, the Librettis intend to provide foster care for and possibly adopt additional children in need. Id. at 70. Due to their experiences with the ICWA, the Librettis are "reluctant to provide a foster home for other Indian children in the future." Id. 3. The Cliffords and Child P. The Cliffords live in Minnesota and seek to adopt Child P. See Ind. Pls.' App. 2, ECF No. 81. Child P.'s maternal grandmother is a registered member of the White Earth Band of Ojibwe Tribe (the "White Earth Band"). Id. at 4. Child P. is a member of the White Earth Band for the purposes of the ICWA only. Id. The Minnesota state court considered itself bound by the White Earth Band's pronouncement and concluded that the ICWA must apply to all custody determinations concerning Child P. Id. at 4. However, because the ICWA placement preferences apply, county officials removed Child P. from the Cliffords. Id. at 5-6. Child P. was placed in the care of her maternal grandmother-whose foster licensed had been revoked-in January 2018. Id. at 3-6. Child P.'s guardian ad litem supports the Cliffords' efforts to adopt her and agrees that the adoption is in Child P's best interest. Id. at 5. However, due to the application of the ICWA, the Cliffords and Child P. remain separated and the Cliffords face heightened legal barriers to adopt Child P. Id. at 53. If the Cliffords are successful in petitioning for adoption, that adoption may be collaterally attacked for two years under the ICWA. 25 U.S.C. § 1915(a). D. State Plaintiffs Texas, Louisiana, and Indiana bring this suit in their capacities as sovereign states. See Am. Compl. ¶ 178, ECF No. 35. They claim that the ICWA and the Final Rule harm state agencies charged with protecting child welfare by usurping their lawful authority of the regulation of child custody proceedings and management of child welfare services. Id. Additionally, State Plaintiffs contend the ICWA and the Final Rule jeopardize millions of dollars in federal funding. Id. State Plaintiffs each have at least one Indian tribe living within their borders and have regular dealings with Indian child adoptions and the ICWA. Id. Plaintiffs argue that the ICWA and the Final Rule place significant responsibilities and costs on state agencies and courts to carry out federal Executive Branch directives. Id. at ¶ 187. Texas DFPS, Louisiana Department of Child and Family Services ("DCFS"), and the Indiana Department of Child Services ("DCS") each handle Indian child cases. See State Pls.' App at 10, 370, 394, ECF No. 73. The State Plaintiffs require their state agencies and courts to act in the best interest of the child in foster care, preadoptive, and adoptive proceedings. See id. at 37, 40, 44, 46, 64, 382. But the State Plaintiffs argue that the ICWA and Final Rule require these courts and agencies to apply the mandated placement preferences, regardless of the child's best interest, if the child at issue is an "Indian child." Am. Compl. ¶¶ 194-95, ECF No. 35. Additionally, State Plaintiffs argue that the ICWA's requirement that state courts submit to mandates from an Indian child's tribe violates state sovereignty because the Indian tribe is not an equal sovereign deserving full faith and credit. Id. ¶ 196; 25 U.S.C. § 1915(c). In every child custody case, the ICWA and Final Rule require the State Plaintiffs to undertake additional responsibilities, inquiries, and costs. As an example of how the ICWA and the Final Rule affect state administrative and judicial procedures, State Plaintiffs submit the Texas CPS Handbook (the "Texas Handbook"). Ind. Pls.' App. 16 (Texas Handbook) § 1225, ECF No. 73 [hereinafter "Texas Handbook"]. The Texas Handbook contains Texas DFPS's policies and procedures for compliance with the ICWA and the Final Rule. Id. at 9-29. First, these standards require that, in every case, CPS workers determine if the child or child's family has Native American ancestry or heritage. Id. at 12. The Texas Handbook provides guidance on how to ascertain if the ICWA and the Final Rule apply, how to comply with it, and warns that failure to comply could result in the final adoption order being overturned. Id. at 9-29. The Texas Handbook also states that if an Indian child is taken into DFPS custody, "almost every aspect of the social work and legal case is affected." Texas Handbook § 5844. If the ICWA applies, the legal burden of proof for removal, obtaining a final order terminating parental rights, and restricting a parent's custody rights is higher. Id. Texas DFPS must serve the child's parent, tribe, Indian custodian, and the BIA with a specific notice regarding the ICWA rights, and DFPS and its caseworkers "must make active efforts to reunify the child and biological Indian family." Id. Finally, the child must be placed according to the 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 is applied. Id. Indiana and Louisiana have similar requirements in place to assure that their child welfare systems comply with the ICWA and the Final Rule. See id. at 370-400. Louisiana DCFS must maintain ongoing contact with the Indian child's tribe because each tribe may elect to handle the ICWA differently. Am. Compl. ¶ 220, ECF No. 35. They are also required to ensure that the state agencies take "all reasonable steps" to verify the child's status. 25 C.F.R. § 23.124. The ICWA and the Final Rule require state courts to ask each participant, on the record, at the commencement of child custody proceedings whether the person knows or has reason to know whether the child is an Indian child and directs the parties to inform the court of any such information that arises later. 25 C.F.R. § 23.107(a). If the state court believes the child is an Indian child, it must document and confirm that the relevant state agency (1) used due diligence to identify and work with all of the tribes that 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). The ICWA and the Final Rule require the State Plaintiffs' agencies and courts to maintain indefinitely records of placements involving Indian children and subject those records to inspection by the Director of the BIA and the child's Indian tribe at any time. 25 U.S.C. §§ 1915(e), 1917 ; 25 C.F.R. §§ 23.140 -41. State Plaintiffs claim this increases costs for the agencies and courts who have to maintain additional records not called for under state law and hire or assign additional employees to maintain these records indefinitely. Am. Compl. ¶ 225, ECF No. 35. The statutes also affect the State Plaintiffs' rules of civil procedure. The ICWA section 1911(c) and the Final Rule dictate that the 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 the ICWA imposes a different legal standard of intervention to child custody cases involving Indian children. TEX. R. CIV. P. 60 ; 25 U.S.C. § 1911(c) ("In any State court proceeding ... the Indian child's tribe shall have a right to intervene at any point in the proceeding.") (emphasis added). In Louisiana, any person with a justiciable interest in an action may intervene. LA. CODE CIV. PROC. art. 1091. In Indiana, a person may intervene as of right or permissively, similar to the Federal Rules of Civil Procedure. IND. R. TR. PROC. 24. The ICWA, however, eliminates these requirements and provides mandatory intervention for the Indian child's custodian and the child's tribe. 25 U.S.C. § 1911(c). Finally, the ICWA and the Final Rule override the State Plaintiffs' laws with respect to voluntary consent to relinquish parental rights. See 25 U.S.C. § 1913(a) ; 25 C.F.R. § 23.125(e). Texas law permits voluntary relinquishment of parental rights forty-eight hours after the birth of the child; Louisiana allows surrender prior to or after birth of the child, and surrender of maternal rights five days after the birth of the child, and Indiana permits voluntary termination of parental rights after birth of the child. TEX. FAM. CODE § 161,103(a)(1); LA. CHILD CODE art. 1130 ; IND. CODE § 31-35-1-6. The ICWA and Final Rule prohibit any consent until ten days after the birth. 25 U.S.C. § 1913(a) ; 25 C.F.R. § 23.125(e). The ICWA and the Final Rule also affect how long a final adoption decree is subject to challenge. Under the ICWA, state courts must vacate a final adoption decree involving an Indian child, and return the child to the biological parent, any time within two years if the parent withdraws consent on the grounds that it was obtained through fraud or duress. 25 U.S.C. § 1913(d) ; 25 C.F.R. § 23.136. This directly conflicts with Texas, Louisiana, and Indiana state law, which provide that an adoption decree is subject to direct or collateral attack for no more than one year. TEX. FAM. CODE § 162.012(a) (up to six months); Goodson v. Castellanos , 214 S.W.3d 741, 748-49 (Tex. App.-Austin 2007, pet. denied) ; LA. CHILD. CODE art. 1263 (up to six months); IND. CODE § 31-19-14-2 (up to six months after entry of adoption decree; or up to one year after adoptive parents obtain custody, whichever is later). It also contradicts the Texas common law principle, as well as Indiana statutory law, which hold that the best interest of the child is served by concluding child custody decisions so that these decisions are not unduly delayed. In re M.S. , 115 S.W.3d 534, 548 (Tex. 2003) ; IND. CODE § 31-19-14-2. The ICWA however permits the invalidation, by any court of competent jurisdiction, of a state court's final child custody order if it fails to comply with the ICWA. 25 U.S.C. § 1914 ; 25 C.F.R. § 23.137. Finally, the State Plaintiffs contend if they fail to comply with the ICWA, they risk losing funding for child welfare services under Title IV-B and Title IV-E of the SSA. Am. Compl. ¶ 243, ECF No. 35; 42 U.S.C. §§ 622, 677. Defendants Zinke, Rice, Tahsuda, and Azar, and their respective federal departments, determine if the State Plaintiffs are in compliance with the ICWA's statutory requirements, and in turn, whether they are eligible for continued funding under Title IV-B and Title IV-E funding. Plaintiffs moved for summary judgment on all counts, arguing there is no dispute of material fact and only questions of law remain. See ECF Nos. 72, 79. The motions are ripe for review. II. LEGAL STANDARD The Court may grant summary judgment where the pleadings and evidence show "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." FED. R. CIV. P. 56(a). "[T]he substantive law will identify which facts are material." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A genuine dispute as to any material fact exists "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. The movant must inform the Court of the basis of its motion and demonstrate from the record that no genuine dispute as to any material fact exists. See Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). When reviewing the evidence on a motion for summary judgment, the Court must decide all reasonable doubts and inferences in the light most favorable to the non-movant. See Walker v. Sears, Roebuck & Co. , 853 F.2d 355, 358 (5th Cir. 1988). The Court cannot make a credibility determination in light of conflicting evidence or competing inferences. Anderson , 477 U.S. at 255, 106 S.Ct. 2505. If there appears to be some support for disputed allegations, such that "reasonable minds could differ as to the import of the evidence," the Court must deny the motion. Id. at 250, 106 S.Ct. 2505. III. ANALYSIS Plaintiffs move for summary judgment, claiming that the ICWA and the Final Rule violate: (1) the equal protection requirements of the Fifth Amendment; (2) the Due Process Clause of the Fifth Amendment; (3) the Tenth Amendment; and (4) the proper scope of the Indian Commerce Clause. Plaintiffs also argue that: (1) the Final Rule violates the Administrative Procedure Act (the "APA"); and (2) the ICWA violates Article I of the Constitution. See generally Ind. Pls.' Br., ECF No. 80; State Pls.' Br., ECF No. 74. A. Fifth Amendment Equal Protection Claim Plaintiffs claim that sections 1915(a)-(b), section 1913(d), and section 1914 of the ICWA as well as sections 23.129-132 of the Final Rule violate the Fifth Amendment's guarantee of equal protection under the laws. The parties primarily disagree about whether sections 1915(a)-(b) of the ICWA rely on racial classifications requiring strict scrutiny review. Ind. Pls.' Br. 41, ECF No. 80; Fed. Defs.' Br. Supp. Resp. Obj. Ind. Mot. Summ. J. 14, ECF No. 123 [hereinafter "Fed. Defs.' Resp. Ind."]. Plaintiffs argue the ICWA provides special rules in child placement proceedings depending on the race of the child, which is permissible only if the race-based distinctions survive strict scrutiny. Ind. Pls.' Br. 42-44. ECF No. 80; State Pls.' Br. 57, ECF No. 74. The Federal Defendants and Tribal Defendants (collectively, "Defendants") disagree, contending the ICWA distinguishes children based on political categories, which requires only a rational basis. Fed. Defs.' Resp. Ind. 11, ECF No. 123; Trib. Defs.' Resp. 16, ECF No. 118. Resolution of this issue will direct the level of scrutiny to be applied to Plaintiffs' challenge of the ICWA and Final Rule. 1. Appropriate Level of Review Unlike the Fourteenth Amendment, the text of the Fifth Amendment does not contain an equal protection clause. But courts "employ the same test to evaluate alleged equal protection violations under the Fifth Amendment as under the Fourteenth Amendment." Richard v. Hinson , 70 F.3d 415, 417 (5th Cir. 1995) (citing Adarand Constructors, Inc. v. Pena , 515 U.S. 200, 217, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) ). This means that to survive strict scrutiny, "federal racial classifications, like those of a State, must serve a compelling governmental interest, and must be narrowly tailored to further that interest." Id. at 202, 115 S.Ct. 2097 ; see also Fisher v. Univ. of Tex. at Austin , 758 F.3d 633, 664 (5th Cir. 2014). On the other hand, when a federal statute governing Indians relies on political classifications, the legislation is permissible if singling out Indians for "particular and special treatment" is "tied rationally to the fulfillment of Congress' unique obligation toward the Indians." Morton v. Mancari , 417 U.S. 535, 554-55, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974). This requirement mirrors typical rational basis review which requires only that the government show a statute is rationally related to a legitimate government interest. See F.C.C. v. Beach Commc'ns, Inc. , 508 U.S. 307, 314, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). The parties rely on precedent developed by the Supreme Court's (and various circuits') review of statutes focused on American Indians and other native peoples. See Mancari , 417 U.S. 535, 94 S.Ct. 2474 ; see Rice v. Cayetano , 528 U.S. 495, 120 S.Ct. 1044, 145 L.Ed.2d 1007 (2000). The Supreme Court's decisions in Rice and Mancari explain the differences between classifications based on race and those based on tribal membership. See id. Plaintiffs argue that Rice controls because the ICWA, like the statute in Rice , utilizes ancestry as a proxy for a racial classification. Ind. Pls.' Br. 42-44, ECF No. 80; State Pls.' Reply 18, ECF 142. Defendants counter that Mancari and other decisions going back hundreds of years support their contention that the ICWA's Indian classification is based on political characteristics. Fed. Defs.' Resp. Ind. 11, ECF No. 123; Trib. Defs.' Resp. 16, ECF No. 118. a. Ancestry as Racial Classification Plaintiffs argue that the placement preferences in sections 1915(a)-(b) of the ICWA, as well as the collateral-attack provisions in section 1913(d) and section 1914, include race-based classifications like those in Rice , which must survive strict scrutiny review. Ind. Pls.' Br. 41, ECF No. 80; State Pls.' Br. 54-57, ECF No. 74. In Rice , the Supreme Court overturned a Hawaiian statute restricting voter eligibility to only "native Hawaiians" and those with "Hawaiian" ancestry for positions at a state agency. Rice , 528 U.S. at 519, 120 S.Ct. 1044. By declaring this restriction an unlawful racial preference, the Supreme Court found that "ancestry can be a proxy for race" and noted that "racial discrimination is that which singles out 'identifiable classes of persons ... solely because of their ancestry or ethnic characteristics.' " Id. at 515, 120 S.Ct. 1044 (citation omitted). The Supreme Court held that Hawaii had "used ancestry as a racial definition and for a racial purpose" and noted "ancestral tracing ... employs the same mechanisms, and causes the same injuries, as laws or statutes that use race by name." Id. at 517, 120 S.Ct. 1044. Plaintiffs contend the ICWA preferences are no different than the preferences struck down in Rice. b. Tribal Membership as a Political Classification Defendants respond that the ICWA's placement preferences rely on political classifications like the statute in Mancari , rather than racial classifications like the statute in Rice , and are therefore only subject to rational basis review. Fed. Defs.' Resp. Ind. 11, ECF No. 123; Trib. Defs.' Resp. 16, ECF No. 118. In Mancari , the plaintiffs sought to declare unconstitutional a BIA hiring standard that gave preference to Indian applicants. See Mancari , 417 U.S. at 535, 94 S.Ct. 2474. The Supreme Court upheld this hiring preference, concluding it was a political, rather than a racial, preference. Id. Because the preference was "an employment criterion reasonably designed to further the cause of Indian self-government and to make the BIA more responsive to the needs of its constituent groups," it was "reasonably and directly related" to a legitimate non-racial goal. Id. at 554, 94 S.Ct. 2474. The preference was designed to give those Indians who were "members of quasi-sovereign tribal entities" and who chose to apply for jobs at the BIA, an opportunity to govern tribal activities in "a unique fashion." Id. at 554, 94 S.Ct. 2474. While the Supreme Court held the preference was constitutional, its decision was uniquely tailored to that particular set of facts. Id. at 551, 94 S.Ct. 2474 ("the Indian preference statute is a specific provision applying to a very specific situation"); see Rice , 528 U.S. at 520, 120 S.Ct. 1044 ("The [ Mancari ] opinion was careful to note, however, that the case was confined to the authority of the BIA, an agency described as 'sui generis. ' "). Importantly, the preference in Mancari applied "only to members of 'federally recognized' tribes which operated to exclude many individuals who are racially to be classified as Indians." Id. at 555 n.24, 94 S.Ct. 2474. And this preference provided special treatment only to Indians living on or near reservations. Id. at 552, 94 S.Ct. 2474 ; see also Rice , 528 U.S. at 516-17, 120 S.Ct. 1044 ("Simply because a class defined by ancestry does not include all members of the race does not suffice to make the classification neutral"). Mancari therefore did not announce that all arguably racial preferences involving Indians are actually political preferences. Id. at 554, 94 S.Ct. 2474. Instead, the Supreme Court recognized that applying its decision more broadly would raise the "obviously more difficult question that would be presented by a blanket exemption for Indians." Id. at 554, 94 S.Ct. 2474. c. The ICWA Classification The specific classification at issue in this case mirrors the impermissible racial classification in Rice , and is legally and factually distinguishable from the political classification in Mancari. The ICWA's membership eligibility standard for an Indian child does not rely on actual tribal membership like the statute in Mancari . Id. at 554, n.24, 94 S.Ct. 2474 (the preference only applied to members of federally recognized tribes, which "operates to exclude many individuals who are racially classified as 'Indians' "); see 25 U.S.C. § 1903(4). Instead, it defines an Indian child as one who is a member "of an Indian tribe" as well as those children simply eligible for membership who have a biological Indian parent. See 25 U.S.C. § 1903(4). This means one is an Indian child if the child is related to a tribal ancestor by blood. See e.g. Navajo Nation Code § 701; see CHEROKEE CONST. art. IV, § 1; see CONST. OF WHITE EARTH NATION , Chap. 2. Art. 1; see Yselta del Sur Pueblo Tribe Code of Laws § 3.01; Ysleta del Sur Pueblo and Alabama and Coushatta Indian Tribes of Texas Restoration Act, Pub. Law 100-89, 101 Stat. 669 (1987). These classifications are similar to the "blanket exemption for Indians," which Mancari noted would raise the difficult issue of racial preferences, as well as the classifications declared unconstitutional in Rice . 528 U.S. at 499, 120 S.Ct. 1044 ("racial discrimination is that which singles out "identifiable classes of persons ... solely because of their ancestry or ethnic characteristics."). By deferring to tribal membership eligibil ity standards based on ancestry, rather than actual tribal affiliation, the ICWA's jurisdictional definition of "Indian children" uses ancestry as a proxy for race and therefore "must be analyzed by a reviewing court under strict scrutiny." Adarand , 515 U.S. at 227, 115 S.Ct. 2097. 2. Strict Scrutiny Review Because the ICWA relies on racial classifications, it must survive strict scrutiny. Courts "apply strict scrutiny to all racial classifications to 'smoke out' illegitimate uses of race by assuring that [the government] is pursuing a goal important enough to warrant use of a highly suspect tool." Grutter v. Bollinger , 539 U.S. 306, 326, 123 S.Ct. 2325, 156 L.Ed.2d 304 (2003). To survive strict scrutiny review, the classifications must be "narrowly tailored to further a compelling governmental interest." Id. a. Compelling Interest Requirement Here, the Federal Defendants have not offered a compelling governmental interest that the ICWA's racial classification serves, or argued that the classification is narrowly tailored to that end. Rather, the Federal Defendants rest their entire defense to this claim on their argument that the ICWA classified Indians politically, which requires only that it be rationally tied to fulfillment of Congress's unique obligation to the Indians. Fed. Defs.' Resp. Ind. 25, ECF No. 123. Given the ICWA is a race-based statute, the Government has failed to meet its burden to show the challenged statute is narrowly tailored to a compelling interest. Fisher , 758 F.3d at 664 (citation omitted). Because the government did not prove-or attempt to prove -why the ICWA survives strict scrutiny, it has not carried its burden to defend the ICWA and Plaintiffs are entitled to judgment as a matter of law on their equal protection claim. b. Narrow Tailoring Requirement The Federal Defendants argue that "fulfilling Congress's unique obligation toward the Indians" is a legitimate government purpose supporting their rational basis analysis. Fed. Defs.' Resp. Ind. 312 ECF No. 123 (citing Mancari , 417 U.S. at 555, 94 S.Ct. 2474 ). Likewise, at the hearing on these motions the Tribal Defendants offered "maintain[ing] the Indian child's relationship with the tribe" as a possible compelling interest. Hr'g Tr. 87:23-25, ECF No. 163. The compelling interest standard necessarily requires a stronger interest than is required under the broad legitimate government purpose standard. See Richard , 70 F.3d at 417 (describing rational basis and strict scrutiny review standards). Here, however, the Court will assume these interests are compelling and will evaluate whether the statute is narrowly tailored. As stated above, a racial statute must be narrowly tailored to a compelling government interest to survive strict scrutiny. Grutter , 539 U.S. at 326, 123 S.Ct. 2325. In other words, the statute's means must be narrowly tailored to its ends. Id. To evaluate whether a statute is narrowly tailored to a compelling interest, the Supreme Court has considered whether the statute covers too many-or too few-people to achieve its stated purpose. See Brown v. Entm't Merchs. Ass'n , 564 U.S. 786, 804, 131 S.Ct. 2729, 180 L.Ed.2d 708 (2011). The Supreme Court labels statutes that fail this test as overinclusive, underinclusive, or both. See id. A statute is overinclusive when it "burdens more people than necessary to accomplish the legislation's goal." Overinclusive. MERRIAM-WEBSTER'S DICTIONARY OF LAW (2016); see e.g. Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah , 508 U.S. 520, 578, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993) (Blackmun, J. concurring) (an overinclusive statute is "one that encompasses more ... than necessary to achieve its goal"); see e.g. Mance v. Sessions (Ho, J. dissenting from denial of rehearing en banc) ("a categorical ban ... is over-inclusive-it prohibits a significant number of transactions that fully comply with state law.") (emphasis added). Here, the statute is broader than necessary because it establishes standards that are unrelated to specific tribal interests and applies those standards to potential Indian children. First, portions of the ICWA preferences are unrelated to specific tribal interests in that the statute includes as a priority a child's placement with any Indian, regardless of whether the child is eligible for membership in that person's tribe. See 25 U.S.C. § 1915(a)(3). By doing so, the ICWA preferences categorically, and impermissibly, treat "all Indian tribes as an undifferentiated mass." United States v. Bryant , --- U.S. ----, 136 S.Ct. 1954, 1968, 195 L.Ed.2d 317 (2016) (Thomas, J., concurring). Applying the preference to any Indian, regardless of tribe, is not narrowly tailored to maintaining the Indian child's relationship with his tribe. See Br. for the Goldwater Inst. as Amicus Curiae in Opposition to Defs.' Mot. to Dismiss 5, ECF No. 133 ("ICWA's placement preferences do not depend on tribal or political or cultural affiliation; they depend on generic "Indianness." "). The ICWA applies to many children who will never become members of any Indian tribe, 25 U.S.C. § 1903(4), and the first preference is to place the child with family members who may not be tribal members at all. 25 U.S.C. § 1915(1). These provisions burden more children than necessary to accomplish the goal of ensuring children remain with their tribes. The ICWA's racial classification applies to potential Indian children, including those who will never be members of their ancestral tribe, those who will ultimately be placed with non-tribal family members, and those who will be adopted by members of other tribes. Because two of the three preferences have no connection to a child's tribal membership, this blanket classification of Indian children is not narrowly tailored to a compelling governmental interest and thus fails to survive strict scrutiny review. For these reasons, the Court finds that Plaintiffs' motion for summary judgment on their equal protection claim is GRANTED. B. Article I Non-Delegation Claim State Plaintiffs also argue that section 1915 (c) of the ICWA is unconstitutional because it delegates congressional power to Indian tribes in violation of the non-delegation doctrine outlined in Article I of the Constitution. Article I, known as the vesting clause, provides: "All legislative Powers ... shall be vested in a Congress of the United States." U.S. CONST. I, § 1, cl.1. State Plaintiffs argue that the ICWA impermissibly grants Indian tribes the authority to reorder congressionally enacted adoption placement preferences by tribal decree and then apply their preferred order to the states. State Pls.' Br. 47, ECF No. 74. They also contend that section 23.130 (b) of the Final Rule, which provides that a tribe's established placement preferences apply over those specified in the ICWA, violates the doctrine. Am. Compl. ¶ 372, ECF No. 35; 25 C.F.R. § 23.130 (b). Tribal Defendants respond that the tribes are permissibly exercising regulatory power subject to an intelligible principle. Tribal Defs.' Br. Supp. Resp. Mot. Summ. J. at 35, ECF No. 118 [hereinafter "Trib. Defs.' Resp."]. If so, Defendants argue the ICWA survives the non-delegation challenge. Id. 1. Legislative or Regulatory Power Distinguishing between permissible and non-permissible delegations of congressional power usually requires asking whether Congress is delegating discretion to create law or discretion to execute law. Loving v. United States , 517 U.S. 748, 758, 116 S.Ct. 1737, 135 L.Ed.2d 36 (1996). Congress plainly cannot delegate its inherent legislative power to create law, defined as the power to formulate binding rules generally applicable to private individuals. Dep't. of Transp. v. Ass'n of Am. R.R.'s , --- U.S. ----, 135 S.Ct. 1225, 1246, 191 L.Ed.2d 153 (2015) (Thomas, J. concurring); A.L.A. Schechter Poultry Corp. v. United States , 295 U.S. 495, 529, 55 S.Ct. 837, 79 L.Ed. 1570 (1935) ("The Congress is not permitted to abdicate or to transfer to others the essential legislative functions with which it is thus vested."); see Wayman v. Southard , 10 Wheat. 1, 42-43, 6 L.Ed. 253 (1825) (Marshall, C.J.). On the other hand, Congress may grant a federal agency the regulatory power necessary to execute legislation as well as interpret ambiguities therein. See City of Arlington, Tex. v. F.C.C. , 569 U.S. 290, 296, 133 S.Ct. 1863, 185 L.Ed.2d 941 (2013). An exercise of regulatory power does not empower an entity to "formulate generally applicable rules of private conduct." Ass'n of Am. R.R.'s , 135 S.Ct. at 1252 (Thomas, J. concurring). The core of regulatory power involves factual determination or policy judgment necessary to execute the law. See Whitman v. Am. Trucking Ass'ns, 531 U.S. 457, 474-75, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001) (quoting Mistretta v. United States , 488 U.S. 361, 416, 109 S.Ct. 647, 102 L.Ed.2d 714 (1989) (Scalia, J., dissenting) ). To determine whether a delegation of regulatory power is proper, courts employ the "intelligible principle" standard which states that Congress properly delegates regulatory power to federal agencies when it establishes an "intelligible principle" on which the agency can base decisions. Whitman v. Am. Trucking Ass'n , 531 U.S. 457, 474, 121 S.Ct. 903, 149 L.Ed.2d 1 (2001). Defendants are correct that the Supreme Court applies the test liberally and has "almost never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law." Id. at 474-75, 121 S.Ct. 903 (emphasis added). Here, the Tribes were granted the power to change the legislative preferences Congress enacted in the ICWA, and those changes are binding on the States. See 25 U.S.C. § 1915(c) ; see also Br. of Amicus Curiae 123 Federally Recognized Indian Tribes et al. in Opposition to Pls.' Mots. Summ. J. 22-23, ECF No. 138 ("... ICWA confirms tribes' authority to enact placement preferences for their member children, and as an exercise of Congress' established authority over Indian affairs, requires that state courts, when exercising their concurrent jurisdiction over those children, give effect to those legislative preferences. ") (emphasis added). The power to change specifically enacted Congressional priorities and impose them on third parties can only be described as legislative. Ass'n of Am. R.R.'s , 135 S.Ct. at 1253-1254 (Thomas, J. concurring) ("an exercise of policy discretion ... requires an exercise of legislative power"). This is particularly true when the entity allowed to change those priorities is not tasked with executing the law. Congress "cannot delegate its exclusively legislative authority at all." See Washington v. Confederated Tribes of Colville Indian Reservation , 447 U.S. 134, 156, 100 S.Ct. 2069, 65 L.Ed.2d 10 (1980) ; White Mountain Apache Tribe v. Arizona , 649 F.2d 1274, 1281 (9th Cir. 1981). Accordingly, section 1915(c) of the ICWA and section 23.130 (b) of the Final Rule violate the non-delegation doctrine. 2. Federal Actor Requirement Alternatively, even if Congress granted permissible regulatory power through the ICWA, it impermissibly granted federal regulatory power to an Indian tribe. Congress certainly has authority to regulate the Indian tribes. U.S. CONST. , art. 1, § 8, cl. 3. Likewise, tribes unquestionably may regulate conduct on tribal lands and reservations. Atkinson Trading Co., Inc. v. Shirley , 532 U.S. 645, 650-