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Full Opinion
PRELIMINARY PRINT
Volume 599 U. S. Part 1
Pages 255â381
OFFICIAL REPORTS
OF
THE SUPREME COURT
June 15, 2023
Page Proof Pending Publication
REBECCA A. WOMELDORF
reporter of decisions
NOTICE: This preliminary print is subject to formal revision before
the bound volume is published. Users are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington, D.C. 20543,
pio@supremecourt.gov, of any typographical or other formal errors.
OCTOBER TERM, 2022 255
Syllabus
HAALAND, SECRETARY OF THE INTERIOR, et al.
v. BRACKEEN et al.
certiorari to the united states court of appeals for
the î
fth circuit
No. 21â376. Argued November 9, 2022âDecided June 15, 2023*
This case arises from three separate child custody proceedings governed
by the Indian Child Welfare Act (ICWA), a federal statute that aims to
keep Indian children connected to Indian families. ICWA governs
state-court adoption and foster care proceedings involving Indian chil-
dren. Among other things, the Act requires placement of an Indian
child according to the Act's hierarchical preferences, unless the state
court fnds âgood causeâ to depart from them. 25 U. S. C. §§ 1915(a),
(b). Under those preferences, Indian families or institutions from any
tribe (not just the tribe to which the child has a tie) outrank unrelated
non-Indians or non-Indian institutions. Further, the child's tribe may
pass a resolution altering the prioritization order. § 1915(c). The pref-
erences of the Indian child or her parent generally cannot trump those
Page Proof Pending Publication
set by statute or tribal resolution.
In involuntary proceedings, the Act mandates that the Indian child's
parent or custodian and tribe be given notice of any custody proceed-
ings, as well as the right to intervene. §§ 1912(a), (b), (c). Section
1912(d) requires a party seeking to terminate parental rights or to re-
move an Indian child from an unsafe environment to âsatisfy the court
that active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of the Indian
family,â and a court cannot order relief unless the party demonstrates,
by a heightened burden of proof and expert testimony, that the child is
likely to suffer âserious emotional or physical damageâ if the parent or
Indian custodian retains custody. §§ 1912(d), (e). Even for voluntary
proceedings, a biological parent who gives up an Indian child cannot
necessarily choose the child's foster or adoptive parents. The child's
tribe has âa right to intervene at any point in [a] proceedingâ to place a
child in foster care or terminate parental rights, as well as a right to
collaterally attack the state court's custody decree. §§ 1911(c), 1914.
*Together with No. 21â377, Cherokee Nation et al. v. Brackeen et al.,
No. 21â378, Texas v. Haaland, Secretary of the Interior, et al., and No.
21â380, Brackeen et al. v. Haaland, Secretary of the Interior, et al., also
on certiorari to the same court.
256 HAALAND v. BRACKEEN
Syllabus
The tribe thus can sometimes enforce ICWA's placement preferences
against the wishes of one or both biological parents, even after the child
is living with a new family. Finally, the States must keep certain rec-
ords related to child placements, see § 1915(e), and transmit to the Secre-
tary of the Interior all fnal adoption decrees and other specifed infor-
mation, see § 1951(a).
Petitionersâa birth mother, foster and adoptive parents, and the
State of Texasâfled this suit in federal court against the United States
and other federal parties. Several Indian Tribes intervened to defend
the law alongside the federal parties. Petitioners challenged ICWA as
unconstitutional on multiple grounds. They asserted that Congress
lacks authority to enact ICWA and that several of ICWA's requirements
violate the anticommandeering principle of the Tenth Amendment.
They argued that ICWA employs racial classifcations that unlawfully
hinder non-Indian families from fostering or adopting Indian children.
And they challenged § 1915(c)âthe provision that allows tribes to alter
the prioritization orderâon the ground that it violates the nondelega-
tion doctrine.
The District Court granted petitioners' motion for summary judgment
on their constitutional claims, and the en banc Fifth Circuit affrmed in
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part and reversed in part. The Fifth Circuit concluded that ICWA does
not exceed Congress's legislative power, that § 1915(c) does not violate
the nondelegation doctrine, and that some of ICWA's placement prefer-
ences satisfy the guarantee of equal protection. The Fifth Circuit was
evenly divided as to whether ICWA's other preferencesâthose prioritiz-
ing âother Indian familiesâ and âIndian foster home[s]â over non-Indian
familiesâunconstitutionally discriminate on the basis of race, and thus
affrmed the District Court's ruling that these preferences are unconsti-
tutional. As to petitioners' Tenth Amendment arguments, the Fifth
Circuit held that § 1912(d)'s âactive effortsâ requirement, § 1912(e)'s and
§ 1912(f)'s expert witness requirements, and § 1915(e)'s recordkeeping
requirement unconstitutionally commandeer the States. And because
it divided evenly with respect to other challenged provisions (§ 1912(a)'s
notice requirement, § 1915(a) and § 1915(b)'s placement preferences,
and § 1951(a)'s recordkeeping requirement), the Fifth Circuit affrmed
the District Court's holding that these requirements violate the Tenth
Amendment.
Held:
1. The Court declines to disturb the Fifth Circuit's conclusion that
ICWA is consistent with Congress's Article I authority. Pp. 272â280.
(a) The Court has characterized Congress's power to legislate with
respect to the Indian tribes as âplenary and exclusive,â United States v.
Cite as: 599 U. S. 255 (2023) 257
Syllabus
Lara, 541 U. S. 193, 200, superseding both tribal and state authority,
Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56. The Court has traced
that power to multiple sources. First, the Indian Commerce Clause
authorizes Congress â[t]o regulate Commerce . . . with the Indian
Tribes,â U. S. Const., Art. I, § 8, cl. 3, and the Court has interpreted the
Indian Commerce Clause to reach not only trade, but also certain âIn-
dian affairs,â Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 192.
The Treaty Clause provides a second source of power. The treaty
power âdoes not literally authorize Congress to act legislatively,â since
it is housed in Article II, but âtreaties made pursuant to that power can
authorize Congress to deal with `matters' with which otherwise `Con-
gress could not deal.' â Lara, 541 U. S., at 201. Also, principles inher-
ent in the Constitution's structure may empower Congress to act in the
feld of Indian affairs. See Morton v. Mancari, 417 U. S. 535, 551â552.
Finally, the âtrust relationship between the United States and the In-
dian peopleâ informs the exercise of legislative power. United States
v. Mitchell, 463 U. S. 206, 225â226. In sum, Congress's power to legis-
late with respect to Indians is well established and broad, but it is not
unbounded. It is plenary within its sphere, but even a sizeable sphere
has borders. Pp. 272â276.
(b) Petitioners contend that ICWA impermissibly treads on the
Page Proof Pending Publication
States' traditional authority over family law. But when Congress val-
idly legislates pursuant to its Article I powers, the Court âhas not hesi-
tatedâ to fnd conficting state family law preempted, â[n]otwithstanding
the limited application of federal law in the feld of domestic relations
generally.â Ridgway v. Ridgway, 454 U. S. 46, 54. And the Court has
recognized Congress's power to displace the jurisdiction of state courts
in adoption proceedings involving Indian children. Fisher v. District
Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 390 (per cu-
riam). Pp. 276â277.
(c) Petitioners contend that no source of congressional authority
authorizes Congress to regulate custody proceedings for Indian chil-
dren. They suggest that the Indian Commerce Clause, for example,
authorizes Congress to legislate only with respect to Indian tribes as
government entities, not Indians as individuals. But this Court's hold-
ing more than a century ago that âcommerce with the Indian tribes,
means commerce with the individuals composing those tribes,â United
States v. Holliday, 3 Wall. 407, 417, renders that argument a dead end.
Petitioners also assert that ICWA takes the âcommerceâ out of the In-
dian Commerce Clause because âchildren are not commodities that can
be traded.â Brief for Individual Petitioners 16. This point, while rhe-
torically powerful, ignores the Court's precedent interpreting the Indian
Commerce Clause to encompass not only trade but also other Indian
258 HAALAND v. BRACKEEN
Syllabus
affairs. Petitioners next argue that ICWA cannot be authorized by
principles inherent in the Constitution's structure because those princi-
ples âextend, at most, to matters of war and peace.â Brief for Peti-
tioner Texas 28. Again, petitioners make no argument that takes this
Court's cases on their own terms. The Court has referred generally to
the powers ânecessarily inherent in any Federal Governmentâ and has
offered nonmilitary examples, such as âcreating departments of Indian
affairs.â Lara, 541 U. S., at 201â202. Petitioners next observe that
ICWA does not implement a federal treaty, but Congress did not pur-
port to enact ICWA pursuant to its treaty power and the Fifth Circuit
did not uphold ICWA on that rationale. Finally, petitioners turn to
criticizing this Court's precedent as inconsistent with the Constitution's
original meaning, but they neither ask the Court to overrule the prece-
dent they criticize nor try to reconcile their approach with it. If there
are arguments that ICWA exceeds Congress's authority as precedent
stands today, petitioners do not make them here. Pp. 277â280.
2. Petitioners' anticommandeering challenges, which address three
categories of ICWA provisions, are rejected. Pp. 280â291.
(a) First, petitioners challenge certain requirements that apply in
involuntary proceedings to place a child in foster care or terminate pa-
rental rights, focusing on the requirement that an initiating party dem-
Page Proof Pending Publication
onstrate âactive effortsâ to keep the Indian family together. § 1912(d).
Petitioners contend this subsection directs state and local agencies to
provide extensive services to the parents of Indian children, even
though it is well established that the Tenth Amendment bars Congress
from âcommand[ing] the States' offcers, or those of their political subdi-
visions, to administer or enforce a federal regulatory program.â Printz
v. United States, 521 U. S. 898, 935. To succeed, petitioners must show
that § 1912(d) harnesses a State's legislative or executive authority.
But the provision applies to â[a]ny partyâ who initiates an involuntary
proceeding, thus sweeping in private individuals and agencies as well as
government entities. A demand that either public or private actors can
satisfy is unlikely to require the use of sovereign power. Murphy v.
National Collegiate Athletic Assn., 584 U. S. 453, 476â477. Petition-
ers nonetheless insist that States institute the vast majority of involun-
tary proceedings. But examples of private suits are not hard to fnd.
And while petitioners treat âactive effortsâ as synonymous with âgov-
ernment programs,â state courts have applied the âactive effortsâ re-
quirement in private suits too. That is consistent with ICWA's fndings,
which describe the role that both public and private actors played in
the unjust separation of Indian children from their families and tribes.
§ 1901. Given all this, it is implausible that § 1912(d) is directed primar-
ily, much less exclusively, at the States.
Cite as: 599 U. S. 255 (2023) 259
Syllabus
Legislation that applies âevenhandedlyâ to state and private actors
does not typically implicate the Tenth Amendment. Id., at 476. Peti-
tioners would distinguish the Court's precedents so holding on the
grounds that those cases addressed laws regulating a State's commer-
cial activity, while ICWA regulates a State's âcore sovereign function
of protecting the health and safety of children within its borders.â
Brief for Petitioner Texas 66. This argument is presumably directed
at situations in which only the State can rescue a child from neglectful
parents. But the State is not necessarily the only option for rescue,
and § 1912(d) applies to other types of proceedings too. Petitioners do
not distinguish between these varied situations, much less isolate a do-
main in which only the State can act. If there is a core of involuntary
proceedings committed exclusively to the sovereign, Texas neither iden-
tifes its contours nor explains what § 1912(d) requires of a State in that
context. Petitioners have therefore failed to show that the âactive ef-
fortsâ requirement commands the States to deploy their executive or
legislative power to implement federal Indian policy. And as for peti-
tioners' challenges to other provisions of § 1912âthe notice require-
ment, expert witness requirement, and evidentiary standardsâthe
Court doubts that requirements placed on a State as litigant implicate
the Tenth Amendment. But regardless, these provisions, like § 1912(d),
Page Proof Pending Publication
apply to both private and state actors, so they too pose no anticomman-
deering problem. Pp. 281â285.
(b) Petitioners next challenge ICWA's placement preferences, set
forth in § 1915. Petitioners assert that this provision orders state agen-
cies to perform a âdiligent searchâ for placements that satisfy ICWA's
hierarchy. Just as Congress cannot compel state offcials to search
databases to determine the lawfulness of gun sales, Printz, 521 U. S., at
902â904, petitioners argue, Congress cannot compel state offcials to
search for a federally preferred placement. As with § 1912, petitioners
have not shown that the âdiligent searchâ requirement, which applies
to both private and public parties, demands the use of state sovereign
authority. Moreover, § 1915 does not require anyone, much less the
States, to search for alternative placements; instead, the burden is on
the tribe or other objecting party to produce a higher-ranked placement.
Adoptive Couple v. Baby Girl, 570 U. S. 637, 654. So, as it stands, peti-
tioners assert an anticommandeering challenge to a provision that does
not command state agencies to do anything.
State courts are a different matter. ICWA indisputably requires
them to apply the placement preferences in making custody determina-
tions. §§ 1915(a), (b). But Congress can require state courts, unlike
state executives and legislatures, to enforce federal law. See New York
v. United States, 505 U. S. 144, 178â179. Petitioners draw a distinction
260 HAALAND v. BRACKEEN
Syllabus
between requiring state courts to entertain federal causes of action and
requiring them to apply federal law to state causes of action, but this
argument runs counter to the Supremacy Clause. When Congress
enacts a valid statute, âstate law is naturally preempted to the extent
of any confict with a federal statute.â Crosby v. National Foreign
Trade Council, 530 U. S. 363, 372. That a federal law modifes a state-
law cause of action does not limit its preemptive effect. See, e. g., Hill-
man v. Maretta, 569 U. S. 483, 493â494 (federal law establishing order
of precedence for life insurance benefciaries preempted state law).
Pp. 285â287.
(c) Finally, petitioners insist that Congress cannot force state
courts to maintain or transmit records of custody proceedings involving
Indian children. But the anticommandeering doctrine applies âdistinc-
tivelyâ to a state court's adjudicative responsibilities. Printz, 521 U. S.,
at 907. The Constitution allows Congress to require âstate judges to
enforce federal prescriptions, insofar as those prescriptions relat[e] to
matters appropriate for the judicial power.â Ibid. (emphasis deleted).
In Printz, the Court indicated that this principle may extend to tasks
that are âancillaryâ to a âquintessentially adjudicative taskââsuch as
ârecording, registering, and certifyingâ documents. Id., at 908, n. 2.
Printz described numerous historical examples of Congress imposing
Page Proof Pending Publication
recordkeeping and reporting requirements on state courts. These
early congressional enactments demonstrate that the Constitution does
not prohibit the Federal Government from imposing adjudicative tasks
on state courts. Bowsher v. Synar, 478 U. S. 714, 723. The Court now
confrms what Printz suggested: Congress may impose ancillary record-
keeping requirements related to state-court proceedings without violat-
ing the Tenth Amendment. Here, ICWA's recordkeeping requirements
are comparable to the historical examples. The duties ICWA imposes
are âancillaryâ to the state court's obligation to conduct child custody
proceedings in compliance with ICWA. Printz, 521 U. S., at 908, n. 2.
Pp. 287â291.
3. The Court does not reach the merits of petitioners' two additional
claimsâan equal protection challenge to ICWA's placement preferences
and a nondelegation challenge to § 1915(c), the provision allowing tribes
to alter the placement preferencesâbecause no party before the Court
has standing to raise them. Pp. 291â296.
(a) The individual petitioners argue that ICWA's hierarchy of pref-
erences injures them by placing them on unequal footing with Indian
parents who seek to adopt or foster an Indian child. But the individual
petitioners have not shown that this injury is âlikelyâ to be âredressed
by judicial relief.â TransUnion LLC v. Ramirez, 594 U. S. 413, 423.
They seek an injunction preventing the federal parties from enforcing
Cite as: 599 U. S. 255 (2023) 261
Syllabus
ICWA and a declaratory judgment that the challenged provisions are
unconstitutional. Yet enjoining the federal parties would not remedy
the alleged injury, because state courts apply the placement preferences,
and state agencies carry out the court-ordered placements. §§ 1903(1),
1915(a), (b). The state offcials who implement ICWA are ânot parties
to the suit, and there is no reason they should be obliged to honor an
incidental legal determination the suit produced.â Lujan v. Defenders
of Wildlife, 504 U. S. 555, 569 (plurality opinion). Petitioners' request
for a declaratory judgment suffers from the same faw. The individual
petitioners insist that state courts are likely to defer to a federal court's
interpretation of federal law, thus giving rise to a substantial likelihood
that a favorable judgment will redress their injury. But such a theory
would mean redressability would be satisfed whenever a decision might
persuade actors who are not before the courtâcontrary to Article III's
strict prohibition on âissuing advisory opinions.â Carney v. Adams,
592 U. S. 53, 58. It is a federal court's judgment, not its opinion, that
remedies an injury. The individual petitioners can hope for nothing
more than an opinion, so they cannot satisfy Article III. Pp. 292â294.
(b) Texas has no equal protection rights of its own, South Carolina
v. Katzenbach, 383 U. S. 301, 323, and it cannot assert equal protection
claims on behalf of its citizens against the Federal Government, Alfred
Page Proof Pending Publication
L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 610,
n. 16. The State's creative arguments for why it has standing despite
these settled rules also fail. Texas's argument that ICWA requires it
to âbreak its promise to its citizens that it will be colorblind in child-
custody proceedings,â Reply Brief for Texas 15, is not the kind of âcon-
creteâ and âparticularizedâ âinvasion of a legally protected interestâ
necessary to demonstrate an injury in fact, Lujan, 504 U. S., at 560.
Texas also claims a direct pocketbook injury associated with the costs
of keeping records, providing notice in involuntary proceedings, and pro-
ducing expert testimony before moving a child to foster care or termi-
nating parental rights. But these alleged costs are not âfairly trace-
ableâ to the placement preferences, which âoperate independentlyâ of
the provisions Texas identifes. California v. Texas, 593 U. S. âââ, âââ.
Texas would continue to incur the complained-of costs even if it were
relieved of the duty to apply the placement preferences. Because Texas
is not injured by the placement preferences, neither would it be injured
by a tribal resolution that altered those preferences pursuant to
§ 1915(c). Texas therefore does not have standing to bring either its
equal protection or its nondelegation claims. And although the individ-
ual petitioners join Texas's nondelegation challenge to § 1915(c), they
raise no independent arguments about why they would have standing
to bring this claim. Pp. 294â296.
262 HAALAND v. BRACKEEN
Syllabus
994 F. 3d 249, affrmed in part, reversed in part, vacated and remanded
in part.
Barrett, J., delivered the opinion of the Court, in which Roberts,
C. J., and Sotomayor, Kagan, Gorsuch, Kavanaugh, and Jackson, JJ.,
joined. Gorsuch, J., fled a concurring opinion, in which Sotomayor and
Jackson, JJ., joined as to Parts I and III, post, p. 297. Kavanaugh, J.,
fled a concurring opinion, post, p. 333. Thomas, J., post, p. 334, and
Alito, J., post, p. 372, fled dissenting opinions.
Matthew D. McGill argued the cause for Chad Everet
Brackeen et al. in all cases. With him on the briefs were
Lochlan F. Shelfer, Aaron Smith, Ashley E. Johnson, and
Mark D. Fiddler.
Judd E. Stone II, Solicitor General of Texas, argued the
cause for Texas. With him on the briefs in No. 21â378 were
Ken Paxton, Attorney General of Texas, Brent Webster,
First Assistant Attorney General, Lanora C. Pettit, Princi-
pal Deputy Solicitor General, and Kathryn M. Cherry and
Page Proof Pending Publication
Beth Klusmann, Assistant Solicitors General.
Deputy Solicitor General Kneedler argued the cause for
the federal parties. With him on the brief were Solicitor
General Prelogar, Assistant Attorney General Kim, Freder-
ick Liu, Chr istopher G. Michel, Samuel C. Alexander,
Amber Blaha, Rachel Heron, and Samuel R. Bagenstos.
Ian Heath Gershengorn argued the cause for tribal par-
ties. With him on the brief were Keith M. Harper, Matthew
S. Hellman, Zachary C. Schauf, Leonard R. Powell, Kathryn
E. Fort, David A. Strauss, Sarah M. Konsky, Adam H.
Charnes, Rob Roy Smith, Jeffrey L. Fisher, Ephraim A. Mc-
Dowell, Paul Spruhan, Louis Mallette, and Sage Metoxen.â
â A brief of amicus curiae urging reversal in No. 21â378 was fled for
the New Civil Liberties Alliance by Richard A. Samp, Brian Rosner, and
Mark S. Chenoweth.
Briefs of amici curiae urging reversal in part and affrmance in part in
all cases were fled for the National Indigenous Women's Resource Center
Cite as: 599 U. S. 255 (2023) 263
Opinion of the Court
Justice Barrett delivered the opinion of the Court.
This case is about children who are among the most vul-
nerable: those in the child welfare system. In the usual
et al. by Mary Kathryn Nagle; and for 87 Members of Congress by Alan
E. Schoenfeld.
A brief of amici curiae urging affrmance in all cases was fled for the
American Civil Liberties Union et al. by Kathleen R. Hartnett, Adam
S. Gershenson, David D. Cole, Jennesa Calvo-Friedman, Elizabeth Gill,
Stephen Koteff, Jared G. Keenan, Benjamin Rundall, Zachary L. Heiden,
Randy A. Bauman, and Megan Lambert.
Briefs of amici curiae urging affrmance in part and reversal in part in
all cases were fled for the State of California et al. by Rob Bonta, Attor-
ney General of California, Michael J. Mongan, Solicitor General, Michael
L. Newman, Senior Assistant Attorney General, Joshua Patashnik, Dep-
uty Solicitor General, Nicole Welindt, Associate Deputy Solicitor General,
James F. Zahradka II, Supervising Deputy Attorney General, and Chris-
tina M. Riehl, Deputy Attorney General, by Matthew J. Platkin, Acting
Attorney General of New Jersey, and by the Attorneys General for their
respective jurisdictions as follows: Mark Brnovich of Arizona, Philip J.
Page Proof Pending Publication
Weiser of Colorado, William Tong of Connecticut, Karl A. Racine of the
District of Columbia, Lawrence G. Wasden of Idaho, Kwame Raoul of Illi-
nois, Tom Miller of Iowa, Aaron M. Frey of Maine, Maura Healey of
Massachusetts, Dana Nessel of Michigan, Keith Ellison of Minnesota,
Aaron D. Ford of Nevada, Hector Balderas of New Mexico, Letitia James
of New York, Joshua H. Stein of North Carolina, Ellen F. Rosenblum of
Oregon, Josh Shapiro of Pennsylvania, Peter F. Neronha of Rhode Island,
Mark A. Vargo of South Dakota, Sean D. Reyes of Utah, Robert W. Fergu-
son of Washington, and Joshua L. Kaul of Wisconsin; for the American
Historical Association et al. by Z. W. Julius Chen, Pratik A. Shah, and
Amanda L. WhiteEagle; for the Citizens Equal Rights Foundation by
Lawrence A. Kogan; and for the Project on Fair Representation by J.
Michael Connolly and Cameron T. Norris.
Briefs of amici curiae were fled in all cases for the State of Ohio et al.
by Dave Yost, Attorney General of Ohio, Benjamin M. Flowers, Solicitor
General, Michael J. Hendershot, Chief Deputy Solicitor General, and
Zachery Keller and Sylvia May Mailman, Deputy Solicitors General, and
by John M. O'Connor, Attorney General of Oklahoma; for Los Angeles
County by Kim Nemoy and Melania Vartanian; for the Academy of Adop-
tion and Assisted Reproduction Attorneys et al. by Larry S. Jenkins, Philip
J. McCarthy, Jr., Mary Beck, and Laura Beck Wilkinson; for Administra-
264 HAALAND v. BRACKEEN
Opinion of the Court
course, state courts apply state law when placing children in
foster or adoptive homes. But when the child is an Indian,
a federal statuteâthe Indian Child Welfare Actâgoverns.
Among other things, this law requires a state court to place
an Indian child with an Indian caretaker, if one is available.
That is so even if the child is already living with a non-Indian
family and the state court thinks it in the child's best interest
to stay there.
Before us, a birth mother, foster and adoptive parents, and
the State of Texas challenge the Act on multiple constitu-
tional grounds. They argue that it exceeds federal author-
ity, infringes state sovereignty, and discriminates on the
basis of race. The United States, joined by several Indian
Tribes, defends the law. The issues are complicatedâso for
the details, read on. But the bottom line is that we reject
all of petitioners' challenges to the statute, some on the mer-
its and others for lack of standing.
Page Proof
tive Law Professors Pending
et al. by David S. Coale; forPublication
the American Academy
of Pediatrics et al. by Keith Bradley; for the American Bar Association by
Geoffrey D. Strommer, Deborah Enix-Ross, Caroline P. Mayhew, Kaitlyn
E. Klass, and Gregory A. Smith; for the American Psychological Associa-
tion et al. by Beth S. Brinkmann, Daniel G. Randolph, and Deanne M.
Ottaviano; for Casey Family Programs et al. by Hyland Hunt, Ruthanne
M. Deutsch, Alexandra Mansbach, and Martin Guggenheim; for the
Christian Alliance for Indian Child Welfare et al. by Krystal B. Swendsboe
and Stephen J. Obermeier; for the Constitutional Accountability Center by
Elizabeth B. Wydra and Brianne J. Gorod; for Family Defense Providers
by Charles A. Rothfeld; for Former Foster Children by Rebecca A. Patter-
son, Colin C. Hampson, and Frank S. Holleman IV; for Foster Parents
et al. by Oliver J. Dunford, Jeremy Talcott, Daniel Ortner, and Aditya
Dynar; for the Goldwater Institute et al. by Timothy Sandefur and Robert
Henneke; for Indian Law Professors by April Youpee-Roll and Matthew
L. M. Fletcher; for the National Association of Counsel for Children et al.
by Kathryn A. Eidmann, Tara Ford, and Kim Dvorchak; for Gregory
Ablavsky by Michelle T. Miano; for Sen. James Abourezk by Daniel
P. Sheehan; for Robyn Bradshaw by Conor D. Tucker, Steffen N. Johnson,
and Shannon E. Smith; for Aubrey Nelson et al. by April E. Olson and
Glennas'ba Augborne Arents; and for 497 Indian Tribes et al. by John E.
Echohawk, Erin C. Doughtery Lynch, and Samuel F. Daughety.
Cite as: 599 U. S. 255 (2023) 265
Opinion of the Court
I
A
In 1978, Congress enacted the Indian Child Welfare Act
(ICWA) out of concern that âan alarmingly high percentage
of Indian families are broken up by the removal, often un-
warranted, of their children from them by nontribal public
and private agencies.â 92 Stat. 3069, 25 U. S. C. § 1901(4).
Congress found that many of these children were being
âplaced in non-Indian foster and adoptive homes and institu-
tions,â and that the States had contributed to the problem by
âfail[ing] to recognize the essential tribal relations of Indian
people and the cultural and social standards prevailing in
Indian communities and families.â §§ 1901(4), (5). This
harmed not only Indian parents and children, but also Indian
tribes. As Congress put it, âthere is no resource that is
more vital to the continued existence and integrity of Indian
tribes than their children.â § 1901(3). Testifying before
Page Proof Pending Publication
Congress, the Tribal Chief of the Mississippi Band of Choc-
taw Indians was blunter: âCulturally, the chances of Indian
survival are signifcantly reduced if our children, the only
real means for the transmission of the tribal heritage, are to
be raised in non-Indian homes and denied exposure to the
ways of their People.â Hearings on S. 1214 before the Sub-
committee on Indian Affairs and Public Lands of the House
Committee on Interior and Insular Affairs, 95th Cong., 2d
Sess., 193 (1978).
The Act thus aims to keep Indian children connected to
Indian families. âIndian childâ is defned broadly to include
not only a child who is âa member of an Indian tribe,â but
also one who is âeligible for membership in an Indian tribe
and is the biological child of a member of an Indian tribe.â
§ 1903(4). If the Indian child lives on a reservation, ICWA
grants the tribal court exclusive jurisdiction over all child
custody proceedings, including adoptions and foster care pro-
ceedings. § 1911(a). For other Indian children, state and
266 HAALAND v. BRACKEEN
Opinion of the Court
tribal courts exercise concurrent jurisdiction, although the
state court is sometimes required to transfer the case to
tribal court. § 1911(b). When a state court adjudicates the
proceeding, ICWA governs from start to fnish. That is true
regardless of whether the proceeding is âinvoluntaryâ (one
to which the parents do not consent) or âvoluntaryâ (one to
which they do).
Involuntary proceedings are subject to especially strin-
gent safeguards. See 25 CFR § 23.104 (2022); 81 Fed. Reg.
38832â38836 (2016). Any party who initiates an âinvolun-
tary proceedingâ in state court to place an Indian child
in foster care or terminate parental rights must ânotify the
parent or Indian custodian and the Indian child's tribe.â
§ 1912(a). The parent or custodian and tribe have the right
to intervene in the proceedings; the right to request extra
time to prepare for the proceedings; the right to âexamine
all reports or other documents fled with the courtâ; and, for
Page Proof Pending Publication
indigent parents or custodians, the right to court-appointed
counsel. §§ 1912(a), (b), (c). The party attempting to termi-
nate parental rights or remove an Indian child from an un-
safe environment must frst âsatisfy the court that active ef-
forts have been made to provide remedial services and
rehabilitative programs designed to prevent the breakup of
the Indian family and that these efforts have proved unsuc-
cessful.â § 1912(d). Even then, the court cannot order a
foster care placement unless it fnds âby clear and convincing
evidence, including testimony of qualifed expert witnesses,
that the continued custody of the child by the parent or In-
dian custodian is likely to result in serious emotional or phys-
ical damage to the child.â § 1912(e). To terminate parental
rights, the court must make the same fnding âbeyond a rea-
sonable doubt.â § 1912(f).
The Act applies to voluntary proceedings too. Relin-
quishing a child temporarily (to foster care) or permanently
(to adoption) is a grave act, and a state court must ensure
that a consenting parent or custodian knows and understands
Cite as: 599 U. S. 255 (2023) 267
Opinion of the Court
âthe terms and consequences.â § 1913(a). Notably, a bio-
logical parent who voluntarily gives up an Indian child can-
not necessarily choose the child's foster or adoptive parents.
The child's tribe has âa right to intervene at any point in [a]
proceedingâ to place a child in foster care or terminate pa-
rental rights, as well as a right to collaterally attack the
state court's decree. §§ 1911(c), 1914. As a result, the tribe
can sometimes enforce ICWA's placement preferences
against the wishes of one or both biological parents, even
after the child is living with a new family. See Mississippi
Band of Choctaw Indians v. Holyfeld, 490 U. S. 30, 49â52
(1989).
ICWA's placement preferences, which apply to all custody
proceedings involving Indian children, are hierarchical: State
courts may only place the child with someone in a lower-
ranked group when there is no available placement in a
higher-ranked group. For adoption, âa preference shall be
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givenâ to placements with â(1) a member of the child's ex-
tended family; (2) other members of the Indian child's tribe;
or (3) other Indian families.â § 1915(a). For foster care, a
preference is given to (1) âthe Indian child's extended fam-
ilyâ; (2) âa foster home licensed, approved, or specifed by the
Indian child's tribeâ; (3) âan Indian foster home licensed or
approved by an authorized non-Indian licensing authorityâ;
and then (4) another institution âapproved by an Indian tribe
or operated by an Indian organization which has a program
suitable to meet the Indian child's needs.â § 1915(b). For
purposes of the placement preferences, an âIndianâ is âany
person who is a member of an Indian tribe,â and an âIndian
organizationâ is âany group . . . owned or controlled by Indi-
ans.â §§ 1903(3), (7). Together, these defnitions mean that
Indians from any tribe (not just the tribe to which the child
has a tie) outrank unrelated non-Indians for both adoption
and foster care. And for foster care, institutions run or
approved by any tribe outrank placements with unrelated
non-Indian families. Courts must adhere to the placement
268 HAALAND v. BRACKEEN
Opinion of the Court
preferences absent âgood causeâ to depart from them.
§§ 1915(a), (b).
The child's tribe may pass a resolution altering the priori-
tization order. § 1915(c). If it does, âthe agency or court
effecting the placement shall follow such order so long as the
placement is the least restrictive setting appropriate to the
particular needs of the child.â Ibid. So long as the âleast
restrictive settingâ condition is met, the preferences of the
Indian child or her parent cannot trump those set by statute
or tribal resolution. But, â[w]here appropriate, the prefer-
ence of the Indian child or parent shall be consideredâ in
making a placement. Ibid.
The State must record each placement, including a descrip-
tion of the efforts made to comply with ICWA's order of pref-
erences. § 1915(e). Both the Secretary of the Interior and
the child's tribe have the right to request the record at any
time. Ibid. State courts must also transmit all fnal adop-
tion decrees and specifed information about adoption pro-
Page Proof Pending Publication
ceedings to the Secretary. § 1951(a).
B
This case arises from three separate child custody pro-
ceedings governed by ICWA.
1
A. L. M. was placed in foster care with Chad and Jennifer
Brackeen when he was 10 months old. Because his biologi-
cal mother is a member of the Navajo Nation and his biologi-
cal father is a member of the Cherokee Nation, he falls
within ICWA's defnition of an âIndian child.â Both the
Brackeens and A. L. M.'s biological parents live in Texas.
After A. L. M. had lived with the Brackeens for more than
a year, they sought to adopt him. A. L. M.'s biological
mother, father, and grandmother all supported the adoption.
The Navajo and Cherokee Nations did not. Pursuant to an
Cite as: 599 U. S. 255 (2023) 269
Opinion of the Court
agreement between the Tribes, the Navajo Nation desig-
nated A. L. M. as a member and informed the state court
that it had located a potential alternative placement with non-
relative tribal members living in New Mexico. ICWA's place-
ment preferences ranked the proposed Navajo family ahead
of non-Indian families like the Brackeens. See § 1915(a).
The Brackeens tried to convince the state court that there
was âgood causeâ to deviate from ICWA's preferences.
They presented favorable testimony from A. L. M.'s court-
appointed guardian and from a psychological expert who de-
scribed the strong emotional bond between A. L. M. and his
foster parents. A. L. M.'s biological parents and grand-
mother also testifed, urging the court to allow A. L. M. to
remain with the Brackeens, â `the only parents [A. L. M.]
knows.' â App. 96.
The court denied the adoption petition, and the Texas De-
partment of Family and Protective Services announced its
intention to move A. L. M. from the Brackeens' home to New
Page Proof Pending Publication
Mexico. In response, the Brackeens obtained an emergency
stay of the transfer and fled this lawsuit. The Navajo fam-
ily then withdrew from consideration, and the Brackeens f-
nalized their adoption of A. L. M.
The Brackeens now seek to adopt A. L. M.'s biological sis-
ter, Y. R. J., again over the opposition of the Navajo Nation.
And while the Brackeens hope to foster and adopt other In-
dian children in the future, their fraught experience with
A. L. M.'s adoption makes them hesitant to do so.
2
Altagracia Hernandez chose Nick and Heather Libretti as
adoptive parents for her newborn daughter, Baby O. The
Librettis took Baby O. home from the hospital when she was
three days old, and Hernandez, who lived nearby, visited-
Baby O. frequently. Baby O.'s biological father visited only
once but supported the adoption.
270 HAALAND v. BRACKEEN
Opinion of the Court
Hernandez is not an Indian. But Baby O.'s biological fa-
ther is descended from members of the Ysleta del Sur Pueblo
Tribe, and the Tribe enrolled Baby O. as a member. As a
result, the adoption proceeding was governed by ICWA.
The Tribe exercised its right to intervene and argued, over
Hernandez's objection, that Baby O. should be moved from
the Librettis' home in Nevada to the Tribe's reservation in
El Paso, Texas. It presented a number of potential place-
ments on the reservation for Baby O., and state offcials
began to investigate them. After Hernandez and the Li-
brettis joined this lawsuit, however, the Tribe withdrew its
challenge to the adoption, and the Librettis fnalized their
adoption of Baby O. The Librettis stayed in the litigation
because they planned to foster and possibly adopt Indian
children in the future.
3
Jason and Danielle Clifford, who live in Minnesota, fos-
Page Proof Pending Publication
tered Child P., whose maternal grandmother belongs to the
White Earth Band of Ojibwe Tribe. When Child P. entered
state custody around the age of three, her mother informed
the court that ICWA did not apply because Child P. was not
eligible for tribal membership. The Tribe wrote a letter to
the court confrming the same.
After two years in the foster care system, Child P. was
placed with the Cliffords, who eventually sought to adopt
her. The Tribe intervened in the proceedings and, with
no explanation for its change in position, informed the
court that Child P. was in fact eligible for tribal member-
ship. Later, the Tribe announced that it had enrolled Child
P. as a member. To comply with ICWA, Minnesota placed
Child P. with her maternal grandmother, who had lost
her foster license due to a criminal conviction. The Clif-
fords continued to pursue the adoption, but, citing ICWA, the
court denied their motion. Like the other families, the Clif-
fords intend to foster or adopt Indian children in the future.
Cite as: 599 U. S. 255 (2023) 271
Opinion of the Court
C
The Brackeens, the Librettis, Hernandez, and the Cliffords
(whom we will refer to collectively as the âindividual peti-
tionersâ) fled this suit in federal court against the United
States, the Department of the Interior and its Secretary, the
Bureau of Indian Affairs (BIA) and its Director, and the De-
partment of Health and Human Services and its Secretary
(whom we will refer to collectively as the âfederal partiesâ).
The individual petitioners were joined by the States of
Texas, Indiana, and Louisianaâalthough only Texas contin-
ues to challenge ICWA before this Court. Several Indian
Tribes intervened to defend the law alongside the federal
parties.
Petitioners challenged ICWA as unconstitutional on multi-
ple grounds. They asserted that Congress lacks authority
to enact ICWA and that several of ICWA's requirements vio-
late the anticommandeering principle of the Tenth Amend-
Page Proof Pending Publication
ment. They argued that ICWA employs racial classifca-
tions that unlawfully hinder non-Indian families from
fostering or adopting Indian children. And they challenged
§ 1915(c)âthe provision that allows tribes to alter the priori-
tization orderâon the ground that it violates the non-
delegation doctrine.1
The District Court granted petitioners' motion for sum-
mary judgment on their constitutional claims, and a divided
panel of the Fifth Circuit reversed. Brackeen v. Bernhardt,
937 F. 3d 406 (2019). After rehearing the case en banc, the
Fifth Circuit affrmed in part and reversed in part. 994
F. 3d 249 (2021) (per curiam). The en banc court concluded
that ICWA does not exceed Congress's legislative power,
that § 1915(c) does not violate the nondelegation doctrine,
1
Petitioners raised several other challenges that are not before this
Court, including that ICWA's implementing regulations are arbitrary and
capricious in violation of the Administrative Procedure Act.
272 HAALAND v. BRACKEEN
Opinion of the Court
and that some of ICWA's placement preferences satisfy the
guarantee of equal protection. Id., at 267â269. The court
was evenly divided as to whether ICWA's other prefer-
encesâthose prioritizing âother Indian familiesâ and âIndian
foster home[s]â over non-Indian familiesâunconstitutionally
discriminate on the basis of race. Id., at 268. The Fifth
Circuit therefore affrmed the District Court's ruling that
these preferences are unconstitutional.
Petitioners' Tenth Amendment arguments effectively suc-
ceeded across the board. The Fif th Circuit held that
§ 1912(d)'s âactive effortsâ requirement, § 1912(e)'s and
§ 1912(f)'s expert witness requirements, and § 1915(e)'s rec-
ordkeeping requirement unconstitutionally commandeer the
States. Ibid. It divided evenly with respect to the other
provisions that petitioners challenge here: § 1912(a)'s notice
requirement, § 1915(a) and § 1915(b)'s placement preferences,
and § 1951(a)'s recordkeeping requirement. Ibid. So the
Fifth Circuit affrmed the District Court's holding that these
Page Proof Pending Publication
requirements, too, violate the Tenth Amendment.
We granted certiorari.2 595 U. S. âââ (2022).
II
A
We begin with petitioners' claim that ICWA exceeds Con-
gress's power under Article I. In a long line of cases, we
have characterized Congress's power to legislate with re-
spect to the Indian tribes as â `plenary and exclusive.' â
United States v. Lara, 541 U. S. 193, 200 (2004); South Da-
kota v. Yankton Sioux Tribe, 522 U. S. 329, 343 (1998) (âCon-
gress possesses plenary power over Indian affairsâ); Wash-
ington v. Confederated Bands and Tribes of Yakima Nation,
2
Hernandez and the families, the State of Texas, the federal parties, and
the Tribes all fled cross-petitions for certiorari. After the cases were
consolidated, Hernandez, the families, and Texas proceeded as petitioners
before this Court, and the federal parties and the Tribes proceeded as
respondents.
Cite as: 599 U. S. 255 (2023) 273
Opinion of the Court
439 U. S. 463, 470 (1979) (Congress exercises âplenary and
exclusive power over Indian affairsâ); Winton v. Amos, 255
U. S. 373, 391 (1921) (âIt is thoroughly established that Con-
gress has plenary authority over the Indians and all their
tribal relationsâ); Lone Wolf v. Hitchcock, 187 U. S. 553, 565
(1903) (âCongress possesse[s] a paramount power over the
property of the Indiansâ); Stephens v. Cherokee Nation, 174
U. S. 445, 478 (1899) (âCongress possesses plenary power of
legislation in regard toâ the Indian tribes). Our cases leave
little doubt that Congress's power in this feld is muscular,
superseding both tribal and state authority. Santa Clara
Pueblo v. Martinez, 436 U. S. 49, 56 (1978) (âCongress has
plenary authority to limit, modify or eliminate the powers of
local self-government which the tribes otherwise possessâ);
Dick v. United States, 208 U. S. 340, 353 (1908) (âCongress
has power to regulate commerce with the Indian tribes, and
such power is superior and paramount to the authority of
Page Proof Pending Publication
any State within whose limits are Indian tribesâ).
To be clear, however, âplenaryâ does not mean âfree-
foating.â A power unmoored from the Constitution would
lack both justifcation and limits. So like the rest of its leg-
islative powers, Congress's authority to regulate Indians
must derive from the Constitution, not the atmosphere.
Our precedent traces that power to multiple sources.
The Indian Commerce Clause authorizes Congress â[t]o
regulate Commerce . . . with the Indian Tribes.â Art. I, § 8,
cl. 3. We have interpreted the Indian Commerce Clause to
reach not only trade, but certain âIndian affairsâ too. Cot-
ton Petroleum Corp. v. New Mexico, 490 U. S. 163, 192 (1989).
Notably, we have declined to treat the Indian Commerce
Clause as interchangeable with the Interstate Commerce
Clause. Ibid. While under the Interstate Commerce
Clause, States retain âsome authorityâ over trade, we have
explained that âvirtually all authority over Indian commerce
and Indian tribesâ lies with the Federal Government. Semi-
nole Tribe of Fla. v. Florida, 517 U. S. 44, 62 (1996).
274 HAALAND v. BRACKEEN
Opinion of the Court
The Treaty Clauseâwhich provides that the President
âshall have Power, by and with the Advice and Consent of
the Senate, to make Treatiesââprovides a second source of
power over Indian affairs. Art. II, § 2, cl. 2. Until the late
19th century, relations between the Federal Government and
the Indian tribes were governed largely by treaties. Lara,
541 U. S., at 201. Of course, the treaty power âdoes not lit-
erally authorize Congress to act legislatively,â since it is
housed in Article II rather than Article I. Ibid. Neverthe-
less, we have asserted that âtreaties made pursuant to that
power can authorize Congress to deal with `matters' with
which otherwise `Congress could not deal.' â Ibid. And
even though the United States formally ended the practice
of entering into new treaties with the Indian tribes in 1871,
this decision did not limit Congress's power âto legislate on
problems of Indiansâ pursuant to pre-existing treaties. An-
toine v. Washington, 420 U. S. 194, 203 (1975) (emphasis
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deleted).
We have also noted that principles inherent in the Consti-
tution's structure empower Congress to act in the feld of
Indian affairs. See Morton v. Mancari, 417 U. S. 535, 551â
552 (1974) (âThe plenary power of Congress to deal with the
special problems of Indians is drawn both explicitly and im-
plicitly from the Constitution itself â). At the founding, â `In-
dian affairs were more an aspect of military and foreign pol-
icy than a subject of domestic or municipal law.' â Lara, 541
U. S., at 201. With this in mind, we have posited that Con-
gress's legislative authority might rest in part on âthe Con-
stitution's adoption of preconstitutional powers necessarily
inherent in any Federal Government, namely, powers that
this Court has described as `necessary concomitants of na-
tionality.' â Ibid. (quoting United States v. Curtiss-Wright
Export Corp., 299 U. S. 304, 315â322 (1936)).
Finally, the âtrust relationship between the United States
and the Indian peopleâ informs the exercise of legislative
power. United States v. Mitchell, 463 U. S. 206, 225â226
Cite as: 599 U. S. 255 (2023) 275
Opinion of the Court
(1983). As we have explained, the Federal Government has
â `charged itself with moral obligations of the highest respon-
sibility and trust' â toward Indian tribes. United States v.
Jicarilla Apache Nation, 564 U. S. 162, 176 (2011); Seminole
Nation v. United States, 316 U. S. 286, 296 (1942) (â[T]his
Court has recognized the distinctive obligation of trust in-
cumbent upon the Government in its dealings with these
dependent and sometimes exploited peopleâ). The contours
of this âspecial relationshipâ are undefned. Mancari, 417
U. S., at 552.
In sum, Congress's power to legislate with respect to Indi-
ans is well established and broad. Consistent with that
breadth, we have not doubted Congress's ability to legislate
across a wide range of areas, including criminal law, domestic
violence, employment, property, tax, and trade. See, e. g.,
Lara, 541 U. S., at 210 (law allowing tribes to prosecute non-
member Indians who committed crimes on tribal land);
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United States v. Bryant, 579 U. S. 140, 142â143 (2016) (law
criminalizing domestic violence in Indian country); Mancari,
417 U. S., at 537 (policy granting Indians employment prefer-
ences); United States v. Antelope, 430 U. S. 641, 648 (1977)
(law establishing a criminal code for Indian country); Yank-
ton Sioux Tribe, 522 U. S., at 343 (law altering the bound-
aries of a reservation); Sunderland v. United States, 266
U. S. 226, 231â232 (1924) (agency action removing the restric-
tions on alienation of a homestead allotted to an Indian);
Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U. S.
685, 691, n. 18 (1965) (law granting tribe immunity from state
taxation); United States v. Algoma Lumber Co., 305 U. S.
415, 417, 421 (1939) (law regulating the sale of timber by an
Indian tribe). Indeed, we have only rarely concluded that a
challenged statute exceeded Congress's power to regulate
Indian affairs. See, e. g., Seminole Tribe, 517 U. S., at 72â73.
Admittedly, our precedent is unwieldy, because it rarely
ties a challenged statute to a specifc source of constitutional
authority. That makes it diffcult to categorize cases and
276 HAALAND v. BRACKEEN
Opinion of the Court
even harder to discern the limits on Congress's power. Still,
we have never wavered in our insistence that Congress's In-
dian affairs power â `is not absolute.' â Delaware Tribal
Business Comm. v. Weeks, 430 U. S. 73, 84 (1977); United
States v. Alcea Band of Tillamooks, 329 U. S. 40, 54 (1946)
(âThe power of Congress over Indian affairs may be of a
plenary nature; but it is not absoluteâ); United States v.
Creek Nation, 295 U. S. 103, 110 (1935) (plenary power is
âsubject to limitations inhering in such a guardianship and
to pertinent constitutional restrictionsâ). It could not be
otherwiseâArticle I gives Congress a series of enumerated
powers, not a series of blank checks. Thus, we reiterate
that Congress's authority to legislate with respect to Indians
is not unbounded. It is plenary within its sphere, but even
a sizeable sphere has borders.3
B
Page Proof
Petitioners Pending
contend that ICWA exceeds Publication
Congress's power.
Their principal theory, and the one accepted by both Justice
Alito and the dissenters in the Fifth Circuit, is that ICWA
treads on the States' authority over family law. Domestic
relations have traditionally been governed by state law;
thus, federal power over Indians stops where state power
over the family begins. Or so the argument goes.
It is true that Congress lacks a general power over domes-
tic relations, In re Burrus, 136 U. S. 586, 593â594 (1890), and,
as a result, responsibility for regulating marriage and child
custody remains primarily with the States, Sosna v. Iowa,
419 U. S. 393, 404 (1975). See also Moore v. Sims, 442 U. S.
3
Justice Alitoâs dissent criticizes the Court for âviolating one of the
most basic laws of logicâ with our conclusion that âCongress's power over
Indian affairs is `plenary' but not `absolute.' â Post, at 374. Yet the
dissent goes on to make that very same observation. Ibid. (â[E]ven
so-called plenary powers cannot override foundational constitutional
constraintsâ).
Cite as: 599 U. S. 255 (2023) 277
Opinion of the Court
415, 435 (1979). But the Constitution does not erect a fre-
wall around family law. On the contrary, when Congress
validly legislates pursuant to its Article I powers, we âha[ve]
not hesitatedâ to fnd conficting state family law preempted,
â[n]otwithstanding the limited application of federal law in
the feld of domestic relations generally.â Ridgway v. Ridg-
way, 454 U. S. 46, 54 (1981) (federal law providing life insur-
ance preempted state family-property law); see also Hillman
v. Maretta, 569 U. S. 483, 491 (2013) (âstate laws `governing
the economic aspects of domestic relations . . . must give
way to clearly conficting federal enactments' â (alteration in
original)). In fact, we have specifcally recognized Con-
gress's power to displace the jurisdiction of state courts in
adoption proceedings involving Indian children. Fisher v.
District Court of Sixteenth Judicial Dist. of Mont., 424 U. S.
382, 390 (1976) (per curiam).
Petitioners are trying to turn a general observation (that
Congress's Article I powers rarely touch state family law)
Page Proof Pending Publication
into a constitutional carveout (that family law is wholly ex-
empt from federal regulation). That argument is a non-
starter. As James Madison said to Members of the First
Congress, when the Constitution conferred a power on Con-
gress, âthey might exercise it, although it should interfere
with the laws, or even the Constitution of the States.â 2
Annals of Cong. 1897 (1791). Family law is no exception.
C
Petitioners come at the problem from the opposite direc-
tion too: Even if there is no family law carveout to the Indian
affairs power, they contend that Congress's authority does
not stretch far enough to justify ICWA. Ticking through
the various sources of power, petitioners assert that the Con-
stitution does not authorize Congress to regulate custody
proceedings for Indian children. Their arguments fail to
grapple with our precedent, and because they bear the bur-
278 HAALAND v. BRACKEEN
Opinion of the Court
den of establishing ICWA's unconstitutionality, we cannot
sustain their challenge to the law. See Lujan v. G & G Fire
Sprinklers, Inc., 532 U. S. 189, 198 (2001).
Take the Indian Commerce Clause, which is petitioners'
primary focus. According to petitioners, the Clause author-
izes Congress to legislate only with respect to Indian tribes
as government entities, not Indians as individuals. Brief for
Individual Petitioners 47â50. But we held more than a cen-
tury ago that âcommerce with the Indian tribes, means com-
merce with the individuals composing those tribes.â United
States v. Holliday, 3 Wall. 407, 416â417 (1866) (law prohibit-
ing the sale of alcohol to Indians in Indian country); United
States v. Nice, 241 U. S. 591, 600 (1916) (same). So that ar-
gument is a dead end.
Petitioners also assert that ICWA takes the âcommerceâ
out of the Indian Commerce Clause. Their consistent re-
frain is that âchildren are not commodities that can be
Page Proof Pending Publication
traded.â Brief for Individual Petitioners 16; Brief for Peti-
tioner Texas 23 (â[C]hildren are not commoditiesâ); id., at 18
(âChildren are not articles of commerceâ). Rhetorically, it
is a powerful pointâof course children are not commercial
products. Legally, though, it is beside the point. As we
already explained, our precedent states that Congress's
power under the Indian Commerce Clause encompasses not
only trade but also âIndian affairs.â Cotton Petroleum, 490
U. S., at 192. Even the judges who otherwise agreed with
petitioners below rejected this narrow view of the Indian
Commerce Clause as inconsistent with both our cases and
â[l]ongstanding patterns of federal legislation.â 994 F. 3d,
at 374â375 (principal opinion of Duncan, J.). Rather than
dealing with this precedent, however, petitioners virtually
ignore it.
Next, petitioners argue that ICWA cannot be authorized
by principles inherent in the Constitution's structure be-
cause those principles âextend, at most, to matters of war
and peace.â Brief for Petitioner Texas 28. But that is not
Cite as: 599 U. S. 255 (2023) 279
Opinion of the Court
what our cases say. We have referred generally to the pow-
ers ânecessarily inherent in any Federal Government,â and
we have offered examples like âcreating departments of In-
dian affairs, appointing Indian commissioners, and . . . `secur-
ing and preserving the friendship of the Indian Nations' ââ
none of which are military actions. Lara, 541 U. S., at
201â202. Once again, petitioners make no argument that
takes our cases on their own terms.
Finally, petitioners observe that ICWA does not imple-
ment a federal treaty. Brief for Petitioner Texas 24â27;
Brief for Individual Petitioners 56â58. This does not get
them very far either, since Congress did not purport to enact
ICWA pursuant to the Treaty Clause power and the Fifth
Circuit did not uphold ICWA on that rationale.
Presumably recognizing these obstacles, petitioners turn
to criticizing our precedent as inconsistent with the Constitu-
tion's original meaning. Yet here too, they offer no account
of how their argument fts within the landscape of our case
Page Proof Pending Publication
law. For instance, they neither ask us to overrule the prece-
dent they criticize nor try to reconcile their approach with
it. They are also silent about the potential consequences of
their position. Would it undermine established cases and
statutes? If so, which ones? Petitioners do not say.
We recognize that our case law puts petitioners in a dif-
fcult spot. We have often sustained Indian legislation
without specifying the source of Congress's power, and we
have insisted that Congress's power has limits without say-
ing what they are. Yet petitioners' strategy for dealing
with the confusion is not to offer a theory for rationalizing
this body of lawâthat would at least give us something to
work with.4 Instead, they frame their arguments as if the
4
Texas foated a theory for the frst time at oral argument. It said that,
taken together, our plenary power cases fall into three buckets: (1) those
allowing Congress to legislate pursuant to an enumerated power, such as
the Indian Commerce Clause or the Treaty Clause; (2) those allowing Con-
gress to regulate the tribes as government entities; and (3) those allowing
280 HAALAND v. BRACKEEN
Opinion of the Court
slate were clean. More than two centuries in, it is any-
thing but.
If there are arguments that ICWA exceeds Congress's au-
thority as our precedent stands today, petitioners do not
make them. We therefore decline to disturb the Fifth Cir-
cuit's conclusion that ICWA is consistent with Article I.
III
We now turn to petitioners' host of anticommandeering ar-
guments, which we will break into three categories. First,
petitioners challenge certain requirements that apply in in-
voluntary proceedings to place a child in foster care or termi-
nate parental rights: the requirements that an initiating
party demonstrate âactive effortsâ to keep the Indian family
together; serve notice of the proceeding on the parent or
Indian custodian and tribe; and demonstrate, by a heightened
burden of proof and expert testimony, that the child is likely
Page Proof Pending Publication
to suffer âserious emotional or physical damageâ if the par-
ent or Indian custodian retains custody. Second, petitioners
challenge ICWA's placement preferences. They claim that
Congress can neither force state agencies to fnd preferred
placements for Indian children nor require state courts to
apply federal standards when making custody determina-
tions. Third, they insist that Congress cannot force state
courts to maintain or transmit to the Federal Government
records of custody proceedings involving Indian children.5
Congress to enact legislation that applies to federal or tribal land. Tr. of
Oral Arg. 55. According to Texas, ICWA is unconstitutional because it
does not fall within any of these categories. We have never broken down
our cases this way. But even if Texas's theory is descriptively accurate,
Texas offers no explanation for why Congress's power is limited to these
categories.
5
All petitioners argue that these provisions violate the anticomman-
deering principle. Since Texas has standing to raise these claims, we
need not address whether the individual petitioners also have standing to
do so.
Cite as: 599 U. S. 255 (2023) 281
Opinion of the Court
A
As a reminder, âinvoluntary proceedingsâ are those to
which a parent does not consent. § 1912; 25 CFR § 23.2.
Heightened protections for parents and tribes apply in this
context, and while petitioners challenge most of them, the
âactive effortsâ provision is their primary target. That pro-
vision requires â[a]ny partyâ seeking to effect an involuntary
foster care placement or termination of parental rights to
âsatisfy the court that active efforts have been made to pro-
vide remedial services and rehabilitative programs designed
to prevent the breakup of the Indian family and that these
efforts have proved unsuccessful.â § 1912(d). According to
petitioners, this subsection directs state and local agencies
to provide extensive services to the parents of Indian chil-
dren. It is well established that the Tenth Amendment bars
Congress from âcommand[ing] the States' offcers, or those of
their political subdivisions, to administer or enforce a federal
Page Proof Pending Publication
regulatory program.â Printz v. United States, 521 U. S.
898, 935 (1997). The âactive effortsâ provision, petitioners
say, does just that.
Petitioners' argument has a fundamental faw: To succeed,
they must show that § 1912(d) harnesses a State's legislative
or executive authority. But the provision applies to â[a]ny
partyâ who initiates an involuntary proceeding, thus sweep-
ing in private individuals and agencies as well as government
entities. A demand that either public or private actors can
satisfy is unlikely to require the use of sovereign power.
Murphy v. National Collegiate Athletic Assn., 584 U. S.
453, 476â477 (2018).
Notwithstanding the term â[a]ny party,â petitioners insist
that § 1912(d) is âbest readâ as a command to the States.
See id., at 477 (whether a federal law directly regulates the
States depends on how it is âbest readâ). They contend
that, as a practical matter, Statesânot private partiesâini-
tiate the vast majority of involuntary proceedings. Despite
282 HAALAND v. BRACKEEN
Opinion of the Court
the breadth of the language, the argument goes, States are
obviously the âpartiesâ to whom the statute refers.
The record contains no evidence supporting the assertion
that States institute the vast majority of involuntary pro-
ceedings. Examples of private suits are not hard to fnd, so
we are skeptical that their number is negligible. See, e. g.,
Adoptive Couple v. Baby Girl, 570 U. S. 637, 644â646 (2013)
(prospective adoptive parents); In re Guardianship of Eliza
W., 304 Neb. 995, 997, 938 N. W. 2d 307, 310 (2020) (grand-
mother); In re Guardianship of J. C. D., 2004 S. D. 96, Âś4,
686 N. W. 2d 647, 648 (grandparents); In re Adoption
of T. A. W., 186 Wash. 2d 828, 835â837, 850â851, 383 P. 3d
492, 494â495, 501â502 (2016) (mother and stepfather);
J. W. v. R. J., 951 P. 2d 1206, 1212â1213 (Alaska 1998) (same).
Indeed, Texas's own family code permits certain private
parties to initiate suits for the termination of parental rights.
Tex. Fam. Code Ann. § 102.003(a) (West Cum. Supp. 2022);
see Reply Brief for Texas 27. And while petitioners treat
Page Proof Pending Publication
âactive effortsâ as synonymous with âgovernment pro-
grams,â state courts have applied the âactive effortsâ
requirement in private suits too. See, e. g., In re Adoption
of T. A. W., 186 Wash. 2d, at 851â852, 383 P. 3d, at 502â
503; S. S. v. Stephanie H., 241 Ariz. 419, 424, 388 P. 3d 569,
574 (App. 2017); In re N. B., 199 P. 3d 16, 23â24 (Colo. App.
2007). That is consistent with ICWA's fndings, which de-
scribe the role that both public and private actors played in
the unjust separation of Indian children from their families
and tribes. § 1901. Given all this, it is implausible that
§ 1912(d) is directed primarily, much less exclusively, at the
States.6
6
To bolster their claim that the âactive effortsâ requirement is aimed at
the States, petitioners point to a statement from the Department of the
Interior asserting that the reference to âactive effortsâ refects Congress's
intent âto require States to affrmatively provide Indian families with sub-
stantive services and not merely make the services available.â 81 Fed.
Reg. 38791 (emphasis added). This statement does not move the needle.
Cite as: 599 U. S. 255 (2023) 283
Opinion of the Court
Legislation that applies âevenhandedlyâ to state and pri-
vate actors does not typically implicate the Tenth Amend-
ment. Murphy, 584 U. S., at âââ. In South Carolina v.
Baker, for example, we held that a generally applicable law
regulating unregistered bonds did not commandeer the
States; rather, it required States âwishing to engage in cer-
tain activity [to] take administrative and sometimes legisla-
tive action to comply with federal standards regulating that
activity.â 485 U. S. 505, 514â515 (1988). We reached a sim-
ilar conclusion in Reno v. Condon, which dealt with a statute
prohibiting state motor vehicle departments (DMVs) from
selling a driver's personal information without the driver's
consent. 528 U. S. 141, 143â144 (2000). The law regulated
not only the state DMVs, but also private parties who had
already purchased this information and sought to resell it.
Id., at 146. Applying Baker, we concluded that the Act did
not ârequire the States in their sovereign capacity to regu-
late their own citizens,â âenact any laws or regulations,â or
Page Proof Pending Publication
âassist in the enforcement of federal statutes regulating pri-
vate individuals.â 528 U. S., at 150â151. Instead, it per-
missibly âregulate[d] the States as the owners of data bases.â
Id., at 151.
Petitioners argue that Baker and Condon are distinguish-
able because they addressed laws regulating a State's com-
mercial activity, while ICWA regulates a State's âcore sov-
ereign function of protecting the health and safety of
children within its borders.â Brief for Petitioner Texas 66.
A State can stop selling bonds or a driver's personal informa-
Neither § 1912(d) nor the regulations limit themselves to States; moreover,
the regulations plainly contemplate that services will come from private
organizations as well as the government. 25 CFR § 23.102 (âAgency
means a nonproft, for-proft, or governmental organization . . . that per-
forms, or provides services to biological parents, foster parents, or adop-
tive parents to assist in the administrative and social work necessary for
foster, preadoptive, or adoptive placementsâ). The Department's state-
ment is thus consistent with the plain language of § 1912, which applies to
both private and state actors.
284 HAALAND v. BRACKEEN
Opinion of the Court
tion, petitioners say, but it cannot withdraw from the area of
child welfareâprotecting children is the business of govern-
ment, even if it is work in which private parties share. Nor,
of course, could Texas avoid ICWA by excluding only Indian
children from social services. Because States cannot exit
the feld, they are hostage to ICWA, which requires them
to implement Congress's regulatory program for the care of
Indian children and families. Id., at 64â65; Reply Brief for
Texas 27.
This argument is presumably directed at situations in
which only the State can rescue a child from neglectful par-
ents. But § 1912 applies to more than child neglectâfor in-
stance, it applies when a biological mother arranges for a
private adoption without the biological father's consent.
See, e. g., Adoptive Couple, 570 U. S., at 643â644. And even
when a child is trapped in an abusive home, the State is not
necessarily the only option for rescueâfor instance, a grand-
Page Proof Pending Publication
mother can seek guardianship of a grandchild whose parents
are failing to care for her. See, e. g., In re Guardianship of
Eliza W., 304 Neb., at 996â997, 938 N. W. 2d, at 309â310.
Petitioners do not distinguish between these varied situa-
tions, much less isolate a domain in which only the State can
act. Some amici assert that, at the very least, removing
children from imminent danger in the home falls exclusively
to the government. Brief for Academy of Adoption and As-
sisted Reproduction Attorneys et al. as Amici Curiae 14
(âAmici are aware of no state in which a private actor may
lawfully remove a child from his existing homeâ). Maybe
soâbut that does not help petitioners' commandeering argu-
ment, because the âactive effortsâ requirement does not
apply to emergency removals. § 1922. If ICWA comman-
deers state performance of a âcore sovereign function,â peti-
tioners do not give us the details.
When a federal statute applies on its face to both private
and state actors, a commandeering argument is a heavy
Cite as: 599 U. S. 255 (2023) 285
Opinion of the Court
liftâand petitioners have not pulled it off. Both state and
private actors initiate involuntary proceedings. And, if
there is a core of involuntary proceedings committed exclu-
sively to the sovereign, Texas neither identifes its contours
nor explains what § 1912(d) requires of a State in that con-
text. Petitioners have therefore failed to show that the âac-
tive effortsâ requirement commands the States to deploy
their executive or legislative power to implement federal In-
dian policy.
As for petitioners' challenges to other provisions of
§ 1912âthe notice requirement, expert witness requirement,
and evidentiary standardsâwe doubt that requirements
placed on a State as litigant implicate the Tenth Amendment.
But in any event, these provisions, like § 1912(d), apply to
both private and state actors, so they too pose no anticom-
mandeering problem.
B
Page Proof
Petitioners Pending
also raise Publication
a Tenth Amendment challenge to
§ 1915, which dictates placement preferences for Indian chil-
dren. According to petitioners, this provision orders state
agencies to perform a âdiligent searchâ for placements that
satisfy ICWA's hierarchy. Brief for Petitioner Texas 63;
Reply Brief for Texas 24; see also Brief for Individual Pe-
titioners 67â68. Petitioners assert that the Department
of the Interior understands § 1915 this way, 25 CFR
§ 23.132(c)(5), and the Tribes who intervene in proceedings
governed by ICWA share that understandingâfor example,
âthe Librettis' adoption of Baby O was delayed because the
Ysleta del Sur Pueblo Tribe demanded that county offcials
exhaustively search for a placement with the Tribe frst.â
Reply Brief for Texas 24â25. Just as Congress cannot com-
pel state offcials to search databases to determine the law-
fulness of gun sales, Printz, 521 U. S., at 902â904, petitioners
argue, Congress cannot compel state offcials to search for a
federally preferred placement.
286 HAALAND v. BRACKEEN
Opinion of the Court
As an initial matter, this argument encounters the same
problem that plagues petitioners with respect to § 1912: Peti-
tioners have not shown that the âdiligent searchâ require-
ment, which applies to both private and public parties, de-
mands the use of state sovereign authority. But this
argument fails for another reason too: Section 1915 does not
require anyone, much less the States, to search for alterna-
tive placements. As the United States emphasizes, petition-
ers' interpretation âcannot be squared with this Court's deci-
sion in Adoptive Couple,â which held that â `there simply is
no âpreferenceâ to apply if no alternative party that is eligi-
ble to be preferred . . . has come forward.' â Brief for Fed-
eral Parties 44 (quoting 570 U. S., at 654); Adoptive Couple,
570 U. S., at 654 (⧠1915(a)'s preferences are inapplicable in
cases where no alternative party has formally sought to
adopt the childâ). Instead, the burden is on the tribe or
other objecting party to produce a higher-ranked placement.
Page Proof Pending Publication
Ibid. So, as it stands, petitioners assert an anticomman-
deering challenge to a provision that does not command state
agencies to do anything.
State courts are a different matter. ICWA indisputably
requires them to apply the placement preferences in making
custody determinations. §§ 1915(a), (b). Petitioners argue
that this too violates the anticommandeering doctrine. To
be sure, they recognize that Congress can require state
courts, unlike state executives and legislatures, to enforce
federal law. See New York v. United States, 505 U. S. 144,
178â179 (1992) (âFederal statutes enforceable in state courts
do, in a sense, direct state judges to enforce them, but this
sort of federal `direction' of state judges is mandated by the
text of the Supremacy Clauseâ). But they draw a distinc-
tion between requiring state courts to entertain federal
causes of action and requiring them to apply federal law to
state causes of action. They claim that if state law provides
the cause of actionâas Texas law does hereâthen the State
Cite as: 599 U. S. 255 (2023) 287
Opinion of the Court
gets to call the shots, unhindered by any federal instruction
to the contrary. Brief for Individual Petitioners 62â63,
66â67.
This argument runs headlong into the Constitution. The
Supremacy Clause provides that âthe Laws of the United
States . . . shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any Thing in
the Constitution or Laws of any state to the Contrary not-
withstanding.â Art. VI, cl. 2. Thus, when Congress enacts
a valid statute pursuant to its Article I powers, âstate law is
naturally preempted to the extent of any confict with a fed-
eral statute.â Crosby v. National Foreign Trade Council,
530 U. S. 363, 372 (2000). End of story. That a federal law
modifes a state-law cause of action does not limit its preemp-
tive effect. See, e. g., Hillman, 569 U. S., at 493â494 (fed-
eral law establishing an â `order of precedence' â for benef-
ciaries of life insurance preempted state law); Egelhoff v.
Egelhoff, 532 U. S. 141, 151â152 (2001) (Employee Retire-
Page Proof Pending Publication
ment Income Security Act preempted state law regarding
the economic consequences of divorce); Wissner v. Wissner,
338 U. S. 655, 660â661 (1950) (federal military benefts law
preempted state community-property rules).
C
Finally, we turn to ICWA's recordkeeping provisions.
Section 1951(a) requires courts to provide the Secretary of
the Interior with a copy of the fnal order in the adoptive
placement of any Indian child. The court must also provide
âother information as may be necessary to showâ the child's
name and tribal affliation, the names and addresses of the
biological parents and adoptive parents, and the identity of
any agency with information about the adoptive placement.
Section 1915(e) requires the State to âmaintai[n]â a record
âevidencing the efforts to comply with the order of prefer-
enceâ specifed by ICWA. The record âshall be made avail-
288 HAALAND v. BRACKEEN
Opinion of the Court
able at any time upon the request of the Secretary or the
Indian child's tribe.â Petitioners argue that Congress cannot
conscript the States into federal service by assigning them
recordkeeping tasks.7
The anticommandeering doctrine applies âdistinctivelyâ to
a state court's adjudicative responsibilities. Printz, 521
U. S., at 907. As we just explained, this distinction is evi-
dent in the Supremacy Clause, which refers specifcally to
state judges. Art. VI, cl. 2. From the beginning, the text
manifested in practice: As originally understood, the Consti-
tution allowed Congress to require âstate judges to enforce
federal prescriptions, insofar as those prescriptions related
to matters appropriate for the judicial power.â Printz, 521
U. S., at 907 (emphasis deleted). In Printz, we indicated
that this principle may extend to tasks that are âancillaryâ
to a âquintessentially adjudicative taskââsuch as ârecording,
registering, and certifyingâ documents. Id., at 908, n. 2.
Petitioners reject Printz's observation, insisting that
Page Proof Pending Publication
there is a distinction between rules of decision (which state
courts must follow) and recordkeeping requirements (which
they can ignore). But Printz described numerous historical
examples of Congress imposing recordkeeping and reporting
requirements on state courts. The early Congresses passed
laws directing state courts to perform certain tasks fairly
described as âancillaryâ to the courts' adjudicative duties.
For example, state courts were required to process and
record applications for United States citizenship. Act of
7
Though § 1915(e) does not specify that the records be retained by state
courts, as opposed to state agencies, context makes clear that a ârecord of
each such placementâ refers to the state court's placement determination.
See Mississippi Band of Choctaw Indians v. Holyfeld, 490 U. S. 30, 40,
n. 13 (1989). True, the provision leaves it up to the State whether to keep
the records with a court or agency. See 25 CFR § 23.141(c) (âThe State
court or agency should notify the BIA whether these records are main-
tained within the court system or by a State agencyâ). But allowing the
State to make that choice does not transform the documents into some-
thing other than a court record.
Cite as: 599 U. S. 255 (2023) 289
Opinion of the Court
Mar. 26, 1790, ch. 3, § 1, 1 Stat. 103â104. The clerk (or other
court offcial) was required âto certify and transmitâ the ap-
plication to the Secretary of State, along with information
about âthe name, age, nation, residence and occupation, for
the time being, of the alien.â Act of June 18, 1798, § 2,
1 Stat. 567. The clerk also had to register aliens seeking
naturalization and issue certifcates confrming the court's
receipt of the alien's request for registration. Act of
Apr. 14, 1802, § 2, 2 Stat. 155.8
Federal law imposed other duties on state courts unrelated
to immigration and naturalization. The Judiciary Act of
1789, which authorized âany justice of the peace, or other
magistrate of any of the United States,â to arrest and im-
prison federal offenders, required the judge to set bail at the
defendant's request. § 33, 1 Stat. 91. Congress also re-
quired state courts to administer oaths to prisoners, to issue
certifcates authorizing the apprehension of fugitives, and to
Page Proof Pending Publication
collect proof of the claims of Canadian refugees who had
8
Printz noted uncertainty about whether the naturalization laws ap-
plied only to States that voluntarily âauthorized their courts to conduct
naturalization proceedings.â 521 U. S., at 905â906. But on their face,
these statutes did not require state consent. See Act of Mar. 26, 1790, ch.
3, § 1, 1 Stat. 103 (providing that an alien could apply for citizenship âto
any common law court of record, in any one of the states wherein he shall
have resided for the term of one year at leastâ); Act of Apr. 14, 1802, ch.
28, 2 Stat. 153 (referring to âthe supreme, superior, district or circuit court
of some one of the states, or of the territorial districts of the United
States, or a circuit or district court of the United Statesâ). And as Printz
recognized, this Court has never held that consent is required. 521 U. S.,
at 905â906; see Holmgren v. United States, 217 U. S. 509, 517 (1910) (hold-
ing that Congress could empower state courts to conduct naturalization
proceedings, but because California had already authorized jurisdiction,
reserving the question whether its consent was necessary); but see United
States v. Jones, 109 U. S. 513, 520 (1883) (stating in dicta that the natural-
ization laws âcould not be enforcedâ in state court âagainst the consent of
the Statesâ). In any event, while the naturalization laws are certainly
not conclusive evidence, they are nonetheless relevant to discerning histor-
ical practice.
290 HAALAND v. BRACKEEN
Opinion of the Court
aided the United States in the Revolutionary War. Act of
May 5, 1792, ch. 29, § 2, 1 Stat. 266 (âany person imprisoned
. . . may have the oath or affrmation herein after expressed
administered to him by any judge of the United States, or of
the general or supreme court of law of the state in which the
debtor is imprisonedâ); Act of Feb. 12, 1793, ch. 7, § 1, 1 Stat.
302 (âgovernor or chief magistrate of the state or territoryâ
shall âcertif[y] as authenticâ an indictment or affdavit charg-
ing a âfugitive from justiceâ); Act of Apr. 7, 1798, § 3, 1 Stat.
548 (âproof of the several circumstances necessary to entitle
the applicants to the benefts of this act, may be taken before
. . . a judge of the supreme or superior court, or the frst
justice or frst judge of the court of common pleas or county
court of any stateâ).
There is more. Shortly af ter ratification, Congress
passed a detailed statute that required state-court judges to
gather and certify reports. Act of July 20, 1790, § 3, 1 Stat.
Page Proof Pending Publication
132. The Act authorized commanders of ships to request
examinations of their vessels from any âjustice of the peace
of the city, town or place.â Ibid. The judge would order
three qualifed people to prepare a report on the vessel's con-
dition, which the judge would review and âendorse.â Ibid.
Then, the judge was required to issue an order regarding
âwhether the said ship or vessel is ft to proceed on the in-
tended voyage; and if not, whether such repairs can be made
or defciencies supplied where the ship or vessel then lays.â
Ibid.
These early congressional enactments âprovid[e] `contem-
poraneous and weighty evidence' of the Constitution's mean-
ing.â Bowsher v. Synar, 478 U. S. 714, 723 (1986). Collec-
tively, they demonstrate that the Constitution does not
prohibit the Federal Government from imposing adjudicative
tasks on state courts. This makes sense against the back-
drop of the Madisonian Compromise: Since Article III estab-
lished only the Supreme Court and made inferior federal
courts optional, Congress could have relied almost entirely
Cite as: 599 U. S. 255 (2023) 291
Opinion of the Court
on state courts to apply federal law. Printz, 521 U. S.,
at 907. Had Congress taken that course, it would have had
to rely on state courts to perform adjudication-adjacent
tasks too.
We now confrm what we suggested in Printz: Congress
may impose ancillary recordkeeping requirements related to
state-court proceedings without violating the Tenth Amend-
ment. Such requirements do not offoad the Federal Gov-
ernment's responsibilities onto the States, nor do they put
state legislatures and executives âunder the direct control of
Congress.â Murphy, 584 U. S., at 474. Rather, they are a
logical consequence of our system of âdual sovereigntyâ in
which state courts are required to apply federal law. See
Gregory v. Ashcroft, 501 U. S. 452, 457 (1991).
Here, ICWA's recordkeeping requirements are comparable
in kind and in degree to the historical examples. Like the
naturalization laws, § 1951(a) requires the state court to
transmit to the Secretary a copy of a court order along with
Page Proof Pending Publication
basic demographic information. Section 1915(e) likewise re-
quires the State to record a limited amount of informationâ
the efforts made to comply with the placement preferencesâ
and provide the information to the Secretary and to the
child's tribe. These duties are âancillaryâ to the state
court's obligation to conduct child custody proceedings in
compliance with ICWA. Printz, 521 U. S., at 908, n. 2.
Thus, ICWA's recordkeeping requirements are consistent
with the Tenth Amendment.
IV
Petitioners raise two additional claims: an equal protection
challenge to ICWA's placement preferences and a nondelega-
tion challenge to the provision allowing tribes to alter the
placement preferences. We do not reach the merits of these
claims because no party before the Court has standing to
raise them. Article III requires a plaintiff to show that she
has suffered an injury in fact that is â `fairly traceable to
292 HAALAND v. BRACKEEN
Opinion of the Court
the defendant's allegedly unlawful conduct and likely to be
redressed by the requested relief.' â California v. Texas,
593 U. S. âââ, âââ (2021). Neither the individual petitioners
nor Texas can pass that test.
A
The individual petitioners argue that ICWA injures them
by placing them on â[un]equal footingâ with Indian parents
who seek to adopt or foster an Indian child. Northeastern
Fla. Chapter, Associated Gen. Contractors of America v.
Jacksonville, 508 U. S. 656, 666 (1993). Under ICWA's hier-
archy of preferences, non-Indian parents are generally last
in line for potential placements. According to petitioners,
this âerects a barrier that makes it more diffcult for mem-
bers of one group to obtain a beneft than it is for members
of another group.â Ibid.; see also Turner v. Fouche, 396
U. S. 346, 362 (1970) (the Equal Protection Clause secures
Page Proof Pending Publication
the right of individuals âto be consideredâ for government
positions and benefts âwithout the burden of invidiously
discriminatory disqualifcationsâ). The racial discrimination
they allege counts as an Article III injury.9
But the individual petitioners have not shown that this
injury is âlikelyâ to be âredressed by judicial relief.â Trans-
Union LLC v. Ramirez, 594 U. S. 413, 423 (2021). They seek
an injunction preventing the federal parties from enforcing
ICWA and a declaratory judgment that the challenged provi-
sions are unconstitutional. Yet enjoining the federal parties
would not remedy the alleged injury, because state courts
apply the placement preferences, and state agencies carry
out the court-ordered placements. §§ 1903(1), 1915(a), (b);
9
Respondents raise other objections to the individual petitioners' stand-
ing, including that the alleged injury is speculative because it depends on
future proceedings to foster or adopt Indian children. Brief for Tribal
Defendants 46â50; Brief for Federal Parties 49â52. Because we resolve
the standing of all individual petitioners on the ground of redressability,
we do not address respondents' other arguments.
Cite as: 599 U. S. 255 (2023) 293
Opinion of the Court
see also Brief for Individual Petitioners 63 (âThere is no fed-
eral offcial who administers ICWA or carries out its man-
datesâ). The state offcials who implement ICWA are ânot
parties to the suit, and there is no reason they should be
obliged to honor an incidental legal determination the suit
produced.â Lujan v. Defenders of Wildlife, 504 U. S. 555,
569 (1992) (plurality opinion). So an injunction would not
give petitioners legally enforceable protection from the al-
legedly imminent harm.
Petitioners' request for a declaratory judgment suffers
from the same faw. See Skelly Oil Co. v. Phillips Petro-
leum Co., 339 U. S. 667, 671â672 (1950). This form of relief
conclusively resolves â `the legal rights of the parties.' â
Medtronic, Inc. v. Mirowski Family Ventures, LLC, 571
U. S. 191, 200 (2014) (emphasis added). But again, state of-
fcials are nonparties who would not be bound by the judg-
ment. Taylor v. Sturgell, 553 U. S. 880, 892â893 (2008).
Page Proof Pending Publication
Thus, the equal protection issue would not be settled be-
tween petitioners and the offcials who matterâwhich would
leave the declaratory judgment powerless to remedy the al-
leged harm. 994 F. 3d, at 448 (Costa, J., concurring in part
and dissenting in part) (âWhat saves proper declaratory
judgments from a redressability problemâbut is lacking
hereâis that they have preclusive effect on a traditional law-
suit that is imminentâ). After all, the point of a declaratory
judgment âis to establish a binding adjudication that enables
the parties to enjoy the benefts of reliance and repose
secured by res judicata.â 18A C. Wright, A. Miller, & E.
Cooper, Federal Practice and Procedure § 4446 (3d ed. Supp.
2022). Without preclusive effect, a declaratory judgment is
little more than an advisory opinion. Ibid.; see Public Serv.
Comm'n of Utah v. Wycoff Co., 344 U. S. 237, 242â243 (1952).
The individual petitioners do not disputeâor even ad-
dressâany of this. Instead, they insist that state courts are
likely to defer to a federal court's interpretation of federal
law, thus giving rise to a substantial likelihood that a favor-
294 HAALAND v. BRACKEEN
Opinion of the Court
able judgment will redress their injury. Brief in Opposition
for Individual Respondents 19â20; Reply Brief for Individual
Petitioners 29. They point out that, in the Brackeens' ongo-
ing efforts to adopt Y. R. J., the trial court stated that it
would follow the federal court's ruling on the Brackeens' con-
stitutional claims. Ibid. Thus, they reason, winning this
case would solve their problems.
But â[r]edressability requires that the court be able to af-
ford relief through the exercise of its power, not through the
persuasive or even awe-inspiring effect of the opinion ex-
plaining the exercise of its power.â Franklin v. Massachu-
setts, 505 U. S. 788, 825 (1992) (Scalia, J., concurring in part
and concurring in judgment) (emphasis in original); see also
United States v. Juvenile Male, 564 U. S. 932, 937 (2011)
(per curiam) (a judgment's âpossible, indirect beneft in a
future lawsuitâ does not preserve standing). Otherwise, re-
dressability would be satisfed whenever a decision might
Page Proof Pending Publication
persuade actors who are not before the courtâcontrary to
Article III's strict prohibition on âissuing advisory opin-
ions.â Carney v. Adams, 592 U. S. 53, 58 (2020). It is a
federal court's judgment, not its opinion, that remedies an
injury; thus it is the judgment, not the opinion, that demon-
strates redressability. The individual petitioners can hope
for nothing more than an opinion, so they cannot satisfy Arti-
cle III.10
B
Texas also lacks standing to challenge the placement pref-
erences. It has no equal protection rights of its own, South
Carolina v. Katzenbach, 383 U. S. 301, 323 (1966), and it can-
not assert equal protection claims on behalf of its citizens
10
Of course, the individual petitioners can challenge ICWA's constitu-
tionality in state court, as the Brackeens have done in their adoption
proceedings for Y. R. J. 994 F. 3d 249, 294 (CA5 2021) (principal opinion
of Dennis, J.).
Cite as: 599 U. S. 255 (2023) 295
Opinion of the Court
because â[a] State does not have standing as parens patriae
to bring an action against the Federal Government,â Alfred
L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S.
592, 610, n. 16 (1982).11 That should make the issue open
and shut.
Yet Texas advances a few creative arguments for why it
has standing despite these settled rules. It leads with what
one might call an âunclean handsâ injury: ICWA âinjures
Texas by requiring it to break its promise to its citizens that
it will be colorblind in child-custody proceedings.â Reply
Brief for Texas 15; id., at 14 (âICWA forces Texas to violate
its own constitutional obligationsâ). This is not the kind of
âconcreteâ and âparticularizedâ âinvasion of a legally pro-
tected interestâ necessary to demonstrate an â `injury in
fact.' â Lujan, 504 U. S., at 560. Were it otherwise, a State
would always have standing to bring constitutional chal-
lenges when it is complicit in enforcing federal law. Texas
tries to fnesse this problem by characterizing ICWA as a
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âfscal trap,â forcing it to discriminate against its citizens or
lose federal funds. Brief for Petitioner Texas 39â40. But
ICWA is not a Spending Clause statuteâTexas bases this
argument on a vague reference to a different Spending
Clause statute that it does not challenge. And Texas has
not established that those funds, which the State has ac-
cepted for years, are conditioned on compliance with the
11
Texas claims that it can assert third-party standing on behalf of non-
Indian families. This argument is a thinly veiled attempt to circumvent
the limits on parens patriae standing. The case on which Texas relies,
Georgia v. McCollum, 505 U. S. 42 (1992), allowed a State to represent
jurors struck on the basis of race, because (among other reasons) â[a]s the
representative of all its citizens, the State is the logical and proper party
to assert the invasion of the constitutional rights of the excluded jurors in
a criminal trial.â Id., at 56. But McCollum was not a suit against the
Federal Government; moreover, it involved a âconcrete injuryâ to the
State and âsome hindrance to the third party's ability to protect its own
interests,â neither of which is present here. Id., at 55â56.
296 HAALAND v. BRACKEEN
Opinion of the Court
placement preferences anyway. See 42 U. S. C. § 622; Brief
for Federal Parties 49, n. 6.
Texas also claims a direct pocketbook injury associated
with the costs of keeping records, providing notice in invol-
untary proceedings, and producing expert testimony before
moving a child to foster care or terminating parental rights.
Reply Brief for Texas 13â14. But these alleged costs are
not âfairly traceableâ to the placement preferences, which
âoperate independentlyâ of the provisions Texas identifes.
California, 593 U. S., at âââ. The provisions do not rise or
fall together; proving that the placement preferences are un-
constitutional âwould not show that enforcement of any of
these other provisions violates the Constitution.â Ibid. In
other words, Texas would continue to incur the complained-
of costs even if it were relieved of the duty to apply the
placement preferences. The former, then, cannot justify a
challenge to the latter.
Because Texas is not injured by the placement prefer-
Page Proof Pending Publication
ences, neither would it be injured by a tribal resolution that
altered those preferences pursuant to § 1915(c). Texas
therefore does not have standing to bring either its equal
protection or its nondelegation claims.12
* * *
For these reasons, we affrm the judgment of the Court
of Appeals regarding Congress's constitutional authority
to enact ICWA. On the anticommandeering claims, we
reverse. On the equal protection and nondelegation
claims, we vacate the judgment of the Court of Appeals
and remand with instructions to dismiss for lack of
jurisdiction.
It is so ordered.
12
Although the individual petitioners join Texas's nondelegation chal-
lenge to § 1915(c), they raise no independent arguments about why they
would have standing to bring this claim. Brief for Individual Petitioners
41, n. 6; Brief for Federal Parties 79, n. 14.
Cite as: 599 U. S. 255 (2023) 297
Gorsuch, J., concurring
Justice Gorsuch, with whom Justice Sotomayor and
Justice Jackson join as to Parts I and III, concurring.
In affrming the constitutionality of the Indian Child
Welfare Act (ICWA), the Court safeguards the ability of
tribal members to raise their children free from interference
by state authorities and other outside parties. In the proc-
ess, the Court also goes a long way toward restoring the
original balance between federal, state, and tribal powers
the Constitution envisioned. I am pleased to join the
Court's opinion in full. I write separately to add some his-
torical context. To appreciate fully the signifcance of to-
day's decision requires an understanding of the long line of
policies that drove Congress to adopt ICWA. And to ap-
preciate why that law surely comports with the Constitution
requires a bird's-eye view of how our founding document me-
diates between competing federal, state, and tribal claims
of sovereignty.
I
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The Indian Child Welfare Act did not emerge from a vac-
uum. It came as a direct response to the mass removal of
Indian children from their families during the 1950s, 1960s,
and 1970s by state offcials and private parties. That prac-
tice, in turn, was only the latest iteration of a much older
policy of removing Indian children from their familiesâone
initially spearheaded by federal offcials with the aid of their
state counterparts nearly 150 years ago. In all its many
forms, the dissolution of the Indian family has had devastat-
ing effects on children and parents alike. It has also pre-
sented an existential threat to the continued vitality of
Tribesâsomething many federal and state offcials over the
years saw as a feature, not as a faw. This is the story of
ICWA. And with this story, it pays to start at the beginning.
A
When Native American Tribes were forced onto reserva-
tions, they understood that life would never again be as it
298 HAALAND v. BRACKEEN
Gorsuch, J., concurring
was. M. Fletcher & W. Singel, Indian Children and the
FederalâTribal Trust Relationship, 95 Neb. L. Rev. 885, 917â
918 (2017) (Fletcher & Singel). Securing a foothold for their
children in a rapidly changing world, the Tribes knew, would
require schooling. Ibid. So as they ceded their lands,
Tribes also negotiated âmore than 150â treaties with the
United States that included âeducation-related provisions.â
Dept. of Interior, B. Newland, Federal Indian Boarding
School Initiative Investigative Report 33 (May 2022) (BIA
Report). Many tribal leaders hoped these provisions would
lead to the creation of âreservation Indian schools that would
blend traditional Indian education with the needed non-
Indian skills that would allow their members to adapt to the
reservation way of life.â R. Cross, American Indian Educa-
tion: The Terror of History and the Nation's Debt to the In-
dian Peoples, 21 U. Ark. Little Rock L. Rev. 941, 950 (1999).
At frst, Indian education typically came in the form of day
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schools, many of them âestablished through the . . . efforts
of missionaries or the wives of Army offcers stationed at
military reservations in the Indian country.â Annual Re-
port of the Commissioner of Indian Affairs to the Secretary
of Interior, p. LXI (1886) (ARCIA 1886). At those day
schools, âIndian children would learn English as a second
language,â along with âmath and science.â Fletcher &
Singel 917â918. But the children lived at home with their
families where they could continue to learn and practice
âtheir languages, beliefs, and traditional knowledge.â Id.,
at 918. At least in those âearly decades,â schooling was
âgenerally . . . not compulsoryâ anyway. Id., at 914.
The federal government had darker designs. By the late
1870s, its goals turned toward destroying tribal identity and
assimilating Indians into broader society. See L. Lacey, The
White Man's Law and the American Indian Family in the
Assimilation Era, 40 Ark. L. Rev. 327, 356â357 (1986).
Achieving those goals, offcials reasoned, required the âcom-
plete isolation of the Indian child from his savage anteced-
Cite as: 599 U. S. 255 (2023) 299
Gorsuch, J., concurring
ents.â ARCIA 1886, at LXI. And because âthe warm re-
ciprocal affection existing between parents and childrenâ
was âamong the strongest characteristics of the Indian na-
ture,â offcials set out to eliminate it by dissolving Indian
families. Annual Report of the Commissioner of Indian Af-
fairs to the Secretary of Interior 392 (1904).
Thus began Indian boarding schools. In 1879, the Carlisle
Indian Industrial School opened its doors at the site of an
old military base in central Pennsylvania. Carlisle's head,
then-Captain Richard Henry Pratt, summarized the school's
mission this way: â[A]ll the Indian there is in the race should
be dead. Kill the Indian in him, and save the man.â The
Advantages of Mingling Indians With Whites, in Proceedings
of the National Conference of Charities and Correction 46 (I.
Barrows ed. 1892). From its inception, Carlisle depended
on state support. The school âwas deeply enmeshed with
local governments and their services,â and it was âexpanded
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thanks to the Pennsylvania Legislature.â Brief for Ameri-
can Historical Association et al. as Amici Curiae 11 (Histori-
ans Brief). Ultimately, Carlisle became the model for what
would become a system of 408 similar federal institutions
nationwide. BIA Report 82. âThe essential featureâ of
each was, in the federal government's own words, âthe aboli-
tion of the old tribal relations.â Annual Report of the Com-
missioner of Indian Affairs to the Secretary of Interior 28
(1910).
Unsurprisingly, â[m]any Indian families resistedâ the fed-
eral government's boarding school initiative and ârefus[ed]
to send their children.â S. Rep. No. 91â501, pt. 1, p. 12
(1969). But Congress would not be denied. It authorized
the Secretary of the Interior to âprevent the issuing of ra-
tions or the furnishing of subsistenceâ to Indian families who
would not surrender their children. Act of Mar. 3, 1893, 27
Stat. 628, 635; see also, e. g., Act of Feb. 14, 1920, 41 Stat.
410. When economic coercion failed, offcials sometimes re-
sorted to abduction. See BIA Report 36. As one offcial
300 HAALAND v. BRACKEEN
Gorsuch, J., concurring
later recounted, offcers would âvisit the [Indian] camps un-
expectedly with a detachment of [offcers], and seize such
children as were proper and take them away to school, will-
ing or unwilling.â ARCIA 1886, at 199. When parents
âhurried their children off to the mountains or hid them
away in camp,â agents âchase[d] and capture[d] them like
so many wild rabbits.â Ibid. Fathers were described as
âsullen,â mothers âloud in their lamentations,â and the chil-
dren âalmost out of their wits with fright.â Ibid.
Upon the children's arrival, the boarding schools would
often seek to strip them of nearly every aspect of their iden-
tity. The schools would take away their Indian names and
give them English ones. See BIA Report 53. The schools
would cut their hairâa point of shame in many native com-
munities, see J. Reyhner & J. Eder, American Indian Educa-
tion 178 (2004)âand confscate their traditional clothes.
ARCIA 1886, at 199. Administrators delighted in the proc-
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ess, describing the âmetamorphosis [a]s wonderful,â and pro-
fessing that, in the main, âthe little savage seems quite proud
of his appearance.â Ibid. After intake, the schools fre-
quently prohibited children from speaking their native lan-
guage or engaging in customary cultural or religious prac-
tices. BIA Report 53. Nor could children freely associate
with members of their own Tribe. Schools would organize
dorms by the â[s]ize of cadets, and not their tribal relations,â
so as to further âbr[eak] up the tribal associations.â ARCIA
1886, at 6.
Resistance could invite punishments that included âwith-
holding foodâ and âwhipping.â BIA Report 54 (internal
quotation marks omitted). Older boys faced âcourt-
martial,â with other Indian children serving as prosecutors
and judges. Annual Report of the Commissioner of Indian
Affairs to the Secretary of Interior 188 (1881). Even com-
pliant students faced â[r]ampant physical, sexual, and emo-
tional abuse; disease; malnourishment; overcrowding; and
lack of health care.â BIA Report 56. Given these condi-
Cite as: 599 U. S. 255 (2023) 301
Gorsuch, J., concurring
tions, it is unsurprising that many children tried (often un-
successfully) to fee. Id., at 55, n. 176 (recounting incidents).
State offcials played a key role in foiling those efforts.
â[P]olice from a variety of jurisdictionsâ assisted in âcaptur-
[ing] and return[ing] runaway school children.â Historians
Brief 11â12. For âthe runaways,â school administrators be-
lieved âa whipping administered soundly and prayerfully,
helps greatly towards bringing about the desired result.â
BIA Report 55 (internal quotation marks omitted). As one
Commissioner of Indian Affairs put it, while â[t]he frst wild
redskin placed in the school[s] chafes at the loss of freedom
and longs to return to his wildwood home,â that resistance
would fade with âeach successive generation,â leaving a
âgreater desir[e] to be in touch with the dominant race.â
Id., at 51â52 (internal quotation marks omitted).
Adding insult to injury, the United States stuck Tribes with
a bill for these programs. At points, as much as 95 percent of
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the funding for Indian boarding schools came from âIndian
trust fund moniesâ raised by selling Indian land. Id., at 44.
To subsidize operations further, the boarding schools fre-
quently required children not even 12 years old to work on
the grounds. Id., at 62â63. Some rationalized this experi-
ence as a beneft to the children. Id., at 59â63. But in can-
dor, Indian boarding schools âcould not possibly be main-
tained . . . were it not for the fact that students [were]
required to do . . . an amount of labor that ha[d] in the aggre-
gate a very appreciable monetary value.â L. Meriam, Insti-
tute for Government Research, The Problem of Indian Ad-
ministration 376 (1928) (Meriam Report).
To lower costs further and promote assimilation, some
schools created an âouting system,â which sent Indian chil-
dren to live âwith white familiesâ and perform âhousehold
and farm choresâ for them. R. Trennert, From Carlisle to
Phoenix: The Rise and Fall of the Indian Outing System,
1878â1930, 52 Pacifc Hist. Rev. 267, 273 (1983). This pro-
gram took many Indian children âeven further from their
302 HAALAND v. BRACKEEN
Gorsuch, J., concurring
homes, families, and cultures.â Fletcher & Singel 943. Ad-
vocates of the outing system hoped it would be âextended
until every Indian child was in a white home.â D. Otis, The
Dawes Act and the Allotment of Indian Lands 68 (1973). In
some respects, outing-system advocates were ahead of their
time. The program they devised laid the groundwork for
the system of mass adoption that, as we shall see, eventually
moved Congress to enact ICWA many decades later.
In 1928, the Meriam Report, prepared by the Brookings
Institution, examined conditions in the Indian boarding
schools. It found, âfrankly and unequivocally,â that âthe
provisions for the care of the Indian children . . . are grossly
inadequate.â Meriam Report 11. It recommended that the
federal government âaccelerat[e]â the âmov[e] away from the
boarding schoolâ system in favor of âday school or public
school facilities.â Id., at 35. That transition would be slow
to materialize, though. As late as 1971, federal boarding
schools continued to house âmore than 17 per cent of the
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Indian school-age population.â W. Byler, The Destruction
of American Indian Families 1 (S. Unger ed. 1977) (AAIA
Report).
B
The transition away from boarding schools was not the end
of efforts to remove Indian children from their families and
Tribes; more nearly, it was the end of the beginning. As
federal boarding schools closed their doors and Indian chil-
dren returned to the reservations, States with signifcant
Native American populations found themselves facing sig-
nifcant new educational and welfare responsibilities. Histo-
rians Brief 13â18. Around this time, as fate would have it,
âshifting racial ideologies and changing gender norms [had]
led to an increased demand for Indian childrenâ by adoptive
couples. M. Jacobs, Remembering the âForgotten Childâ:
The American Indian Child Welfare Crisis of the 1960s and
1970s, 37 Am. Indian Q. 136, 141 (2013). Certain States saw
in this shift an opportunity. They could âsave . . . moneyâ
Cite as: 599 U. S. 255 (2023) 303
Gorsuch, J., concurring
by âpromoting the adoption of Indian children by private
families.â Id., at 153.
This restarted a now-familiar nightmare for Indian fami-
lies. The same assimilationist rhetoric previously invoked
by the federal government persisted, âvoiced this time by
state and county offcials.â L. George, Why the Need for
the Indian Child Welfare Act?, 5 J. of Multicultural Social
Work 165, 169 (1997). â `If you want to solve the Indian
problem you can do it in one generation,' â one offcial put it.
Ibid. â `You can take all of [the] children of school age and
move them bodily out of the Indian country and transport
them to some other part of the United States.' â Ibid. This
would allow â `civilized people' â to raise the children, instead
of their families or their tribal communities. Ibid.
In this respect, â[t]he removal of Indian children by
[S]tates ha[d] much in common with Indian boarding
schools.â Fletcher & Singel 952. Through the 1960s and
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1970s, Indian-child removal reached new heights. Surveys
conducted in 1969 and 1974 showed that âapproximately 25â
35 per cent of all Indian children [were] separated from their
families.â AAIA Report 1. Often, these removals whisked
children not only out of their families but out of their commu-
nities. Some estimate that âmore than 90 per cent of non-
related adoptions of Indian children [were] made by non-
Indian couples.â Id., at 2.
These family separations frequently lacked justifcation.
According to one report, only about â1 per centâ of the sepa-
rations studied involved alleged physical abuse. Ibid. The
other 99 percent? â[V]ague groundsâ such âas `neglect' or
`social deprivation.' â Ibid. These determinations, often
âwholly inappropriate in the context of Indian family life,â
came mainly from non-Indian social workers, many of whom
were âignorant of Indian cultural values and social norms.â
Id., at 2â3. They routinely penalized Indian parents for con-
ditions of â[p]overty, poor housing, lack of modern plumbing,
and overcrowding.â Id., at 3. One 3-year-old Sioux child, for
304 HAALAND v. BRACKEEN
Gorsuch, J., concurring
instance, was removed from her family on the State's âbelief
that an Indian reservation is an unsuitable environment
for a child.â Ibid. So it was that some Indian families,
âforced onto reservations at gunpoint,â were later âtold that
they live[d] in a place unft for raising their children.â Id.,
at 3â4.
Aggravating matters, these separations were frequently
âcarried out without due process of law.â Id., at 4. Chil-
dren and their parents rarely had counsel. Ibid. For that
matter, few cases saw the inside of a courtroom. Welfare
departments knew that they could threaten to withhold ben-
eft payments if Indian parents did not surrender custody.
Id., at 4â5. Nor were threats always necessary. After all
the Tribes had suffered at the government's hands, many
parents simply believed they had no power to resist. Ibid.
One interviewed mother âwept that she did not dare protest
the taking of her children for fear of going to jail.â Id., at 7.
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For those Indian parents who did resist, âsimple abductionâ
remained an option. Id., at 5. Parents were, for instance,
sometimes tricked into signing forms that they believed au-
thorized only a brief removal of their children. Ibid. Only
later would they discover that the forms purported to sur-
render full custody. Ibid.
Like the boarding school system that preceded it, this new
program of removal had often-disastrous consequences.
âBecause the family is the most fundamental economic, edu-
cational, and health-care unitâ in society, these âassaults on
Indian familiesâ contributed to the precarious conditions that
Indian parents and children already faced. Id., at 7â8.
Many parents came to âfeel hopeless, powerless, and unwor-
thyââfurther feeding the cycle of removal. Id., at 8. For
many children, separation from their families caused âsevere
distressâ that âinterfere[d] with their physical, mental, and
social growth and development.â Ibid. It appears, too,
that Indian children were âsignifcantly more likelyâ to expe-
rience âphysical, sexual, [and] emotionalâ abuse in foster and
Cite as: 599 U. S. 255 (2023) 305
Gorsuch, J., concurring
adoptive homes than their white counterparts. A. Landers,
S. Danes, A. Campbell, & S. White Hawk, Abuse After
Abuse: The Recurrent Maltreatment of American Indian
Children in Foster Care and Adoption, 111 Child Abuse &
Neglect 104805, p. 9 (2021).
All that often translated into long-lasting adverse health
and emotional effects. See M. Yellow Horse Brave Heart,
The Historical Trauma Response Among Natives and Its Re-
lationship with Substance Abuse: A Lakota Illustration, 35
J. of Psychoactive Drugs 1, 7â13 (2003); U. Running Bear
et al., The Impact of Individual and Parental American In-
dian Boarding School Attendance on Chronic Physical Health
of Northern Plains Tribes, 42 Family & Community Health 1,
3â7 (2019). As one study warned: â[E]fforts to make Indian
children `white,' â by removing them from their Tribes, âcan
destroy them.â AAIA Report 9.
C
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Eventually, Congress could ignore the problem no longer.
In 1978, it responded with the Indian Child Welfare Act. 92
Stat. 3069. The statute's fndings show that Congress was
acutely aware of the scope of the crisis. â[A]n alarmingly
high percentage of Indian families,â Congress observed,
were being âbroken up by the removal, often unwarranted,
of their children from them by nontribal [state] public and
private agencies.â 25 U. S. C. § 1901(4). And âan alarmin-
gly high percentage of such childrenâ were âplaced in non-
Indian foster and adoptive homes and institutions.â Ibid.
Removal at that scale threatened the âcontinued existence
and integrity of Indian [T]ribes.â § 1901(3).
The statute Congress settled upon contains various provi-
sions aimed at addressing this crisis. At bottom, though,
the law's operation is simple. It installs substantive and
procedural guardrails against the unjustifed termination
of parental rights and removal of Indian children from
tribal life.
306 HAALAND v. BRACKEEN
Gorsuch, J., concurring
The touchstone of the statute is notice. In any involun-
tary removal proceeding involving an Indian child, the ini-
tiating party must inform (1) the parent or custodian; and (2)
the child's Tribe. § 1912(a). Either or both can intervene.
§ 1911(c). ICWA also makes it harder for the moving party
to win an involuntary removal proceeding. The party must
show that âactive effortsâ have been made to avoid removing
the Indian child. § 1912(d). It must show the status quo is
âlikely to result in serious emotional or physical damage to
the child.â § 1912(e), (f). And it must prove that fact by
âclear and convincing evidence,â § 1912(e) (for placement in
foster services), or âbeyond a reasonable doubt,â § 1912(f)
(for termination of parental rights).
Even when it comes to voluntary removal proceedings,
ICWA sets certain âminimum Federal standardsâ for âthe
placement of [Indian] children in foster or adoptive homes.â
§ 1902. In any adoptive placement, a court by default must
Page Proof Pending Publication
give preference to â(1) a member of the child's extended
family; (2) other members of the Indian child's [T]ribe;
or (3) other Indian families.â § 1915(a). This priority gov-
erns unless the initiating party can show âgood cause.â
Ibid. A similar regime applies by default to foster-care or
pre-adoptive placements. § 1915(b). But note that âby de-
fault.â ICWA gives Tribes a voice. It allows them to
establish a âdifferent order of preference by resolution,â pro-
vided it is âthe least restrictive setting appropriate to the
particular needs of the child.â § 1915(c).
Recognizing that coercion remains possible even with
these protections, ICWA also allows for postplacement relief.
It lets the Indian child, the parent, or the Tribe âpetition any
court of competent jurisdictionâ to âinvalidateâ an order that
violated key provisions of ICWA. § 1914. Of special rele-
vance, an Indian parent consenting to adoption has two years
to withdraw consent on âthe grounds that consent was ob-
tained through fraud or duress.â § 1913(d).
Cite as: 599 U. S. 255 (2023) 307
Gorsuch, J., concurring
ICWA is not a panacea. While â[a]dopting ICWA marked
one step toward upholding tribal rights,â âmany [S]tatesâ
have struggled with âeffective implementation.â Maine
WabanakiâState Child Welfare Truth & Reconciliation Com-
mission, Beyond the Mandate: Continuing the Conversation
12 (2015). Others resist ICWA outright, as the present liti-
gation by Texas attests. See generally M. Fletcher & W.
Singel, Lawyering the Indian Child Welfare Act, 120 Mich.
L. Rev. 1755 (2022). Still, the statute âhas achieved consid-
erable success in stemming unwarranted removals by state
offcials of Indian children from their families and communi-
ties.â B. Atwood, Flashpoints Under the Indian Child Wel-
fare Act: Toward a New Understanding of State Court Re-
sistance, 51 Emory L. J. 587, 621 (2002). And considerable
research â[s]ubsequent to Congress's enactment of ICWAâ
has âborne out the statute's basic premiseââthat âit is gen-
erally in the best interests of Indian children to be raised in
Indian homes.â Brief for American Psychological Associa-
Page Proof Pending Publication
tion et al. as Amici Curiae 10â24.
II
This history leads us to the question at the heart of today's
cases: Did Congress lack the constitutional authority to
enact ICWA, as Texas and the private plaintiffs contend?
In truth, that is not one question, but many. What authori-
ties do the Tribes possess under our Constitution? What
power does Congress have with respect to tribal relations?
What does that mean for States? And how do those princi-
ples apply in a context like adoption, which involves compet-
ing claims of federal, state, and tribal authority?
Answering these questions requires a full view of the
Indian-law bargain struck in our Constitution. Under the
terms of that bargain, Indian Tribes remain independent
sovereigns with the exclusive power to manage their inter-
nal matters. As a corollary of that sovereignty, States have
308 HAALAND v. BRACKEEN
Gorsuch, J., concurring
virtually no role to play when it comes to Indian affairs. To
preserve this equilibrium between Tribes and States, the
Constitution vests in the federal government a set of potent
(but limited and enumerated) powers. In particular, the In-
dian Commerce Clause gives Congress a robust (but not ple-
nary) power to regulate the ways in which non-Indians may
interact with Indians. To understand each of those piecesâ
and how they ft togetherâis to understand why the Indian
Child Welfare Act must survive today's legal challenge.
This is all much more straightforward than it sounds.
Take each piece of the puzzle in turn. Then, with the full
constitutional picture assembled, return to ICWA's provi-
sions. By then, you will have all you need to see why the
Court upholds the law.
A
Start with the question how our Constitution approaches
tribal sovereignty. In the years before Jamestown, Indian
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Tribes existed as âself-governing sovereign political commu-
nities.â United States v. Wheeler, 435 U. S. 313, 322â323
(1978). They employed âsophisticated governmental mod-
els,â formed â[c]onfederaciesâ with one another, and often
engaged in decisionmaking by âconsensual agreement.â 1
B. Pritzker, Native Americans: An Encyclopedia of History,
Culture, and Peoples xii (1998).
When the British crossed the Atlantic, they brought with
them their own legal understandings. A seasoned colonial
power, Britain was no stranger to the idea of âtributaryâ
and âfeudatoryâ states. E. de Vattel, Law of Nations 60â61
(1805) (Vattel). And it was a long-held tenet of international
law that such entities do not âcease to be sovereign and inde-
pendentâ even when subject to military conquestâat least
not âso long as self government and sovereign and independ-
ent authority are left in the[ir] administration.â Worcester
v. Georgia, 6 Pet. 515, 561 (1832). For that reason, early
âhistory furnishes no example, from the frst settlement of
our country, of any attempt on the part of the [C]rown to
Cite as: 599 U. S. 255 (2023) 309
Gorsuch, J., concurring
interfere with the internal affairs of the Indians.â Id., at
547; see also Vattel 60. Instead, the âsettled state of thingsâ
refected the British view that Tribes were ânations capable
of maintaining the relations of peace and war; [and] of gov-
erning themselves.â 6 Pet., at 548â549.
Consistent with that understanding, the British regarded
âthe Indians as owners of their land.â S. Banner, How the
Indians Lost Their Land: Law and Power on the Frontier 12
(2005). Britain often purchased land from Tribes (at least
nominally) and predicated its system of legal title on those
purchases. Ibid. The Crown entered into all manner of
treaties with the Tribes tooâjust as it did with fellow Euro-
pean powers. See, e. g., Letter from Gov. Burnet to Lords
of Trade, Nov. 21, 1722, concerning the Great Treaty of 1722
Between the Five Nations, the Mahicans, and the Colonies
of New York, Virginia, and Pennsylvania, in 5 Documents
Relative to the Colonial History of the State of New York
Page Proof Pending Publication
655â681 (E. O'Callaghan ed. 1855); Deed in Trust From
Three of the Five Nations of Indians to the King in 1726, in
id., at 800â801; A Treaty Held at the Town of Lancaster with
the Indians of the Six Nations in 1744, in Indian Treaties,
Printed by Benjamin Franklin, 1736â1762, pp. 43â49 (1938).
Ultimately, âthe American Revolution replaced that legal
framework with a similar one.â Oklahoma v. Castro-
Huerta, 597 U. S. 629, 658 (2022) (Gorsuch, J., dissenting).
The newly independent Nation wasted no time entering into
treaties of its ownâin no small part to secure its continued
existence against external threats. See, e. g., Articles of
Agreement and Confederation, Sept. 17, 1778, 7 Stat. 13. In
practice, too, â[t]he new Republicâ broadly recognized âthe
sovereignty of Indian [T]ribes,â even if it did so âsometimes
grudgingly.â W. Quinn, Federal Acknowledgment of Ameri-
can Indian Tribes: The Historical Development of a Legal
Concept, 34 Am. J. L. Hist. 331, 337 (1990). As we will see,
the period under the Articles of Confederation was marred
by signifcant confict, driven by state and individual intru-
310 HAALAND v. BRACKEEN
Gorsuch, J., concurring
sions on tribal land. But the Constitution that followed re-
fected an understanding that Tribes enjoy a power to rule
themselves that no other governmental bodyâstate or fed-
eralâmay usurp.
Several constitutional provisions prove the point. One
sure tell is the federal government's treaty power. See
Art. II, § 2, cl. 2. Because the United States âadopted and
sanctioned the previous treaties with the Indian nations, [it]
consequently admit[ted the Tribes'] rank among those pow-
ers who are capable of making treaties.â Worcester, 6 Pet.,
at 559. Similarly, the Commerce Clause vests in Congress
the power to âregulate Commerce with foreign Nations,â
âamong the several States,â and âwith the Indian Tribes,â
Art. I, § 8, cl. 3âconferrals of authority with respect to three
separate sorts of sovereign entities that do not entail the
power to eliminate any of them. Even beyond that, the Con-
stitution exempts from the apportionment calculus âIndians
Page Proof Pending Publication
not taxed.â § 2, cl. 3. This formula âratifed the legal treat-
ment of tribal Indians [even] within the [S]tates as separate
and sovereign peoples, who were simply not part of the state
polities. â R. Clinton, The Dormant Indian Commerce
Clause, 27 Conn. L. Rev. 1055, 1150 (1995) (Clinton 1995).
(The Fourteenth Amendment would later reprise this lan-
guage, Amdt. 14, § 2, confrming both the enduring sover-
eignty of Tribes and the bedrock principle that Indian status
is a âpolitical rather than racialâ classifcation, Morton v.
Mancari, 417 U. S. 535, 553, n. 24 (1974).)
Given these express provisions, the early conduct of the
political branches comes as little surprise. From the begin-
ning, the âWashington Administration acknowledged consid-
erable Native autonomy.â G. Ablavsky, Beyond the Indian
Commerce Clause, 124 Yale L. J. 1012, 1067 (2015) (Ablavsky
2015). Henry Knox, President Washington's Secretary of
War, described the Tribes as akin to âforeign nations, not as
the subjects of any particular [S]tate.â Letter to G. Wash-
ington (July 7, 1789), in 3 Papers of George Washington:
Cite as: 599 U. S. 255 (2023) 311
Gorsuch, J., concurring
Presidential Series 134â141 (D. Twohig ed. 1989). Thomas
Jefferson spoke of them as maintaining âfull, undivided and
independent sovereignty as long as they chose to keep it,â
commenting also âthat this might be for ever.â Notes on
Cabinet Opinions (Feb. 26, 1793), in 25 Papers of Thomas
Jefferson 271â272 (J. Catanzariti ed. 1992). This view would
later feature in a formal opinion of the Attorney General,
who explained that, â[s]o long as a [T]ribe exists . . . its title
and possession are sovereign and exclusive; and there exists
no authority to enter upon their lands, for any purpose what-
ever, without their consent.â 1 Op. Atty. Gen. 465, 466
(1821).
What went for the Executive went for Congress. In the
frst few decades of the Nation's existence, the Legislative
Branch passed a battery of statutes known as the Indian
Trade and Intercourse Acts. See, e. g., Act of July 22, 1790,
ch. 33, 1 Stat. 137; Act of Mar. 1, 1793, ch. 19, 1 Stat. 329; Act
Page Proof Pending Publication
of May 19, 1796, ch. 30, 1 Stat. 469; Act of Mar. 30, 1802, ch.
13, 2 Stat. 139; Act of June 30, 1834, 4 Stat. 729. Without
exception, those Acts âeither explicitly or implicitly regu-
lated only the non-Indians who venture[d] into Indian coun-
try to deal with Indians,â and âdid not purport to regulate
the [T]ribes or their membersâ in any way. R. Clinton,
There is No Federal Supremacy Clause for Indian Tribes, 34
Ariz. St. L. J. 113, 134 (2002) (Clinton 2002).
This Court recognized many of these same points in its
early cases. For example, in Worcester, the State of Georgia
sought to seize Cherokee lands, abolish the Tribe and its
laws, and apply its own criminal laws to tribal lands. 6 Pet.,
at 525â528. Holding Georgia's laws unconstitutional, this
Court acknowledged that Tribes remain âindependent politi-
cal communities, retaining their original natural rights.â
Id., at 559. While ânecessarily dependent onâ the United
States, id., at 555, under âthe settled doctrine of the law of
nations,â the Court held, âa weaker power does not surren-
der its independenceâits right to self-government, by asso-
312 HAALAND v. BRACKEEN
Gorsuch, J., concurring
ciating with a stronger and taking its protection,â id., at 560â
561. The Cherokee, like other Tribes, remained âa distinct
community occupying its own territory . . . in which the laws
of [the State] can have no force, and which the citizens of
[that State] have no right to enter, but with the assent of the
[Tribe] themselves, or in conformity with treaties, and with
the acts of [C]ongress.â Id., at 561. Justice McLean, con-
curring, put it succinctly: âAll the rights which belong to self
government have been recognized as vested in [the Tribes].â
Id., at 580.
In the end, President Jackson refused to abide by the
Court's decision in Worcester, precipitating the Trail of
Tears. He is quoted as saying: â `John Marshall has made
his decision; now let him enforce it.' â F. Cohen, Handbook
of Federal Indian Law 123 (1942). But just as this Court
had no power to enforce its judgment, President Jackson had
no power to erase its reasoning. So the rule of Worcester
Page Proof Pending Publication
persisted in courts of law, unchanged, for decades. Recog-
nizing the inherent sovereignty of Tribes, this Court held
that States could not tax Indian land. See, e. g., The Kansas
Indians, 5 Wall. 737, 751â761 (1867); The New York Indians,
5 Wall. 761, 771â772 (1867). It held that the Fourteenth
Amendment did not apply on Indian land. See Elk v. Wil-
kins, 112 U. S. 94, 99â109 (1884). And it sharply limited
even the power of the federal government to prosecute
crimes between Indians on Indian land where the Tribe had
stepped in to resolve the dispute. See Ex parte Crow Dog,
109 U. S. 556, 572 (1883).
Nor did later developments call this original understand-
ing into doubt. To be sure, in 1871, Congress declared that
Tribes (prospectively) are no longer parties âwith whom the
United States may contract by treaty.â Act of Mar. 3, 1871,
16 Stat. 566, codifed at 25 U. S. C. § 71; but see United States
v. Lara, 541 U. S. 193, 218 (2004) (Thomas, J., concurring in
judgment) (describing the Act as âconstitutionally suspectâ);
M. Pearl, Originalism and Indians, 93 Tulane L. Rev. 269,
Cite as: 599 U. S. 255 (2023) 313
Gorsuch, J., concurring
330â331 (2018) (Pearl) (similar). But the sponsors of that
Act sought only to increase the role of bicameral legislation
in managing Indian affairs. See Antoine v. Washington, 420
U. S. 194, 202â203 (1975). The law did not purport to âinval-
idat[e] or impai[r]â any existing âobligation of any treaty law-
fully made and ratifed.â 25 U. S. C. § 71. And the law did
not abridge, nor could it have validly abridged, the long-
settled view of tribal sovereignty. In fact, the United
States proceeded to enter into roughly 400 further executive
agreements with the Tribes practically indistinguishable
from the treaties that came before. See generally V. Delo-
ria & R. DeMallie, Documents of American Indian Diplo-
macy: Treaties, Agreements, and Conventions, 1775â1979
(1999). Keep this original understanding of tribal sover-
eignty in mind. It provides an essential point of framing.
B
Page Proof
Just as the Pending
Constitution Publication
safeguards the sovereign author-
ity of Tribes, it comes with a âconcomitant jurisdictional
limit on the reach of state lawâ over Indian affairs. McCla-
nahan v. Arizona Tax Comm'n, 411 U. S. 164, 171 (1973).
As this Court has consistently recognized, â[t]he policy of
leaving Indians free from state jurisdiction and control is
deeply rooted in the Nation's history.â Rice v. Olson, 324
U. S. 786, 789 (1945). Instead, responsibility for managing
interactions with the Tribes rests exclusively with the fed-
eral government. To appreciate this point, walk through
time once more.
Since the frst days of British rule, the Crown oversawâ
and retained the power to dictateâthe Colonies' engagement
with the Indian Tribes. See Clinton 1995, at 1064â1098. In
response to a pattern of confict arising out of colonial intru-
sion on tribal land, that supervision grew increasingly exact-
ing. Ibid.; see also R. Clinton, The Proclamation of 1763:
Colonial Prelude to Two Centuries of Federal-State Confict
Over the Management of Indian Affairs, 69 B. U. L. Rev.
314 HAALAND v. BRACKEEN
Gorsuch, J., concurring
329, 331â337 (1989) (Clinton 1989). In 1743, for example, a
British royal commission rejected an effort by the colony of
Connecticut to exercise independent jurisdiction over a
Tribe within its borders. Id., at 335â336. The decision
rested on a now-familiar logic: âThe Indians, though living
amongst the king's subjects in these countries, are a sepa-
rate and distinct people from them, they are treated with as
such, they have a polity of their own, they make peace and
war with any nation of Indians when they think ft, without
controul from the English.â Opinion of Comm'r Horsman-
den, Aug. 1, 1743, in Governor and Company of Connecticut,
and Moheagan Indians, By Their Guardians 126 (1743).
The mere suggestion of colonial management of tribal rela-
tions catalyzed further âcentralization of oversight and con-
trol of colonial Indian regulation by the British government,â
culminating in the Proclamation of 1763. Clinton 1989, at
336. That proclamation announced the Crown's intent to
Page Proof Pending Publication
manage all âland cessions, diplomatic and other relations, and
trade with the Indian [T]ribes,â and to displace contrary co-
lonial practice. Id., at 357. Britain never had a chance to
iron out the kinks of that approach before the Revolutionary
War broke out. But â[i]mmediately prior to 1776, the stage
was setâ for âcomplete imperial control over the management
of Indian matters.â Id., at 362.
After the Revolution, the Articles of Confederation gave
the newly formed â[U]nited [S]tates . . . the sole and exclu-
sive right and power of . . . managing all affairs with the
Indians, not members of any of the [S]tates.â Art. IX
(1777). In providing that grant of authority, the Articles'
drafters may have meant to codify the centralized approach
the British had pursued. But the âbyzantineâ document the
drafters created, Ablavsky 2015, at 1034, came with a pair of
easily exploited loopholes. First, the language of its Indian
affairs clause allowed some to claim that various Tribes were
â `members' â of the States and thus âexclusively or princi-
pally subject to state legislative control.â Clinton 1995, at
Cite as: 599 U. S. 255 (2023) 315
Gorsuch, J., concurring
1103, 1150. Second, owing to a fear that the phrase âsole
and exclusiveâ could give the misimpression that States
lacked power to manage their own affairs, the Articles' draft-
ers added another clause stipulating that âthe legislative
right of any [S]tate within its own limits be not infringed or
violated.â Art. IX. Taken literally, that provision meant
only that the Articles left to States what belonged to the
States and to the Tribes what belonged to the Tribes. But
some States saw in that language too an opportunity to as-
sert their own control. See Clinton 1995, at 1103, 1107,
1113â1118, 1128â1131.
The result? A season of confict brought about by state
and private encroachments on tribal authority. G. Ablavsky,
The Savage Constitution, 63 Duke L. J. 999, 1035â1036 (2014)
(Ablavsky 2014). By the time the Constitutional Conven-
tion rolled around, âIndian uprisings had occurred . . . in the
Ohio River Valley and Virginia,â âthe Creeks and Georgia
Page Proof Pending Publication
were on the brink of open warfare,â and there was signifcant
turmoil âon the western frontier.â Clinton 1995, at 1147.
Those events were not lost on the framers. As they debated
how to broker enduring peace, two predominant schools of
thought emerged. Madison and his followers favored pre-
venting intrusions on Indian land and interests; Hamilton
and his adherents favored resort to military might. Ablav-
sky 2014, at 1035â1038. Both sides, however, found agree-
ment on the âneed for a stronger federal governmentâ pres-
ence, without the impediment of state interference. Id., at
1038.
Even as the Constitutional Convention assembled, a com-
mittee of the Continental Congress noted that it âhad been
long understood and pretty well ascertainedâ that the
Crown's absolute powers to âmanag[e] Affairs with the Indi-
ansâ passed in its âentire[ty] to the Unionâ following Inde-
pendence, meaning that â[t]he laws of the State can have no
effect upon a [T]ribe of Indians or their lands within the
limits of the [S]tate so long as that [T]ribe is independent.â
316 HAALAND v. BRACKEEN
Gorsuch, J., concurring
33 Journals of the Continental Congress 1774â1789, p. 458
(R. Hill ed. 1936). That had to be so, the committee ob-
served, for the same reason that individual States could not
enter treaties with foreign powers: â[T]he Indian [T]ribes
are justly considered the common friends or enemies of the
United States, and no particular [S]tate can have an exclu-
sive interest in the management of Affairs with any of the
[T]ribes.â Id., at 459.
This understanding found its way directly into the text of
the Constitution. The fnal version assigned the newly
formed federal government a bundle of powers that encom-
passed âall that is required for the regulation of [the Na-
tion's] intercourse with the Indians.â Worcester, 6 Pet., at
559. By contrast, the Constitution came with no indication
that States had any similar sort of power. Indeed, it omit-
ted the nettlesome language in the Articles about the âlegis-
lative rightâ of States. Not only that. The Constitution's
Page Proof Pending Publication
express exclusion of âIndians not taxedâ from the apportion-
ment formula, Art. I, § 2, cl. 3, threw cold water on some
States' attempts to claim that Tribes fell within their terri-
toryâand therefore their control. And, lest any doubt re-
main, the Constitution divested States of any power to
âenter into any Treaty, Alliance, or Confederation.â § 10,
cl. 1. By removing that diplomatic power, the Constitution's
design also divested them of the leading tool for managing
tribal relations at that time.
The Constitution's departure from the Articles' articula-
tion was praised by many and criticized by some. Federal-
ists (such as James Madison) applauded the fact that the new
federal government would be âunfetteredâ by the Articles'
constraints. The Federalist No. 42, p. 268 (C. Rossiter ed.
1961). Certain Anti-Federalists (including Abraham Yates
Jr.) disfavored the âtota[l] surrender into the hands of Con-
gress [of] the management and regulation of the Indian af-
fairs.â Letter to Citizens of New York (June 13â14, 1788),
in 20 Documentary History of the Ratifcation of the Consti-
Cite as: 599 U. S. 255 (2023) 317
Gorsuch, J., concurring
tution 1153, 1158 (J. Kaminski et al. eds. 2004) (emphasis
added). At bottom, however, no one questioned that the
Constitution took a view about where the power to manage
Indian affairs would reside in the future. And no one
doubted that it selected the federal government, not the
States.
Early practice confrmed this understanding. âThe Wash-
ington Administration insisted that the federal government
enjoyed exclusive constitutional authorityâ over managing
relationships with the Indian Tribes. Ablavsky 2015, at
1019. As President Washington put it, the federal govern-
ment âpossess[ed] the only authority of regulating an inter-
course with [the Tribes], and redressing their grievances.â
Letter to T. Miffin (Sept. 4, 1790), in 6 The Papers of George
Washington: Presidential Series 396 (D. Twohig ed. 1996)
(emphasis added). Even âmany state offcials agreedâ with
President Washington's assessment. Ablavsky 2015, at
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1019. South Carolina Governor Charles Pinckney acknowl-
edged that âthe sole management of India[n] affairsâ is âcom-
mittedâ to âthe general Government.â Letter to G. Wash-
ington (Dec. 14, 1789), in 4 Papers of George Washington:
Presidential Series 404 (D. Twohig ed. 1993). Other leading
proponents of States' rights reluctantly drew the same con-
clusion. â[U]nder the present Constitution,â Thomas Jeffer-
son lamented, States lack any âright to Treat with the In-
dians without the consent of the General Government.â
Letter to H. Knox (Aug. 10, 1791), in 22 Papers of Thomas
Jefferson 27 (C. Cullen ed. 1986).
For its part, this Court understood the absence of state
authority over tribal matters as a natural corollary of Tribes'
inherent sovereignty. Precisely because Tribes exist as a
âdistinct community,â this Court concluded in Worcester, the
âlaws of [States] can have no forceâ as to them. 6 Pet., at
561. States could no more prescribe rules for Tribes than
they could legislate for one another or a foreign sovereign.
More than that, this Court recognized that â[t]he whole in-
318 HAALAND v. BRACKEEN
Gorsuch, J., concurring
tercourse between the United States and [each Tribe], is by
our [C]onstitution and laws, vested in the government of the
United States.â Ibid. (emphasis added). State laws cannot
âinterfere forcibly with the relations established between
the United States and [an Indian Tribe], the regulation of
which, according to the settled principles of our [C]onstitu-
tion, are committed exclusively to the government of the
[U]nion.â Ibid. (emphasis added). That principle, too, has
endured. No one can contest the â `historic immunity from
state and local control' â that the Tribes enjoy, nor the per-
missibility of constitutional provisions enacted to protect
the Tribes' âsovereign status.â New Mexico v. Mescalero
Apache Tribe, 462 U. S. 324, 332 (1983). Tuck that point
away too.
C
We now know that, at the founding, the Tribes retained
their sovereignty. We know also that States have virtually
Page Proof Pending Publication
no role to play in managing interactions with Tribes. From
this, it follows that â[t]he only restriction on the powerâ of
Tribes âin respect to [their] internal affairsâ arises when
their actions âconfict with the Constitution or laws of the
United States.â Roff v. Burney, 168 U. S. 218, 222 (1897).
In cases like that, the Constitution provides, federal law
must prevail. See Art. VI. This creates a hydraulic rela-
tionship between federal and tribal authority. The more the
former expands, the more the latter shrinks. All of which
raises the question: What powers does the federal govern-
ment possess with respect to Tribes?
1
Because the federal government enjoys only âlimitedâ and
âenumerated powers,â we look to the Constitution's text.
McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). Notably,
our founding document does not include a plenary federal
authority over Tribes. Nor was this an accident, at least
not in the fnal accounting. The framers considered a gen-
Cite as: 599 U. S. 255 (2023) 319
Gorsuch, J., concurring
eral Indian Affairs Clause but left it on the cutting-room
foor. See L. Updike Toler, The Missing Indian Affairs
Clause, 88 U. Chi. L. Rev. 413, 444â476 (2021) (Updike Toler).
That choice refects an important insight about the Constitu-
tion's Indian-law bargain: âWithout an Indian affairs power,â
any assertion of unbounded federal authority over the Tribes
is âconstitutionally wanting.â Id., at 476.
Instead of a free-foating Indian-affairs power, the framers
opted for a bundle of federal authorities tailored to âthe
regulation of [the Nation's] intercourse with the Indians.â
Worcester, 6 Pet., at 559. In keeping with the framers' faith in
the separation of powers, they chose to split those authorities
âbetween the [E]xecutive and the [L]egislature.â Updike
Toler 479. âThe residue of Indian affairs powerââall those
Indian-related powers not expressly doled out by the Consti-
tutionâremained the province of âthe sovereign [T]ribes.â
Id., at 481.
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What was included in the federal government's bundle of
enumerated powers? In the early years, the most impor-
tant component was the authority to âmake Treatiesâ with
the Tribes. Art. II, § 2, cl. 2. But other provisions also fa-
cilitated the management of Indian relations. The Constitu-
tion vested in Congress the power to âdeclare Warâ against
the Tribes. Art. I, § 8, cl. 11. It gave Congress authority
to âdispose of and make all needful Rules and Regulations
respecting the Territory or other Property belonging to the
United States,â allowing it considerable power over Indians
on federal territory. Art. IV, § 3, cl. 2. The Constitution
also authorized Congress to employ its spending power to
divert funds toward Tribes. Art. I, § 8, cl. 1. Where all
those powers came up short, the Constitution afforded the
federal government the power to âregulate Commerce with
foreign Nations, and among the several States, and with the
Indian Tribes.â § 8, cl. 3 (emphasis added). Much of mod-
ern federal Indian law rests on that commerce power. It
demands a closer look.
320 HAALAND v. BRACKEEN
Gorsuch, J., concurring
2
Contained in a single sentence, what we sometimes call
âtheâ Commerce Clause is really three distinct Clauses
rolled into one: a Foreign Commerce Clause, an Interstate
Commerce Clause, and an Indian Commerce Clause. To be
sure, those Clauses share the same lead word: âCommerce.â
And, viewed in isolation, that word might appear to sweep
narrowlyâencompassing activities like âselling, buying, and
bartering, as well as transporting for these purposes.â
United States v. Lopez, 514 U. S. 549, 585â586 (1995)
(Thomas, J., concurring) (citing founding-era defnitions).
But it is âwell establishedâ that the individual Commerce
Clauses have âvery different applications,â Cotton Petro-
leum Corp. v. New Mexico, 490 U. S. 163, 192 (1989), a point
the framers themselves acknowledged, see, e. g., Letter from
E. Randolph to G. Washington (Feb. 12, 1791), in 7 Papers
of George Washington: Presidential Series 330, 331â337 (D.
Page Proof Pending Publication
Twohig 1998).
Start with the word âCommerce.â From the Nation's ear-
liest days, Indian commerce was considered âa special sub-
ject with a defnite content,â quite âdistinct and specializedâ
from other sorts of âcommerce.â A. Abel, The Commerce
Clause in the Constitutional Convention and in Contempo-
rary Comment, 25 Minn. L. Rev. 432, 467â468 (1941). A sur-
vey of founding-era usage confrms that the term âCom-
merce,â when describing relations with Indians, took on a
broader meaning than simple economic exchange. See Ab-
lavsky 2015, at 1012â1032 (compiling primary sources); Brief
for Gregory Ablavsky as Amicus Curiae 8â11; App. to id.,
at 1â18 (same); see also A. Amar, America's Constitution: A
Biography 107 (2005). Instead, the word was used as a
âterm of art,â Pearl 322, to encompass all manner of âbilat-
eral relations with the [T]ribes,â Clinton 1995, at 1142; see
also Updike Toler 422 (noting that âIndian commerceâ was a
âlegal ter[m] of artâ that was âinformed by the practicalities
of Indian affairsâ).
Cite as: 599 U. S. 255 (2023) 321
Gorsuch, J., concurring
This special usage likely emerged out of an international-
law idea widely shared âat the time of the foundingâ: When
dealing with a foreign sovereign, the âcommercial and non-
commercial aspectsâ of bilateral interactions were âinevita-
bly intertwinedâ because any intercourse carried potential
diplomatic consequences and could even lead to war. J. Bal-
kin, Commerce, 109 Mich. L. Rev. 1, 25 (2010) (Balkin); see
also Ablavsky 2015, at 1028â1032 (demonstrating that âtrade
with the Indians was understood almost solely through this
political and diplomatic lensâ); Clinton 1989, at 362â363 (ob-
serving that, at the founding, Indian âtradeâ was âinter-
twinedâ with concerns of âpeace and diplomacyâ and with
the threat of âwarâ). Nor was that a speculative possibility
when it came to Tribes. As we have seen, even the noncom-
mercial conduct of settlers in the early years was a âcontin-
ual source of violent confict [with] Indians,â partially moti-
vating the move away from the Articles of Confederation
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framework. M. Fletcher & L. Jurss, Tribal JurisdictionâA
Historical Bargain, 76 Md. L. Rev. 593, 597 (2017); see also
Ablavsky 2014, at 1033â1038.
At least two terms in the Commerce Clause confrm this
special usage. For one thing, the Constitution speaks of
âCommerce . . . amongâ when discussing interstate dealings,
but âCommerce withâ when addressing dealings with tribal
and foreign sovereigns. Art. I, § 8, cl. 3 (emphasis added).
This language suggests a shared framework for Congress's
Indian and foreign commerce powers and a different one for
its interstate commerce authority. See R. Monette, A New
Federalism for Indian Tribes: The Relationship Between the
United States and Tribes in Light of Our Federalism and
Republican Democracy, 25 U. Toledo L. Rev. 617, 629, n. 82
(1994). More than that, the term âwithâ suggests that Con-
gress has the authority to manage âall interactions or affairs
. . . with the Indian [T]ribesâ and foreign sovereignsâwher-
ever those interactions or affairs may occur. Balkin 23. By
contrast, the term âamongâ found in the Interstate Com-
322 HAALAND v. BRACKEEN
Gorsuch, J., concurring
merce Clause most naturally suggests that Congress may
regulate only activities that âextend in their operation be-
yond the bounds of a particular [S]tateâ and into another.
Id., at 30. All this goes a long way toward explaining why
âCongress's powers to regulate domestic commerce are more
constrainedâ than its powers to regulate Indian and foreign
commerce. Id., at 29.
For another thing, as nouns, âStatesâ and âIndian Tribesâ
are not alikeâand they were not alike at the founding.
âStatesâ generally referred then, as it does today, to a collec-
tion of territorial entities. Not so âTribes.â That term
necessarily referred to collections of individuals. See C.
Green, Tribes, Nations, States: Our Three Commerce Pow-
ers, 127 Pa. St. L. Rev. 643, 649, 654â669 (2023) (Green); see
also 1 W. Crosskey, Politics and the Constitution in the His-
tory of the United States 77 (1953). Want proof? Dust off
most any founding-era dictionary and look up the defnition
Page Proof Pending Publication
of âTribe.â See, e. g., 2 J. Ash, The New and Complete Dic-
tionary of the English Language (1775) (â[a] family, a body
of the people distinguished by family or fortuneâ); 2 S. John-
son, A Dictionary of the English Language (4th ed. 1773)
(â[a] di[s]tinct body of the people as divided by family or for-
tune, or any other characteri[s]tickâ); T. Dyche, A New Gen-
eral English Dictionary (14th ed. 1771) (âthe particular de-
scendants or people [s]prung from [s]ome noted head, or a
collective number of people in a colonyâ); N. Bailey, An Uni-
versal Etymological English Dictionary (22d ed. 1770) (âa
[c]ompany of [p]eople dwelling together in the [s]ame [w]ard
or [l]ibertyâ).
This observation sheds light on why ordinary speakers use
the two terms differently. It explains, for instance, why it
is grammatical to say you are vacationing âin Colorado,â but
not to say you are vacationing âin Navajo.â It explains why
it is sensible to say you are meeting âwith some Cherokee,â
but not to say you are meeting âwith some New Jersey.â
But this point also helps us make sense of why the Legisla-
Cite as: 599 U. S. 255 (2023) 323
Gorsuch, J., concurring
tive Branch may regulate commerce with Indian Tribes dif-
ferently than it may regulate commerce among the States.
Because Tribes are collections of people, the Indian Com-
merce Clause endows Congress with the âauthority to regu-
late commerce with Native Americansâ as individuals.
McGirt v. Oklahoma, 591 U. S. âââ, âââ (2020). By contrast,
Congress's power under the Interstate Commerce Clause
operates only on commerce that involves âmore States than
one.â Gibbons v. Ogden, 9 Wheat. 1, 194 (1824). In other
words, commerce that takes place âamongâ (or between)
two or more territorial units, and not just any commerce
that involves some member of some State. See Green
649â654.
This Court has long appreciated these points of distinction.
For example, in United States v. Holliday, 3 Wall. 407 (1866),
the Court upheld a federal statute that prohibited the sale
of alcohol by non-Indians to Indiansâon or off tribal land.
Page Proof Pending Publication
Id., at 416â417. Giving the Indian Commerce Clause its
most natural reading, the Court concluded that the power to
regulate commerce with Indian Tribes must mean the power
to regulate âcommerce with the individuals composing those
[T]ribes.â Id., at 417 (emphasis added). For that reason,
too, â[t]he locality of the [commerce could] have nothing to
do with the [scope of the] power.â Id., at 418; see also Hen-
derson v. Mayor of New York, 92 U. S. 259, 270 (1876) (quot-
ing Holliday and echoing this point in the context of the
Foreign Commerce Clause). More than that, Holliday rec-
ognized that this focus on individuals means that Indian com-
merce must cover âsomething moreâ than just economic ex-
change. 3 Wall., at 417 (internal quotation marks omitted).
While it includes âbuying and selling and exchanging com-
modities,â it also extends to the entire âintercourse between
the citizens of the United States and those [T]ribes.â Ibid.
That âintercourse,â the Court recognized, is âanother branch
of commerceâ with Indians, âand a very important oneâ at
that. Ibid.
324 HAALAND v. BRACKEEN
Gorsuch, J., concurring
If the Constitution's text left any uncertainty about the
scope of Congress's Indian commerce power, early practice
liquidated it. The First Congress adopted the initial Indian
Trade and Intercourse Act, which prohibited the âsale of
lands made by any Indiansâ to non-Indians absent a public
treaty. Act of July 22, 1790, ch. 33, § 4, 1 Stat. 138. The
law also extended criminal liability to non-Indians who âcom-
mit[ted] any crime upon, or trespass against, the person or
property of any peaceable and friendly Indianâ in Indian
country. § 5, ibid. The frst of these provisions arguably
addressed a narrow question of commerce. But the second
âplainly regulated noneconomicâ interaction. A. Amar,
America's Constitution and the Yale School of Constitu-
tional Interpretation, 115 Yale L. J. 1997, 2004, n. 25 (2006).
Despite that fact, the Act (and its successors) were ânot
controversial exercises of congressional power.â N. New-
ton, Federal Power Over Indians: Its Sources, Scope, and
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Limitations, 132 U. Pa. L. Rev. 195, 201, n. 25 (1984). Any
doubt about their validity âwould have been quieted by the
[C]ommerce Clause's commitment of commerce with the In-
dian [T]ribes to Congress.â Ibid. As Justice McLean (ri-
ding circuit) recognized, punishing non-Indians for âcommit-
ting violence upon the persons or property of the Indians,â
fell âclearly within the scope of the power to regulate com-
merce with the Indian [T]ribes.â United States v. Bailey,
424 F. Cas. 937, 939 (No. 14,495) (CC Tenn. 1834). Of course,
the kinds of criminal trespasses Congress regulated as early
as 1790 were not themselves commercial. But a trespass
against even one individual Indian could disrupt commerce
with that individual. See Green 660â661, and n. 76. By ex-
tension, such a trespass could disrupt dealings with other
members of the Tribe and with other allied Tribes too. See
Balkin 24â26. Recognizing this, the framers entrusted Con-
gress with the power previously exercised by the British
Parliament to ârestrain the disorderly and licentious from
intrusionsâ by non-Indians against even individual Indiansâ
Cite as: 599 U. S. 255 (2023) 325
Gorsuch, J., concurring
all to preserve functioning channels of trade and intercourse
âwith the Indians.â Worcester, 6 Pet., at 552, 556.
3
If Congress's powers under the Indian Commerce Clause
are broader than those it enjoys under the Interstate Com-
merce Clause, âbroaderâ does not mean âplenary.â Even
the federal government's âpower to control and manageâ re-
lations with the Tribes under the Indian Commerce Clause
comes with âpertinent constitutional restrictions.â United
States v. Creek Nation, 295 U. S. 103, 110 (1935). Congress
cannot, for example, expand the scope of its own power
by arbitrarily labeling non-Indians as Indians. See United
States v. Sandoval, 231 U. S. 28, 46 (1913). Nor can it regu-
late in peripherally related felds merely by identifying some
incidental connection to non-Indians' dealings with Indians.
Instead, Congress's actions must still bear a valid ânexusâ to
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Indian commerce to withstand constitutional challenge.
Lopez, 514 U. S., at 562 (quoting United States v. Bass, 404
U. S. 336, 347 (1971)). As we have seen, too, âthe scope of
congressional authorityâ over the Tribes under the Indian
Commerce Clause is âbest construed as a negative one.â
Pearl 325. Its text âlimits the legislative reach to creating
federal restrictions concerning what United States citizens
and States may do in the context of Indian [T]ribes.â Ibid.
Nothing in the Clause grants Congress the affrmative power
to reassign to the federal government inherent sovereign au-
thorities that belong to the Tribes.
In that way, the Indian Commerce Clause confrms, rather
than abridges, principles of tribal sovereignty. As it must.
It is âinconceivableâ that a power to regulate non-Indians'
dealings with Indians could be used to âdives[t Tribes] of the
right of self-government.â Worcester, 6 Pet., at 554. Oth-
erwise, a power to manage relations with a party would be-
come an instrument for âannihilating the political existence
of one of the parties.â Ibid. No one in the Nation's forma-
326 HAALAND v. BRACKEEN
Gorsuch, J., concurring
tive years thought that could be the law. They understood
that Congress could no more use its commerce powers to
legislate away a Tribe than it could a State or a foreign sov-
ereign. Cf. National League of Cities v. Usery, 426 U. S.
833, 855 (1976); Metcalf & Eddy v. Mitchell, 269 U. S. 514,
523â526 (1926); Lane County v. Oregon, 7 Wall. 71, 76â77
(1869). The framers appreciated, too, that they possessed
no more âauthority to delegate to the national government
power to regulate the [T]ribes directlyâ than they possessed
authority to âdelegate power to the federal government over
other peoples who were not part of the federal union.â
Clinton 2002, at 254; see also R. Barsh, Book Review, Felix
S. Cohen's Handbook of Federal Indian Law, 1982 ed., 57
Wash. L. Rev. 799, 803 (1982).
D
As we have now seen, the Constitution refected a care-
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fully considered balance between tribal, state, and federal
powers. That scheme predated the founding and it per-
sisted long after. It is not, however, the balance this Court
always maintained in the years since. More than a little
fault for that fact lies with a doctrinal misstep. In the late
19th century, this Court misplaced the original meaning of
the Indian Commerce Clause. That error sent this Court's
Indian-law jurisprudence into a tailspin from which it has
only recently begun to recover. Understanding that errorâ
and the steps this Court has taken to correct itâare the last
missing pieces of the puzzle.
In 1885, during the period of assimilationist federal policy,
Congress enacted the Indian Major Crimes Act, § 9, 23 Stat.
385. Among other things, that law extended federal-court
jurisdiction over various crimes committed by Indians
against Indians on tribal lands. Ibid. In United States v.
Kagama, 118 U. S. 375 (1886), this Court upheld the constitu-
tionality of that Act. In the process, though, it stepped off
the doctrinal trail. Instead of examining the text and his-
Cite as: 599 U. S. 255 (2023) 327
Gorsuch, J., concurring
tory of the Indian Commerce Clause, the Court offered a
free-foating and purposivist account of the Constitution, de-
scribing it as extending broad âpower [to] the General Gov-
ernmentâ over tribal affairs. Id., at 384. Building on that
move, the Court would later come to describe the federal
power over the Tribes as âplenary.â See, e. g., Winton v.
Amos, 255 U. S. 373, 391 (1921); Lone Wolf v. Hitchcock, 187
U. S. 553, 565 (1903).
Perhaps the Court meant well. Surely many of its so-
called âplenary powerâ cases reached results explainable
under a proper reading of the Constitution's enumerated
powers. Maybe the turn of phrase even made some sense:
Congress's power with regard to the Tribes is âplenaryâ in
that it leaves no room for State involvement. See Ablavsky
2015, at 1014 (â[T]he Court use[d] the term [plenary] inter-
changeably with `exclusive' â). But as sometimes happens
when this Court elides text and original meaning in favor of
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broad pronouncements about the Constitution's purposes,
the plenary-power idea baked in the prejudices of the day.
Cf. Plessy v. Ferguson, 163 U. S. 537 (1896). The Court sug-
gested that the federal government's total power over the
Tribes derived from its supposedly inherent right to âenforce
its lawsâ over âth[e] remnants of a race once powerful, now
weak.â Kagama, 118 U. S., at 384â385. Of course, nothing
of the sort follows from âa reasoned analysis derived from
the text [or] history . . . of the United States Constitution.â
Clinton 2002, at 163. Instead, the plenary-power idea âcon-
stituted an unprincipled assertion of raw federal authority.â
Ibid. It rested on nothing more than judicial claims about
putative constitutional purposes that aligned with contempo-
rary policy preferences.
Nor was anachronistic language the only consequence of
this Court's abandonment of the Constitution's original
meaning. During what has been called the âhigh plenary
power era of U. S. Indian law,â this Court sometimes took
the word âplenaryâ pretty literally. S. Cleveland, Powers
328 HAALAND v. BRACKEEN
Gorsuch, J., concurring
Inherent in Sovereignty: Indians, Aliens, Territories, and
the Nineteenth Century Origins of Plenary Power Over For-
eign Affairs, 81 Texas L. Rev. 1, 62 (2002) (Cleveland). It
assumed that Congress possesses a âvirtually unlimited au-
thority to regulate [T]ribesâ in every respect. M. Steele,
Plenary Power, Political Questions, and Sovereignty in In-
dian Affairs, 63 UCLA L. Rev. 666, 670 (2016); see Cleveland
62â74. Perhaps most notably, the Court even suggested
that Congress's âplenary authorityâ might allow it to âlimit,
modify or eliminate the powers of local self-government
which the [T]ribes otherwise possess.â Santa Clara Pueblo
v. Martinez, 436 U. S. 49, 56â57 (1978). It is an âinconceiv-
ableâ suggestion for anyone who takes the Constitution's
original meaning seriously. Worcester, 6 Pet., at 554.
The Court's atextual and ahistorical plenary-power move
did not just serve to expand the scope of federal power over
the Tribes. It also had predictable downstream effects on
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the relationship between States and Tribes. As Congress
assumed new power to intrude on tribal sovereignty, the
Constitution's âconcomitant jurisdictional limit on the reach
of state lawâ began to wane. McClanahan, 411 U. S., at 171.
It is not hard to draw a through-line between these develop-
ments. This Court itself has acknowledged that its plenary-
power cases embodied a âtrend . . . away from the idea of
inherent Indian sovereignty as a bar to state jurisdiction.â
Id., at 172, and n. 7.
It is no coincidence either that this Court's plenary-power
jurisprudence emerged in the same era as Indian boarding
schools and other assimilationist policies. See D. Moore &
M. Steele, Revitalizing Tribal Sovereignty in Treatymaking,
97 N. Y. U. L. Rev. 137, 142 (2022). Rather, â[f]ederal
bureaucratic control over Indian leadership and governments
ran parallel to the government's control over Indian
childrenâ during this period. Fletcher & Singel 930. In-
dian boarding schools and other intrusive âfederal educa-
tional programs . . . could not have been implemented with-
Cite as: 599 U. S. 255 (2023) 329
Gorsuch, J., concurring
out federal control of reservation governance.â Ibid. Nor
could any of these federal intrusions on internal tribal affairs
have been possible without this Court's plenary-power
misadventure.
I do not mean to overstate the point. Even in the heyday
of the plenary-power theory, this Court never doubted that
Tribes retain a variety of self-government powers. It has
always acknowledged that Tribes are âa separate people,
with the power of regulating their internal and social rela-
tions.â Kagama, 118 U. S., at 381â382. They may âmake
their own substantive law in internal matters.â Martinez,
436 U. S., at 55. They may defne their own membership.
Roff, 168 U. S., at 222. They may set probate rules of their
choice. Jones v. Meehan, 175 U. S. 1, 29 (1899). Andâes-
pecially relevant hereâthey may handle their own family-
law matters, Fisher v. District Court of Sixteenth Judicial
Dist. of Mont., 424 U. S. 382, 387 (1976) (per curiam), and
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domestic disputes, United States v. Quiver, 241 U. S. 602, 605
(1916). But for a period at least, this Court let itself drift
from the âbasic policy of Worcester,â and with it the Consti-
tution's promise of tribal sovereignty. Williams v. Lee, 358
U. S. 217, 219 (1959).
Doubtless, too, the rise of the plenary-power theory in-
jected incoherence into our Indian-law jurisprudence. Many
scholars have commented on it. See, e. g., P. Frickey, Doc-
trine, Context, Institutional Relationships, and Commentary:
The Malaise of Federal Indian Law Through the Lens of
Lone Wolf, 38 Tulsa L. Rev. 5, 9 (2002) (describing our doc-
trine as âriddled with . . . inconsistencyâ); F. Pommersheim,
A Path Near the Clearing: An Essay on Constitutional Ad-
judication in Tribal Courts, 27 Gonz. L. Rev. 393, 403 (1991)
(calling our doctrine âbifurcated, if not fully schizophrenicâ).
So have Members of this Court. Justice Thomas has put
the problem well: â[M]uch of the confusion refected in our
precedent arises from two largely incompatibleâ assump-
tions: That Congress âcan regulate virtually every aspect of
330 HAALAND v. BRACKEEN
Gorsuch, J., concurring
the [T]ribesâ; and that âIndian [T]ribes retain inherent sov-
ereignty.â Lara, 541 U. S., at 214â215 (opinion concurring in
judgment). Those two propositions of course clash. That
is because only one is true. Yes, Tribes retain the inherent
sovereignty the Constitution left for them. But no, Con-
gress does not possess power to âcalibrate the `metes and
bounds of tribal sovereignty.' â Ibid.
In recent years, this Court has begun to correct its mis-
take. Increasingly, it has emphasized original meaning in
constitutional interpretation. See, e. g., Kennedy v. Bremer-
ton School Dist., 597 U. S. 507, 535â536 (2022); Ramos v.
Louisiana, 590 U. S. âââ, âââ, âââ â âââ (2020). In the proc-
ess, it has come again to recognize the Indian Commerce
Clause provides the federal government only so much
âpower to deal with the Indian [T]ribes.â Mancari, 417
U. S., at 551â552. But to date, these corrective steps have
not yielded all they should. While this Court has stopped
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overreading its own plenary-power precedents, it has yet to
recover fully the original meaning of the Indian Commerce
Clause.
Today, the Court takes further steps in the right direction.
It recognizes that Congress's powers with respect to the
Tribes âderive from the Constitution, not the atmosphere.â
Ante, at 273. It engages in a robust history-driven analysis
of the various fonts of congressional authority without rely-
ing only on platitudes about plenary power. Ante, at 273â
276. It notes that, as an original matter, the Indian Com-
merce Clause is âbroadâ and covers more than garden-vari-
ety commercial activity. Ante, at 276â280. In the process,
it reaffrms that â `commerce with the Indian [T]ribes' â nec-
essarily covers commerce with âIndians as individuals.â
Ante, at 278.
No less importantly, the Court acknowledges what the fed-
eral government cannot do. âArticle I gives Congress a se-
ries of enumerated powers, not a series of blank checks.â
Ante, at 276. And that means that âCongress's authority to
Cite as: 599 U. S. 255 (2023) 331
Gorsuch, J., concurring
legislate with respect to Indians is not unbounded,â but in-
stead comes with concrete limitations. Ibid. To resolve
the present dispute, the Court understandably sees no need
to demarcate those limitations further. But I hope that, in
time, it will follow the implications of today's decision where
they lead and return us to the original bargain struck in the
Constitutionâand, with it, the respect for Indian sover-
eignty it entails.
III
With all the historical pieces of this puzzle assembled, only
one task remains. You must decide for yourself if ICWA
passes constitutional muster.
By now, the full picture has come into view and it is easy to
see why ICWA must stand. Under our Constitution, Tribes
remain independent sovereigns responsible for governing
their own affairs. And as this Court has long recognized,
domestic law arrangements fall within Tribes' traditional
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powers of self-governance. See, e. g., Fisher, 424 U. S., at
387; Quiver, 241 U. S., at 605. As â `a separate people' â
Tribes may â `regulat[e] their internal and social relations' â
as they wish. Wheeler, 435 U. S., at 322 (quoting Kagama,
118 U. S., at 381â382). In enacting ICWA, Congress af-
frmed this understanding. It recognized that âthere is no
resource that is more vital to the continued existence and
integrity of Indian [T]ribes than their children.â 25 U. S. C.
§ 1901(3). Yet it also recognized that the mass-removal of
Indian children by States and other outsiders threatened the
âcontinued existence and integrity of Indian [T]ribes.â Ibid.;
see also § 1901(4). By setting out to eliminate that practice,
Congress sought to preserve the Indian-law bargain written
into the Constitution's text by securing the continued viabil-
ity of the âthird sovereign.â S. O'Connor, Remark, Lessons
From the Third Sovereign: Indian Tribal Courts, 33 Tulsa
L. J. 1 (1997).
No doubt, ICWA sharply limits the ability of States to im-
pose their own family-law policies on tribal members. But
332 HAALAND v. BRACKEEN
Gorsuch, J., concurring
as we have seen, state intrusions on tribal authority have
been a recurring theme throughout American history. See
Ablavsky 2014, at 1009â1037. Long ago, those intrusions led
the framers to abandon the loophole-ridden Indian affairs
provision in the Articles of Confederation and adopt in the
Constitution a different arrangement that commits the man-
agement of tribal relations solely to the federal government.
Id., at 1038â1051; see also Clinton 1995, at 1098â1165. Rec-
ognizing as much, this Court has consistently reaffrmed
the Tribes' âimmunity from state and local control.â Ari-
zona v. San Carlos Apache Tribe of Ariz., 463 U. S. 545,
571 (1983) (internal quotation marks omitted). If that
immunity means anything, it must mean that States and oth-
ers cannot use their own laws to displace federal Indian
policy.
Nor is there any serious question that Congress has the
power under the Indian Commerce Clause to enact protec-
Page Proof Pending Publication
tions against the removal of Indian children. Thankfully,
Indian children are not (these days) units of commerce. Cf.
Fletcher & Singel 897â898 (describing an early practice of
enslaving Indian children). But at its core, ICWA restricts
how non-Indians (States and private individuals) may engage
with Indians. And, as we have seen, that falls in the heart-
land of Congress's constitutional authority. Recall that the
very first Congresses punished non-Indians who âcom-
mit[ted] any crime upon [any] friendly Indian.â Act of July
22, 1790, ch. 33, § 5, 1 Stat. 138. ICWA operates in much the
same way. The mass removal of Indian children by States
and private parties, no less than a pattern of criminal tres-
passes by States and private parties, directly interferes with
tribal intercourse. More than that, it threatens the Tribes'
âpolitical existence.â Worcester, 6 Pet., at 536. And at the
risk of stating the obvious, Indian commerce is hard to main-
tain if there are no Indian communities left to do commerce
with.
Cite as: 599 U. S. 255 (2023) 333
Kavanaugh, J., concurring
IV
Often, Native American Tribes have come to this Court
seeking justice only to leave with bowed heads and empty
hands. But that is not because this Court has no justice to
offer them. Our Constitution reserves for the Tribes a
placeâan enduring placeâin the structure of American life.
It promises them sovereignty for as long as they wish to
keep it. And it secures that promise by divesting States
of authority over Indian affairs and by giving the federal
government certain signifcant (but limited and enumerated)
powers aimed at building a lasting peace. In adopting the
Indian Child Welfare Act, Congress exercised that lawful au-
thority to secure the right of Indian parents to raise their
families as they please; the right of Indian children to grow
in their culture; and the right of Indian communities to resist
fading into the twilight of history. All of that is in keeping
with the Constitution's original design.
Page
Justice Proof Pending
Kavanaugh, concurring. Publication
I join the Court's opinion in full. I write separately to
emphasize that the Court today does not address or decide
the equal protection issue that can arise when the Indian
Child Welfare Act is applied in individual foster care or adop-
tion proceedings. See ante, at 291â292, 294, n. 10. As the
Court explains, the plaintiffs in this federal-court suit
against federal parties lack standing to raise the equal protec-
tion issue. So the equal protection issue remains undecided.
In my view, the equal protection issue is serious. Under
the Act, a child in foster care or adoption proceedings may
in some cases be denied a particular placement because of
the child's raceâeven if the placement is otherwise deter-
mined to be in the child's best interests. And a prospective
foster or adoptive parent may in some cases be denied the
opportunity to foster or adopt a child because of the prospec-
tive parent's race. Those scenarios raise signifcant ques-
334 HAALAND v. BRACKEEN
Thomas, J., dissenting
tions under bedrock equal protection principles and this
Court's precedents. See Palmore v. Sidoti, 466 U. S. 429
(1984). Courts, including ultimately this Court, will be able
to address the equal protection issue when it is properly
raised by a plaintiff with standingâfor example, by a pro-
spective foster or adoptive parent or child in a case arising
out of a state-court foster care or adoption proceeding. See
ante, at 291â292, 294, n. 10.
Justice Thomas, dissenting.
These cases concern the Federal Government's attempt to
regulate child-welfare proceedings in state courts. That
should raise alarm bells. Our Federal â[G]overnment is ac-
knowledged by all to be one of enumerated powers,â having
only those powers that the Constitution confers expressly
or by necessary implication. McCulloch v. Maryland, 4
Wheat. 316, 405 (1819). All other powers (like family or
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criminal law) generally remain with the States. The Fed-
eral Government thus lacks a general police power to regu-
late state family law.
However, in the Indian Child Welfare Act (ICWA), Con-
gress ignored the normal limits on the Federal Government's
power and prescribed rules to regulate state child custody
proceedings in one circumstance: when the child involved
happens to be an Indian. As the majority acknowledges,
ICWA often overrides state family law by dictating that
state courts place Indian children with Indian caretakers
even if doing so is not in the child's best interest. See ante,
at 264. It imposes heightened standards before removing
Indian children from unsafe environments. See ante, at 266.
And it allows tribes to unilaterally enroll Indian children
and then intervene in their custody proceedings. See ante,
at 267, 268â270.
In the normal course, we would say that the Federal Gov-
ernment has no authority to enact any of this. Yet the ma-
jority declines to hold that ICWA is unconstitutional, reason-
Cite as: 599 U. S. 255 (2023) 335
Thomas, J., dissenting
ing that the petitioners before us have not borne their
burden of showing how Congress exceeded its powers. This
gets things backwards. When Congress has so clearly in-
truded upon a longstanding domain of exclusive state pow-
ers, we must ask not whether a constitutional provision pro-
hibits that intrusion, but whether a constitutional provision
authorizes it.
The majority and respondents gesture to a smorgasbord
of constitutional hooks to support ICWA; not one of them
works. First, the Indian Commerce Clause is about com-
merce, not children. See Adoptive Couple v. Baby Girl, 570
U. S. 637, 659â665 (2013) (Thomas, J., concurring). Second,
the Treaty Clause does no work because ICWA is not based
on any treaty. Third, the foreign-affairs powers (what the
majority terms âstructural principlesâ) inherent in the Fed-
eral Government have no application to regulating the do-
mestic child custody proceedings of U. S. citizens living
within the jurisdiction of States.
Page Proof Pending Publication
I would go no further. But, as the majority notes, the
Court's precedents have repeatedly referred to a âplenary
powerâ that Congress possesses over Indian affairs, as well
as a general âtrustâ relationship with the Indians. I have
searched in vain for any constitutional basis for such a ple-
nary power, which appears to have been born of loose lan-
guage and judicial ipse dixit. And, even taking the Court's
precedents as given, there is no reason to extend this âple-
nary powerâ to the situation before us today: regulating
state-court child custody proceedings of U. S. citizens, who
may never have even set foot on Indian lands, merely be-
cause the child involved happens to be an Indian.
I
State courts usually apply state law when resolving child
custody issues. This would normally be true for most Indi-
ans, too. Today, Indians are citizens of the United States;
the vast majority of them do not live on any reservation or
336 HAALAND v. BRACKEEN
Thomas, J., dissenting
Indian lands, but live (as most citizens) on lands that are
wholly within a State's jurisdiction. See ch. 233, 43 Stat.
253; Dept. of Health and Human Services, Offce of Minority
Health, Profle: American Indian/Alaska Native (Feb. 24,
2023), https://minorityhealth.hhs.gov/omh/ browse.aspx?lvl=
3&lvlid=62 (87% live off Indian lands). Thus, one might ex-
pect that when a child custody issue regarding an Indian
child arises in a state court, that court would apply the same
laws that it would for any other citizen.
But ICWA displaces the normal state laws governing child
custody when it comes to only one group of citizens: Indian
children. ICWA defnes âIndian childâ capaciously: It in-
cludes not only children who are members of an Indian tribe,
but also those children who are merely eligible for member-
ship in a tribe and are the biological child of a tribal member.
See 25 U. S. C. § 1903(4). If the child resides on Indian tribal
lands, then the Indian tribal court has jurisdiction.
Page Proof Pending Publication
§ 1911(a). But, if the child resides within a State, ICWA re-
quires state courts to transfer any proceedings to a tribal
court, absent âgood cause to the contrary,â upon petition by
the child's parent, custodian, or tribe. § 1911(b).
Even when the state court retains the proceedings, ICWA
replaces state law with a strict set of federal rules. For
example, if the State fears that a child is suffering physical
or sexual abuse, it must clear a set of hurdles before placing
the child in foster care or terminating the parent's rights.
§§ 1912(a)â(e). If the parent wishes to voluntarily relinquish
his or her rights and facilitate an adoption, the child's tribe
has a right to intervene âat any pointâ and to collaterally
attack the court's decree. §§ 1911(c), 1914. Moreover, it ap-
pears that tribes can enroll children unilaterally, without the
parent's consent. Accordingly, even if the biological par-
ents, the child, the adoptive parents, and the court all agree
on what is best for the child, the tribe can intervene at the
eleventh hour, without any consent from the parents or child,
and block the proceedings. In fact, that is exactly what hap-
Cite as: 599 U. S. 255 (2023) 337
Thomas, J., dissenting
pened hereâthe children were unilaterally designated as
tribal members by tribes, which then sought to block adop-
tions that everyone else thought were best for the children
involved. And, even though some of those adoptions have
now been fnalized, it appears that the tribes can collaterally
attack them for an indefnite period of time. § 1914.
Besides these procedural hurdles, ICWA dictates the pref-
erences a court must adhere to when deciding where to place
the child. In the typical case, the primary consideration
would be the best interests of that child. E. g., Tex. Fam.
Code Ann. § 153.002 (West 2014); American Law Institute,
Principles of the Law of Family Dissolution § 2.02 (2002);
Friederwitzer v. Friederwitzer, 55 N. Y. 2d 89, 92, 432 N. E.
2d 765, 767 (1982); Karner v. McMahon, 433 Pa. Super. 290,
302, 640 A. 2d 926, 932 (1994). That makes sense; as the
majority notes, these children are some of the most vulnera-
ble among us, and their interests should be a court's primary
concern. See ante, at 1. But ICWA displaces that stand-
Page Proof Pending Publication
ard with its own hierarchy of preferences, requiring a court
to prefer any placements with (1) a member of the child's
extended family; (2) other members of the child's tribe; and
(3) other Indian families of any tribe, anywhere in the coun-
try. § 1915(a). Similar rules govern foster-care place-
ments. § 1915(b). As the majority notes, these preferences
collectively ensure that any Indian from any tribe in the coun-
try outranks all non-Indians for adopting and fostering those
whom ICWA deems to be Indian children. See ante, at 267.
Again, these detailed rules govern the child custody pro-
ceedings of U. S. citizens in state courts only because the
child is also either a member of an Indian tribe or merely
eligible for membership in a tribe. (The child or parents
need never have set foot on Indian lands or have any desire
to affliate themselves with a tribe.1) The child and his or
1
An analogous law might be if the Federal Government tried to regulate
the child custody proceedings of U. S. citizens who are eligible for Russian,
Mexican, Israeli, or Irish citizenship.
338 HAALAND v. BRACKEEN
Thomas, J., dissenting
her biological parents and relatives can all support an adop-
tion, yet ICWA may stand in the way.
Normally, we would say that the Federal Government
plainly lacks the authority to enact a law like this. The only
question is thus whether Congress has some additional au-
thority that allows it to regulate the adoption process
for U. S. citizens in state courts merely because the child
involved happens to be an Indian. To answer that question,
I turn first to the text and original meaning of the
Constitution.
II
To explain the original understanding of the Constitution's
enumerated powers with regard to Indians, I start with our
Nation's Founding-era dealings with Indian tribes. Those
early interactions underscore that the Constitution conferred
specifc, enumerated powers on the Federal Government
which aimed at specifc problems that the Nation faced under
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the Articles of Confederation. The new Federal Govern-
ment's actions with respect to Indian tribes are easily
explained by those enumerated powers. Meanwhile, the
States continued to enjoy substantial authority with regard
to tribes. At each turn, history and constitutional text thus
point to a set of enumerated powers that can be applied to
Indian tribesânot some sort of amorphous, unlimited power
than can be applied to displace all state laws when it comes
to Indians.
A
Before the Revolution, most of the Thirteen Colonies
adopted their own regulations governing Indian trade. See
Adoptive Couple, 570 U. S., at 660 (Thomas, J., concurring);
R. Natelson, The Original Understanding of the Indian Com-
merce Clause, 85 Denver U. L. Rev. 201, 219, and n. 121
(2007) (Natelson) (collecting laws). These regulations were
necessary because colonial traders abused their Indian trad-
ing partners, often provoking violent Indian retaliation.
Cite as: 599 U. S. 255 (2023) 339
Thomas, J., dissenting
See Adoptive Couple, 570 U. S., at 660â661; 1 F. Prucha, The
Great Father 18â21 (1984) (Prucha). Most colonial govern-
ments thus imposed licensing systems of some form both to
protect Indians and to maintain trading relationships with
them. See id., at 19. However, the colonial laws were not
uniform, leading to rivalries between the Colonies, corrup-
tion, fraud, and other abuses by traders. Id., at 21. Then,
once the Nation had achieved independence, it âfaced innu-
merable diffculties,â id., at 46, from fnding ways to uphold
its treaties with foreign nations to economic upheaval at
home, J. Marshall, The Life of George Washington 313â316
(R. Faulkner & P. Carrese eds. 2000). Peace with the Indi-
ans, rather than conficts sparked by unscrupulous traders,
was imperative. Prucha 46.
The Articles of Confederation aimed to meet that need in
part by giving Congress âthe sole and exclusive right and
power of . . . regulating the trade and managing all affairs
with the Indians.â Art. IX, cl. 4. However, that broad
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power came with two limitations: First, the Indians could
not be âmembers of any of the states.â Ibid. And, second,
âthe legislative right of any state within its own limits [could
not] be infringed or violated.â Ibid. In part because of
those limitations, the Articles' solution proved to be less than
ideal. As James Madison would later write, the two limits
were âobscure and contradictoryâ; the new Nation had ânot
yet settledâ on which Indians were âmembersâ of a State or
which state âlegislative right[s]â could not be âinfringe[d].â
The Federalist No. 42, pp. 268â269 (C. Rossiter ed. 1961).2
More broadly, the Confederation Congress lacked any robust
authority to enforce congressional laws or treaties (in this or
any other domain). For example, it had no power to make
laws supreme over state law; there was no executive power
2
For example, though it was not exactly settled what it meant for an
Indian to be a âmemberâ of a State, the defnition often turned on whether
the Indian paid taxes in or was a citizen of that State. Adoptive Couple
v. Baby Girl, 570 U. S. 637, 662, n. 2 (2013) (Thomas, J., concurring).
340 HAALAND v. BRACKEEN
Thomas, J., dissenting
independent of the States; and state offcers were not bound
by oath to support the Articles.
Under the Articles, Congress entered treaties with vari-
ous tribes and sought to maintain a mostly peaceful relation-
ship with the Indiansâbut its authority was undermined at
every turn. See Prucha 44â50. Again and again, Congress
entered treaties with Indians that established boundary lines
and lands set apart for the Indians, and again and again,
frontier settlers encroached on Indian territory and com-
mitted acts that violated those treaties. Id., at 46â48; F.
Cohen, Handbook of Federal Indian Law § 1.02[3], pp. 21â
22 (2012) (Cohen). Such violations were taken seriously; as
offenses against âthe laws of nations,â they provoked the In-
dians and provided âjust causes of war.â The Federalist No.
3, at 44 (J. Jay); see also 2 E. de Vattel, The Law of Nations
§§ 71â76, pp. 161â163 (J. Chitty ed. 1876).
Yet the Confederation Congress was almost powerless to
Page Proof Pending Publication
stop these abuses. After a committee noted confusion about
the extent of congressional power over Indian affairs in 1787,
Congress had to ask the States for their cooperation in curb-
ing the abuses that their own citizens were perpetrating.
Prucha 48â49. The weakness of Congress meant, however,
that âfederal attempts to check state intrusions were often
ignored.â Cohen § 1.02[3], at 22. The result was that, by
the time of the Constitutional Convention, âthe young nation
[stood on] the brink of Indian warfare on several fronts.â
Ibid. Such a war, feared some Founders, could be destruc-
tive to the fedgling Republic. See G. Ablavsky, The Savage
Constitution, 63 Duke L. J. 999, 1033 (2014).
The Constitution addressed those problems in several
ways. First and most plainly, the Constitution made all fed-
eral treaties and laws âthe supreme Law of the Land,â not-
withstanding the laws of any State. Art. VI. It empow-
ered Congress not only to âdeclare War,â but also to âraise
and support Armies,â âprovide and maintain a Navy,â and
âprovide for calling forth the Militia to execute the Laws of
Cite as: 599 U. S. 255 (2023) 341
Thomas, J., dissenting
the Union.â Art. I, § 8. It enabled Congress to âdefne and
punish . . . Offences against the Law of Nations.â Ibid.
And it granted Congress the authority to âmake all Laws
which shall be necessary and properâ for carrying out any of
those powers. Ibid.
The Constitution also provided one power specifc to In-
dian tribes: the power â[t]o regulate Commerce . . . with the
Indian Tribes.â § 8, cl. 3. That power, however, came very
late in the drafting process and was narrower than initially
proposed. See L. Updike Toler, The Missing Indian Affairs
Clause, 88 U. Chi. L. Rev. 413, 444â464 (2021) (Toler). At
two separate points, James Madison and John Rutledge pro-
posed a power to â `regulate affairs with the Indians,' â a
provision that would have mirrored the Articles. Id., at
447â448, 464â465 (emphasis added). Neither proposal re-
ceived much debate, and both were rejected. See id., at
464â466. Instead, the Convention opted to include Indian
Page Proof Pending Publication
tribes in a provision that had initially been drafted to include
only power to â `regulate commerce with foreign nations, and
among the several States.' â See ibid. The Convention
thus expanded the Commerce Clause to the form we know
today, empowering Congress to â `regulate Commerce with
foreign Nations, and among the several States, and with the
Indian Tribes.' â Id., at 466.
On top of those powers, one more warrants note. As I
have written previously, the Constitution vests the President
with certain foreign-affairs powers including â[t]he executive
Power,â which includes a residual authority over war, peace,
and foreign interactions. See Art. II; Zivotofsky v. Kerry,
576 U. S. 1, 35â40 (2015) (Thomas, J., concurring in judgment
in part and dissenting in part); United States v. Curtiss-
Wright Export Corp., 299 U. S. 304, 319 (1936). From the
start, Presidents have exercised foreign-affairs powers not
specifcally enumerated on matters ranging from maintain-
ing the peace and issuing passports to communicating with
foreign governments and repelling sudden attacks on the
342 HAALAND v. BRACKEEN
Thomas, J., dissenting
Nation. S. Prakash, Imperial From the Beginning 119â132
(2015). In his Neutrality Proclamation, for example, Presi-
dent Washington declared that the United States would
remain strictly neutral in the then-ongoing war between
England and France. See A Proclamation (Apr. 22, 1793),
reprinted in 1 American State Papers 140 (W. Lowrie & M.
Clarke eds. 1833). Congress supported his Proclamation by
imposing criminal penalties on anyone who, among other
things, went âbeyond the limits or jurisdiction of the United
States with intent to be enlisted or entered in the service of
any foreign prince or state.â § 2, 1 Stat. 383. While this
Court has at times debated whether those residual foreign-
affairs powers are located in the Executive exclusively or the
Federal Government more broadly, see Zivotofsky, 576 U. S.,
at 20â22, it has long recognized the powers as arising from
our constitutional framework and residing at the federal
level, see, e. g., Curtiss-Wright, 299 U. S., at 318.
Page Proof Pending
B Publication
After the Constitution's ratifcation, the new Federal Gov-
ernment exercised its enumerated powers with regard to In-
dian tribes. To start, the Government embarked on an era
of treaty-making with Indian tribes. See Cohen § 1.03[1],
at 23. That treaty-focused policy refected the Washington
administration's view that Indian tribes were best dealt with
as mostly âforeign nations,â with an eye toward peace lest
frontier conficts continue to plague the new Nation. See
Letter from H. Knox to G. Washington (July 7, 1789), re-
printed in 3 Papers of George Washington 138 (W. Abbot ed.
1989); see also Toler 433â434. Many early treaties thus
âwere treaties of peace and friendship, often providing for
the restoration or exchange of prisonersâ or including âmu-
tual assistance pacts.â Cohen § 1.03[1], at 25 (footnote omit-
ted). Others dealt with passports and commercial affairs.
Id., at 25â26. And many attested to the tribes' status as
Cite as: 599 U. S. 255 (2023) 343
Thomas, J., dissenting
dependent nations, with the United States sometimes prom-
ising to protect the tribe. Id., at 26.
Unlike the Confederation Congress, the new Federal Gov-
ernment was no longer powerless to maintain and enforce
its treaties. Exercising its new military powers, the First
Congress established a Department of War and vested the
Department with authority over âIndian affairs.â See § 1, 1
Stat. 50. War Secretary Henry Knox then called for, and
obtained, âa line of garrisons in the Indian Country, in order
to enforce the treaties and maintain the peace of the fron-
tier.â F. Prucha, American Indian Policy in the Formative
Years 61 (1962) (Prucha, American Indian Policy). Those
garrisons remained for years, working to prevent American
settlers from illegally entering Indian country or otherwise
stirring up conficts. Id., at 61â63.
Meanwhile, President Washington exercised his diplomatic
authority to maintain peace on the frontier. For example,
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when Pennsylvania settlers killed two members of the Sen-
eca Nation, Washington appointed a federal agent to meet
with the Seneca and â `give the strongest assurances of the
friendship of the United States towards that Tribe; and to
make pecuniary satisfaction.' â Letter to T. Miffin (Sept. 4,
1790), reprinted in 6 Papers of George Washington: Presiden-
tial Series 396 (D. Twohig ed. 1996). And, in line with his
executive authority to âregulate all intercourse with foreign
powers,â see 4 J. Elliot, Debates on the Constitution 126â127
(1863), Washington instructed Pennsylvania's Governor to
refer the Seneca â `to the Executive of the United States, as
possessing the only authority of regulating an intercourse
with them, and redressing their grievances,' â Letter to T.
Miffin, in 3 Papers of George Washington 396.
Congress too did its part, enacting a series of acts âto reg-
ulate Trade and Intercourse with the Indian Tribes, and to
preserve Peace on the Frontiers.â See, e. g., 1 Stat. 469; 2
Stat. 139; 1 Stat. 137 (emphasis deleted). Those âTrade and
344 HAALAND v. BRACKEEN
Thomas, J., dissenting
Intercourse Actsâ underscored the Federal Government's
new powers and worked to establish a policy of peace and
trade with Indian tribes. For example, the Acts threatened
criminal penalties on any U. S. citizen who entered Indian
lands and there committed crimes against Indians. See,
e. g., id., at 137; see also Prucha, American Indian Policy 188â
193. Though opponents of those provisions contended that
they were unnecessary because state laws and some treaties
already provided for criminal punishment, proponents ex-
plained that the provisions were needed for those who went
âout of the limits of any of the Statesâ and committed crimes
that may not have been covered by a particular treaty. See
3 Annals of Cong. 751 (1792).3 Thus, as with the border gar-
risons, these provisions were meant as âan answer to the
charge thatâ the United States did not respect its treaties
with Indian tribes, Prucha 92, while also securing âpeace
with the Indian tribesâ on the frontier, 3 Annals of Cong.
751. In that respect, they were much like the criminal pen-
Page Proof Pending Publication
alties that Congress levied on those who went abroad and
enlisted with England or France and thereby threatened the
United States' peace with those nations. See 1 Stat. 383.
The Trade and Intercourse Acts further hammered out the
Nation's diplomatic and territorial stance with respect to the
Indian tribes. For example, refecting the Federal Govern-
ment's powers over commerce, territories, and foreign af-
fairs, the Acts forbade U. S. citizens from purchasing, survey-
ing, or settling on Indian lands. E. g., id., at 329â330. One
of the Acts, enacted in 1796, then drew a boundary line with
Indian tribes and required citizens to have passports when
3
As refected in the debates on this statute, a majority of Congress
thought that âthe power of the General Government to legislate in all the
territory belonging to the Union, not within the limits of any particular
State, cannot be doubted; if the Government cannot make laws to restrain
persons from going out of the limits of any of the States, and commit
murders and depredations, it would be in vain to expect any peace with
the Indian tribes.â 3 Annals of Cong. 751.
Cite as: 599 U. S. 255 (2023) 345
Thomas, J., dissenting
entering Indian lands. Id., at 470. If an Indian came over
the boundary line and committed a crime against a U. S.
citizen, the Acts authorized the President to demand satis-
faction from the tribe (while specifying that the Indian could
be arrested âwithin the limits of any stateâ). See, e. g.,
§ 14, id., at 472â473. Then, to prevent the tribes from ally-
ing themselves with European powers, Congress forbade peo-
ple from conveying messages to Indian tribes from foreign
states. 2 Stat. 6.
Congress also, of course, regulated trade with the Indian
tribes. For example, the Acts continued the colonial prac-
tice of requiring licenses to trade with Indians and threat-
ened penalties on anyone who sold or purchased goods from
Indians without a license. See, e. g., 1 Stat. 329â330. To
facilitate trade, Congress also established a series of trading
houses on the frontiers, appropriating federal funds to set up
the houses and purchase goods from Indians. See, e. g., id.,
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at 443, 452â453; Ch. 39, 2 Stat. 173. And, âto promote civili-
zationâ and secure the tribes' âfriendship,â Congress appro-
priated funds for the President to furnish gifts to the Indi-
ans. See, e. g., § 13, 1 Stat. 472.
To be sure, these measures were not entirely successful,
and the Federal Government's policy was not always one of
peace. American frontiersmen continued to push into In-
dian lands, and the military garrisons sometimes could not
stem the tide. See Prucha 62â63, 112. The Indians (often
supported by the British) engaged in intermittent raids and
attacks against American settlers, and the Federal Govern-
ment and several confederated tribes fought a signifcant
war in the Northwest Territories. Id., at 63â67; J. Yoo, Cri-
sis and Command 75â79 (2011); M. Fletcher & W. Singel, In-
dian Children and the Federal-Tribal Trust Relationship, 95
Neb. L. Rev. 885, 904â905 (2017) (Fletcher & Singel). Addi-
tionally, the Federal Government often played tribes against
each other to obtain land concessions by treaty, leading many
tribes (again goaded by the British) to take up arms against
346 HAALAND v. BRACKEEN
Thomas, J., dissenting
the United States in the War of 1812. See Cohen § 1.03[3],
at 39â41. In the aftermath of that confict, Presidents Mon-
roe and John Quincy Adams generally pursued a policy of
assimilation or removing Indians west with their consent.
Prucha, American Indian Policy 226â233. That policy then
gave way to a more forceful policy of removing Indians west,
particularly during the administration of President Andrew
Jackson. Id., at 233â249; Cohen § 1.03[4], at 41â51; Prucha
193â195, 239â240.
But, at least until the War of 1812 (and, in large part, in
the years after it), Founding-era Presidents' primary goals
in this area were to achieve peace with the Indians, sustain
trade with them, and obtain Indian lands through treaties.
See id., at 32â33, 59, 61, 93. By establishing a peaceful and
trade-oriented relationship with the Indians, the new coun-
try further hoped to exclude British Canada and other Euro-
pean powers that might seek alliances with the Indian tribes.
See Cohen § 1.03[3], at 37â38, n. 102; 2 Stat. 6. During that
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time, the Federal Government's relationship with the Indi-
ans thus remained (as it did for nearly the frst hundred
years of our Nation) â `more an aspect of military and foreign
policy' â than simple domestic law. See United States v.
Lara, 541 U. S. 193, 201 (2004).
C
Notably, neither President Washington nor the frst Con-
gresses were particularly âconcerned with the remnants of
tribes that had been absorbed by the states and had come
under their direction and control.â Prucha 92. The frst
Trade and Intercourse Acts specifcally provided that ânoth-
ing in this act shall be construed to prevent any trade or
intercourse with Indians living on lands surrounded by set-
tlements of the citizens of the United States, and being
within the jurisdiction of any of the individual states.â § 13,
1 Stat. 331; § 19, id., at 474. And the Constitution's Appor-
tionment Clause provided that representatives would be ap-
Cite as: 599 U. S. 255 (2023) 347
Thomas, J., dissenting
portioned by the population of each State, âexcluding Indians
not taxedââimplying that there were Indians who paid
taxes and were incorporated into the bodies politic of the
States. Art. I, § 2, cl. 3.
The States accordingly enacted numerous laws to regulate
Indians within their territorial boundaries, as well as those
Indians' interactions with the States' citizens. See, e. g.,
D. Rosen, American Indians and State Law 34, 52 (2007)
(Rosen). For example, New York passed laws forbidding
its citizens from suing to enforce contracts with Indians who
lived on Indian lands, and Virginia regulated the sale of land
held by Indians. See Laws of the Colonial and State Gov-
ernments, Relating to Indians and Indian Affairs, From 1633
to 1831, pp. 65â67, 158â159 (1832). Massachusetts author-
ized its Governor to appoint guardians to oversee Indians
and their property, while Ohio and Indiana forbade the sale
of liquor to Indians. Id., at 21â22, 232â234.
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On the whole, States also generally applied both their civil
and criminal laws to Indians, with many extending their
criminal laws to all Indians anywhere in the Stateâinclud-
ing, sometimes, on Indian reservations within the State.
See Rosen 53; see also, e. g., Goodell v. Jackson ex dem.
Smith, 20 Johns. 693 (N. Y. Ct. Corr. Errors 1823); State v.
Doxtater, 47 Wis. 278, 2 N. W. 439 (1879) (collecting cases).
To be sure, some of these laws may have conficted with valid
federal treaties or statutes on point, and courts at the time
often did not precisely demarcate the constitutional bound-
aries between state and federal authority. Rosen 55â56.4
4
The Constitution expressly denied certain powers to States, including
the power to âenter into any Treaty,â but it is silent on States' relationship
with Indians. See Art. I, § 10; see also Letter from T. Jefferson to H.
Knox (Aug. 10, 1791), in 22 Papers of Thomas Jefferson 27 (C. Cullen ed.
1986) (noting that States lack âa right to Treat with the Indiansâ). To be
sure, in 1832, this Court held that Georgia could not extend its laws over
the territory held by the Cherokee Nation. See Worcester v. Georgia, 6
Pet. 515. However, that opinion âyielded to closer analysis,â and Indian
348 HAALAND v. BRACKEEN
Thomas, J., dissenting
But, when opponents of the Trade and Intercourse Acts'
criminal provisions complained that state laws would take
care of criminal offenses, the provisions' proponents did not
reply that state laws were disabled on this pointâthey in-
stead noted that citizens might go beyond the limits of States
and commit crimes. See 3 Annals of Cong. 751. And nota-
bly, Congress' early statutes did not purport to regulate In-
dians either on or off Indian landsâthey instead regulated
and penalized only U. S. citizens who were trading with Indi-
ans or committing acts on Indian lands that threatened the
peace with the tribes.
Those statutory lines refected the early dynamic of
federal-Indian relations, with Indian affairs counting as both
a matter of quasi-foreign affairs and of state jurisdiction.
For example, the early Trade and Intercourse Acts only de-
manded satisfaction from Indian tribes if an Indian went onto
a State's land and committed a crime. E. g., 1 Stat. 472â473.
Under that regime, the Federal Government asserted no au-
Page Proof Pending Publication
thority over the acts of Indians who lived on tribal landsâ
much less over Indians who lived off tribal lands and within
a State's sole jurisdiction.
That general jurisdictional line held until 1817, when Con-
gress frst enacted a statute to impose penalties on anyone
who committed a crime against a U. S. citizen while on In-
dian lands. See 3 Stat. 383. But Justice McLean, riding
circuit, held that statute unconstitutional in 1834âat least as
it applied to Indian lands located within the territorial limits
of a State. See United States v. Bailey, 24 F. Cas. 937 (No.
14,495) (CC Tenn.). As Justice McLean explained, â[t]hat
the federal government is one of limited powers, is a princi-
ple so obvious as not to admit of controversy.â Id., at 938.
Yet the Indian lands at issue were not located within a fed-
eral territory, and there had not been âany cession of juris-
reservations have since been treated as part of the State they are within.
Oklahoma v. Castro-Huerta, 597 U. S. 629, 636 (2022) (internal quotation
marks omitted).
Cite as: 599 U. S. 255 (2023) 349
Thomas, J., dissenting
diction by the state of Tennessee.â Id., at 939.5 Nor was
the criminal statute in any way related to âcommerceâ with
the Indian tribes. Ibid. Indeed, Justice McLean asked, if
Congress could enact this statute, âwhy may not [C]ongress
legislate on crimes for the states generally?â Id., at 940.
He concluded that Congress âtranscended their constitu-
tional powersâ in asserting a general criminal jurisdiction
over tribal lands within the limits of a State. Ibid. And,
given the limited nature of the Federal Government's au-
thority, state laws thus played a signifcant role in regulating
Indians within the territorial limits of States. See id., at
939.
III
The Constitution's text and the foregoing history point to
a set of discrete, enumerated powers applicable to Indian
tribesâjust as in any other context. Although our cases
have at times suggested a broader power with respect to
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Indians, there is no evidence for such a free-foating author-
ity anywhere in the text or original understanding of the
Constitution. To the contrary, all of the Government's early
acts with respect to Indians are easily explicable under our
normal understanding of the Constitution's enumerated pow-
ers. For example, the Treaty Clause supported the Federal
Government's treaties with Indians, and the Property Clause
supported the gifts allocated to Indians. The powers to reg-
ulate territories and foreign affairs supported the regulation
of passports and penalties for criminal acts on Indian lands.
The various war-related powers supported military cam-
paigns against Indian tribes. And the Commerce Clause
supported the regulation of trade with Indian tribes.
5
This decision thus was consistent with one issued 12 years later by
this Courtâwhich upheld the 1834 Trade and Intercourse Act's criminal
provisions against a citizen of the United States, deemed not to be an
Indian, who committed a crime on Indian lands within âa part of the terri-
tory of the United States, and not within the limits of any particular
State.â United States v. Rogers, 4 How. 567, 571â572 (1846).
350 HAALAND v. BRACKEEN
Thomas, J., dissenting
Moreover, the Founders deliberately chose to enumerate
one power specifc to Indian tribes: the power to regulate
âCommerceâ with tribes. Because the Constitution contains
one Indian-specifc power, there is simply no reason to think
that there is some sort of free-foating, unlimited power over
all things related to Indians. That is common sense: ex-
pressio unius est exclusio alterius. And that is particularly
true here, because the Founders adopted the âIndian Com-
merce Clauseâ while rejecting an arguably broader authority
over âIndian affairs.â See Adoptive Couple, 570 U. S., at
662. Accordingly, here as elsewhere, the Federal Govern-
ment can exercise only its constitutionally enumerated pow-
ers. Because each of those powers contains its own inherent
limits, none of them can support an additional unbounded
power over all Indian-related matters. Indeed, the history
of the plenary power doctrine in Indian law shows that, from
its inception, it has been a power in search of a constitutional
Page Proof Pending Publication
basisâand the majority opinion shows that this is still the
case.
A
As the majority notes, some of the candidates that this
Court has suggested as the source of the âplenary powerâ
are the Treaty Clause, the Commerce Clause, and âprinciples
inherent in the Constitution's structure.â See ante, at 272â
275; Lara, 541 U. S., at 200. But each of those powers has
clear, inherent limits, and not one suggests any sort of unlim-
ited power over Indian affairsâmuch less a power to regu-
late U. S. citizens outside of Indian lands merely because
those individuals happen to be Indians. I will discuss each
in turn.
1
First, and most obviously, the Treaty Clause confers only
the power to âmake Treatiesâ; the Supremacy Clause then
makes those treaties the supreme law of the land. Art. II,
§ 2, cl. 2; Art. VI. Even under our most expansive Treaty
Cite as: 599 U. S. 255 (2023) 351
Thomas, J., dissenting
Clause precedents, this power is still limited to actual treat-
ies. See Bond v. United States, 572 U. S. 844, 854â855
(2014); id., at 893â894 (Thomas, J., concurring in judgment)
(the Treaty Power supports treaties only on matters of inter-
national intercourse); Missouri v. Holland, 252 U. S. 416,
433â435 (1920). It does not confer a free-foating power
over matters that might involve a party to a treaty.
2
Second, the Commerce Clause confers only the authority
â[t]o regulate Commerce . . . with the Indian Tribes.â Art.
I, § 8, cl. 3 (emphasis added). âAt the time the original Con-
stitution was ratifed, `commerce' consisted of selling, buying,
and bartering, as well as transporting for these purposes.â
United States v. Lopez, 514 U. S. 549, 585 (1995) (Thomas, J.,
concurring); see also 1 S. Johnson, A Dictionary of the Eng-
lish Language 361 (4th rev. ed. 1773) (reprint 1978) (defning
commerce as âIntercourse; exchange of one thing for an-
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other; interchange of any thing; trade; traffckâ). And even
under our most expansive Commerce Clause precedents, the
Clause permits Congress to regulate only âeconomic activ-
ityâ like producing materials that will be sold or exchanged
as a matter of commerce. See Lopez, 514 U. S., at 560; Gon-
zales v. Raich, 545 U. S. 1, 22 (2005).6
The majority, however, suggests that the Commerce
Clause could have a broader application with respect to In-
dian tribes than for commerce between States or with for-
eign nations. See ante, at 273, 278. That makes little tex-
6
Though the Court has only passingly discussed the Commerce Clause's
application to commerce with foreign nations, see Baston v. United States,
580 U. S. 1182, 1184 (2017) (Thomas, J., dissenting from denial of certio-
rari), it has still described that application in terms of economic measures
like embargoes, see Atlantic Cleaners & Dyers, Inc. v. United States, 286
U. S. 427, 434 (1932); Buttfeld v. Stranahan, 192 U. S. 470, 493 (1904). See
also R. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi.
L. Rev. 101, 113â116, 128 (2001) (collecting Founding-era sources that
equate foreign commerce with trade).
352 HAALAND v. BRACKEEN
Thomas, J., dissenting
tual sense. The Commerce Clause confers the power to
regulate a single objectââCommerceââthat is then cabined
by three prepositional phrases: âwith foreign Nations, and
among the several States, and with the Indian Tribes.â
Art. I, § 8, cl. 3. Accordingly, one would naturally read the
term âCommerceâ as having the same meaning with respect
to each type of âCommerceâ the Clause proceeds to identify.
See Gibbons v. Ogden, 9 Wheat. 1, 74 (1824). I would think
that is how we would read, for example, the President's âap-
point[ment]â power with respect to âAmbassadors, . . .
Judges of the supreme Court, and all other Offcers of the
United States.â Art. II, § 2, cl. 2. There is no textual
reason why the Commerce Clause would be different. Nor
have the parties or the numerous amici presented any evi-
dence that the Founders thought that the term âCommerceâ
in the Commerce Clause meant different things for Indian
tribes than it did for commerce between States. See S. Pra-
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kash, Our Three Commerce Clauses and the Presumption of
Intrasentence Uniformity, 55 Ark. L. Rev. 1149, 1161â1162
(2003).
Rather, the evidence points in the opposite direction. See
Adoptive Couple, 570 U. S., at 659â660 (Thomas, J., concur-
ring). When discussing âcommerceâ with Indian tribes, the
Founders plainly meant buying and selling goods and trans-
portation for that purpose. For example, President Wash-
ington once informed Congress of the need for ânew channels
for the commerce of the Creeks,â because âtheir trade is lia-
ble to be interruptedâ by conficts with England. Statement
to the Senate (Aug. 4, 1790), reprinted in 4 American State
Papers 80. Henry Knox similarly referred to the âprofts of
this commerceâ with the Creeks in the context of a âtrading
house which has the monopoly of the trade of the Creeks.â
Report (July 6, 1789), reprinted in id., at 15. And President
Jefferson likewise discussed the âcommerce [that] shall be
carried on liberallyâ at âtrading housesâ with Indians.
Cite as: 599 U. S. 255 (2023) 353
Thomas, J., dissenting
Statement to Congress (Jan. 18, 1803), reprinted in id., at
684.7 All of this makes sense, given that the Founders both
wanted to facilitate trade with Indians and rejected a facially
broader âIndian affairsâ power in favor of a narrower power
over âCommerce . . . with the Indian Tribes.â
As noted above, that omission was not accidental; the Arti-
cles of Confederation had contained that âIndian affairsâ lan-
guage, and that language was twice proposed (and rejected)
at the Constitutional Convention. See Adoptive Couple,
7
See also Statement of T. Jefferson to Congress (Jan. 18, 1803), re-
printed in 4 American State Papers 684â685 (Offcers may âhave confer-
ences with the natives, on the subject of commercial intercourse; get ad-
mission among them for our traders, as others are admitted; [and] agree
on convenient deposites, for an interchange of articles . . . â); Statement of
T. Jefferson to Congress (Jan. 28, 1802), reprinted in id., at 653 (âI lay
before you the accounts of our Indian trading houses . . . explaining the
effects and the situation of that commerce . . . â); Statement of S. Sibley
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et al. to Congress (Dec. 27, 1811), reprinted in id., at 780â782 (in the
Northwest Territory, formerly â[t]here was trade and commercial inter-
course; no agriculture,â but â[a]t present, the little commerce which re-
mains is suffciently safe. It is agricultural protection which is wantedâ);
Letter from J. Mason to W. Eustis (Jan. 16, 1812), reprinted in id., at
782â784 (â[P]eltries (deer skins) are in most part received from the In-
dians . . . . The market is on the continent of Europe. Since the obstruc-
tions to our commerce in that quarter, peltries have not only experienced
a depression in price . . . â); Protest by J. Hendricks, J. Jackson, & J. Simms
(June 28, 1796), reprinted in id., at 613â614 (âNo citizen is to be permitted
to sell, or furnish by gift, spirituous liquors to the Indians, or to have
any commercial traffc with themâ); see also Natelson 214â215. Even one
Founder who appears to have used the term more loosely (in the context
of an opinion on the constitutionality of a national bank) focused only on
trade and immigration restrictions. Letter from E. Randolph to G. Wash-
ington (Feb. 12, 1791), in 7 Papers of George Washington: Presidential
Series 330, 334â335 (D. Twohig ed. 1998) (âThe heads of [the commerce]
power with respect to the Indian Tribes are 1. to prohibit the Indians from
coming into, or trading within, the United States. 2. to admit them with
or without restrictions. 3. to prohibit citizens of the United States from
trading with them; or 4. to permit with or without restrictionsâ).
354 HAALAND v. BRACKEEN
Thomas, J., dissenting
570 U. S., at 662.8 Then, as today, âaffairsâ was a broader
term than âcommerce,â with âaffairsâ more generally refer-
ring to things to be done.9 Thus, whatever the precise con-
8
To be sure, as respondents point out, the Constitution removed two
limits on the Indian-affairs power found in the Articles of Confederation:
that the Indians not be âmembers of any of the States,â and that no State's
âlegislative right . . . within its own limits be . . . infringed.â See Brief
for Federal Parties 12â13. But removing those two limits in the Indian
context cannot simultaneously expand the very meaning of âcommerce,â
particularly because the Commerce Clause operates on two objects beyond
Indian tribes. The Constitution's changes in this regard are thus best
understood as narrowing the subject matter of Congress' power while
omitting external constraints on that power.
9
Compare F. Allen, A Complete English Dictionary (1765) (Allen)
(âsomething done,â or âthe concerns and transactions of a nationâ); 1 S.
Johnson, Dictionary of the English Language (6th ed. 1785) (Johnson); N.
Bailey, A Universal Etymological English Dictionary (26th ed. 1789) (Bai-
ley), with Allen (âthe exchange of commodities, or the buying and selling
[of] merchandize both at home and abroad; intercourse of any kindâ); John-
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son (similar); Bailey (similar).
Indeed, when the Founders referred to Indian âaffairs,â they were often
referring to diplomatic relationsâgoing far afeld of their references to
Indian âcommerce.â E. g., G. Washington to Congress (Mar. 26, 1792), in
4 American State Papers 225 (referring to âthe present crisis of affairsâ
with Indians and âmanaging the affairs of the Indian tribesâ in a general
sense, including inviting the Five Nations to the seat of the Federal Gov-
ernment and giving presents to the tribes); Report from H. Knox (Nov. 7,
1792), in id., at 225 (referring to âthe subject of Indian Affairsâ in the
context of measures âto procure a peace with the Indiansâ and troops);
Natelson 217â218 (detailing preconstitutional references to the Depart-
ment of Indian Affairs). As noted above, Congress tasked the War De-
partment with duties ârelative to Indian affairs.â § 1, 1 Stat. 50. And a
Committee of the Continental Congress once remarked that âthe principal
objectsâ of that Congress' power of âmanaging affairs withâ Indians had
encompassed âmaking war and peace, purchasing certain tracts of their
land, fxing the boundaries between them and our people, and preventing
the latter [from] settling on lands left in possession of the former.â 33
Journals of the Continental Congress 458 (1936 ed.). Of course, it may be
that the Constitution's other enumerated powers authorized many of those
âobjects.â But, whatever the precise bounds of an âIndian affairsâ power,
it was decidedly broader than a power over Indian âcommerce.â
Cite as: 599 U. S. 255 (2023) 355
Thomas, J., dissenting
tours of a freestanding âIndian Affairsâ Clause might have
been, the Founders' specifc rejection of such a power shows
that there is no basis to stretch the Commerce Clause beyond
its normal limits.10
3
Third, the âstructural principlesâ that the majority points
to are only the foreign-affairs powers that the Constitution
provides more generally. See Lara, 541 U. S., at 201 (citing
Curtiss-Wright, 299 U. S., at 315â322). As detailed above,
the Constitution plainly confers foreign-affairs powers on the
Federal Government to regulate passports, offenses against
the laws of nations, and citizens' acts abroad that threaten
the Nation's peace. S. Prakash & M. Ramsey, The Execu-
tive Power Over Foreign Affairs, 111 Yale L. J. 231, 298â332
(2001). Those powers were brought to bear on Indian
tribes, with whom the Federal Government maintained a
government-to-government relationship. See, e. g., Cohen
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§ 1.03[1], at 25â26; 1 Stat. 470 (passports on Indian lands);
10
The historical record thus provides scant support for the view, advo-
cated by some scholars, that the term âcommerceâ meant (in the context
of Indians) all interactions with Indians. E. g., G. Ablavsky, Beyond the
Indian Commerce Clause, 124 Yale L. J. 1012, 1028â1032 (2015) (Ablavsky).
The main evidence for that view appears to be (1) a few, fairly isolated
references to âcommerceâ outside the context of trade, usually in the con-
text of sexual encounters, (2) the fact that one defnition of âcommerceâ
was âintercourseâ at the Founding, and (3) the fact that trade with Indians,
at the Founding, had political signifcance. Ibid. But, as noted above,
the Founders repeatedly used the term âcommerceâ when discussing trade
with Indians. And just because that trade had political signifcance surely
does not mean that all things of political signifcance were âcommerce.â
Nor is the defnition of âcommerceâ as âintercourseâ instructive, because
dictionaries from the era also defned âintercourseâ as âcommerce.â E. g.,
Johnson; Allen. Even some of these same scholars concede that the
Founders overwhelmingly discussed âtradeâ with Indiansâfar more than
either âintercourseâ or âcommerceâ with them. See Ablavsky 1028, n. 81.
And, again, when the Founders did discuss âcommerceâ specifcally, they
did so almost entirely in the context of trade. See supra, at 352â353, and
n. 7.
356 HAALAND v. BRACKEEN
Thomas, J., dissenting
id., at 137 (crimes on Indian lands); id., at 383 (enlisting with
foreign states).
But that authority is a foreign, not domestic, affairs power.
It comprehends external relations, like matters of war,
peace, and diplomacyânot internal affairs like adoption pro-
ceedings. The Court made that point explicit in Curtiss-
Wright: The âpower over external affairs [is] in origin and
essential character different from that over internal affairs.â
299 U. S., at 319; see also Youngstown Sheet & Tube Co. v.
Sawyer, 343 U. S. 579, 635, n. 2 (1952) (Jackson, J., concurring
in judgment and opinion of Court) (recognizing this distinc-
tion). For external affairs, the Constitution grants the Fed-
eral Government a wider authority; but for internal affairs,
the Constitution provides fewer, more discrete powers.
See, e. g., Curtiss-Wright, 299 U. S., at 315, 319; Zivotofsky,
576 U. S., at 34â35 (opinion of Thomas, J.).
Again, all those limits dovetail with the historical practices
of the Founding era. As discussed above, the Founding-era
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Government undertook a wide array of measures with re-
spect to Indian tribes. But, apart from measures dealing
with commerce, most (if not all) of the Federal Government's
actions toward Indians either treated them as sovereign
entities or regulated citizens on Indian lands who might
threaten to breach treaties with Indians or otherwise disrupt
the peace.11 For example, early treaties that dealt with
11
The closest possible exception from this era was a provision in the
Trade and Intercourse Act of 1822 (later enacted in the Act of 1834), which
provided that, âin all trials about the right of property, in which Indians
shall be party on one side and white persons on the other, the burden of
proof shall rest upon the white person, in every case in which the Indian
shall make out a presumption of title in himself from the fact of previous
possession and ownership.â § 4, 3 Stat. 683; § 22, 4 Stat. 733. But even
that statute appears to be merely part of the general âdesignâ of the Acts:
to âprotect the rights of Indians to their propertiesâ â[b]ecause of recur-
ring trespass upon and illegal occupancy of Indian territoryâ by frontier
settlers. See Wilson v. Omaha Tribe, 442 U. S. 653, 664 (1979). Viewed
as such, this unremarkable provision only furthered the foreign-affairs and
Cite as: 599 U. S. 255 (2023) 357
Thomas, J., dissenting
questions of peace and war plainly involved some sort of
sovereign-to-sovereign relationship. See, e. g., Treaty with
the Cherokees (1791), 7 Stat. 39. And the early Trade and
Intercourse Acts regulated only the criminal conduct of U. S.
citizens on Indian lands.
This congruenceâbetween the government's actions and
the Constitution's enumerated powersâlikely refects the
fact that those powers, collectively, responded to the most
pressing concerns of the day: that Congress could not enforce
its treaties with Indians, police the frontier, or regulate un-
scrupulous tradersâall of which caused violence and raised
the specter of war with Indian tribes. As noted, when Con-
gress tried to expand its domain in 1817 to regulate the crim-
inal acts of Indians, one Justice of this Court found it to be
a palpable violation of Congress' limited powers. See Bai-
ley, 24 F. Cas., at 938â940. And, all the while, States contin-
ued to regulate matters relating to Indians within their
territorial limits. The normal federalist dynamic thus
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extended to the domain of Indian affairs: The Federal Gov-
ernment was supreme with respect to its enumerated pow-
ers, but States retained all residual police powers within
their territorial borders. See id., at 938â939; McCulloch, 4
Wheat., at 405. And the Federal Government's enumerated
powers were not unlimited, but confned to their plain mean-
ing and limits.
B
So where did the idea of a âplenary powerâ over Indian
affairs come from? As it turns out, little more than ipse
dixit. The story begins with loose dicta from Cherokee Na-
tion v. Georgia, 5 Pet. 1 (1831). In that case, the Cherokee
Nation petitioned this Court for an injunction to prevent
Georgia from enforcing state laws in Cherokee territory and
commerce powers of the Federal Government by preventing non-Indians
from stealing Indian lands, circumventing Congress' trade-licensing
scheme, and disrupting the peace with Indian tribes.
358 HAALAND v. BRACKEEN
Thomas, J., dissenting
from seizing Cherokee lands. Id., at 11. The Tribe as-
serted that Article III both allowed the suit and gave this
Court original jurisdiction because the suit was one by a
âforeign Stat[e]â against the State of Georgia. § 2, cls. 1â2.
Writing for the Court, Chief Justice Marshall admitted that
the Tribe's argument was âimposingâ: The Tribe was âa
state, as a distinct political society,â but it was ânot a state
of the union.â 5 Pet., at 16. Nonetheless, the Court re-
fused to hear the case. As Marshall reasoned, Indian tribes
were not âforeign state[s] in the sense of the constitution,â
as shown in part by the Commerce Clause's delineation of
States, foreign nations, and Indian tribes.12 Ibid. Rather,
Marshall reasoned that the Indian tribes occupied a unique
status, which he characterized as that of âdomestic depend-
ent nationsâ whose ârelation to the United States resembles
that of a ward to his guardian.â Id., at 17.
Other than this opinion, I have been unable to locate any
evidence that the Founders thought of the Federal Govern-
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ment as having a generalized guardianship-type relationship
with the Indian tribesâmuch less one conferring any con-
gressional power over Indian affairs. To the contrary, such
a status seems diffcult to square with the relationship be-
tween the Federal Government and tribes, which at times
involved warfare, not trust. See, e. g., Fletcher & Singel
904â907; F. Hutchins, Tribes and the American Constitution
104 (2000). And, if such a general relationship existed,
there would seem to be little need for the Federal Govern-
ment to have ratifed specifc treaties with tribes calling for
federal protection. E. g., Treaty with the Kaskaskia (1803),
7 Stat. 78; Treaty with the Creeks (1790), id., at 35. At bot-
12
In dissent, Justice Thompson reasoned that the reference to âIndian
tribesâ was meant only to ensure that the Federal Government could regu-
late commerce with tribes, which were often subunits of Indian nations.
Accordingly, he concluded that Indian nations were â `foreign states' â
under Article III. Cherokee Nation, 5 Pet., at 64.
Cite as: 599 U. S. 255 (2023) 359
Thomas, J., dissenting
tom, Cherokee Nation's loose dicta cannot support a broader
power over Indian affairs.
Nevertheless, Cherokee Nation's suggestion was picked up
decades later in United States v. Kagama, 118 U. S. 375
(1886)âthe frst case to actually apply a broader, unenumer-
ated power over Indian affairs. In Kagama, the Court con-
sidered the Major Crimes Act of 1885, which, similar to the
1817 Act held unconstitutional by Justice McLean while ri-
ding circuit, regulated crimes on Indian lands committed by
Indians; the Major Crimes Act differed from the 1817 Act
only in that it extended to crimes committed against other
Indians. See § 9, 23 Stat. 385. Similarly to Justice
McLean's Bailey opinion, the Court frst rejected the idea
that the Commerce Clause could support the Actâreasoning
that âit would be a very strained construction of th[e] clause,
that a system of criminal laws for Indians . . . was authorized
by the grant of power to regulate commerce with the Indian
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tribes.â Kagama, 118 U. S., at 378â379.
But the Court determined that the Major Crimes Act was
constitutional nevertheless. As the Court frst noted, the
Act was âconfned to the acts of an Indian of some tribe,
of a criminal character, committed within the limits of the
reservation.â Id., at 383. The Court then cited several
cases arising from congressional regulations of Indian lands
located within federal territories, noting that Congress had
previously punished offenses committed on such lands. See
id., at 380 (citing United States v. Rogers, 4 How. 567, 572
(1846); Murphy v. Ramsey, 114 U. S. 15, 44 (1885); American
Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828)). Next,
the Court reasoned that the Act âdoes not interfere with the
process of the State courts within the reservation, nor with
the operation of State laws upon white people found there.â
118 U. S., at 383. Instead, the Act's âeffect[s are] confned
to the acts of an Indian of some tribe, of a criminal character,
committed within the limits of the reservation.â Ibid.
360 HAALAND v. BRACKEEN
Thomas, J., dissenting
That sort of language seems to view Indian lands as akin
to quasi-federal lands or perhaps âexternalâ to the Nation's
normal affairs. But nothing the Court cited actually sup-
ported such a view. For example, the fact that the Federal
Government could regulate Indians on federal territories
does not justify such regulations for Indians within a State's
limits. Nor does the fact that tribes were âexternalâ at the
Founding mean that they remained âexternalâ in 1886.13
Nor does the fact that Congress could regulate citizens who
went onto Indian lands, see Rogers, 4 How., at 572, mean that
Congress automatically has the power to regulate Indians on
those lands.
But the Court then subtly shifted its approach. Drawing
on Cherokee Nation, the Court next asserted that âIndian
tribes are the wards of the nation.â Kagama, 118 U. S., at
383 (emphasis in original). Because of âtheir very weakness
and helplessness,â it reasoned, âso largely due to the course
of dealing of the Federal Government with them and the
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treaties in which it has been promised, there arises the duty
of protection, and with it the power.â Id., at 384. This
power âover th[e] remnantsâ of the Indian tribes, the Court
stated, âmust exist in [the federal] government, because it
never has existed anywhere else,â âbecause it has never been
denied, and because it alone can enforce its laws on all the
tribes.â Id., at 384â385.
These pronouncements, however, were pure ipse dixit.
The Court pointed to nothing in the text of the Constitution
or its original understanding to support them. Nor did the
Court give any other real support for those conclusions; in-
stead, it cited three cases, all of which held only that States
were restricted in certain ways from governing Indians on
Indian lands. Id., at 384 (citing Worcester v. Georgia, 6 Pet.
13
As discussed more below, Congress declared in 1871 that âhereafter
no Indian nation or tribe within the territory of the United States shall
be acknowledged or recognized as an independent nation, tribe, or power
with whom the United States may contract by treaty.â 16 Stat. 566.
Cite as: 599 U. S. 255 (2023) 361
Thomas, J., dissenting
515 (1832); Fellows v. Blacksmith, 19 How. 366 (1857) (only
the Federal Government, not private parties, can enforce re-
moval treaties); The Kansas Indians, 5 Wall. 737 (1867)
(States cannot tax Indian lands)). It does not follow from
those cases that the Federal Government has any additional
authority with regard to Indiansâmuch less a sweeping, un-
bounded authority over all matters relating to Indians. Cf.
Worcester, 6 Pet., at 547 (suggesting that tribes had long
been left to regulate their internal affairs). At each step,
Kagama thus lacked any constitutional basis.
Nonetheless, in the years after Kagama, this Court
started referring to a âplenary powerâ or âplenary author-
ityâ that Congress possessed over Indian tribes, as well as a
trust relationship with the Indians. See, e. g., Stephens v.
Cherokee Nation, 174 U. S. 445, 478 (1899); Lone Wolf v.
Hitchcock, 187 U. S. 553, 565 (1903); Winton v. Amos, 255
U. S. 373, 391 (1921). And, in the decades since, this Court
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has increasingly gestured to such a plenary power, usually
in the context of regulating a tribal government or tribal
lands, while conspicuously failing to ground the power in any
constitutional text and cautioning that the power is not abso-
lute. See, e. g., ante, at 275 (noting this problem); United
States v. Alcea Band of Tillamooks, 329 U. S. 40, 54 (1946)
(opinion of Vinson, C. J.); Santa Clara Pueblo v. Martinez,
436 U. S. 49, 56â57 (1978).
The majority's opinion today continues in that veinâonly
confrming its lack of any constitutional basis. Like so many
cases before it, the majority's opinion lurches from one con-
stitutional hook to another, not quite hanging the idea of a
plenary power on any of them, while insisting that the ple-
nary power is not absolute. See ante, at 272â276. While I
empathize with the majority regarding the confusion that
Kagama and its progeny have engendered, I cannot refex-
ively reaffrm a power that remains in search of a constitu-
tional basis. And, while the majority points to a few actual
constitutional provisions, like the Commerce and Treaty
362 HAALAND v. BRACKEEN
Thomas, J., dissenting
Clauses, those provisions cannot bear the weight that our
cases have placed upon them.
At bottom, Kagama simply departed from the text and
original meaning of the Constitution, which confers only the
enumerated powers discussed above. Those powers are not
boundless and did not operate differently with respect to In-
dian tribes at the Founding; instead, they conferred all the
authority that the new Federal Government needed at the
time to deal with Indian tribes. When dealing with Indian
affairs, as with any other affairs, we should always evaluate
whether a law can be justifed by the Constitution's enumer-
ated powers, rather than pointing to amorphous powers with
no textual or historical basis.
IV
Properly understood, the Constitution's enumerated pow-
ers cannot support ICWA. Not one of those powers, as orig-
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inally understood, comes anywhere close to including the
child custody proceedings of U. S. citizens living within the
sole jurisdiction of States. Moreover, ICWA has no consti-
tutional basis even under Kagama and later precedents.
While those cases have extended the Federal Government's
Indian-related powers beyond the original understanding of
the Constitution, this Court has never extended them far
enough to support ICWA. Rather, virtually all of this
Court's modern Indian-law precedentsâupholding laws that
regulate tribal lands, tribal governments, and commerce
with tribesâcan be understood through a core conceptual
framework that at least arguably corresponds to Founding-
era practices. To extend those cases to uphold ICWA thus
would require ignoring the context of those precedents,
treating their loose âplenary powerâ language as talismanic,
and transforming that power into the truly unbounded, abso-
lute power that they disclaim. The basic premise that the
powers of the Federal Government are limited and defned
should counsel against taking that step.
Cite as: 599 U. S. 255 (2023) 363
Thomas, J., dissenting
A
ICWA lacks any foothold in the Constitution's original
meaning. Most obviously, ICWA has no parallel from the
Founding era; it regulates the child custody proceedings of
U. S. citizens in state courtsânot on Indian landsâmerely
because the children involved happen to be Indians. No law
from that time even came close to asserting a general police
power over citizens who happened to be Indiansâby, for ex-
ample, regulating the acts of Indians who were also citizens
and who lived within the sole jurisdiction of States (and not
on Indian lands). If nothing else, the dearth of Founding-
era laws even remotely similar to ICWA should give us
pause.
Nor can ICWA fnd any support in the Constitution's enu-
merated powers as originally understood. I take those pow-
ers in turn: First, the Property Clause cannot support ICWA
because ICWA is not based on the disposition of federal
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property and is not limited to federal lands; in fact, the Fed-
eral Government owns very little Indian land. See Statisti-
cal Record of Native North Americans 1054 (M. Reddy ed.
1993); S. Prakash, Against Tribal Fungibility, 89 Cornell
L. Rev. 1069, 1092â1093 (2004).
Second, the Treaty Clause cannot support ICWA because
no one has identifed a treaty that governs child custody
proceedingsâmuch less a treaty with each of the 574 feder-
ally recognized tribes to which ICWA applies. 25 U. S. C.
§§ 1903(3), (8); 86 Fed. Reg. 7554 (2021). Nor could they;
Congress declared an end to treaty-making with Indian
tribes in 1871, and it appears that well over half of the tribes
lack any treaty with the Federal Government. See 16 Stat.
566; Brief for Tribal Defendants 37â38; see also generally
Vols. 1â2 C. Kappler, Indian Affairs: Laws and Treaties (2d
ed. 1902, 1904). And, in part because one Congress can
never bind a later Congress, the Federal Government retains
the power to abrogate treaties and has done so for at least
some Indian treaties. E. g., Lone Wolf, 187 U. S., at 566; ac-
364 HAALAND v. BRACKEEN
Thomas, J., dissenting
cord, La Abra Silver Mining Co. v. United States, 175 U. S.
423, 460 (1899); 1 W. Blackstone, Commentaries on the Laws
of England 90 (1765) (Blackstone). Whatever number of
treaties remain in force, they cannot justify ICWA.
Third, the Commerce Clause cannot support ICWA. As
originally understood, the Clause confers a power only over
buying and selling, not family law and child custody disputes.
Even under our more modern, expansive precedents, the
Clause is still limited to only âeconomic activityâ and cannot
support the regulation of core domestic matters like family
or criminal laws. See Lopez, 514 U. S., at 560; United States
v. Morrison, 529 U. S. 598, 610â611 (2000); National Federa-
tion of Independent Business v. Sebelius, 567 U. S. 519, 552
(2012) (opinion of Roberts, C. J.); id., at 657 (Scalia, J., dis-
senting).14 And even Kagama itself rejected the Commerce
Clause as a basis for any sort of expansive power over Indian
affairs. 118 U. S., at 378â379. Therefore, nothing about
that Clause supports a law, like ICWA, governing child cus-
Page Proof Pending Publication
tody disputes in state courts.
Fourth, the Federal Government's foreign-affairs powers
cannot support ICWA. For today's purposes, I will assume
that some tribes still enjoy the same sort of pre-existing sov-
ereignty and autonomy as tribes at the Founding, thereby
establishing the sort of quasi-foreign, government-to-
government relationship that appears to have defned those
powers at the Founding. Even so, the foreign-affairs pow-
ers can operate only externally, in the context of lands under
the purview of another sovereign (like Indian tribal lands)
14
Respondents insist that Lopez and Morrison did not hold that family
law is insulated from federal law. But that misses the point. Lopez and
Morrison held that the Commerce Clause cannot regulate a matter like
family law, and they did not consider whether some other constitutional
power might do so. Cf. Hillman v. Maretta, 569 U. S. 483, 490â491, 497
(2013) (fnding pre-emption of a state statute regarding benefciaries and
a change in marital status under a federal statute regulating the life insur-
ance of federal employees). Here, no such independent power is to be
found.
Cite as: 599 U. S. 255 (2023) 365
Thomas, J., dissenting
or in the context of a government-to-government relation-
ship (such as matters of diplomacy or peace). See Curtiss-
Wright, 299 U. S., at 315, 319. But regulating child custody
proceedings of citizens within a State is the paradigmatic
domestic situation; the Federal Government surely could not
apply its foreign-affairs powers to the domestic family-law
or criminal matters of any other citizens merely because they
happened to have citizenship or ancestral connections with
another nation.15 Apart from the single provision that
allows tribal governments jurisdiction over proceedings for
Indians on tribal lands, see § 1911(a), ICWA is completely
untethered from any external aspect of our Nation that could
somehow implicate these powers.
That should be the end of the analysis. Again, as the ma-
jority notes, our Federal Government has only the powers
that the Constitution enumerates. See ante, at 272â273;
McCulloch, 4 Wheat., at 405. Not one of those enumerated
powers justifes ICWA. Therefore, it has no basis whatso-
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ever in our constitutional system.
B
Even taking our âplenary powerâ precedents as given (as
the majority seems to do for purposes of these cases), noth-
ing in those precedents supports ICWA. To be sure, this
15
Indeed, ICWA stands in sharp contrast to statutes regarding interna-
tional adoptions, in accordance with the Hague Convention. Those stat-
utes generally regulate only adoptions by a foreign parent of a child resid-
ing in the United States, or vice versa. E. g., 114 Stat. 825; 42 U. S. C.
§§ 14931, 14932. In other words, there is a cross-border component; the
statutes do not regulate adoption proceedings merely because the child's
parents are, for example, dual Mexican-American citizens or dual Irish-
American citizens. For ICWA to be comparable to those statutes, it could
regulate only the adoption of children who reside on an Indian reservation
by parents who live within the sole jurisdiction of a State, or vice versa.
While I take no position on whether such a more limited law would be
constitutional, that stark difference only underscores ICWA's lack of any
external focus.
366 HAALAND v. BRACKEEN
Thomas, J., dissenting
Court has repeatedly used loose language concerning a âple-
nary powerâ and âtrust relationshipâ with Indians, and that
language has been taken by some to displace the normal con-
stitutional rules. See ante, at 272â277. But, even taken to
their new limits, the Court's precedents have upheld only a
variety of laws that either regulate commerce with Indians
or deal with Indian tribes and their lands. Despite citing a
veritable avalanche of precedents, respondents have failed to
identify a single case where this Court upheld a federal stat-
ute comparable to ICWA.
As noted above, Kagama was careful to note that the
Major Crimes Act at issue was âconfned to the acts of an
Indian of some tribe, of a criminal character, committed
within the limits of the reservation.â 118 U. S., at 383. In
that vein, the opinion cited cases arising from congressional
regulations of Indian lands located within Federal Territo-
ries. See id., at 380 (citing Rogers, 4 How., at 572; citing
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Murphy, 114 U. S., at 44, and 356 Bales of Cotton, 1 Pet.,
at 542). In other words, it is possible that Kagama viewed
Congress as having the power to regulate crimes by Indians
on Indian lands because those lands remained in a sense
âexternalâ to the Nation's normal affairs and akin to quasi-
federal lands.
Again, that would be a non sequitur. Nevertheless, at a
high level, it is possible to see how Kagama was rooted in
the same foreign-affairs and territorial powers that author-
ized much of the early Trade and Intercourse Acts (and
which Congress may have relied upon when passing the 1817
Act). See Cohen § 5.01[4], at 390, and nn. 47, 48 (linking
Kagama with Curtiss-Wright, 299 U. S., at 318); United
States v. Wheeler, 435 U. S. 313, 323 (1978) (describing Indian
tribes as possessing a pre-existing sovereignty, apart from
the United States). And, viewed in that light, it would
make sense to limit Kagama to that conceptual root, treating
regulations of tribal lands and tribal governments as âexter-
nalâ to the normal affairs of the Nation.
Cite as: 599 U. S. 255 (2023) 367
Thomas, J., dissenting
Indeed, such a line explains almost all of the myriad cases
that respondents have cataloged as showing an unqualifed
power over Indian affairs. See, e. g., Michigan v. Bay Mills
Indian Community, 572 U. S. 782, 789 (2014) (tribal govern-
ment's sovereign immunity); Cherokee Nation v. Hitchcock,
187 U. S. 294, 299, 308 (1902) (federal approval of mining
leases on tribal lands); Stephens, 174 U. S., at 476â477 (fed-
eral court in Indian territory). Many, for example, dealt
with federal laws that purported to diminish a tribe's terri-
tory or jurisdiction. South Dakota v. Yankton Sioux Tribe,
522 U. S. 329 (1998); Negonsott v. Samuels, 507 U. S. 99
(1993); Washington v. Confederated Bands and Tribes of
Yakima Nation, 439 U. S. 463 (1979); United States v. Hel-
lard, 322 U. S. 363 (1944). Others dealt with state taxes on
Indian lands. See, e. g., Cotton Petroleum Corp. v. New
Mexico, 490 U. S. 163 (1989); Bryan v. Itasca County, 426
U. S. 373 (1976); Board of County Comm'rs v. Seber, 318 U. S.
Page Proof Pending Publication
705 (1943); Choate v. Trapp, 224 U. S. 665 (1912). Others
still have permitted the Federal Government to diminish a
tribe's self-government. See Santa Clara Pueblo, 436 U. S.,
at 56â57. And yet others, in Kagama's direct lineage, dealt
with crimes on Indian lands. See, e. g., Lara, 541 U. S., at
200; see also, e. g., United States v. Cooley, 593 U. S. 345, 347â
348 (2021); Wheeler, 435 U. S., at 323â324.
In doing so, some of those criminal law cases reasoned that
the Double Jeopardy Clause permits separate punishments
by tribal governments and the Federal Government because
of the tribe's separate sovereignty, underscoring Kagama's
conceptual root. See, e. g., Cooley, 593 U. S., at 347â348;
Lara, 541 U. S., at 200. And, along the way, at least some
of these cases clarifed, like Kagama, that they dealt not with
âIndians who have left or never inhabited reservations set
aside for their exclusive use or who do not possess the usual
accoutrements of tribal self-government,â but only with Indi-
ans residing on Indian lands. McClanahan v. Arizona Tax
Comm'n, 411 U. S. 164, 167â168 (1973); accord, Fisher v. Dis-
368 HAALAND v. BRACKEEN
Thomas, J., dissenting
trict Court of Sixteenth Judicial Dist. of Mont., 424 U. S.
382, 383 (1976) (per curiam) (dealing with âan adoption pro-
ceeding in which all parties are members of the Tribe and
residents of the Northern Cheyenne Indian Reservationâ);
United States v. Algoma Lumber Co., 305 U. S. 415, 417
(1939) (regulations of âcontracts for the sale of timber on
land of the Klamath Indian Reservationâ). In case after
case, the law at issue purported to reach only tribal govern-
ments or tribal lands, no more.
To be sure, applying Kagama's conceptual framework ulti-
mately reveals a catch-22 of sorts: If Congress regulates
tribal governments as a matter of external affairs, then such
regulation seems to undercut the very tribal sovereignty
that serves as the basis for that congressional power. See
Lara, 541 U. S., at 214â215 (Thomas, J., concurring in judg-
ment). But that appears to be a hallmark of Kagama and its
progeny, not a peculiarity. As Chief Justice Marshall once
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stated, Indians are neither wholly foreign nor wholly domes-
tic, but are instead âdomestic dependent nations,â akin to
â `[t]ributary' â states. Worcester, 6 Pet., at 561; Cherokee
Nation, 5 Pet., at 16â17. It may be that this contradiction
is simply baked into our Indian jurisprudence. And, in any
event, recognizing the proper conceptual root for these prec-
edents makes the most sense of them as a textual and origi-
nal matterâand it is surely preferable to continuing along
this meandering and ill-defned path.
Yet, even confning Kagama's conceptual error to its roots,
the majority seems concerned that other precedents suggest
that the Commerce Clause has broader application with re-
spect to Indian affairs. But many of this Court's prece-
dents, even when referring to some broader power, dealt
with laws that governed trade with Indians, no more. See,
e. g., United States v. Holliday, 3 Wall. 407 (1866) (selling
liquor to Indians); Perrin v. United States, 232 U. S. 478
(1914) (same); United States v. Sandoval, 231 U. S. 28 (1913)
(same); Dick v. United States, 208 U. S. 340 (1908) (selling
Cite as: 599 U. S. 255 (2023) 369
Thomas, J., dissenting
liquor on Indian lands). Thus, even if those cases suggest a
broader power, they must be taken in context. And the
cases that the majority cites for its proposition turn out to
be the ones that do so in the most obvious dicta. For exam-
ple, Cotton Petroleum considered state taxes on Indian
lands; it had no need to opine on the Commerce Clause be-
yond explaining that Indian tribes are not States. See 490
U. S., at 192. In a similar vein, Seminole Tribe of Fla. v.
Florida, 517 U. S. 44 (1996), held only that the Commerce
Clause does not confer any authority to abrogate state sover-
eign immunity; any language about the breadth of the âIn-
dian Commerce Clauseâ was wholly unnecessary to that re-
sult. Id., at 62. Shorn of their dicta, all of these precedents
refect only the longstandingâand enumeratedâauthority to
regulate commerce with Indian tribes.
Other precedents cited by the majority that do not ft into
Kagama's conceptual framework are easily explicable as sup-
ported by other, specifc powers of Congress. For example,
Page Proof Pending Publication
Lone Wolf held that Congress can enact laws that violate
treaties with Indians; that holding was justifed by Congress'
general power to abrogate an existing law or treaty. 187
U. S., at 565â566; accord, La Abra Silver Mining Co., 175
U. S., at 460; Blackstone 90. Another treaty-based case,
Delaware Tribal Business Comm. v. Weeks, 430 U. S. 73
(1977), involved the disposition of funds paid pursuant to a
treaty. It therefore makes sense as a matter of both the
Property and Treaty Clauses. And yet another treaty-
based case involved a promise by the United States to estab-
lish a discrete trust fund with $500,000 for a Tribe, with an-
nual interest to be paid to the Tribe. See Seminole Nation
v. United States, 316 U. S. 286, 293â294 (1942). Though that
case spoke of historic trust obligations, it arose from an ex-
plicit promise to create a trust with $500,000.16 There is
16
Still other cases fall somewhere in the middle of these powers, but
they are still easily explicable by normal constitutional rules. For exam-
ple, United States v. Creek Nation, 295 U. S. 103 (1935), held that the
370 HAALAND v. BRACKEEN
Thomas, J., dissenting
little reason to view such cases as expanding Congress'
powers.
Accordingly, the context of all these cases points to lines
that are at least plausibly rooted in Founding-era practices
and the text of the Constitution. See Brown v. Davenport,
596 U. S. 118, 141 (2022) ( judicial opinions must be taken in
context, not read like statutes). Congress can regulate com-
merce with Indian tribes; it may be able to regulate tribal
governments and lands in Kagama's vein; and it can make
treaties, dispose of federal funds, and establish discrete
trusts.17
ICWA does not remotely resemble those practices. It
does not regulate commerce, tribal governments, or tribal
lands. Nor is it based on treaties, federal funds, or any dis-
crete trust. By regulating family-law matters of citizens
living within the sole jurisdiction of States merely because
they happen to be Indians, ICWA stands clearly outside the
framework of our Indian-law precedents. To uphold ICWA
Page Proof Pending Publication
therefore would drastically expand the context in which we
United States had to provide âjust compensationâ for the taking of Indian
landsâwhich seems equally a measure of tribal lands as it does standard
Takings Clause jurisprudence. Id., at 110. And Sunderland v. United
States, 266 U. S. 226 (1924), involved conditions imposed on the purchase
of land by an Indian with funds held in trust by the Federal Government;
the funds had been acquired from the previous sale of Indian lands that
were themselves likely held in trust. Id., at 231â232; see Cohen § 16.04[3],
at 1090â1091. Sunderland thus seems equally a measure of Indian lands
and conditions on spending.
17
Nor should we be unduly tripped up by broad language like âplenaryâ
powers. Prior to our 1995 decision in United States v. Lopez, 514 U. S.
549, the Court for decades had stated that âthe Commerce Clause is a
grant of plenary authorityâ in the realm of interstate commerce. See
Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S.
264, 276 (1981); Maryland v. Wirtz, 392 U. S. 183, 198 (1968); United States
v. Darby, 312 U. S. 100, 115 (1941). Yet we then clarifed that the Com-
merce Clause's application to interstate commerce, rather than being un-
bounded, was limited only to economic activities. See Lopez, 514 U. S., at
560. Again, it is critical to read the Court's precedents in their context.
Cite as: 599 U. S. 255 (2023) 371
Thomas, J., dissenting
have previously upheld Indian-related laws in Kagama's
framework.
But, even if that is so, the majority appears to ask âwhy
Congress's power is limited to these categories.â Ante, at
280, n. 4. The majority nearly answers itself: because our
Constitution is one of enumerated powers, and limiting Con-
gress' authority to those âbucketsâ would bring our jurispru-
dence closer to the powers enumerated by the text and origi-
nal meaning of the Constitution. See ante, at 273, 276â277,
280, n. 4. While I share the majority's frustration with peti-
tioners' limited engagement with the Court's precedents, I
would recognize the contexts of those cases and limit the so-
called plenary power to those contexts. Such limits would
at least start us on the road back to the Constitution's origi-
nal meaning in the area of Indian law.
* * *
Page Proof
The Constitution Pending
confers enumerated Publication
powers on the Fed-
eral Government. Not one of them supports ICWA. Nor
does precedent. To the contrary, this Court has never up-
held a federal statute that regulates the noncommercial ac-
tivities of a U. S. citizen residing on lands under the sole
jurisdiction of States merely because he happens to be an
Indian. But that is exactly what ICWA does: It regulates
child custody proceedings, brought in state courts, for those
who need never have set foot on Indian lands. It is not
about tribal lands or tribal governments, commerce, treaties,
or federal property. It therefore fails equally under the
Court's precedents as it fails under the plain text and origi-
nal meaning of the Constitution.
If there is one saving grace to today's decision, it is that
the majority holds only that Texas has failed to demonstrate
that ICWA is unconstitutional. See ante, at 277â278, 280.
It declines to disturb the Fifth Circuit's conclusion that
ICWA is consistent with Article I, but without deciding that
ICWA is, in fact, consistent with Article I. But, given
372 HAALAND v. BRACKEEN
Alito, J., dissenting
ICWA's patent intrusion into the normal domain of state gov-
ernment and clear departure from the Federal Government's
enumerated powers, I would hold that Congress lacked any
authority to enact ICWA.
I respectfully dissent.
Justice Alito, dissenting.
The frst line in the Court's opinion identifes what is most
important about these cases: they are âabout children who
are among the most vulnerable.â Ante, at 263. But after
that opening nod, the Court loses sight of this overriding
concern and decides one question after another in a way that
disserves the rights and interests of these children and their
parents, as well as our Constitution's division of federal and
state authority.
Decisions about child custody, foster care, and adoption are
core state functions. The paramount concern in these cases
Page Proof Pending Publication
has long been the âbest interestsâ of the children involved.
See, e. g., 3 T. Zeller, Family Law and Practice §§ 32.06, 32.08
(2022); 6 id., § 64.06. But in many cases, provisions of the
Indian Child Welfare Act (ICWA) compel actions that confict
with this fundamental state policy, subordinating what
family-court judgesâand often biological parentsâdeter-
mine to be in the best interest of a child to what Congress
believed is in the best interest of a tribe.
The cases involved in this litigation illustrate the distress-
ing consequences. To its credit, the Court acknowledges
what happened to these children, but its decision does noth-
ing to prevent the repetition of similar events. Take
A. L. M. His adoption by a loving non-Indian couple, with
whom he had lived for over a year and had developed a
strong emotional bond, was initially blocked even though it
was supported by both of his biological parents, his grand-
mother, and the testimony of both his court-appointed guard-
ian and a psychological expert. Because a Tribe objected,
he would have been sent to an Indian couple that he did not
Cite as: 599 U. S. 255 (2023) 373
Alito, J., dissenting
know in another State had the non-Indian couple not sought
and obtained an emergency judicial order.
Baby O.'s story is similar. A non-Indian couple welcomed
Baby O. into their home when she was three days old and
cared for her for more than two years while seeking to adopt
her. The couple ensured that Baby O.'s serious medical
needs were met and maintained regular visits with Baby O.'s
biological mother so that Baby O. could have a continuing
relationship with her biological family. Even though both
biological parents supported the couple's adoption of Baby
O., a Tribe objected and sought to send Baby O. to live in
foster care on a reservation in another State. Only after
the couple joined this lawsuit did the Tribe agree to a settle-
ment that would permit the couple to fnalize the adoption.
After nearly two years moving between foster-care place-
ments, Child P., whose maternal grandmother is a member
of an Indian Tribe, was placed with a non-Indian couple who
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provided her a stable home. After the placement, the Tribe,
which had told the state court years earlier that Child P. was
not eligible for tribal membership, reversed its position with-
out explanation and enrolled her as a member. The Tribe
then objected to the couple's efforts to adopt Child P., even
though her court-appointed guardian believed that the adop-
tion was in Child P.'s best interest. âTo comply with
ICWA,â the state court removed Child P. from the couple's
custody and placed her with her maternal grandmother,
âwho had lost her foster license due to a criminal conviction.â
Ante, at 270 (majority opinion).
Does the Constitution give Congress the authority to
bring about such results? I would hold that it does not.
Whatever authority Congress possesses in the area of Indian
affairs, it does not have the power to sacrifce the best inter-
ests of vulnerable children to promote the interests of tribes
in maintaining membership. Nor does Congress have the
power to force state judges to disserve the best interests of
children or the power to delegate to tribes the authority to
374 HAALAND v. BRACKEEN
Alito, J., dissenting
force those judges to abide by the tribes' priorities regarding
adoption and foster-care placement.
I
The Court makes a valiant effort to bring coherence to
what has been said in past cases about Congress's power
in this area, but its attempt falls short. At the end of a
lengthy discussion, the majority distills only this nugget:
Congress's power over Indian affairs is âplenaryâ but not
âabsolute.â Ante, at 276. The majority in today's cases did
not coin this formulation; it merely repeats what earlier
cases have said. See, e. g., Delaware Tribal Business
Comm. v. Weeks, 430 U. S. 73, 84 (1977) (quoting United
States v. Alcea Band of Tillamooks, 329 U. S. 40, 54 (1946)
(plurality opinion)). But the formulation's pedigree cannot
make up for its vacuity. The term âplenaryâ is defned in
one dictionary after another as âabsolute.â See, e. g., New
Page Proof Pending Publication
Oxford American Dictionary 1343 (3d ed. 2010); Webster's
Third New International Dictionary 1739 (2002); The Ran-
dom House Dictionary of the English Language 1486 (2d ed.
1987). If we accept these defnitions, what the Court says
is that absolute â absolute and plenary â plenary, violating
one of the most basic laws of logic. Surely we can do better
than that.
We need not map the outer bounds of Congress's Indian
affairs authority to hold that the challenged provisions of
ICWA lie outside it. We need only acknowledge that even
so-called plenary powers cannot override foundational con-
stitutional constraints. By attempting to control state judi-
cial proceedings in a feld long-recognized to be the virtually
exclusive province of the States, ICWA violates the funda-
mental structure of our constitutional order.
In reaching this conclusion, I do not question the proposi-
tion that Congress has broad power to regulate Indian af-
fairs. We have âconsistently describedâ Congress's âpowers
Cite as: 599 U. S. 255 (2023) 375
Alito, J., dissenting
to legislate in respect to Indian tribesâ as â `plenary and ex-
clusive.' â United States v. Lara, 541 U. S. 193, 200 (2004)
(collecting cases). Refecting this understanding, we have
sanctioned a wide range of enactments that bear on Indian
tribes and their members, sometimes (regrettably) without
tracing the source of Congress's authority to a particular
enumerated power. See, e. g., Santa Clara Pueblo v. Marti-
nez, 436 U. S. 49, 56â58 (1978) (modifying tribal govern-
ments' powers of self-government); Lone Wolf v. Hitchcock,
187 U. S. 553, 565â566 (1903) (transferring tribal land). Nor
do I dispute the notion that Congress has undertaken re-
sponsibilities that have been roughly analogized to those of
a trustee. In exercising its constitutionally-granted powers,
the Federal Government, âfollowing `a humane and self im-
posed policy,' â has committed itself to â `moral obligations of
the highest responsibility and trust' â to the Indian people.
United States v. Jicarilla Apache Nation, 564 U. S. 162,
176 (2011).1
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Nevertheless, we have repeatedly cautioned that Con-
gress's Indian affairs power is not unbounded. And while
we have articulated few limits, we have acknowledged what
should be one obvious constraint: Congress's authority to
regulate Indian affairs is limited by other âpertinent consti-
tutional restrictionsâ that circumscribe the legislative power.
United States v. Creek Nation, 295 U. S. 103, 109â110 (1935);
see also New York v. United States, 505 U. S. 144, 156 (1992)
(âCongress exercises its conferred powers subject to the lim-
itations contained in the Constitutionâ).
1
The state of affairs on many Indian reservations, however, does not
speak well of the way in which these duties have been discharged by this
putative trustee. See, e. g., U. S. Commission on Civil Rights, Broken
Promises: Continuing Federal Funding Shortfall for Native Americans
102â107, 135â138, 156â157, 165â166 (Dec. 2018) (discussing poor perform-
ance of students in tribal schools, substandard housing and physical infra-
structure on reservations, and high rates of unemployment among Indians
living on reservations).
376 HAALAND v. BRACKEEN
Alito, J., dissenting
For example, in Seminole Tribe of Fla. v. Florida, 517
U. S. 44 (1996), we held that Congress's power under the In-
dian Commerce Clause was limited by âthe background prin-
ciple of state sovereign immunity embodied in the Eleventh
Amendment.â Id., at 72. We rejected the Tribe's argu-
ment that Congress's Indian affairs power could exceed other
constitutional restrictions when ânecessaryâ to â `protect the
tribes' â from state interference. Id., at 60. Foundational
constitutional principles like state sovereign immunity, we
observed, are ânot so ephemeral as to dissipate when the
subject of the suit is [in] an area, like the regulation of Indian
commerce, that is under the exclusive control of the Federal
Government.â Id., at 72. Even when we have sustained
legislation, we have cautioned against congressional over-
reach. See Lara, 541 U. S., at 203â205. We have suggested
that a law may exceed Congress's power to regulate Indian
affairs if it has âan unusual legislative objective,â brings
about âradical changes in tribal status,â or âinterfere[s] with
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the power or authority of any State.â Ibid.
We have rarely had occasion to enforce these limits, in part
because the enactments before us have often fallen comfort-
ably within the historical bounds of Congress's enumerated
powers. See ante, at 365â371 (Thomas, J., dissenting).
But that does not mean that we should shy away from en-
forcement when presented with a statute that exceeds what
the Constitution allows.
II
Congress's power in the area of Indian affairs cannot ex-
ceed the limits imposed by the âsystem of dual sovereignty
between the States and the Federal Governmentâ estab-
lished by the Constitution. Gregory v. Ashcroft, 501 U. S.
452, 457 (1991). âThe powers delegated . . . to the federal
government are few and defned,â while â[t]hose which . . .
remain in the State governments are numerous and indef-
nite.â The Federalist No. 45, p. 292 (C. Rossiter ed. 1961)
(J. Madison). The powers retained by the States constitute
Cite as: 599 U. S. 255 (2023) 377
Alito, J., dissenting
â `a residuary and inviolable sovereignty,' â secure against
federal intrusion. Printz v. United States, 521 U. S. 898, 919
(1997) (quoting The Federalist No. 39, at 245 (J. Madison)).
This structural principle, reinforced in the Tenth Amend-
ment, âconfrms that the power of the Federal Government
is subject to limits that may, in a given instance, reserve
power to the States.â New York, 505 U. S., at 157. The
corollary is also true: in some circumstances, the powers re-
served to the States inform the scope of Congress's power.
Murphy v. National Collegiate Athletic Assn., 584 U. S.
âââ, âââ (2018). This includes in the area of Indian affairs.
Dick v. United States, 208 U. S. 340, 353 (1908) (Congress's
primacy over Indian tribes and States' âfull and complete
jurisdiction over all persons and things within [their] limitsâ
are âfundamental principles . . . of equal dignity, and neither
must be so enforced as to nullify or substantially impair the
otherâ).
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While we have never comprehensively enumerated the
States' reserved powers, we have long recognized that gov-
ernance of family relationsâincluding marriage relation-
ships and child custodyâis among them. It is not merely
that these matters âhave traditionally been governed by
state lawâ or that the responsibility over them âremains pri-
marily with the States,â ante, at 276 (majority opinion), but
that the feld of domestic relations âhas long been regarded
as a virtually exclusive province of the States,â Sosna v.
Iowa, 419 U. S. 393, 404 (1975) (emphasis added). âThe
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.â In re Burrus, 136 U. S.
586, 593â594 (1890). âCases decided by this Court over a
period of more than a century bear witness to this historical
fact.â Sosna, 419 U. S., at 404. See, e. g., United States v.
Windsor, 570 U. S. 744, 766 (2013); McCarty v. McCarty, 453
U. S. 210, 220 (1981); Simms v. Simms, 175 U. S. 162, 167
(1899); Pennoyer v. Neff, 95 U. S. 714, 722, 734â735 (1878).
378 HAALAND v. BRACKEEN
Alito, J., dissenting
This does not mean that federal law may never touch on
family matters. As the majority observes, ante, at 277, we
have held that federal legislation that regulates certain âeco-
nomic aspects of domestic relationsâ can preempt conficting
state law. Ridgway v. Ridgway, 454 U. S. 46, 55â56 (1981)
(providing an order of precedence for benefciaries of a serv-
ice member's life insurance policy); see, e. g., Hillman v.
Maretta, 569 U. S. 483, 485â486 (2013) (allocating federal
death benefts); McCarty, 453 U. S., at 211, 235â236 (allocat-
ing military retirement pay). But we have never held that
Congress under any of its enumerated powers may regulate
the very nature of those relations or dictate their creation,
dissolution, or modifcation. Nor could we and remain faith-
ful to our founding. âNo one denies that the States, at the
time of the adoption of the Constitution, possessed full power
overâ ordinary family relations; and âthe Constitution dele-
gated no authority to the Government of the United Statesâ
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in this area. Haddock v. Haddock, 201 U. S. 562, 575 (1906).
It is a âmost important aspect of our federalismâ that âthe
domestic relations of husband and wifeââand parent and
childâare âmatters reserved to the States and do not belong
to the United States.â Williams v. North Carolina, 325
U. S. 226, 233 (1945) (internal quotation marks and citation
omitted).
As part of that reserved power, state courts have resolved
child custody matters arising among state citizens since the
earliest days of the Nation. See, e. g., Nickols v. Giles, 2
Root 461, 461â462 (Conn. Super. Ct. 1796) (declining to re-
move daughter from mother's care); Wright v. Wright, 2
Mass. 109, 110â111 (1806) (awarding custody of child to
mother following divorce); Commonwealth v. Nutt, 1 Browne
143, 145 (Pa. Ct. Common Pleas 1810) (assigning custody of
child to her sister). Then, as now, state courts' overriding
concern was the best interests of the children. See, e. g.,
Commonwealth v. Addicks, 5 Binn. 520, 521 (Pa. 1813)
(court's âanxiety is principally directedâ to the child's wel-
Cite as: 599 U. S. 255 (2023) 379
Alito, J., dissenting
fare); In re Waldron, 13 Johns. Cas. 418, 421 (N. Y. Sup. Ct.
1816) (court is âprincipally to be directedâ by âthe beneft
and welfareâ of the child). By the mid-19th century, States
had begun enacting statutory adoption schemes, enforceable
through state courts, âto provide for the welfare of depend-
ent children,â starting with Massachusetts in 1851. S.
Presser, The Historical Background of the American Law of
Adoption, 11 J. Fam. L. 443, 453, 465 (1971) (Presser); 1851
Mass. Acts ch. 324. Over the next 25 years, 23 other States
followed suit. Presser 465â466, and nn. 111, 112. As the
cases before us attest, this historic tradition of state over-
sight of child custody and welfare through state judicial pro-
ceedings continues to the present day.
The ICWA provisions challenged here do not simply run
up against this traditional state authority, they run rough-
shod over it when the State seeks to protect one of its young
citizens who also happens to be a member of an Indian tribe
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or who is the biological child of a member and eligible for
tribal membership, herself. 25 U. S. C. § 1903(4). In those
circumstances, ICWA requires a State to abandon the
carefully-considered judicial procedures and standards it has
established to provide for a child's welfare and instead apply
a scheme devised by Congress that focuses not solely on the
best interest of the child, but also on âthe stability and secu-
rity of Indian tribes.â § 1902. That scheme requires States
to invite tribal authorities with no existing relationship to a
child to intervene in judicial custody proceedings, §§ 1911(c),
1912(a), 1914. It requires States to replace their reasoned
standards for termination of parental rights and placement
in foster care with standards that favor the interests of an
Indian custodian over those of the child. §§ 1912(e), (f). It
forces state courts to give Indian couples (even those of dif-
ferent tribes) priority in adoption and foster-care place-
ments, even over a non-Indian couple who would better serve
a child's emotional and other needs. §§ 1915(a), (b). And
it requires state judges to subordinate the State's typical
380 HAALAND v. BRACKEEN
Alito, J., dissenting
custodial considerations to a tribe's alternative preference.
§ 1915(c).
It is worth underscoring that ICWA's directives apply
even when the child is not a member of a tribe and has never
been involved in tribal life, and even when a child's biological
parents object. As seen in the cases before us, the sad con-
sequence is that ICWA's provisions may delay or prevent a
child's adoption by a family ready to provide her a perma-
nent home.
ICWA's mandates do not simply touch on family matters.
They override States' authority to determineâand imple-
ment through their courtsâthe child custody and welfare
policies they deem most appropriate for their citizens. And
in doing so, the mandates harm vulnerable children and their
parents. In my view, the Constitution cannot countenance
this result. The guarantee of dual sovereignty embodied in
the constitutional structure âis not so ephemeral as to dissi-
pateâ simply because Congress invoked a so-called plenary
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power. Seminole Tribe of Fla., 517 U. S., at 72. The chal-
lenged ICWA provisions effectively ânullifyâ a State's au-
thority to conduct state child custody proceedings in accord-
ance with its own preferred family relations policies, a
prerogative that States have exercised for centuries. Dick,
208 U. S., at 353. Congress's Indian affairs power, broad as
it is, does not extend that far.2
2
Because ICWA's provisions comprise a comprehensive child custody
scheme relevant only to state court proceedings, I generally do not believe
they can be severed without engaging in âquintessentially legislative
work.â Ayotte v. Planned Parenthood of Northern New Eng., 546 U. S.
320, 329 (2006). An exception is § 1911(a), which gives Indian tribes exclu-
sive jurisdiction over child custody proceedings involving Indian children
living within a reservation; that section is not implicated by my analysis.
See also Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424
U. S. 382, 383, 388â389 (1976) (per curiam) (recognizing exclusive tribal
court jurisdiction over adoption proceedings, where all parties are mem-
bers of a tribe living on a reservation).
Cite as: 599 U. S. 255 (2023) 381
Alito, J., dissenting
The indicators we previously identifed also signal that
ICWA exceeds Congress's constitutional bounds. See Lara,
541 U. S., at 203â205. First, the law has âan unusual legisla-
tive objective.â Id., at 203. ICWA's attempt to control
local judicial proceedings in a core feld of state concern de-
parts signifcantly from other Indian affairs legislation that
we have sanctionedâlaws that typically regulated actual
commerce, related to tribal lands and governance, or fulflled
treaty obligations. See ante, at 365â371 (Thomas, J., dis-
senting). Second, the law brings about âradical changes in
tribal status,â effectively granting tribes veto power over
state judgments regarding the welfare of resident Indian
children. Lara, 541 U. S., at 205. And third, the law âin-
terfere[s] with the power [and] authority of [every] Stateâ in
the conduct of state judicial proceedings and determination
of child custody arrangements. Ibid. That is, in fact, its
express design. See, e. g., §§ 1911(c), 1912, 1915. These in-
dicators confrm that ICWA surpasses even a generous un-
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derstanding of Congress's Indian affairs authority.
* * *
I am sympathetic to the challenges that tribes face in
maintaining membership and preserving their cultures.
And I do not question the idea that the best interests of
children may in some circumstances take into account a de-
sire to enable children to maintain a connection with the cul-
ture of their ancestors. The Constitution provides Congress
with many means for promoting such interests. But the
Constitution does not permit Congress to displace long-
exercised state authority over child custody proceedings to
advance those interests at the expense of vulnerable children
and their families.
Because I would hold that Congress lacked authority
to enact the challenged ICWA provisions, I respectfully
dissent.
Reporterâs Note
The attached opinion has been revised to refect the usual publication
and citation style of the United States Reports. The revised pagination
makes available the offcial United States Reports citation in advance of
publication. The syllabus has been prepared by the Reporter of Decisions
for the convenience of the reader and constitutes no part of the opinion of
the Court. A list of counsel who argued or fled briefs in this case, and
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who were members of the bar of this Court at the time this case was
argued, has been inserted following the syllabus. Other revisions may
include adjustments to formatting, captions, citation form, and any errant
punctuation. The following additional edits were made:
p. 209, line 13: âcountryâ is replaced with âcountyâ
p. 314, line 12: âMoheganâ is replaced with âMoheaganâ
p. 319, line 2: âUpdikeâ is inserted before âTolerâ
p. 341, line 11: âUpdikeâ is inserted before âTolerâ
p. 371, line 4: âscenariosâ is replaced with âcategoriesâ