Haaland v. Brackeen ( 2023 )

(Slip Opinion) OCTOBER TERM, 2022 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
HAALAND, SECRETARY OF THE INTERIOR, ET AL. v.
BRACKEEN ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 21–376. Argued November 9, 2022—Decided 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 finds “good cause” 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
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 “satisfy the court
that active efforts have been made to provide remedial services and
rehabilitative programs designed to prevent breakup of the Indian
family,” and a court cannot order relief unless the party demonstrates,
by a heightened burden of proof and expert testimony, that the child is
——————
* Together with No. 21–377, Cherokee Nation et al. v. Brackeen et al.,
No. 21–378, Texas v. Haaland, Secretary of the Interior, et al., and No.
21–380, Brackeen et al. v. Haaland, Secretary of the Interior, et al., also
on certiorari to the same court.
2 HAALAND v. BRACKEEN
Syllabus
likely to suffer “serious emotional or physical damage” 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 “a right to intervene at any point in [a] proceeding” 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.
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
records related to child placements, see §1915(e), and transmit to the
Secretary of the Interior all final adoption decrees and other specified
information, see §1951(a).
Petitioners—a birth mother, foster and adoptive parents, and the
State of Texas—filed 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 classifications
that unlawfully hinder non-Indian families from fostering or adopting
Indian children. And they challenged §1915(c)—the provision that al-
lows tribes to alter the prioritization order—on the ground that it vio-
lates the nondelegation doctrine.
The District Court granted petitioners’ motion for summary judg-
ment on their constitutional claims, and the en banc Fifth Circuit af-
firmed in 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 place-
ment preferences satisfy the guarantee of equal protection. The Fifth
Circuit was evenly divided as to whether ICWA’s other preferences—
those prioritizing “other Indian families” and “Indian foster home[s]”
over non-Indian families—unconstitutionally discriminate on the ba-
sis of race, and thus affirmed the District Court’s ruling that these
preferences are unconstitutional. As to petitioners’ Tenth Amendment
arguments, the Fifth Circuit held that §1912(d)’s “active efforts” re-
quirement, §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 chal-
lenged provisions (§1912(a)’s notice requirement, §1915(a) and
§1915(b)’s placement preferences, and §1951(a)’s recordkeeping re-
quirement), the Fifth Circuit affirmed the District Court’s holding that
these requirements violate the Tenth Amendment.
Cite as: 599 U. S. ____ (2023) 3
Syllabus
Held:
1. The Court declines to disturb the Fifth Circuit’s conclusion
that ICWA is consistent with Congress’s Article I authority. Pp. 10–
17.
(a) The Court has characterized Congress’s power to legislate with
respect to the Indian tribes as “plenary and exclusive,” United States
v. 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 “[t]o regulate Commerce . . . with the Indian
Tribes,” 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 “In-
dian affairs,” Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163,
192. The Treaty Clause provides a second source of power. The treaty
power “does not literally authorize Congress to act legislatively,” since
it is housed in Article II, but “treaties made pursuant to that power
can authorize Congress to deal with ‘matters’ with which otherwise
‘Congress could not deal.’ ” Lara, 541 U. S., at 201. Also, principles
inherent in the Constitution’s structure may empower Congress to act
in the field of Indian affairs. See Morton v. Mancari, 417 U. S. 535,
551–552. Finally, the “trust relationship between the United States
and the Indian people” informs the exercise of legislative power.
United States v. Mitchell, 463 U. S. 206, 225–226. In sum, Congress’s
power to legislate 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. 10–14.
(b) Petitioners contend that ICWA impermissibly treads on the
States’ traditional authority over family law. But when Congress val-
idly legislates pursuant to its Article I powers, the Court “has not hes-
itated” to find conflicting state family law preempted, “[n]otwithstand-
ing the limited application of federal law in the field of domestic
relations generally.” 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 curiam). Pp. 14–15.
(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 “commerce with the Indian tribes,
means commerce with the individuals composing those tribes,” United
States v. Holliday, 3 Wall. 407, 417, renders that argument a dead end.
4 HAALAND v. BRACKEEN
Syllabus
Petitioners also assert that ICWA takes the “commerce” out of the In-
dian Commerce Clause because “children are not commodities that can
be traded.” Brief for Individual Petitioners 16. This point, while rhe-
torically powerful, ignores the Court’s precedent interpreting the In-
dian Commerce Clause to encompass not only trade but also other In-
dian affairs. Petitioners next argue that ICWA cannot be authorized
by principles inherent in the Constitution’s structure because those
principles “extend, at most, to matters of war and peace.” Brief for
Petitioner Texas 28. Again, petitioners make no argument that takes
this Court’s cases on their own terms. The Court has referred gener-
ally to the powers “necessarily inherent in any Federal Government”
and has offered non-military examples, such as “creating departments
of Indian affairs.” Lara, 541 U. S., at 201–202. Petitioners next ob-
serve that ICWA does not implement a federal treaty, but Congress
did not purport to enact ICWA pursuant to its treaty power and the
Fifth Circuit did not uphold ICWA on that rationale. Finally, petition-
ers turn to criticizing this Court’s precedent as inconsistent with the
Constitution’s original meaning, but they neither ask the Court to
overrule the precedent they criticize nor try to reconcile their approach
with it. If there are arguments that ICWA exceeds Congress’s author-
ity as precedent stands today, petitioners do not make them here. Pp.
15–17.
2. Petitioners’ anticommandeering challenges, which address three
categories of ICWA provisions, are rejected. Pp. 18–29.
(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
demonstrate “active efforts” 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 chil-
dren, even though it is well established that the Tenth Amendment
bars Congress from “command[ing] the States’ officers, or those of their
political subdivisions, to administer or enforce a federal regulatory
program.” 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 “any party” who ini-
tiates 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 sov-
ereign power. Murphy v. National Collegiate Athletic Assn., 584 U. S.
___, ___–___. Petitioners nonetheless insist that States institute the
vast majority of involuntary proceedings. But examples of private
suits are not hard to find. And while petitioners treat “active efforts”
as synonymous with “government programs,” state courts have applied
Cite as: 599 U. S. ____ (2023) 5
Syllabus
the “active efforts” requirement in private suits too. That is consistent
with ICWA’s findings, which describe the role that both public and pri-
vate 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.
Legislation that applies “evenhandedly” to state and private actors
does not typically implicate the Tenth Amendment. Murphy, 584
U. S., at ___. Petitioners would distinguish the Court’s precedents so
holding on the grounds that those cases addressed laws regulating a
State’s commercial activity, while ICWA regulates a State’s “core sov-
ereign function of protecting the health and safety of children within
its borders.” Brief for Petitioner Texas 66. This argument is presum-
ably directed at situations in which only the State can rescue a child
from neglectful parents. But the State is not necessarily the only op-
tion for rescue, and §1912(d) applies to other types of proceedings too.
Petitioners do not distinguish between these varied situations, much
less isolate a domain in which only the State can act. If there is a core
of involuntary proceedings committed exclusively to the sovereign,
Texas neither identifies its contours nor explains what §1912(d) re-
quires of a State in that context. Petitioners have therefore failed to
show that the “active efforts” requirement commands the States to de-
ploy their executive or legislative power to implement federal Indian
policy. And as for petitioners’ challenges to other provisions of §1912—
the notice requirement, expert witness requirement, and evidentiary
standards—the Court doubts that requirements placed on a State as
litigant implicate the Tenth Amendment. But regardless, these provi-
sions, like §1912(d), apply to both private and state actors, so they too
pose no anticommandeering problem. Pp. 18–23.
(b) Petitioners next challenge ICWA’s placement preferences, set
forth in §1915. Petitioners assert that this provision orders state agen-
cies to perform a “diligent search” for placements that satisfy ICWA’s
hierarchy. Just as Congress cannot compel state officials to search da-
tabases to determine the lawfulness of gun sales, Printz, 521 U. S., at902–904, petitioners argue, Congress cannot compel state officials to
search for a federally preferred placement. As with §1912, petitioners
have not shown that the “diligent search” 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 place-
ment. Adoptive Couple v. Baby Girl, 570 U. S. 637, 654. So, as it
stands, petitioners assert an anticommandeering challenge to a provi-
sion that does not command state agencies to do anything.
State courts are a different matter. ICWA indisputably requires
6 HAALAND v. BRACKEEN
Syllabus
them to apply the placement preferences in making custody determi-
nations. §§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, 178–179. Petitioners draw a distinc-
tion between requiring state courts to entertain federal causes of ac-
tion and requiring them to apply federal law to state causes of action,
but this argument runs counter to the Supremacy Clause. When Con-
gress enacts a valid statute, “state law is naturally preempted to the
extent of any conflict with a federal statute.” Crosby v. National For-
eign Trade Council, 530 U. S. 363, 372. That a federal law modifies a
state law cause of action does not limit its preemptive effect. See, e.g.,
Hillman v. Maretta, 569 U. S. 483, 493–494 (federal law establishing
order of precedence for life insurance beneficiaries preempted state
law). Pp. 23–25.
(c) Finally, petitioners insist that Congress cannot force state
courts to maintain or transmit records of custody proceedings involv-
ing Indian children. But the anticommandeering doctrine applies “dis-
tinctively” to a state court’s adjudicative responsibilities. Printz, 521
U. S., at 907. The Constitution allows Congress to require “state
judges to enforce federal prescriptions, insofar as those prescriptions
relat[e] to matters appropriate for the judicial power.” Ibid. (emphasis
deleted). In Printz, the Court indicated that this principle may extend
to tasks that are “ancillary” to a “quintessentially adjudicative task”—
such as “recording, registering, and certifying” documents. Id., at 908,
n. 2. Printz described numerous historical examples of Congress im-
posing recordkeeping and reporting requirements on state courts.
These early congressional enactments demonstrate that the Constitu-
tion does not prohibit the Federal Government from imposing adjudi-
cative tasks on state courts. Bowsher v. Synar, 478 U. S. 714, 723. The
Court now confirms what Printz suggested: Congress may impose an-
cillary recordkeeping requirements related to state-court proceedings
without violating the Tenth Amendment. Here, ICWA’s recordkeeping
requirements are comparable to the historical examples. The duties
ICWA imposes are “ancillary” to the state court’s obligation to conduct
child custody proceedings in compliance with ICWA. Printz, 521 U. S.,
at 908, n. 2. Pp. 25–29.
3. The Court does not reach the merits of petitioners’ two additional
claims—an equal protection challenge to ICWA’s placement prefer-
ences and a nondelegation challenge to §1915(c), the provision allow-
ing tribes to alter the placement preferences—because no party before
the Court has standing to raise them. Pp. 29–34.
(a) The individual petitioners argue that ICWA’s hierarchy of
preferences injures them by placing them on unequal footing with In-
Cite as: 599 U. S. ____ (2023) 7
Syllabus
dian parents who seek to adopt or foster an Indian child. But the in-
dividual petitioners have not shown that this injury is “likely” to be
“redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U. S.
___, ___. They seek an injunction preventing the federal parties from
enforcing ICWA and a declaratory judgment that the challenged pro-
visions are unconstitutional. Yet enjoining the federal parties would
not remedy the alleged injury, because state courts apply the place-
ment preferences, and state agencies carry out the court-ordered place-
ments. §§1903(1), 1915(a), (b). The state officials who implement
ICWA are “not parties to the suit, and there is no reason they should
be obliged to honor an incidental legal determination the suit pro-
duced.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 569 (plurality
opinion). Petitioners’ request for a declaratory judgment suffers from
the same flaw. 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 satisfied whenever a decision might persuade actors who are
not before the court—contrary to Article III’s strict prohibition on “is-
suing advisory opinions.” Carney v. Adams, 592 U. S. ___, ___. 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. 29–32.
(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
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 “break its promise to its citizens that it will be colorblind in child-
custody proceedings,” Reply Brief for Texas 15, is not the kind of “con-
crete” and “particularized” “invasion of a legally protected interest”
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
producing expert testimony before moving a child to foster care or ter-
minating parental rights. But these alleged costs are not “fairly trace-
able” to the placement preferences, which “operate independently” of
the provisions Texas identifies. California v. Texas, 593 U. S. ___, ___.
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
8 HAALAND v. BRACKEEN
Syllabus
equal protection or its nondelegation claims. And although the indi-
vidual 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. 32–34.
994 F. 3d 249, affirmed 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., filed a concurring opinion, in which SOTOMAYOR and
JACKSON, JJ., joined as to Parts I and III. KAVANAUGH, J., filed a concur-
ring opinion. THOMAS, J., and ALITO, J., filed dissenting opinions.
Cite as: 599 U. S. ____ (2023) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
United States Reports. Readers 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.
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 21–376, 21–377, 21–378 and 21–380
_________________
DEB HAALAND, SECRETARY OF THE INTERIOR,
ET AL., PETITIONERS
21–376 v.
CHAD EVERET BRACKEEN, ET AL.
CHEROKEE NATION, ET AL., PETITIONERS
21–377 v.
CHAD EVERET BRACKEEN, ET AL.
TEXAS, PETITIONER
21–378 v.
DEB HAALAND, SECRETARY OF THE
INTERIOR, ET AL.
CHAD EVERET BRACKEEN, ET AL., PETITIONERS
21–380 v.
DEB HAALAND, SECRETARY OF THE
INTERIOR, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 15, 2023]
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
course, state courts apply state law when placing children
2 HAALAND v. BRACKEEN
Opinion of the Court
in foster or adoptive homes. But when the child is an In-
dian, a federal statute—the Indian Child Welfare Act—gov-
erns. 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 consti-
tutional grounds. They argue that it exceeds federal au-
thority, infringes state sovereignty, and discriminates on
the basis of race. The United States, joined by several In-
dian Tribes, defends the law. The issues are complicated—
so for the details, read on. But the bottom line is that we
reject all of petitioners’ challenges to the statute, some on
the merits and others for lack of standing.
I
A
In 1978, Congress enacted the Indian Child Welfare Act
(ICWA) out of concern that “an 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.” 92 Stat. 3069, 25 U. S. C. §1901(4).
Congress found that many of these children were being
“placed in non-Indian foster and adoptive homes and insti-
tutions,” and that the States had contributed to the problem
by “fail[ing] to recognize the essential tribal relations of In-
dian people and the cultural and social standards prevail-
ing in Indian communities and families.” §§1901(4), (5).
This harmed not only Indian parents and children, but also
Indian tribes. As Congress put it, “there is no resource that
is more vital to the continued existence and integrity of In-
dian tribes than their children.” §1901(3). Testifying be-
fore Congress, the Tribal Chief of the Mississippi Band of
Choctaw Indians was blunter: “Culturally, the chances of
Cite as: 599 U. S. ____ (2023) 3
Opinion of the Court
Indian survival are significantly 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.” Hearings on S. 1214 before the
Subcommittee 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. “Indian child” is defined broadly to include
not only a child who is “a member of an Indian tribe,” but
also one who is “eligible for membership in an Indian tribe
and is the biological child of a member of an Indian tribe.”
§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
proceedings. §1911(a). For other Indian children, state and
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 finish. That is true
regardless of whether the proceeding is “involuntary” (one
to which the parents do not consent) or “voluntary” (one to
which they do).
Involuntary proceedings are subject to especially strin-
gent safeguards. See 25 CFR §23.104 (2022); 81 Fed. Reg.
38832–38836 (2016). Any party who initiates an “involun-
tary proceeding” in state court to place an Indian child in
foster care or terminate parental rights must “notify the
parent or Indian custodian and the Indian child’s tribe.”
§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 “examine
all reports or other documents filed with the court”; and, for
indigent parents or custodians, the right to court-appointed
counsel. §§1912(a), (b), (c). The party attempting to termi-
4 HAALAND v. BRACKEEN
Opinion of the Court
nate parental rights or remove an Indian child from an un-
safe environment must first “satisfy the court that active
efforts have been made to provide remedial services and re-
habilitative programs designed to prevent the breakup of
the Indian family and that these efforts have proved unsuc-
cessful.” §1912(d). Even then, the court cannot order a fos-
ter care placement unless it finds “by clear and convincing
evidence, including testimony of qualified expert witnesses,
that the continued custody of the child by the parent or In-
dian custodian is likely to result in serious emotional or
physical damage to the child.” §1912(e). To terminate pa-
rental rights, the court must make the same finding “be-
yond a reasonable doubt.” §1912(f ).
The Act applies to voluntary proceedings too. Relinquish-
ing 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
“the terms and consequences.” §1913(a). Notably, a biolog-
ical parent who voluntarily gives up an Indian child cannot
necessarily choose the child’s foster or adoptive parents.
The child’s tribe has “a right to intervene at any point in [a]
proceeding” 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. Holyfield, 490 U. S. 30, 49–52
(1989).
ICWA’s placement preferences, which apply to all cus-
tody proceedings involving Indian children, are hierar-
chical: State courts may only place the child with someone
in a lower-ranked group when there is no available place-
ment in a higher-ranked group. For adoption, “a preference
shall be given” to placements with “(1) a member of the
child’s extended family; (2) other members of the Indian
Cite as: 599 U. S. ____ (2023) 5
Opinion of the Court
child’s tribe; or (3) other Indian families.” §1915(a). For
foster care, a preference is given to (1) “the Indian child’s
extended family”; (2) “a foster home licensed, approved, or
specified by the Indian child’s tribe”; (3) “an Indian foster
home licensed or approved by an authorized non-Indian li-
censing authority”; and then (4) another institution “ap-
proved by an Indian tribe or operated by an Indian organi-
zation which has a program suitable to meet the Indian
child’s needs.” §1915(b). For purposes of the placement
preferences, an “Indian” is “any person who is a member of
an Indian tribe,” and an “Indian organization” is “any group
. . . owned or controlled by Indians.” §§1903(3), (7). To-
gether, these definitions mean that Indians from any tribe
(not just the tribe to which the child has a tie) outrank un-
related 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 preferences absent
“good cause” to depart from them. §§1915(a), (b).
The child’s tribe may pass a resolution altering the prior-
itization order. §1915(c). If it does, “the 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.” Ibid. So long as the “least
restrictive setting” condition is met, the preferences of the
Indian child or her parent cannot trump those set by stat-
ute or tribal resolution. But, “[w]here appropriate, the pref-
erence of the Indian child or parent shall be considered” in
making a placement. Ibid.
The State must record each placement, including a de-
scription of the efforts made to comply with ICWA’s order
of preferences. §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 final
adoption decrees and specified information about adoption
proceedings to the Secretary. §1951(a).
6 HAALAND v. BRACKEEN
Opinion of the Court
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 biolog-
ical mother is a member of the Navajo Nation and his bio-
logical father is a member of the Cherokee Nation, he falls
within ICWA’s definition of an “Indian child.” 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 adop-
tion. The Navajo and Cherokee Nations did not. Pursuant
to an agreement between the Tribes, the Navajo Nation
designated A. L. M. as a member and informed the state
court that it had located a potential alternative placement
with nonrelative tribal members living in New Mexico.
ICWA’s placement 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 “good cause” to deviate from ICWA’s prefer-
ences. They presented favorable testimony from A. L. M.’s
court-appointed guardian and from a psychological expert
who described the strong emotional bond between A. L. M.
and his foster parents. A. L. M.’s biological parents and
grandmother also testified, urging the court to allow
A. L. M. to remain with the Brackeens, “ ‘the only parents
[A. L. M.] knows.’ ” 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 Mexico. In response, the Brackeens obtained an emer-
Cite as: 599 U. S. ____ (2023) 7
Opinion of the Court
gency stay of the transfer and filed this lawsuit. The Nav-
ajo family then withdrew from consideration, and the
Brackeens finalized 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, vis-
ited Baby O. frequently. Baby O.’s biological father visited
only once but supported the adoption.
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 ar-
gued, 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 po-
tential placements on the reservation for Baby O., and state
officials began to investigate them. After Hernandez and
the Librettis joined this lawsuit, however, the Tribe with-
drew its challenge to the adoption, and the Librettis final-
ized 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-
tered Child P., whose maternal grandmother belongs to the
White Earth Band of Ojibwe Tribe. When Child P. entered
8 HAALAND v. BRACKEEN
Opinion of the Court
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 confirming 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 membership.
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 Cliffords contin-
ued to pursue the adoption, but, citing ICWA, the court de-
nied their motion. Like the other families, the Cliffords in-
tend to foster or adopt Indian children in the future.
C
The Brackeens, the Librettis, Hernandez, and the
Cliffords (whom we will refer to collectively as the “individ-
ual petitioners”) filed this suit in federal court against the
United States, the Department of the Interior and its Sec-
retary, the Bureau of Indian Affairs (BIA) and its Director,
and the Department of Health and Human Services and its
Secretary (whom we will refer to collectively as the “federal
parties”). The individual petitioners were joined by the
States of Texas, Indiana, and Louisiana—although only
Texas continues to challenge ICWA before this Court. Sev-
eral Indian Tribes intervened to defend the law alongside
the federal parties.
Petitioners challenged ICWA as unconstitutional on mul-
tiple grounds. They asserted that Congress lacks authority
to enact ICWA and that several of ICWA’s requirements vi-
olate the anticommandeering principle of the Tenth
Amendment. They argued that ICWA employs racial clas-
sifications that unlawfully hinder non-Indian families from
Cite as: 599 U. S. ____ (2023) 9
Opinion of the Court
fostering or adopting Indian children. And they challenged
§1915(c)—the provision that allows tribes to alter the pri-
oritization order—on 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 affirmed 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,
and that some of ICWA’s placement preferences satisfy the
guarantee of equal protection. Id., at 267–269. The court
was evenly divided as to whether ICWA’s other prefer-
ences—those prioritizing “other Indian families” and “In-
dian foster home[s]” over non-Indian families—unconstitu-
tionally discriminate on the basis of race. Id., at 268. The
Fifth Circuit therefore affirmed the District Court’s ruling
that these preferences are unconstitutional.
Petitioners’ Tenth Amendment arguments effectively
succeeded across the board. The Fifth Circuit held that
§1912(d)’s “active efforts” requirement, §1912(e)’s and
§1912(f )’s expert witness requirements, and §1915(e)’s
recordkeeping requirement unconstitutionally comman-
deer 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 affirmed the District Court’s hold-
——————
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.
10 HAALAND v. BRACKEEN
Opinion of the Court
ing that these requirements, too, violate the Tenth Amend-
ment.
We granted certiorari.2 595 U. S. ____ (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 “ ‘plenary and exclusive.’ ”
United States v. Lara, 541 U. S. 193, 200 (2004); South Da-
kota v. Yankton Sioux Tribe, 522 U. S. 329, 343 (1998)
(“Congress possesses plenary power over Indian affairs”);
Washington v. Confederated Bands and Tribes of Yakima
Nation, 439 U. S. 463, 470 (1979) (Congress exercises “ple-
nary and exclusive power over Indian affairs”); Winton v.
Amos, 255 U. S. 373, 391 (1921) (“It is thoroughly estab-
lished that Congress has plenary authority over the Indians
and all their tribal relations”); Lone Wolf v. Hitchcock, 187
U. S. 553, 565 (1903) (“Congress possesse[s] a paramount
power over the property of the Indians”); Stephens v. Cher-
okee Nation, 174 U. S. 445, 478 (1899) (“Congress possesses
plenary power of legislation in regard to” the Indian tribes).
Our cases leave little doubt that Congress’s power in this
field is muscular, superseding both tribal and state author-
ity. Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978)
(“Congress has plenary authority to limit, modify or elimi-
nate the powers of local self-government which the tribes
otherwise possess”); Dick v. United States, 208 U. S. 340,
353 (1908) (“Congress has power to regulate commerce with
——————
2 Hernandez and the families, the State of Texas, the federal parties,
and the Tribes all filed cross-petitions for certiorari. After the cases were
consolidated, Hernandez, the families, and Texas proceeded as petition-
ers before this Court, and the federal parties and the Tribes proceeded
as respondents.
Cite as: 599 U. S. ____ (2023) 11
Opinion of the Court
the Indian tribes, and such power is superior and para-
mount to the authority of any State within whose limits are
Indian tribes”).
To be clear, however, “plenary” does not mean “free-float-
ing.” A power unmoored from the Constitution would lack
both justification and limits. So like the rest of its legisla-
tive 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 “[t]o
regulate Commerce . . . with the Indian Tribes.” Art. I, §8,
cl. 3. We have interpreted the Indian Commerce Clause to
reach not only trade, but certain “Indian affairs” too. Cot-
ton Petroleum Corp. v. New Mexico, 490 U. S. 163, 192
(1989). Notably, we have declined to treat the Indian Com-
merce Clause as interchangeable with the Interstate Com-
merce Clause. Ibid. While under the Interstate Commerce
Clause, States retain “some authority” over trade, we have
explained that “virtually all authority over Indian com-
merce and Indian tribes” lies with the Federal Government.
Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 62 (1996).
The Treaty Clause—which provides that the President
“shall have Power, by and with the Advice and Consent of
the Senate, to make Treaties”—provides 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 “does
not literally authorize Congress to act legislatively,” since
it is housed in Article II rather than Article I. Ibid. Never-
theless, we have asserted that “treaties made pursuant to
that power can authorize Congress to deal with ‘matters’
with which otherwise ‘Congress could not deal.’ ” 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 “to legislate on
12 HAALAND v. BRACKEEN
Opinion of the Court
problems of Indians” pursuant to pre-existing treaties. An-
toine v. Washington, 420 U. S. 194, 203 (1975) (emphasis
deleted).
We have also noted that principles inherent in the Con-
stitution’s structure empower Congress to act in the field of
Indian affairs. See Morton v. Mancari, 417 U. S. 535, 551–
552 (1974) (“The plenary power of Congress to deal with the
special problems of Indians is drawn both explicitly and im-
plicitly from the Constitution itself ”). At the founding, “ ‘In-
dian affairs were more an aspect of military and foreign pol-
icy than a subject of domestic or municipal law.’ ” Lara, 541
U. S., at 201. With this in mind, we have posited that Con-
gress’s legislative authority might rest in part on “the 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.’ ” Ibid. (quoting United States v. Curtiss-Wright
Export Corp., 299 U. S. 304, 315–322 (1936)).
Finally, the “trust relationship between the United
States and the Indian people” informs the exercise of legis-
lative power. United States v. Mitchell, 463 U. S. 206, 225–
226 (1983). As we have explained, the Federal Government
has “ ‘charged itself with moral obligations of the highest
responsibility and trust’ ” 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)
(“[T]his Court has recognized the distinctive obligation of
trust incumbent upon the Government in its dealings with
these dependent and sometimes exploited people”). The
contours of this “special relationship” are undefined.
Mancari, 417 U. S., at 552.
In sum, Congress’s power to legislate with respect to In-
dians 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, domes-
tic violence, employment, property, tax, and trade. See, e.g.,
Cite as: 599 U. S. ____ (2023) 13
Opinion of the Court
Lara, 541 U. S., at 210 (law allowing tribes to prosecute
nonmember Indians who committed crimes on tribal land);
United States v. Bryant, 579 U. S. 140, 142–143 (2016) (law
criminalizing domestic violence in Indian country);
Mancari, 417 U. S., at 537 (policy granting Indians employ-
ment preferences); United States v. Antelope, 430 U. S. 641,
648 (1977) (law establishing a criminal code for Indian
country); Yankton Sioux Tribe, 522 U. S., at 343 (law alter-
ing the boundaries of a reservation); Sunderland v. United
States, 266 U. S. 226, 231–232 (1924) (agency action remov-
ing the restrictions 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 Con-
gress’s power to regulate Indian affairs. See, e.g., Seminole
Tribe, 517 U. S., at 72–73.
Admittedly, our precedent is unwieldy, because it rarely
ties a challenged statute to a specific source of constitu-
tional authority. That makes it difficult to categorize cases
and even harder to discern the limits on Congress’s power.
Still, we have never wavered in our insistence that Con-
gress’s Indian affairs power “ ‘is not absolute.’ ” 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) (“The power of Congress over Indian affairs may be
of a plenary nature; but it is not absolute”); United States v.
Creek Nation, 295 U. S. 103, 110 (1935) (plenary power is
“subject to limitations inhering in such a guardianship and
to pertinent constitutional restrictions”). It could not be
otherwise—Article 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 Indi-
ans is not unbounded. It is plenary within its sphere, but
14 HAALAND v. BRACKEEN
Opinion of the Court
even a sizeable sphere has borders.3
B
Petitioners contend that ICWA exceeds 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 do-
mestic relations, In re Burrus, 136 U. S. 586, 593–594
(1890), and, as a result, responsibility for regulating mar-
riage 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. 415, 435 (1979). But the Constitution does
not erect a firewall around family law. On the contrary,
when Congress validly legislates pursuant to its Article I
powers, we “ha[ve] not hesitated” to find conflicting state
family law preempted, “[n]otwithstanding the limited ap-
plication of federal law in the field of domestic relations
generally.” Ridgway v. Ridgway, 454 U. S. 46, 54 (1981)
(federal law providing life insurance preempted state
family-property law); see also Hillman v. Maretta, 569 U. S.
483, 491 (2013) (“state laws ‘governing the economic aspects
of domestic relations . . . must give way to clearly conflicting
federal enactments’ ” (alteration in original)). In fact, we
have specifically recognized Congress’s power to displace
——————
3 JUSTICE ALITO’s dissent criticizes the Court for “violating one of the
most basic laws of logic” with our conclusion that “Congress’s power over
Indian affairs is ‘plenary’ but not ‘absolute.’ ” Post, at 3–4. Yet the dis-
sent goes on to make that very same observation. Post, at 4 (“[E]ven so-
called plenary powers cannot override foundational constitutional con-
straints”).
Cite as: 599 U. S. ____ (2023) 15
Opinion of the Court
the jurisdiction of state courts in adoption proceedings in-
volving Indian children. Fisher v. District Court of Six-
teenth 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)
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, “they might exercise it, although it should interfere
with the laws, or even the Constitution of the States.” 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 In-
dian 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 Constitution does not authorize Congress to regu-
late custody proceedings for Indian children. Their argu-
ments fail to grapple with our precedent, and because they
bear the burden 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 47–50. But we held more than a
century ago that “commerce with the Indian tribes, means
commerce with the individuals composing those tribes.”
United States v. Holliday, 3 Wall. 407, 416–417 (1866) (law
prohibiting the sale of alcohol to Indians in Indian country);
United States v. Nice, 241 U. S. 591, 600 (1916) (same). So
16 HAALAND v. BRACKEEN
Opinion of the Court
that argument is a dead end.
Petitioners also assert that ICWA takes the “commerce”
out of the Indian Commerce Clause. Their consistent re-
frain is that “children are not commodities that can be
traded.” Brief for Individual Petitioners 16; Brief for Peti-
tioner Texas 23 (“[C]hildren are not commodities”); id., at
18 (“Children are not articles of commerce”). Rhetorically,
it is a powerful point—of course children are not commercial
products. Legally, though, it is beside the point. As we al-
ready explained, our precedent states that Congress’s
power under the Indian Commerce Clause encompasses not
only trade but also “Indian affairs.” 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
“[l]ongstanding patterns of federal legislation.” 994 F. 3d,
at 374–375 (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 “extend, at most, to matters of war
and peace.” Brief for Petitioner Texas 28. But that is not
what our cases say. We have referred generally to the pow-
ers “necessarily inherent in any Federal Government,” and
we have offered examples like “creating departments of In-
dian affairs, appointing Indian commissioners, and . . . ‘se-
curing and preserving the friendship of the Indian Na-
tions’ ”—none of which are military actions. Lara, 541
U. S., at 201–202. Once again, petitioners make no argu-
ment that takes our cases on their own terms.
Finally, petitioners observe that ICWA does not imple-
ment a federal treaty. Brief for Petitioner Texas 24–27;
Brief for Individual Petitioners 56–58. This does not get
them very far either, since Congress did not purport to en-
act ICWA pursuant to the Treaty Clause power and the
Cite as: 599 U. S. ____ (2023) 17
Opinion of the Court
Fifth Circuit did not uphold ICWA on that rationale.
Presumably recognizing these obstacles, petitioners turn
to criticizing our precedent as inconsistent with the Consti-
tution’s original meaning. Yet here too, they offer no ac-
count of how their argument fits within the landscape of our
case law. For instance, they neither ask us to overrule the
precedent they criticize nor try to reconcile their approach
with it. They are also silent about the potential conse-
quences 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 diffi-
cult spot. We have often sustained Indian legislation with-
out specifying the source of Congress’s power, and we have
insisted that Congress’s power has limits without saying
what they are. Yet petitioners’ strategy for dealing with the
confusion is not to offer a theory for rationalizing this body
of law—that would at least give us something to work with.4
Instead, they frame their arguments as if the slate were
clean. More than two centuries in, it is anything 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.
——————
4 Texas floated a theory for the first 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 al-
lowing Congress to regulate the tribes as government entities; and (3)
those allowing Congress to enact legislation that applies to federal or
tribal land. Tr. of Oral Arg. 55. According to Texas, ICWA is unconsti-
tutional 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 de-
scriptively accurate, Texas offers no explanation for why Congress’s
power is limited to these categories.
18 HAALAND v. BRACKEEN
Opinion of the Court
III
We now turn to petitioners’ host of anticommandeering
arguments, which we will break into three categories.
First, petitioners challenge certain requirements that apply
in involuntary proceedings to place a child in foster care or
terminate parental rights: the requirements that an initi-
ating party demonstrate “active efforts” 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 to suffer “serious emotional or physical dam-
age” if the parent or Indian custodian retains custody. Sec-
ond, petitioners challenge ICWA’s placement preferences.
They claim that Congress can neither force state agencies
to find preferred placements for Indian children nor require
state courts to apply federal standards when making cus-
tody determinations. Third, they insist that Congress can-
not force state courts to maintain or transmit to the Federal
Government records of custody proceedings involving In-
dian children.5
A
As a reminder, “involuntary proceedings” 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
“active efforts” provision is their primary target. That pro-
vision requires “[a]ny party” seeking to effect an involun-
tary foster care placement or termination of parental rights
to “satisfy the court that active efforts have been made to
provide remedial services and rehabilitative programs de-
signed to prevent the breakup of the Indian family and that
——————
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. ____ (2023) 19
Opinion of the Court
these efforts have proved unsuccessful.” §1912(d). Accord-
ing to petitioners, this subsection directs state and local
agencies to provide extensive services to the parents of In-
dian children. It is well established that the Tenth Amend-
ment bars Congress from “command[ing] the States’ offic-
ers, or those of their political subdivisions, to administer or
enforce a federal regulatory program.” Printz v. United
States, 521 U. S. 898, 935 (1997). The “active efforts” pro-
vision, petitioners say, does just that.
Petitioners’ argument has a fundamental flaw: To suc-
ceed, they must show that §1912(d) harnesses a State’s leg-
islative or executive authority. But the provision applies to
“any party” who initiates an involuntary proceeding, thus
sweeping in private individuals and agencies as well as gov-
ernment 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. ___, ___–___ (2018) (slip op., at 19–20).
Notwithstanding the term “any party,” petitioners insist
that §1912(d) is “best read” as a command to the States. See
id., at ___ (slip op., at 21) (whether a federal law directly
regulates the States depends on how it is “best read”). They
contend that, as a practical matter, States—not private par-
ties—initiate the vast majority of involuntary proceedings.
Despite the breadth of the language, the argument goes,
States are obviously the “parties” to whom the statute re-
fers.
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 find, so
we are skeptical that their number is negligible. See, e.g.,
Adoptive Couple v. Baby Girl, 570 U. S. 637, 644–646
(2013) (prospective adoptive parents); In re Guardianship
of Eliza W., 304 Neb. 995, 997, 938 N. W. 2d 307, 310 (2020)
(grandmother); In re Guardianship of J. C. D., 2004 S. D.
96, ¶4, 686 N. W. 2d 647, 648 (2004) (grandparents); In re
20 HAALAND v. BRACKEEN
Opinion of the Court
Adoption of T. A. W., 186 Wash. 2d 828, 835–837, 850–851,
383 P. 3d 492, 494–495, 501–502 (2016) (en banc) (mother
and stepfather); J. W. v. R. J., 951 P. 2d 1206, 1212–1213
(Alaska 1998) (same). Indeed, Texas’s own family code per-
mits certain private parties to initiate suits for the termi-
nation of parental rights. Tex. Fam. Code Ann. §102.003(a)
(West Cum. Supp. 2022); see Reply Brief for Texas 27. And
while petitioners treat “active efforts” as synonymous with
“government programs,” state courts have applied the “ac-
tive efforts” requirement in private suits too. See, e.g., In
re Adoption of T. A. W., 186 Wash. 2d, at 851–852, 383
P. 3d, at 502–503; S. S. v. Stephanie H., 241 Ariz. 419, 424,
388 P. 3d 569, 574 (App. 2017); In re N. B., 199 P. 3d 16,
23–24 (Colo. App. 2007). That is consistent with ICWA’s
findings, which describe the role that both public and pri-
vate actors played in the unjust separation of Indian chil-
dren 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
Legislation that applies “evenhandedly” to state and pri-
vate actors does not typically implicate the Tenth Amend-
ment. Murphy, 584 U. S., at ___ (slip op., at 20). In South
——————
6 To bolster their claim that the “active efforts” requirement is aimed
at the States, petitioners point to a statement from the Department of
the Interior asserting that the reference to “active efforts” reflects Con-
gress’s intent “to require States to affirmatively provide Indian families
with substantive services and not merely make the services available.”
81 Fed. Reg. 38791 (emphasis added). This statement does not move the
needle. 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(“Agency means a nonprofit, for-profit, or governmental organization . . .
that performs, or provides services to biological parents, foster parents,
or adoptive parents to assist in the administrative and social work nec-
essary for foster, preadoptive, or adoptive placements”). The Depart-
ment’s statement is thus consistent with the plain language of §1912,
which applies to both private and state actors.
Cite as: 599 U. S. ____ (2023) 21
Opinion of the Court
Carolina v. Baker, for example, we held that a generally ap-
plicable law regulating unregistered bonds did not com-
mandeer the States; rather, it required States “wishing to
engage in certain activity [to] take administrative and
sometimes legislative action to comply with federal stand-
ards regulating that activity.” 485 U. S. 505, 514–515
(1988). We reached a similar conclusion in Reno v. Condon,
which dealt with a statute prohibiting state motor vehicle
departments (DMVs) from selling a driver’s personal infor-
mation without the driver’s consent. 528 U. S. 141, 143–
144 (2000). The law regulated not only the state DMVs, but
also private parties who had already purchased this infor-
mation and sought to resell it. Id., at 146. Applying Baker,
we concluded that the Act did not “require the States in
their sovereign capacity to regulate their own citizens,” “en-
act any laws or regulations,” or “assist in the enforcement
of federal statutes regulating private individuals.” 528
U. S., at 150–151. Instead, it permissibly “regulate[d] the
States as the owners of data bases.” 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 “core sov-
ereign function of protecting the health and safety of
children within its borders.” Brief for Petitioner Texas 66.
A State can stop selling bonds or a driver’s personal infor-
mation, petitioners say, but it cannot withdraw from the
area of child welfare—protecting children is the business of
government, 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 field, they are hostage to ICWA, which re-
quires them to implement Congress’s regulatory program
for the care of Indian children and families. Id., at 64–65;
Reply Brief for Texas 27.
This argument is presumably directed at situations in
22 HAALAND v. BRACKEEN
Opinion of the Court
which only the State can rescue a child from neglectful par-
ents. But §1912 applies to more than child neglect—for 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 643–644. And even
when a child is trapped in an abusive home, the State is not
necessarily the only option for rescue—for instance, a
grandmother can seek guardianship of a grandchild whose
parents are failing to care for her. See, e.g., In re Guardi-
anship of Eliza W., 304 Neb., at 996–997, 938 N. W. 2d, at
309–310. Petitioners do not distinguish between these var-
ied situations, 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 Adop-
tion and Assisted Reproduction Attorneys et al. as Amici
Curiae 14 (“Amici are aware of no state in which a private
actor may lawfully remove a child from his existing home”).
Maybe so—but that does not help petitioners’ commandeer-
ing argument, because the “active efforts” requirement does
not apply to emergency removals. §1922. If ICWA com-
mandeers state performance of a “core sovereign function,”
petitioners 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
lift—and 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 identifies its contours
nor explains what §1912(d) requires of a State in that con-
text. Petitioners have therefore failed to show that the “ac-
tive efforts” 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
Cite as: 599 U. S. ____ (2023) 23
Opinion of the Court
§1912—the notice requirement, expert witness require-
ment, and evidentiary standards—we doubt that require-
ments 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 anticommandeering problem.
B
Petitioners also raise a Tenth Amendment challenge to
§1915, which dictates placement preferences for Indian
children. According to petitioners, this provision orders
state agencies to perform a “diligent search” for placements
that satisfy ICWA’s hierarchy. Brief for Petitioner Texas
63; Reply Brief for Texas 24; see also Brief for Individual
Petitioners 67–68. 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 understanding—for example,
“the Librettis’ adoption of Baby O was delayed because the
Ysleta del Sur Pueblo Tribe demanded that county officials
exhaustively search for a placement with the Tribe first.”
Reply Brief for Texas 24–25. Just as Congress cannot com-
pel state officials to search databases to determine the law-
fulness of gun sales, Printz, 521 U. S., at 902–904, petition-
ers argue, Congress cannot compel state officials to search
for a federally preferred placement.
As an initial matter, this argument encounters the same
problem that plagues petitioners with respect to §1912: Pe-
titioners have not shown that the “diligent search” 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, peti-
tioners’ interpretation “cannot be squared with this Court’s
decision in Adoptive Couple,” which held that “ ‘there simply
24 HAALAND v. BRACKEEN
Opinion of the Court
is no “preference” to apply if no alternative party that is el-
igible to be preferred . . . has come forward.’ ” 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 child”). Instead, the burden is on the tribe or
other objecting party to produce a higher-ranked place-
ment. Ibid. So, as it stands, petitioners assert an anticom-
mandeering challenge to a provision that does not com-
mand state agencies to do anything.
State courts are a different matter. ICWA indisputably
requires them to apply the placement preferences in mak-
ing custody determinations. §§1915(a), (b). Petitioners ar-
gue 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,
178–179 (1992) (“Federal 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 man-
dated by the text of the Supremacy Clause”). But they draw
a distinction 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 action—as Texas law does here—then
the State gets to call the shots, unhindered by any federal
instruction to the contrary. Brief for Individual Petitioners
62–63, 66–67.
This argument runs headlong into the Constitution. The
Supremacy Clause provides that “the 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.” Art. VI, cl. 2. Thus, when Congress enacts
a valid statute pursuant to its Article I powers, “state law
is naturally preempted to the extent of any conflict with a
Cite as: 599 U. S. ____ (2023) 25
Opinion of the Court
federal statute.” Crosby v. National Foreign Trade Council,
530 U. S. 363, 372 (2000). End of story. That a federal law
modifies a state law cause of action does not limit its
preemptive effect. See, e.g., Hillman, 569 U. S., at 493–494
(federal law establishing an “ ‘order of precedence’ ” for ben-
eficiaries of life insurance preempted state law); Egelhoff v.
Egelhoff, 532 U. S. 141, 151–152 (2001) (Employee Retire-
ment Income Security Act preempted state law regarding
the economic consequences of divorce); Wissner v. Wissner,
338 U. S. 655, 660–661 (1950) (federal military benefits 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 final order in the adoptive
placement of any Indian child. The court must also provide
“other information as may be necessary to show” the child’s
name and tribal affiliation, 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 “maintai[n]” a record
“evidencing the efforts to comply with the order of prefer-
ence” specified by ICWA. The record “shall be made avail-
able at any time upon the request of the Secretary or the
Indian child’s tribe.” Petitioners argue that Congress can-
not conscript the States into federal service by assigning
them recordkeeping tasks.7
——————
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 “record
of each such placement” refers to the state court’s placement determina-
tion. See Mississippi Band of Choctaw Indians v. Holyfield, 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) (“The
State court or agency should notify the BIA whether these records are
maintained within the court system or by a State agency”). But allowing
26 HAALAND v. BRACKEEN
Opinion of the Court
The anticommandeering doctrine applies “distinctively”
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 specifically to
state judges. Art. VI, cl. 2. From the beginning, the text
manifested in practice: As originally understood, the Con-
stitution allowed Congress to require “state judges to en-
force federal prescriptions, insofar as those prescriptions
related to matters appropriate for the judicial power.”
Printz, 521 U. S., at 907 (emphasis deleted). In Printz, we
indicated that this principle may extend to tasks that are
“ancillary” to a “quintessentially adjudicative task”—such
as “recording, registering, and certifying” documents. Id.,
at 908, n. 2.
Petitioners reject Printz’s observation, insisting that
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 report-
ing requirements on state courts. The early Congresses
passed laws directing state courts to perform certain tasks
fairly described as “ancillary” to the courts’ adjudicative du-
ties. For example, state courts were required to process and
record applications for United States citizenship. Act of
Mar. 26, 1790, ch. 3, §1, 1 Stat. 103–104. The clerk (or other
court official) was required “to certify and transmit” the ap-
plication to the Secretary of State, along with information
about “the name, age, nation, residence and occupation, for
the time being, of the alien.” Act of June 18, 1798, §2, 1
Stat. 567. The clerk also had to register aliens seeking nat-
uralization and issue certificates confirming the court’s re-
ceipt of the alien’s request for registration. Act of Apr. 14,
——————
the State to make that choice does not transform the documents into
something other than a court record.
Cite as: 599 U. S. ____ (2023) 27
Opinion of the Court
1802, §2, 2 Stat. 155.8
Federal law imposed other duties on state courts unre-
lated to immigration and naturalization. The Judiciary Act
of 1789, which authorized “any justice of the peace, or other
magistrate of any of the United States” 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
certificates authorizing the apprehension of fugitives, and
to collect proof of the claims of Canadian refugees who had
aided the United States in the Revolutionary War. Act of
May 5, 1792, ch. 29, §2, 1 Stat. 266 (“any person imprisoned
. . . may have the oath or affirmation 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 imprisoned”); Act of Feb. 12, 1793, ch. 7, §1, 1
Stat. 302 (“governor or chief magistrate of the state or ter-
ritory” shall “certif[y] as authentic” an indictment or affida-
vit charging a “fugitive from justice”); Act of Apr. 7, 1798,
——————
8 Printz noted uncertainty about whether the naturalization laws ap-
plied only to States that voluntarily “authorized their courts to conduct
naturalization proceedings.” 521 U. S., at 905–906. 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
“to any common law court of record, in any one of the states wherein he
shall have resided for the term of one year at least”); Act of Apr. 14, 1802,
ch. 28, 2 Stat. 153 (referring to “the 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 States”). And as Printz
recognized, this Court has never held that consent is required. 521 U. S.,
at 905–906; see Holmgren v. United States, 217 U. S. 509, 517 (1910)
(holding that Congress could empower state courts to conduct naturali-
zation proceedings, but because California had already authorized juris-
diction, 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 naturalization laws “could not be enforced” in state court “against
the consent of the States”). In any event, while the naturalization laws
are certainly not conclusive evidence, they are nonetheless relevant to
discerning historical practice.
28 HAALAND v. BRACKEEN
Opinion of the Court
§3, 1 Stat. 548 (“proof of the several circumstances neces-
sary to entitle the applicants to the benefits of this act, may
be taken before . . . a judge of the supreme or superior court,
or the first justice or first judge of the court of common pleas
or country court of any state”).
There is more. Shortly after ratification, Congress
passed a detailed statute that required state-court judges
to gather and certify reports. Act of July 20, 1790, §3, 1
Stat. 132. The Act authorized commanders of ships to re-
quest examinations of their vessels from any “justice of the
peace of the city, town or place.” Ibid. The judge would
order three qualified people to prepare a report on the ves-
sel’s condition, which the judge would review and “endorse.”
Ibid. Then, the judge was required to issue an order regard-
ing “whether the said ship or vessel is fit to proceed on the
intended voyage; and if not, whether such repairs can be
made or deficiencies supplied where the ship or vessel then
lays.” Ibid.These early congressional enactments “provid[e] ‘contem-
poraneous and weighty evidence’ of the Constitution’s
meaning.” Bowsher v. Synar, 478 U. S. 714, 723 (1986).
Collectively, they demonstrate that the Constitution does
not prohibit the Federal Government from imposing adju-
dicative tasks on state courts. This makes sense against
the backdrop of the Madisonian Compromise: Since Article
III established only the Supreme Court and made inferior
federal courts optional, Congress could have relied almost
entirely 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 confirm what we suggested in Printz: Congress
may impose ancillary recordkeeping requirements related
to state-court proceedings without violating the Tenth
Amendment. Such requirements do not offload the Federal
Government’s responsibilities onto the States, nor do they
Cite as: 599 U. S. ____ (2023) 29
Opinion of the Court
put state legislatures and executives “under the direct con-
trol of Congress.” Murphy, 584 U. S., at ___ (slip op., at 18).
Rather, they are a logical consequence of our system of
“dual sovereignty” in which state courts are required to ap-
ply federal law. See Gregory v. Ashcroft, 501 U. S. 452, 457
(1991).
Here, ICWA’s recordkeeping requirements are compara-
ble 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
basic demographic information. Section 1915(e) likewise
requires the State to record a limited amount of infor-
mation—the efforts made to comply with the placement
preferences—and provide the information to the Secretary
and to the child’s tribe. These duties are “ancillary” 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 protec-
tion challenge to ICWA’s placement preferences and a non-
delegation 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 stand-
ing to raise them. Article III requires a plaintiff to show
that she has suffered an injury in fact that is “ ‘fairly trace-
able to the defendant’s allegedly unlawful conduct and
likely to be redressed by the requested relief.’ ” California
v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 4). Neither
the individual petitioners nor Texas can pass that test.
A
The individual petitioners argue that ICWA injures them
by placing them on “[un]equal footing” with Indian parents
30 HAALAND v. BRACKEEN
Opinion of the Court
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 hi-
erarchy of preferences, non-Indian parents are generally
last in line for potential placements. According to petition-
ers, this “erects a barrier that makes it more difficult for
members of one group to obtain a benefit than it is for mem-
bers of another group.” Ibid.; see also Turner v. Fouche, 396
U. S. 346, 362 (1970) (the Equal Protection Clause secures
the right of individuals “to be considered” for government
positions and benefits “without the burden of invidiously
discriminatory disqualifications”). The racial discrimina-
tion they allege counts as an Article III injury.9
But the individual petitioners have not shown that this
injury is “likely” to be “redressed by judicial relief.”
TransUnion LLC v. Ramirez, 594 U. S. ___, ___ (2021) (slip
op., at 7). They seek an injunction preventing the federal
parties from enforcing 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 prefer-
ences, and state agencies carry out the court-ordered place-
ments. §§1903(1), 1915(a), (b); see also Brief for Individual
Petitioners 63 (“There is no federal official who administers
ICWA or carries out its mandates”). The state officials who
implement ICWA are “not parties to the suit, and there is
no reason they should be obliged to honor an incidental le-
gal determination the suit produced.” Lujan v. Defenders
of Wildlife, 504 U. S. 555, 569 (1992) (plurality opinion). So
an injunction would not give petitioners legally enforceable
——————
9 Respondents raise other objections to the individual petitioners’
standing, including that the alleged injury is speculative because it de-
pends on future proceedings to foster or adopt Indian children. Brief for
Tribal Defendants 46–50; Brief for Federal Parties 49–52. Because we
resolve the standing of all individual petitioners on the ground of re-
dressability, we do not address respondents’ other arguments.
Cite as: 599 U. S. ____ (2023) 31
Opinion of the Court
protection from the allegedly imminent harm.
Petitioners’ request for a declaratory judgment suffers
from the same flaw. See Skelly Oil Co. v. Phillips Petroleum
Co., 339 U. S. 667, 671–672 (1950). This form of relief con-
clusively resolves “ ‘the legal rights of the parties.’ ” Med-
tronic, Inc. v. Mirowski Family Ventures, LLC, 571 U. S.
191, 200 (2014) (emphasis added). But again, state officials
are nonparties who would not be bound by the judgment.
Taylor v. Sturgell, 553 U. S. 880, 892–893 (2008). Thus, the
equal protection issue would not be settled between peti-
tioners and the officials who matter—which would leave the
declaratory judgment powerless to remedy the alleged
harm. 994 F. 3d, at 448 (Costa, J., concurring in part and
dissenting in part) (“What saves proper declaratory judg-
ments from a redressability problem—but is lacking here—
is that they have preclusive effect on a traditional lawsuit
that is imminent”). After all, the point of a declaratory
judgment “is to establish a binding adjudication that ena-
bles the parties to enjoy the benefits of reliance and repose
secured by res judicata.” 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, 242–243
(1952).
The individual petitioners do not dispute—or even ad-
dress—any 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 fa-
vorable judgment will redress their injury. Brief in Oppo-
sition for Individual Respondents 19–20; Reply Brief for In-
dividual Petitioners 29. They point out that, in the
Brackeens’ ongoing efforts to adopt Y. R. J., the trial court
stated that it would follow the federal court’s ruling on the
Brackeens’ constitutional claims. Ibid. Thus, they reason,
winning this case would solve their problems.
32 HAALAND v. BRACKEEN
Opinion of the Court
But “[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.” 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 “possible, indirect benefit
in a future lawsuit” does not preserve standing). Other-
wise, redressability would be satisfied whenever a decision
might persuade actors who are not before the court—con-
trary to Article III’s strict prohibition on “issuing advisory
opinions.” Carney v. Adams, 592 U. S. ___, ___ (2020) (slip
op., at 4). It is a federal court’s judgment, not its opinion,
that remedies an injury; thus it is the judgment, not the
opinion, that demonstrates redressability. The individual
petitioners can hope for nothing more than an opinion, so
they cannot satisfy Article III.10
B
Texas also lacks standing to challenge the placement
preferences. It has no equal protection rights of its own,
South Carolina v. Katzenbach, 383 U. S. 301, 323 (1966),
and it cannot assert equal protection claims on behalf of its
citizens because “[a] State does not have standing as parens
patriae to bring an action against the Federal Government,”
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
——————
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 (2021) (principal opinion of
Dennis, J.).
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
Cite as: 599 U. S. ____ (2023) 33
Opinion of the Court
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 “unclean hands” injury: ICWA “injures
Texas by requiring it to break its promise to its citizens that
it will be colorblind in child-custody proceedings.” Reply
Brief for Texas 15; id., at 14 (“ICWA forces Texas to violate
its own constitutional obligations”). This is not the kind of
“concrete” and “particularized” “invasion of a legally pro-
tected interest” necessary to demonstrate an “ ‘injury in
fact.’ ” 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 finesse this problem by characterizing ICWA as a
“fiscal trap,” forcing it to discriminate against its citizens or
lose federal funds. Brief for Petitioner Texas 39–40. But
ICWA is not a Spending Clause statute—Texas 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
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 13–14. But these alleged costs are not
——————
jurors struck on the basis of race, because (among other reasons) “[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.” Id., at 56. But McCollum was not a suit
against the Federal Government; moreover, it involved a “concrete in-
jury” to the State and “some hindrance to the third party’s ability to pro-
tect its own interests,” neither of which is present here. Id., at 55–56.
34 HAALAND v. BRACKEEN
Opinion of the Court
“fairly traceable” to the placement preferences, which “op-
erate independently” of the provisions Texas identifies.
California, 593 U. S., at ___ (slip op., at 15). The provisions
do not rise or fall together; proving that the placement pref-
erences are unconstitutional “would not show that enforce-
ment of any of these other provisions violates the Constitu-
tion.” 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, can-
not justify a challenge to the latter.
Because Texas is not injured by the placement prefer-
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 affirm the judgment of the Court of
Appeals regarding Congress’s constitutional authority to
enact ICWA. On the anticommandeering claims, we re-
verse. 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. ____ (2023) 1
GORSUCH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 21–376, 21–377, 21–378 and 21–380
_________________
DEB HAALAND, SECRETARY OF THE INTERIOR,
ET AL., PETITIONERS
21–376 v.
CHAD EVERET BRACKEEN, ET AL.
CHEROKEE NATION, ET AL., PETITIONERS
21–377 v.
CHAD EVERET BRACKEEN, ET AL.
TEXAS, PETITIONER
21–378 v.
DEB HAALAND, SECRETARY OF THE
INTERIOR, ET AL.
CHAD EVERET BRACKEEN, ET AL., PETITIONERS
21–380 v.
DEB HAALAND, SECRETARY OF THE
INTERIOR, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 15, 2023]
JUSTICE GORSUCH, with whom JUSTICE SOTOMAYOR and
JUSTICE JACKSON join as to Parts I and III, concurring.
In affirming the constitutionality of the Indian Child
Welfare Act (ICWA), the Court safeguards the ability of
tribal members to raise their children free from interfer-
ence by state authorities and other outside parties. In the
process, the Court also goes a long way toward restoring the
2 HAALAND v. BRACKEEN
GORSUCH, J., concurring
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 significance of to-
day’s decision requires an understanding of the long line of
policies that drove Congress to adopt ICWA. And to appre-
ciate why that law surely comports with the Constitution
requires a bird’s-eye view of how our founding document
mediates between competing federal, state, and tribal
claims of sovereignty.
I
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 officials and private parties. That prac-
tice, in turn, was only the latest iteration of a much older
policy of removing Indian children from their families—one
initially spearheaded by federal officials with the aid of
their state counterparts nearly 150 years ago. In all its
many forms, the dissolution of the Indian family has had
devastating effects on children and parents alike. It has
also presented an existential threat to the continued vital-
ity of Tribes—something many federal and state officials
over the years saw as a feature, not as a flaw. 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
was. M. Fletcher & W. Singel, Indian Children and the Fed-
eral–Tribal Trust Relationship, 95 Neb. L. Rev. 885, 917–
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,
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GORSUCH, J., concurring
Tribes also negotiated “more than 150” treaties with the
United States that included “education-related provisions.”
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 “reservation 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.” R. Cross, American Indian
Education: The Terror of History and the Nation’s Debt to
the Indian Peoples, 21 U. Ark. Little Rock L. Rev. 941, 950
(1999).
At first, Indian education typically came in the form of
day schools, many of them “established through the . . . ef-
forts of missionaries or the wives of Army officers stationed
at military reservations in the Indian country.” Annual Re-
port of the Commissioner of Indian Affairs to the Secretary
of Interior, p. LXI (1886) (ARCIA 1886). At those day
schools, “Indian children would learn English as a second
language,” along with “math and science.” Fletcher &
Singel 917–918. But the children lived at home with their
families where they could continue to learn and practice
“their languages, beliefs, and traditional knowledge.” Id.,
at 918. At least in those “early decades,” schooling was
“generally . . . not compulsory” 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, 356–
357 (1986). Achieving those goals, officials reasoned, re-
quired the “complete isolation of the Indian child from his
savage antecedents.” ARCIA 1886, at LXI. And because
“the warm reciprocal affection existing between parents
and children” was “among the strongest characteristics of
4 HAALAND v. BRACKEEN
GORSUCH, J., concurring
the Indian nature,” officials set out to eliminate it by dis-
solving Indian families. Annual Report of the Commis-
sioner of Indian Affairs to the Secretary of Interior 392
(1904).
Thus began Indian boarding schools. In 1879, the Car-
lisle 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: “[A]ll the Indian there is in the
race should be dead. Kill the Indian in him, and save the
man.” 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 “was deeply
enmeshed with local governments and their services,” and
it was “expanded thanks to the Pennsylvania Legislature.”
Brief for American Historical Association et al. as Amici
Curiae 11 (Historians Brief ). Ultimately, Carlisle became
the model for what would become a system of 408 similar
federal institutions nationwide. BIA Report 82. “The es-
sential feature” of each was, in the federal government’s
own words, “the abolition of the old tribal relations.” An-
nual Report of the Commissioner of Indian Affairs to the
Secretary of Interior 28 (1910).
Unsurprisingly, “[m]any Indian families resisted” the
federal government’s boarding school initiative and “re-
fus[ed] to send their children.” S. Rep. No. 91–501, pt. 1,
p. 12 (1969). But Congress would not be denied. It author-
ized the Secretary of the Interior to “prevent the issuing of
rations or the furnishing of subsistence” 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, officials some-
times resorted to abduction. See BIA Report 36. As one
official later recounted, officers would “visit the [Indian]
camps unexpectedly with a detachment of [officers], and
Cite as: 599 U. S. ____ (2023) 5
GORSUCH, J., concurring
seize such children as were proper and take them away to
school, willing or unwilling.” ARCIA 1886, at 199. When
parents “hurried their children off to the mountains or hid
them away in camp,” agents “chase[d] and capture[d] them
like so many wild rabbits.” Ibid. Fathers were described
as “sullen,” mothers “loud in their lamentations,” and the
children “almost out of their wits with fright.” 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 hair—a point of shame in many native com-
munities, see J. Reyhner & J. Eder, American Indian Edu-
cation 178 (2004)—and confiscate their traditional clothes.
ARCIA 1886, at 199. Administrators delighted in the pro-
cess, describing the “metamorphosis [a]s wonderful,” and
professing that, in the main, “the little savage seems quite
proud of his appearance.” Ibid. After intake, the schools
frequently prohibited children from speaking their native
language or engaging in customary cultural or religious
practices. BIA Report 53. Nor could children freely associ-
ate with members of their own Tribe. Schools would organ-
ize dorms by the “[s]ize of cadets, and not their tribal rela-
tions,” so as to further “br[eak] up tribal associations.”
ARCIA 1886, at 6.
Resistance could invite punishments that included “with-
holding food” and “whipping.” BIA Report 54 (internal quo-
tation marks omitted). Older boys faced “court-martial,”
with other Indian children serving as prosecutors and
judges. Annual Report of the Commissioner of Indian Af-
fairs to the Secretary of Interior 188 (1881). Even compli-
ant students faced “[r]ampant physical, sexual, and emo-
tional abuse; disease; malnourishment; overcrowding; and
lack of health care.” BIA Report 56. Given these conditions,
it is unsurprising that many children tried (often unsuc-
cessfully) to flee. Id., at 55, n. 176 (recounting incidents).
6 HAALAND v. BRACKEEN
GORSUCH, J., concurring
State officials played a key role in foiling those efforts.
“[P]olice from a variety of jurisdictions” assisted in “cap-
tur[ing] and return[ing] runaway school children.” Histori-
ans Brief 11–12. For “the runaways,” school administrators
believed “a whipping administered soundly and prayer-
fully, helps greatly towards bringing about the desired re-
sult.” BIA Report 55 (internal quotation marks omitted).
As one Commissioner of Indian Affairs put it, while “[t]he
first wild redskin placed in the school[s] chafes at the loss
of freedom and longs to return to his wildwood home,” that
resistance would fade “with each successive generation,”
leaving a “greater desir[e] to be in touch with the dominant
race.” Id., at 51–52 (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%
of the funding for Indian boarding schools came from “In-
dian trust fund monies” raised by selling Indian land. Id.,
at 44. To subsidize operations further, the boarding schools
frequently required children not even 12 years old to work
on the grounds. Id., at 62–63. Some rationalized this expe-
rience as a benefit to the children. Id., at 59–63. But in
candor, Indian boarding schools “could not possibly be
maintained . . . were it not for the fact that students [were]
required to do . . . an amount of labor that ha[d] in the ag-
gregate a very appreciable monetary value.” L. Meriam, In-
stitute for Government Research, The Problem of Indian
Administration 376 (1928) (Meriam Report).
To lower costs further and promote assimilation, some
schools created an “outing system,” which sent Indian chil-
dren to live “with white families” and perform “household
and farm chores” for them. R. Trennert, From Carlisle to
Phoenix: The Rise and Fall of the Indian Outing System,
1878–1930, 52 Pacific Hist. Rev. 267, 273 (1983). This pro-
gram took many Indian children “even further from their
homes, families, and cultures.” Fletcher & Singel 943. Ad-
vocates of the outing system hoped it would be “extended
Cite as: 599 U. S. ____ (2023) 7
GORSUCH, J., concurring
until every Indian child was in a white home.” 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, eventu-
ally 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, “frankly and unequivocally,” that “the
provisions for the care of the Indian children . . . are grossly
inadequate.” Meriam Report 11. It recommended that the
federal government “accelerat[e]” the “mov[e] away from
the boarding school” system in favor of “day school or public
school facilities.” Id., at 35. That transition would be slow
to materialize, though. As late as 1971, federal boarding
schools continued to house “more than 17 per cent of the
Indian school-age population.” 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
children returned to the reservations, States with signifi-
cant Native American populations found themselves facing
significant new educational and welfare responsibilities.
Historians Brief 13–18. Around this time, as fate would
have it, “shifting racial ideologies and changing gender
norms [had] led to an increased demand for Indian chil-
dren” by adoptive couples. M. Jacobs, Remembering the
“Forgotten Child”: The American Indian Child Welfare Cri-
sis of the 1960s and 1970s, 37 Am. Indian Q. 136, 141
(2013). Certain States saw in this shift an opportunity.
They could “save . . . money” by “promoting the adoption of
8 HAALAND v. BRACKEEN
GORSUCH, J., concurring
Indian children by private families.” Id., at 153.
This restarted a now-familiar nightmare for Indian fam-
ilies. The same assimilationist rhetoric previously invoked
by the federal government persisted, “voiced this time by
state and county officials.” L. George, Why the Need for the
Indian Child Welfare Act?, 5 J. of Multicultural Social Work
165, 169 (1997). “ ‘If you want to solve the Indian problem
you can do it in one generation,’ ” one official put it. Ibid.“ ‘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.’ ” Ibid. This would
allow “ ‘civilized people’ ” to raise the children, instead of
their families or their tribal communities. Ibid.In this respect, “[t]he removal of Indian children by
[S]tates ha[d] much in common with Indian boarding
schools.” Fletcher & Singel 952. Through the 1960s and
1970s, Indian-child removal reached new heights. Surveys
conducted in 1969 and 1974 showed that “approximately
25–35 per cent of all Indian children [were] separated from
their families.” AAIA Report 1. Often, these removals
whisked children not only out of their families but out of
their communities. Some estimate that “more than 90 per
cent of non-related adoptions of Indian children [were]
made by non-Indian couples.” Id., at 2.
These family separations frequently lacked justification.
According to one report, only about “1 per cent” of the sepa-
rations studied involved alleged physical abuse. Ibid. The
other 99 percent? “[V]ague grounds” such “as ‘neglect’ or
‘social deprivation.’ ” Ibid. These determinations, often
“wholly inappropriate in the context of Indian family life,”
came mainly from non-Indian social workers, many of
whom were “ignorant of Indian cultural values and social
norms.” Id., at 2–3. They routinely penalized Indian par-
ents for conditions of “[p]overty, poor housing, lack of mod-
ern plumbing, and overcrowding.” Id., at 3. One 3-year-old
Sioux child, for instance, was removed from her family on
Cite as: 599 U. S. ____ (2023) 9
GORSUCH, J., concurring
the State’s “belief that an Indian reservation is an unsuita-
ble environment for a child.” Ibid. So it was that some In-
dian families, “forced onto reservations at gunpoint,” were
later “told that they live[d] in a place unfit for raising their
children.” Id., at 3–4.
Aggravating matters, these separations were frequently
“carried out without due process of law.” Id., at 4. Children
and their parents rarely had counsel. Ibid. For that mat-
ter, few cases saw the inside of a courtroom. Welfare de-
partments knew that they could threaten to withhold ben-
efit payments if Indian parents did not surrender custody.
Id., at 4–5. 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 “wept that she did not dare protest
the taking of her children for fear of going to jail.” Id., at 7.
For those Indian parents who did resist, “simple abduction”
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 conse-
quences. “Because the family is the most fundamental eco-
nomic, educational, and health-care unit” in society, these
“assaults on Indian families” contributed to the precarious
conditions that Indian parents and children already faced.
Id., at 7–8. Many parents came to “feel hopeless, powerless,
and unworthy”—further feeding the cycle of removal. Id.,
at 8. For many children, separation from their families
caused “severe distress” that “interfere[d] with their physi-
cal, mental, and social growth and development.” Ibid. It
appears, too, that Indian children were “significantly more
likely” to experience “physical, sexual, [and] emotional”
10 HAALAND v. BRACKEEN
GORSUCH, J., concurring
abuse in foster and adoptive homes than their white coun-
terparts. 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
Relationship with Substance Abuse: A Lakota Illustration,
35 J. of Psychoactive Drugs 1, 7–13 (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, 3–7 (2019). As one study warned: “[E]fforts to
make Indian children ‘white,’ ” by removing them from their
Tribes, “can destroy them.” AAIA Report 9.
C
Eventually, Congress could ignore the problem no longer.
In 1978, it responded with the Indian Child Welfare Act. 92
Stat. 3096. The statute’s findings show that Congress was
acutely aware of the scope of the crisis. “[A]n alarmingly
high percentage of Indian families,” Congress observed,
were being “broken up by the removal, often unwarranted,
of their children from them by nontribal [state] public and
private agencies.” 25 U. S. C. §1901(4). And “an alarmingly
high percentage of such children” were “placed in non-
Indian foster and adoptive homes and institutions.” Ibid.Removal at that scale threatened the “continued existence
and integrity of Indian [T]ribes.” §1901(3).
The statute Congress settled upon contains various pro-
visions aimed at addressing this crisis. At bottom, though,
the law’s operation is simple. It installs substantive and
procedural guardrails against the unjustified termination
of parental rights and removal of Indian children from
tribal life.
Cite as: 599 U. S. ____ (2023) 11
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 “active efforts” have been made to avoid remov-
ing the Indian child. §1912(d). It must show the status quo
is “likely to result in serious emotional or physical damage
to the child.” §1912(e), (f ). And it must prove that fact by
“clear and convincing evidence,” §1912(e) (for placement in
foster services), or “beyond a reasonable doubt,” §1912(f )
(for termination of parental rights).
Even when it comes to voluntary removal proceedings,
ICWA sets certain “minimum Federal standards” for “the
placement of [Indian] children in foster or adoptive homes.”
§1902. In any adoptive placement, a court by default must
give preference to “(1) a member of the child’s extended fam-
ily; (2) other members of the Indian child’s [T]ribe; or (3)
other Indian families.” §1915(a). This priority governs un-
less the initiating party can show “good cause.” Ibid. A
similar regime applies by default to foster-care or pre-
adoptive placements. §1915(b). But note that “by default.”
ICWA gives Tribes a voice. It allows them to establish a
“different order of preference by resolution,” provided it is
“the least restrictive setting appropriate to the particular
needs of the child.” §1915(c).
Recognizing that coercion remains possible even with
these protections, ICWA also allows for postplacement re-
lief. It lets the Indian child, the parent, or the Tribe “peti-
tion any court of competent jurisdiction” to “invalidate” an
order that violated key provisions of ICWA. §1914. Of spe-
cial relevance, an Indian parent consenting to adoption has
two years to withdraw consent on “the grounds that consent
was obtained through fraud or duress.” §1913(d).
ICWA is not a panacea. While “[a]dopting ICWA marked
12 HAALAND v. BRACKEEN
GORSUCH, J., concurring
one step toward upholding tribal rights,” “many [S]tates”
have struggled with “effective implementation.” Maine Wa-
banaki–State Child Welfare Truth & Reconciliation Com-
mission, Beyond the Mandate: Continuing the Conversa-
tion 12 (2015). Others resist ICWA outright, as the present
litigation by Texas attests. See generally M. Fletcher & W.
Singel, Lawyering the Indian Child Welfare Act, 120 Mich.
L. Rev. 1755 (2022). Still, the statute “has achieved consid-
erable success in stemming unwarranted removals by state
officials of Indian children from their families and commu-
nities.” B. Atwood, Flashpoints Under the Indian Child
Welfare Act: Toward a New Understanding of State Court
Resistance, 51 Emory L. J. 587, 621 (2002). And consider-
able research “[s]ubsequent to Congress’s enactment of
ICWA” has “borne out the statute’s basic premise”—that
“[i]t is generally in the best interests of Indian children to
be raised in Indian homes.” Brief for American Psychologi-
cal Association et al. as Amici Curiae 10–24.
II
This history leads us to the question at the heart of to-
day’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 author-
ities 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 com-
peting 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
virtually no role to play when it comes to Indian affairs. To
preserve this equilibrium between Tribes and States, the
Cite as: 599 U. S. ____ (2023) 13
GORSUCH, J., concurring
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 pieces—
and how they fit together—is 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
Tribes existed as “self-governing sovereign political commu-
nities.” United States v. Wheeler, 435 U. S. 313, 322–323
(1978). They employed “sophisticated governmental mod-
els,” formed “[c]onfederacies” with one another, and often
engaged in decisionmaking by “consensual agreement.” 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 “tributary”
and “feudatory” states. E. de Vattel, Law of Nations 60–61
(1805) (Vattel). And it was a long-held tenet of interna-
tional law that such entities do not “cease to be sovereign
and independent” even when subject to military conquest—
at least not “so long as self government and sovereign and
independent authority are left in the[ir] administration.”
Worcester v. Georgia, 6 Pet. 515, 561 (1832). For that rea-
son, early “history furnishes no example, from the first set-
tlement of our country, of any attempt on the part of the
14 HAALAND v. BRACKEEN
GORSUCH, J., concurring
[C]rown to interfere with the internal affairs of the Indi-
ans.” Id., at 547; see also Vattel 60. Instead, the “settled
state of things” reflected the British view that Tribes were
“nations capable of maintaining the relations of peace and
war; [and] of governing themselves.” 6 Pet., at 548–549.
Consistent with that understanding, the British regarded
“the Indians as owners of their land.” 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 too—just as it did with fellow
European 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 Doc-
uments Relative to the Colonial History of the State of New
York 655–681 (E. O’Callaghan ed. 1955); Deed in Trust
From Three of the Five Nations of Indians to the King in
1726, in id., at 800–801; A Treaty Held at the Town of Lan-
caster with the Indians of the Six Nations in 1744, in Indian
Treaties, Printed by Benjamin Franklin, 1736–1762,
pp. 43–49 (1938).
Ultimately, “the American Revolution replaced that legal
framework with a similar one.” Oklahoma v. Castro-
Huerta, 597 U. S. ___, ___ (2022) (GORSUCH, J., dissenting)
(slip op., at 2). The newly independent Nation wasted no
time entering into treaties of its own—in 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, “[t]he new Republic”
broadly recognized “the sovereignty of Indian [T]ribes,”
even if it did so “sometimes grudgingly.” W. Quinn, Federal
Acknowledgment of American Indian Tribes: The Histori-
cal Development of a Legal Concept, 34 Am. J. L. Hist. 331,
337 (1990). As we will see, the period under the Articles of
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GORSUCH, J., concurring
Confederation was marred by significant conflict, driven by
state and individual intrusions on tribal land. But the Con-
stitution that followed reflected an understanding that
Tribes enjoy a power to rule themselves that no other gov-
ernmental body—state or federal—may 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 “adopted and
sanctioned the previous treaties with the Indian nations,
[it] consequently admit[ted the Tribes’] rank among those
powers who are capable of making treaties.” Worcester, 6
Pet., at 559. Similarly, the Commerce Clause vests in Con-
gress the power to “regulate Commerce with foreign Na-
tions,” “among the several States,” and “with the Indian
Tribes,” Art. I, §8, cl. 3—conferrals of authority with respect
to three separate sorts of sovereign entities that do not en-
tail the power to eliminate any of them. Even beyond that,
the Constitution exempts from the apportionment calculus
“Indians not taxed.” §2, cl. 3. This formula “ratified the
legal treatment of tribal Indians [even] within the [S]tates
as separate and sovereign peoples, who were simply not
part of the state polities.” R. Clinton, The Dormant Indian
Commerce Clause, 27 Conn. L. Rev. 1055, 1150 (1995)
(Clinton 1995). (The Fourteenth Amendment would later
reprise this language, Amdt. 14, §2, confirming both the en-
during sovereignty of Tribes and the bedrock principle that
Indian status is a “political rather than racial” classifica-
tion, 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 “Washington Administration acknowledged con-
siderable Native autonomy.” G. Ablavsky, Beyond the In-
dian Commerce Clause, 124 Yale L. J. 1012, 1067 (2015)
(Ablavsky 2015). Henry Knox, President Washington’s Sec-
retary of War, described the Tribes as akin to “foreign na-
tions, not as the subjects of any particular [S]tate.” Letter
16 HAALAND v. BRACKEEN
GORSUCH, J., concurring
to G. Washington (July 7, 1789), in 3 Papers of George
Washington: Presidential Series 134–141 (D. Twohig ed.
1989). Thomas Jefferson spoke of them as maintaining
“full, undivided, and independent sovereignty as long as
they chose to keep it,” commenting also “that this might be
for ever.” Notes on Cabinet Opinions (Feb. 26, 1793), in 25
Papers of Thomas Jefferson 271–272 (J. Catanzariti ed.
1992). This view would later feature in a formal opinion of
the Attorney General, who explained that, “[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 whatever, without their consent.” 1
Op. Atty. Gen. 465, 466 (1821).
What went for the Executive went for Congress. In the
first 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 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. With-
out exception, those Acts “either explicitly or implicitly reg-
ulated only the non-Indians who venture[d] into Indian
country to deal with Indians,” and “did not purport to regu-
late the [T]ribes or their members” 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 525–528. Holding Georgia’s laws unconstitutional, this
Court acknowledged that Tribes remain “independent po-
litical communities, retaining their original natural rights.”
Id., at 559. While “necessarily dependent on” the United
States, id., at 555, under “the settled doctrine of the law of
Cite as: 599 U. S. ____ (2023) 17
GORSUCH, J., concurring
nations,” the Court held, “a weaker power does not surren-
der its independence—its right to self-government, by asso-
ciating with a stronger and taking its protection,” id., at
560–561. The Cherokee, like other Tribes, remained “a dis-
tinct community occupying its own territory . . . in which
the laws of [the State] can have no force, and which the cit-
izens of [that State] have no right to enter, but with the as-
sent of the [Tribe] themselves, or in conformity with trea-
ties, and with the acts of [C]ongress.” Id., at 561. Justice
McLean, concurring, put it succinctly: “All the rights which
belong to self-government have been recognized as vested
in [the Tribes].” 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: “ ‘John Marshall has made
his decision; now let him enforce it.’ ” 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 Worces-
ter persisted in courts of law, unchanged, for decades. Rec-
ognizing the inherent sovereignty of Tribes, this Court held
that States could not tax Indian land. See, e.g., The Kansas
Indians, 5 Wall. 737, 751–761 (1867); The New York Indi-
ans, 5 Wall. 761, 771–772 (1867). It held that the Four-
teenth Amendment did not apply on Indian land. See Elk
v. Wilkins, 112 U. S. 94, 99–109 (1884). And it sharply lim-
ited 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 “with whom the
United States may contract by treaty.” Act of Mar. 3, 1871,
16 Stat. 566, codified at 25 U. S. C. §71; but see United
18 HAALAND v. BRACKEEN
GORSUCH, J., concurring
States v. Lara, 541 U. S. 193, 218 (2004) (THOMAS, J., con-
curring in judgment) (describing the Act as “constitution-
ally suspect”); M. Pearl, Originalism and the Indians, 93
Tulane L. Rev. 269, 330–331 (2018) (Pearl) (similar). But
the sponsors of that Act sought only to increase the role of
bicameral legislation in managing Indian affairs. See An-
toine v. Washington, 420 U. S. 194, 202–203 (1975). The
law did not purport to “invalidat[e] or impai[r]” any existing
“obligation of any treaty lawfully made and ratified.” 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 practi-
cally indistinguishable from the treaties that came before.
See generally V. Deloria & R. DeMallie, Documents of
American Indian Diplomacy: Treaties, Agreements, and
Conventions, 1775–1979 (1999). Keep this original under-
standing of tribal sovereignty in mind. It provides an es-
sential point of framing.
B
Just as the Constitution safeguards the sovereign author-
ity of Tribes, it comes with a “concomitant jurisdictional
limit on the reach of state law” over Indian affairs.
McClanahan v. Arizona Tax Comm’n, 411 U. S. 164, 171
(1973). As this Court has consistently recognized, “[t]he
policy of leaving Indians free from state jurisdiction and
control is deeply rooted in the Nation’s history.” Rice v. Ol-
son, 324 U. S. 786, 789 (1945). Instead, responsibility for
managing interactions with the Tribes rests exclusively
with the federal government. To appreciate this point, walk
through time once more.
Since the first days of British rule, the Crown oversaw—
and retained the power to dictate—the Colonies’ engage-
ment with the Indian Tribes. See Clinton 1995, at 1064–
Cite as: 599 U. S. ____ (2023) 19
GORSUCH, J., concurring
1098. In response to a pattern of conflict arising out of co-
lonial intrusion on tribal land, that supervision grew in-
creasingly exacting. Ibid.; see also R. Clinton, The Procla-
mation of 1763: Colonial Prelude to Two Centuries of
Federal-State Conflict Over the Management of Indian Af-
fairs, 69 B. U. L. Rev. 329, 331–337 (1989) (Clinton 1989).
In 1743, for example, a British royal commission rejected
an effort by the colony of Connecticut to exercise independ-
ent jurisdiction over a Tribe within its borders. Id., at 335–
336. The decision rested on a now-familiar logic: “The In-
dians, though living amongst the king’s subjects in these
countries, are a separate 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 fit, without controul from the English.”
Opinion of Comm’r Horsmanden, Aug. 1, 1743, in Governor
and Company of Connecticut, and Mohegan Indians, By
Their Guardians 126 (1743).
The mere suggestion of colonial management of tribal re-
lations catalyzed further “centralization of oversight and
control of colonial Indian regulation by the British govern-
ment,” culminating in the Proclamation of 1763. Clinton
1989, at 336. That proclamation announced the Crown’s
intent to manage all “land cessions, diplomatic and other
relations, and trade with the Indian [T]ribes,” and to dis-
place contrary colonial practice. Id., at 357. Britain never
had a chance to iron out the kinks of that approach before
the Revolutionary War broke out. But “[i]mmediately prior
to 1776, the stage was set” for “complete imperial control
over the management of Indian matters.” Id., at 362.
After the Revolution, the Articles of Confederation gave
the newly formed “[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.” Art. IX (1777).
In providing that grant of authority, the Articles’ drafters
20 HAALAND v. BRACKEEN
GORSUCH, J., concurring
may have meant to codify the centralized approach the Brit-
ish had pursued. But the “byzantine” document the draft-
ers 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 “ ‘members’ ” of the States and thus “exclusively or
principally subject to state legislative control.” Clinton
1995, at 1103, 1150. Second, owing to a fear that the phrase
“sole and exclusive” could give the misimpression that
States lacked power to manage their own affairs, the Arti-
cles’ drafters added another clause stipulating that “the leg-
islative right of any [S]tate within its own limits be not in-
fringed or violated.” 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
assert their own control. See Clinton 1995, at 1103, 1107,
1113–1118, 1128–1131.
The result? A season of conflict brought about by state
and private encroachments on tribal authority. G. Ablav-
sky, The Savage Constitution, 63 Duke L. J. 999, 1035–
1036 (2014) (Ablavsky 2014). By the time the Constitu-
tional Convention rolled around, “Indian uprisings had oc-
curred . . . in the Ohio River Valley and Virginia,” “the
Creeks and Georgia were on the brink of open warfare,” and
there was significant turmoil “on the western frontier.”
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 preventing intrusions on Indian land
and interests; Hamilton and his adherents favored resort to
military might. Ablavsky 2014, at 1035–1038. Both sides,
however, found agreement on the “need for a stronger fed-
eral government” presence, without the impediment of
state interference. Id., at 1038.
Cite as: 599 U. S. ____ (2023) 21
GORSUCH, J., concurring
Even as the Constitutional Convention assembled, a com-
mittee of the Continental Congress noted that it “had been
long understood and pretty well ascertained” that the
Crown’s absolute powers to “manag[e] Affairs with the In-
dians” passed in its “entire[ty] to the Union” following In-
dependence, meaning that “[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.”
33 Journals of the Continental Congress 1774–1789, 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: “[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.” Id., at 459.
This understanding found its way directly into the text of
the Constitution. The final version assigned the newly
formed federal government a bundle of powers that encom-
passed “all that is required for the regulation of [the Na-
tion’s] intercourse with the Indians.” 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 “leg-
islative right” of States. Not only that. The Constitution’s
express exclusion of “Indians not taxed” 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-
tory—and therefore their control. And, lest any doubt re-
main, the Constitution divested States of any power to “en-
ter into any Treaty, Alliance, or Confederation.” §10, cl. 1.
By removing that diplomatic power, the Constitution’s de-
sign also divested them of the leading tool for managing
tribal relations at that time.
The Constitution’s departure from the Articles’ articula-
22 HAALAND v. BRACKEEN
GORSUCH, J., concurring
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 “unfettered” by the Arti-
cles’ constraints. The Federalist No. 42, p. 268 (C. Rossiter
ed. 1961). Certain Anti-Federalists (including Abraham
Yates Jr.) disfavored the “tota[l] surrender into the hands
of Congress [of] the management and regulation of the In-
dian affairs.” Letter to Citizens of New York (June 13–14,
1788), in 20 Documentary History of the Ratification of the
Constitution 1153, 1158 (J. Kaminski et al. eds. 2004) (em-
phasis added). At bottom, however, no one questioned that
the Constitution took a view about where the power to man-
age Indian affairs would reside in the future. And no one
doubted that it selected the federal government, not the
States.
Early practice confirmed this understanding. “The
Washington Administration insisted that the federal gov-
ernment enjoyed exclusive constitutional authority” over
managing relationships with the Indian Tribes. Ablavsky
2015, at 1019. As President Washington put it, the federal
government “possess[ed] the only authority of regulating an
intercourse with [the Tribes], and redressing their griev-
ances.” Letter to T. Mifflin (Sept. 4, 1790), in 6 The Papers
of George Washington: Presidential Series 396 (D. Twohig
ed. 1996) (emphasis added). Even “many state officials
agreed” with President Washington’s assessment. Ablav-
sky 2015, at 1019. South Carolina Governor Charles Pinck-
ney acknowledged that “the sole management of India[n]
affairs” is “committed” to “the general Government.” Letter
to G. Washington (Dec. 14, 1789), in 4 Papers of George
Washington: Presidential Series 404 (D. Twohig ed. 1996).
Other leading proponents of States’ rights reluctantly drew
the same conclusion. “[U]nder the present Constitution,”
Thomas Jefferson lamented, States lack any “right to Treat
with the Indians without the consent of the General Gov-
ernment.” Letter to H. Knox (Aug. 10, 1791), in 22 Papers
Cite as: 599 U. S. ____ (2023) 23
GORSUCH, J., concurring
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 “distinct community,” this Court concluded in Worces-
ter, the “laws of [States] can have no force” 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 sover-
eign. More than that, this Court recognized that “[t]he
whole intercourse between the United States and [each
Tribe], is by our [C]onstitution and laws, vested in the gov-
ernment of the United States.” Ibid. (emphasis added).
State laws cannot “interfere forcibly with the relations es-
tablished between the United States and [an Indian Tribe],
the regulation of which, according to the settled principles
of our [C]onstitution, are committed exclusively to the gov-
ernment of the [U]nion.” Ibid. (emphasis added). That
principle, too, has endured. No one can contest the “ ‘his-
toric immunity from state and local control’ ” that the Tribes
enjoy, nor the permissibility of constitutional provisions en-
acted to protect the Tribes’ “sovereign status.” 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
no role to play in managing interactions with Tribes. From
this, it follows that “[t]he only restriction on the power” of
Tribes “in respect to [their] internal affairs” arises when
their actions “conflict with the Constitution or laws of the
United States.” 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
24 HAALAND v. BRACKEEN
GORSUCH, J., concurring
which raises the question: What powers does the federal
government possess with respect to Tribes?
1
Because the federal government enjoys only “limited” and
“enumerated powers,” 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 final accounting. The framers considered a gen-
eral Indian Affairs Clause but left it on the cutting-room
floor. See L. Toler, The Missing Indian Affairs Clause, 88
U. Chi. L. Rev. 413, 444–476 (2021) (Toler). That choice
reflects an important insight about the Constitution’s
Indian-law bargain: “Without an Indian affairs power,” any
assertion of unbounded federal authority over the Tribes is
“constitutionally wanting.” Id., at 476.
Instead of a free-floating Indian-affairs power, the fram-
ers opted for a bundle of federal authorities tailored to “the
regulation of [the Nation’s] intercourse with the Indians.”
Worcester, 6 Pet., at 559. In keeping with the framers’ faith
in the separation of powers, they chose to split those au-
thorities “between the [E]xecutive and the [L]egislature.”
Toler 479. “The residue of Indian affairs power”—all those
Indian-related powers not expressly doled out by the Con-
stitution—remained the province of “the sovereign
[T]ribes.” Id., at 481.
What was included in the federal government’s bundle of
enumerated powers? In the early years, the most important
component was the authority to “make Treaties” with the
Tribes. Art. II, §2, cl. 2. But other provisions also facili-
tated the management of Indian relations. The Constitu-
tion vested in Congress the power to “declare War” against
the Tribes. Art. I., §8, cl. 11. It gave Congress authority to
“dispose of and make all needful Rules and Regulations re-
specting the Territory or other Property belonging to the
Cite as: 599 U. S. ____ (2023) 25
GORSUCH, J., concurring
United States,” 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 pow-
ers came up short, the Constitution afforded the federal
government the power to “regulate Commerce with foreign
Nations and among the several States, and with the Indian
Tribes.” §8, cl. 3 (emphasis added). Much of modern federal
Indian law rests on that commerce power. It demands a
closer look.
2
Contained in a single sentence, what we sometimes call
“the” 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: “Commerce.”
And, viewed in isolation, that word might appear to sweep
narrowly—encompassing activities like “selling, buying,
and bartering, as well as transporting for these purposes.”
United States v. Lopez, 514 U. S. 549, 585–586 (1995)
(THOMAS, J., concurring) (citing founding-era definitions).
But it is “well established” that the individual Commerce
Clauses have “very different applications,” 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, 331–337 (D.
Twohig 1998).
Start with the word “Commerce.” From the Nation’s ear-
liest days, Indian commerce was considered “a special sub-
ject with a definite content,” quite “distinct and specialized”
from other sorts of “commerce.” A. Abel, The Commerce
Clause in the Constitutional Convention and in Contempo-
rary Comment, 25 Minn. L. Rev. 432, 467–468 (1941). A
26 HAALAND v. BRACKEEN
GORSUCH, J., concurring
survey of founding-era usage confirms that the term “Com-
merce,” when describing relations with Indians, took on a
broader meaning than simple economic exchange. See
Ablavsky 2015, at 1012–1032 (compiling primary sources);
Brief for Gregory Ablavsky as Amicus Curiae 8–11; App. to
id., at 1–18 (same); see also A. Amar, America’s Constitu-
tion: A Biography 107 (2005). Instead, the word was used
as a “term of art,” Pearl 322, to encompass all manner of
“bilateral relations with the [T]ribes,” Clinton 1995, at
1145; see also Toler 422 (noting that “Indian commerce”
was a “legal ter[m] of art” that was “informed by the prac-
ticalities of Indian affairs”).
This special usage likely emerged out of an international-
law idea widely shared “at the time of the founding”: When
dealing with a foreign sovereign, the “commercial and non-
commercial aspects” of bilateral interactions were “inevita-
bly intertwined” 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 1028–1032 (demonstrating that
“trade with the Indians was understood almost solely
through this political and diplomatic lens”); Clinton 1989,
at 362–363 (observing that, at the founding, Indian “trade”
was “intertwined” with concerns of “peace and diplomacy”
and with the threat of “war”). Nor was that a speculative
possibility when it came to Tribes. As we have seen, even
the noncommercial conduct of settlers in the early years
was a “continual source of violent conflict [with] Indians,”
partially motivating the move away from the Articles of
Confederation framework. M. Fletcher & L. Jurss, Tribal
Jurisdiction—A Historical Bargain, 76 Md. L. Rev. 593, 597
(2017); see also Ablavsky 2014, at 1033–1038.
At least two terms in the Commerce Clause confirm this
special usage. For one thing, the Constitution speaks of
“Commerce . . . among” when discussing interstate deal-
ings, but “Commerce with” when addressing dealings with
Cite as: 599 U. S. ____ (2023) 27
GORSUCH, J., concurring
tribal and foreign sovereigns. Art. I, §8, cl. 3 (emphases
added). This language suggests a shared framework for
Congress’s Indian and foreign commerce powers and a dif-
ferent one for its interstate commerce authority. See R.
Monette, A New Federalism for Indian Tribes: The Rela-
tionship 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
“with” suggests that Congress has the authority to manage
“all interactions or affairs . . . with the Indian [T]ribes” and
foreign sovereigns—wherever those interactions or affairs
may occur. Balkin 23. By contrast, the term “among” found
in the Interstate Commerce Clause most naturally suggests
that Congress may regulate only activities that “extend in
their operation beyond the bounds of a particular [S]tate”
and into another. Id., at 30. All this goes a long way toward
explaining why “Congress’s powers to regulate domestic
commerce are more constrained” than its powers to regu-
late Indian and foreign commerce. Id., at 29.
For another thing, as nouns, “States” and “Indian Tribes”
are not alike—and they were not alike at the founding.
“States” generally referred then, as it does today, to a col-
lection of territorial entities. Not so “Tribes.” 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, 654–669 (2023) (Green);
see also 1 W. Crosskey, Politics and the Constitution in the
History of the United States 77 (1953). Want proof? Dust
off most any founding-era dictionary and look up the defi-
nition of “Tribe.” See, e.g., 2 J. Ash, The New and Complete
Dictionary of the English Language (1775) (“[a] family, a
body of the people distinguished by family or fortune”); 2 S.
Johnson, A Dictionary of the English Language (4th ed.
1773) (“[a] di[s]tinct body of the people as divided by family
or fortune, or any other characteri[s]tick”); T. Dyche, A New
General English Dictionary (14th ed. 1771) (“the particular
28 HAALAND v. BRACKEEN
GORSUCH, J., concurring
descendants or people [s]prung from [s]ome noted head, or
a collective number of people in a colony”); N. Bailey, An
Universal Etymological English Dictionary (22d ed. 1770)
(“a [c]ompany of [p]eople dwelling together in the [s]ame
[w]ard or [l]iberty”).
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 “in Colorado,”
but not to say you are vacationing “in Navajo.” It explains
why it is sensible to say you are meeting “with some Cher-
okee,” but not to say you are meeting “with some New Jer-
sey.” But this point also helps us make sense of why the
Legislative Branch may regulate commerce with Indian
Tribes differently than it may regulate commerce among
the States. Because Tribes are collections of people, the In-
dian Commerce Clause endows Congress with the “author-
ity to regulate commerce with Native Americans” as indi-
viduals. McGirt v. Oklahoma, 591 U. S. ___, ___ (2020) (slip
op., at 7). By contrast, Congress’s power under the Inter-
state Commerce Clause operates only on commerce that in-
volves “more States than one.” Gibbons v. Ogden, 9 Wheat.
1, 194 (1824). In other words, commerce that takes place
“among” (or between) two or more territorial units, and not
just any commerce that involves some member of some
State. See Green 649–654.
This Court has long appreciated these points of distinc-
tion. 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 Indians—on or off
tribal land. Id., at 416–417. 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 “commerce with the individuals
composing those [T]ribes.” Id., at 417 (emphasis added).
For that reason, too, “[t]he locality of the [commerce could]
have nothing to do with the [scope of the] power.” Id., at
Cite as: 599 U. S. ____ (2023) 29
GORSUCH, J., concurring
418; see also Henderson v. Mayor of New York, 92 U. S. 259,
270 (1876) (quoting Holliday and echoing this point in the
context of the Foreign Commerce Clause). More than that,
Holliday recognized that this focus on individuals means
that Indian commerce must cover “something more” than
just economic exchange. 3 Wall., at 417 (internal quotation
marks omitted). While it includes “buying and selling and
exchanging commodities,” it also extends to the entire “in-
tercourse between the citizens of the United States and
those [T]ribes.” Ibid. That “intercourse,” the Court recog-
nized, is “another branch of commerce” with Indians, “and
a very important one” at that. Ibid.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 “sale of
lands made by any Indians” 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 “com-
mit[ted] any crime upon, or trespass against, the person or
property of any peaceable and friendly Indian” in Indian
country. §5, ibid. The first of these provisions arguably
addressed a narrow question of commerce. But the second
“plainly regulated noneconomic” 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 “not
controversial exercises of congressional power.” N. Newton,
Federal Power Over Indians: Its Sources, Scope, and Lim-
itations, 132 U. Pa. L. Rev. 195, 201, n. 25 (1984). Any
doubt about their validity “would have been quieted by the
[C]ommerce Clause’s commitment of commerce with the In-
dian [T]ribes to Congress.” Ibid. As Justice McLean (riding
circuit) recognized, punishing non-Indians for “committing
violence upon the persons or property of the Indians,” fell
30 HAALAND v. BRACKEEN
GORSUCH, J., concurring
“clearly within the scope of the power to regulate commerce
with the Indian [T]ribes.” 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 tres-
pass against even one individual Indian could disrupt com-
merce with that individual. See Green 660–661, and n. 76.
By extension, such a trespass could disrupt dealings with
other members of the Tribe and with other allied Tribes too.
See Balkin 24–26. Recognizing this, the framers entrusted
Congress with the power previously exercised by the Brit-
ish Parliament to “restrain the disorderly and licentious
from intrusions” by non-Indians against even individual In-
dians—all to preserve functioning channels of trade and in-
tercourse “with the Indians.” 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, “broader” does not mean “plenary.” Even the
federal government’s “power to control and manage” rela-
tions with the Tribes under the Indian Commerce Clause
comes with “pertinent constitutional restrictions.” 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 reg-
ulate in peripherally related fields merely by identifying
some incidental connection to non-Indians’ dealings with
Indians. Instead, Congress’s actions must still bear a valid
“nexus” to 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,
“the scope of congressional authority” over the Tribes under
the Indian Commerce Clause is “best construed as a nega-
tive one.” Pearl 325. Its text “limits the legislative reach to
Cite as: 599 U. S. ____ (2023) 31
GORSUCH, J., concurring
creating federal restrictions concerning what United States
citizens and States may do in the context of Indian
[T]ribes.” Ibid. Nothing in the Clause grants Congress the
affirmative power to reassign to the federal government in-
herent sovereign authorities that belong to the Tribes.
In that way, the Indian Commerce Clause confirms, ra-
ther than abridges, principles of tribal sovereignty. As it
must. It is “inconceivable” that a power to regulate non-
Indians’ dealings with Indians could be used to “dives[t
Tribes] of the right of self-government.” Worcester, 6 Pet.,
at 554. Otherwise, a power to manage relations with a
party would become an instrument for “annihilating the po-
litical existence of one of the parties.” Ibid. No one in the
Nation’s formative years thought that could be the law.
They understood that Congress could no more use its com-
merce powers to legislate away a Tribe than it could a State
or a foreign sovereign. Cf. National League of Cities v. Us-
ery, 426 U. S. 833, 855 (1976); Metcalf & Eddy v. Mitchell,
269 U. S. 514, 523–526 (1926); Lane County v. Oregon, 7
Wall. 71, 76–77 (1869). The framers appreciated, too, that
they possessed no more “authority to delegate to the na-
tional government power to regulate the [T]ribes directly”
than they possessed authority to “delegate power to the fed-
eral government over other peoples who were not part of
the federal union.” 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 reflected a care-
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
32 HAALAND v. BRACKEEN
GORSUCH, J., concurring
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 error—
and the steps this Court has taken to correct it—are the last
missing pieces of the puzzle.
In 1885, during the period of assimilationist federal pol-
icy, 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 con-
stitutionality of that Act. In the process, though, it stepped
off the doctrinal trail. Instead of examining the text and
history of the Indian Commerce Clause, the Court offered a
free-floating and purposivist account of the Constitution,
describing it as extending broad “power [to] the General
Government” over tribal affairs. Id., at 384. Building on
that move, the Court would later come to describe the fed-
eral power over the Tribes as “plenary.” 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 “plenary power” 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 “plenary” in
that it leaves no room for State involvement. See Ablavsky
2015, at 1014 (“[T]he Court use[d] the term [plenary] inter-
changeably with ‘exclusive’ ”). But as sometimes happens
when this Court elides text and original meaning in favor
of broad pronouncements about the Constitution’s pur-
poses, the plenary-power idea baked in the prejudices of the
day. Cf. Plessy v. Ferguson, 163 U. S. 537 (1896). The Court
suggested that the federal government’s total power over
the Tribes derived from its supposedly inherent right to “en-
force its laws” over “th[e] remnants of a race once powerful,
Cite as: 599 U. S. ____ (2023) 33
GORSUCH, J., concurring
now weak.” Kagama, 118 U. S., at 384–385. Of course,
nothing of the sort follows from “a reasoned analysis de-
rived from the text [or] history . . . of the United States Con-
stitution.” Clinton 2002, at 163. Instead, the plenary-
power idea “constituted an unprincipled assertion of raw
federal authority.” Ibid. It rested on nothing more than
judicial claims about putative constitutional purposes that
aligned with contemporary 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 “high plenary
power era of U. S. Indian law,” this Court sometimes took
the word “plenary” pretty literally. S. Cleveland, Powers
Inherent in Sovereignty: Indians, Aliens, Territories, and
the Nineteenth Century Origins of Plenary Power Over
Foreign Affairs, 81 Texas L. Rev. 1, 62 (2002) (Cleveland).
It assumed that Congress possesses a “virtually unlimited
authority to regulate [T]ribes” in every respect. M. Steele,
Plenary Power, Political Questions, and Sovereignty in In-
dian Affairs, 63 UCLA L. Rev. 666, 670 (2016); see Cleve-
land 62–74. Perhaps most notably, the Court even sug-
gested that Congress’s “plenary authority” might allow
it to “limit, modify, or eliminate the powers of local self-
government which the [T]ribes otherwise possess.” Santa
Clara Pueblo v. Martinez, 436 U. S. 49, 56–57 (1978). It is
an “inconceivable” 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
the relationship between States and Tribes. As Congress
assumed new power to intrude on tribal sovereignty, the
Constitution’s “concomitant jurisdictional limit on the
reach of state law” began to wane. McClanahan, 411 U. S.,
at 171. It is not hard to draw a through-line between these
34 HAALAND v. BRACKEEN
GORSUCH, J., concurring
developments. This Court itself has acknowledged that its
plenary-power cases embodied a “trend . . . away from the
idea of inherent Indian sovereignty as a bar to state juris-
diction.” 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 Treatymak-
ing, 97 N. Y. U. L. Rev. 137, 142 (2022). Rather, “[f]ederal
bureaucratic control over Indian leadership and govern-
ments ran parallel to the government’s control over Indian
children” during this period. Fletcher & Singel 930. Indian
boarding schools and other intrusive “federal educational
programs . . . could not have been implemented without fed-
eral control of reservation governance.” Ibid. Nor could any
of these federal intrusions on internal tribal affairs have
been possible without this Court’s plenary-power misad-
venture.
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 “a separate people,
with the power of regulating their internal and social rela-
tions.” Kagama, 118 U. S., at 381–382. They may “make
their own substantive law in internal matters.” Martinez,
436 U. S., at 55. They may define 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). And—es-
pecially relevant here—they 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
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 “basic policy of Worcester,” and with it the
Constitution’s promise of tribal sovereignty. Williams v.
Lee, 358 U. S. 217, 219 (1959).
Cite as: 599 U. S. ____ (2023) 35
GORSUCH, J., concurring
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,
Doctrine, Context, Institutional Relationships, and Com-
mentary: The Malaise of Federal Indian Law Through the
Lens of Lone Wolf, 38 Tulsa L. Rev. 5, 9 (2002) (describing
our doctrine as “riddled with . . . inconsistency”); F. Pom-
mersheim, A Path Near the Clearing: An Essay on Consti-
tutional Adjudication in Tribal Courts, 27 Gonz. L. Rev.
393, 403 (1991) (calling our doctrine “bifurcated, if not fully
schizophrenic”). So have Members of this Court. JUSTICE
THOMAS has put the problem well: “[M]uch of the confusion
reflected in our precedent arises from two largely incompat-
ible” assumptions: That Congress “can regulate virtually
every aspect of the [T]ribes”; and that “Indian [T]ribes re-
tain inherent sovereignty.” Lara, 541 U. S., at 214–215
(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, Congress does not possess power to “cal-
ibrate ‘the metes and bounds of tribal sovereignty.’ ” 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. ___, ___–___ (2022) (slip op., at
23–24); Ramos v. Louisiana, 590 U. S. ___, ___, ___–___
(2020) (slip op., at 6, 11–17). In the process, it has come
again to recognize the Indian Commerce Clause provides
the federal government only so much “power to deal with
the Indian Tribes.” Mancari, 417 U. S., at 551–552. But to
date, these corrective steps have not yielded all they should.
While this Court has stopped 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 direc-
tion. It recognizes that Congress’s powers with respect to
36 HAALAND v. BRACKEEN
GORSUCH, J., concurring
the Tribes “derive from the Constitution, not the atmos-
phere.” Ante, at 11. It engages in a robust history-driven
analysis of the various fonts of congressional authority
without relying only on platitudes about plenary power.
Ante, at 11–13. It notes that, as an original matter, the In-
dian Commerce Clause is “broad” and covers more than
garden-variety commercial activity. Ante, at 11–16. In the
process, it reaffirms that “ ‘commerce with the Indian
[T]ribes’ ” necessarily covers commerce with “Indians as in-
dividuals.” Ante, at 15–16.
No less importantly, the Court acknowledges what the
federal government cannot do. “Article I gives Congress a
series of enumerated powers, not a series of blank checks.”
Ante, at 13. And that means that “Congress’s authority to
legislate with respect to Indians is not unbounded,” 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
Constitution—and, 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 gov-
erning their own affairs. And as this Court has long recog-
nized, domestic law arrangements fall within Tribes’ tradi-
tional powers of self-governance. See, e.g., Fisher, 424
U. S., at 387; Quiver, 241 U. S., at 605. As “ ‘a separate peo-
ple’ ” Tribes may “ ‘regulat[e] their internal and social rela-
tions’ ” as they wish. Wheeler, 435 U. S., at 322 (quoting
Cite as: 599 U. S. ____ (2023) 37
GORSUCH, J., concurring
Kagama, 118 U. S., at 381–382). In enacting ICWA, Con-
gress affirmed this understanding. It recognized that
“there is no resource that is more vital to the continued ex-
istence and integrity of Indian [T]ribes than their children.”
25 U. S. C. §1901(3). Yet it also recognized that the mass-
removal of Indian children by States and other outsiders
threatened the “continued existence and integrity of Indian
[T]ribes.” Ibid.; see also §1901(4). By setting out to elimi-
nate that practice, Congress sought to preserve the
Indian-law bargain written into the Constitution’s text by
securing the continued viability of the “third sovereign.” S.
O’Connor, Remark, Lessons From the Third Sovereign: In-
dian 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
as we have seen, state intrusions on tribal authority have
been a recurring theme throughout American history. See
Ablavsky 2014, at 1009–1037. Long ago, those intrusions
led the framers to abandon the loophole-ridden Indian af-
fairs provision in the Articles of Confederation and adopt in
the Constitution a different arrangement that commits the
management of tribal relations solely to the federal govern-
ment. Id., at 1038–1051; see also Clinton 1995, at 1098–
1165. Recognizing as much, this Court has consistently re-
affirmed the Tribes’ “immunity from state and local con-
trol.” Arizona 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
others 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-
tions against the removal of Indian children. Thankfully,
Indian children are not (these days) units of commerce. Cf.
Fletcher & Singel 897–898 (describing an early practice of
enslaving Indian children). But at its core, ICWA restricts
38 HAALAND v. BRACKEEN
GORSUCH, J., concurring
how non-Indians (States and private individuals) may en-
gage with Indians. And, as we have seen, that falls in the
heartland of Congress’s constitutional authority. Recall
that the very first Congresses punished non-Indians who
“commit[ted] any crime upon [any] friendly Indian.” 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 crim-
inal trespasses by States and private parties, directly inter-
feres with tribal intercourse. More than that, it threatens
the Tribes’ “political existence.” Worcester, 6 Pet., at 536.
And at the risk of stating the obvious, Indian commerce is
hard to maintain if there are no Indian communities left to
do commerce with.
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
place—an enduring place—in 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 significant (but limited and enumer-
ated) powers aimed at building a lasting peace. In adopting
the Indian Child Welfare Act, Congress exercised that law-
ful authority 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.
Cite as: 599 U. S. ____ (2023) 1
KAVANAUGH, J., concurring
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 21–376, 21–377, 21–378 and 21–380
_________________
DEB HAALAND, SECRETARY OF THE INTERIOR,
ET AL., PETITIONERS
21–376 v.
CHAD EVERET BRACKEEN, ET AL.
CHEROKEE NATION, ET AL., PETITIONERS
21–377 v.
CHAD EVERET BRACKEEN, ET AL.
TEXAS, PETITIONER
21–378 v.
DEB HAALAND, SECRETARY OF THE
INTERIOR, ET AL.
CHAD EVERET BRACKEEN, ET AL., PETITIONERS
21–380 v.
DEB HAALAND, SECRETARY OF THE
INTERIOR, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 15, 2023]
JUSTICE KAVANAUGH, concurring.
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
adoption proceedings. See ante, at 29, 32, n. 10. As the
Court explains, the plaintiffs in this federal-court suit
2 HAALAND v. BRACKEEN
KAVANAUGH, J., concurring
against federal parties lack standing to raise the equal
protection 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 race—even if the placement is otherwise
determined 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 prospective parent’s race. Those scenarios raise
significant questions 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 standing—for
example, by a prospective foster or adoptive parent or child
in a case arising out of a state-court foster care or adoption
proceeding. See ante, at 29, 32, n. 10.
Cite as: 599 U. S. ____ (2023) 1
THOMAS, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 21–376, 21–377, 21–378 and 21–380
_________________
DEB HAALAND, SECRETARY OF THE INTERIOR,
ET AL., PETITIONERS
21–376 v.
CHAD EVERET BRACKEEN, ET AL.
CHEROKEE NATION, ET AL., PETITIONERS
21–377 v.
CHAD EVERET BRACKEEN, ET AL.
TEXAS, PETITIONER
21–378 v.
DEB HAALAND, SECRETARY OF THE
INTERIOR, ET AL.
CHAD EVERET BRACKEEN, ET AL., PETITIONERS
21–380 v.
DEB HAALAND, SECRETARY OF THE
INTERIOR, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 15, 2023]
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 “[G]overnment is
acknowledged by all to be one of enumerated powers,” hav-
ing only those powers that the Constitution confers ex-
2 HAALAND v. BRACKEEN
THOMAS, J., dissenting
pressly or by necessary implication. McCulloch v. Mary-
land, 4 Wheat. 316, 405 (1819). All other powers (like fam-
ily or criminal law) generally remain with the States. The
Federal Government thus lacks a general police power to
regulate state family law.
However, in the Indian Child Welfare Act (ICWA), Con-
gress ignored the normal limits on the Federal Govern-
ment’s power and prescribed rules to regulate state child
custody proceedings in one circumstance: when the child in-
volved happens to be an Indian. As the majority acknowl-
edges, ICWA often overrides state family law by dictating
that state courts place Indian children with Indian caretak-
ers even if doing so is not in the child’s best interest. See
ante, at 2. It imposes heightened standards before remov-
ing Indian children from unsafe environments. See ante, at
3–4. And it allows tribes to unilaterally enroll Indian chil-
dren and then intervene in their custody proceedings. See
ante, at 4, 6–8.
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, rea-
soning 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, 659–665 (2013) (THOMAS, J., concurring). Sec-
ond, the Treaty Clause does no work because ICWA is not
based on any treaty. Third, the foreign-affairs powers
(what the majority terms “structural principles”) inherent
Cite as: 599 U. S. ____ (2023) 3
THOMAS, J., dissenting
in the Federal Government have no application to regulat-
ing the domestic child custody proceedings of U. S. citizens
living within the jurisdiction of States.
I would go no further. But, as the majority notes, the
Court’s precedents have repeatedly referred to a “plenary
power” that Congress possesses over Indian affairs, as well
as a general “trust” 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 “ple-
nary power” 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
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, Office of Minor-
ity Health, Profile: 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 expect 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 defines “Indian child” capaciously:
It includes not only children who are members of an Indian
tribe, but also those children who are merely eligible for
membership in a tribe and are the biological child of a tribal
4 HAALAND v. BRACKEEN
THOMAS, J., dissenting
member. See 25 U. S. C. §1903(4). If the child resides on
Indian tribal lands, then the Indian tribal court has juris-
diction. §1911(a). But, if the child resides within a State,
ICWA requires state courts to transfer any proceedings to
a tribal court, absent “good cause to the contrary,” upon pe-
tition 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 ex-
ample, 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)–(e). If the parent wishes to voluntarily relin-
quish his or her rights and facilitate an adoption, the child’s
tribe has a right to intervene “at any point” and to collater-
ally attack the court’s decree. §§1911(c), 1914. Moreover,
it appears that tribes can enroll children unilaterally, with-
out the parent’s consent. Accordingly, even if the biological
parents, 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 happened here—the children were unilaterally desig-
nated as tribal members by tribes, which then sought to
block adoptions that everyone else thought were best for the
children involved. And, even though some of those adop-
tions have now been finalized, it appears that the tribes can
collaterally attack them for an indefinite period of time.
§1914.
Besides these procedural hurdles, ICWA dictates the
preferences a court must adhere to when deciding where to
place the child. In the typical case, the primary considera-
tion would be the best interests of that child. E.g., Tex.
Fam. Code Ann. §153.002 (West 2014); American Law In-
stitute, 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.
Cite as: 599 U. S. ____ (2023) 5
THOMAS, J., dissenting
Super. 290, 302, 640 A. 2d 926, 932 (1994). That makes
sense; as the majority notes, these children are some of the
most vulnerable among us, and their interests should be a
court’s primary concern. See ante, at 1. But ICWA dis-
places that standard with its own hierarchy of preferences,
requiring a court to prefer any placements with (1) a mem-
ber of the child’s extended family; (2) other members of the
child’s tribe; and (3) other Indian families of any tribe, an-
ywhere in the country. §1915(a). Similar rules govern fos-
ter-care placements. §1915(b). As the majority notes, these
preferences collectively ensure that any Indian from any
tribe in the country outranks all non-Indians for adopting
and fostering those whom ICWA deems to be Indian chil-
dren. See ante, at 5.
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 affiliate themselves with a tribe.1) The child and his or
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 in-
volved happens to be an Indian. To answer that question, I
turn first to the text and original meaning of the Constitu-
tion.
——————
1 An analogous law might be if the Federal Government tried to regu-
late the child custody proceedings of U. S. citizens who are eligible for
Russian, Mexican, Israeli, or Irish citizenship.
6 HAALAND v. BRACKEEN
THOMAS, J., dissenting
II
To explain the original understanding of the Constitu-
tion’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 specific, enumerated powers on the Federal Gov-
ernment which aimed at specific problems that the Nation
faced under the Articles of Confederation. The new Federal
Government’s actions with respect to Indian tribes are eas-
ily 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 tribes—not 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
Commerce Clause, 85 Denver U. L. Rev. 201, 219, and
n. 121 (2007) (Natelson) (collecting laws). These regula-
tions were necessary because colonial traders abused their
Indian trading partners, often provoking violent Indian re-
taliation. See Adoptive Couple, 570 U. S., at 660–661; 1 F.
Prucha, The Great Father 18–21 (1984) (Prucha). Most co-
lonial governments thus imposed licensing systems of some
form both to protect Indians and to maintain trading rela-
tionships with them. See id., at 19. However, the colonial
laws were not uniform, leading to rivalries between the Col-
onies, corruption, fraud, and other abuses by traders. Id.,
at 21. Then, once the Nation had achieved independence,
it “faced innumerable difficulties,” id., at 46, from finding
ways to uphold its treaties with foreign nations to economic
Cite as: 599 U. S. ____ (2023) 7
THOMAS, J., dissenting
upheaval at home, J. Marshall, The Life of George Wash-
ington 313–316 (R. Faulkner & P. Carrese eds. 2000).
Peace with the Indians, rather than conflicts sparked by
unscrupulous traders, was imperative. Prucha 46.
The Articles of Confederation aimed to meet that need in
part by giving Congress “the sole and exclusive right and
power of . . . regulating the trade and managing all affairs
with the Indians.” Art. IX, cl. 4. However, that broad
power came with two limitations: First, the Indians could
not be “members of any of the states.” Ibid. And, second,
“the legislative right of any state within its own limits
[could not] be infringed or violated.” 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 “obscure and contradictory”; the new Nation
had “not yet settled” on which Indians were “members” of a
State or which state “legislative right[s]” could not be “in-
fringe[d].” The Federalist No. 42, pp. 268–269 (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 independent of the States; and
state officers were not bound by oath to support the Arti-
cles.
Under the Articles, Congress entered treaties with vari-
ous tribes and sought to maintain a mostly peaceful rela-
tionship with the Indians—but its authority was under-
mined at every turn. See Prucha 44–50. Again and again,
Congress entered treaties with Indians that established
boundary lines and lands set apart for the Indians, and
——————
2 For example, though it was not exactly settled what it meant for an
Indian to be a “member” of a State, the definition 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., concur-
ring).
8 HAALAND v. BRACKEEN
THOMAS, J., dissenting
again and again, frontier settlers encroached on Indian ter-
ritory and committed acts that violated those treaties. Id.,at 46–48; F. Cohen, Handbook of Federal Indian Law
§1.02[3], pp. 21–22 (2012) (Cohen). Such violations were
taken seriously; as offenses against “the laws of nations,”
they provoked the Indians and provided “just causes of
war.” The Federalist No. 3, at 44 (J. Jay); see also 2 E. de
Vattel, The Law of Nations §§71–76, pp. 161–163 (J. Chitty
ed. 1876).
Yet the Confederation Congress was almost powerless to
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 curbing the abuses that their own citizens were perpe-
trating. Prucha 48–49. The weakness of Congress meant,
however, that “federal attempts to check state intrusions
were often ignored.” Cohen §1.02[3], at 22. The result was
that, by the time of the Constitutional Convention, “the
young nation [stood on] the brink of Indian warfare on sev-
eral fronts.” Ibid. Such a war, feared some Founders, could
be destructive to the fledgling 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
federal treaties and laws “the supreme Law of the Land,”
notwithstanding the laws of any State. Art. VI. It empow-
ered Congress not only to “declare War,” but also to “raise
and support Armies,” “provide and maintain a Navy,” and
“provide for calling forth the Militia to execute the Laws of
the Union.” Art. I, §8. It enabled Congress to “define and
punish . . . Offences against the Law of Nations.” Ibid. And
it granted Congress the authority to “make all Laws which
shall be necessary and proper” for carrying out any of those
powers. Ibid.
The Constitution also provided one power specific to In-
dian tribes: the power “[t]o regulate Commerce . . . with the
Cite as: 599 U. S. ____ (2023) 9
THOMAS, J., dissenting
Indian Tribes.” §8, cl. 3. That power, however, came very
late in the drafting process and was narrower than initially
proposed. See L. Toler, The Missing Indian Affairs Clause,
88 U. Chi. L. Rev. 413, 444–464 (2021) (Toler). At two sep-
arate points, James Madison and John Rutledge proposed
a power to “ ‘regulate affairs with the Indians,’ ” a provision
that would have mirrored the Articles. Id., at 447–448,
464–465 (emphasis added). Neither proposal received
much debate, and both were rejected. See id., at 464–466.
Instead, the Convention opted to include Indian tribes in a
provision that had initially been drafted to include only
power to “ ‘regulate commerce with foreign nations, and
among the several States.’ ” See ibid. The Convention thus
expanded the Commerce Clause to the form we know today,
empowering Congress to “ ‘regulate Commerce with foreign
Nations, and among the several States, and with the Indian
tribes.’ ” Id., at 466.
On top of those powers, one more warrants note. As I
have written previously, the Constitution vests the Presi-
dent with certain foreign-affairs powers including “[t]he ex-
ecutive Power,” which includes a residual authority over
war, peace, and foreign interactions. See Art. II; Zivotofsky
v. Kerry, 576 U. S. 1, 35–40 (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 specifically enumerated on matters ranging
from maintaining the peace and issuing passports to com-
municating with foreign governments and repelling sudden
attacks on the Nation. S. Prakash, Imperial From the Be-
ginning 119–132 (2015). In his Neutrality Proclamation,
for example, President Washington declared that the
United States would remain strictly neutral in the then-on-
going war between England and France. See A Proclama-
tion (Apr. 22, 1793), reprinted in 1 American State Papers
10 HAALAND v. BRACKEEN
THOMAS, J., dissenting
140 (W. Lowrie & M. Clarke eds. 1833). Congress sup-
ported his Proclamation by imposing criminal penalties on
anyone who, among other things, went “beyond the limits
or jurisdiction of the United States with intent to be en-
listed or entered in the service of any foreign prince or
state.” §2, 1 Stat. 383. While this Court has at times de-
bated whether those residual foreign-affairs powers are lo-
cated in the Executive exclusively or the Federal Govern-
ment more broadly, see Zivotofsky, 576 U. S., at 20–22, it
has long recognized the powers as arising from our consti-
tutional framework and residing at the federal level, see,
e.g., Curtiss-Wright, 299 U. S., at 318.
B
After the Constitution’s ratification, the new Federal
Government exercised its enumerated powers with regard
to Indian 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 reflected the
Washington administration’s view that Indian tribes were
best dealt with as mostly “foreign nations,” with an eye to-
wards peace lest frontier conflicts continue to plague the
new Nation. See Letter from H. Knox to G. Washington
(July 7, 1789), reprinted in 3 Papers of George Washington
138 (W. Abbot 1989); see also Toler 433–434. Many early
treaties thus “were treaties of peace and friendship, often
providing for the restoration or exchange of prisoners” or
including “mutual assistance pacts.” Cohen §1.03[1], at 25.
Others dealt with passports and commercial affairs. Id., at
25–26. And many attested to the tribes’ status as depend-
ent nations, with the United States sometimes promising to
protect the tribe. Id., at 26.
Unlike the Confederation Congress, the new Federal
Government was no longer powerless to maintain and en-
force its treaties. Exercising its new military powers, the
First Congress established a Department of War and vested
Cite as: 599 U. S. ____ (2023) 11
THOMAS, J., dissenting
the Department with authority over “Indian affairs.” See
§1, 1 Stat. 50. War Secretary Henry Knox then called for,
and obtained, “a line of garrisons in the Indian Country, in
order to enforce the treaties and maintain the peace of the
frontier.” F. Prucha, American Indian Policy in the Forma-
tive 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 conflicts. Id., at 61–63.
Meanwhile, President Washington exercised his diplo-
matic authority to maintain peace on the frontier. For ex-
ample, when Pennsylvania settlers killed two members of
the Seneca Nation, Washington appointed a federal agent
to meet with the Seneca and “ ‘give the strongest assurances
of the friendship of the United States towards that Tribe;
and to make pecuniary satisfaction.’ ” Letter to T. Mifflin
(Sept. 4, 1790), reprinted in 6 Papers of George Washington
396 (D. Twohig ed. 1996). And, in line with his executive
authority to “regulate all intercourse with foreign powers,”
see 4 J. Elliot, Debates on the Constitution 126–127 (1863),
Washington instructed Pennsylvania’s Governor to refer
the Seneca “ ‘to the Executive of the United States, as pos-
sessing the only authority of regulating an intercourse with
them, and redressing their grievances,’ ” Letter to T. Mif-
flin, in Papers of George Washington 396.
Congress too did its part, enacting a series of acts “to reg-
ulate Trade and Intercourse with the Indian Tribes, and to
preserve Peace on the Frontiers.” See, e.g., 1 Stat. 469; 2
Stat. 139; 1 Stat. 137 (emphasis deleted). Those “Trade and
Intercourse Acts” 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
188–193. Though opponents of those provisions contended
12 HAALAND v. BRACKEEN
THOMAS, J., dissenting
that they were unnecessary because state laws and some
treaties already provided for criminal punishment, propo-
nents explained that the provisions were needed for those
who went “out of the limits of any of the States” and com-
mitted crimes that may not have been covered by a partic-
ular treaty. See 3 Annals of Cong. 751 (1792).3 Thus, as
with the border garrisons, these provisions were meant as
“an answer to the charge that” the United States did not
respect its treaties with Indian tribes, Prucha 92, while also
securing “peace with the Indian tribes” on the frontier, 3
Annals of Cong. 751. In that respect, they were much like
the criminal penalties that Congress levied on those who
went abroad and enlisted with England or France and
thereby threatened the United States’ peace with those na-
tions. 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, reflecting the Federal
Government’s powers over commerce, territories, and for-
eign affairs, the Acts forbade U. S. citizens from purchas-
ing, surveying, or settling on Indian lands. E.g., id., at 329–
330. One of the Acts, enacted in 1796, then drew a bound-
ary line with Indian tribes and required citizens to have
passports when 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 satisfaction from the tribe (while specifying that
the Indian could be arrested “within the limits of any
state”). See, e.g., §14, id., at 472–473. Then, to prevent the
——————
3 As reflected in the debates on this statute, a majority of Congress
thought that “the 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 re-
strain persons from going out of the limits of any of the States, and com-
mit murders and depredations, it would be in vain to expect any peace
with the Indian tribes.” 3 Annals of Cong. 751.
Cite as: 599 U. S. ____ (2023) 13
THOMAS, J., dissenting
tribes from allying themselves with European powers, Con-
gress forbade people 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. 329–330. To
facilitate trade, Congress also established a series of trad-
ing houses on the frontiers, appropriating federal funds to
set up the houses and purchase goods from Indians. See,
e.g., id., at 443, 453–454; 2 Stat. 173. And, “to promote civ-
ilization” and secure the tribes’ “friendship,” Congress ap-
propriated funds for the President to furnish gifts to the In-
dians. 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 62–63, 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 significant
war in the Northwest Territories. Id., at 63–67; J. Yoo, Cri-
sis and Command 75–79 (2011); M. Fletcher & W. Singel,
Indian Children and the Federal-Tribal Trust Relationship,
95 Neb. L. Rev. 885, 904–905 (2017) (Fletcher & Singel).
Additionally, 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 the United States in the War of 1812. See
Cohen §1.03[3], at 39–41. In the aftermath of that conflict,
Presidents Monroe and John Quincy Adams generally pur-
sued a policy of assimilation or removing Indians west with
their consent. Prucha, American Indian Policy 226–233.
14 HAALAND v. BRACKEEN
THOMAS, J., dissenting
That policy then gave way to a more forceful policy of re-
moving Indians west, particularly during the administra-
tion of President Andrew Jackson. Id., at 233–249; Cohen
§1.03[4], at 41–51; Prucha 193–195, 239–240.
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 32–33, 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 Eu-
ropean powers that might seek alliances with the Indian
tribes. See Cohen §1.03[3], at 37–38, n. 102; 2 Stat. 6. Dur-
ing that time, the Federal Government’s relationship with
the Indians thus remained (as it did for nearly the first hun-
dred years of our Nation) “ ‘more an aspect of military and
foreign policy’ ” than simple domestic law. See United
States v. Lara, 541 U. S. 193, 201 (2004).
C
Notably, neither President Washington nor the first Con-
gresses were particularly “concerned with the remnants of
tribes that had been absorbed by the states and had come
under their direction and control.” Prucha 92. The first
Trade and Intercourse Acts specifically provided that “noth-
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.” §13,
1 Stat. 331; §19, id., at 474. And the Constitution’s Appor-
tionment Clause provided that representatives would be
apportioned by the population of each State, “excluding In-
dians not taxed”—implying that there were Indians who
paid taxes and were incorporated into the bodies politic of
the States. Art. I, §2, cl. 3.
Cite as: 599 U. S. ____ (2023) 15
THOMAS, J., dissenting
The States accordingly enacted numerous laws to regu-
late 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 forbid-
ding its citizens from suing to enforce contracts with Indi-
ans who lived on Indian lands, and Virginia regulated the
sale of land held by Indians. See Laws of the Colonial and
State Governments, Relating to Indians and Indian Affairs,
From 1633 to 1831, pp. 65–67, 158–159 (1832). Massachu-
setts authorized its Governor to appoint guardians to over-
see Indians and their property, while Ohio and Indiana for-
bade the sale of liquor to Indians. Id., at 21–22, 232–234.
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 State—
including, 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 conflicted
with valid federal treaties or statutes on point, and courts
at the time often did not precisely demarcate the constitu-
tional boundaries between state and federal authority.
Rosen 55–56.4 But, when opponents of the Trade and In-
tercourse Acts’ criminal provisions complained that state
——————
4 The Constitution expressly denied certain powers to States, including
the power to “enter into any Treaty,” but it is silent on States’ relation-
ship 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 “a right to Treat with the Indians”). 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 “yielded to closer analysis,” and Indian
reservations have since been treated as part of the State they are within.
See Oklahoma v. Castro-Huerta, 597 U. S. ___, ___ (2022) (slip op., at 5)
(internal quotation marks omitted).
16 HAALAND v. BRACKEEN
THOMAS, J., dissenting
laws would take care of criminal offenses, the provisions’
proponents did not reply that state laws were disabled on
this point—they instead noted that citizens might go be-
yond the limits of States and commit crimes. See 3 Annals
of Cong. 751. And notably, Congress’ early statutes did not
purport to regulate Indians either on or off Indian lands—
they instead regulated and penalized only U. S. citizens
who were trading with Indians or committing acts on In-
dian lands that threatened the peace with the tribes.
Those statutory lines reflected the early dynamic of fed-
eral-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.
472–473. Under that regime, the Federal Government as-
serted no authority over the acts of Indians who lived on
tribal lands—much less over Indians who lived off tribal
lands and within a State’s sole jurisdiction.
That general jurisdictional line held until 1817, when
Congress first enacted a statute to impose penalties on an-
yone who committed a crime against a U. S. citizen while
on Indian lands. See 3 Stat. 383. But Justice McLean, rid-
ing circuit, held that statute unconstitutional in 1834—at
least as it applied to Indian lands located within the terri-
torial limits of a State. See United States v. Bailey, 24
F. Cas. 937 (No. 14,495) (CC Tenn.). As Justice McLean ex-
plained, “[t]hat the federal government is one of limited
powers, is a principle so obvious as not to admit of contro-
versy.” Id., at 938. Yet the Indian lands at issue were not
located within a federal territory, and there had not been
“any cession of jurisdiction by the state of Tennessee.” Id.,
at 939.5 Nor was the criminal statute in any way related to
——————
5 This decision thus was consistent with one issued 12 years later by
this Court—which upheld the 1834 Trade and Intercourse Act’s criminal
Cite as: 599 U. S. ____ (2023) 17
THOMAS, J., dissenting
“commerce” with the Indian tribes. Ibid. Indeed, Justice
McLean asked, if Congress could enact this statute, “why
may not [C]ongress legislate on crimes for the states gener-
ally?” Id., at 940. He concluded that Congress “trans-
cended their constitutional powers” 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 authority, state laws thus played a signifi-
cant 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
tribes—just as in any other context. Although our cases
have at times suggested a broader power with respect to
Indians, there is no evidence for such a free-floating 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
powers. For example, the Treaty Clause supported the Fed-
eral Government’s treaties with Indians, and the Property
Clause supported the gifts allocated to Indians. The powers
to regulate territories and foreign affairs supported the reg-
ulation of passports and penalties for criminal acts on In-
dian lands. The various war-related powers supported mil-
itary campaigns against Indian tribes. And the Commerce
Clause supported the regulation of trade with Indian tribes.
Moreover, the Founders deliberately chose to enumerate
one power specific to Indian tribes: the power to regulate
“Commerce” with tribes. Because the Constitution contains
——————
provisions against a citizen of the United States, deemed not to be an
Indian, who committed a crime on Indian lands within “a part of the ter-
ritory of the United States, and not within the limits of any particular
State.” United States v. Rogers, 4 How. 567, 571–572 (1846).
18 HAALAND v. BRACKEEN
THOMAS, J., dissenting
one Indian-specific power, there is simply no reason to
think that there is some sort of free-floating, unlimited
power over all things related to Indians. That is common
sense: expressio unius est exclusio alterius. And that is par-
ticularly true here, because the Founders adopted the “In-
dian Commerce Clause” while rejecting an arguably
broader authority over “Indian affairs.” See Adoptive Cou-
ple, 570 U. S., at 662. Accordingly, here as elsewhere, the
Federal Government can exercise only its constitutionally
enumerated powers. Because each of those powers contains
its own inherent limits, none of them can support an addi-
tional 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 basis—and 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 “plenary power”
are the Treaty Clause, the Commerce Clause, and “princi-
ples inherent in the Constitution’s structure.” See ante, at
10–13; Lara, 541 U. S., at 200. But each of those powers
has clear, inherent limits, and not one suggests any sort of
unlimited power over Indian affairs—much less a power to
regulate U. S. citizens outside of Indian lands merely be-
cause 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 “make Treaties”; 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
Clause precedents, this power is still limited to actual trea-
ties. See Bond v. United States, 572 U. S. 844, 854–855
Cite as: 599 U. S. ____ (2023) 19
THOMAS, J., dissenting
(2014); id., at 893–894 (THOMAS, J., concurring in judg-
ment) (the Treaty Power supports treaties only on matters
of international intercourse); Missouri v. Holland, 252 U. S.
416, 433–435 (1920). It does not confer a free-floating
power over matters that might involve a party to a treaty.
2
Second, the Commerce Clause confers only the authority
“[t]o regulate Commerce . . . with the Indian Tribes.” Art. I,
§8, cl. 3 (emphasis added). “At the time the original Consti-
tution was ratified, ‘commerce’ consisted of selling, buying,
and bartering, as well as transporting for these purposes.”
United States v. Lopez, 514 U. S. 549, 585 (1995) (THOMAS,
J., concurring); see also 1 S. Johnson, A Dictionary of the
English Language 361 (4th rev. ed. 1773) (reprint 1978) (de-
fining commerce as “Intercourse; exchange of one thing for
another; interchange of any thing; trade; traffick”). And
even under our most expansive Commerce Clause prece-
dents, the Clause permits Congress to regulate only “eco-
nomic activity” like producing materials that will be sold or
exchanged as a matter of commerce. See Lopez, 514 U. S.,
at 560; Gonzales 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 11, 16. That makes little textual
sense. The Commerce Clause confers the power to regulate
——————
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. ___, ___ (2017) (THOMAS, J., dissenting from de-
nial of certiorari) (slip op., at 3), it has still described that application in
terms of economic measures like embargoes, see Atlantic Cleaners & Dy-
ers, Inc. v. United States, 286 U. S. 427, 434 (1932); Buttfield v. Strana-
han, 192 U. S. 470, 493 (1904). See also R. Barnett, The Original Mean-
ing of the Commerce Clause, 68 U. Chi. L. Rev. 101, 113–116, 128 (2001)
(collecting Founding-era sources that equate foreign commerce with
trade).
20 HAALAND v. BRACKEEN
THOMAS, J., dissenting
a single object—“Commerce”—that is then cabined by three
prepositional phrases: “with foreign Nations, and among
the several States, and with the Indian Tribes.” Art. I, §8,
cl. 3. Accordingly, one would naturally read the term “Com-
merce” as having the same meaning with respect to each
type of “Commerce” 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 “ap-
point[ment]” power with respect to “Ambassadors, . . .
Judges of the supreme Court, and all other Officers of the
United States.” 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 evidence that
the Founders thought that the term “Commerce” in the
Commerce Clause meant different things for Indian tribes
than it did for commerce between States. See S. Prakash,
Our Three Commerce Clauses and the Presumption of In-
trasentence Uniformity, 55 Ark. L. Rev. 1149, 1161–1162
(2003).
Rather, the evidence points in the opposite direction. See
Adoptive Couple, 570 U. S., at 659–660 (THOMAS, J., concur-
ring). When discussing “commerce” with Indian tribes, the
Founders plainly meant buying and selling goods and
transportation for that purpose. For example, President
Washington once informed Congress of the need for “new
channels for the commerce of the Creeks,” because “their
trade is liable to be interrupted” by conflicts with England.
Statement to the Senate (Aug. 4, 1790), reprinted in 4
American State Papers 80. Henry Knox similarly referred
to the “profits of this commerce” with the Creeks in the con-
text of a “trading house which has the monopoly of the trade
of the Creeks.” Report (July 6, 1789), reprinted in id., at
15. And President Jefferson likewise discussed the “com-
merce [that] shall be carried on liberally” at “trading
houses” with Indians. Statement to Congress (Jan. 18,
Cite as: 599 U. S. ____ (2023) 21
THOMAS, J., dissenting
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 “Indian affairs”
power in favor of a narrower power over “Commerce . . .
with the Indian Tribes.”
As noted above, that omission was not accidental; the Ar-
ticles of Confederation had contained that “Indian affairs”
language, and that language was twice proposed (and re-
jected) at the Constitutional Convention. See Adoptive
Couple, 570 U. S., at 662.8 Then, as today, “affairs” was a
——————
7 See also Statement of T. Jefferson to Congress (Jan. 18, 1803), re-
printed in 4 American State Papers 684–685 (Officers may “have 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 . . . ”); Statement
of T. Jefferson to Congress (Jan. 28, 1802), reprinted in id., at 653 (“I lay
before you the accounts of our Indian trading houses . . . explaining the
effects and the situation of that commerce . . . ”); Statement of S. Sibley
et al. to Congress (Dec. 27, 1811), reprinted in id., at 780–782 (in the
Northwest Territory, formerly “[t]here was trade and commercial inter-
course; no agriculture,” but “[a]t present, the little commerce which re-
mains is sufficiently safe. It is agricultural protection which is wanted”);
Letter from J. Mason to W. Eustis (Jan. 16, 1812), reprinted in id., at
782–784 (“[P]eltries (deer skins) are in most part received from the Indi-
ans . . . . 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 . . . ”); Protest by J. Hendricks, J. Jackson, & J.
Simms (June 28, 1796), reprinted in id., at 613–614 (“No citizen is to be
permitted to sell, or furnish by gift, spirituous liquors to the Indians, or
to have any commercial traffic with them”); see also Natelson 214–215.
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) fo-
cused only on trade and immigration restrictions. Letter from E. Ran-
dolph to G. Washington (Feb. 12, 1791), in 7 Papers of George Washing-
ton: Presidential Series 330, 334–335 (D. Twohig ed. 1998) (“The heads
of [the commerce] power with respect to the Indian Tribes are 1. to pro-
hibit 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
restrictions”).
8 To be sure, as respondents point out, the Constitution removed two
22 HAALAND v. BRACKEEN
THOMAS, J., dissenting
broader term than “commerce,” with “affairs” more gener-
ally referring to things to be done.9 Thus, whatever the pre-
cise contours of a freestanding “Indian Affairs” Clause
might have been, the Founders’ specific rejection of such a
——————
limits on the Indian-affairs power found in the Articles of Confederation:
that the Indians not be “members of any of the States,” and that no
State’s “legislative right . . . within its own limits be . . . infringed.” See
Brief for Federal Parties 12–13. But removing those two limits in the
Indian context cannot simultaneously expand the very meaning of “com-
merce,” particularly because the Commerce Clause operates on two ob-
jects 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)
(“something done,” or “the concerns and transactions of a nation”); 1 S.
Johnson, Dictionary of the English Language (6th ed. 1785) (Johnson);
N. Bailey, A Universal Etymological English Dictionary (26th ed. 1789)
(Bailey), with Allen (“the exchange of commodities, or the buying and
selling [of] merchandize both at home and abroad; intercourse of any
kind”); Johnson (similar); Bailey (similar).
Indeed, when the Founders referred to Indian “affairs,” they were often
referring to diplomatic relations—going far afield of their references to
Indian “commerce.” E.g., G. Washington to Congress (Mar. 26, 1792), in
4 American State Papers 225 (referring to “the present crisis of affairs”
with Indians and “managing the affairs of the Indian tribes” 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 “the subject of Indian Affairs” in the
context of measures “to procure a peace with the Indians” and troops);
Natelson 217–218 (detailing preconstitutional references to the Depart-
ment of Indian Affairs). As noted above, Congress tasked the War De-
partment with duties “relative to Indian affairs.” §1, 1 Stat. 50. And a
Committee of the Continental Congress once remarked that “the princi-
pal objects” of that Congress’ power of “managing affairs with” Indians
had encompassed “making war and peace, purchasing certain tracts of
their land, fixing the boundaries between them and our people, and pre-
venting the latter [from] settling on lands left in possession of the for-
mer.” 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 “objects.” But, whatever the precise bounds of an “Indian
affairs” power, it was decidedly broader than a power over Indian “com-
merce.”
Cite as: 599 U. S. ____ (2023) 23
THOMAS, J., dissenting
power shows that there is no basis to stretch the Commerce
Clause beyond its normal limits.10
3
Third, the “structural principles” 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 315–322). 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
Executive Power Over Foreign Affairs, 111 Yale L. J. 231,
298–332 (2001). Those powers were brought to bear on In-
dian tribes, with whom the Federal Government main-
tained a government-to-government relationship. See, e.g.,
Cohen §1.03[1], at 25–26; 1 Stat. 470 (passports on Indian
lands); id., at 137 (crimes on Indian lands); id., at 383 (en-
listing with foreign states).
——————
10 The historical record thus provides scant support for the view, advo-
cated by some scholars, that the term “commerce” meant (in the context
of Indians) all interactions with Indians. E.g., G. Ablavsky, Beyond the
Indian Commerce Clause, 124 Yale L. J. 1012, 1028–1032 (2015) (Ablav-
sky). The main evidence for that view appears to be (1) a few, fairly iso-
lated references to “commerce” outside the context of trade, usually in
the context of sexual encounters, (2) the fact that one definition of “com-
merce” was “intercourse” at the Founding, and (3) the fact that trade
with Indians, at the Founding, had political significance. Ibid. But, as
noted above, the Founders repeatedly used the term “commerce” when
discussing trade with Indians. And just because that trade had political
significance surely does not mean that all things of political significance
were “commerce.” Nor is the definition of “commerce” as “intercourse”
instructive, because dictionaries from the era also defined “intercourse”
as “commerce.” E.g., Johnson; Allen. Even some of these same scholars
concede that the Founders overwhelmingly discussed “trade” with Indi-
ans—far more than either “intercourse” or “commerce” with them. See
Ablavsky 1028, n. 81. And, again, when the Founders did discuss “com-
merce” specifically, they did so almost entirely in the context of trade.
See supra, at 20–21, and n. 7.
24 HAALAND v. BRACKEEN
THOMAS, J., dissenting
But that authority is a foreign, not domestic, affairs
power. It comprehends external relations, like matters of
war, peace, and diplomacy—not internal affairs like adop-
tion proceedings. The Court made that point explicit in
Curtiss-Wright: The “power over external affairs [is] in
origin and essential character different from that over in-
ternal affairs.” 299 U. S., at 319; see also Youngstown Sheet
& Tube Co. v. Sawyer, 343 U. S. 579, 635, n. 2 (1952) (Jack-
son, J., concurring in judgment and opinion of Court) (rec-
ognizing this distinction). For external affairs, the Consti-
tution grants the Federal 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 34–35 (opinion of
THOMAS, J.).
Again, all those limits dovetail with the historical prac-
tices of the Founding era. As discussed above, the Found-
ing-era Government undertook a wide array of measures
with respect to Indian tribes. But, apart from measures
dealing with commerce, most (if not all) of the Federal Gov-
ernment’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
——————
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, “in 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.” §4, 3 Stat. 683; §22, 4 Stat. 733.
But even that statute appears to be merely part of the general “design”
of the Acts: to “protect the rights of Indians to their properties” “[b]ecause
of recurring trespass upon and illegal occupancy of Indian territory” 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 commerce powers of the Federal Government by preventing
Cite as: 599 U. S. ____ (2023) 25
THOMAS, J., dissenting
with 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 congruence—between the government’s actions and
the Constitution’s enumerated powers—likely reflects the
fact that those powers, collectively, responded to the most
pressing concerns of the day: that Congress could not en-
force its treaties with Indians, police the frontier, or regu-
late unscrupulous traders—all of which caused violence
and raised the specter of war with Indian tribes. As noted,
when Congress tried to expand its domain in 1817 to regu-
late the criminal acts of Indians, one Justice of this Court
found it to be a palpable violation of Congress’ limited pow-
ers. See Bailey, 24 F. Cas., at 938–940. And, all the while,
States continued to regulate matters relating to Indians
within their territorial limits. The normal federalist dy-
namic thus extended to the domain of Indian affairs: The
Federal Government was supreme with respect to its enu-
merated powers, but States retained all residual police pow-
ers within their territorial borders. See id., at 938–939;
McCulloch, 4 Wheat., at 405. And the Federal Govern-
ment’s enumerated powers were not unlimited, but con-
fined to their plain meaning and limits.
B
So where did the idea of a “plenary power” 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
from seizing Cherokee lands. Id., at 11. The Tribe asserted
——————
non-Indians from stealing Indian lands, circumventing Congress’ trade-
licensing scheme, and disrupting the peace with Indian tribes.
26 HAALAND v. BRACKEEN
THOMAS, J., dissenting
that Article III both allowed the suit and gave this Court
original jurisdiction because the suit was one by a “foreign
Stat[e]” against the State of Georgia. §2, cls. 1–2. Writing
for the Court, Chief Justice Marshall admitted that the
Tribe’s argument was “imposing”: The Tribe was “a state,
as a distinct political society,” but it was “not a state of the
union.” 5 Pet., at 16. Nonetheless, the Court refused to
hear the case. As Marshall reasoned, Indian tribes were
not “foreign state[s] in the sense of the constitution,” 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 “domestic depend-
ent nations” whose “relation to the United States resembles
that of a ward to his guardian.” Id., at 17.
Other than this opinion, I have been unable to locate any
evidence that the Founders thought of the Federal Govern-
ment as having a generalized guardianship-type relation-
ship with the Indian tribes—much less one conferring any
congressional power over Indian affairs. To the contrary,
such a status seems difficult to square with the relationship
between the Federal Government and tribes, which at
times involved warfare, not trust. See, e.g., Fletcher &
Singel 904–907; F. Hutchins, Tribes and the American Con-
stitution 104 (2000). And, if such a general relationship ex-
isted, there would seem to be little need for the Federal Gov-
ernment to have ratified specific 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 bottom, Cherokee Nation’s loose dicta cannot support a
broader power over Indian affairs.
——————
12 In dissent, Justice Thompson reasoned that the reference to “Indian
tribes” was meant only to ensure that the Federal Government could reg-
ulate commerce with tribes, which were often subunits of Indian nations.
Accordingly, he concluded that Indian nations were “ ‘foreign states’ ” un-
der Article III. Cherokee Nation, 5 Pet., at 64.
Cite as: 599 U. S. ____ (2023) 27
THOMAS, J., dissenting
Nevertheless, Cherokee Nation’s suggestion was picked
up decades later in United States v. Kagama, 118 U. S. 375(1886)—the first case to actually apply a broader, unenu-
merated power over Indian affairs. In Kagama, the Court
considered the Major Crimes Act of 1885, which, similar to
the 1817 Act held unconstitutional by Justice McLean while
riding 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 first rejected the idea
that the Commerce Clause could support the Act—reason-
ing that “it 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 tribes.” Kagama, 118 U. S., at 378–379.
But the Court determined that the Major Crimes Act was
constitutional nevertheless. As the Court first noted, the
Act was “confined to the acts of an Indian of some tribe, of
a criminal character, committed within the limits of the res-
ervation.” Id., at 383. The Court then cited several cases
arising from congressional regulations of Indian lands lo-
cated 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); Ameri-
can Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828)).
Next, the Court reasoned that the Act “does not interfere
with the process of the State courts within the reservation,
nor with the operation of State laws upon white people
found there.” 118 U. S., at 383. Instead, the Act’s “effect[s
are] confined to the acts of an Indian of some tribe, of a
criminal character, committed within the limits of the res-
ervation.” Ibid.That sort of language seems to view Indian lands as akin
to quasi-federal lands or perhaps “external” to the Nation’s
28 HAALAND v. BRACKEEN
THOMAS, J., dissenting
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 “external”
at the Founding mean that they remained “external” in
1886.13 Nor does the fact that Congress could regulate citi-
zens 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 “Indian
tribes are the wards of the nation.” Kagama, 118 U. S., at
383 (emphasis in original). Because of “their very weakness
and helplessness,” it reasoned, “so largely due to the course
of dealing of the Federal Government with them and the
treaties in which it has been promised, there arises the duty
of protection, and with it the power.” Id., at 384. This
power “over th[e] remnants” of the Indian tribes, the Court
stated, “must exist in [the federal] government, because it
never has existed anywhere else,” “because it has never
been denied, and because it alone can enforce its laws on all
the tribes.” Id., at 384–385.
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.
515 (1832); Fellows v. Blacksmith, 19 How. 366 (1856) (only
the Federal Government, not private parties, can enforce
——————
13 As discussed more below, Congress declared in 1871 that “hereafter
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.” 16 Stat. 566.
Cite as: 599 U. S. ____ (2023) 29
THOMAS, J., dissenting
removal 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 addi-
tional authority with regard to Indians—much less a
sweeping, unbounded 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 “plenary power” or “plenary author-
ity” 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
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
absolute. See, e.g., ante, at 13 (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, 56–57 (1978).
The majority’s opinion today continues in that vein—only
confirming its lack of any constitutional basis. Like so
many cases before it, the majority’s opinion lurches from
one constitutional hook to another, not quite hanging the
idea of a plenary power on any of them, while insisting that
the plenary power is not absolute. See ante, at 10–13.
While I empathize with the majority regarding the confu-
sion that Kagama and its progeny have engendered, I can-
not reflexively reaffirm a power that remains in search of a
constitutional basis. And, while the majority points to a few
actual constitutional provisions, like the Commerce and
Treaty Clauses, those provisions cannot bear the weight
that our cases have placed upon them.
30 HAALAND v. BRACKEEN
THOMAS, J., dissenting
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
Indian 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 In-
dian affairs, as with any other affairs, we should always
evaluate whether a law can be justified by the Constitu-
tion’s enumerated powers, rather than pointing to amor-
phous 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-
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 precedents—upholding laws
that regulate tribal lands, tribal governments, and com-
merce with tribes—can be understood through a core con-
ceptual 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 “plenary power” language
as talismanic, and transforming that power into the truly
unbounded, absolute power that they disclaim. The basic
premise that the powers of the Federal Government are
limited and defined should counsel against taking that step.
Cite as: 599 U. S. ____ (2023) 31
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 courts—not on Indian lands—merely
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 Indians—by, 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 find 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 fed-
eral property and is not limited to federal lands; in fact, the
Federal Government owns very little Indian land. See Sta-
tistical Record of Native North Americans 1054 (M. Reddy
ed. 1993); S. Prakash, Against Tribal Fungibility, 89 Cor-
nell L. Rev. 1069, 1092–1093 (2004).
Second, the Treaty Clause cannot support ICWA because
no one has identified a treaty that governs child custody
proceedings—much 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 37–38; see also
generally Vols. 1–2 C. Kappler, Indian Affairs: Laws and
Treaties (2d ed. 1902, 1904). And, in part because one Con-
gress can never bind a later Congress, the Federal Govern-
ment retains the power to abrogate treaties and has done
so for at least some Indian treaties. E.g., Lone Wolf, 187
32 HAALAND v. BRACKEEN
THOMAS, J., dissenting
U. S., at 566; accord, La Abra Silver Mining Co. v. United
States, 175 U. S. 423, 460 (1899); 1 W. Blackstone, Com-
mentaries 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 dis-
putes. Even under our more modern, expansive precedents,
the Clause is still limited to only “economic activity” 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, 610–611 (2000);
National Federation of Independent Business v. Sebelius,
567 U. S. 519, 552 (2012) (opinion of ROBERTS, C. J.); id., at
657 (Scalia, J., dissenting).14 And even Kagama itself re-
jected the Commerce Clause as a basis for any sort of ex-
pansive power over Indian affairs. 118 U. S., at 378–379.
Therefore, nothing about that Clause supports a law, like
ICWA, governing child custody 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-gov-
ernment relationship that appears to have defined those
powers at the Founding. Even so, the foreign-affairs pow-
——————
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, 490–491, 497
(2013) (finding pre-emption of a state statute regarding beneficiaries and
a change in marital status under a federal statute regulating the life in-
surance of federal employees). Here, no such independent power is to be
found.
Cite as: 599 U. S. ____ (2023) 33
THOMAS, J., dissenting
ers can operate only externally, in the context of lands un-
der the purview of another sovereign (like Indian tribal
lands) or in the context of a government-to-government re-
lationship (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 para-
digmatic domestic situation; the Federal Government
surely could not apply its foreign-affairs powers to the do-
mestic family-law or criminal matters of any other citizens
merely because they happened to have citizenship or ances-
tral connections with another nation.15 Apart from the sin-
gle 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 10–11;
McCulloch, 4 Wheat., at 405. Not one of those enumerated
powers justifies ICWA. Therefore, it has no basis whatso-
ever in our constitutional system.
B
Even taking our “plenary power” precedents as given (as
——————
15 Indeed, ICWA stands in sharp contrast to statutes regarding inter-
national adoptions, in accordance with the Hague Convention. Those
statutes generally regulate only adoptions by a foreign parent of a child
residing 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 compo-
nent; 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 stat-
utes, 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 under-
scores ICWA’s lack of any external focus.
34 HAALAND v. BRACKEEN
THOMAS, J., dissenting
the majority seems to do for purposes of these cases), noth-
ing in those precedents supports ICWA. To be sure, this
Court has repeatedly used loose language concerning a “ple-
nary power” and “trust relationship” with Indians, and that
language has been taken by some to displace the normal
constitutional rules. See ante, at 10–15. But, even taken
to their new limits, the Court’s precedents have upheld only
a variety of laws that either regulate commerce with Indi-
ans or deal with Indian tribes and their lands. Despite cit-
ing a veritable avalanche of precedents, respondents have
failed to identify a single case where this Court upheld a
federal statute comparable to ICWA.
As noted above, Kagama was careful to note that the Ma-
jor Crimes Act at issue was “confined to the acts of an In-
dian of some tribe, of a criminal character, committed
within the limits of the reservation.” 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
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
“external” 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 (link-
ing Kagama with Curtiss-Wright, 299 U. S., at 318); United
States v. Wheeler, 435 U. S. 313, 323 (1978) (describing In-
dian tribes as possessing a pre-existing sovereignty, apart
from the United States). And, viewed in that light, it would
Cite as: 599 U. S. ____ (2023) 35
THOMAS, J., dissenting
make sense to limit Kagama to that conceptual root, treat-
ing regulations of tribal lands and tribal governments as
“external” to the normal affairs of the Nation.
Indeed, such a line explains almost all of the myriad cases
that respondents have cataloged as showing an unqualified
power over Indian affairs. See, e.g., Michigan v. Bay Mills
Indian Community, 572 U. S. 782, 789 (2014) (tribal gov-
ernment’s sovereign immunity); Cherokee Nation v. Hitch-
cock, 187 U. S. 294, 299, 308 (1902) (federal approval of
mining leases on tribal lands); Stephens, 174 U. S., at 476–
477 (federal court in Indian territory). Many, for example,
dealt with federal laws that purported to diminish a tribe’s
territory 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.
Hellard, 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. 705 (1943); Choate v. Trapp, 224 U. S. 665 (1912).
Others still have permitted the Federal Government to di-
minish a tribe’s self-government. See Santa Clara Pueblo,
436 U. S., at 56–57. And yet others, in Kagama’s direct lin-
eage, 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.
___, ___ (2021) (slip op., at 1); Wheeler, 435 U. S., at 323–
324.
In doing so, some of those criminal law cases reasoned
that the Double Jeopardy Clause permits separate punish-
ments 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
___ (slip op., at 1); Lara, 541 U. S., at 200. And, along the
way, at least some of these cases clarified, like Kagama,
36 HAALAND v. BRACKEEN
THOMAS, J., dissenting
that they dealt not with “Indians who have left or never in-
habited reservations set aside for their exclusive use or who
do not possess the usual accoutrements of tribal self-gov-
ernment,” but only with Indians residing on Indian lands.
McClanahan v. Arizona Tax Comm’n, 411 U. S. 164, 167–
168 (1973); accord, Fisher v. District Court of Sixteenth Ju-
dicial Dist. of Mont., 424 U. S. 382, 383 (1976) (per curiam)
(dealing with “an adoption proceeding in which all parties
are members of the Tribe and residents of the Northern
Cheyenne Indian Reservation”); United States v. Algoma
Lumber Co., 305 U. S. 415, 417 (1939) (regulations of “con-
tracts for the sale of timber on land of the Klamath Indian
Reservation”). In case after case, the law at issue purported
to reach only tribal governments or tribal lands, no more.
To be sure, applying Kagama’s conceptual framework ul-
timately 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 sover-
eignty that serves as the basis for that congressional power.
See Lara, 541 U. S., at 214–215 (THOMAS, J., concurring in
judgment). But that appears to be a hallmark of Kagama
and its progeny, not a peculiarity. As Chief Justice Mar-
shall once stated, Indians are neither wholly foreign nor
wholly domestic, but are instead “domestic dependent na-
tions,” akin to “ ‘[t]ributary’ ” states. Worcester, 6 Pet., at
561; Cherokee Nation, 5 Pet., at 16–17. It may be that this
contradiction is simply baked into our Indian jurispru-
dence. And, in any event, recognizing the proper conceptual
root for these precedents makes the most sense of them as
a textual and original matter—and it is surely preferable to
continuing along this meandering and ill-defined path.
Yet, even confining Kagama’s conceptual error to its
roots, the majority seems concerned that other precedents
suggest that the Commerce Clause has broader application
with respect to Indian affairs. But many of this Court’s
precedents, even when referring to some broader power,
Cite as: 599 U. S. ____ (2023) 37
THOMAS, J., dissenting
dealt with laws that governed trade with Indians, no more.
See, e.g., United States v. Holliday, 3 Wall. 407 (1866) (sell-
ing 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 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
example, 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 sov-
ereign immunity; any language about the breadth of the
“Indian Commerce Clause” was wholly unnecessary to that
result. Id., at 62. Shorn of their dicta, all of these prece-
dents reflect only the longstanding—and enumerated—au-
thority to regulate commerce with Indian tribes.
Other precedents cited by the majority that do not fit into
Kagama’s conceptual framework are easily explicable as
supported by other, specific powers of Congress. For exam-
ple, Lone Wolf held that Congress can enact laws that vio-
late treaties with Indians; that holding was justified by
Congress’ general power to abrogate an existing law or
treaty. 187 U. S., at 565–566; accord, La Abra Silver Min-
ing 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 pur-
suant 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 establish a discrete trust fund with $500,000 for a Tribe,
with annual interest to be paid to the Tribe. See Seminole
Nation v. United States, 316 U. S. 286, 293–294 (1942).
38 HAALAND v. BRACKEEN
THOMAS, J., dissenting
Though that case spoke of historic trust obligations, it arose
from an explicit promise to create a trust with $500,000.16
There is little reason to view such cases as expanding Con-
gress’ 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. ___, ___–___ (2022) (slip op., at 20–21) (judicial
opinions must be taken in context, not read like statutes).
Congress can regulate commerce 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 discrete
trust. By regulating family-law matters of citizens living
——————
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
United States had to provide “just compensation” for the taking of Indian
lands—which 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 231–232; see Cohen
§16.04[3], at 1090–1091. 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 “plenary”
powers. Prior to our 1995 decision in United States v. Lopez, 514 U. S.
549, the Court for decades had stated that “the Commerce Clause is a
grant of plenary authority” in the realm of interstate commerce. See Ho-
del 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 clarified 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. ____ (2023) 39
THOMAS, J., dissenting
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
therefore would drastically expand the context in which we
have previously upheld Indian-related laws in Kagama’s
framework.
But, even if that is so, the majority appears to ask “why
Congress’s power is limited to these scenarios.” Ante, at 17,
n. 4. The majority nearly answers itself: because our Con-
stitution is one of enumerated powers, and limiting Con-
gress’ authority to those “buckets” would bring our jurispru-
dence closer to the powers enumerated by the text and
original meaning of the Constitution. See ante, at 11, 14,
17, 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 orig-
inal meaning in the area of Indian law.
* * *
The Constitution confers enumerated 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, trea-
ties, or federal property. It therefore fails equally under the
Court’s precedents as it fails under the plain text and orig-
inal meaning of the Constitution.
If there is one saving grace to today’s decision, it is that
40 HAALAND v. BRACKEEN
THOMAS, J., dissenting
the majority holds only that Texas has failed to demon-
strate that ICWA is unconstitutional. See ante, at 15, 17.
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
ICWA’s patent intrusion into the normal domain of state
government and clear departure from the Federal Govern-
ment’s enumerated powers, I would hold that Congress
lacked any authority to enact ICWA.
I respectfully dissent.
Cite as: 599 U. S. ____ (2023) 1
ALITO, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
Nos. 21–376, 21–377, 21–378 and 21–380
_________________
DEB HAALAND, SECRETARY OF THE INTERIOR,
ET AL., PETITIONERS
21–376 v.
CHAD EVERET BRACKEEN, ET AL.
CHEROKEE NATION, ET AL., PETITIONERS
21–377 v.
CHAD EVERET BRACKEEN, ET AL.
TEXAS, PETITIONER
21–378 v.
DEB HAALAND, SECRETARY OF THE
INTERIOR, ET AL.
CHAD EVERET BRACKEEN, ET AL., PETITIONERS
21–380 v.
DEB HAALAND, SECRETARY OF THE
INTERIOR, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[June 15, 2023]
JUSTICE ALITO, dissenting.
The first line in the Court’s opinion identifies what is
most important about these cases: they are “about children
who are among the most vulnerable.” Ante, at 1. 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
2 HAALAND v. BRACKEEN
ALITO, J., dissenting
their parents, as well as our Constitution’s division of fed-
eral and state authority.
Decisions about child custody, foster care, and adoption
are core state functions. The paramount concern in these
cases has long been the “best interests” of the children in-
volved. See, e.g., 3 T. Zeller, Family Law and Practice
§§32.06, 32.08 (2022); 6 id., §64.06. But in many cases, pro-
visions of the Indian Child Welfare Act (ICWA) compel ac-
tions that conflict with this fundamental state policy, sub-
ordinating what family-court judges—and often biological
parents—determine 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 dis-
tressing consequences. To its credit, the Court acknowl-
edges what happened to these children, but its decision does
nothing 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
guardian and a psychological expert. Because a Tribe ob-
jected, he would have been sent to an Indian couple that he
did not 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 contin-
uing 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
Cite as: 599 U. S. ____ (2023) 3
ALITO, J., dissenting
the couple joined this lawsuit did the Tribe agree to a set-
tlement that would permit the couple to finalize the adop-
tion.
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 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 without 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 adoption was in Child P.’s best interest. “To comply
with the ICWA,” the state court removed Child P. from the
couple’s custody and placed her with her maternal grand-
mother, “who had lost her foster license due to a criminal
conviction.” Ante, at 8 (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 In-
dian affairs, it does not have the power to sacrifice the best
interests 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 force those judges to abide by the tribes’ priorities regard-
ing 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 “plenary” but not “absolute.”
Ante, at 13–14. The majority in today’s cases did not coin
this formulation; it merely repeats what earlier cases have
4 HAALAND v. BRACKEEN
ALITO, J., dissenting
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 vacu-
ity. The term “plenary” is defined in one dictionary after
another as “absolute.” See, e.g., New Oxford American Dic-
tionary 1343 (3d ed. 2010); Webster’s Third New Interna-
tional Dictionary 1739 (2002); The Random House Diction-
ary of the English Language 1486 (2d ed. 1987). If we
accept these definitions, what the Court says is that abso-
lute ≠ absolute and plenary ≠ 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 field 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 propo-
sition that Congress has broad power to regulate Indian af-
fairs. We have “consistently described” Congress’s “powers
to legislate in respect to Indian tribes” as “ ‘plenary and ex-
clusive.’ ” United States v. Lara, 541 U. S. 193, 200 (2004)
(collecting cases). Reflecting 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. Mar-
tinez, 436 U. S. 49, 56–58 (1978) (modifying tribal govern-
ments’ powers of self-government); Lone Wolf v. Hitchcock,
187 U. S. 553, 565–566 (1903) (transferring tribal land).
Nor do I dispute the notion that Congress has undertaken
responsibilities that have been roughly analogized to those
Cite as: 599 U. S. ____ (2023) 5
ALITO, J., dissenting
of a trustee. In exercising its constitutionally-granted pow-
ers, the Federal Government, “following ‘a humane and self
imposed policy,’ ” has committed itself to “ ‘moral obligations
of the highest responsibility and trust’ ” to the Indian peo-
ple. United States v. Jicarilla Apache Nation, 564 U. S.
162, 176 (2011).1
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 “pertinent consti-
tutional restrictions” that circumscribe the legislative
power. United States v. Creek Nation, 295 U. S. 103, 109–
110 (1935); see also New York v. United States, 505 U. S.
144, 156 (1992) (“Congress exercises its conferred powers
subject to the limitations contained in the Constitution”).
For example, in Seminole Tribe of Fla. v. Florida, 517
U. S. 44 (1996), we held that Congress’s power under the
Indian Commerce Clause was limited by “the background
principle of state sovereign immunity embodied in the Elev-
enth Amendment.” Id., at 72. We rejected the Tribe’s ar-
gument that Congress’s Indian affairs power could exceed
other constitutional restrictions when “necessary” to “ ‘pro-
tect the tribes’ ” from state interference. Id., at 60. Foun-
dational constitutional principles like state sovereign im-
munity, we observed, are “not so ephemeral as to dissipate
when the subject of the suit is [in] an area, like the regula-
tion of Indian commerce, that is under the exclusive control
——————
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
102–107, 135–138, 156–157, 165–166 (Dec. 2018) (discussing poor per-
formance of students in tribal schools, substandard housing and physical
infrastructure on reservations, and high rates of unemployment among
Indians living on reservations).
6 HAALAND v. BRACKEEN
ALITO, J., dissenting
of the Federal Government.” Id., at 72. Even when we have
sustained legislation, we have cautioned against congres-
sional overreach. See Lara, 541 U. S., at 203–205. We have
suggested that a law may exceed Congress’s power to regu-
late Indian affairs if it has “an unusual legislative objec-
tive,” brings about “radical changes in tribal status,” or “in-
terfere[s] with the power or authority of any State.” Ibid.We have rarely had occasion to enforce these limits, in
part because the enactments before us have often fallen
comfortably within the historical bounds of Congress’s enu-
merated powers. See ante, at 33–38 (THOMAS, J., dissent-
ing). But that does not mean that we should shy away from
enforcement 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 “system of dual sovereignty
between the States and the Federal Government” estab-
lished by the Constitution. Gregory v. Ashcroft, 501 U. S.
452, 457 (1991). “The powers delegated . . . to the federal
government are few and defined,” while “[t]hose which . . .
remain in the State governments are numerous and indefi-
nite.” The Federalist No. 45, p. 292 (C. Rossiter ed. 1961)
(J. Madison). The powers retained by the States constitute
“ ‘a residuary and inviolable sovereignty,’ ” secure against
federal intrusion. Printz v. United States, 521 U. S. 898,
919 (1997) (quoting The Federalist No. 39, at 245 (J. Madi-
son)). This structural principle, reinforced in the Tenth
Amendment, “confirms that the power of the Federal Gov-
ernment is subject to limits that may, in a given instance,
reserve power to the States.” New York, 505 U. S., at 157.
The corollary is also true: in some circumstances, the pow-
ers reserved to the States inform the scope of Congress’s
power. Murphy v. National Collegiate Athletic Assn., 584
U. S. ___, ___ (2018) (slip op., at 15). This includes in the
Cite as: 599 U. S. ____ (2023) 7
ALITO, J., dissenting
area of Indian affairs. Dick v. United States, 208 U. S. 340,
353 (1908) (Congress’s primacy over Indian tribes and
States’ “full and complete jurisdiction over all persons and
things within [their] limits” are “fundamental principles . . .
of equal dignity, and neither must be so enforced as to nul-
lify or substantially impair the other”).
While we have never comprehensively enumerated the
States’ reserved powers, we have long recognized that gov-
ernance of family relations—including marriage relation-
ships and child custody—is among them. It is not merely
that these matters “have traditionally been governed by
state law” or that the responsibility over them “remains pri-
marily with the States,” ante, at 14 (majority opinion), but
that the field of domestic relations “has long been regarded
as a virtually exclusive province of the States,” Sosna v.
Iowa, 419 U. S. 393, 404 (1975) (emphasis added). “The
whole subject of the domestic relations of husband and wife,
parent and child, belongs to the laws of the States, and not
to the laws of the United States.” In re Burrus, 136 U. S.
586, 593–594 (1890). “Cases decided by this Court over a
period of more than a century bear witness to this historical
fact.” 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, 734–735
(1878).
This does not mean that federal law may never touch on
family matters. As the majority observes, ante, at 14, we
have held that federal legislation that regulates certain
“economic aspects of domestic relations” can preempt con-
flicting state law. Ridgway v. Ridgway, 454 U. S. 46, 55–
56 (1981) (providing an order of precedence for beneficiaries
of a service member’s life insurance policy); see, e.g., Hill-
man v. Maretta, 569 U. S. 483, 485–486 (2013) (allocating
federal death benefits); McCarty, 453 U. S., at 211, 235–236
(allocating military retirement pay). But we have never
8 HAALAND v. BRACKEEN
ALITO, J., dissenting
held that Congress under any of its enumerated powers
may regulate the very nature of those relations or dictate
their creation, dissolution, or modification. Nor could we
and remain faithful to our founding. “No one denies that
the States, at the time of the adoption of the Constitution,
possessed full power over” ordinary family relations; and
“the Constitution delegated no authority to the Government
of the United States” in this area. Haddock v. Haddock,
201 U. S. 562, 575 (1906). It is a “most important aspect of
our federalism” that “the domestic relations of husband and
wife”—and parent and child—are “matters reserved to the
States and do not belong to the United States.” Williams v.
North Carolina, 325 U. S. 226, 233 (1945) (internal quota-
tion 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, 461–462 (Conn. Super. Ct. 1796) (declining to remove
daughter from mother’s care); Wright v. Wright, 2 Mass.
109, 110–111 (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 “anxiety is principally directed” to the child’s wel-
fare); In re Waldron, 13 Johns. Cas. 418, 421 (N. Y. Sup. Ct.
1816) (court is “principally to be directed” by “the benefit
and the welfare” of the child). By the mid-19th century,
States had begun enacting statutory adoption schemes, en-
forceable through state courts, “to provide for the welfare of
dependent children,” 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 465–466, and nn. 111, 112. As
Cite as: 599 U. S. ____ (2023) 9
ALITO, J., dissenting
the cases before us attest, this historic tradition of state
oversight of child custody and welfare through state judicial
proceedings 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
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 care-
fully-considered judicial procedures and standards it has
established to provide for a child’s welfare and instead ap-
ply a scheme devised by Congress that focuses not solely on
the best interest of the child, but also on “the stability and
security of Indian tribes.” §1902. That scheme requires
States to invite tribal authorities with no existing relation-
ship 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 in-
terests of an Indian custodian over those of the child.
§§1912(e), (f ). It forces state courts to give Indian couples
(even those of different tribes) priority in adoption and fos-
ter-care placements, 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 custodial considerations to a tribe’s al-
ternative 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 consequence is that ICWA’s provisions may delay or
prevent a child’s adoption by a family ready to provide her
a permanent home.
ICWA’s mandates do not simply touch on family matters.
10 HAALAND v. BRACKEEN
ALITO, J., dissenting
They override States’ authority to determine—and imple-
ment through their courts—the 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 counte-
nance this result. The guarantee of dual sovereignty em-
bodied in the constitutional structure “is not so ephemeral
as to dissipate” simply because Congress invoked a so-
called plenary power. Seminole Tribe of Fla., 517 U. S., at
72. The challenged ICWA provisions effectively “nullify” a
State’s authority to conduct state child custody proceedings
in accordance with its own preferred family relations poli-
cies, 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
The indicators we previously identified also signal that
ICWA exceeds Congress’s constitutional bounds. See Lara,
541 U. S., at 203–205. First, the law has “an unusual leg-
islative objective.” Id., at 203. ICWA’s attempt to control
local judicial proceedings in a core field of state concern de-
parts significantly from other Indian affairs legislation that
we have sanctioned—laws that typically regulated actual
commerce, related to tribal lands and governance, or ful-
filled treaty obligations. See ante, at 33–38 (THOMAS, J.,
dissenting). Second, the law brings about “radical changes
in tribal status,” effectively granting tribes veto power over
——————
2 Because ICWA’s provisions comprise a comprehensive child custody
scheme relevant only to state court proceedings, I generally do not be-
lieve they can be severed without engaging in “quintessentially legisla-
tive work.” Ayotte v. Planned Parenthood of Northern New Eng., 546
U. S. 320, 329 (2006). An exception is §1911(a), which gives Indian tribes
exclusive 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, 388–389 (1976) (per curiam) (recognizing ex-
clusive tribal court jurisdiction over adoption proceedings, where all par-
ties are members of a tribe living on a reservation).
Cite as: 599 U. S. ____ (2023) 11
ALITO, J., dissenting
state judgments regarding the welfare of resident Indian
children. Lara, 541 U. S., at 205. And third, the law “in-
terfere[s] with the power [and] authority of [every] State”
in the conduct of state judicial proceedings and determina-
tion of child custody arrangements. Ibid. That is, in fact,
its express design. See, e.g., §§1911(c), 1912, 1915. These
indicators confirm that ICWA surpasses even a generous
understanding 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 chil-
dren may in some circumstances take into account a desire
to enable children to maintain a connection with the culture
of their ancestors. The Constitution provides Congress
with many means for promoting such interests. But the
Constitution does not permit Congress to displace long-ex-
ercised state authority over child custody proceedings to ad-
vance 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 dis-
sent.