1 (Slip Opinion) OCTOBER TERM, 2022

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 invo lving 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 prefer ences, Indian families or institutions from any tribe (not just the tribe to which th e 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 Ac t mandates that the Indian child’s parent or custodian and tribe be gi ven 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

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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 wh o 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 an y 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 enfo rce ICWA’s placement preferences against the wishes of one or both biological parents, even after the child is living with a new family. Fi nally, 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. Se veral 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 IC WA and that several of ICWA’s requirements violate the anticomma ndeering principle of the Tenth Amendment. They argued that IC WA employs racial classifications that unlawfully hinder non-Indian fa milies from fostering or adopting Indian children. And th ey challenged §1915(c)—t he provision that al

lows tribes to alter the prioritizati on order—on the ground that it vio

lates the nondelegation doctrine.

The District Court granted peti tioners’ 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 legi slative power, that §1915(c) does not violate the nondelegation doctrine , and that some of ICWA’s place

ment preferences satisfy the guarant ee of equal protection. The Fifth Circuit was evenly divided as to whether ICWA’s other preferences— those prioritizing “other Indian fa milies” and “Indian foster home[s]” over non-Indian families—unconstitu tionally 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 witn ess requirements, and §1915(e)’s recordkeeping requirem ent 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 violat e the Tenth Amendment.3 Cite as: 599 U. S. ____ (2023)

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Held : 1. The Court declines to dist urb 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 Co ngress 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 relation ship 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 In dians is well established and broad, but it is not unbounded. It is pl enary 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 fa mily 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 proceedin gs 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 cu stody proceedings for Indian chil

dren. They suggest that the Indi an 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 individu als 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 “child ren 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 Cons titution’s structure because those principles “extend, at most, to ma tters of war and peace.” Brief for Petitioner Texas 28. Again, petiti oners make no argument that takes this Court’s cases on their own terms. The Court has referred gener

ally to the powers “necessarily i nherent 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 th at ICWA exceeds Congress’s author

ity as precedent stands today, petitioners do not make them here. Pp. 15–17.

2. Petitioners’ anticommandeerin g challenges, whic h 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 servic es to the parents of Indian chil

dren, even though it is well esta blished that the Tenth Amendment bars Congress from “command[ing] the St ates’ 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. Bu t the provision applies to “any party” who ini

tiates an involuntary proceeding, t hus 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 proc eedings. But examples of private suits are not hard to find. And while petitioners treat “active efforts” as synonymous with “government programs,” state courts have applied5 Cite as: 599 U. S. ____ (2023)

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the “active efforts” requir ement 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. Give n 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 implicat e the Tenth Amendment. Murphy , 584 U. S., at ___. Petitioners would di stinguish 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 he alth and safety of children within its borders.” Brief for Petitioner Te xas 66. This argument is presum

ably directed at situations in whic h only the State can rescue a child from neglectful parents. But the St ate is not necessarily the only op

tion for rescue, and §1912(d) applies to other types of proceedings too. Petitioners do not distinguish betw een these varied situations, much less isolate a domain in which only the State can act. If there is a core of involuntary proceedings committe d 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” requ irement 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 wi tness 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., at 902–904, petitioners argue, Congress cannot compel state officials to search for a federally preferred placement. As with §1912, petitioners have not shown that the “diligent se arch” 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 plac ements; 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 anti commandeering challenge to a provi

sion that does not command st ate agencies to do anything.

State courts are a different ma tter. ICWA indisputably requires6 HAALAND v. BRACKEEN

Syllabus
them to apply the placement prefer ences 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 fede ral 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 insura nce 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 anti commandeering doctrine applies “dis

tinctively” to a state court’s ad judicative 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 “q uintessentially 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 enactment s 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 Amendmen t. 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 me rits of petitioners’ two additional claims—an equal protection challe nge to ICWA’s placement prefer

ences and a nondelegation challenge to §1915(c), the provision allow

ing tribes to alter the placement pr eferences—because no party before the Court has standing to raise them. Pp. 29–34. (a) The individual petitioner s argue that ICWA’s hierarchy of preferences injures them by placing them on unequal footing with In

-7 Cite as: 599 U. S. ____ (2023)

Syllabus

dian parents who seek to adopt or fo ster an Indian ch ild. But the in

dividual petitioners have not shown th at 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 ju dgment 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, an d 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 petiti oners insist that state courts are likely to defer to a federal court’s interpretation of federal law, thus giving rise to a substantial likelih ood that a favorable judgment will redress their injury. But such a theory woul d mean redressability would be satisfied whenever a decisi on 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 opinio n, 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 itto “break its promise to its citizens that it will be colorblind in childcustody 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 noti ce 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 pr eferences, which “operate independently” of the provisions Texas identifies. California v. Texas , 593 U. S. ___, ___. Texas would continue to incur the co mplained-of costs even if it were relieved of the duty to apply the pl acement preferences. Because Texas is not injured by the placement prefer ences, neither would it be injured by a tribal resolution that alte red those preferences pursuant to §1915(c). Texas therefore does not have standing to bring either its8 HAALAND v. BRACKEEN

Syllabus

equal protection or its nondelegatio n 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.

B ARRETT , J., delivered the opinion of the Court, in which R OBERTS , C. J., and S OTOMAYOR , K AGAN , G ORSUCH , K AVANAUGH , and J ACKSON , JJ., joined. G ORSUCH , J., filed a concurring opinion, in which S OTOMAYOR and J ACKSON , JJ., joined as to Parts I and III. K AVANAUGH , J., filed a concur

ring opinion. T HOMAS , J., and A LITO , J., filed dissenting opinions._________________

_________________ 1 Cite as: 599 U. S. ____ (2023)

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 Unit ed States, Washingt on, 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]

J USTICE B ARRETT 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 children2 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 of3 Cite as: 599 U. S. ____ (2023)

Opinion of the Court Indian survival are significantly reduced if our children, the only real means for the transmi ssion 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 Affair s 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 concurre nt jurisdiction, although the state court is sometimes requi red 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 proc eeding 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 fost er 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 ri ght 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 Indian5 Cite as: 599 U. S. ____ (2023)

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 re solution 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 res trictive 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 favorabl e 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

-7 Cite as: 599 U. S. ____ (2023)

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 investigat e them. After Hernandez and the Librettis joined this laws uit, 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. entered8 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 IC WA 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 from9 Cite as: 599 U. S. ____ (2023)

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 nondelegation doctrine. 1 The District Court granted pe titioners’ motion for sum

mary judgment on their consti tutional 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 courtwas evenly divided as to whether ICWA’s other preferences—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 preference s are unconstitutional. Petitioners’ Tenth Amendm ent 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 affirm ed 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 th e 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 Stat e 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.11 Cite as: 599 U. S. ____ (2023)

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, “plenar y” 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 gove rned 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 Cong ress 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 on12 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 Co ngress 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 mi ght rest in part on “the Con

stitution’s adoption of precon stitutional 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. ,13 Cite as: 599 U. S. ____ (2023)

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 cha llenged 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 res trictions”). 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, but14 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 J USTICE A LITO 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 hesitate d” 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 J USTICE A LITO ’s dissent criticizes the Court for “violating one of the most basic laws of logic” with our co nclusion that “Con gress’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 socalled plenary powers cannot override foundational constitutional con

straints”).15 Cite as: 599 U. S. ____ (2023)

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 rare ly 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 Constituti on 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 cont end 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 no t 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 wi th 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). So16 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 no t 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 judg es 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 th e 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 the17 Cite as: 599 U. S. ____ (2023)

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 petitioner s’ strategy for dealing with the confusion is not to offer a theor y 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 powe r 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 trib es as government entities; and (3) those allowing Congress to enact legi slation 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 brea k 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 federa l 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 pare nts 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 acti ve 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 individu al petitioners also have standing to do so.19 Cite as: 599 U. S. ____ (2023)

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 se rvices 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 re20 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 “act ive 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 co ntemplate 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.21 Cite as: 599 U. S. ____ (2023)

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 [t o] 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 regu late 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 soci al 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 in22 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 invol untary proceedings. And, if there is a core of involuntar y 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 comm ands the States to deploy their executive or legislative power to implement federal In

dian policy. As for petitioners’ challenges to other provisions of23 Cite as: 599 U. S. ____ (2023)

Opinion of the Court §1912—the notice requirement, expert witness require

ment, and evidentiary standar ds—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 Te nth 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 de manded 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 simply24 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 t hat 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 ‘dire ction’ 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 re quiring 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. Br ief 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 a25 Cite as: 599 U. S. ____ (2023)

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 (2 001) (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 comp ly 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 pl acement 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 allowing26 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 re quire “state judges to en

force federal prescriptions, in sofar as those prescriptions related to matters appropriat e 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 cou rts to perform certain tasks fairly described as “ancillary” to the courts’ ad judicative 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.27 Cite as: 599 U. S. ____ (2023)

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 ju stice 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 co nsent. 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 cour t 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 Calif ornia 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 af ter ratification, Congress passed a detailed statute that required state-court judges to gather and certify reports. Act of July 20, 1790, §3, 1 Stat. 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 e nactments “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, Cong ress could have relied almost entirely on state courts to apply federal law. Printz , 521 U. S., at 907. Had Congress taken that course, it wouldhave had to rely on state courts to perform adjudicationadjacent tasks too. We now confirm what we suggested in Printz : Congress may impose ancillary recordk eeping requirements related to state-court proceedings without violating the Tenth Amendment. Such requirements do not offload the Federal Government’s responsibilities on to the States, nor do they29 Cite as: 599 U. S. ____ (2023)

Opinion of the Court
put state legislatures and exec utives “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 nondelegation 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 parents30 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 plac ements. 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 provisio ns 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 in jury is speculative because it de

pends on future proceedings to foster or adopt Indi an 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.31 Cite as: 599 U. S. ____ (2023)

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 powerl ess 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 cou rt’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 th e 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 sa tisfied 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 Brac keens 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 nonIndian 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 represent33 Cite as: 599 U. S. ____ (2023)

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” necessar y 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 discri minate 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 co nstitutional 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 hindranc e to the third party’s ability to pro

tect its own interests,” neithe r 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 injure d by a tribal resolution that altered those preferences pursuant to §1915(c). Texas therefore does not have standin g 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 co nstitutional 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 petitioner s join Texas’s nondelegation chal

lenge to §1915(c), they raise no independent arguments about why they would have standing to bring this clai m. Brief for Individual Petitioners 41, n. 6; Brief for Federal Parties 79, n. 14._________________

_________________ 1 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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]

J USTICE G ORSUCH , with whom J USTICE S OTOMAYOR and J USTICE J ACKSON 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 the2 HAALAND v. BRACKEEN

G ORSUCH , 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 resp onse 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,3 Cite as: 599 U. S. ____ (2023)

G ORSUCH , J., concurring Tribes also negotiated “more than 150” treaties with the United States that included “e ducation-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 of4 HAALAND v. BRACKEEN

G ORSUCH , 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 Carlisle Indian Industrial School opened its doors at the site of an old military base in central Pennsylvania. Carlisle’s head, then-Captain Richard Henry Pratt, summarized the school’s mission this way: “[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, office rs would “visit the [Indian] camps unexpectedly with a deta chment of [officers], and5 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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 ne arly 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 childre n from speaking their native language or engaging in cust omary cultural or religious practices. BIA Report 53. No r 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). Olde r 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 Re port 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

G ORSUCH , 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 runaw ays,” 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 fam ilies” 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 “extended7 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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 ad vocates 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 fa vor 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 of8 HAALAND v. BRACKEEN

G ORSUCH , 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 adoption s 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]ove rty, 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 on9 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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 rese rvations 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 “physi cal, sexual, [and] emotional”10 HAALAND v. BRACKEEN

G ORSUCH , 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 find ings 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 alarminglyhigh percentage of such children” were “placed in nonIndian 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.11 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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” hav e 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. Asimilar regime applies by default to foster-care or preadoptive 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 marked12 HAALAND v. BRACKEEN

G ORSUCH , 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. S ee 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 st atute’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 re spect 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 exclusiv e 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, the13 Cite as: 599 U. S. ____ (2023)

G ORSUCH , J., concurring

Constitution vests in the federa l 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 assemble d, 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-governi ng 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 the14 HAALAND v. BRACKEEN

G ORSUCH , 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. CastroHuerta , 597 U. S. ___, ___ (2022) (G ORSUCH , 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 of15 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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—confe rrals 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 li ttle 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.” Letter16 HAALAND v. BRACKEEN

G ORSUCH , 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 “eithe r 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 land s, 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 of17 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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 fe deral 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 ca ll 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 United18 HAALAND v. BRACKEEN

G ORSUCH , J., concurring

States v. Lara , 541 U. S. 193, 218 (2004) (T HOMAS , 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 cons istently 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 di ctate—the Colonies’ engage

ment with the Indian Tribes. See Clinton 1995, at 1064–19 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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 Conne cticut 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 colo nial 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’ drafters20 HAALAND v. BRACKEEN

G ORSUCH , 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 hi s 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 1038.21 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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 comm on 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

G ORSUCH , 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 Federalis t 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 Citi zens 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 cons titutional 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 “th e 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 Papers23 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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 fo rcibly 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 on ly 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 of24 HAALAND v. BRACKEEN

G ORSUCH , 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]xecut ive and the [L]egislature.” Toler 479. “The residue of Indian affairs power”—all those Indian-related powers not expr essly doled out by the Con

stitution—remained the pr ovince 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 othe r Property belonging to the25 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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 it s 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 “regu late 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) (T HOMAS , 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). A26 HAALAND v. BRACKEEN

G ORSUCH , J., concurring survey of founding-era usage confirms that the term “Com

merce,” when describing relati ons 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 internationallaw idea widely shared “at the time of the founding”: When dealing with a foreign sovere ign, the “commercial and non

commercial aspects” of bilatera l 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 Trib es. 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 with27 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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 th ose 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 po wers 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 particular28 HAALAND v. BRACKEEN

G ORSUCH , 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 regu late “commerce with the individuals composing those [T]ribes.” Id. , at 417 (emphasis added). For that reason, too, “[t]he lo cality of the [commerce could] have nothing to do with the [scope of the] power.” Id. , at29 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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 co ver “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 Congre ss 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 nonecono mic” 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 cong ressional 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,” fell30 HAALAND v. BRACKEEN

G ORSUCH , J., concurring “clearly within the scope of th e 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 previo usly 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 cons titutional 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 to31 Cite as: 599 U. S. ____ (2023)

G ORSUCH , J., concurring creating federal restrictions co ncerning 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 itmust. It is “inconceivable” that a power to regulate nonIndians’ 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 instrume nt 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 “autho rity to delegate to the na

tional government power to re gulate 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 of32 HAALAND v. BRACKEEN

G ORSUCH , 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 recove r. 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, 23Stat. 385. Among other things, that law extended federalcourt 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 br oad “power [to] the General Government” over tribal affairs. Id. , at 384. Building on that move, the Court would late r 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 socalled “plenary power” case s 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 St ate 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 supp osedly inherent right to “en

force its laws” over “th[e] remnants of a race once powerful,33 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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 plenarypower 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 Questi ons, 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 allowit to “limit, modify, or eliminate the powers of local selfgovernment 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 th e 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 ju risdictional 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 these34 HAALAND v. BRACKEEN

G ORSUCH , 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 th eir 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 familylaw 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).35 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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 Tri bal Courts, 27 Gonz. L. Rev. 393, 403 (1991) (calling our doctrine “bifurcated, if not fully schizophrenic”). So have Members of this Court. J USTICE T HOMAS 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 judgme nt). Those two propositions of course clash. That is because only one is true. Yes, Tribes retain the inherent sove reignty the Constitution left for them. But no, Congress d oes not possess power to “cal

ibrate ‘the metes and bounds of tribal sovereignty.’ ” Ibid. In recent years, this Cou rt 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 plenarypower 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 Cong ress’s powers with respect to36 HAALAND v. BRACKEEN

G ORSUCH , 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 co me into view and it is easy to see why ICWA must stand. Under our Constitution, Tribes remain independent so vereigns 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 (quoting37 Cite as: 599 U. S. ____ (2023)

G ORSUCH , 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 massremoval 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 restricts38 HAALAND v. BRACKEEN

G ORSUCH , 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 consti tutional 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 t hat 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._________________

_________________ 1 Cite as: 599 U. S. ____ (2023)

K

AVANAUGH , 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]

J USTICE K AVANAUGH , 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 suit2 HAALAND v. BRACKEEN

K

AVANAUGH , 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._________________

_________________ 1 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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]

J USTICE T HOMAS , dissenting.
These cases concern the Fe deral 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

T HOMAS , 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 wo uld 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 whet her 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) (T HOMAS , 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”) inherent3 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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 consti tutional 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 be fore 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 st ate 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 tribal4 HAALAND v. BRACKEEN

T HOMAS , 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 child ren were unilaterally desig

nated as tribal members by tribes, which then sought to block adoptions that everyone el se 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.5 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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 t hat 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

T HOMAS , 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 subs tantial authority with regard to tribes. At each turn, histor y 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 (T HOMAS , 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 economic7 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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 con tradictory”; 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) (T HOMAS , J., concur

ring).8 HAALAND v. BRACKEEN

T HOMAS , 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 fledglin g 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 the9 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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) (T HOMAS , 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 gove rnments 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 Papers10 HAALAND v. BRACKEEN

T HOMAS , 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 ra tification, the new Federal Government exercised its enum erated 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 vested11 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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 inte rcourse with foreign powers,” see 4 J. Elliot, Debates on the Constitution 126–127 (1863), Washington instructed Pennsyl vania’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, enacti ng 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 contended12 HAALAND v. BRACKEEN

T HOMAS , J., dissenting
that they were unnecessary because state laws and some treaties already provided fo r criminal punishment, propo

nents explained that the provis ions 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 exam ple, 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 th e 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 woul d be in vain to expect any peace with the Indian tribes.” 3 Annals of Cong. 751.13 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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 so ld 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 ga rrisons 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 Gove rnment 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

T HOMAS , J., dissenting That policy then gave way to a more forceful policy of re

moving Indians west, particula rly 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 wi th 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 Gove rnment’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 “conc erned 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 spec ifically 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. 3.15 Cite as: 599 U. S. ____ (2023)

T HOMAS , J., dissenting The States accordingly ena cted numerous laws to regu

late Indians within their terri torial 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 ce rtain 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 In dians”). To be sure, in 1832, this Court held that Georgia could not extend its laws over the territory held by th e 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

T HOMAS , J., dissenting

laws would take care of crimi nal 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 refle cted 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, th e 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 agai nst a U. S. citizen while on Indian lands. See 3 Stat. 383. But Justice McLean, rid

ing circuit, held that statut e 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 go vernment is one of limited powers, is a principle so obviou s as not to admit of contro

versy.” Id. , at 938. Yet the Indian lands at issue were not located within a federal terri tory, 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 criminal17 Cite as: 599 U. S. ____ (2023)

T HOMAS , J., dissenting

“commerce” with the Indian tribes. Ibid. Indeed, Justice McLean asked, if Congress coul d 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 po wers” 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 fo reign 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 Un ited 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

T HOMAS , 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, 854–85519 Cite as: 599 U. S. ____ (2023)

T HOMAS , J., dissenting (2014); id. , at 893–894 (T HOMAS , 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) (T HOMAS , J., concurring); see also 1 S. Johnson, A Dictionary of the English Language 361 (4th rev. ed. 1773) (reprint 1978) (de

fining commerce as “Intercour se; 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 be tween States or with for

eign nations. See ante , at 11, 16. That makes little textual sense. The Commerce Clause co nfers 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) (T HOMAS , 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. Ch i. L. Rev. 101, 113–116, 128 (2001) (collecting Founding-era sources that equate foreign commerce with trade).20 HAALAND v. BRACKEEN

T HOMAS , 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 ex ample, the President’s “ap

point[ment]” power with resp ect 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 (T HOMAS , 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. 18,21 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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 wa s 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 interch ange 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 comme rce . . . ”); 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 pr esent, 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 co ntinent 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 cons titutionality 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 rest rictions. 3. to prohibit citizens of the United States from tr ading with them; or 4. to permit with or without restrictions”).

8 To be sure, as respondents point out, the Constitu tion removed two22 HAALAND v. BRACKEEN

T HOMAS , 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 Co mmerce Clause operates on two ob

jects beyond Indian tribes. The Consti tution’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 En glish Dictionary (1765) (Allen) (“something done,” or “the concerns an d 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 Na tions 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 subj ect of Indian Affairs” in the context of measures “to procure a pe ace with the Indians” and troops); Natelson 217–218 (detailing preconstitut ional 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’ powe r of “managing affairs with” Indians had encompassed “making war and peace, purchasing certain tracts of their land, fixing the boundaries be tween them and our people, and pre

venting the latter [from] settling on la nds 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, what ever the precise bounds of an “Indian affairs” power, it was decidedly broa der than a power over Indian “com

merce.”23 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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 re gulate 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 interact ions 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” outsid e the context of trade, usually in the context of sexual encounters, (2) th e fact that one definition of “com

merce” was “intercourse” at the Found ing, 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 polit ical 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 overwhelmi ngly discussed “trade” with Indi

ans—far more than either “intercour se” 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

T HOMAS , 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 T HOMAS , J.). Again, all those limits dovetail with the historical prac

tices of the Founding era. As discussed above, the Founding-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 abo ut 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 presumptio n 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 th e rights of Indians to th eir 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 pr ovision only furthered the foreignaffairs and commerce powers of the Federal Government by preventing25 Cite as: 599 U. S. ____ (2023)

T HOMAS , J., dissenting with questions of peace and wa r 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 th e government’s actions and the Constitution’s enumerated powers—likely reflects the fact that those powers, collecti vely, 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 suprem e with respect to its enu

merated powers, but States reta ined 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 la ws in Cherokee territory and from seizing Cherokee lands. Id. , at 11. The Tribe asserted

—————— non-Indians from stealing Indian la nds, circumventing Congress’ tradelicensing scheme, and disrupting the peace with Indian tribes.26 HAALAND v. BRACKEEN

T HOMAS , 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 Geor gia. §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 th ought 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 reason ed that the reference to “Indian tribes” was meant only to ensure th at 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 64.27 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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 powe r 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 territori es, 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’s28 HAALAND v. BRACKEEN

T HOMAS , 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 In dians 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 Co ngress 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 fe deral] 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 wa ys 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 co ntract by treaty.” 16 Stat. 566.29 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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 “ple nary 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 su ch a plenary power, usually in the context of regulating a tribal government or tribal lands, while conspicuously fa iling to ground the power in any constitutional text and caut ioning 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 provis ions, like the Commerce and Treaty Clauses, those provisions cannot bear the weight that our cases have placed upon them.30 HAALAND v. BRACKEEN

T HOMAS , 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 Co nstitution’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.31 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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 clos e to asserting a general police power over citizens who happene d 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 noton Indian lands). If nothing else, the dearth of Foundingera 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 th e 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 , 18732 HAALAND v. BRACKEEN

T HOMAS , 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 Claus e 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 R OBERTS , 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 Governme nt’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 la w. 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 fe deral statute regulating the life in

surance of federal employees). Here, no such independent power is to be found.33 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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 Gove rnment 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. Theref ore, 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 adop tions by a foreign parent of a child residing in the United St ates, or vice versa. E.g. , 114 Stat. 825; 42 U. S. C. §§14931, 14932. In other wo rds, 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

T HOMAS , 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 quasifederal 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 te rritorial 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 would35 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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 terri tory). Many, for example, dealt with federal laws that pu rported 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

T HOMAS , 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 acco utrements 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 government s 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 und ercut the very tribal sover

eignty that serves as the basis for that congressional power. See Lara , 541 U. S., at 214–215 (T HOMAS , 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, re cognizing 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 conc erned 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 referri ng to some broader power,37 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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 long standing—and enumerated—au

thority to regulate comm erce 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 treatybased 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

T HOMAS , J., dissenting Though that case spoke of hist oric 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 contex t, 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 gove rnments, or tribal lands. Nor is it based on treaties, fe deral 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 explic able 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 co mpensation” 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 inters tate 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.39 Cite as: 599 U. S. ____ (2023)

T HOMAS , 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 pr ecedents. To uphold ICWA therefore would drastically exp and 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 “buc kets” 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, Iwould recognize the contexts of those cases and limit the socalled 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 that40 HAALAND v. BRACKEEN

T HOMAS , 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._________________

_________________ 1 Cite as: 599 U. S. ____ (2023)

A LITO , 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]

J USTICE A LITO , 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 lo ses sight of this overriding concern and decides one question after another in a way that disserves the rights and interests of these children and2 HAALAND v. BRACKEEN

A LITO , 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 ju dges—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 it s credit, the Court acknowl

edges what happened to these children, but its decision does nothing to prevent the repetiti on 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 suppo rted 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 after3 Cite as: 599 U. S. ____ (2023)

A LITO , 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 movi ng 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-a ppointed 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 fost er 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 th e 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 de legate 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 have4 HAALAND v. BRACKEEN

A LITO , 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 canno t override foundational con

stitutional constraints. By atte mpting 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 those5 Cite as: 599 U. S. ____ (2023)

A LITO , 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 repe atedly 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 restricti ons 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 du ties have been discharged by this putative trustee. See, e.g. , U. S. Commission on Civil Rights, Broken Promises: Continuing Federal Fundin g 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, an d high rates of unemployment among Indians living on reservations).6 HAALAND v. BRACKEEN

A LITO , J., dissenting

of the Federal Government.” Id. , at 72. Even when we have sustained legislation, we hav e cautioned against congres

sional overreach. See Lara , 541 U. S., at 203–205. We have suggested that a law may exc eed 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 (T HOMAS , 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 retain ed by the States constitute

“ ‘a residuary and inviolable sovereignty,’ ” secure against federal intrusion. Printzv. 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 the7 Cite as: 599 U. S. ____ (2023)

A LITO , 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 hav e 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 rela tions “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 never8 HAALAND v. BRACKEEN

A LITO , 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 Ba ckground 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. As9 Cite as: 599 U. S. ____ (2023)

A LITO , 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 challeng ed 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 co nsiderations 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

A LITO , J., dissenting They override States’ author ity 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 ephemeralas to dissipate” simply because Congress invoked a socalled 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 (T HOMAS , 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 en gaging 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 cu stody 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).11 Cite as: 599 U. S. ____ (2023)

A LITO , 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.