(Slip Opinion) OCTOBER TERM, 2022 1 

Syllabus 

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 

being done in connection with this case, at the time the opinion is issued. 

The syllabus constitutes no part of the opinion of the Court but has been 

prepared by the Reporter of Decisions for the convenience of the reader. 

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337. 

SUPREME COURT OF THE UNITED STATES 

Syllabus 

HAALAND, SECRETARY OF THE INTERIOR, ET AL. v. 

BRACKEEN ET AL. 

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 

THE FIFTH CIRCUIT 

No. 21–376. Argued November 9, 2022—Decided June 15, 2023* 

This case arises from three separate child custody proceedings governed

by the Indian Child Welfare Act (ICWA), a federal statute that aims to

keep Indian children connected to Indian families. ICWA governs

state court adoption and foster care proceedings involving Indian children. Among other things, the Act requires placement of an Indian 

child according to the Act’s hierarchical preferences, unless the state 

court finds “good cause” to depart from them. 25 U. S. C. §§1915(a), 

(b). Under those preferences, Indian families or institutions from any 

tribe (not just the tribe to which the child has a tie) outrank unrelated

non-Indians or non-Indian institutions. Further, the child’s tribe may

pass a resolution altering the prioritization order. §1915(c). The preferences of the Indian child or her parent generally cannot trump those 

set by statute or tribal resolution.

In involuntary proceedings, the Act mandates that the Indian child’s

parent or custodian and tribe be given notice of any custody proceedings, as well as the right to intervene. §§1912(a), (b), (c). Section 

1912(d) requires a party seeking to terminate parental rights or to remove an Indian child from an unsafe environment to “satisfy the court 

that active efforts have been made to provide remedial services and 

rehabilitative programs designed to prevent breakup of the Indian 

family,” and a court cannot order relief unless the party demonstrates,

by a heightened burden of proof and expert testimony, that the child is 

—————— 

*Together with No. 21–377, Cherokee Nation et al. v. Brackeen et al., 

No. 21–378, Texas v. Haaland, Secretary of the Interior, et al., and No. 

21–380, Brackeen et al. v. Haaland, Secretary of the Interior, et al., also 

on certiorari to the same court. 
 

 

 

 

2 HAALAND v. BRACKEEN 

Syllabus 

likely to suffer “serious emotional or physical damage” if the parent or 

Indian custodian retains custody. §§1912(d), (e). Even for voluntary 

proceedings, a biological parent who gives up an Indian child cannot 

necessarily choose the child’s foster or adoptive parents. The child’s 

tribe has “a right to intervene at any point in [a] proceeding” to place

a child in foster care or terminate parental rights, as well as a right to

collaterally attack the state court’s custody decree. §§1911(c), 1914. 

The tribe thus can sometimes enforce ICWA’s placement preferences

against the wishes of one or both biological parents, even after the

child is living with a new family. Finally, the States must keep certain 

records related to child placements, see §1915(e), and transmit to the

Secretary of the Interior all final adoption decrees and other specified 

information, see §1951(a). 

Petitioners—a birth mother, foster and adoptive parents, and the 

State of Texas—filed this suit in federal court against the United 

States and other federal parties. Several Indian Tribes intervened to 

defend the law alongside the federal parties. Petitioners challenged 

ICWA as unconstitutional on multiple grounds. They asserted that 

Congress lacks authority to enact ICWA and that several of ICWA’s 

requirements violate the anticommandeering principle of the Tenth 

Amendment. They argued that ICWA employs racial classifications 

that unlawfully hinder non-Indian families from fostering or adopting 

Indian children. And they challenged §1915(c)—the provision that allows tribes to alter the prioritization order—on the ground that it violates the nondelegation doctrine.

The District Court granted petitioners’ motion for summary judgment on their constitutional claims, and the en banc Fifth Circuit affirmed in part and reversed in part. The Fifth Circuit concluded that 

ICWA does not exceed Congress’s legislative power, that §1915(c) does

not violate the nondelegation doctrine, and that some of ICWA’s placement preferences satisfy the guarantee of equal protection. The Fifth 

Circuit was evenly divided as to whether ICWA’s other preferences—

those prioritizing “other Indian families” and “Indian foster home[s]”

over non-Indian families—unconstitutionally discriminate on the basis 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” requirement, §1912(e)’s and §1912(f)’s expert witness requirements, and

§1915(e)’s recordkeeping requirement unconstitutionally commandeer

the States. And because it divided evenly with respect to other challenged provisions (§1912(a)’s notice requirement, §1915(a) and 

§1915(b)’s placement preferences, and §1951(a)’s recordkeeping requirement), the Fifth Circuit affirmed the District Court’s holding that

these requirements violate the Tenth Amendment. 
 

 

 

 

 

Cite as: 599 U. S. ____ (2023) 3 

Syllabus 

Held: 

1. The Court declines to disturb the Fifth Circuit’s conclusion 

that ICWA is consistent with Congress’s Article I authority. Pp. 10–

17. 

(a) The Court has characterized Congress’s power to legislate with

respect to the Indian tribes as “plenary and exclusive,” United States 

v. Lara, 541 U. S. 193, 200, superseding both tribal and state authority, 

Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56. The Court has traced 

that power to multiple sources. First, the Indian Commerce Clause 

authorizes Congress “[t]o regulate Commerce . . . with the Indian 

Tribes,” U. S. Const., Art. I, §8, cl. 3, and the Court has interpreted the 

Indian Commerce Clause to reach not only trade, but also certain “Indian affairs,” Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 

192. The Treaty Clause provides a second source of power. The treaty 

power “does not literally authorize Congress to act legislatively,” since 

it is housed in Article II, but “treaties made pursuant to that power

can authorize Congress to deal with ‘matters’ with which otherwise 

‘Congress could not deal.’ ” Lara, 541 U. S., at 201. Also, principles

inherent in the Constitution’s structure may empower Congress to act

in the field of Indian affairs. See Morton v. Mancari, 417 U. S. 535, 

551–552. Finally, the “trust relationship between the United States

and the Indian people” informs the exercise of legislative power. 

United States v. Mitchell, 463 U. S. 206, 225–226. In sum, Congress’s

power to legislate with respect to Indians is well established and broad, 

but it is not unbounded. It is plenary within its sphere, but even a 

sizeable sphere has borders. Pp. 10–14.

(b) Petitioners contend that ICWA impermissibly treads on the 

States’ traditional authority over family law. But when Congress validly legislates pursuant to its Article I powers, the Court “has not hesitated” to find conflicting state family law preempted, “[n]otwithstanding the limited application of federal law in the field of domestic 

relations generally.” Ridgway v. Ridgway, 454 U. S. 46, 54. And the 

Court has recognized Congress’s power to displace the jurisdiction of 

state courts in adoption proceedings involving Indian children. Fisher 

v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 390 

(per curiam). Pp. 14–15. 

(c) Petitioners contend that no source of congressional authority 

authorizes Congress to regulate custody proceedings for Indian children. They suggest that the Indian Commerce Clause, for example, 

authorizes Congress to legislate only with respect to Indian tribes as

government entities, not Indians as individuals. But this Court’s holding more than a century ago that “commerce with the Indian tribes, 

means commerce with the individuals composing those tribes,” United 

States v. Holliday, 3 Wall. 407, 417, renders that argument a dead end. 
 

 

 

4 HAALAND v. BRACKEEN 

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Petitioners also assert that ICWA takes the “commerce” out of the Indian Commerce Clause because “children are not commodities that can 

be traded.” Brief for Individual Petitioners 16. This point, while rhetorically powerful, ignores the Court’s precedent interpreting the Indian Commerce Clause to encompass not only trade but also other Indian affairs. Petitioners next argue that ICWA cannot be authorized 

by principles inherent in the Constitution’s structure because those 

principles “extend, at most, to matters of war and peace.” Brief for 

Petitioner Texas 28. Again, petitioners make no argument that takes 

this Court’s cases on their own terms. The Court has referred generally to the powers “necessarily inherent in any Federal Government” 

and has offered non-military examples, such as “creating departments

of Indian affairs.” Lara, 541 U. S., at 201–202. Petitioners next observe 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, petitioners turn to criticizing this Court’s precedent as inconsistent with the 

Constitution’s original meaning, but they neither ask the Court to 

overrule the precedent they criticize nor try to reconcile their approach

with it. If there are arguments that ICWA exceeds Congress’s authority as precedent stands today, petitioners do not make them here. Pp.

15–17. 

2. Petitioners’ anticommandeering challenges, which address three

categories of ICWA provisions, are rejected. Pp. 18–29.

(a) First, petitioners challenge certain requirements that apply in 

involuntary proceedings to place a child in foster care or terminate parental rights, focusing on the requirement that an initiating party 

demonstrate “active efforts” to keep the Indian family together. 

§1912(d). Petitioners contend this subsection directs state and local 

agencies to provide extensive services to the parents of Indian children, even though it is well established that the Tenth Amendment 

bars Congress from “command[ing] the States’ officers, or those of their 

political subdivisions, to administer or enforce a federal regulatory 

program.” Printz v. United States, 521 U. S. 898, 935. To succeed, 

petitioners must show that §1912(d) harnesses a State’s legislative or 

executive authority. But the provision applies to “any party” who initiates an involuntary proceeding, thus sweeping in private individuals 

and agencies as well as government entities. A demand that either 

public or private actors can satisfy is unlikely to require the use of sovereign power. Murphy v. National Collegiate Athletic Assn., 584 U. S. 

___, ___–___. Petitioners nonetheless insist that States institute the 

vast majority of involuntary proceedings. But examples of private

suits are not hard to find. And while petitioners treat “active efforts”

as synonymous with “government programs,” state courts have applied 
 

 

Cite as: 599 U. S. ____ (2023) 5 

Syllabus 

the “active efforts” requirement in private suits too. That is consistent 

with ICWA’s findings, which describe the role that both public and private actors played in the unjust separation of Indian children from 

their families and tribes. §1901. Given all this, it is implausible that

§1912(d) is directed primarily, much less exclusively, at the States. 

Legislation that applies “evenhandedly” to state and private actors

does not typically implicate the Tenth Amendment. Murphy, 584 

U. S., at ___. Petitioners would distinguish the Court’s precedents so

holding on the grounds that those cases addressed laws regulating a 

State’s commercial activity, while ICWA regulates a State’s “core sovereign function of protecting the health and safety of children within 

its borders.” Brief for Petitioner Texas 66. This argument is presumably directed at situations in which only the State can rescue a child 

from neglectful parents. But the State is not necessarily the only option for rescue, and §1912(d) applies to other types of proceedings too. 

Petitioners do not distinguish between these varied situations, much 

less isolate a domain in which only the State can act. If there is a core 

of involuntary proceedings committed exclusively to the sovereign, 

Texas neither identifies its contours nor explains what §1912(d) requires of a State in that context. Petitioners have therefore failed to 

show that the “active efforts” requirement commands the States to deploy their executive or legislative power to implement federal Indian

policy. And as for petitioners’ challenges to other provisions of §1912—

the notice requirement, expert witness requirement, and evidentiary 

standards—the Court doubts that requirements placed on a State as 

litigant implicate the Tenth Amendment. But regardless, these provisions, 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 agencies to perform a “diligent search” for placements that satisfy ICWA’s 

hierarchy. Just as Congress cannot compel state officials to search databases 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 search” requirement, which applies

to both private and public parties, demands the use of state sovereign 

authority. Moreover, §1915 does not require anyone, much less the 

States, to search for alternative placements; instead, the burden is on

the tribe or other objecting party to produce a higher-ranked placement. Adoptive Couple v. Baby Girl, 570 U. S. 637, 654. So, as it 

stands, petitioners assert an anticommandeering challenge to a provision that does not command state agencies to do anything. 

State courts are a different matter. ICWA indisputably requires 
 

 

 

 

 

 

 

6 HAALAND v. BRACKEEN 

Syllabus 

them to apply the placement preferences in making custody determinations. §§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 distinction between requiring state courts to entertain federal causes of action and requiring them to apply federal law to state causes of action, 

but this argument runs counter to the Supremacy Clause. When Congress enacts a valid statute, “state law is naturally preempted to the 

extent of any conflict with a federal statute.” Crosby v. National Foreign Trade Council, 530 U. S. 363, 372. That a federal law modifies a 

state law cause of action does not limit its preemptive effect. See, e.g., 

Hillman v. Maretta, 569 U. S. 483, 493–494 (federal law establishing

order of precedence for life insurance beneficiaries preempted state

law). Pp. 23–25.

(c) Finally, petitioners insist that Congress cannot force state

courts to maintain or transmit records of custody proceedings involving Indian children. But the anticommandeering doctrine applies “distinctively” to a state court’s adjudicative responsibilities. Printz, 521 

U. S., at 907. The Constitution allows Congress to require “state 

judges to enforce federal prescriptions, insofar as those prescriptions

relat[e] to matters appropriate for the judicial power.” Ibid. (emphasis

deleted). In Printz, the Court indicated that this principle may extend 

to tasks that are “ancillary” to a “quintessentially adjudicative task”—

such as “recording, registering, and certifying” documents. Id., at 908, 

n. 2. Printz described numerous historical examples of Congress imposing recordkeeping and reporting requirements on state courts. 

These early congressional enactments demonstrate that the Constitution does not prohibit the Federal Government from imposing adjudicative tasks on state courts. Bowsher v. Synar, 478 U. S. 714, 723. The 

Court now confirms what Printz suggested: Congress may impose ancillary recordkeeping requirements related to state-court proceedings 

without violating the Tenth Amendment. Here, ICWA’s recordkeeping 

requirements are comparable to the historical examples. The duties 

ICWA imposes are “ancillary” to the state court’s obligation to conduct 

child custody proceedings in compliance with ICWA. Printz, 521 U. S., 

at 908, n. 2. Pp. 25–29. 

3. The Court does not reach the merits of petitioners’ two additional 

claims—an equal protection challenge to ICWA’s placement preferences and a nondelegation challenge to §1915(c), the provision allowing tribes to alter the placement preferences—because no party before

the Court has standing to raise them. Pp. 29–34. 

(a) The individual petitioners argue that ICWA’s hierarchy of

preferences injures them by placing them on unequal footing with In-
 

 

 

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

Syllabus 

dian parents who seek to adopt or foster an Indian child. But the individual petitioners have not shown that this injury is “likely” to be

“redressed by judicial relief.” TransUnion LLC v. Ramirez, 594 U. S. 

___, ___. They seek an injunction preventing the federal parties from 

enforcing ICWA and a declaratory judgment that the challenged provisions are unconstitutional. Yet enjoining the federal parties would 

not remedy the alleged injury, because state courts apply the placement preferences, and state agencies carry out the court-ordered placements. §§1903(1), 1915(a), (b). The state officials who implement

ICWA are “not parties to the suit, and there is no reason they should

be obliged to honor an incidental legal determination the suit produced.” Lujan v. Defenders of Wildlife, 504 U. S. 555, 569 (plurality 

opinion). Petitioners’ request for a declaratory judgment suffers from

the same flaw. The individual petitioners insist that state courts are 

likely to defer to a federal court’s interpretation of federal law, thus 

giving rise to a substantial likelihood that a favorable judgment will 

redress their injury. But such a theory would mean redressability

would be satisfied whenever a decision might persuade actors who are 

not before the court—contrary to Article III’s strict prohibition on “issuing advisory opinions.” Carney v. Adams, 592 U. S. ___, ___. It is a 

federal court’s judgment, not its opinion, that remedies an injury. The 

individual petitioners can hope for nothing more than an opinion, so 

they cannot satisfy Article III. Pp. 29–32.

(b) Texas has no equal protection rights of its own, South Carolina 

v. Katzenbach, 383 U. S. 301, 323, and it cannot assert equal protection

claims on behalf of its citizens against the Federal Government, Alfred 

L. Snapp & Son, Inc. v. Puerto Rico ex rel. Barez, 458 U. S. 592, 610, 

n. 16. The State’s creative arguments for why it has standing despite

these settled rules also fail. Texas’s argument that ICWA requires it

to “break its promise to its citizens that it will be colorblind in childcustody proceedings,” Reply Brief for Texas 15, is not the kind of “concrete” and “particularized” “invasion of a legally protected interest”

necessary to demonstrate an injury in fact, Lujan, 504 U. S., at 560. 

Texas also claims a direct pocketbook injury associated with the costs 

of keeping records, providing notice in involuntary proceedings, and 

producing expert testimony before moving a child to foster care or terminating parental rights. But these alleged costs are not “fairly traceable” to the placement preferences, which “operate independently” of 

the provisions Texas identifies. California v. Texas, 593 U. S. ___, ___. 

Texas would continue to incur the complained-of costs even if it were 

relieved of the duty to apply the placement preferences. Because Texas 

is not injured by the placement preferences, neither would it be injured 

by a tribal resolution that altered those preferences pursuant to

§1915(c). Texas therefore does not have standing to bring either its 
 

 

8 HAALAND v. BRACKEEN 

Syllabus 

equal protection or its nondelegation claims. And although the individual petitioners join Texas’s nondelegation challenge to §1915(c), 

they raise no independent arguments about why they would have 

standing to bring this claim. Pp. 32–34. 

994 F. 3d 249, affirmed in part, reversed in part, vacated and remanded

in part.

 BARRETT, J., delivered the opinion of the Court, in which ROBERTS, 

C. J., and SOTOMAYOR, KAGAN, GORSUCH, KAVANAUGH, and JACKSON, JJ., 

joined. GORSUCH, J., filed a concurring opinion, in which SOTOMAYOR and 

JACKSON, JJ., joined as to Parts I and III. KAVANAUGH, J., filed a concurring opinion. THOMAS, J., and ALITO, J., filed dissenting opinions. 
 

_________________ 

_________________ 

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

Opinion of the Court 

NOTICE: This opinion is subject to formal revision before publication in the 

United States Reports. Readers are requested to notify the Reporter of 

Decisions, Supreme Court of the United States, Washington, D. C. 20543, 

pio@supremecourt.gov, of any typographical or other formal errors. 

SUPREME COURT OF THE UNITED STATES 

Nos. 21–376, 21–377, 21–378 and 21–380 

DEB HAALAND, SECRETARY OF THE INTERIOR, 

ET AL., PETITIONERS 

21–376 v. 

CHAD EVERET BRACKEEN, ET AL. 

CHEROKEE NATION, ET AL., PETITIONERS 

21–377 v. 

CHAD EVERET BRACKEEN, ET AL. 

TEXAS, PETITIONER 

21–378 v. 

DEB HAALAND, SECRETARY OF THE 

INTERIOR, ET AL. 

CHAD EVERET BRACKEEN, ET AL., PETITIONERS 

21–380 v. 

DEB HAALAND, SECRETARY OF THE 

INTERIOR, ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT 

[June 15, 2023] 

JUSTICE BARRETT delivered the opinion of the Court. 

This case is about children who are among the most vulnerable: those in the child welfare system. In the usual 

course, state courts apply state law when placing children 
 

 

2 HAALAND v. BRACKEEN 

Opinion of the Court 

in foster or adoptive homes. But when the child is an Indian, a federal statute—the Indian Child Welfare Act—governs. 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 constitutional grounds. They argue that it exceeds federal authority, infringes state sovereignty, and discriminates on 

the basis of race. The United States, joined by several Indian 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 unwarranted, 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 institutions,” and that the States had contributed to the problem

by “fail[ing] to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing 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 Indian tribes than their children.” §1901(3). Testifying before Congress, the Tribal Chief of the Mississippi Band of

Choctaw Indians was blunter: “Culturally, the chances of 
Cite as: 599 U. S. ____ (2023) 3 

Opinion of the Court 

Indian survival are significantly reduced if our children, the

only real means for the transmission of the tribal heritage,

are to be raised in non-Indian homes and denied exposure 

to the ways of their People.” Hearings on S. 1214 before the 

Subcommittee on Indian Affairs and Public Lands of the 

House Committee on Interior and Insular Affairs, 95th 

Cong., 2d Sess., 193 (1978). 

The Act thus aims to keep Indian children connected to

Indian families. “Indian child” is defined broadly to include 

not only a child who is “a member of an Indian tribe,” but 

also one who is “eligible for membership in an Indian tribe 

and is the biological child of a member of an Indian tribe.” 

§1903(4). If the Indian child lives on a reservation, ICWA 

grants the tribal court exclusive jurisdiction over all child

custody proceedings, including adoptions and foster care

proceedings. §1911(a). For other Indian children, state and 

tribal courts exercise concurrent jurisdiction, although the 

state court is sometimes required to transfer the case to 

tribal court. §1911(b). When a state court adjudicates the

proceeding, ICWA governs from start to finish. That is true 

regardless of whether the proceeding is “involuntary” (one 

to which the parents do not consent) or “voluntary” (one to

which they do). 

Involuntary proceedings are subject to especially stringent safeguards. See 25 CFR §23.104 (2022); 81 Fed. Reg.

38832–38836 (2016). Any party who initiates an “involuntary 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 unsafe environment must first “satisfy the court that active 

efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of

the Indian family and that these efforts have proved unsuccessful.” §1912(d). Even then, the court cannot order a foster 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 Indian custodian is likely to result in serious emotional or 

physical damage to the child.” §1912(e). To terminate parental rights, the court must make the same finding “beyond a reasonable doubt.” §1912(f ).

The Act applies to voluntary proceedings too. Relinquishing a child temporarily (to foster care) or permanently (to 

adoption) is a grave act, and a state court must ensure that 

a consenting parent or custodian knows and understands 

“the terms and consequences.” §1913(a). Notably, a biological 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 parental rights, as well as a right to collaterally attack the 

state court’s decree. §§1911(c), 1914. As a result, the tribe 

can sometimes enforce ICWA’s placement preferences 

against the wishes of one or both biological parents, even 

after the child is living with a new family. See Mississippi 

Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 49–52 

(1989).

ICWA’s placement preferences, which apply to all custody proceedings involving Indian children, are hierarchical: State courts may only place the child with someone

in a lower-ranked group when there is no available placement in a higher-ranked group. For adoption, “a preference 

shall be given” to placements with “(1) a member of the

child’s extended family; (2) other members of the Indian 
 

Cite as: 599 U. S. ____ (2023) 5 

Opinion of the Court 

child’s tribe; or (3) other Indian families.” §1915(a). For 

foster care, a preference is given to (1) “the Indian child’s

extended family”; (2) “a foster home licensed, approved, or

specified by the Indian child’s tribe”; (3) “an Indian foster 

home licensed or approved by an authorized non-Indian licensing authority”; and then (4) another institution “approved by an Indian tribe or operated by an Indian organization 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). Together, these definitions mean that Indians from any tribe 

(not just the tribe to which the child has a tie) outrank unrelated non-Indians for both adoption and foster care. And 

for foster care, institutions run or approved by any tribe 

outrank placements with unrelated non-Indian families.

Courts must adhere to the placement preferences absent

“good cause” to depart from them. §§1915(a), (b). 

The child’s tribe may pass a resolution altering the prioritization order. §1915(c). If it does, “the agency or court 

effecting the placement shall follow such order so long as 

the placement is the least restrictive setting appropriate to 

the particular needs of the child.” Ibid. So long as the “least 

restrictive setting” condition is met, the preferences of the

Indian child or her parent cannot trump those set by statute or tribal resolution. But, “[w]here appropriate, the preference of the Indian child or parent shall be considered” in 

making a placement. Ibid. 

The State must record each placement, including a description 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 proceedings 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 biological mother is a member of the Navajo Nation and his biological 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 adoption. 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 preferences. They presented favorable testimony from A. L. M.’s 

court-appointed guardian and from a psychological expert 

who described the strong emotional bond between A. L. M. 

and his foster parents. A. L. M.’s biological parents and 

grandmother also testified, urging the court to allow 

A. L. M. to remain with the Brackeens, “‘the only parents 

[A. L. M.] knows.’” App. 96.

The court denied the adoption petition, and the Texas Department of Family and Protective Services announced its

intention to move A. L. M. from the Brackeens’ home to 

New Mexico. In response, the Brackeens obtained an emer-
 

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

Opinion of the Court 

gency stay of the transfer and filed this lawsuit. The Navajo 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 sister, Y. R. J., again over the opposition of the Navajo Nation. 

And while the Brackeens hope to foster and adopt other Indian children in the future, their fraught experience with

A. L. M.’s adoption makes them hesitant to do so. 

2 

Altagracia Hernandez chose Nick and Heather Libretti

as adoptive parents for her newborn daughter, Baby O. The 

Librettis took Baby O. home from the hospital when she

was three days old, and Hernandez, who lived nearby, visited Baby O. frequently. Baby O.’s biological father visited 

only once but supported the adoption. 

Hernandez is not an Indian. But Baby O.’s biological father is descended from members of the Ysleta del Sur 

Pueblo Tribe, and the Tribe enrolled Baby O. as a member. 

As a result, the adoption proceeding was governed by 

ICWA. The Tribe exercised its right to intervene and argued, over Hernandez’s objection, that Baby O. should be

moved from the Librettis’ home in Nevada to the Tribe’s 

reservation in El Paso, Texas. It presented a number of potential placements on the reservation for Baby O., and state

officials began to investigate them. After Hernandez and 

the Librettis joined this lawsuit, however, the Tribe withdrew its challenge to the adoption, and the Librettis finalized 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, fostered Child P., whose maternal grandmother belongs to the 

White Earth Band of Ojibwe Tribe. When Child P. entered 
 

8 HAALAND v. BRACKEEN 

Opinion of the Court 

state custody around the age of three, her mother informed

the court that ICWA did not apply because Child P. was not 

eligible for tribal membership. The Tribe wrote a letter to 

the court confirming the same.

After two years in the foster care system, Child P. was

placed with the Cliffords, who eventually sought to adopt 

her. The Tribe intervened in the proceedings and, with no 

explanation for its change in position, informed the court 

that Child P. was in fact eligible for tribal membership. 

Later, the Tribe announced that it had enrolled Child P. as 

a member. To comply with ICWA, Minnesota placed Child 

P. with her maternal grandmother, who had lost her foster

license due to a criminal conviction. The Cliffords continued to pursue the adoption, but, citing ICWA, the court denied their motion. Like the other families, the Cliffords intend 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 “individual petitioners”) filed this suit in federal court against the 

United States, the Department of the Interior and its Secretary, the Bureau of Indian Affairs (BIA) and its Director,

and the Department of Health and Human Services and its

Secretary (whom we will refer to collectively as the “federal

parties”). The individual petitioners were joined by the

States of Texas, Indiana, and Louisiana—although only 

Texas continues to challenge ICWA before this Court. Several Indian Tribes intervened to defend the law alongside 

the federal parties.

 Petitioners challenged ICWA as unconstitutional on multiple grounds. They asserted that Congress lacks authority 

to enact ICWA and that several of ICWA’s requirements violate the anticommandeering principle of the Tenth 

Amendment. They argued that ICWA employs racial classifications that unlawfully hinder non-Indian families from 
 

Cite as: 599 U. S. ____ (2023) 9 

Opinion of the Court 

fostering or adopting Indian children. And they challenged 

§1915(c)—the provision that allows tribes to alter the prioritization order—on the ground that it violates the nondelegation doctrine.1 

The District Court granted petitioners’ motion for summary judgment on their constitutional claims, and a divided 

panel of the Fifth Circuit reversed. Brackeen v. Bernhardt, 

937 F. 3d 406 (2019). After rehearing the case en banc, the 

Fifth Circuit affirmed in part and reversed in part. 994 

F. 3d 249 (2021) (per curiam). The en banc court concluded 

that ICWA does not exceed Congress’s legislative power, 

that §1915(c) does not violate the nondelegation doctrine,

and that some of ICWA’s placement preferences satisfy the

guarantee of equal protection. Id., at 267–269. The court 

was evenly divided as to whether ICWA’s other preferences—those prioritizing “other Indian families” and “Indian foster home[s]” over non-Indian families—unconstitutionally discriminate on the basis of race. Id., at 268. The 

Fifth Circuit therefore affirmed the District Court’s ruling

that these preferences are unconstitutional.

Petitioners’ Tenth Amendment arguments effectively

succeeded across the board. The Fifth Circuit held that 

§1912(d)’s “active efforts” requirement, §1912(e)’s and

§1912(f )’s expert witness requirements, and §1915(e)’s

recordkeeping requirement unconstitutionally commandeer the States. Ibid. It divided evenly with respect to the 

other provisions that petitioners challenge here: §1912(a)’s 

notice requirement, §1915(a) and §1915(b)’s placement 

preferences, and §1951(a)’s recordkeeping requirement. 

Ibid. So the Fifth Circuit affirmed the District Court’s hold-

—————— 1Petitioners raised several other challenges that are not before this 

Court, including that ICWA’s implementing regulations are arbitrary

and capricious in violation of the Administrative Procedure Act. 
 

 

10 HAALAND v. BRACKEEN 

Opinion of the Court 

ing that these requirements, too, violate the Tenth Amendment. 

We granted certiorari.2 595 U. S. ____ (2022). 

II 

A 

We begin with petitioners’ claim that ICWA exceeds Congress’s power under Article I. In a long line of cases, we

have 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 (2004); South Dakota 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 “plenary and exclusive power over Indian affairs”); Winton v. 

Amos, 255 U. S. 373, 391 (1921) (“It is thoroughly established 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. Cherokee 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 authority. Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56 (1978) 

(“Congress has plenary authority to limit, modify or eliminate 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 

—————— 2Hernandez and the families, the State of Texas, the federal parties,

and the Tribes all filed cross-petitions for certiorari. After the cases were 

consolidated, Hernandez, the families, and Texas proceeded as petitioners before this Court, and the federal parties and the Tribes proceeded 

as respondents. 
 

Cite as: 599 U. S. ____ (2023) 11 

Opinion of the Court 

the Indian tribes, and such power is superior and paramount to the authority of any State within whose limits are 

Indian tribes”).

To be clear, however, “plenary” does not mean “free-floating.” A power unmoored from the Constitution would lack 

both justification and limits. So like the rest of its legislative 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. Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 192 

(1989). Notably, we have declined to treat the Indian Commerce Clause as interchangeable with the Interstate Commerce Clause. Ibid. While under the Interstate Commerce 

Clause, States retain “some authority” over trade, we have

explained that “virtually all authority over Indian commerce and Indian tribes” lies with the Federal Government. 

Seminole Tribe of Fla. v. Florida, 517 U. S. 44, 62 (1996). 

The Treaty Clause—which provides that the President

“shall have Power, by and with the Advice and Consent of

the Senate, to make Treaties”—provides a second source of

power over Indian affairs. Art. II, §2, cl. 2. Until the late 

19th century, relations between the Federal Government

and the Indian tribes were governed largely by treaties. 

Lara, 541 U. S., at 201. Of course, the treaty power “does 

not literally authorize Congress to act legislatively,” since

it is housed in Article II rather than Article I. Ibid. Nevertheless, we have asserted that “treaties made pursuant to 

that power can authorize Congress to deal with ‘matters’ 

with which otherwise ‘Congress could not deal.’” Ibid. And 

even though the United States formally ended the practice 

of entering into new treaties with the Indian tribes in 1871,

this decision did not limit Congress’s power “to legislate on 
 

12 HAALAND v. BRACKEEN 

Opinion of the Court 

problems of Indians” pursuant to pre-existing treaties. Antoine v. Washington, 420 U. S. 194, 203 (1975) (emphasis 

deleted).

We have also noted that principles inherent in the Constitution’s structure empower Congress to act in the field of 

Indian affairs. See Morton v. Mancari, 417 U. S. 535, 551– 

552 (1974) (“The plenary power of Congress to deal with the

special problems of Indians is drawn both explicitly and implicitly from the Constitution itself”). At the founding, “‘Indian affairs were more an aspect of military and foreign policy than a subject of domestic or municipal law.’” Lara, 541 

U. S., at 201. With this in mind, we have posited that Congress’s legislative authority might rest in part on “the Constitution’s adoption of preconstitutional powers necessarily 

inherent in any Federal Government, namely, powers that

this Court has described as ‘necessary concomitants of nationality.’” 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 legislative 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 Indians is well established and broad. Consistent with that 

breadth, we have not doubted Congress’s ability to legislate 

across a wide range of areas, including criminal law, domestic violence, employment, property, tax, and trade. See, e.g., 
Cite as: 599 U. S. ____ (2023) 13 

Opinion of the Court 

Lara, 541 U. S., at 210 (law allowing tribes to prosecute

nonmember Indians who committed crimes on tribal land); 

United States v. Bryant, 579 U. S. 140, 142–143 (2016) (law 

criminalizing domestic violence in Indian country); 

Mancari, 417 U. S., at 537 (policy granting Indians employment 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 altering the boundaries of a reservation); Sunderland v. United 

States, 266 U. S. 226, 231–232 (1924) (agency action removing the restrictions on alienation of a homestead allotted to 

an Indian); Warren Trading Post Co. v. Arizona Tax 

Comm’n, 380 U. S. 685, 691, n. 18 (1965) (law granting tribe 

immunity from state taxation); United States v. Algoma 

Lumber Co., 305 U. S. 415, 417, 421 (1939) (law regulating 

the sale of timber by an Indian tribe). Indeed, we have only 

rarely concluded that a challenged statute exceeded Congress’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 constitutional 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 Congress’s Indian affairs power “‘is not absolute.’” Delaware 

Tribal Business Comm. v. Weeks, 430 U. S. 73, 84 (1977); 

United States v. Alcea Band of Tillamooks, 329 U. S. 40, 54 

(1946) (“The power of Congress over Indian affairs may be 

of a plenary nature; but it is not absolute”); United States v. 

Creek Nation, 295 U. S. 103, 110 (1935) (plenary power is

“subject to limitations inhering in such a guardianship and 

to pertinent constitutional restrictions”). It could not be 

otherwise—Article I gives Congress a series of enumerated 

powers, not a series of blank checks. Thus, we reiterate 

that Congress’s authority to legislate with respect to Indians is not unbounded. It is plenary within its sphere, but 
 

 

 

14 HAALAND v. BRACKEEN 

Opinion of the Court 

even a sizeable sphere has borders.3 

B 

Petitioners contend that ICWA exceeds Congress’s 

power. Their principal theory, and the one accepted by both 

JUSTICE ALITO and the dissenters in the Fifth Circuit, is 

that ICWA treads on the States’ authority over family law.

Domestic relations have traditionally been governed by 

state law; thus, federal power over Indians stops where

state power over the family begins. Or so the argument 

goes.

It is true that Congress lacks a general power over domestic relations, In re Burrus, 136 U. S. 586, 593–594 

(1890), and, as a result, responsibility for regulating marriage and child custody remains primarily with the States, 

Sosna v. Iowa, 419 U. S. 393, 404 (1975). See also Moore v. 

Sims, 442 U. S. 415, 435 (1979). But the Constitution does 

not erect a firewall around family law. On the contrary,

when Congress validly legislates pursuant to its Article I 

powers, we “ha[ve] not hesitated” to find conflicting state 

family law preempted, “[n]otwithstanding the limited application of federal law in the field of domestic relations 

generally.” Ridgway v. Ridgway, 454 U. S. 46, 54 (1981) 

(federal law providing life insurance preempted state 

family-property law); see also Hillman v. Maretta, 569 U. S. 

483, 491 (2013) (“state laws ‘governing the economic aspects

of domestic relations . . . must give way to clearly conflicting 

federal enactments’” (alteration in original)). In fact, we 

have specifically recognized Congress’s power to displace 

—————— 3 JUSTICE ALITO’s dissent criticizes the Court for “violating one of the 

most basic laws of logic” with our conclusion that “Congress’s power over 

Indian affairs is ‘plenary’ but not ‘absolute.’ ” Post, at 3–4. Yet the dissent goes on to make that very same observation. Post, at 4 (“[E]ven socalled plenary powers cannot override foundational constitutional constraints”). 
 

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

Opinion of the Court 

the jurisdiction of state courts in adoption proceedings involving Indian children. Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 390 (1976) (per 

curiam).

Petitioners are trying to turn a general observation (that

Congress’s Article I powers rarely touch state family law) 

into a constitutional carveout (that family law is wholly exempt from federal regulation). That argument is a nonstarter. As James Madison said to Members of the First 

Congress, when the Constitution conferred a power on Congress, “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 direction too: Even if there is no family law carveout to the Indian affairs power, they contend that Congress’s authority 

does not stretch far enough to justify ICWA. Ticking 

through the various sources of power, petitioners assert 

that the Constitution does not authorize Congress to regulate custody proceedings for Indian children. Their arguments 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 authorizes Congress to legislate only with respect to Indian tribes 

as government entities, not Indians as individuals. Brief 

for Individual Petitioners 47–50. But we held more than a 

century ago that “commerce with the Indian tribes, means

commerce with the individuals composing those tribes.” 

United States v. Holliday, 3 Wall. 407, 416–417 (1866) (law 

prohibiting the sale of alcohol to Indians in Indian country); 

United States v. Nice, 241 U. S. 591, 600 (1916) (same). So 
 

16 HAALAND v. BRACKEEN 

Opinion of the Court 

that argument is a dead end. 

Petitioners also assert that ICWA takes the “commerce” 

out of the Indian Commerce Clause. Their consistent refrain is that “children are not commodities that can be 

traded.” Brief for Individual Petitioners 16; Brief for Petitioner 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 already explained, our precedent states that Congress’s

power under the Indian Commerce Clause encompasses not

only trade but also “Indian affairs.” Cotton Petroleum, 490 

U. S., at 192. Even the judges who otherwise agreed with 

petitioners below rejected this narrow view of the Indian 

Commerce Clause as inconsistent with both our cases and 

“[l]ongstanding patterns of federal legislation.” 994 F. 3d, 

at 374–375 (principal opinion of Duncan, J.). Rather than 

dealing with this precedent, however, petitioners virtually 

ignore it.

Next, petitioners argue that ICWA cannot be authorized 

by principles inherent in the Constitution’s structure because 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 powers “necessarily inherent in any Federal Government,” and 

we have offered examples like “creating departments of Indian affairs, appointing Indian commissioners, and . . . ‘securing and preserving the friendship of the Indian Nations’”—none of which are military actions. Lara, 541 

U. S., at 201–202. Once again, petitioners make no argument that takes our cases on their own terms. 

Finally, petitioners observe that ICWA does not implement 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 enact ICWA pursuant to the Treaty Clause power and the 
 

Cite as: 599 U. S. ____ (2023) 17 

Opinion of the Court 

Fifth Circuit did not uphold ICWA on that rationale.

Presumably recognizing these obstacles, petitioners turn

to criticizing our precedent as inconsistent with the Constitution’s original meaning. Yet here too, they offer no account 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 consequences of their position. Would it undermine established 

cases and statutes? If so, which ones? Petitioners do not 

say.

We recognize that our case law puts petitioners in a difficult spot. We have often sustained Indian legislation without specifying the source of Congress’s power, and we have

insisted that Congress’s power has limits without saying 

what they are. Yet petitioners’ strategy for dealing with the 

confusion is not to offer a theory for rationalizing this body

of law—that would at least give us something to work with.4 

Instead, they frame their arguments as if the slate were

clean. More than two centuries in, it is anything but.

If there are arguments that ICWA exceeds Congress’s authority as our precedent stands today, petitioners do not

make them. We therefore decline to disturb the Fifth Circuit’s conclusion that ICWA is consistent with Article I. 

—————— 4Texas floated a theory for the first time at oral argument. It said 

that, taken together, our plenary power cases fall into three buckets: (1)

those allowing Congress to legislate pursuant to an enumerated power, 

such as the Indian Commerce Clause or the Treaty Clause; (2) those allowing Congress to regulate the tribes as government entities; and (3) 

those allowing Congress to enact legislation that applies to federal or 

tribal land. Tr. of Oral Arg. 55. According to Texas, ICWA is unconstitutional because it does not fall within any of these categories. We have 

never broken down our cases this way. But even if Texas’s theory is descriptively accurate, Texas offers no explanation for why Congress’s 

power is limited to these categories. 
 

18 HAALAND v. BRACKEEN 

Opinion of the Court 

III 

We now turn to petitioners’ host of anticommandeering

arguments, which we will break into three categories. 

First, petitioners challenge certain requirements that apply

in involuntary proceedings to place a child in foster care or 

terminate parental rights: the requirements that an initiating 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 damage” if the parent or Indian custodian retains custody. Second, petitioners challenge ICWA’s placement preferences. 

They claim that Congress can neither force state agencies 

to find preferred placements for Indian children nor require

state courts to apply federal standards when making custody determinations. Third, they insist that Congress cannot force state courts to maintain or transmit to the Federal 

Government records of custody proceedings involving Indian children.5 

A 

As a reminder, “involuntary proceedings” are those to 

which a parent does not consent. §1912; 25 CFR §23.2. 

Heightened protections for parents and tribes apply in this

context, and while petitioners challenge most of them, the

“active efforts” provision is their primary target. That provision requires “[a]ny party” seeking to effect an involuntary foster care placement or termination of parental rights

to “satisfy the court that active efforts have been made to 

provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that 

—————— 5All petitioners argue that these provisions violate the anticommandeering principle. Since Texas has standing to raise these claims, we 

need not address whether the individual petitioners also have standing 

to do so. 
Cite as: 599 U. S. ____ (2023) 19 

Opinion of the Court 

these efforts have proved unsuccessful.” §1912(d). According to petitioners, this subsection directs state and local 

agencies to provide extensive services to the parents of Indian children. It is well established that the Tenth Amendment bars Congress from “command[ing] the States’ officers, or those of their political subdivisions, to administer or

enforce a federal regulatory program.” Printz v. United 

States, 521 U. S. 898, 935 (1997). The “active efforts” provision, petitioners say, does just that. 

Petitioners’ argument has a fundamental flaw: To succeed, they must show that §1912(d) harnesses a State’s legislative 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 government entities. A demand that either public or private

actors can satisfy is unlikely to require the use of sovereign 

power. Murphy v. National Collegiate Athletic Assn., 584 

U. S. ___, ___–___ (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 parties—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 refers. 

The record contains no evidence supporting the assertion 

that States institute the vast majority of involuntary proceedings. Examples of private suits are not hard to find, so

we are skeptical that their number is negligible. See, e.g., 

Adoptive Couple v. Baby Girl, 570 U. S. 637, 644–646 

(2013) (prospective adoptive parents); In re Guardianship 

of Eliza W., 304 Neb. 995, 997, 938 N. W. 2d 307, 310 (2020) 

(grandmother); In re Guardianship of J. C. D., 2004 S. D. 

96, ¶4, 686 N. W. 2d 647, 648 (2004) (grandparents); In re 
 

 

 

20 HAALAND v. BRACKEEN 

Opinion of the Court 

Adoption of T. A. W., 186 Wash. 2d 828, 835–837, 850–851, 

383 P. 3d 492, 494–495, 501–502 (2016) (en banc) (mother 

and stepfather); J. W. v. R. J., 951 P. 2d 1206, 1212–1213 

(Alaska 1998) (same). Indeed, Texas’s own family code permits certain private parties to initiate suits for the termination of parental rights. Tex. Fam. Code Ann. §102.003(a)

(West Cum. Supp. 2022); see Reply Brief for Texas 27. And 

while petitioners treat “active efforts” as synonymous with

“government programs,” state courts have applied the “active 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 private actors played in the unjust separation of Indian children from their families and tribes. §1901. Given all this, 

it is implausible that §1912(d) is directed primarily, much

less exclusively, at the States.6 

Legislation that applies “evenhandedly” to state and private actors does not typically implicate the Tenth Amendment. Murphy, 584 U. S., at ___ (slip op., at 20). In South 

—————— 6To bolster their claim that the “active efforts” requirement is aimed

at the States, petitioners point to a statement from the Department of 

the Interior asserting that the reference to “active efforts” reflects Congress’s intent “to require States to affirmatively provide Indian families 

with substantive services and not merely make the services available.”

81 Fed. Reg. 38791 (emphasis added). This statement does not move the 

needle. Neither §1912(d) nor the regulations limit themselves to States; 

moreover, the regulations plainly contemplate that services will come

from private organizations as well as the government. 25 CFR §23.102

(“Agency means a nonprofit, for-profit, or governmental organization . . . 

that performs, or provides services to biological parents, foster parents, 

or adoptive parents to assist in the administrative and social work necessary for foster, preadoptive, or adoptive placements”). The Department’s statement is thus consistent with the plain language of §1912, 

which applies to both private and state actors. 
Cite as: 599 U. S. ____ (2023) 21 

Opinion of the Court 

Carolina v. Baker, for example, we held that a generally applicable law regulating unregistered bonds did not commandeer the States; rather, it required States “wishing to

engage in certain activity [to] take administrative and

sometimes legislative action to comply with federal standards 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 information 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 information and sought to resell it. Id., at 146. Applying Baker, 

we concluded that the Act did not “require the States in

their sovereign capacity to regulate their own citizens,” “enact 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 distinguishable because they addressed laws regulating a State’s commercial activity, while ICWA regulates a State’s “core sovereign 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 information, petitioners say, but it cannot withdraw from the 

area of child welfare—protecting children is the business of

government, even if it is work in which private parties 

share. Nor, of course, could Texas avoid ICWA by excluding 

only Indian children from social services. Because States 

cannot exit the field, they are hostage to ICWA, which requires them to implement Congress’s regulatory program 

for the care of Indian children and families. Id., at 64–65; 

Reply Brief for Texas 27. 

This argument is presumably directed at situations in 
 

 

22 HAALAND v. BRACKEEN 

Opinion of the Court 

which only the State can rescue a child from neglectful parents. But §1912 applies to more than child neglect—for instance, 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 Guardianship of Eliza W., 304 Neb., at 996–997, 938 N. W. 2d, at 

309–310. Petitioners do not distinguish between these varied 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 Adoption 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’ commandeering argument, because the “active efforts” requirement does

not apply to emergency removals. §1922. If ICWA commandeers state performance of a “core sovereign function,” 

petitioners do not give us the details.

When a federal statute applies on its face to both private

and state actors, a commandeering argument is a heavy 

lift—and petitioners have not pulled it off. Both state and 

private actors initiate involuntary proceedings. And, if 

there is a core of involuntary proceedings committed exclusively to the sovereign, Texas neither identifies its contours 

nor explains what §1912(d) requires of a State in that context. Petitioners have therefore failed to show that the “active efforts” requirement commands the States to deploy 

their executive or legislative power to implement federal Indian policy.

As for petitioners’ challenges to other provisions of 
Cite as: 599 U. S. ____ (2023) 23 

Opinion of the Court 

§1912—the notice requirement, expert witness requirement, and evidentiary standards—we doubt that requirements placed on a State as litigant implicate the Tenth 

Amendment. But in any event, these provisions, like

§1912(d), apply to both private and state actors, so they too 

pose no anticommandeering problem. 

B 

Petitioners also raise a Tenth Amendment challenge to 

§1915, which dictates placement preferences for Indian

children. According to petitioners, this provision orders

state agencies to perform a “diligent search” for placements

that satisfy ICWA’s hierarchy. Brief for Petitioner Texas 

63; Reply Brief for Texas 24; see also Brief for Individual

Petitioners 67–68. Petitioners assert that the Department 

of the Interior understands §1915 this way, 25 CFR

§23.132(c)(5), and the Tribes who intervene in proceedings

governed by ICWA share that understanding—for example,

“the Librettis’ adoption of Baby O was delayed because the

Ysleta del Sur Pueblo Tribe demanded that county officials 

exhaustively search for a placement with the Tribe first.”

Reply Brief for Texas 24–25. Just as Congress cannot compel state officials to search databases 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 an initial matter, this argument encounters the same

problem that plagues petitioners with respect to §1912: Petitioners have not shown that the “diligent search” requirement, which applies to both private and public parties, demands the use of state sovereign authority. But this 

argument fails for another reason too: Section 1915 does not

require anyone, much less the States, to search for alternative placements. As the United States emphasizes, petitioners’ interpretation “cannot be squared with this Court’s

decision in Adoptive Couple,” which held that “‘there simply 
 

24 HAALAND v. BRACKEEN 

Opinion of the Court 

is no “preference” to apply if no alternative party that is eligible to be preferred . . . has come forward.’” Brief for Federal 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 placement. Ibid. So, as it stands, petitioners assert an anticommandeering challenge to a provision that does not command state agencies to do anything.

State courts are a different matter. ICWA indisputably

requires them to apply the placement preferences in making custody determinations. §§1915(a), (b). Petitioners argue that this too violates the anticommandeering doctrine. 

To be sure, they recognize that Congress can require state 

courts, unlike state executives and legislatures, to enforce

federal law. See New York v. United States, 505 U. S. 144, 

178–179 (1992) (“Federal statutes enforceable in state

courts do, in a sense, direct state judges to enforce them,

but this sort of federal ‘direction’ of state judges is mandated by the text of the Supremacy Clause”). But they draw

a distinction between requiring state courts to entertain 

federal causes of action and requiring them to apply federal

law to state causes of action. They claim that if state law 

provides the cause of action—as Texas law does here—then 

the State gets to call the shots, unhindered by any federal 

instruction to the contrary. Brief for Individual Petitioners 

62–63, 66–67. 

This argument runs headlong into the Constitution. The 

Supremacy Clause provides that “the Laws of the United

States . . . shall be the supreme Law of the Land; and the

Judges in every State shall be bound thereby, any Thing in

the Constitution or Laws of any state to the Contrary notwithstanding.” Art. VI, cl. 2. Thus, when Congress enacts

a valid statute pursuant to its Article I powers, “state law 

is naturally preempted to the extent of any conflict with a 
 

 

Cite as: 599 U. S. ____ (2023) 25 

Opinion of the Court 

federal statute.” Crosby v. National Foreign Trade Council, 

530 U. S. 363, 372 (2000). End of story. That a federal law 

modifies a state law cause of action does not limit its 

preemptive effect. See, e.g., Hillman, 569 U. S., at 493–494 

(federal law establishing an “‘order of precedence’” for beneficiaries of life insurance preempted state law); Egelhoff v. 

Egelhoff, 532 U. S. 141, 151–152 (2001) (Employee Retirement Income Security Act preempted state law regarding 

the economic consequences of divorce); Wissner v. Wissner, 

338 U. S. 655, 660–661 (1950) (federal military benefits law 

preempted state community-property rules). 

C 

Finally, we turn to ICWA’s recordkeeping provisions.

Section 1951(a) requires courts to provide the Secretary of 

the Interior with a copy of the final order in the adoptive 

placement of any Indian child. The court must also provide

“other information as may be necessary to show” the child’s

name and tribal affiliation, the names and addresses of the 

biological parents and adoptive parents, and the identity of 

any agency with information about the adoptive placement.

Section 1915(e) requires the State to “maintai[n]” a record

“evidencing the efforts to comply with the order of preference” specified by ICWA. The record “shall be made available at any time upon the request of the Secretary or the 

Indian child’s tribe.” Petitioners argue that Congress cannot conscript the States into federal service by assigning

them recordkeeping tasks.7 

—————— 7Though §1915(e) does not specify that the records be retained by state

courts, as opposed to state agencies, context makes clear that a “record 

of each such placement” refers to the state court’s placement determination. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U. S. 30, 

40, n. 13 (1989). True, the provision leaves it up to the State whether to

keep the records with a court or agency. See 25 CFR §23.141(c) (“The

State court or agency should notify the BIA whether these records are

maintained within the court system or by a State agency”). But allowing 
 

 

26 HAALAND v. BRACKEEN 

Opinion of the Court 

The anticommandeering doctrine applies “distinctively”

to a state court’s adjudicative responsibilities. Printz, 521 

U. S., at 907. As we just explained, this distinction is evident 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 Constitution allowed Congress to require “state judges to enforce federal prescriptions, insofar as those prescriptions

related to matters appropriate for the judicial power.” 

Printz, 521 U. S., at 907 (emphasis deleted). In Printz, we 

indicated that this principle may extend to tasks that are 

“ancillary” to a “quintessentially adjudicative task”—such 

as “recording, registering, and certifying” documents. Id., 

at 908, n. 2. 

Petitioners reject Printz’s observation, insisting that

there is a distinction between rules of decision (which state

courts must follow) and recordkeeping requirements (which

they can ignore). But Printz described numerous historical 

examples of Congress imposing recordkeeping and reporting requirements on state courts. The early Congresses 

passed laws directing state courts to perform certain tasks

fairly described as “ancillary” to the courts’ adjudicative duties. 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 application 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 naturalization and issue certificates confirming the court’s receipt of the alien’s request for registration. Act of Apr. 14, 

—————— 

the State to make that choice does not transform the documents into 

something other than a court record. 
Cite as: 599 U. S. ____ (2023) 27 

Opinion of the Court 

1802, §2, 2 Stat. 155.8 

Federal law imposed other duties on state courts unrelated to immigration and naturalization. The Judiciary Act 

of 1789, which authorized “any justice of the peace, or other 

magistrate of any of the United States” to arrest and imprison federal offenders, required the judge to set bail at the 

defendant’s request. §33, 1 Stat. 91. Congress also required 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 territory” shall “certif[y] as authentic” an indictment or affidavit charging a “fugitive from justice”); Act of Apr. 7, 1798, 

—————— 8 Printz noted uncertainty about whether the naturalization laws applied only to States that voluntarily “authorized their courts to conduct 

naturalization proceedings.” 521 U. S., at 905–906. But on their face, 

these statutes did not require state consent. See Act of Mar. 26, 1790, 

ch. 3, §1, 1 Stat. 103 (providing that an alien could apply for citizenship

“to any common law court of record, in any one of the states wherein he 

shall have resided for the term of one year at least”); Act of Apr. 14, 1802, 

ch. 28, 2 Stat. 153 (referring to “the supreme, superior, district or circuit

court of some one of the states, or of the territorial districts of the United 

States, or a circuit or district court of the United States”). And as Printz 

recognized, this Court has never held that consent is required. 521 U. S., 

at 905–906; see Holmgren v. United States, 217 U. S. 509, 517 (1910) 

(holding that Congress could empower state courts to conduct naturalization proceedings, but because California had already authorized jurisdiction, reserving the question whether its consent was necessary); but 

see United States v. Jones, 109 U. S. 513, 520 (1883) (stating in dicta that

the 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 necessary to entitle the applicants to the benefits of this act, may 

be taken before . . . a judge of the supreme or superior court, 

or the first justice or first judge of the court of common pleas 

or country court of any state”). 

There is more. Shortly after ratification, Congress

passed a detailed statute that required state-court judges

to gather and certify reports. Act of July 20, 1790, §3, 1 

Stat. 132. The Act authorized commanders of ships to request 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 vessel’s condition, which the judge would review and “endorse.” 

Ibid. Then, the judge was required to issue an order regarding “whether the said ship or vessel is fit to proceed on the 

intended voyage; and if not, whether such repairs can be

made or deficiencies supplied where the ship or vessel then

lays.” Ibid. 

These early congressional enactments “provid[e] ‘contemporaneous 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 adjudicative tasks on state courts. This makes sense against

the backdrop of the Madisonian Compromise: Since Article 

III established only the Supreme Court and made inferior 

federal courts optional, Congress could have relied almost

entirely on state courts to apply federal law. Printz, 521 

U. S., at 907. Had Congress taken that course, it would 

have had to rely on state courts to perform adjudicationadjacent tasks too. 

We now confirm what we suggested in Printz: Congress

may impose ancillary recordkeeping requirements related 

to state-court proceedings without violating the Tenth

Amendment. Such requirements do not offload the Federal 

Government’s responsibilities onto the States, nor do they 
 

Cite as: 599 U. S. ____ (2023) 29 

Opinion of the Court 

put state legislatures and executives “under the direct control 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 apply federal law. See Gregory v. Ashcroft, 501 U. S. 452, 457 

(1991).

Here, ICWA’s recordkeeping requirements are comparable in kind and in degree to the historical examples. Like 

the naturalization laws, §1951(a) requires the state court to

transmit to the Secretary a copy of a court order along with

basic demographic information. Section 1915(e) likewise

requires the State to record a limited amount of information—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 protection 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 standing to raise them. Article III requires a plaintiff to show 

that she has suffered an injury in fact that is “‘fairly traceable to the defendant’s allegedly unlawful conduct and 

likely to be redressed by the requested relief.’” California 

v. Texas, 593 U. S. ___, ___ (2021) (slip op., at 4). Neither 

the individual petitioners nor Texas can pass that test. 

A 

The individual petitioners argue that ICWA injures them 

by placing them on “[un]equal footing” with Indian parents 
 

30 HAALAND v. BRACKEEN 

Opinion of the Court 

who seek to adopt or foster an Indian child. Northeastern 

Fla. Chapter, Associated Gen. Contractors of America v. 

Jacksonville, 508 U. S. 656, 666 (1993). Under ICWA’s hierarchy of preferences, non-Indian parents are generally 

last in line for potential placements. According to petitioners, this “erects a barrier that makes it more difficult for 

members of one group to obtain a benefit than it is for members 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 discrimination they allege counts as an Article III injury.9 

But the individual petitioners have not shown that this

injury is “likely” to be “redressed by judicial relief.” 

TransUnion LLC v. Ramirez, 594 U. S. ___, ___ (2021) (slip 

op., at 7). They seek an injunction preventing the federal 

parties from enforcing ICWA and a declaratory judgment 

that the challenged provisions are unconstitutional. Yet 

enjoining the federal parties would not remedy the alleged 

injury, because state courts apply the placement preferences, and state agencies carry out the court-ordered placements. §§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 legal 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 

—————— 9Respondents raise other objections to the individual petitioners’

standing, including that the alleged injury is speculative because it depends on future proceedings to foster or adopt Indian children. Brief for 

Tribal Defendants 46–50; Brief for Federal Parties 49–52. Because we 

resolve the standing of all individual petitioners on the ground of redressability, we do not address respondents’ other arguments. 
Cite as: 599 U. S. ____ (2023) 31 

Opinion of the Court 

protection from the allegedly imminent harm. 

Petitioners’ request for a declaratory judgment suffers 

from the same flaw. See Skelly Oil Co. v. Phillips Petroleum 

Co., 339 U. S. 667, 671–672 (1950). This form of relief conclusively resolves “‘the legal rights of the parties.’” Medtronic, 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 petitioners and the officials who matter—which would leave the 

declaratory judgment powerless to remedy the alleged 

harm. 994 F. 3d, at 448 (Costa, J., concurring in part and 

dissenting in part) (“What saves proper declaratory judgments 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 enables 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 address—any of this. Instead, they insist that state courts are 

likely to defer to a federal court’s interpretation of federal 

law, thus giving rise to a substantial likelihood that a favorable judgment will redress their injury. Brief in Opposition for Individual Respondents 19–20; Reply Brief for Individual Petitioners 29. They point out that, in the

Brackeens’ ongoing efforts to adopt Y. R. J., the trial court

stated that it would follow the federal court’s ruling on the 

Brackeens’ constitutional claims. Ibid. Thus, they reason,

winning this case would solve their problems. 
 

 

 

32 HAALAND v. BRACKEEN 

Opinion of the Court 

But “[r]edressability requires that the court be able to afford relief through the exercise of its power, not through the 

persuasive or even awe-inspiring effect of the opinion explaining the exercise of its power.” Franklin v. Massachusetts, 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). Otherwise, redressability would be satisfied whenever a decision 

might persuade actors who are not before the court—contrary 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 

—————— 10Of course, the individual petitioners can challenge ICWA’s constitutionality in state court, as the Brackeens have done in their adoption

proceedings for Y. R. J. 994 F. 3d 249, 294 (2021) (principal opinion of 

Dennis, J.). 11Texas 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 represent 
 

Cite as: 599 U. S. ____ (2023) 33 

Opinion of the Court 

open and shut. 

Yet Texas advances a few creative arguments for why it

has standing despite these settled rules. It leads with what 

one might call an “unclean hands” injury: ICWA “injures 

Texas by requiring it to break its promise to its citizens that

it will be colorblind in child-custody proceedings.” Reply 

Brief for Texas 15; id., at 14 (“ICWA forces Texas to violate

its own constitutional obligations”). This is not the kind of 

“concrete” and “particularized” “invasion of a legally protected interest” necessary to demonstrate an “‘injury in

fact.’” Lujan, 504 U. S., at 560. Were it otherwise, a State 

would always have standing to bring constitutional challenges when it is complicit in enforcing federal law. Texas 

tries to finesse this problem by characterizing ICWA as a 

“fiscal trap,” forcing it to discriminate against its citizens or

lose federal funds. Brief for Petitioner Texas 39–40. But 

ICWA is not a Spending Clause statute—Texas bases this 

argument on a vague reference to a different Spending 

Clause statute that it does not challenge. And Texas has 

not established that those funds, which the State has accepted 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 involuntary proceedings, and producing expert testimony before 

moving a child to foster care or terminating parental rights.

Reply Brief for Texas 13–14. But these alleged costs are not 

—————— 

jurors struck on the basis of race, because (among other reasons) “[a]s 

the representative of all its citizens, the State is the logical and proper

party to assert the invasion of the constitutional rights of the excluded 

jurors in a criminal trial.” Id., at 56. But McCollum was not a suit 

against the Federal Government; moreover, it involved a “concrete injury” to the State and “some hindrance to the third party’s ability to protect its own interests,” neither of which is present here. Id., at 55–56. 
 

34 HAALAND v. BRACKEEN 

Opinion of the Court 

“fairly traceable” to the placement preferences, which “operate 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 preferences are unconstitutional “would not show that enforcement of any of these other provisions violates the Constitution.” Ibid. In other words, Texas would continue to incur 

the complained-of costs even if it were relieved of the duty

to apply the placement preferences. The former, then, cannot justify a challenge to the latter.

Because Texas is not injured by the placement preferences, neither would it be injured by a tribal resolution that 

altered those preferences pursuant to §1915(c). Texas 

therefore does not have standing to bring either its equal 

protection or its nondelegation claims.12 

* * * 

For these reasons, we affirm the judgment of the Court of

Appeals regarding Congress’s constitutional authority to

enact ICWA. On the anticommandeering claims, we reverse. On the equal protection and nondelegation claims,

we vacate the judgment of the Court of Appeals and remand 

with instructions to dismiss for lack of jurisdiction. 

It is so ordered. 

—————— 12Although the individual petitioners join Texas’s nondelegation challenge to §1915(c), they raise no independent arguments about why they

would have standing to bring this claim. Brief for Individual Petitioners 

41, n. 6; Brief for Federal Parties 79, n. 14. 
_________________ 

_________________ 

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

GORSUCH, J., concurring 

SUPREME COURT OF THE UNITED STATES 

Nos. 21–376, 21–377, 21–378 and 21–380 

DEB HAALAND, SECRETARY OF THE INTERIOR, 

ET AL., PETITIONERS 

21–376 v. 

CHAD EVERET BRACKEEN, ET AL. 

CHEROKEE NATION, ET AL., PETITIONERS 

21–377 v. 

CHAD EVERET BRACKEEN, ET AL. 

TEXAS, PETITIONER 

21–378 v. 

DEB HAALAND, SECRETARY OF THE 

INTERIOR, ET AL. 

CHAD EVERET BRACKEEN, ET AL., PETITIONERS 

21–380 v. 

DEB HAALAND, SECRETARY OF THE 

INTERIOR, ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT 

[June 15, 2023]

 JUSTICE GORSUCH, with whom JUSTICE SOTOMAYOR and 

JUSTICE JACKSON join as to Parts I and III, concurring. 

In affirming the constitutionality of the Indian Child 

Welfare Act (ICWA), the Court safeguards the ability of

tribal members to raise their children free from interference by state authorities and other outside parties. In the 

process, the Court also goes a long way toward restoring the 
 

2 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

original balance between federal, state, and tribal powers 

the Constitution envisioned. I am pleased to join the

Court’s opinion in full. I write separately to add some historical context. To appreciate fully the significance of today’s decision requires an understanding of the long line of 

policies that drove Congress to adopt ICWA. And to appreciate 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 vacuum. It came as a direct response to the mass removal of

Indian children from their families during the 1950s, 1960s, 

and 1970s by state officials and private parties. That practice, 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 vitality 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 reservations, they understood that life would never again be as it 

was. M. Fletcher & W. Singel, Indian Children and the Federal–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, 
Cite as: 599 U. S. ____ (2023) 3 

GORSUCH, J., concurring 

Tribes also negotiated “more than 150” treaties with the

United States that included “education-related provisions.” 

Dept. of Interior, B. Newland, Federal Indian Boarding 

School Initiative Investigative Report 33 (May 2022) (BIA

Report). Many tribal leaders hoped these provisions would 

lead to the creation of “reservation Indian schools that 

would blend traditional Indian education with the needed 

non-Indian skills that would allow their members to adapt 

to the reservation way of life.” R. Cross, American Indian 

Education: The Terror of History and the Nation’s Debt to

the Indian Peoples, 21 U. Ark. Little Rock L. Rev. 941, 950 

(1999).

At first, Indian education typically came in the form of

day schools, many of them “established through the . . . efforts of missionaries or the wives of Army officers stationed 

at military reservations in the Indian country.” Annual Report 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, required the “complete isolation of the Indian child from his

savage antecedents.” ARCIA 1886, at LXI. And because 

“the warm reciprocal affection existing between parents

and children” was “among the strongest characteristics of 
 

4 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

the Indian nature,” officials set out to eliminate it by dissolving Indian families. Annual Report of the Commissioner 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 essential feature” of each was, in the federal government’s

own words, “the abolition of the old tribal relations.” Annual 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 “refus[ed] to send their children.” S. Rep. No. 91–501, pt. 1, 

p. 12 (1969). But Congress would not be denied. It authorized 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 sometimes resorted to abduction. See BIA Report 36. As one 

official later recounted, officers would “visit the [Indian]

camps unexpectedly with a detachment of [officers], and 
 

Cite as: 599 U. S. ____ (2023) 5 

GORSUCH, J., concurring 

seize such children as were proper and take them away to

school, willing or unwilling.” ARCIA 1886, at 199. When 

parents “hurried their children off to the mountains or hid 

them away in camp,” agents “chase[d] and capture[d] them

like so many wild rabbits.” Ibid. Fathers were described 

as “sullen,” mothers “loud in their lamentations,” and the 

children “almost out of their wits with fright.” Ibid. 

Upon the children’s arrival, the boarding schools would 

often seek to strip them of nearly every aspect of their identity. 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 communities, see J. Reyhner & J. Eder, American Indian Education 178 (2004)—and confiscate their traditional clothes.

ARCIA 1886, at 199. Administrators delighted in the process, describing the “metamorphosis [a]s wonderful,” and

professing that, in the main, “the little savage seems quite

proud of his appearance.” Ibid. After intake, the schools 

frequently prohibited children from speaking their native 

language or engaging in customary cultural or religious 

practices. BIA Report 53. Nor could children freely associate with members of their own Tribe. Schools would organize dorms by the “[s]ize of cadets, and not their tribal relations,” so as to further “br[eak] up tribal associations.” 

ARCIA 1886, at 6. 

Resistance could invite punishments that included “withholding food” and “whipping.” BIA Report 54 (internal quotation marks omitted). Older boys faced “court-martial,” 

with other Indian children serving as prosecutors and 

judges. Annual Report of the Commissioner of Indian Affairs to the Secretary of Interior 188 (1881). Even compliant students faced “[r]ampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and 

lack of health care.” BIA Report 56. Given these conditions, 

it is unsurprising that many children tried (often unsuccessfully) to flee. Id., at 55, n. 176 (recounting incidents). 
 

6 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

State officials played a key role in foiling those efforts. 

“[P]olice from a variety of jurisdictions” assisted in “captur[ing] and return[ing] runaway school children.” Historians Brief 11–12. For “the runaways,” school administrators 

believed “a whipping administered soundly and prayerfully, helps greatly towards bringing about the desired result.” 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 “Indian 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 experience 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 aggregate a very appreciable monetary value.” L. Meriam, Institute 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 children to live “with white families” and perform “household

and farm chores” for them. R. Trennert, From Carlisle to 

Phoenix: The Rise and Fall of the Indian Outing System,

1878–1930, 52 Pacific Hist. Rev. 267, 273 (1983). This program took many Indian children “even further from their 

homes, families, and cultures.” Fletcher & Singel 943. Advocates of the outing system hoped it would be “extended 
Cite as: 599 U. S. ____ (2023) 7 

GORSUCH, J., concurring 

until every Indian child was in a white home.” D. Otis, The 

Dawes Act and the Allotment of Indian Lands 68 (1973). In 

some respects, outing-system advocates were ahead of their 

time. The program they devised laid the groundwork for 

the system of mass adoption that, as we shall see, eventually moved Congress to enact ICWA many decades later. 

In 1928, the Meriam Report, prepared by the Brookings

Institution, examined conditions in the Indian boarding

schools. It found, “frankly and unequivocally,” that “the

provisions for the care of the Indian children . . . are grossly

inadequate.” Meriam Report 11. It recommended that the 

federal government “accelerat[e]” the “mov[e] away from

the boarding school” system in favor of “day school or public

school facilities.” Id., at 35. That transition would be slow 

to materialize, though. As late as 1971, federal boarding 

schools continued to house “more than 17 per cent of the 

Indian school-age population.” W. Byler, The Destruction

of American Indian Families 1 (S. Unger ed. 1977) (AAIA 

Report). 

B 

The transition away from boarding schools was not the 

end of efforts to remove Indian children from their families 

and Tribes; more nearly, it was the end of the beginning. 

As federal boarding schools closed their doors and Indian

children returned to the reservations, States with significant 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 children” by adoptive couples. M. Jacobs, Remembering the

“Forgotten Child”: The American Indian Child Welfare Crisis of the 1960s and 1970s, 37 Am. Indian Q. 136, 141 

(2013). Certain States saw in this shift an opportunity.

They could “save . . . money” by “promoting the adoption of 
 

 

 

8 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

Indian children by private families.” Id., at 153. 

This restarted a now-familiar nightmare for Indian families. The same assimilationist rhetoric previously invoked 

by the federal government persisted, “voiced this time by

state and county officials.” L. George, Why the Need for the

Indian Child Welfare Act?, 5 J. of Multicultural Social Work 

165, 169 (1997). “‘If you want to solve the Indian problem 

you can do it in one generation,’” one official put it. Ibid. 

“‘You can take all of [the] children of school age and move 

them bodily out of the Indian country and transport them

to some other part of the United States.’” Ibid. This would 

allow “‘civilized people’” to raise the children, instead of 

their families or their tribal communities. Ibid. 

In this respect, “[t]he removal of Indian children by

[S]tates ha[d] much in common with Indian boarding 

schools.” Fletcher & Singel 952. Through the 1960s and 

1970s, Indian-child removal reached new heights. Surveys 

conducted in 1969 and 1974 showed that “approximately

25–35 per cent of all Indian children [were] separated from

their families.” AAIA Report 1. Often, these removals 

whisked children not only out of their families but out of

their communities. Some estimate that “more than 90 per 

cent of non-related adoptions of Indian children [were]

made by non-Indian couples.” Id., at 2. 

These family separations frequently lacked justification. 

According to one report, only about “1 per cent” of the separations 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 parents for conditions of “[p]overty, poor housing, lack of modern plumbing, and overcrowding.” Id., at 3. One 3-year-old

Sioux child, for instance, was removed from her family on 
 

 

Cite as: 599 U. S. ____ (2023) 9 

GORSUCH, J., concurring 

the State’s “belief that an Indian reservation is an unsuitable environment for a child.” Ibid. So it was that some Indian families, “forced onto reservations at gunpoint,” were 

later “told that they live[d] in a place unfit for raising their 

children.” Id., at 3–4. 

Aggravating matters, these separations were frequently

“carried out without due process of law.” Id., at 4. Children 

and their parents rarely had counsel. Ibid. For that matter, few cases saw the inside of a courtroom. Welfare departments knew that they could threaten to withhold benefit 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 authorized only a brief removal of their children. Ibid. Only

later would they discover that the forms purported to surrender full custody. Ibid. 

Like the boarding school system that preceded it, this 

new program of removal had often-disastrous consequences. “Because the family is the most fundamental economic, 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 physical, mental, and social growth and development.” Ibid. It 

appears, too, that Indian children were “significantly more

likely” to experience “physical, sexual, [and] emotional” 
 

 

 

10 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

abuse in foster and adoptive homes than their white counterparts. A. Landers, S. Danes, A. Campbell, & S. White 

Hawk, Abuse After Abuse: The Recurrent Maltreatment of 

American Indian Children in Foster Care and Adoption, 

111 Child Abuse & Neglect 104805, p. 9 (2021).

All that often translated into long-lasting adverse health 

and emotional effects. See M. Yellow Horse Brave Heart, 

The Historical Trauma Response Among Natives and Its 

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 Indian Boarding School Attendance on Chronic Physical

Health of Northern Plains Tribes, 42 Family & Community 

Health 1, 3–7 (2019). As one study warned: “[E]fforts to

make Indian children ‘white,’” by removing them from their

Tribes, “can destroy them.” AAIA Report 9. 

C 

Eventually, Congress could ignore the problem no longer.

In 1978, it responded with the Indian Child Welfare Act. 92 

Stat. 3096. The statute’s findings show that Congress was

acutely aware of the scope of the crisis. “[A]n alarmingly

high percentage of Indian families,” Congress observed, 

were being “broken up by the removal, often unwarranted,

of their children from them by nontribal [state] public and

private agencies.” 25 U. S. C. §1901(4). And “an alarmingly 

high percentage of such children” were “placed in 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 provisions aimed at addressing this crisis. At bottom, though,

the law’s operation is simple. It installs substantive and 

procedural guardrails against the unjustified termination 

of parental rights and removal of Indian children from 

tribal life. 
Cite as: 599 U. S. ____ (2023) 11 

GORSUCH, J., concurring 

The touchstone of the statute is notice. In any involuntary removal proceeding involving an Indian child, the initiating party must inform (1) the parent or custodian; and 

(2) the child’s Tribe. §1912(a). Either or both can intervene. 

§1911(c). ICWA also makes it harder for the moving party 

to win an involuntary removal proceeding. The party must 

show that “active efforts” have been made to avoid removing 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 family; (2) other members of the Indian child’s [T]ribe; or (3) 

other Indian families.” §1915(a). This priority governs unless the initiating party can show “good cause.” Ibid. A 

similar 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 relief. It lets the Indian child, the parent, or the Tribe “petition any court of competent jurisdiction” to “invalidate” an

order that violated key provisions of ICWA. §1914. Of special relevance, an Indian parent consenting to adoption has

two years to withdraw consent on “the grounds that consent 

was obtained through fraud or duress.” §1913(d). 

ICWA is not a panacea. While “[a]dopting ICWA marked 
 

 

 

12 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

one step toward upholding tribal rights,” “many [S]tates” 

have struggled with “effective implementation.” Maine Wabanaki–State Child Welfare Truth & Reconciliation Commission, Beyond the Mandate: Continuing the Conversation 12 (2015). Others resist ICWA outright, as the present 

litigation by Texas attests. See generally M. Fletcher & W. 

Singel, Lawyering the Indian Child Welfare Act, 120 Mich.

L. Rev. 1755 (2022). Still, the statute “has achieved considerable success in stemming unwarranted removals by state

officials of Indian children from their families and communities.” 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 considerable research “[s]ubsequent to Congress’s enactment of 

ICWA” has “borne out the statute’s basic premise”—that 

“[i]t is generally in the best interests of Indian children to

be raised in Indian homes.” Brief for American Psychological Association et al. as Amici Curiae 10–24. 

II 

This history leads us to the question at the heart of today’s cases: Did Congress lack the constitutional authority 

to enact ICWA, as Texas and the private plaintiffs contend?

In truth, that is not one question, but many. What authorities do the Tribes possess under our Constitution? What 

power does Congress have with respect to tribal relations?

What does that mean for States? And how do those principles apply in a context like adoption, which involves competing claims of federal, state, and tribal authority?

Answering these questions requires a full view of the

Indian-law bargain struck in our Constitution. Under the 

terms of that bargain, Indian Tribes remain independent 

sovereigns with the exclusive power to manage their internal matters. As a corollary of that sovereignty, States have

virtually no role to play when it comes to Indian affairs. To 

preserve this equilibrium between Tribes and States, the 
Cite as: 599 U. S. ____ (2023) 13 

GORSUCH, J., concurring 

Constitution vests in the federal government a set of potent

(but limited and enumerated) powers. In particular, the Indian Commerce Clause gives Congress a robust (but not plenary) power to regulate the ways in which non-Indians may 

interact with Indians. To understand each of those pieces—

and how they fit together—is to understand why the Indian

Child Welfare Act must survive today’s legal challenge.

This is all much more straightforward than it sounds. 

Take each piece of the puzzle in turn. Then, with the full 

constitutional picture assembled, return to ICWA’s provisions. By then, you will have all you need to see why the

Court upholds the law. 

A 

Start with the question how our Constitution approaches

tribal sovereignty. In the years before Jamestown, Indian

Tribes existed as “self-governing sovereign political communities.” United States v. Wheeler, 435 U. S. 313, 322–323 

(1978). They employed “sophisticated governmental models,” 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 international 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 reason, early “history furnishes no example, from the first settlement of our country, of any attempt on the part of the 
 

 

14 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

[C]rown to interfere with the internal affairs of the Indians.” 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 Documents 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 Lancaster 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) (GORSUCH, J., dissenting) 

(slip op., at 2). The newly independent Nation wasted no 

time entering into treaties of its own—in no small part to

secure its continued existence against external threats. 

See, e.g., Articles of Agreement and Confederation, Sept.

17, 1778, 7 Stat. 13. In practice, too, “[t]he new Republic” 

broadly recognized “the sovereignty of Indian [T]ribes,” 

even if it did so “sometimes grudgingly.” W. Quinn, Federal 

Acknowledgment of American Indian Tribes: The Historical Development of a Legal Concept, 34 Am. J. L. Hist. 331,

337 (1990). As we will see, the period under the Articles of 
Cite as: 599 U. S. ____ (2023) 15 

GORSUCH, J., concurring 

Confederation was marred by significant conflict, driven by

state and individual intrusions on tribal land. But the Constitution that followed reflected an understanding that

Tribes enjoy a power to rule themselves that no other governmental 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 Congress the power to “regulate Commerce with foreign Nations,” “among the several States,” and “with the Indian 

Tribes,” Art. I, §8, cl. 3—conferrals of authority with respect

to three separate sorts of sovereign entities that do not entail 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 enduring sovereignty of Tribes and the bedrock principle that

Indian status is a “political rather than racial” classification, Morton v. Mancari, 417 U. S. 535, 553, n. 24 (1974).) 

Given these express provisions, the early conduct of the

political branches comes as little surprise. From the beginning, the “Washington Administration acknowledged considerable Native autonomy.” G. Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L. J. 1012, 1067 (2015) 

(Ablavsky 2015). Henry Knox, President Washington’s Secretary of War, described the Tribes as akin to “foreign nations, not as the subjects of any particular [S]tate.” Letter 
 

16 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

to G. Washington (July 7, 1789), in 3 Papers of George

Washington: Presidential Series 134–141 (D. Twohig ed. 

1989). Thomas Jefferson spoke of them as maintaining 

“full, undivided, and independent sovereignty as long as 

they chose to keep it,” commenting also “that this might be 

for ever.” Notes on Cabinet Opinions (Feb. 26, 1793), in 25 

Papers of Thomas Jefferson 271–272 (J. Catanzariti ed.

1992). This view would later feature in a formal opinion of 

the Attorney General, who explained that, “[s]o long as a

[T]ribe exists . . . its title and possession are sovereign and 

exclusive; and there exists no authority to enter upon their

lands, for any purpose whatever, without their consent.” 1 

Op. Atty. Gen. 465, 466 (1821). 

What went for the Executive went for Congress. In the 

first few decades of the Nation’s existence, the Legislative

Branch passed a battery of statutes known as the Indian 

Trade and Intercourse Acts. See, e.g., Act of July 22, 1790, 

ch. 33, 1 Stat. 137; Act of Mar. 1, 1793, ch. 19, 1 Stat. 329; 

Act of May 19, 1796, ch. 30, 1 Stat. 469; Act of Mar. 30, 1802, 

ch. 13, 2 Stat. 139; Act of June 30, 1834, 4 Stat. 729. Without exception, those Acts “either explicitly or implicitly regulated only the non-Indians who venture[d] into Indian

country to deal with Indians,” and “did not purport to regulate the [T]ribes or their members” in any way. R. Clinton, 

There is No Federal Supremacy Clause for Indian Tribes, 

34 Ariz. St. L. J. 113, 134 (2002) (Clinton 2002). 

This Court recognized many of these same points in its

early cases. For example, in Worcester, the State of Georgia

sought to seize Cherokee lands, abolish the Tribe and its

laws, and apply its own criminal laws to tribal lands. 6 Pet., 

at 525–528. Holding Georgia’s laws unconstitutional, this

Court acknowledged that Tribes remain “independent political communities, retaining their original natural rights.” 

Id., at 559. While “necessarily dependent on” the United 

States, id., at 555, under “the settled doctrine of the law of 
Cite as: 599 U. S. ____ (2023) 17 

GORSUCH, J., concurring 

nations,” the Court held, “a weaker power does not surrender its independence—its right to self-government, by associating with a stronger and taking its protection,” id., at 

560–561. The Cherokee, like other Tribes, remained “a distinct community occupying its own territory . . . in which 

the laws of [the State] can have no force, and which the citizens of [that State] have no right to enter, but with the assent of the [Tribe] themselves, or in conformity with treaties, and with the acts of [C]ongress.” 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 Worcester persisted in courts of law, unchanged, for decades. Recognizing 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 Indians, 5 Wall. 761, 771–772 (1867). It held that the Fourteenth Amendment did not apply on Indian land. See Elk 

v. Wilkins, 112 U. S. 94, 99–109 (1884). And it sharply limited even the power of the federal government to prosecute

crimes between Indians on Indian land where the Tribe had 

stepped in to resolve the dispute. See Ex parte Crow Dog, 

109 U. S. 556, 572 (1883).

Nor did later developments call this original understanding into doubt. To be sure, in 1871, Congress declared that 

Tribes (prospectively) are no longer parties “with whom the 

United States may contract by treaty.” Act of Mar. 3, 1871, 

16 Stat. 566, codified at 25 U. S. C. §71; but see United 
 

 

18 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

States v. Lara, 541 U. S. 193, 218 (2004) (THOMAS, J., concurring in judgment) (describing the Act as “constitutionally 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 Antoine 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 practically 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 understanding of tribal sovereignty in mind. It provides an essential point of framing. 

B 

Just as the Constitution safeguards the sovereign authority of Tribes, it comes with a “concomitant jurisdictional

limit on the reach of state law” over Indian affairs. 

McClanahan v. Arizona Tax Comm’n, 411 U. S. 164, 171 

(1973). As this Court has consistently recognized, “[t]he 

policy of leaving Indians free from state jurisdiction and

control is deeply rooted in the Nation’s history.” Rice v. Olson, 324 U. S. 786, 789 (1945). Instead, responsibility for 

managing interactions with the Tribes rests exclusively 

with the federal government. To appreciate this point, walk 

through time once more. 

Since the first days of British rule, the Crown oversaw—

and retained the power to dictate—the Colonies’ engagement with the Indian Tribes. See Clinton 1995, at 1064– 
 

 

Cite as: 599 U. S. ____ (2023) 19 

GORSUCH, J., concurring 

1098. In response to a pattern of conflict arising out of colonial intrusion on tribal land, that supervision grew increasingly exacting. Ibid.; see also R. Clinton, The Proclamation of 1763: Colonial Prelude to Two Centuries of 

Federal-State Conflict Over the Management of Indian Affairs, 69 B. U. L. Rev. 329, 331–337 (1989) (Clinton 1989).

In 1743, for example, a British royal commission rejected 

an effort by the colony of Connecticut to exercise independent jurisdiction over a Tribe within its borders. Id., at 335– 

336. The decision rested on a now-familiar logic: “The Indians, though living amongst the king’s subjects in these

countries, are a separate and distinct people from them, 

they are treated with as such, they have a polity of their 

own, they make peace and war with any nation of Indians 

when they think fit, without controul from the English.”

Opinion of Comm’r Horsmanden, Aug. 1, 1743, in Governor 

and Company of Connecticut, and Mohegan Indians, By 

Their Guardians 126 (1743).

The mere suggestion of colonial management of tribal relations catalyzed further “centralization of oversight and 

control of colonial Indian regulation by the British government,” 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 displace 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 exclusive right and power of . . . managing all affairs with the 

Indians, not members of any of the [S]tates.” Art. IX (1777). 

In providing that grant of authority, the Articles’ drafters 
 

20 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

may have meant to codify the centralized approach the British had pursued. But the “byzantine” document the drafters created, Ablavsky 2015, at 1034, came with a pair of 

easily exploited loopholes. First, the language of its Indian 

affairs clause allowed some to claim that various Tribes 

were “‘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 Articles’ drafters added another clause stipulating that “the legislative right of any [S]tate within its own limits be not infringed 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. Ablavsky, The Savage Constitution, 63 Duke L. J. 999, 1035– 

1036 (2014) (Ablavsky 2014). By the time the Constitutional Convention rolled around, “Indian uprisings had occurred . . . in the Ohio River Valley and Virginia,” “the 

Creeks and Georgia were on the brink of open warfare,” and 

there was significant turmoil “on the western frontier.”

Clinton 1995, at 1147. Those events were not lost on the 

framers. As they debated how to broker enduring peace, 

two predominant schools of thought emerged. Madison and 

his followers favored preventing intrusions on Indian land 

and interests; Hamilton and his adherents favored resort to 

military might. Ablavsky 2014, at 1035–1038. Both sides, 

however, found agreement on the “need for a stronger federal government” presence, without the impediment of 

state interference. Id., at 1038. 
 

Cite as: 599 U. S. ____ (2023) 21 

GORSUCH, J., concurring 

Even as the Constitutional Convention assembled, a committee 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 Indians” passed in its “entire[ty] to the Union” following Independence, 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 observed, for the same reason that individual States could not 

enter treaties with foreign powers: “[T]he Indian [T]ribes 

are justly considered the common friends or enemies of the

United States, and no particular [S]tate can have an exclusive 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 encompassed “all that is required for the regulation of [the Nation’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 omitted the nettlesome language in the Articles about the “legislative right” of States. Not only that. The Constitution’s 

express exclusion of “Indians not taxed” from the apportionment formula, Art. I, §2, cl. 3, threw cold water on some 

States’ attempts to claim that Tribes fell within their territory—and therefore their control. And, lest any doubt remain, the Constitution divested States of any power to “enter into any Treaty, Alliance, or Confederation.” §10, cl. 1.

By removing that diplomatic power, the Constitution’s design also divested them of the leading tool for managing

tribal relations at that time. 

The Constitution’s departure from the Articles’ articula-
 

 

22 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

tion was praised by many and criticized by some. Federalists (such as James Madison) applauded the fact that the 

new federal government would be “unfettered” by the Articles’ constraints. The Federalist No. 42, p. 268 (C. Rossiter 

ed. 1961). Certain Anti-Federalists (including Abraham 

Yates Jr.) disfavored the “tota[l] surrender into the hands 

of Congress [of] the management and regulation of the Indian affairs.” Letter to Citizens of New York (June 13–14, 

1788), in 20 Documentary History of the Ratification of the 

Constitution 1153, 1158 (J. Kaminski et al. eds. 2004) (emphasis added). At bottom, however, no one questioned that

the Constitution took a view about where the power to manage Indian affairs would reside in the future. And no one 

doubted that it selected the federal government, not the 

States. 

Early practice confirmed this understanding. “The 

Washington Administration insisted that the federal government enjoyed exclusive constitutional authority” over

managing relationships with the Indian Tribes. Ablavsky

2015, at 1019. As President Washington put it, the federal

government “possess[ed] the only authority of regulating an

intercourse with [the Tribes], and redressing their grievances.” 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. Ablavsky 2015, at 1019. South Carolina Governor Charles Pinckney acknowledged that “the sole management of India[n] 

affairs” is “committed” to “the general Government.” Letter 

to G. Washington (Dec. 14, 1789), in 4 Papers of George 

Washington: Presidential Series 404 (D. Twohig ed. 1996).

Other leading proponents of States’ rights reluctantly drew 

the same conclusion. “[U]nder the present Constitution,” 

Thomas Jefferson lamented, States lack any “right to Treat

with the Indians without the consent of the General Government.” Letter to H. Knox (Aug. 10, 1791), in 22 Papers 
 

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

GORSUCH, J., concurring 

of Thomas Jefferson 27 (C. Cullen ed. 1986). 

For its part, this Court understood the absence of state

authority over tribal matters as a natural corollary of

Tribes’ inherent sovereignty. Precisely because Tribes exist 

as a “distinct community,” this Court concluded in Worcester, 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 sovereign. 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 government of the United States.” Ibid. (emphasis added).

State laws cannot “interfere forcibly with the relations established between the United States and [an Indian Tribe],

the regulation of which, according to the settled principles

of our [C]onstitution, are committed exclusively to the government of the [U]nion.” Ibid. (emphasis added). That 

principle, too, has endured. No one can contest the “‘historic immunity from state and local control’” that the Tribes

enjoy, nor the permissibility of constitutional provisions enacted to protect the Tribes’ “sovereign status.” New Mexico 

v. Mescalero Apache Tribe, 462 U. S. 324, 332 (1983). Tuck 

that point away too. 

C 

We now know that, at the founding, the Tribes retained 

their sovereignty. We know also that States have virtually

no role to play in managing interactions with Tribes. From 

this, it follows that “[t]he only restriction on the power” of

Tribes “in respect to [their] internal affairs” arises when

their actions “conflict with the Constitution or laws of the 

United States.” Roff v. Burney, 168 U. S. 218, 222 (1897). 

In cases like that, the Constitution provides, federal law 

must prevail. See Art. VI. This creates a hydraulic relationship between federal and tribal authority. The more 

the former expands, the more the latter shrinks. All of 
 

 

 

24 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

which raises the question: What powers does the federal 

government possess with respect to Tribes? 

1 

Because the federal government enjoys only “limited” and

“enumerated powers,” we look to the Constitution’s text. 

McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). Notably,

our founding document does not include a plenary federal 

authority over Tribes. Nor was this an accident, at least 

not in the final accounting. The framers considered a general 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 framers 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 authorities “between the [E]xecutive and the [L]egislature.” 

Toler 479. “The residue of Indian affairs power”—all those 

Indian-related powers not expressly doled out by the Constitution—remained the province of “the sovereign

[T]ribes.” Id., at 481. 

What was included in the federal government’s bundle of 

enumerated powers? In the early years, the most important

component was the authority to “make Treaties” with the 

Tribes. Art. II, §2, cl. 2. But other provisions also facilitated the management of Indian relations. The Constitution 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 respecting the Territory or other Property belonging to the 
 

Cite as: 599 U. S. ____ (2023) 25 

GORSUCH, J., concurring 

United States,” allowing it considerable power over Indians 

on federal territory. Art. IV, §3, cl. 2. The Constitution also 

authorized Congress to employ its spending power to divert 

funds toward Tribes. Art. I, §8, cl. 1. Where all those powers came up short, the Constitution afforded the federal

government the power to “regulate Commerce with foreign 

Nations and among the several States, and with the Indian 

Tribes.” §8, cl. 3 (emphasis added). Much of modern federal 

Indian law rests on that commerce power. It demands a 

closer look. 

2 

Contained in a single sentence, what we sometimes call 

“the” Commerce Clause is really three distinct Clauses 

rolled into one: a Foreign Commerce Clause, an Interstate

Commerce Clause, and an Indian Commerce Clause. To be 

sure, those Clauses share the same lead word: “Commerce.” 

And, viewed in isolation, that word might appear to sweep 

narrowly—encompassing activities like “selling, buying,

and bartering, as well as transporting for these purposes.” 

United States v. Lopez, 514 U. S. 549, 585–586 (1995) 

(THOMAS, J., concurring) (citing founding-era definitions). 

But it is “well established” that the individual Commerce 

Clauses have “very different applications,” Cotton Petroleum 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 earliest days, Indian commerce was considered “a special subject with a definite content,” quite “distinct and specialized”

from other sorts of “commerce.” A. Abel, The Commerce 

Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 467–468 (1941). A 
 

 

26 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

survey of founding-era usage confirms that the term “Commerce,” when describing relations with Indians, took on a 

broader meaning than simple economic exchange. See 

Ablavsky 2015, at 1012–1032 (compiling primary sources); 

Brief for Gregory Ablavsky as Amicus Curiae 8–11; App. to 

id., at 1–18 (same); see also A. Amar, America’s Constitution: 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 practicalities 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 sovereign, the “commercial and noncommercial aspects” of bilateral interactions were “inevitably intertwined” because any intercourse carried potential

diplomatic consequences and could even lead to war. J. Balkin, Commerce, 109 Mich. L. Rev. 1, 25 (2010) (Balkin); see 

also Ablavsky 2015, at 1028–1032 (demonstrating that 

“trade with the Indians was understood almost solely

through this political and diplomatic lens”); Clinton 1989,

at 362–363 (observing that, at the founding, Indian “trade” 

was “intertwined” with concerns of “peace and diplomacy”

and with the threat of “war”). Nor was that a speculative

possibility when it came to Tribes. As we have seen, even 

the noncommercial conduct of settlers in the early years

was a “continual source of violent conflict [with] Indians,”

partially motivating the move away from the Articles of 

Confederation framework. M. Fletcher & L. Jurss, Tribal 

Jurisdiction—A Historical Bargain, 76 Md. L. Rev. 593, 597

(2017); see also Ablavsky 2014, at 1033–1038. 

At least two terms in the Commerce Clause confirm this 

special usage. For one thing, the Constitution speaks of 

“Commerce . . . among” when discussing interstate dealings, but “Commerce with” when addressing dealings with 
 

Cite as: 599 U. S. ____ (2023) 27 

GORSUCH, J., concurring 

tribal and foreign sovereigns. Art. I, §8, cl. 3 (emphases 

added). This language suggests a shared framework for

Congress’s Indian and foreign commerce powers and a different one for its interstate commerce authority. See R. 

Monette, A New Federalism for Indian Tribes: The Relationship Between the United States and Tribes in Light of 

Our Federalism and Republican Democracy, 25 U. Toledo 

L. Rev. 617, 629, n. 82 (1994). More than that, the term 

“with” suggests that Congress has the authority to manage

“all interactions or affairs . . . with the Indian [T]ribes” and 

foreign sovereigns—wherever those interactions or affairs 

may occur. Balkin 23. By contrast, the term “among” found

in the Interstate Commerce Clause most naturally suggests

that Congress may regulate only activities that “extend in

their operation beyond the bounds of a particular [S]tate” 

and into another. Id., at 30. All this goes a long way toward

explaining why “Congress’s powers to regulate domestic

commerce are more constrained” than its powers to regulate 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 collection of territorial entities. Not so “Tribes.” That term 

necessarily referred to collections of individuals. See C. 

Green, Tribes, Nations, States: Our Three Commerce Powers, 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 definition of “Tribe.” See, e.g., 2 J. Ash, The New and Complete 

Dictionary of the English Language (1775) (“[a] family, a 

body of the people distinguished by family or fortune”); 2 S. 

Johnson, A Dictionary of the English Language (4th ed. 

1773) (“[a] di[s]tinct body of the people as divided by family

or fortune, or any other characteri[s]tick”); T. Dyche, A New 

General English Dictionary (14th ed. 1771) (“the particular 
 

 

28 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

descendants or people [s]prung from [s]ome noted head, or 

a collective number of people in a colony”); N. Bailey, An 

Universal Etymological English Dictionary (22d ed. 1770) 

(“a [c]ompany of [p]eople dwelling together in the [s]ame

[w]ard or [l]iberty”).

This observation sheds light on why ordinary speakers 

use the two terms differently. It explains, for instance, why 

it is grammatical to say you are vacationing “in Colorado,” 

but not to say you are vacationing “in Navajo.” It explains 

why it is sensible to say you are meeting “with some Cherokee,” but not to say you are meeting “with some New Jersey.” 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 Indian Commerce Clause endows Congress with the “authority to regulate commerce with Native Americans” as individuals. McGirt v. Oklahoma, 591 U. S. ___, ___ (2020) (slip 

op., at 7). By contrast, Congress’s power under the Interstate Commerce Clause operates only on commerce that involves “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 distinction. For example, in United States v. Holliday, 3 Wall. 407 

(1866), the Court upheld a federal statute that prohibited 

the sale of alcohol by non-Indians to Indians—on or off 

tribal land. Id., at 416–417. Giving the Indian Commerce 

Clause its most natural reading, the Court concluded that 

the power to regulate commerce with Indian Tribes must

mean the power to regulate “commerce with the individuals 

composing those [T]ribes.” Id., at 417 (emphasis added).

For that reason, too, “[t]he locality of the [commerce could] 

have nothing to do with the [scope of the] power.” Id., at 
Cite as: 599 U. S. ____ (2023) 29 

GORSUCH, J., concurring 

418; see also Henderson v. Mayor of New York, 92 U. S. 259, 

270 (1876) (quoting Holliday and echoing this point in the

context of the Foreign Commerce Clause). More than that, 

Holliday recognized that this focus on individuals means 

that Indian commerce must cover “something more” than 

just economic exchange. 3 Wall., at 417 (internal quotation 

marks omitted). While it includes “buying and selling and

exchanging commodities,” it also extends to the entire “intercourse between the citizens of the United States and 

those [T]ribes.” Ibid. That “intercourse,” the Court recognized, is “another branch of commerce” with Indians, “and 

a very important one” at that. Ibid. 

If the Constitution’s text left any uncertainty about the

scope of Congress’s Indian commerce power, early practice

liquidated it. The First Congress adopted the initial Indian

Trade and Intercourse Act, which prohibited the “sale of

lands made by any Indians” to non-Indians absent a public 

treaty. Act of July 22, 1790, ch. 33, §4, 1 Stat. 138. The law 

also extended criminal liability to non-Indians who “commit[ted] any crime upon, or trespass against, the person or

property of any peaceable and friendly Indian” in Indian 

country. §5, ibid. The first of these provisions arguably 

addressed a narrow question of commerce. But the second 

“plainly regulated noneconomic” interaction. A. Amar, 

America’s Constitution and the Yale School of Constitutional Interpretation, 115 Yale L. J. 1997, 2004, n. 25 

(2006).

Despite that fact, the Act (and its successors) were “not

controversial exercises of congressional power.” N. Newton, 

Federal Power Over Indians: Its Sources, Scope, and Limitations, 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 Indian [T]ribes to Congress.” Ibid. As Justice McLean (riding 

circuit) recognized, punishing non-Indians for “committing

violence upon the persons or property of the Indians,” fell 
 

 

30 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

“clearly within the scope of the power to regulate commerce

with the Indian [T]ribes.” United States v. Bailey, 424 

F. Cas. 937, 939 (No. 14,495) (CC Tenn. 1834). Of course, 

the kinds of criminal trespasses Congress regulated as

early as 1790 were not themselves commercial. But a trespass against even one individual Indian could disrupt commerce with that individual. See Green 660–661, and n. 76. 

By extension, such a trespass could disrupt dealings with 

other members of the Tribe and with other allied Tribes too. 

See Balkin 24–26. Recognizing this, the framers entrusted

Congress with the power previously exercised by the British Parliament to “restrain the disorderly and licentious 

from intrusions” by non-Indians against even individual Indians—all to preserve functioning channels of trade and intercourse “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 Commerce Clause, “broader” does not mean “plenary.” Even the 

federal government’s “power to control and manage” relations with the Tribes under the Indian Commerce Clause 

comes with “pertinent constitutional restrictions.” United 

States v. Creek Nation, 295 U. S. 103, 110 (1935). Congress

cannot, for example, expand the scope of its own power by

arbitrarily labeling non-Indians as Indians. See United 

States v. Sandoval, 231 U. S. 28, 46 (1913). Nor can it regulate 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 negative one.” Pearl 325. Its text “limits the legislative reach to 
 

Cite as: 599 U. S. ____ (2023) 31 

GORSUCH, J., concurring 

creating federal restrictions concerning what United States 

citizens and States may do in the context of Indian

[T]ribes.” Ibid. Nothing in the Clause grants Congress the

affirmative power to reassign to the federal government inherent sovereign authorities that belong to the Tribes. 

In that way, the Indian Commerce Clause confirms, rather than abridges, principles of tribal sovereignty. As it 

must. 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 instrument for “annihilating the political 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 commerce powers to legislate away a Tribe than it could a State 

or a foreign sovereign. Cf. National League of Cities v. Usery, 426 U. S. 833, 855 (1976); Metcalf & Eddy v. Mitchell, 

269 U. S. 514, 523–526 (1926); Lane County v. Oregon, 7 

Wall. 71, 76–77 (1869). The framers appreciated, too, that

they possessed no more “authority to delegate to the national government power to regulate the [T]ribes directly”

than they possessed authority to “delegate power to the federal 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 carefully considered balance between tribal, state, and federal 

powers. That scheme predated the founding and it persisted long after. It is not, however, the balance this Court 

always maintained in the years since. More than a little 

fault for that fact lies with a doctrinal misstep. In the late 

19th century, this Court misplaced the original meaning of 
 

 

32 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

the Indian Commerce Clause. That error sent this Court’s 

Indian-law jurisprudence into a tailspin from which it has

only recently begun to recover. Understanding that error—

and the steps this Court has taken to correct it—are the last

missing pieces of the puzzle. 

In 1885, during the period of assimilationist federal policy, Congress enacted the Indian Major Crimes Act, §9, 23

Stat. 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 constitutionality of that Act. In the process, though, it stepped 

off the doctrinal trail. Instead of examining the text and

history of the Indian Commerce Clause, the Court offered a 

free-floating and purposivist account of the Constitution,

describing it as extending broad “power [to] the General

Government” over tribal affairs. Id., at 384. Building on

that move, the Court would later come to describe the federal 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” cases reached results explainable

under a proper reading of the Constitution’s enumerated 

powers. Maybe the turn of phrase even made some sense:

Congress’s power with regard to the Tribes is “plenary” in 

that it leaves no room for State involvement. See Ablavsky

2015, at 1014 (“[T]he Court use[d] the term [plenary] interchangeably with ‘exclusive’”). But as sometimes happens

when this Court elides text and original meaning in favor 

of broad pronouncements about the Constitution’s purposes, the plenary-power idea baked in the prejudices of the

day. Cf. Plessy v. Ferguson, 163 U. S. 537 (1896). The Court 

suggested that the federal government’s total power over

the Tribes derived from its supposedly inherent right to “enforce its laws” over “th[e] remnants of a race once powerful, 
 

Cite as: 599 U. S. ____ (2023) 33 

GORSUCH, J., concurring 

now weak.” Kagama, 118 U. S., at 384–385. Of course, 

nothing of the sort follows from “a reasoned analysis derived from the text [or] history . . . of the United States Constitution.” 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 Questions, and Sovereignty in Indian Affairs, 63 UCLA L. Rev. 666, 670 (2016); see Cleveland 62–74. Perhaps most notably, the Court even suggested that Congress’s “plenary authority” might allow 

it 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 the scope of federal power over 

the Tribes. It also had predictable downstream effects on 

the relationship between States and Tribes. As Congress

assumed new power to intrude on tribal sovereignty, the 

Constitution’s “concomitant jurisdictional limit on the

reach of state law” began to wane. McClanahan, 411 U. S., 

at 171. It is not hard to draw a through-line between these 
 

 

 

 

34 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

developments. This Court itself has acknowledged that its

plenary-power cases embodied a “trend . . . away from the

idea of inherent Indian sovereignty as a bar to state jurisdiction.” Id., at 172, and n. 7. 

It is no coincidence either that this Court’s plenary-power

jurisprudence emerged in the same era as Indian boarding 

schools and other assimilationist policies. See D. Moore & 

M. Steele, Revitalizing Tribal Sovereignty in Treatymaking, 97 N. Y. U. L. Rev. 137, 142 (2022). Rather, “[f]ederal

bureaucratic control over Indian leadership and governments 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 federal 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 misadventure. 

I do not mean to overstate the point. Even in the heyday 

of the plenary-power theory, this Court never doubted that

Tribes retain a variety of self-government powers. It has 

always acknowledged that Tribes are “a separate people,

with the power of regulating their internal and social relations.” 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—especially 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). 
 

Cite as: 599 U. S. ____ (2023) 35 

GORSUCH, J., concurring 

Doubtless, too, the rise of the plenary-power theory injected incoherence into our Indian-law jurisprudence.

Many scholars have commented on it. See, e.g., P. Frickey,

Doctrine, Context, Institutional Relationships, and Commentary: The Malaise of Federal Indian Law Through the 

Lens of Lone Wolf, 38 Tulsa L. Rev. 5, 9 (2002) (describing 

our doctrine as “riddled with . . . inconsistency”); F. Pommersheim, A Path Near the Clearing: An Essay on Constitutional Adjudication in Tribal Courts, 27 Gonz. L. Rev.

393, 403 (1991) (calling our doctrine “bifurcated, if not fully 

schizophrenic”). So have Members of this Court. JUSTICE 

THOMAS has put the problem well: “[M]uch of the confusion 

reflected in our precedent arises from two largely incompatible” assumptions: That Congress “can regulate virtually

every aspect of the [T]ribes”; and that “Indian [T]ribes retain inherent sovereignty.” Lara, 541 U. S., at 214–215 

(opinion concurring in judgment). Those two propositions 

of course clash. That is because only one is true. Yes, 

Tribes retain the inherent sovereignty the Constitution left

for them. But no, Congress does not possess power to “calibrate ‘the metes and bounds of tribal sovereignty.’” Ibid. 

In recent years, this Court has begun to correct its mistake. Increasingly, it has emphasized original meaning in

constitutional interpretation. See, e.g., Kennedy v. Bremerton 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 direction. It recognizes that Congress’s powers with respect to 
 

 

36 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

the Tribes “derive from the Constitution, not the atmosphere.” 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 Indian 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 individuals.” 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 instead 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 sovereignty it entails. 

III 

With all the historical pieces of this puzzle assembled, 

only one task remains. You must decide for yourself if

ICWA passes constitutional muster.

By now, the full picture has come into view and it is easy

to see why ICWA must stand. Under our Constitution, 

Tribes remain independent sovereigns responsible for governing their own affairs. And as this Court has long recognized, domestic law arrangements fall within Tribes’ traditional powers of self-governance. See, e.g., Fisher, 424 

U. S., at 387; Quiver, 241 U. S., at 605. As “‘a separate people’” Tribes may “‘regulat[e] their internal and social relations’” as they wish. Wheeler, 435 U. S., at 322 (quoting 
Cite as: 599 U. S. ____ (2023) 37 

GORSUCH, J., concurring 

Kagama, 118 U. S., at 381–382). In enacting ICWA, Congress affirmed this understanding. It recognized that

“there is no resource that is more vital to the continued existence 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 eliminate 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: Indian Tribal Courts, 33 Tulsa L. J. 1 (1997).

No doubt, ICWA sharply limits the ability of States to impose 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 affairs 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 government. Id., at 1038–1051; see also Clinton 1995, at 1098– 

1165. Recognizing as much, this Court has consistently reaffirmed the Tribes’ “immunity from state and local control.” 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 protections against the removal of Indian children. Thankfully,

Indian children are not (these days) units of commerce. Cf. 

Fletcher & Singel 897–898 (describing an early practice of 

enslaving Indian children). But at its core, ICWA restricts 
 

 

38 HAALAND v. BRACKEEN 

GORSUCH, J., concurring 

how non-Indians (States and private individuals) may engage with Indians. And, as we have seen, that falls in the 

heartland of Congress’s constitutional authority. Recall 

that the very first Congresses punished non-Indians who

“commit[ted] any crime upon [any] friendly Indian.” Act of 

July 22, 1790, ch. 33, §5, 1 Stat. 138. ICWA operates in

much the same way. The mass removal of Indian children 

by States and private parties, no less than a pattern of criminal trespasses by States and private parties, directly interferes with tribal intercourse. More than that, it threatens 

the Tribes’ “political existence.” Worcester, 6 Pet., at 536. 

And at the risk of stating the obvious, Indian commerce is

hard to maintain if there are no Indian communities left to 

do commerce with. 

IV 

Often, Native American Tribes have come to this Court 

seeking justice only to leave with bowed heads and empty

hands. But that is not because this Court has no justice to

offer them. Our Constitution reserves for the Tribes a 

place—an enduring place—in the structure of American

life. It promises them sovereignty for as long as they wish 

to keep it. And it secures that promise by divesting States 

of authority over Indian affairs and by giving the federal

government certain significant (but limited and enumerated) powers aimed at building a lasting peace. In adopting

the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise 

their families as they please; the right of Indian children to

grow in their culture; and the right of Indian communities

to resist fading into the twilight of history. All of that is in 

keeping with the Constitution’s original design. 
_________________ 

_________________ 

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

KAVANAUGH, J., concurring 

SUPREME COURT OF THE UNITED STATES 

Nos. 21–376, 21–377, 21–378 and 21–380 

DEB HAALAND, SECRETARY OF THE INTERIOR, 

ET AL., PETITIONERS 

21–376 v.

CHAD EVERET BRACKEEN, ET AL. 

CHEROKEE NATION, ET AL., PETITIONERS 

21–377 v.

CHAD EVERET BRACKEEN, ET AL. 

TEXAS, PETITIONER 

21–378 v.

DEB HAALAND, SECRETARY OF THE 

INTERIOR, ET AL. 

CHAD EVERET BRACKEEN, ET AL., PETITIONERS 

21–380 v.

DEB HAALAND, SECRETARY OF THE 

INTERIOR, ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT 

[June 15, 2023]

 JUSTICE KAVANAUGH, concurring. 

I join the Court’s opinion in full. I write separately to

emphasize that the Court today does not address or decide 

the equal protection issue that can arise when the Indian

Child Welfare Act is applied in individual foster care or 

adoption proceedings. See ante, at 29, 32, n. 10. As the 

Court explains, the plaintiffs in this federal-court suit 
 

2 HAALAND v. BRACKEEN 

KAVANAUGH, J., concurring 

against federal parties lack standing to raise the equal

protection issue. So the equal protection issue remains 

undecided. 

In my view, the equal protection issue is serious. Under 

the Act, a child in foster care or adoption proceedings may 

in some cases be denied a particular placement because of 

the child’s race—even if the placement is otherwise 

determined to be in the child’s best interests. And a 

prospective foster or adoptive parent may in some cases be

denied the opportunity to foster or adopt a child because of 

the prospective parent’s race. Those scenarios raise 

significant questions under bedrock equal protection

principles and this Court’s precedents. See Palmore v. 

Sidoti, 466 U. S. 429 (1984). Courts, including ultimately 

this Court, will be able to address the equal protection issue

when it is properly raised by a plaintiff with standing—for 

example, by a prospective foster or adoptive parent or child 

in a case arising out of a state-court foster care or adoption 

proceeding. See ante, at 29, 32, n. 10. 
_________________ 

_________________ 

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

THOMAS, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

Nos. 21–376, 21–377, 21–378 and 21–380 

DEB HAALAND, SECRETARY OF THE INTERIOR, 

ET AL., PETITIONERS 

21–376 v. 

CHAD EVERET BRACKEEN, ET AL. 

CHEROKEE NATION, ET AL., PETITIONERS 

21–377 v. 

CHAD EVERET BRACKEEN, ET AL. 

TEXAS, PETITIONER 

21–378 v. 

DEB HAALAND, SECRETARY OF THE 

INTERIOR, ET AL. 

CHAD EVERET BRACKEEN, ET AL., PETITIONERS 

21–380 v. 

DEB HAALAND, SECRETARY OF THE 

INTERIOR, ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT 

[June 15, 2023] 

JUSTICE THOMAS, dissenting. 

These cases concern the Federal Government’s attempt

to regulate child-welfare proceedings in state courts. That 

should raise alarm bells. Our Federal “[G]overnment is

acknowledged by all to be one of enumerated powers,” having only those powers that the Constitution confers ex-
 

 

2 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

pressly or by necessary implication. McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). All other powers (like family 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), Congress ignored the normal limits on the Federal Government’s power and prescribed rules to regulate state child

custody proceedings in one circumstance: when the child involved happens to be an Indian. As the majority acknowledges, ICWA often overrides state family law by dictating

that state courts place Indian children with Indian caretakers even if doing so is not in the child’s best interest. See 

ante, at 2. It imposes heightened standards before removing Indian children from unsafe environments. See ante, at 

3–4. And it allows tribes to unilaterally enroll Indian children and then intervene in their custody proceedings. See 

ante, at 4, 6–8. 

In the normal course, we would say that the Federal Government has no authority to enact any of this. Yet the majority declines to hold that ICWA is unconstitutional, reasoning 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 intruded upon a longstanding domain of exclusive state powers, we must ask not whether a constitutional provision prohibits that intrusion, but whether a constitutional provision 

authorizes it. 

The majority and respondents gesture to a smorgasbord 

of constitutional hooks to support ICWA; not one of them 

works. First, the Indian Commerce Clause is about commerce, not children. See Adoptive Couple v. Baby Girl, 570 

U. S. 637, 659–665 (2013) (THOMAS, J., concurring). Second, the Treaty Clause does no work because ICWA is not 

based on any treaty. Third, the foreign-affairs powers

(what the majority terms “structural principles”) inherent 
Cite as: 599 U. S. ____ (2023) 3 

THOMAS, J., dissenting 

in the Federal Government have no application to regulating the domestic child custody proceedings of U. S. citizens 

living within the jurisdiction of States.

I would go no further. But, as the majority notes, the 

Court’s precedents have repeatedly referred to a “plenary

power” that Congress possesses over Indian affairs, as well 

as a general “trust” relationship with the Indians. I have 

searched in vain for any constitutional basis for such a plenary power, which appears to have been born of loose language and judicial ipse dixit. And, even taking the Court’s

precedents as given, there is no reason to extend this “plenary power” to the situation before us today: regulating

state-court child custody proceedings of U. S. citizens, who 

may never have even set foot on Indian lands, merely because the child involved happens to be an Indian. 

I 

State courts usually apply state law when resolving child 

custody issues. This would normally be true for most Indians, 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 Minority Health, Profile: American Indian/Alaska Native (Feb.

24, 2023), https://minorityhealth.hhs.gov/omh/browse

.aspx?lvl=3&lvlid=62 (87% live off Indian lands). Thus, one 

might expect that when a child custody issue regarding an

Indian child arises in a state court, that court would apply 

the same laws that it would for any other citizen. 

But ICWA displaces the normal state laws governing

child custody when it comes to only one group of citizens: 

Indian children. ICWA defines “Indian child” capaciously:

It includes not only children who are members of an Indian

tribe, but also those children who are merely eligible for 

membership in a tribe and are the biological child of a tribal 
 

4 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

member. See 25 U. S. C. §1903(4). If the child resides on 

Indian tribal lands, then the Indian tribal court has jurisdiction. §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 petition by the child’s parent, custodian, or tribe. §1911(b).

Even when the state court retains the proceedings, ICWA

replaces state law with a strict set of federal rules. For example, if the State fears that a child is suffering physical or

sexual abuse, it must clear a set of hurdles before placing 

the child in foster care or terminating the parent’s rights. 

§§1912(a)–(e). If the parent wishes to voluntarily relinquish his or her rights and facilitate an adoption, the child’s 

tribe has a right to intervene “at any point” and to collaterally attack the court’s decree. §§1911(c), 1914. Moreover, 

it appears that tribes can enroll children unilaterally, without the parent’s consent. Accordingly, even if the biological 

parents, the child, the adoptive parents, and the court all 

agree on what is best for the child, the tribe can intervene

at the eleventh hour, without any consent from the parents

or child, and block the proceedings. In fact, that is exactly 

what happened here—the children were unilaterally designated as tribal members by tribes, which then sought to 

block adoptions that everyone else thought were best for the 

children involved. And, even though some of those adoptions 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 consideration would be the best interests of that child. E.g., Tex. 

Fam. Code Ann. §153.002 (West 2014); American Law Institute, Principles of the Law of Family Dissolution §2.02 

(2002); Friederwitzer v. Friederwitzer, 55 N. Y. 2d 89, 92, 

432 N. E. 2d 765, 767 (1982); Karner v. McMahon, 433 Pa. 
 

Cite as: 599 U. S. ____ (2023) 5 

THOMAS, J., dissenting 

Super. 290, 302, 640 A. 2d 926, 932 (1994). That makes 

sense; as the majority notes, these children are some of the

most vulnerable among us, and their interests should be a 

court’s primary concern. See ante, at 1. But ICWA displaces that standard with its own hierarchy of preferences, 

requiring a court to prefer any placements with (1) a member of the child’s extended family; (2) other members of the

child’s tribe; and (3) other Indian families of any tribe, anywhere in the country. §1915(a). Similar rules govern foster-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 children. See ante, at 5. 

Again, these detailed rules govern the child custody proceedings 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 adoption, yet ICWA may stand in the way.

Normally, we would say that the Federal Government 

plainly lacks the authority to enact a law like this. The only

question is thus whether Congress has some additional authority that allows it to regulate the adoption process for

U. S. citizens in state courts merely because the child involved happens to be an Indian. To answer that question, I 

turn first to the text and original meaning of the Constitution. 

—————— 1An analogous law might be if the Federal Government tried to regulate the child custody proceedings of U. S. citizens who are eligible for 

Russian, Mexican, Israeli, or Irish citizenship. 
 

 

6 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

II 

To explain the original understanding of the Constitution’s enumerated powers with regard to Indians, I start

with our Nation’s Founding-era dealings with Indian tribes. 

Those early interactions underscore that the Constitution

conferred specific, enumerated powers on the Federal Government 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 easily explained by those enumerated powers. Meanwhile, the 

States continued to enjoy substantial authority with regard

to tribes. At each turn, history and constitutional text thus 

point to a set of enumerated powers that can be applied to 

Indian tribes—not some sort of amorphous, unlimited

power than can be applied to displace all state laws when it 

comes to Indians. 

A 

Before the Revolution, most of the Thirteen Colonies 

adopted their own regulations governing Indian trade. See 

Adoptive Couple, 570 U. S., at 660 (THOMAS, J., concurring);

R. Natelson, The Original Understanding of the Indian 

Commerce Clause, 85 Denver U. L. Rev. 201, 219, and 

n. 121 (2007) (Natelson) (collecting laws). These regulations were necessary because colonial traders abused their 

Indian trading partners, often provoking violent Indian retaliation. See Adoptive Couple, 570 U. S., at 660–661; 1 F. 

Prucha, The Great Father 18–21 (1984) (Prucha). Most colonial governments thus imposed licensing systems of some 

form both to protect Indians and to maintain trading relationships with them. See id., at 19. However, the colonial 

laws were not uniform, leading to rivalries between the Colonies, corruption, fraud, and other abuses by traders. Id., 

at 21. Then, once the Nation had achieved independence, 

it “faced innumerable difficulties,” id., at 46, from finding 

ways to uphold its treaties with foreign nations to economic 
Cite as: 599 U. S. ____ (2023) 7 

THOMAS, J., dissenting 

upheaval at home, J. Marshall, The Life of George Washington 313–316 (R. Faulkner & P. Carrese eds. 2000). 

Peace with the Indians, rather than conflicts sparked by 

unscrupulous traders, was imperative. Prucha 46. 

The Articles of Confederation aimed to meet that need in 

part by giving Congress “the sole and exclusive right and 

power of . . . regulating the trade and managing all affairs

with the Indians.” Art. IX, cl. 4. However, that broad 

power came with two limitations: First, the Indians could

not be “members of any of the states.” Ibid. And, second, 

“the legislative right of any state within its own limits

[could not] be infringed or violated.” Ibid. In part because

of those limitations, the Articles’ solution proved to be less 

than ideal. As James Madison would later write, the two 

limits were “obscure and contradictory”; the new Nation

had “not yet settled” on which Indians were “members” of a

State or which state “legislative right[s]” could not be “infringe[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 Articles. 

Under the Articles, Congress entered treaties with various tribes and sought to maintain a mostly peaceful relationship with the Indians—but its authority was undermined 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 

—————— 2For example, though it was not exactly settled what it meant for an 

Indian to be a “member” of a State, the definition often turned on 

whether the Indian paid taxes in or was a citizen of that State. Adoptive 

Couple v. Baby Girl, 570 U. S. 637, 662, n. 2 (2013) (THOMAS, J., concurring). 
 

8 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

again and again, frontier settlers encroached on Indian territory 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 perpetrating. 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 several fronts.” Ibid. Such a war, feared some Founders, could 

be destructive to the fledgling Republic. See G. Ablavsky, 

The Savage Constitution, 63 Duke L. J. 999, 1033 (2014). 

The Constitution addressed those problems in several 

ways. First and most plainly, the Constitution made all

federal treaties and laws “the supreme Law of the Land,”

notwithstanding the laws of any State. Art. VI. It empowered 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 Indian tribes: the power “[t]o regulate Commerce . . . with the 
 

 

Cite as: 599 U. S. ____ (2023) 9 

THOMAS, J., dissenting 

Indian Tribes.” §8, cl. 3. That power, however, came very

late in the drafting process and was narrower than initially 

proposed. See L. Toler, The Missing Indian Affairs Clause,

88 U. Chi. L. Rev. 413, 444–464 (2021) (Toler). At two separate 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 President with certain foreign-affairs powers including “[t]he executive Power,” which includes a residual authority over 

war, peace, and foreign interactions. See Art. II; Zivotofsky 

v. Kerry, 576 U. S. 1, 35–40 (2015) (THOMAS, J., concurring

in judgment in part and dissenting in part); United States 

v. Curtiss-Wright Export Corp., 299 U. S. 304, 319 (1936).

From the start, Presidents have exercised foreign-affairs

powers not specifically enumerated on matters ranging 

from maintaining the peace and issuing passports to communicating with foreign governments and repelling sudden 

attacks on the Nation. S. Prakash, Imperial From the Beginning 119–132 (2015). In his Neutrality Proclamation, 

for example, President Washington declared that the

United States would remain strictly neutral in the then-ongoing war between England and France. See A Proclamation (Apr. 22, 1793), reprinted in 1 American State Papers 
 

10 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

140 (W. Lowrie & M. Clarke eds. 1833). Congress supported 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 enlisted or entered in the service of any foreign prince or 

state.” §2, 1 Stat. 383. While this Court has at times debated whether those residual foreign-affairs powers are located in the Executive exclusively or the Federal Government more broadly, see Zivotofsky, 576 U. S., at 20–22, it 

has long recognized the powers as arising from our constitutional framework and residing at the federal level, see, 

e.g., Curtiss-Wright, 299 U. S., at 318. 

B 

After the Constitution’s ratification, the new Federal 

Government exercised its enumerated powers with regard

to Indian tribes. To start, the Government embarked on an 

era of treaty-making with Indian tribes. See Cohen 

§1.03[1], at 23. That treaty-focused policy reflected the 

Washington administration’s view that Indian tribes were

best dealt with as mostly “foreign nations,” with an eye towards 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 dependent 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 enforce its treaties. Exercising its new military powers, the

First Congress established a Department of War and vested 
Cite as: 599 U. S. ____ (2023) 11 

THOMAS, J., dissenting 

the Department with authority over “Indian affairs.” See 

§1, 1 Stat. 50. War Secretary Henry Knox then called for,

and obtained, “a line of garrisons in the Indian Country, in

order to enforce the treaties and maintain the peace of the 

frontier.” F. Prucha, American Indian Policy in the Formative Years 61 (1962) (Prucha, American Indian Policy).

Those garrisons remained for years, working to prevent

American settlers from illegally entering Indian country or

otherwise stirring up conflicts. Id., at 61–63. 

Meanwhile, President Washington exercised his diplomatic authority to maintain peace on the frontier. For example, when Pennsylvania settlers killed two members of

the Seneca Nation, Washington appointed a federal agent

to meet with the Seneca and “‘give the strongest assurances 

of the friendship of the United States towards that Tribe; 

and to make pecuniary satisfaction.’” Letter to T. Mifflin 

(Sept. 4, 1790), reprinted in 6 Papers of George Washington

396 (D. Twohig ed. 1996). And, in line with his executive 

authority to “regulate all intercourse with foreign powers,”

see 4 J. Elliot, Debates on the Constitution 126–127 (1863),

Washington instructed Pennsylvania’s Governor to refer 

the Seneca “‘to the Executive of the United States, as possessing the only authority of regulating an intercourse with

them, and redressing their grievances,’” Letter to T. Mifflin, in Papers of George Washington 396.

Congress too did its part, enacting a series of acts “to regulate Trade and Intercourse with the Indian Tribes, and to 

preserve Peace on the Frontiers.” See, e.g., 1 Stat. 469; 2 

Stat. 139; 1 Stat. 137 (emphasis deleted). Those “Trade and 

Intercourse Acts” underscored the Federal Government’s 

new powers and worked to establish a policy of peace and 

trade with Indian tribes. For example, the Acts threatened 

criminal penalties on any U. S. citizen who entered Indian 

lands and there committed crimes against Indians. See, 

e.g., id., at 137; see also Prucha, American Indian Policy 

188–193. Though opponents of those provisions contended 
 

12 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

that they were unnecessary because state laws and some 

treaties already provided for criminal punishment, proponents explained that the provisions were needed for those 

who went “out of the limits of any of the States” and committed crimes that may not have been covered by a particular treaty. See 3 Annals of Cong. 751 (1792).3 Thus, as 

with the border 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 nations. See 1 Stat. 383. 

The Trade and Intercourse Acts further hammered out 

the Nation’s diplomatic and territorial stance with respect

to the Indian tribes. For example, reflecting the Federal 

Government’s powers over commerce, territories, and foreign affairs, the Acts forbade U. S. citizens from purchasing, surveying, or settling on Indian lands. E.g., id., at 329– 

330. One of the Acts, enacted in 1796, then drew a boundary 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 

—————— 3As reflected in the debates on this statute, a majority of Congress 

thought that “the power of the General Government to legislate in all the 

territory belonging to the Union, not within the limits of any particular 

State, cannot be doubted; if the Government cannot make laws to restrain persons from going out of the limits of any of the States, and commit murders and depredations, it would be in vain to expect any peace 

with the Indian tribes.” 3 Annals of Cong. 751. 
 

Cite as: 599 U. S. ____ (2023) 13 

THOMAS, J., dissenting 

tribes from allying themselves with European powers, Congress 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 practice of requiring licenses to trade with Indians and threatened penalties on anyone who sold or purchased goods from 

Indians without a license. See, e.g., 1 Stat. 329–330. To 

facilitate trade, Congress also established a series of trading 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 civilization” and secure the tribes’ “friendship,” Congress appropriated funds for the President to furnish gifts to the Indians. 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 Indian lands, and the military garrisons sometimes could not 

stem the tide. See Prucha 62–63, 112. The Indians (often

supported by the British) engaged in intermittent raids and

attacks against American settlers, and the Federal Government and several confederated tribes fought a significant 

war in the Northwest Territories. Id., at 63–67; J. Yoo, Crisis and Command 75–79 (2011); M. Fletcher & W. Singel, 

Indian Children and the Federal-Tribal Trust Relationship,

95 Neb. L. Rev. 885, 904–905 (2017) (Fletcher & Singel). 

Additionally, the Federal Government often played tribes 

against each other to obtain land concessions by treaty,

leading many tribes (again goaded by the British) to take

up arms against the United States in the War of 1812. See 

Cohen §1.03[3], at 39–41. In the aftermath of that conflict, 

Presidents Monroe and John Quincy Adams generally pursued a policy of assimilation or removing Indians west with 

their consent. Prucha, American Indian Policy 226–233. 
 

14 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

That policy then gave way to a more forceful policy of removing Indians west, particularly during the administration of President Andrew Jackson. Id., at 233–249; Cohen 

§1.03[4], at 41–51; Prucha 193–195, 239–240.

But, at least until the War of 1812 (and, in large part, in

the years after it), Founding-era Presidents’ primary goals 

in this area were to achieve peace with the Indians, sustain 

trade with them, and obtain Indian lands through treaties. 

See id., at 32–33, 59, 61, 93. By establishing a peaceful and

trade-oriented relationship with the Indians, the new country further hoped to exclude British Canada and other European powers that might seek alliances with the Indian

tribes. See Cohen §1.03[3], at 37–38, n. 102; 2 Stat. 6. During that time, the Federal Government’s relationship with

the Indians thus remained (as it did for nearly the first hundred 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 Congresses were particularly “concerned with the remnants of 

tribes that had been absorbed by the states and had come

under their direction and control.” Prucha 92. The first 

Trade and Intercourse Acts specifically provided that “nothing in this act shall be construed to prevent any trade or

intercourse with Indians living on lands surrounded by settlements 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 Apportionment Clause provided that representatives would be

apportioned by the population of each State, “excluding Indians not taxed”—implying that there were Indians who

paid taxes and were incorporated into the bodies politic of 

the States. Art. I, §2, cl. 3. 
Cite as: 599 U. S. ____ (2023) 15 

THOMAS, J., dissenting 

The States accordingly enacted numerous laws to regulate Indians within their territorial boundaries, as well as 

those Indians’ interactions with the States’ citizens. See, 

e.g., D. Rosen, American Indians and State Law 34, 52 

(2007) (Rosen). For example, New York passed laws forbidding its citizens from suing to enforce contracts with Indians who lived on Indian lands, and Virginia regulated the 

sale of land held by Indians. See Laws of the Colonial and 

State Governments, Relating to Indians and Indian Affairs,

From 1633 to 1831, pp. 65–67, 158–159 (1832). Massachusetts authorized its Governor to appoint guardians to oversee Indians and their property, while Ohio and Indiana forbade 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 constitutional boundaries between state and federal authority. 

Rosen 55–56.4 But, when opponents of the Trade and Intercourse Acts’ criminal provisions complained that state 

—————— 4The Constitution expressly denied certain powers to States, including

the power to “enter into any Treaty,” but it is silent on States’ relationship with Indians. See Art. I, §10; see also Letter from T. Jefferson to H. 

Knox (Aug. 10, 1791), in 22 Papers of Thomas Jefferson 27 (C. Cullen ed. 

1986) (noting that States lack “a right to Treat with the Indians”). To be 

sure, in 1832, this Court held that Georgia could not extend its laws over

the territory held by the Cherokee Nation. See Worcester v. Georgia, 6 

Pet. 515. However, that opinion “yielded to closer analysis,” and Indian

reservations have since been treated as part of the State they are within. 

See Oklahoma v. Castro-Huerta, 597 U. S. ___, ___ (2022) (slip op., at 5)

(internal quotation marks omitted). 
 

16 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

laws would take care of criminal offenses, the provisions’ 

proponents did not reply that state laws were disabled on 

this point—they instead noted that citizens might go beyond 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 Indian lands that threatened the peace with the tribes. 

Those statutory lines reflected the early dynamic of federal-Indian relations, with Indian affairs counting as both

a matter of quasi-foreign affairs and of state jurisdiction. 

For example, the early Trade and Intercourse Acts only demanded satisfaction from Indian tribes if an Indian went 

onto a State’s land and committed a crime. E.g., 1 Stat. 

472–473. Under that regime, the Federal Government asserted 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 anyone who committed a crime against a U. S. citizen while 

on Indian lands. See 3 Stat. 383. But Justice McLean, riding circuit, held that statute unconstitutional in 1834—at 

least as it applied to Indian lands located within the territorial limits of a State. See United States v. Bailey, 24 

F. Cas. 937 (No. 14,495) (CC Tenn.). As Justice McLean explained, “[t]hat the federal government is one of limited 

powers, is a principle so obvious as not to admit of controversy.” Id., at 938. Yet the Indian lands at issue were not 

located within a federal territory, and there had not been 

“any cession of jurisdiction by the state of Tennessee.” Id., 

at 939.5 Nor was the criminal statute in any way related to 

—————— 5This decision thus was consistent with one issued 12 years later by

this Court—which upheld the 1834 Trade and Intercourse Act’s criminal 
Cite as: 599 U. S. ____ (2023) 17 

THOMAS, J., dissenting 

“commerce” with the Indian tribes. Ibid. Indeed, Justice 

McLean asked, if Congress could enact this statute, “why 

may not [C]ongress legislate on crimes for the states generally?” Id., at 940. He concluded that Congress “transcended their constitutional powers” in asserting a general 

criminal jurisdiction over tribal lands within the limits of a

State. Ibid. And, given the limited nature of the Federal 

Government’s authority, state laws thus played a significant 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 authority 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 Federal Government’s treaties with Indians, and the Property 

Clause supported the gifts allocated to Indians. The powers

to regulate territories and foreign affairs supported the regulation of passports and penalties for criminal acts on Indian lands. The various war-related powers supported military campaigns against Indian tribes. And the Commerce 

Clause supported the regulation of trade with Indian tribes. 

Moreover, the Founders deliberately chose to enumerate

one power specific to Indian tribes: the power to regulate

“Commerce” with tribes. Because the Constitution contains 

—————— 

provisions against a citizen of the United States, deemed not to be an

Indian, who committed a crime on Indian lands within “a part of the territory of the United States, and not within the limits of any particular 

State.” United States v. Rogers, 4 How. 567, 571–572 (1846). 
 

 

18 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

one Indian-specific power, there is simply no reason to 

think that there is some sort of free-floating, unlimited 

power over all things related to Indians. That is common 

sense: expressio unius est exclusio alterius. And that is particularly true here, because the Founders adopted the “Indian Commerce Clause” while rejecting an arguably 

broader authority over “Indian affairs.” See Adoptive Couple, 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 additional unbounded power over all Indian-related matters. 

Indeed, the history of the plenary power doctrine in Indian

law shows that, from its inception, it has been a power in 

search of a constitutional 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 “principles 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 because those individuals happen to be Indians. I will discuss 

each in turn. 

1 

First, and most obviously, the Treaty Clause confers only 

the power to “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 treaties. See Bond v. United States, 572 U. S. 844, 854–855 
 

Cite as: 599 U. S. ____ (2023) 19 

THOMAS, J., dissenting 

(2014); id., at 893–894 (THOMAS, J., concurring in judgment) (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 Constitution was ratified, ‘commerce’ consisted of selling, buying, 

and bartering, as well as transporting for these purposes.” 

United States v. Lopez, 514 U. S. 549, 585 (1995) (THOMAS, 

J., concurring); see also 1 S. Johnson, A Dictionary of the 

English Language 361 (4th rev. ed. 1773) (reprint 1978) (defining commerce as “Intercourse; exchange of one thing for 

another; interchange of any thing; trade; traffick”). And 

even under our most expansive Commerce Clause precedents, the Clause permits Congress to regulate only “economic 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 Indian tribes than for commerce between States or with foreign nations. See ante, at 11, 16. That makes little textual 

sense. The Commerce Clause confers the power to regulate 

—————— 6Though the Court has only passingly discussed the Commerce 

Clause’s application to commerce with foreign nations, see Baston v. 

United States, 580 U. S. ___, ___ (2017) (THOMAS, J., dissenting from denial of certiorari) (slip op., at 3), it has still described that application in

terms of economic measures like embargoes, see Atlantic Cleaners & Dyers, Inc. v. United States, 286 U. S. 427, 434 (1932); Buttfield v. Stranahan, 192 U. S. 470, 493 (1904). See also R. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 113–116, 128 (2001) 

(collecting Founding-era sources that equate foreign commerce with 

trade). 
 

 

20 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

a single object—“Commerce”—that is then cabined by three 

prepositional phrases: “with foreign Nations, and among 

the several States, and with the Indian Tribes.” Art. I, §8,

cl. 3. Accordingly, one would naturally read the term “Commerce” as having the same meaning with respect to each 

type of “Commerce” the Clause proceeds to identify. See 

Gibbons v. Ogden, 9 Wheat. 1, 74 (1824). I would think that 

is how we would read, for example, the President’s “appoint[ment]” power with respect to “Ambassadors, . . . 

Judges of the supreme Court, and all other Officers of the

United States.” Art. II, §2, cl. 2. There is no textual reason 

why the Commerce Clause would be different. Nor have the 

parties or the numerous amici presented any evidence that 

the Founders thought that the term “Commerce” in the

Commerce Clause meant different things for Indian tribes 

than it did for commerce between States. See S. Prakash, 

Our Three Commerce Clauses and the Presumption of Intrasentence Uniformity, 55 Ark. L. Rev. 1149, 1161–1162 

(2003).

Rather, the evidence points in the opposite direction. See 

Adoptive Couple, 570 U. S., at 659–660 (THOMAS, J., concurring). 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 context 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 “commerce [that] shall be carried on liberally” at “trading

houses” with Indians. Statement to Congress (Jan. 18, 
 

 

Cite as: 599 U. S. ____ (2023) 21 

THOMAS, J., dissenting 

1803), reprinted in id., at 684.7 All of this makes sense, 

given that the Founders both wanted to facilitate trade with 

Indians and rejected a facially broader “Indian affairs” 

power in favor of a narrower power over “Commerce . . . 

with the Indian Tribes.” 

As noted above, that omission was not accidental; the Articles of Confederation had contained that “Indian affairs” 

language, and that language was twice proposed (and rejected) at the Constitutional Convention. See Adoptive 

Couple, 570 U. S., at 662.8 Then, as today, “affairs” was a 

—————— 7See also Statement of T. Jefferson to Congress (Jan. 18, 1803), reprinted in 4 American State Papers 684–685 (Officers may “have conferences with the natives, on the subject of commercial intercourse; get admission among them for our traders, as others are admitted; [and] agree 

on convenient deposites, for an interchange of articles . . . ”); Statement 

of T. Jefferson to Congress (Jan. 28, 1802), reprinted in id., at 653 (“I lay 

before you the accounts of our Indian trading houses . . . explaining the

effects and the situation of that commerce . . . ”); Statement of S. Sibley

et al. to Congress (Dec. 27, 1811), reprinted in id., at 780–782 (in the 

Northwest Territory, formerly “[t]here was trade and commercial intercourse; no agriculture,” but “[a]t present, the little commerce which remains 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 Indians . . . . The market is on the continent of Europe. Since the obstructions to our commerce in that quarter, peltries have not only experienced 

a depression in price . . . ”); Protest by J. Hendricks, J. Jackson, & J.

Simms (June 28, 1796), reprinted in id., at 613–614 (“No citizen is to be

permitted to sell, or furnish by gift, spirituous liquors to the Indians, or

to have any commercial traffic with them”); see also Natelson 214–215.

Even one Founder who appears to have used the term more loosely (in

the context of an opinion on the constitutionality of a national bank) focused only on trade and immigration restrictions. Letter from E. Randolph to G. Washington (Feb. 12, 1791), in 7 Papers of George Washington: Presidential Series 330, 334–335 (D. Twohig ed. 1998) (“The heads

of [the commerce] power with respect to the Indian Tribes are 1. to prohibit the Indians from coming into, or trading within, the United States.

2. to admit them with or without restrictions. 3. to prohibit citizens of 

the United States from trading with them; or 4. to permit with or without 

restrictions”). 8To be sure, as respondents point out, the Constitution removed two 
 

22 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

broader term than “commerce,” with “affairs” more generally referring to things to be done.9 Thus, whatever the precise 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 “commerce,” particularly because the Commerce Clause operates on two objects beyond Indian tribes. The Constitution’s changes in this regard are

thus best understood as narrowing the subject matter of Congress’ power 

while omitting external constraints on that power. 9Compare F. Allen, A Complete English Dictionary (1765) (Allen)

(“something done,” or “the concerns and transactions of a nation”); 1 S.

Johnson, Dictionary of the English Language (6th ed. 1785) (Johnson); 

N. Bailey, A Universal Etymological English Dictionary (26th ed. 1789)

(Bailey), with Allen (“the exchange of commodities, or the buying and

selling [of] merchandize both at home and abroad; intercourse of any 

kind”); Johnson (similar); Bailey (similar). 

Indeed, when the Founders referred to Indian “affairs,” they were often 

referring to diplomatic relations—going far afield of their references to 

Indian “commerce.” E.g., G. Washington to Congress (Mar. 26, 1792), in 

4 American State Papers 225 (referring to “the present crisis of affairs” 

with Indians and “managing the affairs of the Indian tribes” in a general 

sense, including inviting the Five Nations to the seat of the Federal Government and giving presents to the tribes); Report from H. Knox (Nov. 7, 

1792), in id., at 225 (referring to “the subject of Indian Affairs” in the 

context of measures “to procure a peace with the Indians” and troops); 

Natelson 217–218 (detailing preconstitutional references to the Department of Indian Affairs). As noted above, Congress tasked the War Department with duties “relative to Indian affairs.” §1, 1 Stat. 50. And a 

Committee of the Continental Congress once remarked that “the principal objects” of that Congress’ power of “managing affairs with” Indians

had encompassed “making war and peace, purchasing certain tracts of 

their land, fixing the boundaries between them and our people, and preventing the latter [from] settling on lands left in possession of the former.” 33 Journals of the Continental Congress 458 (1936 ed.). Of course, 

it may be that the Constitution’s other enumerated powers authorized

many of those “objects.” But, whatever the precise bounds of an “Indian

affairs” power, it was decidedly broader than a power over Indian “commerce.” 
 

 

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

THOMAS, J., dissenting 

power shows that there is no basis to stretch the Commerce 

Clause beyond its normal limits.10 

3 

Third, the “structural principles” that the majority points

to are only the foreign-affairs powers that the Constitution

provides more generally. See Lara, 541 U. S., at 201 (citing 

Curtiss-Wright, 299 U. S., at 315–322). As detailed above, 

the Constitution plainly confers foreign-affairs powers on

the Federal Government to regulate passports, offenses

against the laws of nations, and citizens’ acts abroad that

threaten the Nation’s peace. S. Prakash & M. Ramsey, The 

Executive Power Over Foreign Affairs, 111 Yale L. J. 231, 

298–332 (2001). Those powers were brought to bear on Indian tribes, with whom the Federal Government maintained 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 (enlisting with foreign states). 

—————— 10The historical record thus provides scant support for the view, advocated by some scholars, that the term “commerce” meant (in the context 

of Indians) all interactions with Indians. E.g., G. Ablavsky, Beyond the

Indian Commerce Clause, 124 Yale L. J. 1012, 1028–1032 (2015) (Ablavsky). The main evidence for that view appears to be (1) a few, fairly isolated references to “commerce” outside the context of trade, usually in

the context of sexual encounters, (2) the fact that one definition of “commerce” was “intercourse” at the Founding, and (3) the fact that trade 

with Indians, at the Founding, had political significance. Ibid. But, as 

noted above, the Founders repeatedly used the term “commerce” when 

discussing trade with Indians. And just because that trade had political

significance surely does not mean that all things of political significance 

were “commerce.” Nor is the definition of “commerce” as “intercourse” 

instructive, because dictionaries from the era also defined “intercourse” 

as “commerce.” E.g., Johnson; Allen. Even some of these same scholars 

concede that the Founders overwhelmingly discussed “trade” with Indians—far more than either “intercourse” or “commerce” with them. See 

Ablavsky 1028, n. 81. And, again, when the Founders did discuss “commerce” specifically, they did so almost entirely in the context of trade. 

See supra, at 20–21, and n. 7. 
 

 

 

24 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

But that authority is a foreign, not domestic, affairs 

power. It comprehends external relations, like matters of 

war, peace, and diplomacy—not internal affairs like adoption 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 internal affairs.” 299 U. S., at 319; see also Youngstown Sheet 

& Tube Co. v. Sawyer, 343 U. S. 579, 635, n. 2 (1952) (Jackson, J., concurring in judgment and opinion of Court) (recognizing this distinction). For external affairs, the Constitution grants the Federal Government a wider authority;

but for internal affairs, the Constitution provides fewer,

more discrete powers. See, e.g., Curtiss-Wright, 299 U. S., 

at 315, 319; Zivotofsky, 576 U. S., at 34–35 (opinion of 

THOMAS, J.). 

Again, all those limits dovetail with the historical practices 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 Government’s actions toward Indians either treated them as 

sovereign entities or regulated citizens on Indian lands who

might threaten to breach treaties with Indians or otherwise 

disrupt the peace.11 For example, early treaties that dealt 

—————— 11The closest possible exception from this era was a provision in the

Trade and Intercourse Act of 1822 (later enacted in the Act of 1834), 

which provided that, “in all trials about the right of property in which 

Indians shall be party on one side and white persons on the other, the 

burden of proof shall rest upon the white person, in every case in which 

the Indian shall make out a presumption of title in himself from the fact 

of previous possession and ownership.” §4, 3 Stat. 683; §22, 4 Stat. 733. 

But even that statute appears to be merely part of the general “design” 

of the Acts: to “protect the rights of Indians to their properties” “[b]ecause 

of recurring trespass upon and illegal occupancy of Indian territory” by 

frontier settlers. See Wilson v. Omaha Tribe, 442 U. S. 653, 664 (1979).

Viewed as such, this unremarkable provision only furthered the foreignaffairs and commerce powers of the Federal Government by preventing 
Cite as: 599 U. S. ____ (2023) 25 

THOMAS, J., dissenting 

with questions of peace and war plainly involved some sort 

of sovereign-to-sovereign relationship. See, e.g., Treaty

with the Cherokees (1791), 7 Stat. 39. And the early Trade 

and Intercourse Acts regulated only the criminal conduct of

U. S. citizens on Indian lands. 

This congruence—between the government’s actions and 

the Constitution’s enumerated powers—likely reflects the 

fact that those powers, collectively, responded to the most

pressing concerns of the day: that Congress could not enforce its treaties with Indians, police the frontier, or regulate 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 regulate the criminal acts of Indians, one Justice of this Court 

found it to be a palpable violation of Congress’ limited powers. 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 dynamic thus extended to the domain of Indian affairs: The 

Federal Government was supreme with respect to its enumerated powers, but States retained all residual police powers within their territorial borders. See id., at 938–939; 

McCulloch, 4 Wheat., at 405. And the Federal Government’s enumerated powers were not unlimited, but confined 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 Nation v. Georgia, 5 Pet. 1 (1831). In that case, the Cherokee 

Nation petitioned this Court for an injunction to prevent 

Georgia from enforcing state laws in Cherokee territory and

from seizing Cherokee lands. Id., at 11. The Tribe asserted 

—————— 

non-Indians from stealing Indian lands, circumventing Congress’ tradelicensing scheme, and disrupting the peace with Indian tribes. 
 

 

 

 

26 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

that Article III both allowed the suit and gave this Court

original jurisdiction because the suit was one by a “foreign 

Stat[e]” against the State of Georgia. §2, cls. 1–2. Writing

for the Court, Chief Justice Marshall admitted that the 

Tribe’s argument was “imposing”: The Tribe was “a state, 

as a distinct political society,” but it was “not a state of the

union.” 5 Pet., at 16. Nonetheless, the Court refused to 

hear the case. As Marshall reasoned, Indian tribes were 

not “foreign state[s] in the sense of the constitution,” as

shown in part by the Commerce Clause’s delineation of 

States, foreign nations, and Indian tribes.12 Ibid. Rather, 

Marshall reasoned that the Indian tribes occupied a unique 

status, which he characterized as that of “domestic dependent nations” whose “relation to the United States resembles 

that of a ward to his guardian.” Id., at 17. 

Other than this opinion, I have been unable to locate any 

evidence that the Founders thought of the Federal Government as having a generalized guardianship-type relationship 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 Constitution 104 (2000). And, if such a general relationship existed, there would seem to be little need for the Federal Government to have ratified specific treaties with tribes calling

for federal protection. E.g., Treaty with the Kaskaskia 

(1803), 7 Stat. 78; Treaty with the Creeks (1790), id., at 35. 

At bottom, Cherokee Nation’s loose dicta cannot support a

broader power over Indian affairs. 

—————— 12 In dissent, Justice Thompson reasoned that the reference to “Indian 

tribes” was meant only to ensure that the Federal Government could regulate commerce with tribes, which were often subunits of Indian nations. 

Accordingly, he concluded that Indian nations were “ ‘foreign states’ ” under Article III. Cherokee Nation, 5 Pet., at 64. 
 

Cite as: 599 U. S. ____ (2023) 27 

THOMAS, J., dissenting

 Nevertheless, Cherokee Nation’s suggestion was picked 

up decades later in United States v. Kagama, 118 U. S. 375 

(1886)—the first case to actually apply a broader, unenumerated 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—reasoning that “it would be a very strained construction of th[e]

clause, that a system of criminal laws for Indians . . . was 

authorized by the grant of power to regulate commerce with

the Indian tribes.” Kagama, 118 U. S., at 378–379. 

But the Court determined that the Major Crimes Act was

constitutional nevertheless. As the Court first noted, the 

Act was “confined to the acts of an Indian of some tribe, of 

a criminal character, committed within the limits of the reservation.” Id., at 383. The Court then cited several cases 

arising from congressional regulations of Indian lands located within federal territories, noting that Congress had 

previously punished offenses committed on such lands. See 

id., at 380 (citing United States v. Rogers, 4 How. 567, 572 

(1846); Murphy v. Ramsey, 114 U. S. 15, 44 (1885); American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828)).

Next, the Court reasoned that the Act “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 reservation.” Ibid. 

That sort of language seems to view Indian lands as akin

to quasi-federal lands or perhaps “external” to the Nation’s 
 

28 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

normal affairs. But nothing the Court cited actually supported such a view. For example, the fact that the Federal 

Government could regulate Indians on federal territories

does not justify such regulations for Indians within a 

State’s limits. Nor does the fact that tribes were “external” 

at the Founding mean that they remained “external” in 

1886.13 Nor does the fact that Congress could regulate citizens who went onto Indian lands, see Rogers, 4 How., at 

572, mean that Congress automatically has the power to 

regulate Indians on those lands.

But the Court then subtly shifted its approach. Drawing 

on Cherokee Nation, the Court next asserted that “Indian 

tribes are the wards of the nation.” Kagama, 118 U. S., at 

383 (emphasis in original). Because of “their very weakness

and helplessness,” it reasoned, “so largely due to the course

of dealing of the Federal Government with them and the 

treaties in which it has been promised, there arises the duty 

of protection, and with it the power.” Id., at 384. This 

power “over th[e] remnants” of the Indian tribes, the Court 

stated, “must exist in [the federal] government, because it 

never has existed anywhere else,” “because it has never 

been denied, and because it alone can enforce its laws on all 

the tribes.” Id., at 384–385. 

These pronouncements, however, were pure ipse dixit. 

The Court pointed to nothing in the text of the Constitution

or its original understanding to support them. Nor did the 

Court give any other real support for those conclusions; instead, it cited three cases, all of which held only that States

were restricted in certain ways from governing Indians on

Indian lands. Id., at 384 (citing Worcester v. Georgia, 6 Pet. 

515 (1832); Fellows v. Blacksmith, 19 How. 366 (1856) (only 

the Federal Government, not private parties, can enforce 

—————— 13As discussed more below, Congress declared in 1871 that “hereafter 

no Indian nation or tribe within the territory of the United States shall

be acknowledged or recognized as an independent nation, tribe, or power

with whom the United States may contract by treaty.” 16 Stat. 566. 
 

Cite as: 599 U. S. ____ (2023) 29 

THOMAS, J., dissenting 

removal treaties); The Kansas Indians, 5 Wall. 737 (1867) 

(States cannot tax Indian lands)). It does not follow from 

those cases that the Federal Government has any additional authority with regard to Indians—much less a 

sweeping, unbounded authority over all matters relating to 

Indians. Cf. Worcester, 6 Pet., at 547 (suggesting that tribes 

had long been left to regulate their internal affairs). At 

each step, Kagama thus lacked any constitutional basis.

Nonetheless, in the years after Kagama, this Court 

started referring to a “plenary power” or “plenary authority” that Congress possessed over Indian tribes, as well as

a trust relationship with the Indians. See, e.g., Stephens v. 

Cherokee Nation, 174 U. S. 445, 478 (1899); Lone Wolf v. 

Hitchcock, 187 U. S. 553, 565 (1903); Winton v. Amos, 255 

U. S. 373, 391 (1921). And, in the decades since, this Court 

has increasingly gestured to such a plenary power, usually 

in the context of regulating a tribal government or tribal 

lands, while conspicuously failing to ground the power in

any constitutional text and cautioning that the power is not 

absolute. See, e.g., ante, at 13 (noting this problem); United 

States v. Alcea Band of Tillamooks, 329 U. S. 40, 54 (1946) 

(opinion of Vinson, C. J.); Santa Clara Pueblo v. Martinez, 

436 U. S. 49, 56–57 (1978).

The majority’s opinion today continues in that vein—only 

confirming its lack of any constitutional basis. Like so 

many cases before it, the majority’s opinion lurches from

one constitutional hook to another, not quite hanging the

idea of a plenary power on any of them, while insisting that 

the plenary power is not absolute. See ante, at 10–13. 

While I empathize with the majority regarding the confusion that Kagama and its progeny have engendered, I cannot reflexively reaffirm a power that remains in search of a 

constitutional basis. And, while the majority points to a few 

actual constitutional provisions, like the Commerce and 

Treaty Clauses, those provisions cannot bear the weight 

that our cases have placed upon them. 
 

30 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

 At bottom, Kagama simply departed from the text and

original meaning of the Constitution, which confers only the 

enumerated powers discussed above. Those powers are not 

boundless and did not operate differently with respect to 

Indian tribes at the Founding; instead, they conferred all 

the authority that the new Federal Government needed at

the time to deal with Indian tribes. When dealing with Indian affairs, as with any other affairs, we should always

evaluate whether a law can be justified by the Constitution’s enumerated powers, rather than pointing to amorphous powers with no textual or historical basis. 

IV 

Properly understood, the Constitution’s enumerated powers cannot support ICWA. Not one of those powers, as originally 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 constitutional 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 commerce with tribes—can be understood through a core conceptual framework that at least arguably corresponds to 

Founding-era practices. To extend those cases to uphold

ICWA thus would require ignoring the context of those

precedents, treating their loose “plenary power” language

as talismanic, and transforming that power into the truly

unbounded, absolute power that they disclaim. The basic 

premise that the powers of the Federal Government are 

limited and defined should counsel against taking that step. 
Cite as: 599 U. S. ____ (2023) 31 

THOMAS, J., dissenting 

A 

ICWA lacks any foothold in the Constitution’s original

meaning. Most obviously, ICWA has no parallel from the

Founding era; it regulates the child custody proceedings of 

U. S. citizens in state courts—not on Indian lands—merely 

because the children involved happen to be Indians. No law 

from that time even came close to asserting a general police 

power over citizens who happened to be Indians—by, for example, regulating the acts of Indians who were also citizens

and who lived within the sole jurisdiction of States (and not 

on Indian lands). If nothing else, the dearth of Foundingera laws even remotely similar to ICWA should give us 

pause.

Nor can ICWA find any support in the Constitution’s enumerated powers as originally understood. I take those powers in turn: First, the Property Clause cannot support 

ICWA because ICWA is not based on the disposition of federal property and is not limited to federal lands; in fact, the 

Federal Government owns very little Indian land. See Statistical Record of Native North Americans 1054 (M. Reddy

ed. 1993); S. Prakash, Against Tribal Fungibility, 89 Cornell 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 federally recognized tribes to which ICWA applies. 25 U. S. C. 

§§1903(3), (8); 86 Fed. Reg. 7554 (2021). Nor could they;

Congress declared an end to treaty-making with Indian 

tribes in 1871, and it appears that well over half of the

tribes lack any treaty with the Federal Government. See 

16 Stat. 566; Brief for Tribal Defendants 37–38; see also 

generally Vols. 1–2 C. Kappler, Indian Affairs: Laws and 

Treaties (2d ed. 1902, 1904). And, in part because one Congress can never bind a later Congress, the Federal Government retains the power to abrogate treaties and has done

so for at least some Indian treaties. E.g., Lone Wolf, 187 
 

 

32 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

U. S., at 566; accord, La Abra Silver Mining Co. v. United 

States, 175 U. S. 423, 460 (1899); 1 W. Blackstone, Commentaries on the Laws of England 90 (1765) (Blackstone). 

Whatever number of treaties remain in force, they cannot 

justify ICWA. 

Third, the Commerce Clause cannot support ICWA. As 

originally understood, the Clause confers a power only over 

buying and selling, not family law and child custody disputes. Even under our more modern, expansive precedents, 

the Clause is still limited to only “economic activity” and 

cannot support the regulation of core domestic matters like

family or criminal laws. See Lopez, 514 U. S., at 560; 

United States v. Morrison, 529 U. S. 598, 610–611 (2000); 

National Federation of Independent Business v. Sebelius, 

567 U. S. 519, 552 (2012) (opinion of ROBERTS, C. J.); id., at 

657 (Scalia, J., dissenting).14 And even Kagama itself rejected the Commerce Clause as a basis for any sort of expansive power over Indian affairs. 118 U. S., at 378–379. 

Therefore, nothing about that Clause supports a law, like 

ICWA, governing child custody disputes in state courts. 

Fourth, the Federal Government’s foreign-affairs powers

cannot support ICWA. For today’s purposes, I will assume 

that some tribes still enjoy the same sort of pre-existing sovereignty and autonomy as tribes at the Founding, thereby 

establishing the sort of quasi-foreign, government-to-government relationship that appears to have defined those 

powers at the Founding. Even so, the foreign-affairs pow-

—————— 14Respondents insist that Lopez and Morrison did not hold that family 

law is insulated from federal law. But that misses the point. Lopez and 

Morrison held that the Commerce Clause cannot regulate a matter like 

family law, and they did not consider whether some other constitutional

power might do so. Cf. Hillman v. Maretta, 569 U. S. 483, 490–491, 497 

(2013) (finding pre-emption of a state statute regarding beneficiaries and

a change in marital status under a federal statute regulating the life insurance of federal employees). Here, no such independent power is to be 

found. 
 

Cite as: 599 U. S. ____ (2023) 33 

THOMAS, J., dissenting 

ers can operate only externally, in the context of lands under the purview of another sovereign (like Indian tribal 

lands) or in the context of a government-to-government relationship (such as matters of diplomacy or peace). See 

Curtiss-Wright, 299 U. S., at 315, 319. But regulating child

custody proceedings of citizens within a State is the paradigmatic domestic situation; the Federal Government 

surely could not apply its foreign-affairs powers to the domestic family-law or criminal matters of any other citizens

merely because they happened to have citizenship or ancestral connections with another nation.15 Apart from the single provision that allows tribal governments jurisdiction

over proceedings for Indians on tribal lands, see §1911(a),

ICWA is completely untethered from any external aspect of 

our Nation that could somehow implicate these powers.

That should be the end of the analysis. Again, as the majority notes, our Federal Government has only the powers 

that the Constitution enumerates. See ante, at 10–11; 

McCulloch, 4 Wheat., at 405. Not one of those enumerated 

powers justifies ICWA. Therefore, it has no basis whatsoever in our constitutional system. 

B 

Even taking our “plenary power” precedents as given (as 

—————— 15 Indeed, ICWA stands in sharp contrast to statutes regarding international adoptions, in accordance with the Hague Convention. Those 

statutes generally regulate only adoptions by a foreign parent of a child 

residing in the United States, or vice versa. E.g., 114 Stat. 825; 42 

U. S. C. §§14931, 14932. In other words, there is a cross-border component; the statutes do not regulate adoption proceedings merely because 

the child’s parents are, for example, dual Mexican-American citizens or 

dual Irish-American citizens. For ICWA to be comparable to those statutes, it could regulate only the adoption of children who reside on an

Indian reservation by parents who live within the sole jurisdiction of a

State, or vice versa. While I take no position on whether such a more 

limited law would be constitutional, that stark difference only underscores ICWA’s lack of any external focus. 
 

 

34 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

the majority seems to do for purposes of these cases), nothing in those precedents supports ICWA. To be sure, this 

Court has repeatedly used loose language concerning a “plenary 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 Indians or deal with Indian tribes and their lands. Despite citing a veritable avalanche of precedents, respondents have

failed to identify a single case where this Court upheld a 

federal statute comparable to ICWA.

As noted above, Kagama was careful to note that the Major Crimes Act at issue was “confined to the acts of an Indian 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 Territories. 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 territorial powers that authorized much of the early Trade and Intercourse Acts (and

which Congress may have relied upon when passing the 

1817 Act). See Cohen §5.01[4], at 390, and nn. 47, 48 (linking Kagama with Curtiss-Wright, 299 U. S., at 318); United 

States v. Wheeler, 435 U. S. 313, 323 (1978) (describing Indian tribes as possessing a pre-existing sovereignty, apart 

from the United States). And, viewed in that light, it would 
 

Cite as: 599 U. S. ____ (2023) 35 

THOMAS, J., dissenting 

make sense to limit Kagama to that conceptual root, treating 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 government’s sovereign immunity); Cherokee Nation v. Hitchcock, 187 U. S. 294, 299, 308 (1902) (federal approval of 

mining leases on tribal lands); Stephens, 174 U. S., at 476– 

477 (federal court in Indian territory). Many, for example, 

dealt with federal laws that purported to diminish a tribe’s 

territory or jurisdiction. South Dakota v. Yankton Sioux 

Tribe, 522 U. S. 329 (1998); Negonsott v. Samuels, 507 U. S. 

99 (1993); Washington v. Confederated Bands and Tribes of 

Yakima Nation, 439 U. S. 463 (1979); United States v. 

Hellard, 322 U. S. 363 (1944). Others dealt with state taxes 

on Indian lands. See, e.g., Cotton Petroleum Corp. v. New 

Mexico, 490 U. S. 163 (1989); Bryan v. Itasca County, 426 

U. S. 373 (1976); Board of County Comm’rs v. Seber, 318 

U. S. 705 (1943); Choate v. Trapp, 224 U. S. 665 (1912).

Others still have permitted the Federal Government to diminish a tribe’s self-government. See Santa Clara Pueblo, 

436 U. S., at 56–57. And yet others, in Kagama’s direct lineage, dealt with crimes on Indian lands. See, e.g., Lara, 541 

U. S., at 200; see also, e.g., United States v. Cooley, 593 U. S. 

___, ___ (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 punishments by tribal governments and the Federal Government 

because of the tribe’s separate sovereignty, underscoring 

Kagama’s conceptual root. See, e.g., Cooley, 593 U. S., at 

___ (slip op., at 1); Lara, 541 U. S., at 200. And, along the

way, at least some of these cases clarified, like Kagama, 
 

 

 

36 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

that they dealt not with “Indians who have left or never inhabited reservations set aside for their exclusive use or who 

do not possess the usual accoutrements of tribal self-government,” 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 Judicial 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 “contracts for the sale of timber on land of the Klamath Indian 

Reservation”). In case after case, the law at issue purported

to reach only tribal governments or tribal lands, no more. 

To be sure, applying Kagama’s conceptual framework ultimately reveals a catch-22 of sorts: If Congress regulates

tribal governments as a matter of external affairs, then 

such regulation seems to undercut the very tribal sovereignty that serves as the basis for that congressional power.

See Lara, 541 U. S., at 214–215 (THOMAS, J., concurring in 

judgment). But that appears to be a hallmark of Kagama

and its progeny, not a peculiarity. As Chief Justice Marshall once stated, Indians are neither wholly foreign nor

wholly domestic, but are instead “domestic dependent nations,” 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 jurisprudence. And, in any event, recognizing the proper conceptual 

root for these precedents makes the most sense of them as

a textual and original matter—and it is surely preferable to 

continuing along this meandering and ill-defined path. 

Yet, even confining Kagama’s conceptual error to its 

roots, the majority seems concerned that other precedents 

suggest that the Commerce Clause has broader application 

with respect to Indian affairs. But many of this Court’s

precedents, even when referring to some broader power, 
 

 

Cite as: 599 U. S. ____ (2023) 37 

THOMAS, J., dissenting 

dealt with laws that governed trade with Indians, no more. 

See, e.g., United States v. Holliday, 3 Wall. 407 (1866) (selling liquor to Indians); Perrin v. United States, 232 U. S. 478 

(1914) (same); United States v. Sandoval, 231 U. S. 28 

(1913) (same); Dick v. United States, 208 U. S. 340 (1908) 

(selling 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 beyond 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 sovereign 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 precedents reflect only the longstanding—and enumerated—authority to regulate commerce with Indian tribes. 

Other precedents cited by the majority that do not fit into 

Kagama’s conceptual framework are easily explicable as

supported by other, specific powers of Congress. For example, Lone Wolf held that Congress can enact laws that violate 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 Mining 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 pursuant to a treaty. It therefore makes sense as a matter of 

both the Property and Treaty Clauses. And yet another

treaty-based case involved a promise by the United States

to establish a discrete trust fund with $500,000 for a Tribe, 

with annual interest to be paid to the Tribe. See Seminole 

Nation v. United States, 316 U. S. 286, 293–294 (1942). 
 

 

 

 

38 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

Though that case spoke of historic trust obligations, it arose

from an explicit promise to create a trust with $500,000.16 

There is little reason to view such cases as expanding Congress’ powers. 

Accordingly, the context of all these cases points to lines

that are at least plausibly rooted in Founding-era practices 

and the text of the Constitution. See Brown v. Davenport, 

596 U. S. ___, ___–___ (2022) (slip op., at 20–21) (judicial 

opinions must be taken in context, not read like statutes).

Congress can regulate commerce with Indian tribes; it may

be able to regulate tribal governments and lands in 

Kagama’s vein; and it can make treaties, dispose of federal 

funds, and establish discrete trusts.17 

ICWA does not remotely resemble those practices. It does 

not regulate commerce, tribal governments, or tribal lands. 

Nor is it based on treaties, federal funds, or any discrete 

trust. By regulating family-law matters of citizens living 

—————— 16Still other cases fall somewhere in the middle of these powers, but 

they are still easily explicable by normal constitutional rules. For example, United States v. Creek Nation, 295 U. S. 103 (1935), held that the 

United States had to provide “just compensation” for the taking of Indian

lands—which seems equally a measure of tribal lands as it does standard

Takings Clause jurisprudence. Id., at 110. And Sunderland v. United 

States, 266 U. S. 226 (1924), involved conditions imposed on the purchase

of land by an Indian with funds held in trust by the Federal Government;

the funds had been acquired from the previous sale of Indian lands that 

were themselves likely held in trust. Id., at 231–232; see Cohen 

§16.04[3], at 1090–1091. Sunderland thus seems equally a measure of 

Indian lands and conditions on spending. 17Nor 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 Hodel v. Virginia Surface Mining & Reclamation Assn., Inc., 452 U. S. 264, 

276 (1981); Maryland v. Wirtz, 392 U. S. 183, 198 (1968); United States 

v. Darby, 312 U. S. 100, 115 (1941). Yet we then clarified that the Commerce Clause’s application to interstate commerce, rather than being unbounded, was limited only to economic activities. See Lopez, 514 U. S., 

at 560. Again, it is critical to read the Court’s precedents in their context. 
Cite as: 599 U. S. ____ (2023) 39 

THOMAS, J., dissenting 

within the sole jurisdiction of States merely because they

happen to be Indians, ICWA stands clearly outside the

framework of our Indian-law precedents. To uphold ICWA

therefore would drastically expand the context in which we 

have previously upheld Indian-related laws in Kagama’s 

framework. 

But, even if that is so, the majority appears to ask “why 

Congress’s power is limited to these scenarios.” Ante, at 17, 

n. 4. The majority nearly answers itself: because our Constitution is one of enumerated powers, and limiting Congress’ authority to those “buckets” would bring our jurisprudence 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 petitioners’ limited engagement with the Court’s precedents, I 

would 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 original meaning in the area of Indian law. 

* * * 

The Constitution confers enumerated powers on the Federal Government. Not one of them supports ICWA. Nor 

does precedent. To the contrary, this Court has never upheld a federal statute that regulates the noncommercial activities of a U. S. citizen residing on lands under the sole 

jurisdiction of States merely because he happens to be an 

Indian. But that is exactly what ICWA does: It regulates

child custody proceedings, brought in state courts, for those 

who need never have set foot on Indian lands. It is not 

about tribal lands or tribal governments, commerce, treaties, or federal property. It therefore fails equally under the 

Court’s precedents as it fails under the plain text and original meaning of the Constitution. 

If there is one saving grace to today’s decision, it is that 
 

 

40 HAALAND v. BRACKEEN 

THOMAS, J., dissenting 

the majority holds only that Texas has failed to demonstrate 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 Government’s enumerated powers, I would hold that Congress 

lacked any authority to enact ICWA. 

I respectfully dissent. 
_________________ 

_________________ 

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

ALITO, J., dissenting 

SUPREME COURT OF THE UNITED STATES 

Nos. 21–376, 21–377, 21–378 and 21–380 

DEB HAALAND, SECRETARY OF THE INTERIOR, 

ET AL., PETITIONERS 

21–376 v. 

CHAD EVERET BRACKEEN, ET AL. 

CHEROKEE NATION, ET AL., PETITIONERS 

21–377 v. 

CHAD EVERET BRACKEEN, ET AL. 

TEXAS, PETITIONER 

21–378 v. 

DEB HAALAND, SECRETARY OF THE 

INTERIOR, ET AL. 

CHAD EVERET BRACKEEN, ET AL., PETITIONERS 

21–380 v. 

DEB HAALAND, SECRETARY OF THE 

INTERIOR, ET AL. 

ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF 

APPEALS FOR THE FIFTH CIRCUIT 

[June 15, 2023] 

JUSTICE ALITO, dissenting. 

The first line in the Court’s opinion identifies what is 

most important about these cases: they are “about children

who are among the most vulnerable.” Ante, at 1. But after 

that opening nod, the Court loses sight of this overriding

concern and decides one question after another in a way 

that disserves the rights and interests of these children and 
 

2 HAALAND v. BRACKEEN 

ALITO, J., dissenting 

their parents, as well as our Constitution’s division of federal 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 involved. See, e.g., 3 T. Zeller, Family Law and Practice 

§§32.06, 32.08 (2022); 6 id., §64.06. But in many cases, provisions of the Indian Child Welfare Act (ICWA) compel actions that conflict with this fundamental state policy, subordinating what family-court judges—and often biological

parents—determine to be in the best interest of a child to 

what Congress believed is in the best interest of a tribe. 

The cases involved in this litigation illustrate the distressing consequences. To its credit, the Court acknowledges what happened to these children, but its decision does 

nothing to prevent the repetition of similar events. Take 

A. L. M. His adoption by a loving non-Indian couple, with

whom he had lived for over a year and had developed a 

strong emotional bond, was initially blocked even though it 

was supported by both of his biological parents, his grandmother, and the testimony of both his court-appointed 

guardian and a psychological expert. Because a Tribe objected, 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 continuing relationship with her biological family. Even though

both biological parents supported the couple’s adoption of

Baby O., a Tribe objected and sought to send Baby O. to live 

in foster care on a reservation in another State. Only after 
 

Cite as: 599 U. S. ____ (2023) 3 

ALITO, J., dissenting 

the couple joined this lawsuit did the Tribe agree to a settlement that would permit the couple to finalize the adoption. 

After nearly two years moving between foster-care placements, Child P., whose maternal grandmother is a member 

of an Indian Tribe, was placed with a non-Indian couple 

who provided her a stable home. After the placement, the

Tribe, which had told the state court years earlier that

Child P. was not eligible for tribal membership, reversed its

position without explanation and enrolled her as a member. 

The Tribe then objected to the couple’s efforts to adopt Child

P., even though her court-appointed guardian believed that 

the adoption was in Child P.’s best interest. “To comply

with the ICWA,” the state court removed Child P. from the 

couple’s custody and placed her with her maternal grandmother, “who had lost her foster license due to a criminal 

conviction.” Ante, at 8 (majority opinion).

Does the Constitution give Congress the authority to

bring about such results? I would hold that it does not. 

Whatever authority Congress possesses in the area of Indian affairs, it does not have the power to sacrifice the best

interests of vulnerable children to promote the interests of 

tribes in maintaining membership. Nor does Congress have

the power to force state judges to disserve the best interests

of children or the power to delegate to tribes the authority

to force those judges to abide by the tribes’ priorities regarding adoption and foster-care placement. 

I 

The Court makes a valiant effort to bring coherence to

what has been said in past cases about Congress’s power in

this area, but its attempt falls short. At the end of a lengthy

discussion, the majority distills only this nugget: Congress’s 

power over Indian affairs is “plenary” but not “absolute.” 

Ante, at 13–14. The majority in today’s cases did not coin 

this formulation; it merely repeats what earlier cases have 
 

4 HAALAND v. BRACKEEN 

ALITO, J., dissenting 

said. See, e.g., Delaware Tribal Business Comm. v. Weeks, 

430 U. S. 73, 84 (1977) (quoting United States v. Alcea Band 

of Tillamooks, 329 U. S. 40, 54 (1946) (plurality opinion)). 

But the formulation’s pedigree cannot make up for its vacuity. The term “plenary” is defined in one dictionary after 

another as “absolute.” See, e.g., New Oxford American Dictionary 1343 (3d ed. 2010); Webster’s Third New International Dictionary 1739 (2002); The Random House Dictionary of the English Language 1486 (2d ed. 1987). If we 

accept these definitions, what the Court says is that absolute ≠ absolute and plenary ≠ plenary, violating one of the 

most basic laws of logic. Surely we can do better than that.

We need not map the outer bounds of Congress’s Indian

affairs authority to hold that the challenged provisions of

ICWA lie outside it. We need only acknowledge that even 

so-called plenary powers cannot override foundational constitutional constraints. By attempting to control state judicial proceedings in a field long-recognized to be the virtually 

exclusive province of the States, ICWA violates the fundamental structure of our constitutional order. 

In reaching this conclusion, I do not question the proposition that Congress has broad power to regulate Indian affairs. We have “consistently described” Congress’s “powers 

to legislate in respect to Indian tribes” as “‘plenary and exclusive.’” 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. Martinez, 436 U. S. 49, 56–58 (1978) (modifying tribal governments’ powers of self-government); Lone Wolf v. Hitchcock, 

187 U. S. 553, 565–566 (1903) (transferring tribal land). 

Nor do I dispute the notion that Congress has undertaken

responsibilities that have been roughly analogized to those 
 

Cite as: 599 U. S. ____ (2023) 5 

ALITO, J., dissenting 

of a trustee. In exercising its constitutionally-granted powers, 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 people. United States v. Jicarilla Apache Nation, 564 U. S. 

162, 176 (2011).1 

Nevertheless, we have repeatedly cautioned that Congress’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 constitutional 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 Eleventh Amendment.” Id., at 72. We rejected the Tribe’s argument that Congress’s Indian affairs power could exceed 

other constitutional restrictions when “necessary” to “‘protect the tribes’” from state interference. Id., at 60. Foundational constitutional principles like state sovereign immunity, we observed, are “not so ephemeral as to dissipate

when the subject of the suit is [in] an area, like the regulation of Indian commerce, that is under the exclusive control 

—————— 1 The state of affairs on many Indian reservations, however, does not 

speak well of the way in which these duties have been discharged by this 

putative trustee. See, e.g., U. S. Commission on Civil Rights, Broken 

Promises: Continuing Federal Funding Shortfall for Native Americans

102–107, 135–138, 156–157, 165–166 (Dec. 2018) (discussing poor performance of students in tribal schools, substandard housing and physical

infrastructure on reservations, and high rates of unemployment among

Indians living on reservations). 
 

 

6 HAALAND v. BRACKEEN 

ALITO, J., dissenting 

of the Federal Government.” Id., at 72. Even when we have 

sustained legislation, we have cautioned against congressional overreach. See Lara, 541 U. S., at 203–205. We have 

suggested that a law may exceed Congress’s power to regulate Indian affairs if it has “an unusual legislative objective,” brings about “radical changes in tribal status,” or “interfere[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 enumerated powers. See ante, at 33–38 (THOMAS, J., dissenting). 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 exceed the limits imposed by the “system of dual sovereignty

between the States and the Federal Government” established 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 indefinite.” The Federalist No. 45, p. 292 (C. Rossiter ed. 1961) 

(J. Madison). The powers retained by the States constitute 

“‘a residuary and inviolable sovereignty,’” secure against

federal intrusion. Printz v. United States, 521 U. S. 898, 

919 (1997) (quoting The Federalist No. 39, at 245 (J. Madison)). This structural principle, reinforced in the Tenth

Amendment, “confirms that the power of the Federal Government 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 powers reserved to the States inform the scope of Congress’s 

power. Murphy v. National Collegiate Athletic Assn., 584 

U. S. ___, ___ (2018) (slip op., at 15). This includes in the 
Cite as: 599 U. S. ____ (2023) 7 

ALITO, J., dissenting 

area of Indian affairs. Dick v. United States, 208 U. S. 340, 

353 (1908) (Congress’s primacy over Indian tribes and 

States’ “full and complete jurisdiction over all persons and 

things within [their] limits” are “fundamental principles . . . 

of equal dignity, and neither must be so enforced as to nullify or substantially impair the other”).

While we have never comprehensively enumerated the

States’ reserved powers, we have long recognized that governance of family relations—including marriage relationships 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 primarily with the States,” ante, at 14 (majority opinion), but 

that the field of domestic relations “has long been regarded 

as a virtually exclusive province of the States,” Sosna v. 

Iowa, 419 U. S. 393, 404 (1975) (emphasis added). “The 

whole subject of the domestic relations of husband and wife, 

parent and child, belongs to the laws of the States, and not

to the laws of the United States.” In re Burrus, 136 U. S. 

586, 593–594 (1890). “Cases decided by this Court over a 

period of more than a century bear witness to this historical

fact.” Sosna, 419 U. S., at 404. See, e.g., United States v. 

Windsor, 570 U. S. 744, 766 (2013); McCarty v. McCarty, 

453 U. S. 210, 220 (1981); Simms v. Simms, 175 U. S. 162, 

167 (1899); Pennoyer v. Neff, 95 U. S. 714, 722, 734–735 

(1878).

This does not mean that federal law may never touch on

family matters. As the majority observes, ante, at 14, we 

have held that federal legislation that regulates certain 

“economic aspects of domestic relations” can preempt conflicting 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., Hillman v. Maretta, 569 U. S. 483, 485–486 (2013) (allocating 

federal death benefits); McCarty, 453 U. S., at 211, 235–236 

(allocating military retirement pay). But we have never 
 

 

8 HAALAND v. BRACKEEN 

ALITO, J., dissenting 

held that Congress under any of its enumerated powers 

may regulate the very nature of those relations or dictate

their creation, dissolution, or modification. Nor could we 

and remain faithful to our founding. “No one denies that 

the States, at the time of the adoption of the Constitution, 

possessed full power over” ordinary family relations; and 

“the Constitution delegated no authority to the Government

of the United States” in this area. Haddock v. Haddock, 

201 U. S. 562, 575 (1906). It is a “most important aspect of 

our federalism” that “the domestic relations of husband and 

wife”—and parent and child—are “matters reserved to the 

States and do not belong to the United States.” Williams v. 

North Carolina, 325 U. S. 226, 233 (1945) (internal quotation marks and citation omitted).

As part of that reserved power, state courts have resolved

child custody matters arising among state citizens since the 

earliest days of the Nation. See, e.g., Nickols v. Giles, 2 Root 

461, 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 welfare); 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, enforceable through state courts, “to provide for the welfare of

dependent children,” starting with Massachusetts in 1851.

S. Presser, The Historical Background of the American Law 

of Adoption, 11 J. Fam. L. 443, 453, 465 (1971) (Presser);

1851 Mass. Acts ch. 324. Over the next 25 years, 23 other

States followed suit. Presser 465–466, and nn. 111, 112. As 
 

 

Cite as: 599 U. S. ____ (2023) 9 

ALITO, J., dissenting 

the cases before us attest, this historic tradition of state 

oversight of child custody and welfare through state judicial

proceedings continues to the present day. 

The ICWA provisions challenged here do not simply run

up against this traditional state authority, they run roughshod 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 carefully-considered judicial procedures and standards it has

established to provide for a child’s welfare and instead apply a scheme devised by Congress that focuses not solely on 

the best interest of the child, but also on “the stability and

security of Indian tribes.” §1902. That scheme requires

States to invite tribal authorities with no existing relationship to a child to intervene in judicial custody proceedings,

§§1911(c), 1912(a), 1914. It requires States to replace their

reasoned standards for termination of parental rights and 

placement in foster care with standards that favor the interests of an Indian custodian over those of the child. 

§§1912(e), (f ). It forces state courts to give Indian couples 

(even those of different tribes) priority in adoption and foster-care placements, even over a non-Indian couple who

would better serve a child’s emotional and other needs. 

§§1915(a), (b). And it requires state judges to subordinate 

the State’s typical custodial considerations to a tribe’s alternative preference. §1915(c).

It is worth underscoring that ICWA’s directives apply

even when the child is not a member of a tribe and has 

never been involved in tribal life, and even when a child’s 

biological parents object. As seen in the cases before us, the 

sad consequence is that ICWA’s provisions may delay or 

prevent a child’s adoption by a family ready to provide her 

a permanent home.

ICWA’s mandates do not simply touch on family matters. 
 

10 HAALAND v. BRACKEEN 

ALITO, J., dissenting 

They override States’ authority to determine—and implement 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 countenance this result. The guarantee of dual sovereignty embodied in the constitutional structure “is not so ephemeral 

as 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 policies, a prerogative that States have exercised for centuries. 

Dick, 208 U. S., at 353. Congress’s Indian affairs power,

broad as it is, does not extend that far.2 

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 legislative objective.” Id., at 203. ICWA’s attempt to control 

local judicial proceedings in a core field of state concern departs significantly from other Indian affairs legislation that 

we have sanctioned—laws that typically regulated actual

commerce, related to tribal lands and governance, or fulfilled treaty obligations. See ante, at 33–38 (THOMAS, J., 

dissenting). Second, the law brings about “radical changes

in tribal status,” effectively granting tribes veto power over 

—————— 2Because ICWA’s provisions comprise a comprehensive child custody 

scheme relevant only to state court proceedings, I generally do not believe they can be severed without engaging in “quintessentially legislative work.” Ayotte v. Planned Parenthood of Northern New Eng., 546 

U. S. 320, 329 (2006). An exception is §1911(a), which gives Indian tribes 

exclusive jurisdiction over child custody proceedings involving Indian

children living within a reservation; that section is not implicated by my 

analysis. See also Fisher v. District Court of Sixteenth Judicial Dist. of 

Mont., 424 U. S. 382, 383, 388–389 (1976) (per curiam) (recognizing exclusive tribal court jurisdiction over adoption proceedings, where all parties are members of a tribe living on a reservation). 
Cite as: 599 U. S. ____ (2023) 11 

ALITO, J., dissenting 

state judgments regarding the welfare of resident Indian 

children. Lara, 541 U. S., at 205. And third, the law “interfere[s] with the power [and] authority of [every] State” 

in the conduct of state judicial proceedings and determination of child custody arrangements. Ibid. That is, in fact, 

its express design. See, e.g., §§1911(c), 1912, 1915. These 

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 children 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-exercised state authority over child custody proceedings to advance those interests at the expense of vulnerable children

and their families. 

Because I would hold that Congress lacked authority to

enact the challenged ICWA provisions, I respectfully dissent.