Supreme Court of the United States

“ 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. They override States’ authority to determine—and implement through their courts—the child custody and welfare policies they deem most appropriate for their citizens. ”

“ 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. ”

“ 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. ”

“ 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.” ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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.” ”

“ 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. ”

“ 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. ”

“ 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 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 ... ”

“ 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 these efforts have proved unsuccessful.” ”

“ 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 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. ”

“ 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. ”

“ 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. ”

“ 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. ”

“ 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, Tribes also negotiated “more than 150” treaties with the United States that included “education-related provisions.” ”

“ 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. ”

“ 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. ”

“ 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 ”

“ The guarantee of dual sovereignty embodied in the constitutional structure “is not so ephemeral as to dissipate” simply because Congress invoked a so-called plenary power. Seminole Tribe of Fla., 517 U. S., at 72. The challenged ICWA provisions effectively “nullify” a State’s authority to conduct state child custody proceedings in accordance with its own preferred family relations 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. ”