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,
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															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 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.” 92Stat. 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
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 terminate 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 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).

															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 emergency 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 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 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
non-delegation 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- 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
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 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. , 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 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 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 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 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.

															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 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 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 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 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 §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 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 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 ]

															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, 1Stat. 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, 1Stat. 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, 1802, §2, 2Stat. 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, 1Stat. 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, 1Stat. 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, 1Stat. 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,
§3, 1Stat. 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, 1Stat.
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 adjudication-adjacent tasks too.

															We now confirm what we suggested in Printz : Congress may impose ancillary recordkeeping
requirements related to state-court proceedings without violating
the Tenth Amendment. Such requirements do not offload the Federal
Government’s responsibilities onto the States, nor do they 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 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 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.

															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 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 “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. Notes 1 Petitioners raised
several other challenges that are not before this Court, including
that ICWA’s implementing regulations are arbitrary and capricious
in violation of the Administrative Procedure Act. 2 Hernandez and the
families, the State of Texas, the federal parties, and the Tribes
all filed cross-petitions for certiorari. After the cases were
consolidated, Hernandez, the families, and Texas proceeded as
petitioners before this Court, and the federal parties and the
Tribes proceeded as respondents. 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 so-called plenary powers cannot override
foundational constitutional constraints”). 4 Texas floated a theory
for the first time at oral argument. It saidthat, 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. 5 All 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. 6 To bolster their claim
that the “active efforts” requirement is aimed at the States,
petitioners point to a statement from the Department of the
Interior asserting that the reference to “active efforts” reflects
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. 7 Though §1915(e) does not
specify that the records be retained by state courts, as opposed to
state agencies, context makes clear that a “record of each such
placement” refers to the state court’s placement 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 allowingthe State to make that choice does
not transform the documents into something other than a court
record. 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, 1Stat. 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, 2Stat. 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. 9 Respondents 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. 10 Of
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.). 11 Texas
claims that it can assert third-party standing on behalf of
non-Indian families. This argument is a thinly veiled attempt to
circumvent the limits on parens patriae standing. The case
on which Texas relies, Georgia v. McCollum , 505 U.S.
42 (1992), allowed a State to representjurors 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. 12 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. Brief for Individual Petitioners 41, n. 6; Brief
for Federal Parties 79, n. 14. 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 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,
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 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, 27Stat. 628, 635;
see also, e.g. , Act of Feb. 14, 1920, 41Stat. 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 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). 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 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
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 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” 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.
92Stat. 3096. The statute’s findings show that Congress was acutely
aware of the scope of the crisis. “[A]n alarmingly high percentage
of Indian families,” Congress observed, were being “broken up by
the removal, often unwarranted, of their children from them by
nontribal [state] public and private agencies.” 25
U. S. C. §1901(4). And “an alarmingly high percentage of
such children” were “placed in non- Indian foster and adoptive
homes and institutions.” Ibid. Removal at that scale
threatened the “continued existence and integrity of Indian
[T]ribes.” §1901(3).

															The statute Congress settled upon contains
various 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.

															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 pre- adoptive placements. §1915(b). But note that
“by default.” ICWA gives Tribes a voice. It allows them to
establish a “different order of preference by resolution,” provided
it is “the least restrictive setting appropriate to the particular
needs of the child.” §1915(c).

															Recognizing that coercion remains possible even
with these protections, ICWA also allows for postplacement 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 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 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 [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. Castro-Huerta , 597 U. S. ___, ___ (2022) (Gorsuch, J.,
dissenting) (slip op., at 2). The newly independent Nation wasted
no time entering into treaties of its own—in no small part to
secure its continued existence against external threats. See, e.g. , Articles of Agreement and Confederation, Sept. 17,
1778, 7Stat. 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 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 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,
1Stat. 137; Act of Mar. 1, 1793, ch. 19, 1Stat. 329; Act of May 19,
1796, ch. 30, 1Stat. 469; Act of Mar. 30, 1802, ch. 13, 2Stat. 139;
Act of June 30, 1834, 4Stat. 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 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, 16Stat.
566, codified at 25 U. S. C. §71; but see United
States v. Lara , 541 U.S.
193 , 218 (2004) (Thomas, J., concurring in judgment)
(describing the Act as “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 1064–1098. 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 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.

															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’
articulation 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 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 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 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 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
international-law 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 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
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 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, 1Stat. 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 “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 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
non-Indians’ dealings with Indians could be used to “dives[t
Tribes] of the right of self-government.” Worcester , 6 Pet.,
at 554. Otherwise, a power to manage relations with a party would
become an instrument for “annihilating the 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 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,
23Stat. 385. Among other things, that law extended federal-court
jurisdiction over various crimes committed by Indians against
Indians on tribal lands. Ibid. In United States v. Kagama , 118 U.S.
375 (1886), this Court upheld the 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
so-called “plenary power” cases reached results explainable under a
proper reading of the Constitution’s enumerated powers. Maybe the
turn of phrase even made some sense: Congress’s power with regard
to the Tribes is “plenary” in that it leaves no room for State
involvement. See Ablavsky 2015, at 1014 (“[T]he Court use[d] the
term [plenary] 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, 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
plenary-power idea “constituted an unprincipled assertion of raw
federal authority.” Ibid. It rested on nothing more than
judicial claims about putative constitutional purposes that aligned
with contemporary policy preferences.

															Nor was anachronistic language the only
consequence of this Court’s abandonment of the Constitution’s
original meaning. During what has been called the “high plenary
power era of U. S. Indian law,” this Court sometimes took the
word “plenary” pretty literally. S. Cleveland, Powers Inherent in
Sovereignty: Indians, Aliens, Territories, and the Nineteenth
Century Origins of Plenary Power Over Foreign Affairs, 81 Texas
L. Rev. 1, 62 (2002) (Cleveland). It assumed that Congress
possesses a “virtually unlimited authority to regulate [T]ribes” in
every respect. M. Steele, Plenary Power, Political Questions, and
Sovereignty in 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 self-government
which the [T]ribes otherwise possess.” Santa Clara Pueblo v. Martinez , 436 U.S.
49 , 56–57 (1978). It is an “inconceivable” suggestion for
anyone who takes the Constitution’s original meaning seriously. Worcester , 6 Pet., at 554.

															The Court’s atextual and ahistorical
plenary-power move did not just serve to expand the scope of
federal power over the Tribes. It also had predictable downstream
effects on the relationship between States and Tribes. As Congress
assumed new power to intrude on tribal sovereignty, the
Constitution’s “concomitant jurisdictional limit on the reach of
state law” began to wane. McClanahan , 411 U. S., at
171. It is not hard to draw a through-line between these
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 family-law matters, Fisher v. District Court of
Sixteenth Judicial Dist. of Mont. , 424
U.S. 382 , 387 (1976) ( per curiam ), and domestic
disputes, United States v. Quiver , 241 U.S.
602 , 605 (1916). But for a period at least, this Court let
itself drift from the “basic policy of Worcester , ” and with it the Constitution’s promise of tribal sovereignty. Williams v. Lee , 358 U.S.
217 , 219 (1959).

															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 plenary-power
precedents, it has yet to recover fully the original meaning of the
Indian Commerce Clause.

															Today, the Court takes further steps in the
right direction. It recognizes that Congress’s powers with respect
to the Tribes “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 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 mass-removal of Indian children by States and other
outsiders threatened the “continued existence and integrity of
Indian [T]ribes.” Ibid. ; see also §1901(4). By setting out
to 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 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, 1Stat. 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. 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 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. 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 expressly 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 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, 43Stat. 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
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. 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.

															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 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 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 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
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, 1Stat. 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 the Department
with authority over “Indian affairs.” See §1, 1Stat. 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. , 1Stat. 469;
2Stat. 139; 1Stat. 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 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 1Stat. 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 tribes from allying themselves with European powers,
Congress forbade people from conveying messages to Indian tribes
from foreign states. 2Stat. 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. , 1Stat. 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; 2Stat. 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, 1Stat.
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. 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; 2Stat. 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, 1Stat. 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.

															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 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. , 1Stat.
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 3Stat. 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 “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
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 (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 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, 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 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 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; 1Stat. 470 (passports on Indian lands); id. , at 137 (crimes on Indian lands); id. , at 383
(enlisting with foreign states).

															But that authority is a foreign , not
domestic, affairs power. It comprehends external relations, like
matters of war, peace, and 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 with questions of peace and war plainly
involved some sort of sovereign-to-sovereign relationship. See, e.g. , Treaty with the Cherokees (1791), 7Stat. 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 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), 7Stat. 78; Treaty with the Creeks (1790), id. , at 35. At bottom, Cherokee Nation ’s loose dicta
cannot support a broader power over Indian affairs.

															Nevertheless, Cherokee Nation ’s
suggestion was picked up decades later in United States v. Kagama , 118 U.S.
375 (1886)—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, 23Stat. 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 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 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.

															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.

															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 Founding-era 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 16Stat. 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
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 powers 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 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
quasi-federal lands.

															Again, that would be a non sequitur.
Nevertheless, at a high level, it is possible to see how Kagama was rooted in the same foreign-affairs and
territorial powers that 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 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 , 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, 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 treaty-based case, Delaware Tribal Business Comm. v. Weeks , 430 U.S.
73 (1977), involved the disposition of funds paid pursuant to a
treaty. It therefore makes sense as a matter of both the Property
and Treaty Clauses. And yet another treaty-based case involved a
promise by the United States to 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). 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 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 so-called
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 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. Notes 1 An analogous law might be
if the Federal Government tried to regulate the child custody
proceedings of U. S. citizens who are eligible for Russian,
Mexican, Israeli, or Irish citizenship. 2 For example, though it
was not exactly settled what it meant for an Indian to be a
“member” of a State, the definition often turned on whether the
Indian paid taxes in or was a citizen of that State. Adoptive
Couple v. Baby Girl , 570 U.S.
637 , 662, n. 2 (2013) (Thomas, J.,
concurring). 3 As reflected in the
debates on this statute, a majority of Congress thought that “the
power of the General Government to legislate in all the territory
belonging to the Union, not within the limits of any particular
State, cannot be doubted; if the Government cannot make laws to
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. 4 The 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). 5 This decision thus was
consistent with one issued 12 years later by this Court—which
upheld the 1834 Trade and Intercourse Act’s criminal 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). 6 Though the Court has only
passingly discussed the Commerce Clause’s application to commerce
with foreign nations, see Baston v. United States ,
580 U. S. ___, ___ (2017) (Thomas, J., dissenting from 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). 7 See 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”). 8 To be sure, as
respondents point out, the Constitution removed two limits on the
Indian-affairs power found in the Articles of Confederation: that
the Indians not be “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. 9 Compare F. Allen, A
Complete English Dictionary (1765) (Allen) (“something done,” or
“the concerns and transactions of a nation”); 1 S. Johnson,
Dictionary of the English Language (6th ed. 1785) (Johnson); N.
Bailey, A Universal Etymological English Dictionary (26th ed. 1789)
(Bailey), with Allen (“the exchange of commodities, or the buying
and selling [of] merchandize both at home and abroad; intercourse
of any kind”); Johnson (similar); Bailey (similar). Indeed, when
the Founders referred to Indian “affairs,” they were often
referring to diplomatic relations—going far afield of their
references to Indian “commerce.” E.g. , G. Washington to
Congress (Mar. 26, 1792), in 4 American State Papers 225 (referring
to “the present crisis of affairs” with Indians and “managing the
affairs of the Indian tribes” in a general sense, including
inviting the Five Nations to the seat of the Federal 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, 1Stat. 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.” 10 The
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. 11 The
closest possible exception from this era was a provision in the
Trade and Intercourse Act of 1822 (later enacted in the Act of
1834), which provided that, “in all trials about the right of
property in which Indians shall be party on one side and white
persons on the other, the burden of proof shall rest upon the white
person, in every case in which the Indian shall make out a
presumption of title in himself from the fact of previous
possession and ownership.” §4, 3Stat. 683; §22, 4Stat. 733. But
even that statute appears to be merely part of the general “design”
of the Acts: to “protect the rights of Indians to their properties”
“[b]ecause of recurring trespass upon and illegal occupancy of
Indian territory” by frontier settlers. See Wilson v. Omaha Tribe , 442 U.S.
653 , 664 (1979). Viewed as such, this unremarkable provision
only furthered the foreign-affairs and commerce powers of the
Federal Government by preventing non-Indians from stealing Indian
lands, circumventing Congress’ trade-licensing scheme, and
disrupting the peace with Indian tribes. 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. 13 As
discussed more below, Congress declared in 1871 that “hereafter no
Indian nation or tribe within the territory of the United States
shall be acknowledged or recognized as an independent nation,
tribe, or power with whom the United States may contract by
treaty.” 16Stat. 566. 14 Respondents insist that Lopez and Morrison did not hold that family law is insulated from
federal law. But that misses the point. Lopez and Morrison held that the Commerce Clause cannot regulate a
matter like family law, and they did not consider whether some
other constitutional power might do so. Cf. Hillman v. Maretta , 569 U.S.
483 , 490–491, 497 (2013) (finding pre-emption of a state
statute regarding beneficiaries and a change in marital status
under a federal statute regulating the life insurance of federal
employees). Here, no such independent power is to be
found. 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. , 114Stat. 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. 16 Still
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. 17 Nor
should we be unduly tripped up by broad language like “plenary”
powers. Prior to our 1995 decision in United States v. Lopez , 514 U.S.
549 , the Court for decades had stated that “the Commerce Clause
is a grant of plenary authority” in the realm of interstate
commerce. See 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. 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 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 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 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 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 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 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 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 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. 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
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.[ 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 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. Notes 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). 2 Because ICWA’s provisions
comprise a comprehensive child custody scheme relevant only to
state court proceedings, I generally do not believe they can be
severed without engaging in “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).