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.
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