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
21–376v.21–376
CHAD EVERET BRACKEEN, ET AL.
CHEROKEE NATION, ET AL., PETITIONERS
21–377v.21–377
CHAD EVERET BRACKEEN, ET AL.
TEXAS, PETITIONER
21–378v.21–378
DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.
CHAD EVERET BRACKEEN, ET AL., PETITIONERS
21–380v.21–380
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, 43 Stat. 253; Dept. of Health and Human Services, Office of Minority Health, Profile: American Indian/Alaska Native (Feb. 24, 2023), https://minorityhealth.hhs.gov/omh/browse.aspx?lvl=3&lvlid=62 (87% live off Indian lands). Thus, one might expect that when a child custody issue regarding an Indian child arises in a state court, that court would apply the same laws that it would for any other citizen.
But ICWA displaces the normal state laws governing child custody when it comes to only one group of citizens: Indian children. ICWA defines “Indian child” capaciously: It includes not only children who are members of an Indian tribe, but also those children who are merely eligible for membership in a tribe and are the biological child of a tribal 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, 1 Stat. 383. While this Court has at times debated whether those residual foreign-affairs powers are located in the Executive exclusively or the Federal Government more broadly, see Zivotofsky, 576 U. S., at 20–22, it has long recognized the powers as arising from our constitutional framework and residing at the federal level, see, e.g., Curtiss-Wright, 299 U. S., at 318.
B
After the Constitution’s ratification, the new Federal Government exercised its enumerated powers with regard to Indian tribes. To start, the Government embarked on an era of treaty-making with Indian tribes. See Cohen §1.03[1], at 23. That treaty-focused policy reflected the Washington administration’s view that Indian tribes were best dealt with as mostly “foreign nations,” with an eye towards peace lest frontier conflicts continue to plague the new Nation. See Letter from H. Knox to G. Washington (July 7, 1789), reprinted in 3 Papers of George Washington 138 (W. Abbot 1989); see also Toler 433–434. Many early treaties thus “were treaties of peace and friendship, often providing for the restoration or exchange of prisoners” or including “mutual assistance pacts.” Cohen §1.03[1], at 25. Others dealt with passports and commercial affairs. Id., at 25–26. And many attested to the tribes’ status as dependent nations, with the United States sometimes promising to protect the tribe. Id., at 26.
Unlike the Confederation Congress, the new Federal Government was no longer powerless to maintain and enforce its treaties. Exercising its new military powers, the First Congress established a Department of War and vested the Department with authority over “Indian affairs.” See §1, 1 Stat. 50. War Secretary Henry Knox then called for, and obtained, “a line of garrisons in the Indian Country, in order to enforce the treaties and maintain the peace of the frontier.” F. Prucha, American Indian Policy in the Formative Years 61 (1962) (Prucha, American Indian Policy). Those garrisons remained for years, working to prevent American settlers from illegally entering Indian country or otherwise stirring up conflicts. Id., at 61–63.
Meanwhile, President Washington exercised his diplomatic authority to maintain peace on the frontier. For example, when Pennsylvania settlers killed two members of the Seneca Nation, Washington appointed a federal agent to meet with the Seneca and “ ‘give the strongest assurances of the friendship of the United States towards that Tribe; and to make pecuniary satisfaction.’ ” Letter to T. Mifflin (Sept. 4, 1790), reprinted in 6 Papers of George Washington 396 (D. Twohig ed. 1996). And, in line with his executive authority to “regulate all intercourse with foreign powers,” see 4 J. Elliot, Debates on the Constitution 126–127 (1863), Washington instructed Pennsylvania’s Governor to refer the Seneca “ ‘to the Executive of the United States, as possessing the only authority of regulating an intercourse with them, and redressing their grievances,’ ” Letter to T. Mifflin, in Papers of George Washington 396.
Congress too did its part, enacting a series of acts “to regulate Trade and Intercourse with the Indian Tribes, and to preserve Peace on the Frontiers.” See, e.g., 1 Stat. 469; 2 Stat. 139; 1 Stat. 137 (emphasis deleted). Those “Trade and Intercourse Acts” underscored the Federal Government’s new powers and worked to establish a policy of peace and trade with Indian tribes. For example, the Acts threatened criminal penalties on any U. S. citizen who entered Indian lands and there committed crimes against Indians. See, e.g., id., at 137; see also Prucha, American Indian Policy 188–193. Though opponents of those provisions contended that they were unnecessary because state laws and some treaties already provided for criminal punishment, proponents explained that the provisions were needed for those who went “out of the limits of any of the States” and committed crimes that may not have been covered by a particular treaty. See 3 Annals of Cong. 751 (1792).[3] Thus, as with the border garrisons, these provisions were meant as “an answer to the charge that” the United States did not respect its treaties with Indian tribes, Prucha 92, while also securing “peace with the Indian tribes” on the frontier, 3 Annals of Cong. 751. In that respect, they were much like the criminal penalties that Congress levied on those who went abroad and enlisted with England or France and thereby threatened the United States’ peace with those nations. See 1 Stat. 383.
The Trade and Intercourse Acts further hammered out the Nation’s diplomatic and territorial stance with respect to the Indian tribes. For example, reflecting the Federal Government’s powers over commerce, territories, and foreign affairs, the Acts forbade U. S. citizens from purchasing, surveying, or settling on Indian lands. E.g., id., at 329–330. One of the Acts, enacted in 1796, then drew a boundary line with Indian tribes and required citizens to have passports when entering Indian lands. Id., at 470. If an Indian came over the boundary line and committed a crime against a U. S. citizen, the Acts authorized the President to demand satisfaction from the tribe (while specifying that the Indian could be arrested “within the limits of any state”). See, e.g., §14, id., at 472–473. Then, to prevent the tribes from allying themselves with European powers, Congress forbade people from conveying messages to Indian tribes from foreign states. 2 Stat. 6.
Congress also, of course, regulated trade with the Indian tribes. For example, the Acts continued the colonial practice of requiring licenses to trade with Indians and threatened penalties on anyone who sold or purchased goods from Indians without a license. See, e.g., 1 Stat. 329–330. To facilitate trade, Congress also established a series of trading houses on the frontiers, appropriating federal funds to set up the houses and purchase goods from Indians. See, e.g., id., at 443, 453–454; 2 Stat. 173. And, “to promote civilization” and secure the tribes’ “friendship,” Congress appropriated funds for the President to furnish gifts to the Indians. See, e.g., §13, 1 Stat. 472.
To be sure, these measures were not entirely successful, and the Federal Government’s policy was not always one of peace. American frontiersmen continued to push into Indian lands, and the military garrisons sometimes could not stem the tide. See Prucha 62–63, 112. The Indians (often supported by the British) engaged in intermittent raids and attacks against American settlers, and the Federal Government and several confederated tribes fought a significant war in the Northwest Territories. Id., at 63–67; J. Yoo, Crisis and Command 75–79 (2011); M. Fletcher & W. Singel, Indian Children and the Federal-Tribal Trust Relationship, 95 Neb. L. Rev. 885, 904–905 (2017) (Fletcher & Singel). Additionally, the Federal Government often played tribes against each other to obtain land concessions by treaty, leading many tribes (again goaded by the British) to take up arms against the United States in the War of 1812. See Cohen §1.03[3], at 39–41. In the aftermath of that conflict, Presidents Monroe and John Quincy Adams generally pursued a policy of assimilation or removing Indians west with their consent. Prucha, American Indian Policy 226–233. That policy then gave way to a more forceful policy of removing Indians west, particularly during the administration of President Andrew Jackson. Id., at 233–249; Cohen §1.03[4], at 41–51; Prucha 193–195, 239–240.
But, at least until the War of 1812 (and, in large part, in the years after it), Founding-era Presidents’ primary goals in this area were to achieve peace with the Indians, sustain trade with them, and obtain Indian lands through treaties. See id., at 32–33, 59, 61, 93. By establishing a peaceful and trade-oriented relationship with the Indians, the new country further hoped to exclude British Canada and other European powers that might seek alliances with the Indian tribes. See Cohen §1.03[3], at 37–38, n. 102; 2 Stat. 6. During that time, the Federal Government’s relationship with the Indians thus remained (as it did for nearly the first hundred years of our Nation) “ ‘more an aspect of military and foreign policy’ ” than simple domestic law. See United States v. Lara, 541 U. S. 193, 201 (2004).
C
Notably, neither President Washington nor the first Congresses were particularly “concerned with the remnants of tribes that had been absorbed by the states and had come under their direction and control.” Prucha 92. The first Trade and Intercourse Acts specifically provided that “nothing in this act shall be construed to prevent any trade or intercourse with Indians living on lands surrounded by settlements of the citizens of the United States, and being within the jurisdiction of any of the individual states.” §13, 1 Stat. 331; §19, id., at 474. And the Constitution’s Apportionment Clause provided that representatives would be apportioned by the population of each State, “excluding Indians not taxed”—implying that there were Indians who paid taxes and were incorporated into the bodies politic of the States. Art. I, §2, cl. 3.
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., 1 Stat. 472–473. Under that regime, the Federal Government asserted no authority over the acts of Indians who lived on tribal lands—much less over Indians who lived off tribal lands and within a State’s sole jurisdiction.
That general jurisdictional line held until 1817, when Congress first enacted a statute to impose penalties on anyone who committed a crime against a U. S. citizen while on Indian lands. See 3 Stat. 383. But Justice McLean, riding circuit, held that statute unconstitutional in 1834—at least as it applied to Indian lands located within the territorial limits of a State. See United States v. Bailey, 24 F. Cas. 937 (No. 14,495) (CC Tenn.). As Justice McLean explained, “[t]hat the federal government is one of limited powers, is a principle so obvious as not to admit of controversy.” Id., at 938. Yet the Indian lands at issue were not located within a federal territory, and there had not been “any cession of jurisdiction by the state of Tennessee.” Id., at 939.[5] Nor was the criminal statute in any way related to “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; 1 Stat. 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), 7 Stat. 39. And the early Trade and Intercourse Acts regulated only the criminal conduct of U. S. citizens on Indian lands.
This congruence—between the government’s actions and the Constitution’s enumerated powers—likely reflects the fact that those powers, collectively, responded to the most pressing concerns of the day: that Congress could not enforce its treaties with Indians, police the frontier, or regulate unscrupulous traders—all of which caused violence and raised the specter of war with Indian tribes. As noted, when Congress tried to expand its domain in 1817 to regulate the criminal acts of Indians, one Justice of this Court found it to be a palpable violation of Congress’ limited powers. See Bailey, 24 F. Cas., at 938–940. And, all the while, States continued to regulate matters relating to Indians within their territorial limits. The normal federalist dynamic thus extended to the domain of Indian affairs: The Federal Government was supreme with respect to its enumerated powers, but States retained all residual police powers within their territorial borders. See id., at 938–939; McCulloch, 4 Wheat., at 405. And the Federal Government’s enumerated powers were not unlimited, but confined to their plain meaning and limits.
B
So where did the idea of a “plenary power” over Indian affairs come from? As it turns out, little more than ipse dixit. The story begins with loose dicta from Cherokee Nation v. Georgia, 5 Pet. 1 (1831). In that case, the Cherokee Nation petitioned this Court for an injunction to prevent Georgia from enforcing state laws in Cherokee territory and from seizing Cherokee lands. Id., at 11. The Tribe asserted that Article III both allowed the suit and gave this Court original jurisdiction because the suit was one by a “foreign Stat[e]” against the State of Georgia. §2, cls. 1–2. Writing for the Court, Chief Justice Marshall admitted that the Tribe’s argument was “imposing”: The Tribe was “a state, as a distinct political society,” but it was “not a state of the union.” 5 Pet., at 16. Nonetheless, the Court refused to hear the case. As Marshall reasoned, Indian tribes were not “foreign state[s] in the sense of the constitution,” as shown in part by the Commerce Clause’s delineation of States, foreign nations, and Indian tribes.[12] Ibid. Rather, Marshall reasoned that the Indian tribes occupied a unique status, which he characterized as that of “domestic dependent nations” whose “relation to the United States resembles that of a ward to his guardian.” Id., at 17.
Other than this opinion, I have been unable to locate any evidence that the Founders thought of the Federal Government as having a generalized guardianship-type relationship with the Indian tribes—much less one conferring any congressional power over Indian affairs. To the contrary, such a status seems difficult to square with the relationship between the Federal Government and tribes, which at times involved warfare, not trust. See, e.g., Fletcher & Singel 904–907; F. Hutchins, Tribes and the American Constitution 104 (2000). And, if such a general relationship existed, there would seem to be little need for the Federal Government to have ratified specific treaties with tribes calling for federal protection. E.g., Treaty with the Kaskaskia (1803), 7 Stat. 78; Treaty with the Creeks (1790), id., at 35. At bottom, Cherokee Nation’s loose dicta cannot support a broader power over Indian affairs.
Nevertheless, Cherokee Nation’s suggestion was picked up decades later in United States v. Kagama, 118 U. S. 375 (1886)—the first case to actually apply a broader, unenumerated power over Indian affairs. In Kagama, the Court considered the Major Crimes Act of 1885, which, similar to the 1817 Act held unconstitutional by Justice McLean while riding circuit, regulated crimes on Indian lands committed by Indians; the Major Crimes Act differed from the 1817 Act only in that it extended to crimes committed against other Indians. See §9, 23 Stat. 385. Similarly to Justice McLean’s Bailey opinion, the Court first rejected the idea that the Commerce Clause could support the Act—reasoning that “it would be a very strained construction of th[e] clause, that a system of criminal laws for Indians … was authorized by the grant of power to regulate commerce with the Indian tribes.” Kagama, 118 U. S., at 378–379.
But the Court determined that the Major Crimes Act was constitutional nevertheless. As the Court first noted, the Act was “confined to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation.” Id., at 383. The Court then cited several cases arising from congressional regulations of Indian lands located within federal territories, noting that Congress had previously punished offenses committed on such lands. See id., at 380 (citing United States v. Rogers, 4 How. 567, 572 (1846); Murphy v. Ramsey, 114 U. S. 15, 44 (1885); American Ins. Co. v. 356 Bales of Cotton, 1 Pet. 511, 542 (1828)). Next, the Court reasoned that the Act “does not interfere with the process of the State courts within the reservation, nor with the operation of State laws upon white people found there.” 118 U. S., at 383. Instead, the Act’s “effect[s are] confined to the acts of an Indian of some tribe, of a criminal character, committed within the limits of the reservation.” Ibid.
That sort of language seems to view Indian lands as akin to quasi-federal lands or perhaps “external” to the Nation’s 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 16 Stat. 566; Brief for Tribal Defendants 37–38; see also generally Vols. 1–2 C. Kappler, Indian Affairs: Laws and Treaties (2d ed. 1902, 1904). And, in part because one Congress can never bind a later Congress, the Federal Government retains the power to abrogate treaties and has done so for at least some Indian treaties. E.g., Lone Wolf, 187 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.
- ↑ 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.
- ↑ 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).
- ↑ 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.
- ↑ 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).
- ↑ 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).
- ↑ 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).
- ↑ 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”).
- ↑ 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.
- ↑ 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, 1 Stat. 50. And a Committee of the Continental Congress once remarked that “the principal objects” of that Congress’ power of “managing affairs with” Indians had encompassed “making war and peace, purchasing certain tracts of their land, fixing the boundaries between them and our people, and preventing the latter [from] settling on lands left in possession of the former.” 33 Journals of the Continental Congress 458 (1936 ed.). Of course, it may be that the Constitution’s other enumerated powers authorized many of those “objects.” But, whatever the precise bounds of an “Indian affairs” power, it was decidedly broader than a power over Indian “commerce.”
- ↑ 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.
- ↑ 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, 3 Stat. 683; §22, 4 Stat. 733. But even that statute appears to be merely part of the general “design” of the Acts: to “protect the rights of Indians to their properties” “[b]ecause of recurring trespass upon and illegal occupancy of Indian territory” by frontier settlers. See Wilson v. Omaha Tribe, 442 U. S. 653, 664 (1979). Viewed as such, this unremarkable provision only furthered the 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.
- ↑ 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.
- ↑ 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.” 16 Stat. 566.
- ↑ 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.
- ↑ Indeed, ICWA stands in sharp contrast to statutes regarding international adoptions, in accordance with the Hague Convention. Those statutes generally regulate only adoptions by a foreign parent of a child residing in the United States, or vice versa. E.g., 114 Stat. 825; 42 U. S. C. §§14931, 14932. In other words, there is a cross-border component; the statutes do not regulate adoption proceedings merely because the child’s parents are, for example, dual Mexican-American citizens or dual Irish-American citizens. For ICWA to be comparable to those statutes, it could regulate only the adoption of children who reside on an Indian reservation by parents who live within the sole jurisdiction of a State, or vice versa. While I take no position on whether such a more limited law would be constitutional, that stark difference only underscores ICWA’s lack of any external focus.
- ↑ 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.
- ↑ 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.