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Haaland v. Brackeen

Oral argument transcript · No. 21-376 · October Term 2022 · argued November 9, 2022 · the respondent won

Decision: votes, opinion and citations · Official transcript (PDF) · Argument audio at the Supreme Court

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Transcript

From the Court's official transcript; speaker labels as in the transcript, with advocates' full names from its list of appearances.

Chief Justice Roberts: We will hear argument this morning in Case 21-376, Haaland versus Brackeen, and the consolidated cases. Mr. McGill. ORAL ARGUMENT OF MATTHEW D. McGILL ON BEHALF OF CHAD EVERET BRACKEEN, ET AL.

McGill: Thank you, Mr. Chief Justice, and may it please the Court: According to the federal government, in 2020, there were over 11,000 Native American children in state foster care. The Indian Child Welfare Act deprives Native -- deprives Indian children of the best interests of the child test. It replaces that test with a hierarchy of placement preferences that puts Native -- non-Indian families at the bottom of the list. As this Court explained in Holyfield, this effectuates a federal policy of sending Indian children to the Indian community. The problem is -- is that there are fewer than 2,000 Native American foster homes. That means each year hundreds, if not thousands, of Indian children are placed in non-Indian foster homes, Official 1 and sometimes there they bond with those families. Yet, when those families try to adopt those children, ICWA rears its head for a second time, allowing tribes to play the proverbial ICWA trump card at the eleventh hour. This is happening now for a second time to the Brackeens as they try to adopt YRJ, who is now four-and-a-half years old. For a second time, the Brackeens are asked to show good cause to overcome the placement preferences under a new regulatory standard that, in the agency's words, is narrow, limited, and not a best interests test. Not even YRJ's deep attachment to the Brackeens after being part of their family for four years is sufficient. For both that child and her family, this flouts the promise of equal justice under the law. I welcome the Court's questions.

Justice Thomas: Would you spend a minute on what the good cause standard is? I think -- of course, you understand that there's already a placement, there's already adoption in process, but how does that work?

McGill: Justice Thomas, the -- after the 2016 rule, what the -- what at 25 Official 1 C.F.R. 23.132, you now -- there are now five enumerated ways in which good cause can be shown. The government says that it mere -- that the regulation merely says that it should be one of these five factors. But, you know, a remarkable thing happens when a family court judge in the states picks up a copy of the Code of Federal Regulations. He treats it as binding federal law. And that is how it happens on the ground. It is treated as enumerated things that must be shown. Further, it excludes any consideration of socioeconomic circumstances of the -- of the competing families. And, finally, it says that what the regulation describes as ordinary bonding and attachment that arises from a placement that's in violation of ICWA's placement preferences shall not be a sufficient or sole basis for showing good cause. And, of course, the child at issue in these proceedings has no stake in whether she or he was placed in supposed violation of ICWA's preferences at the foster care -- at the foster care process.

Justice Sotomayor: Counsel, you Official 1 haven't challenged the regulation?

McGill: Yes, we have, Your Honor. We have a challenge to --

Justice Sotomayor: But not in the cert granted question?

McGill: Your Honor, we challenged the -- we raised a challenge in our complaint to the --

Justice Sotomayor: I'm not asking about the complaint. The cert granted question does not include challenges to the regulation?

McGill: It -- it challenges the --

Justice Sotomayor: It opposes the statute?

McGill: We challenged the regulation as an unconstitutional -- as an implementation of a --

Justice Sotomayor: Counsel, answer the question. Is it part of the question presented or not?

McGill: I believe it is, Your Honor.

Justice Sotomayor: Did you seek cert on that question? Official

McGill: We did not seek cert on the question of the -- whether it is a permissible construction of the statute. We sought cert on whether the statute --

Justice Sotomayor: So, if it -- if you don't seek cert on that, there's nothing on that good cause standard?

McGill: I don't -- I don't think so, Your Honor.

Justice Sotomayor: Counsel, can I turn to something you said, which was it displaces the best interests of the child standard. In most state custody proceedings, the best interests of the child is what guides those decisions. Yet, we have the Hague Convention on the abduction of children that basically says to the court you can't make that determination, you have to send the child back, and it gives a session -- section of exceptions, et cetera, and it even says standards of proof, et cetera. Why is this case any different than the Hague Convention?

McGill: For, I think, a couple of reasons, Your Honor. First, the Hague Official 1 Convention, as I understand it, would send the child back to their place of their habitual residence.

Justice Sotomayor: But that's not necessarily in the best interests of the child. There's no best interests standard there.

McGill: What I was -- if I might just finish my thought, Your Honor. That is -- that habitual residence standard is -- is essentially duplicated in Section 1911(a), which provides for tribes -- tribal courts to have exclusive jurisdiction concerning children who are domiciled on -- on tribal lands. So I think that -- that that parallels the Hague Convention. The other --

Justice Sotomayor: Well, how? Meaning these children are in the U.S., they have a relationship with an Indian tribe over which we have recognized for over two centuries Congress has plenary -- plenary authority. If Congress in one enumerated power can supersede a state standard, why can't it in another?

McGill: Well, Your Honor --

Justice Sotomayor: They can say the Official 1 best interests of the child shouldn't be the top test or only test, either good cause or something else, as ICWA does. Why is that beyond Congress's power?

McGill: I'm not aware that an equal protection challenge has ever been presented to the Hague Convention. If you -- if you're referring --

Justice Sotomayor: You -- you -- you think that Congress's foreign affairs powers don't permit it to legislate with respect to the relationships of a foreign country and its competing custody issues?

McGill: Your Honor, I think the foreign affairs power is subject to the Fifth Amendment. I think the question of whether citizenship is a -- would be -- would rise to the level -- a classification based on citizenship would amount to race discrimination would, you know, essentially be the question of whether citizenship is being used as a proxy for race. The government --

Chief Justice Roberts: Counsel, to what extent is the best interests of the child or the same considerations that are taken into Official 1 account under the best interests of the child incorporated in the good cause showing that could be made under ICWA?

McGill: I would say that they are not, Your Honor. I mean, the -- the good cause standard is -- is a holistic standard that takes all of the child's circumstances and needs into account. What the good cause standard does is sharply limit that under the 2016 rule to enumerated factors. In the 2013, when the adoptive couple case was before this Court, the government described the good cause standard as a safety valve. That's Footnote 2 of its brief. It is no longer a safety valve. The Interior Department has promulgated these regulations with the specific purpose of making it limited, narrow, and, in its own words, not a best interest test. So it differs very much from the -- what would be the traditional best interest test.

Chief Justice Roberts: So how do you understand this to work? I mean, if you have, for example, an Indian couple, non-tribal members of the -- the tribe of the child, Official 1 exactly how does the state court adoption authority take into account -- how -- how -- how do they weigh the interests of the non-family tribe member against -- you say you don't take into account the best interests of the child? What are you weighing on the other side?

McGill: Well, I think you could look to the Texas Court of Appeals decision in the YRJ case as just an example of this. So the question is whether -- whether the -- the person challenging the placement preference has shown one of the enumerated factors by, at that time, clear and convincing evidence. The that -- that standard of proof has since fallen by the wayside. So that's how it -- it plays out on the ground. Is one of those five factors demonstrated by a preponderance of the evidence? It doesn't -- you know, it -- it does not -- those five factors don't take into account the bonding or attachment of the child, which would be the most obvious and most compelling part of the best interest standard. It only says if there's, you know, a showing of extraordinary needs that -- that -- that is, you Official 1 know, not just something that is from what the regulation describes as ordinary bonding and attachment that good cause can be shown. I mean, the -- the -- after the 2016 regulation, the -- the placement preferences are effectively dispositive in many cases.

Justice Barrett: Counsel, can I take you to the scope of the Indian power? We've described it as plenary. It's quite broad. And, in area after area, we've -- well, the -- we've allowed Congress to far exceed anything that we would think of as just commerce in the sense of trade, you know, which is something that you floated. Are you asking us to overrule all of those precedents?

McGill: No, Your Honor. I -- I am not going to speak for my colleagues on the -- from the State of Texas, but, for our -- for our part, no, we're not -- we don't think you need to overrule any of the precedents.

Justice Barrett: Because you'd have us just focus on the equal protection?

McGill: No, Your Honor. I mean, on -- on the Article I piece, the -- this cannot Official 1 be understood as within the -- the Court's Indian Commerce Clause precedents. It's not commerce in any -- in any normal sense of that word. The question is then whether it is part of the plenary power that otherwise has been described in this Court's precedents. And our submission is that that plenary power is, if -- if you -- in the Court's cases, as elaborated in this Court's cases, that plenary power applies to the tribe's areas of its sovereign interests, tribal lands, treaty powers, its internal affairs, its ability to self-govern. It's not a power to regulate Indians everywhere, wherever they might be in the jurisdiction of the United States.

Justice Sotomayor: So what do you do with that line of cases, like the Act of 1888, setting the evidentiary standard for proving a marriage in cases involving an Indian woman and a white man? That wasn't limited territorially. That set an evidentiary standard. Or the Trade and Intercourse Act of 1834 set burdens of proof in all trials, whether on reservations or outside of reservations, Official 1 about property rights between Indians and non-Indians. The Act of 19 -- 1799, state courts must take proper bail when federal officers detain offenders who trespassed into Indian territory. So that one arguably had something to do with that, but there's a legion of cases, as Justice Barrett alluded to, where Congress has gone off of Indian lands, had nothing to do with sovereignty, had to do -- nothing to do with trade or commerce -- or commerce, but with intercourse, with the relationship with Indians, whether on or off reservations.

McGill: Well, Your Honor, I -- I guess my -- I would have two parts to my response. The first is that the -- the Constitution confers a -- an authority to regulate commerce, and that power, as understood, as Justice Thomas's separate opinion in Adoptive Couple, I think, would elaborate --

Justice Sotomayor: But that was a separate opinion. We've described the power as more plenary than that. Official

McGill: Well, I -- and I think this is just the -- the fundamental portion of my submission, and I respect the fact that we might not agree on this, but that there is a commerce power that -- that allows the government to regulate commerce wherever it happens within the United States. And then there is, in addition to that, a plenary power that allows the tribes -- allows the government, the federal government, to regulate the tribes, and that arises from the federal government's, you know, role as the subjugating sovereign of the tribes and its role as the, now under Kagama, the protector of those tribes. But that power is not unlimited. It doesn't --

Justice Jackson: Well, why --

Justice Gorsuch: Counsel --

Justice Jackson: -- is it limited by geography? You -- you're suggesting that the power, the plenary power that you describe is limited by the tribal land demarcation, and I don't understand where that comes from.

McGill: Well, I -- I don't think it's just tribal land, Your Honor, although, as Official 1 this Court's decision in Plains Commerce Bank says, that is the -- the core of tribes' sovereign interests, but it also would extend to treaty rights, the internal affairs of the tribe, and the laws that -- that address the scope and form of tribe self-government.

Justice Jackson: All right. So you concede that Congress has plenary power over tribal sovereignty and self-government then?

McGill: Tribe -- I believe that Congress absolutely has the power to -- to adjust and change the scope of tribes' power to govern themselves.

Justice Jackson: All right. So what do we do with the legislative history in regard to this Act in which Congress repeatedly referred to the kinds of -- of restrictions and regulations in this area in ICWA as a matter of tribal governance and self -- you know, self-government and sovereignty? I mean, Congress said things like there's no resource that is more vital to the continued existence and integrity of Indian tribes than their children. They constantly cast regulations regarding children, Indian Official 1 children, as a matter of tribal integrity, self-governance, existence. So why isn't that enough to bring it within the -- the -- the scope of their plenary power?

McGill: Addressing the tribal existence point, I have four responses to that. The first is that the third placement preference doesn't even rationally advance that objective. Placing a Seminole child with a Cherokee family doesn't rationally advance the existence of either tribe. The second point is that placement does not dictate membership. You need only look as far as YRJ to show that. Tribes --

Justice Jackson: Right. I feel like you're in the weeds of the actual regulation. What I'm asking you is the broader question about whether or not Congress has the ability to regulate in this area.

McGill: So --

Justice Jackson: I understood your response to Justice Barrett to be not anything outside of commerce or the plenary power expanding to or extending to self-governance and self-regulation. So I'm just asking as a matter Official 1 of categorization why aren't regulations that concern whether or not Indian children are going to remain in the tribes fitting within that plenary power?

McGill: Your Honor, in Williams versus Lee, this Court described the power of self-government as the power of reservation Indians to make their own laws and to be ruled by them. ICWA has nothing to do with that.

Justice Gorsuch: Counsel --

McGill: What --

Justice Gorsuch: -- counsel, I'm struggling to understand your argument. For the first half of it, I heard policy complaints. It took a while for me to even hear the words "equal protection" or "Article I." And I guess I'm -- I'm curious, first of all, which do you think is your better argument --

McGill: We're --

Justice Gorsuch: -- legally? Not -- not -- the policy arguments might be better addressed across the street.

McGill: Justice Gorsuch, as you -- we are here to advance both arguments, but Official 1 I'd like to talk about the equal protection argument.

Justice Gorsuch: Okay. So, if equal protection is your better argument, what do we do about your standing problem? You've sued federal officials, not the state courts who actually are tasked with operating.

McGill: I -- I think my answer to that, Justice Gorsuch, starts with the traceability standard, which is de facto causation. And then I would say --

Justice Gorsuch: No federal official can dictate to a state family court what to do, can he?

McGill: I'm sorry, I did not hear the question.

Justice Gorsuch: Can any federal official that you sued tell a state court what to do?

McGill: No, Your Honor.

Justice Gorsuch: Okay. I would think that might be the end of it. What am I missing?

McGill: Two things, Your Honor. First is the fact that the traceability standard is de facto causation. And, as shown in the Official 1 Court's decision in Bennett versus Spear, the -- the agency that issues the regulation is the de facto cause of a separate party that implements it. That is what's going on here.

Justice Gorsuch: We have a statute here. You're asking us to enjoin somebody from operating a statute.

McGill: We also are --

Justice Gorsuch: And the only people who operate this statute are state court judges --

McGill: We're --

Justice Gorsuch: -- and tribal judges.

McGill: We also are asking the Court to affirm the judgment vacating the 2016 rule on the grounds that it implements an unconstitutional statute.

Justice Gorsuch: And then, in equal protection --

McGill: And that would provide --

Justice Gorsuch: Fine. Let's say you've got standing. I'm -- I'm -- I'll spot you that for the purposes of this question. How is this an invidious racial classification Official 1 rather than a political classification? Tribes are -- are mentioned in the Constitution, and, in fact, we have the treaty power which mentions tribes as separate, indicates that they're separate sovereigns.

McGill: Your Honor, the Court explained in Rice versus Cayetano that tribal classifications cannot be used in regulation of state affairs. It drew a line between the regulation -- the use of tribal classifications in regulating tribal internal affairs and regulating the affairs of the state.

Justice Gorsuch: You agree that the Congress can treat with tribes, right?

McGill: Of course, Your Honor.

Justice Gorsuch: Of course. And, in Mancari, we held this was a political classification, right?

McGill: With respect to the hiring preference there at issue.

Justice Gorsuch: Yeah. Okay. So let's turn to your Article I. And I'm struggling to understand what it is because you seem to -- I'm sorry. I'll -- I'll -- I'll carry on later, Chief. Official

Chief Justice Roberts: Sure.

Justice Gorsuch: Yeah.

Chief Justice Roberts: Justice Thomas?

Justice Thomas: Briefly, counsel, is there a difference between regulating a tribe or tribal affairs and regulating someone who happens to be Indian?

McGill: Your Honor, I think it depends on the context. Somebody who -- if you, by the word "Indian" --

Justice Thomas: Well, in this case, what -- I mean, I -- I don't want to get the whole range. We're talking about children who do not reside on a reservation, right?

McGill: They are covered by the statute, yes.

Justice Thomas: Who are not necessarily members of a tribe?

McGill: Correct, Your Honor.

Justice Thomas: And that's what I'm interested in. Is there a difference between regulating a tribe or a reservation and regulating someone who happens to be -- have some Indian blood? Official

McGill: Your Honor, I -- I would submit certainly not in this case. Congress here told us what it was doing. It was identifying a class of persons who had blood in common. That's at page 20 of the House report. It wanted to put the -- that class of people in the Indian community writ large.

Justice Thomas: I don't think that's what I'm asking. And I'll stop with this. What I'm asking is, assuming there is plenary authority for the national government to treat with or regulate tribal affairs and affairs on reservations or related to reservations, is there a difference when someone happens to be an Indian not on a reservation, not a part of a tribe, not associated with a tribe? Do we consider them the same, or do we consider them differently? Because that someone is also a citizen of the United States. And I'm asking you, are we to just put them all in one ball simply because you can regulate tribal affairs?

McGill: No, Your Honor, because, you know, at least in Mancari itself, it recognized that the -- that the hiring Official 1 preference there was limited to tribal Indians. And, there, the Court recognized that Mancari -- that the hiring preference was a -- in a sui generis agency that had a special relationship in the governance of tribes qua tribes. And this, I think, is perhaps the -- you know, addresses the point of your question. There is a difference between regulating tribes as a polity and regulating persons who happen to have tribal blood as persons.

Chief Justice Roberts: Justice Alito? Justice Sotomayor, anything further?

Justice Sotomayor: You're not suggesting, but I think you may be, that Congress's power is only with respect to tribes and not Indians? They can't regulate the relationship between Indians and others, whether they're on the tribe or not? So all those laws I read about previously at the founding, they were unconstitutional to start with?

McGill: Your Honor, I --

Justice Sotomayor: Because they had nothing to do with reservations. They had to do with individuals.

McGill: Your -- I think, you Official 1 know, some of the laws you cited, I think, have, you know, serious equal protection problems, including, for instance, there's a law that's still on the books that provides for the federal government to forcibly enroll Indians in boarding schools. That's 25 U.S.C. 302. So there are some serious equal protection problems in some of the cases that you cited --

Justice Sotomayor: That might be --

McGill: -- the statutes.

Justice Sotomayor: -- but that has nothing -- that doesn't talk to us about what you're suggesting in answer to Justice Thomas, which is that the plenary power is limited to dealing with tribes and not in -- not the treatment of individual members.

McGill: What I was talking about with Justice Thomas, Your Honor, is how -- the -- the difference of a political classification and a racial classification. And I -- the -- the -- our submission is that a classification is political when it -- when it regulates the tribe's, you know, sovereign interests, which is to say regulating the tribe as a polity. When it regulates Indian land, its treaty rights -- Official

Justice Sotomayor: So you're saying yes, they can't do only -- only individuals if it has to do with the limited sovereignty question? Is that what you're saying?

McGill: As an equal protection matter --

Justice Sotomayor: Okay.

McGill: -- whether it --

Justice Sotomayor: I understand your argument.

Chief Justice Roberts: Justice Kagan?

Justice Kagan: I'm not sure I do, so I'm going to continue on the same vein. We have a long history of cases where we've understood legislation relating to the tribes as -- as political in nature and not as racial. I think you have one case, which is Rice. And so I want to, on the one hand, say what do you do with this long line of cases which has consistently said, when you regulate the tribes, you're regulating political entities? And then, on Rice, you know, a very different situation. Number one, a Fifteenth Official 1 Amendment case not involved here, right to vote, but even more important than that, really, the classification did not relate to a tribe; it related to some centuries-old affiliation with Native Hawaiians, which was much harder to understand as a current-day political entity. So -- so I guess I think Rice doesn't do much for you, and then all these other cases really knock the legs out from this argument, and I'm wondering whether you would comment on that thought.

McGill: Sure. Let me start with Rice. I think Rice does explain those -- that long line of cases that you refer to. It cites them, you know, I think, at page 519. It cites Moe, Fisher, Antelope. This is the line of cases that I think you're referring to, and these are cases that deal with tribes' sovereign interests in Indian lands, treaty rights -- that's the fishing vessel case -- the ability of Indians to govern themselves -- that's Fisher -- and its internal affairs. That is the -- that is the line that -- that Rice drew and how Rice understood Mancari and the line that Mancari itself drew. Official 1 This -- this distinction that I'm drawing is rooted in Mancari itself because Mancari says that it would be a much more difficult question if the hiring preference there extended to the whole of the federal government.

Justice Kagan: I mean, Mancari is such a different sort of case, right? Mancari is Indians are -- are -- are -- on -- in a long list of other racial classifications. It was quite clear that -- that was the BIA one, is that right?

McGill: Yes, that's correct.

Justice Kagan: Yeah, okay, I'm sorry. I was -- you -- I was mistaken. But I -- I guess, again, I'm sort of struggling with how different the classification in Rice was to the classifications here.

McGill: So I -- I understand the question, Your Honor. Rice, this -- this was, you know, the -- at the core of the Rice decision. Rice starts by assuming what it calls your premises not established in our case law, both that Native Hawaiians should be treated as an Indian tribe and, further, that Congress delegated to the State of the -- Hawaii the Official 1 power to regulate them. That -- that -- the Court assumed that, assumed that they are an Indian tribe, that Hawaii had the power to regulate, and then it held that the tribe -- that Hawaii or Congress could not regulate a tribe in this way because it was regulating the affair of a state, not the tribe's own self-government. And I think, you know, the -- the point I -- further point I would make about Rice is that Rice -- the -- the -- the statute there had a much closer tie to self-government. It was the Office of Hawaiian Affairs. It had a much closer tie to self-government than the Indian Child Welfare Act.

Justice Kagan: Well, the first thing you need for self-government is, you know, a -- a functioning polity. And Congress is very clear in this statute that it thinks that this statute is critical to the continuing existence of the tribe as a political entity. And that's, in fact, one of the reasons it passes this statute, is the political entity is itself being threatened because of the way decisions on the placement of children are Official 1 being made. So I -- I guess I can't imagine a -- a -- a -- a statute that's more wrapped up, given -- given the terms and given what we know about what Congress was doing, is more wrapped up in the continued flourishment of political communities.

McGill: Your Honor, the placement preferences do not affect tribal membership. You can be a member of the tribe wherever you are placed. And it is, you know, the fact that tribes often do unilaterally enroll children regardless of where they are placed. The further point I would make, Your Honor, is that embedded in -- in the -- the question is -- is a premise that tribes have a proprietary interest in these children. And I have to reject that premise. Tribes --

Justice Kagan: Well, this is Congress's understanding of what it was doing, you know, and, again, this goes back to Justice Gorsuch's view of you can question the policy, you cannot question the policy, but the policy is for Congress's to make. And Congress understood these Official 1 children's placement decisions as integral to the continued thriving of Indian communities, and Congress had a different view of the costs and benefits of how these decisions were being made. And that's not something that we can second-guess, is it?

McGill: It is under the Constitution, Your Honor. I -- they -- the -- the -- the -- the Congress does not have the power to treat these children as property of the tribes --

Justice Kagan: We -- we can second --

McGill: -- because of their ancestry.

Justice Kagan: -- we can second-guess things under the Constitution if you have made a case about an equal protection violation or some other constitutional violation.

McGill: Right.

Justice Kagan: But what I'm suggesting is that just the idea of standing up there and saying this has nothing to do with the continued thriving of Indian political communities, that's a judgment for Congress to make. Official

McGill: There -- I want to be clear about this. There was a real problem that -- that Congress was trying to address. We're not denying that there -- the existence of a problem. But the means Congress chose are impermissible. Two wrongs do not make a right here.

Justice Kagan: Thank you, Mr. McGill.

Chief Justice Roberts: Justice Gorsuch?

Justice Gorsuch: Counsel, let's put aside your equal protection complaints, which is what I understand the heart of your response to Justice Kagan. On the Article I argument, you argued this whole area is outside Congress's control. All right? At least that's how I understood it going in. But I'm now wondering -- I am confused by your argument. Do you acknowledge that Congress has some off-reservation or off-tribal land power --

McGill: Congress can regulate --

Justice Gorsuch: -- under Article I?

McGill: Sorry to interrupt. Official

Justice Gorsuch: Uh-huh.

McGill: Congress may, under the Indian commerce power, regulate commerce with Indian tribes wherever it occurs.

Justice Gorsuch: So -- so you agree, for example, with our precedent going back to 1865 that says, in reference to any Indian tribe or any person who is a member of such tribe, is absolute without reference to the locality of the tribe or the member of the tribe with whom it's carried on? You agree with that?

McGill: I'm not exactly sure which case you're referring to, but I agree with the --

Justice Gorsuch: Holliday. Holliday.

McGill: -- I think the -- pardon?

Justice Gorsuch: Holliday.

McGill: Right, there's equal protection problems there, but yes, yes.

Justice Gorsuch: I'm asking you to put that aside. So -- so Congress can regulate off-reservation?

McGill: It can regulate commerce with -- with Indians off-reservation, yes.

Justice Gorsuch: Okay. And would you Official 1 have us -- if your view of commerce is that narrow, as -- as -- as portrayed in your brief, what happens to Congress's power to regulate healthcare for Indians off-reservation? That's a major part of Title 25. Would that go?

McGill: I -- I -- I don't think our -- our view of commerce is any more limited than the Court described in Lopez. So I -- I would --

Justice Gorsuch: So that might go?

McGill: No, I don't believe so. I -- I --

Justice Gorsuch: That would stand? They could regulate healthcare for Indians off-reservation? Yes or no?

McGill: I think, to the extent that it is a -- you're regulating articles of commerce, it comes within the -- the heartland of --

Justice Gorsuch: Health -- healthcare counts?

McGill: It count -- it comes within the heartland of how Lopez defined commerce as I understand it.

Justice Gorsuch: Healthcare counts, Official 1 but this doesn't?

McGill: This is treating children as property.

Justice Gorsuch: Forget about the equal protection argument for a moment.

McGill: No, but it -- it goes to the commerce.

Justice Gorsuch: Counsel, if I -- so commerce includes healthcare but not education, is that -- and -- and -- and -- and -- and child rearing, is that -- is that your view?

McGill: No. It's -- you inserted education. But our position is that the commerce power does not extend to child placement decisions.

Justice Gorsuch: So -- okay. So let's talk about that. If we've put aside the off-reservation, so this really has to do with something about family law, I -- I -- I take it, the core of your complaint then?

McGill: This -- this is a family law case, Your Honor.

Justice Gorsuch: And that's the core of the problem in your view, that Congress can't regulate family law matters for Indians Official 1 off-reservation?

McGill: I think that the core of the problem is, if this is within Congress's authority, then there is nothing that cannot be regulated by Congress if it touches upon Indians.

Justice Gorsuch: How about the fact that the federal government does lots of other family law mediation between sovereigns, the Parent Kidnapping Act, for example, domestically with respect to disputes among states, Congress speaks there. And, as Justice Sotomayor has mentioned, when there's a dispute between sovereigns, foreign sovereigns, it speaks there and we don't question its authority to do so. Wouldn't it be a little odd to think that it couldn't do the same here?

McGill: With respect to the latter point, Congress, of course, has power to enact laws to implement treaties, and so I -- I think the Hague Convention-type legislation is unremarkable. I think Congress acts in this --

Justice Gorsuch: How about the Parent Kidnapping statute? Official

McGill: I'm -- I will confess to be -- not being familiar with that one. But, if you look at perhaps the --

Justice Gorsuch: All right. Well, we'll -- we'll put that aside then if you're not familiar with it. You're saying it would be possible to do it under the treaty power. What if Congress tomorrow adopted a treaty with the tribes that replicated ICWA? Would that be within its power?

McGill: It would perhaps -- I -- I think it perhaps would be within its Article I power.

Justice Gorsuch: That's my question, yeah, it would be. Okay. And how about if it did it under the Spending Clause? That -- could that be within its Article I power?

McGill: Well, that's how Congress regulates the states in the Multi-Ethnic Placement Act, and --

Justice Gorsuch: So it could do these things under Article I. You're just complaining that it's done -- being done under the Indian Commerce Clause?

McGill: I think that that is our Official 1 argument. We're not saying that Congress is powerless in this area. Congress has power, certainly, through the -- the Spending Clause to do any number of things with respect to state -- how states govern themselves.

Justice Gorsuch: When it comes to placement of children, is it a little anachronistic to think that states have some particular sovereign interest here when many of them did not involve themselves at all in placement matters directly until the 1960s? It was mostly done privately for most of the nation's history.

McGill: I don't know that I would describe it as anachronistic, but I think it -- the fact that things were done privately does not change what this Court has said about the state's primary role in the area of child custody matters.

Justice Gorsuch: How about the fact that the federal government has been historically involved in family law matters with respect to Native Americans for a long time? As Justice Kagan pointed out, it passed this statute in -- in -- in kind of -- to remedy its Official 1 prior actions in this area with respect to boarding schools and the displacement of Native American children. So could it -- could it have done the boarding schools, or is -- you're arguing that that would have been improper too?

McGill: I -- I think the boarding schools statute requiring the -- or permitting the forcible enrollment of Indian children in boarding schools without the consent of their parents is obviously unconstitutional.

Justice Gorsuch: Under Article I?

McGill: Yes, because it has nothing to do with commerce in my -- would be my submission.

Justice Gorsuch: Okay. And then back to Justice Kagan's questions, if commerce does include things essential to Indian self-governance, and I think you've conceded that, tribal lands, tribal governmental arrangements, I guess I'm struggling to understand why -- why this falls on the other side of the line when Congress makes the judgment that this is essential to Indian self- -- preservation of -- of Indian tribes.

McGill: The -- the power that has Official 1 been recognized is the power to effectuate Indian self-government, which is the power of tribes to make their own laws and be ruled by them. And ICWA does not affect tribes' ability to make their own laws. It doesn't affect their ability to be ruled by them, except with respect to Section 1911(a), which provides for exclusive jurisdiction of children -- you know, pertaining to children who are resident on tribal lands.

Justice Gorsuch: Lastly, is there some irony to your position that you're here to vindicate states' rights? We have 23 states who've lined up on the other side. We've never had a state court, near as I can tell, in the 40 some years since ICWA was adopted complaining about this arrangement.

McGill: I don't understand that to be correct, Your Honor. I think there are state courts that have recognized that ICWA has -- it far exceeds Congress's --

Justice Gorsuch: Has any -- has -- have state courts held that this is unconstitutional? Official

McGill: There's the case -- the cases that held that it -- under what was known as the existing Indian family doctrine, that said that it would be unconstitutional as applied to a child who had no connection --

Justice Gorsuch: Right.

McGill: -- to a tribe.

Justice Gorsuch: Fair. But I'm not aware of anybody holding ICWA facially unconstitutional in the manner that you're asking us to do.

McGill: No, I -- I -- I would concede that no state court has -- has --

Justice Gorsuch: Gone anywhere --

McGill: -- done that.

Justice Gorsuch: Yeah. Okay. Thank you.

Chief Justice Roberts: Justice Kavanaugh?

Justice Kavanaugh: Earlier, in response to Justice Jackson's question about the legislative history, you said you had four responses. You got out one and two about the Cherokee, Seminole, and then the placement does not equal membership. I was interested in what Official 1 three and four are, if you remember the question.

McGill: I think I do, Justice Kavanaugh. The third point is that the -- that the placement -- to the extent we're talking about tribal self-government, which is to say the ability of tribes to make their own laws, the ability under Williams, reservation Indians, to make their own laws and be ruled by them, the placement preferences do not even suggest that any Indian child has to live on or near a reservation. And the fourth point, which is the most fundamental point, which is that embedded in this argument is that tribes have a proprietary interest in these -- in these children. And they are human beings. They are citizens of the United States and the states in which they reside. They are persons within the meaning of the Fifth Amendment. And they have liberty interests that the tribe cannot override simply by unilaterally enrolling them.

Justice Kavanaugh: On the equal protection issue, it'll be important for us to Official 1 figure out the scope and limits of Mancari. And I'm going to ask two hypotheticals and then ask you to explain what I think will be your answer. So, one, would Mancari justify a hiring preference for American Indians in other agencies beyond the BIA, such as the Treasury Department or the Justice Department, for example, in your view?

McGill: No, because, one, Mancari itself casts doubt on that possibility. And, two, there would be no tether to Indian self-government.

Justice Kavanaugh: Second, would Mancari alone justify a federally mandated preference for state universities, college admissions for American Indians, in your view?

McGill: No, Your Honor.

Justice Kavanaugh: And why not?

McGill: Again, because it would have no tether to Indian self-government. I think part of the flaw of the -- you know, the arguments on the other side here is that it -- it reduces to anything that is good for Indians, that could be characterized in that way or that the government in its paternalistic judgment Official 1 thinks might be good for Indians can be -- is permissible under their view.

Justice Kavanaugh: Well, wouldn't that be good for Indian self-government in the sense of ensuring additional, better education for American Indians? Why wouldn't that justification link up with tribal self-government?

McGill: It's too attenuated, Your Honor. Rice, I think, explains this. Rice draws this line between regulation of the tribes' internal affairs and the use of tribal classifications there and the use of tribal classifications in the affairs of the state. In your hypothetical, we're talking about the affairs of the state. And I think that, you know, the important point about Rice is that there -- there -- in that case, there was a -- not just a plausible, a fairly direct tie to self-government of the indigenous people. But the Court said Mancari could not be extended to that new context because Mancari was a limited exception based on the "sui generis" role of the BIA in regulating Indian tribes. And that's just simply not present in Official 1 your hypothetical.

Justice Kavanaugh: Thank you.

Chief Justice Roberts: Justice -- Justice Barrett?

Justice Barrett: Mr. McGill, I'd like to ask you about the commandeering argument. So I want to focus just on the active efforts provision for right now. I want to get a grip on how this works, you know. So that provision requires the parties seeking to effect a foster care placement or termination of parental rights to satisfy the court that active efforts have been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. And the government says, well, this applies to both private parties and state agencies. And so it's not directed at the state agencies in compelling government action, in compelling the state to take steps. How does this work? Do private agencies in the Brackeens' case -- I mean, do private agencies initiate these proceedings, or, really, is this something that falls on the Official 1 states?

McGill: I think, on the ground, it falls on -- on the states in the overwhelming majority of -- of -- of -- of cases. I mean, I can't speak to the -- to the whole of the United States and -- but my understanding is, in the overwhelming majority of cases, it falls on the states to do this. And that is the -- you know, of course, they are the ones that have the ability to do so.

Justice Barrett: Okay. Thanks.

Chief Justice Roberts: Justice Jackson?

Justice Jackson: Yes. So I -- I think there's an aspect of your Article I argument that really boils down to a fundamental question that comes up in the law a lot, which is who decides. Who decides whether regulation in this area counts for Indian self-government, promotes Indian self-government, has a sufficient tether? I keep hearing you say in response to many of my colleagues' questions that you think that regulation related to family affairs does not have a sufficient connection to Indian Official 1 self-government. But, in the actual legislative history of this -- of ICWA -- and I'm reading from the Federal Register -- Congress says that -- it -- it indicates that ICWA reflects its "concern about preserving the integrity of Tribes as self-governing sovereign entities and ensuring that Tribes could survive both culturally and politically." That's 81 Fed. Reg. -- Federal Register 38781. So it seems to me that Congress has made a decision that regulating in this area is important for preserving the integrity of tribes as self-governing, sovereign entities, and, therefore, I don't think it's sufficient for you to say to us that you think that that's not true. So tell me how we're supposed to decide based on your view of whether or not this is a sufficient tether, as opposed to what Congress has said about it.

McGill: I would -- first, I -- I guess I have two responses to that, Justice Jackson. First is I would look to this Court's cases that define the interest in Official 1 self-government, and I would start with Williams versus Lee, which defines it as the right or the ability of reservation Indians to make their own laws and be ruled by them. That -- that case has never been, you know, to my knowledge, limited or abrogated. And that is my understanding of how this Court defines the interest in self-government.

Justice Jackson: But why would that be our decision then? I'm still worried that that would be this Court displacing Congress's policy judgment around what counts.

McGill: Because the text of the statute and its -- you know, and its operative effect does not advance the objective there. The -- if the objective is preserving the existence of tribes, the third placement preference does nothing to effectuate that.

Justice Jackson: All right. Let me ask you another question. You have seemed to be very upset about Congress's exercise of plenary authority over Indian affairs. You say we need to look at it in a more narrow lens, I guess consistent with the sort of general understanding that Congress has limited Official 1 authority. What I'm a little bit confused about and concerned about is whether it's really correct that we have to look at it so narrowly, that is, the scope of Congress's authority as it concerns Indian affairs, when we have said over and over again that Congress has plenary and exclusive authority, and when the history of our Constitution indicates that the constitutional design was about ensuring, in a way, that the federal government had the authority over the tribal relations, tribal affairs, and not the states. It seemed to me that baked into the Constitution's structure related to this, outside of just the Indian Commerce Clause provision, is the notion that the federal government, you know, vis-à-vis the states was going to be taking charge of this, especially in light of the Articles of Confederation precedent. So, if that's the case, then what -- what would you say about the thought that rather than, you know, searching for, you know, what additional limits there are on Congress's Official 1 authority, we start with the premise that, with respect to Indian affairs, Congress has plenary authority and, therefore, as we've said in all of these prior cases, as long as it involves Indian affairs and Congress is making policy judgments, they have a constitutional basis for doing so?

McGill: Justice Jackson, if -- if the -- if this arises from the constitutional structure, as you suggested, then it has to be the United States Govern -- the -- the United States Government's regulation of tribes as on a government-to-government basis. That's the constitutional structure point. And if we're talking about regulating tribes as government -- governments, we are talking about regulating their residual sovereign interests, which are, as I described, in Indian lands, it -- their treaty rights.

Justice Jackson: Yeah, but do you dispute that there's a trust relationship? My understanding was that, yes, we're talking sovereign to sovereign but that as a part of that was the understanding that the United States was the greater sovereign, that it was Official 1 taking over the Indian sovereignty and, therefore, had a trust relationship that arose in that context and they were responsible for Indian affairs as a result. Do you dispute that?

McGill: We don't -- of course, we do not dispute the existence of the trust relationship. All we're saying is that the power that Congress exercises that has been described as plenary is limited in some way by the -- by the sovereign interests that --

Justice Jackson: So you're saying that Congress -- Congress can carry out and effectuate its trust relationship but only in the limited ways that you are now articulating?

McGill: No, Your Honor. I think what we're saying is that there -- you don't have to do anything with respect to -- the federal government's trust relationship with Indian tribes to recognize that that power does not extend to regulating the placement of Indian children in state courts.

Justice Jackson: Even if Congress has decided that -- that regulation in that area is necessary to prevent the extinction of tribes, Official 1 they can't do it, you're saying, pursuant to the trust relationship that you seem to concede exists?

McGill: Your Honor, we do not concede that -- that, for the reasons that I elaborated, that this is not a -- the -- the tribes do not have a proprietary interest in these children. They are also -- take a -- take YRJ. She is --

Justice Jackson: Can I just -- I'm sorry, can I just ask one more question? My time is short. With respect to commandeering, where Justice Barrett took you, do you have a case that is older than the early 1990s related to the commandeering principle? Is that the first time -- I tried to look back to figure out where anti-commandeering came from as a constitutional concept. And I'll tell you why I'm concerned about it, because I think it's relatively recent and I'm just trying to understand whether it even conceivably applies to an area in which we have already or long recognized that the federal government has this sort of plenary authority Official 1 because states were interfering with Indian affairs. And so it seems to me odd that we would suddenly say in this area using a relatively new anti-commandeering principle that the federal government can't do what it has long done in terms of taking control of this area away from the states related to Indian affairs.

McGill: Your -- Your Honor, the Court's anti-commandeering cases recognize that the doctrine arises from the structure of the Constitution and the Tenth Amendment. That was obviously recognized in -- fully by New York versus United States. But, as I recall --

Justice Jackson: In 1992?

McGill: But, as I recall, there -- there was a case called Coil that I think is from the 1920s, maybe 1925, that involved the federal government's dictating where Oklahoma put its state capital. And I think that was the earliest case I found that actually applied some version of the anti-commandeering concept.

Justice Jackson: But we don't have any anti-commandeering cases that -- that arise in the Indian affairs context? This would be Official 1 the first time?

McGill: I'm not aware of any, Your Honor.

Justice Jackson: Thank you.

McGill: I --

Chief Justice Roberts: Do you have a further --

McGill: I -- I -- I would, just except to the extent that Oklahoma, of course, arose from once upon a time being Indian territory.

Chief Justice Roberts: Thank you, counsel. General Stone. ORAL ARGUMENT OF JUDD E. STONE, II, ON BEHALF OF TEXAS

Stone: Thank you, Mr. Chief Justice, and may it please the Court: Congress cannot require states to administer a nationwide child custody regime. As far as the state is aware, this Court has upheld only three kinds of laws even under a plenary congressional power over Indian tribes: first, those regulating trade or implementing treaties with tribes in the ordinary, original Official 1 understandings of those clauses; second, those applying to Indians within U.S. territories or on Indian lands; and, third, those regulating tribal governments as such. ICWA far exceeds this plenary power, applying only to child custody proceedings in state courts off reservations. Even if Congress could establish such a scheme, however, it cannot order states to enforce it. ICWA issues a dozen commands to states or their officials. Each obscures federal accountability for ICWA, and each foists uncompensated costs on to states. Each is, therefore, prohibited under Murphy. And I welcome the Court's questions.

Justice Thomas: General Stone, it would profit us that if you would address your standing in this case, particularly since it seems that, to the extent that you're representing parents or potential parents, they can represent themselves, and I think it would be good to get an explanation of your standing.

Stone: Certainly, Your Honor. First and foremost, consistent with West Virginia versus EPA from last term, Texas is, in Official 1 fact, the regulated party, the party obligated to implement ICWA from beginning to end. As this Court put it in West Virginia, the fact that West Virginia and similar states were the ones who were required to cut emissions and otherwise alter their energy distribution, that was enough to leave "little doubt" as to their standing for the entirety of the Clean Power Plan. Second, Texas's -- Texas stands to lose substantial amounts of Medicare -- or, rather, Social Security Part IV-B and Part IV-E money. In 2018, Texas received $410 million underneath those parts. Those parts are expressly conditioned on Texas taking affirmative steps to comply with ICWA. And the regulations implementing those sections, 45 C.F.R. 1355.34 and 36, make clear in mandatory language that if Texas does not, in fact, do so, if any state does not do so, in mandatory language, the -- the relevant administrative entity shall withhold through a complex formula up to 42 percent of that -- of that $410 million. For Texas, that comes out to about $172 million for an agency with a $2.4 billion Official 1 budget, so a very significant amount. And then, finally, speaking as to their specific equal protection injury, aside from the fact that it costs us money to implement the equal protection violating provisions, for example, we have to determine whether or not an individual is an Indian child pursuant to the regulations and the statute. Aside from that, there's a unique conjunction of constitutional obligations here that because this Court has held in Adarand that the federal equal protection component of the Fifth Amendment and the Fourteenth Amendment's Equal Protection Clause essentially have the same commands, any command by the federal government that violates the Fifth Amendment, that imposes a mandatory requirement on states to essentially carry out that equal protection violative component, requires the states to violate equal protection. And that is a unique constitutional injury that Texas as a state, as an actor, suffers.

Justice Sotomayor: This is quite a theory you have. Every time that a state has to Official 1 interpret a federal law that might be unconstitutional, the state has standing even if that law hurts somebody else. That's what you're basically saying, because we would be complicit in the act of violating someone else's rights. That's how I hear your argument.

Stone: Certainly not, Your Honor. It actually is much narrower than that. So take a --

Justice Sotomayor: How narrower? You don't have -- Justice Thomas pointed out the Fifth Amendment in our cases are legion. You can't represent individuals who have equal protection claims. The parents are here before us. They can defend their own claims. I can understand your anti-commandeering, your anti-delegation claims. Potentially, that has to do with your expenses. But those other equal protection violations of being treated unequally belong to the parents, not to Texas.

Stone: Two components, Your Honor. First of all, Texas suffers a classic pocketbook injury when it has to actually implement -- Official

Justice Sotomayor: So you're saying exactly what I started with. You're taking the extraordinary position that anytime you have to enforce an unconstitutional law you're complicit and you have standing?

Stone: No, Your Honor. No. It's -- it results from a conjunction of a few extremely unusual components of these commands. One is -- and we can discuss this as part of the anti-commandeering section. We do not view these commands as permissible preemption under NCAA versus Murphy but as commands to the states. Those commands from the federal government --

Justice Sotomayor: That's anti-commandeering, so that's one factor. What's second?

Stone: The commands from the federal government themselves violate the Fifth Amendment's equal protection component. That equal protection obligation --

Justice Sotomayor: As it applies to the individuals?

Stone: Yes.

Justice Sotomayor: Okay. Official

Stone: That's correct.

Justice Sotomayor: And we're back to what I said before. Now what's your third?

Stone: Your Honor, because -- because that Fifth Amendment equal protection violation is coterminous with Texas's equal protection requirements, if Texas implements the Fifth Amendment violation, it itself violates the Fourteenth Amendment because they are, in fact, coterminous.

Justice Sotomayor: We're back -- we're back to my first point.

Justice Barrett: General Stone, can I ask you about the anti-commandeering point? Because I'm trying to figure out how this works. So the question that I asked Mr. McGill, is this, the active efforts provision, one that imposes an obligation on the states alone, or is it something that could also fall on private agencies or private parties?

Stone: Well, the final rules preamble helps solve this question as specifically to -- to the active efforts provision, where the final rule states that the active efforts provision in ICWA was intended to Official 1 make states provide substantive services to Indian families. It comes out in -- in express language to make states, in fact, incur that cost to provide social services. That's the heart of what Murphy was cautioning about, is that specifically a command best understood as requiring a state to do a thing, especially when it either hides political accountability or foists uncompensated costs on the states, is in the heartland of the anti-commandeering doctrine. This, under that second branch, is an easy case for purposes -- for purposes specifically of active efforts. We have other provisions we're challenging with other bases I'd be happy to discuss if -- if you're curious, Your Honor.

Justice Barrett: Well, recordkeeping seems to go a bit farther than some of our other cases. We reserved that in Printz.

Stone: This Court reserved it in Printz with some very specific caveats, I agree, Your Honor. Specifically, the Court said it might, in fact, be permissible, given that -- and as Justice Scalia noted, it was unclear in that case -- given that those courts regarding Official 1 the naturalization oaths may well have volunteered essentially to that jurisdiction. And then it becomes a case of, if the courts are willingly serving for purposes of doing this federal thing, that then it's a much smaller intrusion, commandeering or not, for them to have an ancillary paperwork burden. Of course, states aren't volunteering for ICWA in the first place. And I think the thinness of the historical evidence specifically on this point comes from the seven laws that Respondents cite. Of those, two of them are patently unconstitutional on other grounds. One is one of the Alien and Sedition Acts. Another is essentially a law that required a court make a determination on pension eligibility that was reviewable by an executive branch. So those tell us nothing about the Constitution because they're riven with a plain constitutional violation. Two more essentially have nothing to do with states at all, or one more has nothing to do with states at all, which is the Homesteading Act of 1862. Does not mention state courts or state governments in any way. Official 1 Cannot possibly tell us anything about anti-commandeering. Two more past that make it permissible but not mandatory for states to accept bail regarding certain federal fugitives or federal prisoners. And the only two left are the same two that are mentioned in Printz regarding recordkeeping for naturalizations, with -- which this Court looked at as essentially not enough to determine the question even there. So the laws they give as historical evidence are far from something to demonstrate even what Printz showed, let alone enough generalized no courts component.

Justice Jackson: But, Mr. Stone --

Justice Gorsuch: Counsel, before you --

Justice Jackson: -- that assumes that anti-commandeering applies in this entire area. And can you speak to my concern about that? I understood from New York versus United States that anti-commandeering rests on the premise that Congress has the power to regulate individuals and not states, which may well be true as a general matter, but, in terms of Official 1 Indian affairs, we have long interpreted the Constitution to give Congress plenary authority precisely because the Constitution seems to be structured to give Congress, the federal government, power at the expense of the states with respect to Indian affairs. It's sort of like the -- the -- the -- the background principle of all of this was that states were getting involved in Indian affairs, and the Constitution says no, Congress can -- is the one that gets to direct it. I don't understand why wrapped up in that authority isn't Congress's authority to -- to direct the states to stay out of the way or to do whatever it is that's necessary to ensure that, you know, Indian affairs, Indian sovereignty is protected?

Stone: Two answers, Your Honor.

Justice Jackson: Yes.

Stone: One coming from this Court's case law and then one from the original materials. One -- and this is the nearest analogue of which I'm aware -- of course, this Court was brought an argument that under the Indian Commerce Clause was a sufficiently Official 1 plenary power to breach state sovereign immunity. That's Seminole Tribe, and this Court rejected that. It not only rejected that argument, it overturned Union Gas in the process. So this Court has recognized -- it actually made this explicit in Delaware versus Weeks -- there may be a plenary power, but it is not absolute. And the -- the lack of that absolute component has been used -- has been sort of applied for specifically preserving the sovereign prerogatives of the states before.

Justice Gorsuch: Counsel --

Stone: That's the --

Justice Gorsuch: -- if I might interrupt, I'm sorry, but just -- I want to understand your commandeering argument. It seems like it's centrally related to two rather modest aspects of ICWA. One is the recordkeeping requirement, which you discussed with Justice Barrett, is that right?

Stone: That is one of them, yes.

Justice Gorsuch: And the other major one that you -- you cite is -- is -- is -- is the active efforts provision. Official

Stone: There are others we also challenged. Those are two of the most major, we agree.

Justice Gorsuch: Okay. And -- and -- those are the major ones. All right. And with respect to active efforts, I'm not sure I heard an answer to Justice Barrett's question, and her question was, does it apply equally to whomever is bringing the -- the action in state court, whether it's the state as it is sometimes or private parties as it is sometimes? That active efforts requirement, does it apply to both equally?

Stone: To both, yes; equally, no. And so, to both, yes, it is under some circumstances that private parties have to make these efforts. Typically, that is the state, as, again, was acknowledged in the -- in the final rule.

Justice Gorsuch: Typically because it's the party active -- starting the proceedings, right?

Stone: Typically, yes, but also --

Justice Gorsuch: But not -- not Official 1 always?

Stone: Not always, no, that's correct. But also, later in the active efforts provision, recall, again, in this -- in Murphy, the Court said the -- the way that the Court looks at it is, is this better looked at as a regulation of the sovereign or instead as something regulating private.

Justice Gorsuch: Okay. I got it.

Stone: The active efforts provision specifically speaks to what a state court may do with its official power.

Justice Gorsuch: Right.

Justice Alito: May I come back to the question whether the anti-commandeering doctrine applies at all when Congress is exercising its power over Indians? Excuse me. Suppose Congress enacted a law ordering the states to enact legislation relating to Indians. Would that be a violation of the anti-commandeering doctrine?

Stone: I think it'd be -- I think it would be about the most direct one conceivable, Justice Alito.

Justice Gorsuch: Counsel, if we could Official 1 turn to Article I, we've had many variations of this -- this argument. We've heard that it has to relate strictly to commerce. We've heard, no, later today we heard, no, it can be off-reservation. It can be family law sometimes. It just can't be this combination here. What -- what is -- what exactly are you asking us to adopt here? What is beyond the Article I power?

Stone: Certainly, Your Honor. So, to clear up a -- a few things that you first mentioned, we are not claiming that there is a domestic relations exception generally. We're not saying that the powers that Congress enjoys must only be exercised on reservations or similarly.

Justice Gorsuch: Okay. So -- so Congress can act off-reservation sometimes?

Stone: Yes, Your Honor.

Justice Gorsuch: Okay. And it can do domestic relations sometimes?

Stone: Yes, Your Honor.

Justice Gorsuch: Okay. So what -- what's -- what's the magic broth that makes this Official 1 somehow a problem having conceded both those points?

Stone: Certainly, Your Honor. It's because of the three components of what this Court has recognized as plenary power. The first, again, is, for example, the implementation of treaties or acts of -- that would be ordinarily understood in commerce. This Court has described, for example, Congress as having a plenary power when Congress has prohibited alcohol sales to tribes. Of course, forbidding the sale of alcohol or forbidding any other sale of good would just be an ordinary regulation of commerce.

Justice Gorsuch: But you -- we disavowed that argument, that it's strictly related to commerce. So, again, what -- what is the rule you would have us write? I'm just -- I'm just trying to figure out, how do I write the opinion?

Stone: Certainly, Your Honor. There's three components to the plenary power. One are the ordinary applications of the various powers in the Constitution --

Justice Gorsuch: Right. Official

Stone: -- which encompass more than just --

Justice Gorsuch: But this goes beyond that, so let's -- where is the limit?

Stone: The limits come from several of these Court's cases. One, this Court has emphasized that Congress has special power. This comes from Tiger versus Western Investment Co. and Kagama itself, that the -- the -- the government has a power, specifically speaking, on regulating Indian members or, rather, Indian tribes on Indian lands themselves.

Justice Gorsuch: Well, but we've -- we've -- we've said that's not the limit here either. So, again, counsel, you've said it doesn't have to be on reservation and it can be domestic relations. So what's -- how do you write this?

Stone: Respectfully, Your Honor, Congress may act if it -- if it is in one of three essentially parcels of power. One of them isn't related to geography at all, for example, the exercise of the treaty power, the exercise of -- of the commerce power. Of course, the exercise of the territory clause Official 1 would be geographically related. But, in this first bucket, there is not a geographic component. The second, there is one, because, as this Court recognized, the power goes specifically to the soil and the people within these limits speaking of Indian country. The third is the power that Congress has essentially to act on Indian governments as governments. So, for example, expanding or investing them with tribal immunity, extending or foreclosing their ability to prosecute crimes or for other sovereigns to prosecute crimes on their land. If Congress is acting pursuant to one of those three components, then it falls comfortably either within the Congress's enumerated powers as originally understood or the plenary power, which we are not asking this Court even to contract, let alone to overturn.

Justice Kagan: General, I'm -- I'm curious as to where you get those three categories?

Stone: They're a normative description of what this Court has, in fact, Official 1 done or --

Justice Kagan: I mean, there's no place --

Stone: -- a description, rather, of what this Court --

Justice Kagan: -- there's no place where we've said these are the three categories that define what the plenary power means, correct?

Stone: There are two places where Congress has specifically stated that there is a special power that track the second and third categories that I'm describing. One, for example, being for the third category regarding governments, being that the -- the tribal power -- the U.S. Government enjoys essentially a complete power that the -- that tribal immunity or tribal sovereignty exists at Congress's sufferance. Of course, to say something exists at Congress's sufferance is to say they have something like an absolute power.

Justice Kagan: Yeah, I guess the only point I was making, that I'm sure that we can find places where the Court has said that Official 1 Congress has power over each of these areas, but I don't think you'll be able to find a place where the Court has said what the plenary power means is these three things and these three things alone and the plenary power doesn't extend further, because, after all, the Court has said -- I mean, I -- I don't really believe in -- in reading our opinions like statutes. But, when the Court uses the phrase "plenary power" tens and tens of times over decades and decades, I mean, plenary means unqualified. It means all-encompassing. Now I don't doubt what you said earlier, that it might have an occasional exception here or there, but it strikes me as a very odd way to think about plenary power to just start, like, constructing categories and -- and saying everything else is left out when we've said over and over everything, except really rare things, are in.

Stone: Two points, Your Honor. First, we agree that we are describing a power that has already left Article I constitutional bounds. Our core exhortation is, because it is already beyond the original understanding of the Official 1 powers Congress has, that this Court shouldn't extend it further. This Court has not come out and said these are the three categories and there shall be no more.

Justice Sotomayor: Original meaning we have Justices Marshall and Story basically using very broad language saying plenary powers means all powers in every intercourse with Indians. And we have a series of laws that were not limited in the way that you talked about. And we've had series of laws for 200 years not limited. You are excluding from that list all of the trust obligations that include all of the things that Justice Kavanaugh asked about you, health clinics, education, marital relations, Indian women who are married to white men. These are all outside the three areas you've talked about, but Congress has legislated in them, and, certainly, as far back as the founding of our Constitution, everyone understood plenary meant anything that had to do with the intercourse with Indians, and then, clearly, with the trust obligation, the United Official 1 States took, as your colleague said at the beginning, took over this dependent sovereign nation and its members.

Stone: Your Honor, I'd like to begin with your observations regarding the trust relationship and then go backwards to Story and those uses of intercourse, if you will. The -- regarding the trust obligation in Menominee Tribe of Wisconsin, or Menominee Band of Wisconsin Indians, and Jicarilla Apache Nation, this Court made clear that, of course, the Court has sometimes described a guardianship and ward relationship, a trust relationship. It has used a number of essentially metaphors to describe the relationship between the United States and the tribes. But the obligations underneath that trust -- this is a -- this is a core component of Jicarilla -- come from positive law. They come from statutes which dictate obligations by the United States. We certainly don't doubt that. However, they do not have a common law component where because there is, in fact, a trust, a trust relationship, that, therefore, the United Official 1 States has plenary power to do as it wishes to Indians wherever. So regarding the historical understanding of intercourse, speaking specifically about Justice Story's commentaries, which my friends on the other side cite, he speaks about commerce and then speaks about trade and intercourse and compares intercourse with navigation, just as this Court did in Gibbons v. Ogden, which is to say, in Story's example, a rule, for example, about how foreign vessels are to dock in the United States, control over channels of commerce. At no point did Story comment on there being a general Indian affairs power.

Justice Gorsuch: Counsel, I'm sorry to interrupt, but this -- this new rule would -- would, I think, take a huge bite out of Title 25 of the U.S. Code, which regulates the federal government's relationship with -- with tribal members. There are healthcare provisions that Congress promises to Native Americans off reservation. That doesn't seem to fall in any of your buckets. Congress has permitted tribes Official 1 to exercise power over environmental regulations that have indirect effects off reservation. That would -- that would seem to go too. We have laws that promise Native Americans access to sacred sites off reservation and religious liberties off reservation. That -- that would seem to go. And I'm not even sure maybe the liquor sale, those old precedents, but maybe that's commerce. I don't know. But there would be a lot that would be bitten out of Title 25. We'd be busy for the next many years striking things down.

Stone: I don't think that's the case, Your Honor, and I'd like to start with Morton, which I think provides the first clue that that's not the case. When Morton was describing why the kind of preference that it -- that it recognized would not violate equal protection, was a case that's --

Justice Gorsuch: I'm not talking about equal protection. I'm talking about Article I.

Stone: I -- I -- I understand, Your Honor, but it was describing that virtually Official 1 every Indian preference in Title 25 depended on a conjunction of an identifiable tribe of recognized Indians on reservations.

Justice Gorsuch: But that's not -- that's simply not true. I mean, you can state that at the podium, but, if I look through Title 25, there are healthcare promises to individual Native Americans who live in urban areas.

Stone: So, first of all --

Justice Gorsuch: Let's just take that one. Gone?

Stone: First of all, Your Honor, that strikes me as commerce, at least -- at least as this Court has --

Justice Gorsuch: Healthcare is ---

Stone: -- construed interstate commerce.

Justice Gorsuch: So we're back to that. Okay. So healthcare is commerce. It's just this isn't --

Stone: First of all --

Justice Gorsuch: -- whatever this is.

Stone: No, child adoptions are not commerce. They simply are not. The provision -- Official

Justice Gorsuch: But health -- but healthcare is?

Stone: Yes, Your Honor.

Justice Gorsuch: Okay. And -- and environmental laws allowing regulation off-reservation effects, that's -- that's -- that falls within commerce, but this doesn't?

Stone: Entirely plausible. It's a function of either interstate or -- either interstate commerce or --

Justice Gorsuch: How about -- how about religious liberties and -- and the right to access sites off -- off-reservation? Is that commerce?

Stone: Not commerce, Your Honor, but that sounds especially if there's a discriminatory component in the courts --

Justice Gorsuch: No.

Stone: -- or in the commerce -- Congress's Section 5 powers.

Justice Gorsuch: No, it's just promising -- no, you're -- no, the law just says you get access to -- to places, and it preempts state law.

Stone: Then there might be a Official 1 Title --

Justice Gorsuch: That might ---

Stone: There might be an Article I problem for the same reason why there was in RFRA.

Justice Gorsuch: Like I say, I think there's a lot that you're asking us to -- we're going to be busy, counsel, if this is the line we're going to draw. Very, very busy.

Stone: We are not requesting this Court shrink the plenary power it's recognized one bit. Everything that has been upheld previously on the same bases it's been upheld previously is --

Justice Gorsuch: And do you agree with your colleague on the -- who spoke earlier that Congress could effectively do this same law, maybe with a few nibbles around the edges, commandeering, whatever, but could -- could -- could adopt something like ICWA through the treaty power and through the Spending Clause?

Stone: I think the problem on the treaty power side is it would provoke the question this Court left open in Bond, which is the question of whether or not Congress may Official 1 legislate pursuant to a treaty in a way that would exceed its Article I powers or other limits in the Constitution. I don't know what the answer to that question is, Your Honor, but that would be squarely presented at that point.

Justice Gorsuch: Spending Clause?

Stone: Spending Clause, at least the equal protection problem would remain at least for that -- for purposes of the Spending Clause. It would get around the anti-commandeering problems --

Justice Gorsuch: So this is a magic words problem we have here today?

Stone: Certainly not, Your Honor. Congress is not free as a matter of fact to regulate 50 state child -- 50 state child adoption proceedings on the basis of race regardless of what it calls it.

Justice Barrett: General --

Justice Sotomayor: Can I ask you a question? I'm going to list a series of statutes, and I just want a yes or no, does Congress have the power to pass this statute, and, second, why isn't it or is it anti-commandeering, okay? Official 1 The statute protecting service members from default judgments, including in child custody cases, which requires notice, appointment of counsel, stays of proceedings, and in some cases, a setting aside of judgment. Does Congress have the power to pass that?

Stone: Only under anti-commandeering problems or Article I?

Justice Sotomayor: I said after -- under Article I.

Stone: Under -- oh, under Article I, yes, that's fine for Article I purposes.

Justice Sotomayor: Now you think it's a violation of the anti-commandeering statute?

Stone: Yes, Your Honor.

Justice Sotomayor: The statute on inter-country adoptions, which says that a state court must verify certain evidence and make certain determinations. Inter-country adoptions, foreign power, right? Yes? Is this anti-commandeering also?

Stone: May I?

Chief Justice Roberts: Yes.

Stone: I would have to know more Official 1 about the treaty --

Justice Sotomayor: That's a --

Stone: It would not violate Article I because of the treaty.

Justice Sotomayor: I just said to you it says that a --

Stone: I would have to know more details.

Justice Sotomayor: -- that a state court must verify certain evidence and make certain determinations before it permits the inter-country adoption.

Stone: My first instinct is that that is right on the line. The verify component sounds as though it would be anti-commandeering.

Justice Sotomayor: I've gone through -- your light is on. I'll wait to finish my examples.

Chief Justice Roberts: Thank you, counsel. Justice Thomas? Justice Alito?

Justice Sotomayor: All right. Then the -- the -- 17 -- (Laughter.) Official

Justice Sotomayor: -- the 1799 Trade and Intercourse Act, which requires state courts to take proper bail for certain individuals arrested by federal authorities. Can the government do that to state courts?

Stone: Article I, yes. Anti-commandeering, no.

Justice Sotomayor: Okay. This 1834 Trade and Intercourse Act that sets the standards of proof in property disputes involving Indians?

Stone: Certainly, Your Honor, in part because those were specifically applying to either United States territories or, as this Court observed in Castro-Huerta, on Indian reservations, which at that point were understood functionally like federal enclaves. That's completely fine.

Justice Sotomayor: How about a law from 1888 setting forth certain evidence that an Indian woman could use in state court to prove that there was a common law marriage? Could they do that?

Stone: I don't know, Your Honor. I have to see more about the statute because, Official 1 for example, if there were a geographic component and a tribal component, that might justify it.

Justice Sotomayor: Assuming there's not?

Stone: Assuming there's not --

Justice Sotomayor: Well, anywhere in any state court --

Stone: -- I don't think so.

Justice Sotomayor: -- they -- they don't have Article I and they -- it's anti-commandeering violation, both?

Stone: It's that it would be an anti-commandeering violation. It might -- depending on the rest of the statute, it may or may not be an Article I violation.

Justice Sotomayor: How about a statute that says that state law enforcement can enforce immigration law so long as they follow certain minimum procedures? Why isn't that anti-commandeering?

Stone: Because it says "can." It allows -- the statute allows the states to choose to do so or not.

Justice Sotomayor: All right. Official

Stone: For the same reason that if Congress says you may regulate or we will but does not force states to do so. That's not a commandeering violation.

Justice Sotomayor: Thank you, counsel.

Chief Justice Roberts: Justice Kagan?

Justice Kagan: General, I thought I'd just give you a chance to respond to a reaction I had to your brief, and the reaction was that there is an extraordinary amount of Texas's view of policy in your brief. So I'll just read you a few things. You say that ICWA subordinates the needs of Indian children, that it results in chaotic and often tragic outcomes, that it returns children to unsafe environments, that it excuses physical abuse, that it contributes to the alarming statistics surrounding Indian child welfare. I could go on. I haven't really even touched the surface. Now this may be Texas's view. It's -- it's not a view that any other state has told us its -- it shares. I don't know whether Texas's view are right or not. I don't have any policy Official 1 views in this area to speak of. I don't know enough. I mean, the point is courts don't know enough, really. This is a matter for Congress, isn't it? It's not a matter for the courts to decide whether ICWA does these terrible things or whether ICWA doesn't do any of them. Isn't that really Congress's judgment that we're supposed to respect?

Stone: Two parts, Your Honor. The first is I agree that those observations, those -- those statements of Texas's views have nothing to do with non-delegate -- our non-delegation anti-commandeering or Article I challenges whatsoever. Those live or die on various legal principles that are not those.

Justice Kagan: They're just atmosphere?

Stone: They're in part atmosphere, yes, Your Honor, in part because there's a dispute about whether or not equal protection -- the equal protection standard here is rational basis or strict scrutiny. Now my friends on the other side haven't attempted to defend this as a matter of Official 1 strict scrutiny, and so, to the extent that Congress is describing that it has a certain purpose, the fact that that purpose has been woefully unmet by the actual effects of ICWA is relevant for purposes of this Court's albeit quite forgiving rational basis standard.

Justice Kagan: Thank you.

Chief Justice Roberts: Justice Gorsuch?

Justice Gorsuch: You agree that Congress could do something like ICWA if it were limited to children on reservations?

Stone: Absolutely, Your Honor. If it were limited to something -- if it were only applying to tribal members on tribal reservations.

Justice Gorsuch: Okay.

Stone: At least for tribal courts, it could give full jurisdiction to them.

Justice Gorsuch: How do we deal with the fact that -- you know, we -- we talked about reservations throughout this conversation and in the briefs. But Indian land throughout the western United States, as I'm sure you appreciate, after the post- -- after the Official 1 allotment era is full of checkerboards, and so you're going to have children who may be on allotted Indian land or next door to it, not on allotted Indian land. And I -- part of what you're doing -- your -- your argument would encourage is for people to keep their children on Indian land, not necessarily allow them to be foster-cared off Indian land, create a disincentive and also just a massive amount of confusion if everything depends upon the happenstance of geography.

Stone: Congress certainly has the power, if it wished, to be able to take new lands and essentially add them to allotments or reservations or to sort of deem for purposes of Article I a -- you know, an Indian land or a place of Indian land. This is the reservation or relevant Indian lands for purposes of what we're discussing, how we're acting upon an Indian tribe. It might be the case that Congress actually has to appropriate money to take title to some of those provisions, but that would be the sort of administrative work that Congress can still do. Official

Justice Gorsuch: The -- the checkerboard problem just would persist?

Stone: Unless Congress took actions --

Justice Gorsuch: Yeah.

Stone: -- to fix it, which it easily could with its enumerated powers.

Justice Gorsuch: And then, finally, it -- it -- it does seem like a lot of this focuses on -- on the fact that this is family law, but -- and I just want to give you an opportunity to respond to the same question I asked Mr. McGill on this, which is really two parts of it. One is the federal government often plays a role in mediating disputes between sovereigns in the family law area, whether it's the Hague Convention internationally or whether the Parent Kidnapping Act domestically. So why would it be awkward to think that Congress could exercise a similar authority with respect to disagreements between state sovereigns and tribal sovereigns?

Stone: So -- so two points, Your Honor. The first, speaking of the Hague, of Official 1 course, those are treaties between equal, full sovereign nations that are agreed to or not on the basis of whether those sovereigns each have a chance to walk away. The most fundamental difference here, of course, is that states have no choice to walk away from ICWA. ICWA --

Justice Gorsuch: States have no choice to walk -- they have to apply the Hague Convention and they have to apply the Parent Kidnapping Act. They've got no choice in the matter.

Stone: But the point is there's no mediating as between tribes and states on sovereigns. It's -- it's the United States saying you, States, shall do this or through a combination of --

Justice Gorsuch: That's exactly what it does in the Hague Convention, counsel, and the Parent Kidnapping Act. It says, State Courts, you shall do this. It's a rule of decision that it sets forth.

Stone: And -- and for purposes of treaties, the Constitution recognizes that is an exclusive federal operation by conjunction of Official 1 the power in Article II and removal of that from the states in Article I, Section 10.

Justice Gorsuch: Okay. So we're back to, if they did this through treaty, it would be okay?

Stone: Or at least it would be a lot closer.

Justice Gorsuch: All right. And then how about the fact that the federal government has been heavily involved in domestic affairs on -- with respect to Native American children throughout our history, whether it's through treaties, orphan children, or whether it was through the -- the boarding school saga of the last century? Why isn't that some evidence of -- of -- of plenary power in this area too?

Stone: Well, in part, because, for example, with boarding schools, just the ordinary powers over territory and property or otherwise ordinary appropriations may explain that.

Justice Gorsuch: They took children off-reservation, counsel.

Stone: I -- I understand that, Your Honor. And I understand that there's no Official 1 getting around the fact that both federal and state history regarding Indian tribes carries a variety of very shameful and terrible elements.

Justice Gorsuch: You're -- you're -- you're saying it's all linked to territory. That one wasn't.

Stone: The problem, Your Honor --

Justice Gorsuch: Same thing with all the treaties with respect to Native American orphans throughout the history of the country.

Stone: The fact that there is a terrible problem Congress is attempting to remedy does not necessarily mean it has Article I power. After all, Congress attempted to -- to remedy the nationwide problem of vicious domestic violence. And this Court said that VAWA, nonetheless, fell outside the Court's -- or outside Congress's Article I powers.

Justice Gorsuch: Thank you.

Chief Justice Roberts: Justice Kavanaugh?

Justice Kavanaugh: I want to ask about the equal protection issue quickly. The equal protection issue is Official 1 difficult, I think, because we have to find the line between two fundamental and -- fundamental and critical constitutional values. So, on the one hand, the great respect for tribal self-government for the success of Indian tribes with -- and Indian peoples with recognition of the history of oppression and discrimination against tribes and people. So that's on the one hand. On the other hand, the fundamental principle we don't treat people differently on account of their race or ethnicity or ancestry, equal justice under law, I don't think we would ever allow, as the Court suggested in Palmore in 1984, Congress to say that white parents should get a preference for white children in adoption or that Latino parents should get a preference for Latino children in adoption proceedings. I don't think that would be permitted under that principle of equal justice that we recognized in Palmore. So those are the two principles on equal protection that I think focus the inquiry. How do we draw the line?

Stone: Well, Your Honor, I think Official 1 first you look to Mancari itself, which took a first attempt at drawing this line. And as described in Rice and as applied from Mancari in the six cases that immediately followed, there were always at least two necessary preconditions, again, describing Rice now. One, that the preference or the discriminatory rule or set-aside always reached only -- and this is in Rice -- only members of a federally recognized Indian tribe because that was the component that made it clear that you were dealing actually with the Indian tribe as a body and the people who constituted that body and not on the basis of race. And then, second, Mancari saw as significant that each of the preferences that it otherwise understood operated on or at least near an Indian reservation because the political preference related to self-government and analogizes -- analogized to a couple of things to individuals who sought to serve a municipal government, to be able to promote the efficient delivery of services, to the territorial requirements of serving an office in the United States Constitution. Official 1 And so those are the two components Mancari looked at as vital. ICWA includes neither. It operates only off of tribal reservations. It does not require a child who will be subjected to ICWA to be a member of the tribe. And I think that puts this clearly on the invidious race discrimination side of that very tricky line that you're highlighting.

Justice Kavanaugh: Thank you.

Chief Justice Roberts: Justice Barrett?

Justice Barrett: General Stone, I want to take you back to the active efforts provision. One response that the government has is that the state could just choose not -- could walk away, essentially, and, certainly, private parties have the option to participate or not in termination-of-rights proceedings or seeking foster care placement. How would that work? Could Texas walk away? You know, if you had a child who was a member of a tribe and was in a situation in which the child was in danger or, you know, like the Brackeens' children here, like, you know, Official 1 YRJ, could Texas choose -- could the Texas agency choose not to intervene or seek a foster care placement for the child?

Stone: First of all, as a matter of Texas substantive law, no. But putting that aside, even if Texas substantive law allowed that, it would be very strange for the federal government to say this isn't commandeering because you can always just stop, you would just not do it altogether, when it's talking about a core police power, which is saying the health -- the health, safety, and welfare of vulnerable children. So I think the fact that that is the -- the sort of component they're offering, aside from I have no idea how as a practical matter Texas could do that, the fact they're saying do it our way or else, I think, is a more in the nature of a confession than an explanation.

Justice Barrett: Thank you.

Chief Justice Roberts: Justice Jackson?

Justice Jackson: Yes. So, in the Mancari case, we said "the plenary power of Congress to deal with the special problems of Official 1 Indians is drawn both explicitly and implicitly from the Constitution itself." Do you agree with that proposition?

Stone: No, Your Honor, because we believe that at least some components of the plenary power are wrong as an original matter, but we are not challenging them for purposes of this case.

Justice Jackson: All right. So we assume --

Stone: To accept them, yes.

Justice Jackson: -- you accept this. Okay. What -- what I'm worried about is, what if the special problem of the Indians is the manner in which a state is handling custody determinations, is the manner in which placement determinations are being made, are these children being snatched from their homes, et cetera, et cetera, as a historical matter? I am not at all sure that anti-commandeering principles would prohibit the federal government, who has plenary power over solving special problems of Indians, to direct a state in light of this power to do something about it. Official 100 Justice Alito says they couldn't -- could they legislate? I don't know that I can see that they couldn't given the plenary power. And I'm also worried about the -- the sort of ahistorical gloss of this because it seems to me that there is ample evidence historically that the design of the Constitution gave the federal government that very power at the expense of the states, that we had had a previous set of circumstances in which the federal government and the state government shared power related to Indian affairs and that the Constitution came along and gave it to the federal government. So can you help me to understand in light of all of those concerns why we would have anti-commandeering principles at work to thwart the federal government from exercising the plenary authority that's been -- it's been given to deal with the special problems of Indians in this way?

Stone: If you'll allow me to start with the historical materials and then I'll turn back to essentially an argument from precedent, and then, if there are any further Official 101 questions, I'd be happy to resolve them. First, just speaking about just sort of original materials, the original draft of what eventually became the Indian Commerce Clause was submitted by James Madison as a power to -- I'm closely paraphrasing here -- regulate Indian affairs within the U States. That was revised down by the Committee of 11 to a narrower power to regulate Indian affairs, which was further revised down to a power to regulate Indian commerce.

Justice Jackson: All right. So what about the Articles of Confederation? What -- what do we do about the inferences that people, historians, have told us that what was happening with the shift from the way in which the power was structured at that point to the Constitution was about making sure that the federal government had certain authority and that this was one of those areas?

Stone: Again, on this two points, the first being Federalist 42 I think holds part of the answer, which my friends on the other side rely on. Federalist 42 specifically cites the two limitations regarding what was then Official 102 Article IX of the Articles of Confederation. And then later, when it describes how it's -- it removed itself of I think these -- these "embarrassments," it says, and then, therefore, this whole power will allow regulation of trade. It uses specifically the word "trade" to describe the power that has been unshackled by these two things. Not even commerce more broadly but trade. So the idea that Federalist 42's understanding of the changes to -- to Article IX of the -- of the Articles of Confederation would have expanded to an -- to an all-encompassing Indian affairs power I think is just in the teeth of that historical evidence.

Justice Jackson: All right. But, in the actual Constitution, we have commerce and we have historians that have said that at the time commerce meant more than trade. It included intercourse. Justice Sotomayor has brought that up several times. So what do you say in response to that?

Stone: The problem is here is the syllogism they're relying on, which is that commerce mean -- can -- can mean trade and Official 103 intercourse. Intercourse can mean all relationships in between men and groups of men. Therefore, commerce means all relationships between groups of men. In Gibbons, in Story, in other original sources, intercourse is paired up with -- specifically in Gibbons, with the word "navigation" so as to describe what we now would refer to as the channels of commerce, the ability to set rules as to what foreign boats may dock in places. So "intercourse" doesn't get Respondents the way to ICWA. It doesn't even get them beyond what we would ordinarily think of as the Commerce Clause now.

Chief Justice Roberts: Thank you, counsel. Mr. Kneedler. ORAL ARGUMENT OF EDWIN S. KNEEDLER ON BEHALF OF THE FEDERAL PARTIES

Edwin S. Kneedler: Thank you, Mr. Chief Justice, and may it please the Court: As this Court recognized in Holyfield and Adoptive Couple, ICWA was enacted in response to serious harms caused by widespread Official 104 child welfare practices that resulted in the separation of large numbers of Indian families, often unwarranted, through adoption or foster placement, usually in non-Indian homes. Over the more than 40 years since its enactment, ICWA has furnished vital protections against those practices and has become integrated in state child welfare practices. There's no basis for uprooting those practices or for overturning Congress's considered judgment in enacting ICWA. ICWA, in fact, is a valid exercise of Congress's power over Indian affairs in several respects. That power is grounded in the text of the Constitution, including the Indian Commerce Clause. It is grounded as well in the constitutional structure in which Indian tribes occupy a unique status as dependent sovereigns to which the United States owes a duty of protection, and that duty of protection, as this Court observed in Kagama, derives in large measure from the fact that the national government and the states aiding it, acting through treaty and war powers, diminished the tribes' ability, put them in a position of Official 105 dependency, and, as this Court said in Kagama, Seber, and other cases, with -- gave rise to a duty of protection, which in turn encompassed a power of protection. Congress's efforts to address the problems in ICWA, protecting family integrity, kinship, unity, and the integrity and long-term existence of tribes, lie at the core of Congress's power under the plenary powers. It does so by -- not by displacing state authority but simply imposing minimum standards on states' exercise of that authority by seeing foster care and adoption in -- in state courts. Petitioners' plea to this Court to set aside ICWA on its face would undermine those vital protections that have worked well, as the amicus brief by 23 states shows, since its enactment. It would also gravely undermine this Court's Indian jurisprudence by carving up Congress's plenary power into discrete categories, which this Court has never recognized. And it would undermine the reliance of Congress, of tribes, of individual members, and, here, states on Congress's exercise of power. Official

Justice Alito: Well, Mr. Kneedler, if the plenary power has no limits, then, of course, there isn't any Article I issue for us to decide. Does it really have no limits in your view?

Edwin S. Kneedler: No. Mancari announces the core of the test, which would has to be rationally related to the fulfillment of Congress's unique obligations to Indians. So, in -- in that, there -- it is an implementation of the dependent status and the protection, whether that comes just from the Indian Commerce Clause or the amalgamation of Congress's vary -- various powers, but it -- it has to be in service of the obligations to the Indians. And this Court in Mancari said it has to be reasonable and rationally related to Congress's fulfillment of its unique powers. There is, I think, a reasonableness there, but this is at the core of something that is reasonable.

Justice Alito: So rationally related, is that our usual rational basis test?

Edwin S. Kneedler: I think Congress's judgment whether -- whether it -- it does serve Official 107 that purpose is entitled to great deference. I think it may not go all the way to rational basis because -- I -- I think it's important to recognize that Congress has acted over the two centuries since the adoption of the Constitution in pragmatic ways. When it has been confronted with a particular problem, it has assessed that problem. It has come up with what it regards as the appropriate solution to that problem and has acted in -- in a reasonable manner. And this Court has said that deference to Congress's judgment about what is reasonably essential to carry out the trust responsibility is called for.

Chief Justice Roberts: The --

Justice Alito: Could Congress say --

Chief Justice Roberts: No, no, go ahead.

Justice Alito: Could Congress go further than it has gone in ICWA and say that an Indian child may not be adopted by an -- by a non-Indian couple under any circumstances?

Edwin S. Kneedler: I think that would -- that would obviously go further, and I would want to know the -- the -- the circumstances, Official 108 but I would think that would be a difficult law to defend that --

Justice Alito: That's not rationally related in the same way that this is? I mean, it's -- it's more -- it -- it -- I honestly don't -- I've had this -- had great difficulty dealing with this Article I question because, if "plenary" means plenary, Congress can do whatever it wants, fine. As I said, it -- it's an easy case. There's nothing there under Article I. But, if there are limits, it's hard for me to see where the limits are. That's where I -- that's where I need help.

Edwin S. Kneedler: Well, I -- I -- I think -- I think the place to start -- frankly, I think it's difficult to start -- to state one rule that applies across the board in all the various circumstances where Congress might act, criminal laws, education, and healthcare, as Justice Gorsuch mentioned, child -- child welfare. But -- but what this Court has said -- and -- and, again, I want to come back to this. Seber was an example where it involved tax Official 109 exemptions for property, but the Court -- the Court, in upholding that, said these tax exemptions are appropriate in aid of Congress's carrying out its obligation to --

Justice Alito: What about the boarding school law? Congress had the power to do that?

Edwin S. Kneedler: Congress -- Congress had the power at the time, I -- I -- I think.

Justice Alito: Well, if it were to do it --

Edwin S. Kneedler: Seriously misguided.

Justice Alito: -- if it were -- yeah. Okay. If it were to do it tomorrow, would that fall outside Congress's plenary power?

Edwin S. Kneedler: I -- I well, I -- I -- I -- it has to be -- the -- the plenary power, I -- I think there are at least two -- two things to bear in mind about this. I think Congress, when dealing with a tribe in its political capacity, has a great deal of power to diminish the tribe's or regulate the tribe's exercise of its governmental authority, like under the Indian Civil Rights Act, et cetera. That's -- that's dealing with the tribes as tribes in a Official 110 political capacity. I think where Congress is addressing the protections for individual Indians, either children, adults, whoever, then that -- that's what triggers the formulation of the -- of the trust responsibility or the dependent status of -- of tribes. It has to be reasonably related to Congress's unique obligations to Indians --

Justice Alito: All right. Could Congress -- could --

Edwin S. Kneedler: -- which means it has to be protective, not harming.

Justice Alito: Could -- could -- could Congress enact a law that alters the substantive law that states apply in areas like -- like contracts or torts or rules of evidence when one of the parties in the case is an Indian?

Edwin S. Kneedler: I think the mere fact that the party is an Indian would probably not be sufficient.

Justice Alito: Why? Why isn't that rationally related to furthering the interests of -- of Indians?

Edwin S. Kneedler: I -- again, I think -- Official 111 I think, in examining any hypothetical statute or context, it is necessary to look at the judgment that Congress made and to know why Congress made the judgment that it did. In -- in Indian contracts, for example, there were many, many years where contracts by individual Indians were not valid unless approved by the Secretary of the Interior because of a concern that they were going to be taken advantage of. So, if there -- if there was that sort of justification -- and, presumably -- I don't think we can assume Congress would act in an arbitrary manner. It would be addressing a real-world problem in a practical way.

Justice Alito: No, I understand.

Chief Justice Roberts: Well --

Justice Alito: And --

Chief Justice Roberts: No, go ahead.

Justice Alito: Just one -- one more. Honestly, I -- I don't know how to analyze this question because, if "plenary" means everything, then -- then it means everything. And, otherwise, what I've gotten from the briefs and the arguments is that we have to try to extract Official 112 certain rules from our cases, which quite honestly strike me as a mishmash. But one -- one last one. Could Congress have required that Indians get preference in the -- in receiving the COVID vaccines? Would that be an equal protection violation in your view?

Edwin S. Kneedler: Again, I think it might depend -- if Congress decided to furnish vaccines to tribes as part of a tribal health program, I don't know whether you would call that a preference or whether that's Congress -- aspect of Congress's delivering healthcare. It might have -- it might have a disparate impact, if you will, but -- but Congress has a duty to Indians, and -- and it might buy a lot of vaccines and deliver them.

Chief Justice Roberts: Well -- would --

Edwin S. Kneedler: But a prescription --

Chief Justice Roberts: -- I don't want to --

Edwin S. Kneedler: -- a prescription to a state, for example, might be quite different.

Chief Justice Roberts: I -- I -- I -- Official 113 may -- I -- I do want to follow up on Justice Alito's question. There's a limited number of vaccines. Can the federal government decide to distribute those to -- to Indians and not others?

Edwin S. Kneedler: Well --

Chief Justice Roberts: It's a very simple hypothetical.

Edwin S. Kneedler: Well, probably not, but I -- but I -- I just want to caveat that --

Chief Justice Roberts: So the plenary power doesn't include something like that?

Edwin S. Kneedler: Well, answering what -- what plenary power means, I think, several things that it means. There's no subject matter that is completely off limits just be -- just because it's Indians. There is no geographic component which renders something completely off limits.

Chief Justice Roberts: But there's something about distributing vaccines, a limited supply, that is, you suggested, I guess, that it may not be within the plenary power?

Edwin S. Kneedler: Well, in -- in a Court's reviewing of something of -- that Official 114 Congress has done in the exercise of its plenary power, again, the -- the test the Court has applied, it's used different formulations, but --

Chief Justice Roberts: Is that the reasonably essential?

Edwin S. Kneedler: Reasonably essential, appropriate, not arbitrary.

Chief Justice Roberts: What -- what in the world does that mean? What -- what I mean, if it's essential, if it's essential. If it's reasonable -- but what's reasonably essential mean?

Edwin S. Kneedler: Well, reasonably essential is not a familiar term in -- in -- in -- in the way --

Chief Justice Roberts: In English? (Laughter.)

Edwin S. Kneedler: But -- but -- in -- in -- in jurisprudence, but that's followed by deference has to be given to Congress. And -- and, you know, if -- if the -- if the furnishing of vaccines to the tribe was part of a -- a general program to furnish vaccines to underserved communities, I mean, it would Official 115 depend.

Chief Justice Roberts: No. I guess this is the point. You're arguing for special treatment with respect to Indians. So why does it matter if it's part of a program to serve underprivileged communities?

Edwin S. Kneedler: It -- it -- it -- it may not. But I -- but I don't think -- Congress has not done the sort of thing that you are describing. Congress --

Justice Jackson: But, Mr. Kneedler, I thought that your answer to the Chief was going to be that that issue was not really teeing up a question about the plenary power, that the issues that they have identified, I would think, would be analyzed under the Equal Protection Clause, and that's sort of a separate constitutional basis for it.

Edwin S. Kneedler: Yeah. No, that would -- that -- that -- that -- that would be, although that also has a rational basis standard.

Chief Justice Roberts: Well, but there are two questions, one, whether you can do it in the first place, which is the plenary Official 116 power question, then whether you can do it in a way that distinguishes between polities that have -- with which the federal government has a special trust relationship.

Edwin S. Kneedler: I -- I -- I -- I think these two questions raise -- it may all be under the plenary power -- they raise an ends mean. There is no doubt that furnishing vaccines to Indians, at -- at least if they have some tribal connection or within the scope of people eligible for Indian healthcare services, there's no doubt that that is a valid mean or -- or valid end for Congress's action. The question would be whether the approach it took is a reasonable one or, rather, it is arbitrary. And those -- those require some judgment -- some assessment of Congress's, to which --

Chief Justice Roberts: But I have, I mentioned to Mr. McGill, difficulty understanding how the placement priorities work. So maybe I'll try an example. Let's say there's a six-month-old baby that had been born to an Indian couple and the Indian couple for whatever reason is no Official 117 longer -- no longer there. And there are also no extended family members in -- in the tribe. A non-Indian couple comes forward and says we would like to adopt the six-months-old -- old baby, and they check all the boxes under, you know, best interests of the child. In other words, in normal circumstances, this would be a perfect placement for the child. But non-family members of the tribe say that, no, they think it would be better for the trial -- child to be raised with the tribe on the reservation. Does -- does that priority trump the other best interest finding?

Edwin S. Kneedler: Well, several questions about that. When Congress enacted -- or, sorry, answers. When Congress enacted ICWA, it was very concerned about the application of the best interests of the child standard because it led to subjective judgments about -- by state welfare agencies --

Chief Justice Roberts: Okay. Let's assume -- let's assume that it's a good faith and reasonable application of the best interest standard. Official

Edwin S. Kneedler: But -- but what -- but what -- what Congress did was to adopt objective standards, which is the -- the child -- which is the priorities, and, with respect to tribal members, there is -- there is an extended kinship proposition there.

Chief Justice Roberts: So does that priority displace the state court, state adoption agency, determination of the best interests of the child?

Edwin S. Kneedler: Well, the -- the -- the agency would have to determine that the -- that the tribal family was qualified --

Chief Justice Roberts: Yeah.

Edwin S. Kneedler: -- first of all. And then, secondly, the -- that placement, it -- it's a rebuttable presumption and is not absolute. So there is a good cause --

Chief Justice Roberts: Rebuttable presumption that the child would be placed with the non-family members of the child?

Edwin S. Kneedler: Right, that's one way -- that's one way to describe it. But -- but then, yes, I -- I mean --

Chief Justice Roberts: Well, so okay. Official 119 So my point is that in that particular situation, the best interests of the child would be subordinated to the interests of the tribe?

Edwin S. Kneedler: No, but -- but I --

Chief Justice Roberts: The interests of non-family members.

Edwin S. Kneedler: When Congress enacted ICWA in Section 1902, it said it was implementing the best interests of the child. The -- the -- the -- the -- the -- the proposition of best interests --

Chief Justice Roberts: So then -- so you're saying Congress in ICWA made a determination that it is in the best interests of the child to remain with non-family members of the tribe on the reservation in every case, regardless of what the alternative is?

Edwin S. Kneedler: Well, no, it's not every case. What Congress did was enact a -- a framework, an overall statute that, as -- as I said -- and -- and this is, if -- if you look at the amicus brief by the -- by the Casey Foundation, it described that this reflects child welfare practices that -- that have come to more closely resemble what ICWA does, in Official 120 fact, by -- by looking to not just the immediate family but to extended kin. Congress made judgments when it enacted --

Chief Justice Roberts: So I guess -- and -- and I am having trouble figuring out how this actually works in -- in practice in a concrete case. In the hypothetical -- hypothetical that I posed, would the interests of non-family members of the tribe trump the state agency determination, they make these determinations every day, of what's in the best interests of the child? Not with respect to placement with the other -- the other couple we're talking about. It's not that they're saying, you know, it's not going to be in the best interests of the child to be placed with the family on the reservation, but there are other things that they take into account.

Edwin S. Kneedler: But ICWA does not operate that way, with respect. The -- the first question is that you -- if -- if no extended family members, and extended family can include how -- how the tribe -- Official

Chief Justice Roberts: No, no. My hypothetical was members of the tribe.

Edwin S. Kneedler: Was no -- right. So it goes to -- it goes to the second preference for a couple in -- or parents in that tribe. But that is subject to the good cause exception. So --

Chief Justice Roberts: Okay. Does the good cause exception -- how does that work? Because it's not -- it's something different than the best interests of the child?

Edwin S. Kneedler: It -- it's not articulated that way. Maybe some of the same considerations could come in. But, again, Congress was -- and, for example, if the parental -- the -- the preference of the parents is given weight, then sometimes --

Chief Justice Roberts: Yeah, but, again, my hypothetical said that the parents are no longer on the scene.

Edwin S. Kneedler: But -- okay. There -- there are cases where there are.

Chief Justice Roberts: It happens.

Edwin S. Kneedler: Yeah. No, no, it does, but all I'm saying is that the -- I'm giving Official 122 examples of why the good cause exception is not absolute. It could be rebutted in certain ways. It also says should. It does not say shall or must, which allows for the consideration of other factors.

Chief Justice Roberts: Could it be rebutted by the agency saying we have gone through our normal determinations of what's in the best interests of the child that we do in every case, whether, you know, not involving Indians, and we think that's where the child should be placed with that couple. Now does the -- do the priorities in ICWA trump that determination?

Edwin S. Kneedler: That -- that -- that is not the determination the -- the agency would make at the outset, and, again, because that's what ICWA was concerned about and -- and because of the subjective judgments that could be made by child welfare personnel in looking at the family, looking at the -- at the financial status of the family, looking at the housing, and make judgments that this child should not be there.

Justice Sotomayor: Mr. Kneedler, can Official 123 I? One can assume two -- two things, following up on Justice Alito and Justice Roberts' initial question: If the United States had agreed with England to supply it first with the vaccine before it supplied the states, would our foreign powers permit -- plenary foreign powers permit the U.S. to do that?

Edwin S. Kneedler: I think it probably would, yes.

Justice Sotomayor: It -- what stops --

Edwin S. Kneedler: Absolutely would, sure.

Justice Sotomayor: -- that from happening, obviously, is that that President would obviously or more than likely not get reelected. All right. The same thing if there was a political judgment that the Indian tribes required the vaccine first for some rational reason, 90 percent of the -- of the population was dying or a huge number more or whatever the reason was, it was a reasonable reason, that would -- you'd have plenary power to do that, correct, if you're the government?

Edwin S. Kneedler: The -- the -- as I Official 124 said, the power to furnish the vaccines is there whether the -- whether the criteria that it applied in a particular case -- I mean, they would have to be reasonable. But we shouldn't assume Congress --

Justice Sotomayor: All right. On this best interests of the child point, okay, going back to that, one is presuming that the best interests of the child is to remain with X or Y. That's a court --

Edwin S. Kneedler: With what? I'm sorry.

Justice Sotomayor: To remain with X or Y, meaning with a custodian or not. But it doesn't mean a child is going to be placed with an unfit parent, correct?

Edwin S. Kneedler: Right.

Justice Sotomayor: An unfit -- all of these parents, to even be in the running, have to be competent parents, correct?

Edwin S. Kneedler: Yes.

Justice Sotomayor: Competent care -- custodians.

Edwin S. Kneedler: Yes.

Justice Sotomayor: So now the issue is one of policy. Where will you place the Official 125 child among these competing competent custodians, correct?

Edwin S. Kneedler: Yes.

Justice Sotomayor: And that goes to the judgment of -- who should make that judgment, and what you're saying is Congress has --

Edwin S. Kneedler: Congress made that judgment in particular because it was concerned about the ordinary operation of the -- and this Court's decision in Smith versus Organization of Families makes this point.

Justice Sotomayor: Got it.

Chief Justice Roberts: So there's -- so just so I understand, there's a level. It has to be competent --

Justice Sotomayor: Could you let him just finish that, Chief?

Chief Justice Roberts: Oh, I'm sorry. I thought you were --

Justice Sotomayor: Yeah. Just let him finish that part. Go ahead.

Edwin S. Kneedler: Congress -- Congress was concerned about the sort of free-form or free-floating application of the best interests Official 126 of the -- of the child standard, and as this Court recognized, and that's why it -- it, for example, imposed the burden of proof to remove -- to remove the child or for -- or for placements of the child with -- with someone else. And what it determined is the arrangement that -- the framework that it set up in ICWA was in the best interests of the child because Congress made a judgment that placing the child with the extended family, failing that with the tribe, which is an -- which is a kinship community interest, which is -- which is taken into account in the non-Indian context under child welfare practices, that was in the best interests of the child, with the -- with the occasion or the possibility or the prospect of individualized exceptions to that --

Justice Alito: Suppose the parents are --

Edwin S. Kneedler: -- in a particular case.

Chief Justice Roberts: Well --

Justice Sotomayor: Well, I think --

Justice Alito: Chief? Official

Chief Justice Roberts: Are -- are you finished with your answer?

Edwin S. Kneedler: Yes. (Laughter.)

Edwin S. Kneedler: Yes.

Chief Justice Roberts: Okay. Because I -- yeah. (Laughter.)

Chief Justice Roberts: Now is -- is competence the threshold, or, in this priority standard, is the agency allowed to consider the relative best interests of the two different proposed placements?

Edwin S. Kneedler: I -- I -- I think ordinarily not, but -- but, as this Court has said elsewhere, for example, in -- in removing a child from its parents, the question is not whether the child would be better off somewhere else because parents have a fundamental right in parenting their children. And what -- Congress didn't say this was a fundamental right of extended family or tribes, but it -- it thought it was a very important right that should be recognized and not lightly -- and not lightly taken away Official 128 because of the -- of the huge numbers of Indian children who were being taken away from their families, from their extended families, from their tribes, from their kin, from their community, and that was damaging the long-term interests --

Chief Justice Roberts: Last --

Edwin S. Kneedler: -- of the tribes.

Chief Justice Roberts: -- last question. Is the trust relationship, trust responsibility that the federal government owes in this area, is that responsibility owed to the tribe, or is it owed to individual members of the tribe?

Edwin S. Kneedler: I -- I think Congress can conclude that it is owed to both, and it traditionally has. Congress's power -- and -- and the Holliday decision that was referred to previously, I think, is very instructive on this point in a number of reasons. It involved -- it upheld Congress's ability to engage in the prohibition on -- on liquor sales in that case off-reservation. It rejected the proposition that just because the Indians there were citizens, that that was beyond what -- what Official 129 Congress could do. And it -- and it said that that could be upheld because it was an appropriate exercise of -- of Congress's power. But it also specifically rejected the argument that the -- that Congress can only deal with tribes. It said tribes are made up of their members, of their constituents. And that's an important thing to understand about the way ICWA operates. It operates on the basis of citizenship, that the definition of Indian child is that the child must be a member of the tribe or, if not, it has to -- the -- the child has to be eligible for --

Justice Alito: Well, along those lines --

Edwin S. Kneedler: -- membership.

Justice Alito: -- along those lines, Mr. Kneedler, suppose the parents of a child that is going to be adopted say we don't want our child treated as an Indian under ICWA. And the tribe says, well, this child is eligible for tribal membership. Or maybe we have enrolled -- we have unilaterally enrolled the child as a member of the tribe. What happens then?

Edwin S. Kneedler: Well, if the -- I'm -- Official 130 I'm not sure. Of all the facts in the hypothetical, if -- if the parents are giving the child up for adoption, then that wouldn't necessarily trigger the -- the preferences or they wouldn't get dispositive weight because the -- the parents' desires can be given great weight in that -- in that circumstance.

Justice Alito: But it would still be --

Edwin S. Kneedler: So, if that's --

Justice Alito: -- it would still be governed by ICWA?

Edwin S. Kneedler: It's still -- it's still subject to ICWA, yes. But -- but the -- but -- and this is an important point to understand. This is a facial challenge to a statute that has operated for 40 years day to day in state child welfare agencies. It's integrated in what they do. And, you know, there -- there could be -- I mean, what happens in a particular case depends upon the -- the state agencies or the private agencies or the -- or the adopting couple --

Justice Kavanaugh: Can I follow up on the Chief's questions? The third preference, Official 131 for other Indian families, including families who are of a different tribe, correct?

Edwin S. Kneedler: Yes.

Justice Kavanaugh: Okay. And does the third preference, that preference, ever make a difference?

Edwin S. Kneedler: I mean, I don't know empirically, but they -- but it -- it can in the following circumstance -- I mean, first of all, it's important to understand --

Justice Kavanaugh: Meaning that the decision would have been to give it -- the best interests would have been with a -- a different family but for that third preference?

Edwin S. Kneedler: Well --

Justice Kavanaugh: Does it ever make a difference?

Edwin S. Kneedler: -- it -- it very well could, but there would be very strong reasons why it would, if I could just explain.

Justice Kavanaugh: No, I -- I think it would. That's -- yeah.

Edwin S. Kneedler: Yeah. Because --

Justice Kavanaugh: That's --

Edwin S. Kneedler: -- you could have a Official 132 child, for example, who has parents who are members of two tribes. ICWA --

Justice Kavanaugh: No, just -- it applies beyond that circumstance.

Edwin S. Kneedler: No, no, I know. But I'm explaining the reasons why it --

Justice Kavanaugh: Yeah.

Edwin S. Kneedler: -- why it is there. Again, this is a -- first of all, it hasn't -- the third preference has not been raised in this case at all. Nobody -- no plaintiff in this case has been affected by it. And -- but -- but I was trying to give an explanation for why it is there and why applications of it would -- would, I think --

Justice Kavanaugh: Go ahead.

Edwin S. Kneedler: -- be obviously okay. If you have a child who has a parent who's a member of two tribes, ICWA requires that one be selected as the primary tribe. But -- but, if -- if that -- if for some reason there's not a suitable foster or adoptive parent who comes forward, the second tribe would be a logical place. You also have situations where two Official 133 tribes share the same reservation and -- and there's a lot of interaction, intercourse between them. Or you have a situation where -- and this is true with the breakup of the great Sioux Nation in the northern plains, you once had one -- one great nation that is now divided up into discrete tribes on different reservations, but they have common cultural --

Justice Kavanaugh: So -- so, to get to the heart of my concern about this, you would agree, I think, but tell me if you disagree, that Congress couldn't give a preference for white families for white children, for black families for black children, for Latino families for Latino children, for Asian families for Asian children.

Edwin S. Kneedler: Yeah.

Justice Kavanaugh: Do you agree with that?

Edwin S. Kneedler: Yes.

Justice Kavanaugh: Okay.

Edwin S. Kneedler: That -- that's purely based on race. But this is --

Justice Kavanaugh: And this is different because? And I'll let you explain. Official

Edwin S. Kneedler: Because it has to do with Indian tribes. Indian --

Justice Kavanaugh: Including the third preference, which does not require it be of the same tribe?

Edwin S. Kneedler: But it -- but it is a tribe. It is a tribe with a political relationship to -- to the United States. If the child goes there, that -- the child's -- somebody in that -- in that family will be a tribe -- a member of that tribe.

Justice Barrett: But why -- I don't understand that. I thought that it swept more broadly than that, as Justice Kavanaugh was saying. I thought that you could have -- I mean, even in your hypothetical where you have a mother who belongs to one tribe and a father who belongs to another, maybe I'm misunderstanding how the third preference works, but I thought the third preference would kick in and give preference to someone who -- a couple that belonged to a different tribe altogether.

Edwin S. Kneedler: Well, it --

Justice Barrett: Am I misunderstanding that? Official

Edwin S. Kneedler: -- it could, but ICWA operates on the basis of -- of the child's primary tribe. And if -- and -- but, if you had a second tribe, that would not -- that wouldn't come under the first or second preference.

Justice Barrett: It would come under the third?

Edwin S. Kneedler: It would come --

Justice Barrett: And so I'm saying --

Edwin S. Kneedler: -- it would come under the third.

Justice Barrett: -- if there's no -- there's -- right. I'm saying -- I'm assuming, as Justice Kavanaugh's question was -- was assuming, that you get down to the third, so you didn't have a placement available. The first or the second preference didn't kick in. You get down to the third preference. And I guess -- I mean, I'll get to the heart of my concern, is, you know, if -- if you're thinking about that from an equal protection point of view, I mean, let's assume I agree with you that these are political classifications, this is just treating Indian tribes as fungible.

Edwin S. Kneedler: Well -- Official

Justice Barrett: So let's imagine the child is a member of the Navajo and is placed under the third preference with the Cherokee.

Edwin S. Kneedler: I don't -- I don't think it rests on the idea that all -- that all tribes are fungible in the sense that they're all the same or that all their members are the same, but what it does rest on is a recognition that each of those tribes has a political government-to-government relationship with the United States. And they have that in common. They -- tribes -- tribes have aligned over the years in common interests. They have -- Congress certainly thought this was true -- some common cultural ties or practices or spiritual practices. They -- they may not be dispositive, but it's a recognition that that could be true. The -- the third preference doesn't come up. In -- in fact, the Petitioners in this case have not identified any case that -- that fits the paradigm that -- that -- that I think Justice Kavanaugh might have been talking about, where you have somebody -- another tribe with no other sort of connection to the child. Official 137 A tribe is not just going to arbitrarily reach out and grab -- grab a child. They will do it because they have some interest. And it's not a property interest. Governments have an interest in their citizens and their children. Consular protection for aliens from other countries in our -- in our country is a -- is a vital thing. It's not property.

Chief Justice Roberts: Thank you, counsel. Justice Alito, anything further?

Justice Alito: Well, adults can change their -- their country of their citizenship. But why isn't Mr. McGill right in referring to the concept that the tribes have a proprietary interest in children who are covered by -- by ICWA? The -- the children don't voluntarily join the tribe. And in my hypothetical where the -- the parents don't want the child to be treated as a member of the -- a member of the tribe, this child is treated as an Indian under ICWA solely based on the child's status as a -- Official 138 based on ancestry.

Edwin S. Kneedler: Well, if the child -- if the child is a member, that is because either the tribe automatically confers citizenship at birth, which the United States does for -- in some circumstances for a U.S. citizen abroad, if they give birth. It is not an unheard of proposition. And the parallels between Congress's dealing with tribes and Congress's dealing with foreign countries and foreign affairs is -- is very direct for these purposes. It's dealing with another sovereign. In fact, that parallel is present in the Indian Commerce Clause, which -- which is written in terms of commerce with foreign governments and with states. So there's -- there is -- there is that parallel. And it's also common where, if the -- if the parents once enrolled the child but didn't want them to be treated as -- as a tribal member, children follow -- children don't make their own decisions. Someone else does. Either citizenship could descend automatically at birth, or -- or, when the child Official 139 becomes 18, the child might choose to be a -- a member, which is another important consideration if the child is placed with somebody in the tribe.

Justice Alito: What if it's an older child, not 18, but an older child who can express the child's preferences, and the child says I don't want to be treated as an Indian under ICWA?

Edwin S. Kneedler: The good cause -- Interior's regulations explicating the good cause exception say that the wishes of the -- of the child of -- of a sufficient age, to -- for his preferences to be taken into account. That is a factor and -- and perhaps a very important one.

Justice Alito: It's taken into account, but it's not dispositive.

Edwin S. Kneedler: No, but -- but family law cases, custody cases are very fact -- fact-specific. And so you can hypothesize a situation in which maybe it should have been dispositive but not, but some -- some -- a state court judge has to make a difficult judgment. And -- and, if there are problems with Official 140 that in a particular case, the -- the person seeking custody could appeal. That was done in -- in one of the cases in this case. But this is a facial challenge. The idea that -- that in all of its operations, under Salerno, it would be necessary to say in all of its operations it either exceeds Congress's Article I powers or is a violation of equal protection. And I think that that is an untenable position. This statute has been operating for 40 years, and we have 23 states who say it is working well. We have numerous tribes saying it's critical to tribal preservation, and that Congress's judgment 40 years ago remains sound.

Justice Alito: One -- one last question. Does -- is rational basis the standard for all classifications that treat Indians differently from other people, even if -- even if the classification disfavors them?

Edwin S. Kneedler: I -- I think ordinarily the first question there would be whether that is a -- a valid Article I exercise of power. If that's what you're asking, you're asking equal protection -- Official

Justice Alito: Yeah, in equal protection. What's the -- what's the level of scrutiny for a classification that disfavors Indians, a rational basis?

Edwin S. Kneedler: Well, as I said before, if -- if what Congress does is act on the tribe in a political manner, saying your -- you know, your -- your -- your powers are diminished or expanded, that -- that's a political classification. And Congress can do things that tribes might think are -- are not worthy. But, if Congress is acting on individual members of tribes in a way that is harmful to them, I don't think that that is rationally related to the fulfillment of Congress's obligations to the tribes. That's -- that -- that's a -- that's a -- a -- a -- I think an important marker that what Congress is doing has to be reasonably understood as promoting the welfare of the -- the individuals involved. I think that's an important limitation. If -- if the boarding school example were going to arise now, that would be a very serious question. Maybe a hundred years Official 142 ago people had a different idea of that. But -- but now it is, I think, uniformly thought to have been harmful, and Congress cannot gratuitously do harmful things to individual -- individual tribal members, just like it -- it can't do anyone else. This Court's decision in Moreno with respect to equal protection -- equal protection challenge to a statute that -- that the Court thought was just outright -- disliked.

Justice Alito: Well, that sounds like something -- I'll stop with this -- that sounds like a level of scrutiny that is different from ordinary rational basis review, and at least something with -- at least something more than ordinary rational basis for you ought to be applied.

Edwin S. Kneedler: Well, and it -- and with --

Justice Alito: So is it -- does -- does that apply either way or only to classifications that disfavor Indians?

Edwin S. Kneedler: Again, I think it comes up both with respect to Article I as it rationally related to Congress's fulfillment of Official 143 its power and then a rational basis test for equal protection, and they overlap, and one could think of the issues here. But, under -- under the Article I power, I think it -- it -- it -- it -- it doesn't cut both ways.

Justice Alito: Okay. Thank you.

Edwin S. Kneedler: I think Congress has to -- has to be acting in favor of tribes.

Chief Justice Roberts: Justice Sotomayor, anything further?

Justice Sotomayor: I think that what you were trying to say but I'm not sure is ICWA has two components: one, if you're a child who's an Indian member -- and we haven't even addressed that -- it seems to me that that's the quintessential part of ICWA that I find hard to overturn. If you're a member of a tribe and the government wants to protect you in a certain way, you should be -- the government should be unfettered from that.

Edwin S. Kneedler: Right, and I -- I thought that might have been one -- one part of Justice Alito's question, but I -- but I wasn't sure. Official

Justice Sotomayor: All right. But the second part of ICWA subjects a child who's not a member yet but whose parent is an Indian tribe membership, and that one, it seems to me that most of our laws presume that a child will follow its parents, correct?

Edwin S. Kneedler: Yes.

Justice Sotomayor: Until they're of age?

Edwin S. Kneedler: Yes.

Justice Sotomayor: Even with citizenship. Children who are born of parents abroad I don't think in all circumstances are automatically considered citizens.

Edwin S. Kneedler: It depends on the parents' connection to --

Justice Sotomayor: But they can travel to the U.S. They can -- there's all sorts of benefits they're given because they're children of American citizens, but they have to declare their intent to be a citizen at 18 or something, correct?

Edwin S. Kneedler: And -- and the -- this Court's decision in Holyfield, you know, I think, reinforces that, that domiciled -- Official

Justice Sotomayor: So the bottom line is that ICWA says that if you're eligible to be a member because you're born of an Indian parent, is no different than any of those laws, correct?

Edwin S. Kneedler: Right. No, I think it's -- citizenship passing by descent is a -- is a common -- has been common throughout our history. And -- and -- but, here, it's important to recognize that tribal membership, tribal citizenship is defined by the tribe.

Justice Sotomayor: Correct.

Edwin S. Kneedler: That's an important -- that's an important aspect of tribal sovereignty. The United States is not defining the membership. And that is part and parcel of recognizing the sovereignty of Indian nations, which, by the way, are -- not by the way -- centrally mentioned in the Constitution, Indian tribes. It -- it defines them by being Indians.

Justice Sotomayor: Thank you.

Chief Justice Roberts: Justice Kagan?

Justice Kagan: Mr. -- Mr. Kneedler, I'm wondering if you could comment on the various ramifications of adopting some of Official 146 Petitioners' theories of the Article I power, and we've heard a few different iterations, but I'll take General Stone's perhaps as the clearest cut one. General Stone says Congress has power where it -- where it is acting out of a particular treaty and its obligations, where it's regulating on tribal lands, or where it's regulating tribal governments qua governments. And those are the three areas in which Congress has power, and everything else is outside of Congress's power. And I'm just wondering what in Article -- in -- in -- in Title 25 would that exclude?

Edwin S. Kneedler: Well, the Indian healthcare program furnishes a lot of services to Indians who -- some of whom are not actually formal tribe -- tribal members, but they are -- a -- the judgment's been made that they are sufficiently affiliated with a state tribe or something like that. There's -- a lot of the Indian Health Service care is furnished off-reservation. There are -- there's aid to schools that Indian children attend. There -- but there Official 147 would -- there would also be other concerns historically. And what Congress has done in the past by -- by -- and I mentioned the Holliday case, which was created criminal offenses for conduct occurring off a reservation by individual Indians, and there the Court said it's not just commerce, it's intercourse, which means interaction between Indians and non-Indians. So any -- anytime there could be abuses arising in the context of interaction between Indians and non-Indians, the potential is there. It's -- it's not necessarily going to be all the time. But it's very important in -- not to cut off Congress's ability to make context-specific judgments when a practical problem arises. And I think, if the -- if the import of your question is that if something is behind -- is -- doesn't fall into one of those categories precisely, first of all, there would be litigation about whether it does fall into that category, but if that means Congress is about to step into strict scrutiny land under racial discrimination, that would be, I -- I -- Official 148 I think, an enormous --

Justice Kagan: Well, not just the -- I -- I took General Stone to be saying Congress just can't do it. It just doesn't fall within --

Edwin S. Kneedler: Yes. No.

Justice Kagan: -- Congress's Article I powers, you know.

Edwin S. Kneedler: Right. Right. Right. But, I mean -- so there are two aspects to that. If it's beyond the powers, is it -- is it racial discrimination? But I think -- I think that would be -- that is essentially the shackling of -- of the federal government's powers under the Indian Commerce Clause or its more general powers of protection coming about from the exercise of the war and treaty powers. That would be in the teeth of -- of Congress -- the framers' shedding of those shackles. Whether those shackles were all under the Indian Commerce Clause or -- or elsewhere, that -- that was a deliberate choice by the framers to give Congress plenary power over Indian affairs. That was reflected in the contemporary understanding and the Trade and Official 149 Intercourse Act, which enacted criminal penalties for crimes -- over the years, crimes by Indians against Indians. The classic intercourse or interaction between Indians and non-Indians.

Justice Kagan: Thank you.

Chief Justice Roberts: Justice Gorsuch? Justice Kavanaugh?

Justice Kavanaugh: On your point that this is a political classification, not a racial classification, including the third preference, as I think you said, you're relying on Mancari, and I just want to understand what you see as the limits of Mancari, and a couple of the hypotheticals I asked earlier, could Congress grant a hiring preference to American Indians for federal agencies other than the BIA, such as Treasury or Justice or --

Edwin S. Kneedler: I -- I think that would be much more difficult as I stand here.

Justice Kavanaugh: And -- and why is that?

Edwin S. Kneedler: Because the preference in Mancari was at the BIA. It was the agency Official 150 that was regulating tribal affairs, individual Indian affairs. So there was a particular -- particularly close nexus, frankly, to -- to the Indian tribe and -- and tribal members who were going to work for it. So I think -- I think, other than that it arose in an unusual situation, where it was a preference in -- in federal employment, it was very closely related to the tribe. But I think, if you -- if you get away from that, it would be much more difficult to defend if --

Justice Kavanaugh: How about Congress decides for the -- to help the tribes and tribal members that it's going to mandate that states give a preference in college admissions to American Indians?

Edwin S. Kneedler: Again, I think that would -- that would be much more difficult to defend. I -- I'm not sure what the defense of it would --

Justice Kavanaugh: And why, though? I just want to understand. You -- you've had an instinct to both these questions. That's much more difficult, but why?

Edwin S. Kneedler: I -- I think it's Official 151 because the -- the relationship to -- the tribal relationship to the -- tribal relationship is -- is more attenuated and bumps up against interests that other people might have. I think that that may be an important consideration. But contrast that perhaps to Congress's long-furnished funds to educate Indians. In fact, some colleges and universities have -- have had that as part of their mission for years, for 200 years.

Justice Kavanaugh: And then --

Edwin S. Kneedler: That might present different questions.

Justice Kavanaugh: Okay. And then you've -- you suggested that everything's been operating smoothly, you know, we leave well enough alone, but I just want you to speak to the concern on the other side, which is, you know, you come in as an adoptive couple, you want to adopt a child, the state court otherwise would say the best interests of the child would be to go with you, and then you're told no, you're the wrong race.

Edwin S. Kneedler: No. I mean, with respect, what you're told is, if -- if it's one Official 152 of the preferences, that there is a tribal political citizenship aspect to the -- to the determination. And it -- it -- that's when --

Justice Kavanaugh: Even -- even with the third preference?

Edwin S. Kneedler: Yes. The -- it -- it has to -- it has to be a member of -- of another tribe. It has --

Justice Kavanaugh: Mm-hmm.

Edwin S. Kneedler: And that -- that means that there -- that political -- that's a political relationship as well. Now, whether -- whether there could be a rational basis challenge to that in a particular case, we don't have anything like that here. And -- and the -- the -- I think the core --

Justice Kavanaugh: And -- and with the --

Edwin S. Kneedler: -- of the third preference is where -- is where that tribe -- either it occupies the same reservation or it has another parent --

Justice Kavanaugh: Well, you say the core, but it can apply even when it's a Official 153 completely different tribe with none of that, correct?

Edwin S. Kneedler: But -- but if -- but if --

Justice Kavanaugh: Is that -- is that a yes?

Edwin S. Kneedler: It's possible but -- I mean, yes, yes, you would have to look at it.

Justice Kavanaugh: Yeah.

Edwin S. Kneedler: But the good cause exception might allow greater flexibility --

Justice Kavanaugh: And I think you referred --

Edwin S. Kneedler: -- when the child is --

Justice Kavanaugh: -- I think you referred earlier to common spiritual practices that may exist in those circumstances. Does that suggest that Congress could say that, you know, Catholic parents should get a preference --

Edwin S. Kneedler: No. No, not -- not at all.

Justice Kavanaugh: And why not?

Edwin S. Kneedler: Not at all.

Justice Kavanaugh: Why not? Official

Edwin S. Kneedler: No. No --

Justice Kavanaugh: You -- you said spiritual preferences.

Edwin S. Kneedler: Yes.

Justice Kavanaugh: Yeah.

Edwin S. Kneedler: And all I meant to say by that was Congress made a judgment that there are common cultural characteristics among tribes or it had that -- it had that judgment or at least that the preferences it set up allow for taking that into account because it's extended family, it's extended kin, another tribe with cultural similarities. And so I -- tribal members, I mean, it varies. Obviously, not all members are alike, but some people -- some tribal members feel a very strong affinity for their tribe in terms of their heritage going back to before the founding of this country. It's an important part of their cultural stability, their kinship, and -- and stability in growing up.

Justice Kavanaugh: Yeah.

Edwin S. Kneedler: And if you have a young child --

Justice Kavanaugh: You have -- you Official 155 have strong interests, and I respect those, on one side. I'm just trying to say there are -- there are strong interests on the other side too, which is why the case is hard, but I'll finish there. Thank you.

Edwin S. Kneedler: Okay.

Justice Barrett: Mr. Kneedler, I want to pick up where Justice Kavanaugh left off. You -- you said that it would be a harder case in some of the hypotheticals that Justice Kavanaugh presented, say, you know, Treasury instead of the BIA, a preference in employment. Is that because you would say -- you know, I think that the classifications for Indians are difficult because it's difficult -- there's a racial component and the political identity component.

Edwin S. Kneedler: Right.

Justice Barrett: Are you struggling with those hypotheticals -- or, sorry, I don't mean to say struggling. Are you finding those more difficult to answer because you would say that there are some circumstances in which the classification of Indian operates more like a racial classification because it is unconnected Official 156 to tribal sovereignty?

Edwin S. Kneedler: Yes.

Justice Barrett: For the BIA, for example, you know, you can see the connection between the classification and tribal sovereignty, and so it's easier to say that that's a political classification subject to rational basis scrutiny. If you move farther away from that, if you're talking about Treasury, then would you say that it operates as a -- as a political classification but doesn't satisfy rational basis scrutiny, or would you say it's a racial classification and fails strict scrutiny?

Edwin S. Kneedler: I -- you could think about it either way. I think it's still -- I think it's still a political classification but -- but perhaps an unreasonable one because there -- there -- there is, as the Court's cases that have looked at this, Holliday and others, there -- there is, I think, at some point a proportionality aspect to it. Would -- would other people in the society be -- be greatly adversely affected or something -- something like that. Official 157 But, on the equal protection side, I think Adarand is a very good example of that because there was a -- a preference for contracting within a series of Black, Asian, white -- you know, other minority groups. It -- it was expressed in racial terms, and the Court said that was subject to strict scrutiny. But that's -- that's why it's important to look at the context in which Congress is acting and -- because Congress -- Congress doesn't make sweeping judgments in this area. It looks at --

Justice Barrett: But just --

Edwin S. Kneedler: -- the practical problem.

Justice Barrett: -- just to clarify to make sure I understand your position, sometimes the classification can operate as racial and sometimes it would be political, depending on the context in which Congress is acting.

Edwin S. Kneedler: I -- I think, if it's expressly based on tribal citizenship here, either the child or the parent where the child is not -- Official

Justice Barrett: I'm not talking about ICWA.

Edwin S. Kneedler: No, no, I know.

Justice Barrett: I'm talking about some of Justice Kavanaugh's hypotheticals.

Edwin S. Kneedler: But what I -- what I'm saying, if it turns on tribal membership or -- or -- or tribal citizenship, then I think it is political in -- in -- in its -- in its essence. Whether it goes too far in giving a benefit to a -- a -- a -- someone with that political connection --

Justice Barrett: Okay.

Edwin S. Kneedler: -- I think would be the first -- the first way to look at it. Otherwise, there -- there could be strict scrutiny --

Justice Barrett: Well, I'll -- I'll -- I'll move on.

Edwin S. Kneedler: -- challenges to -- to many things affecting --

Justice Barrett: Yeah, I'll move on. I mean, it just seems to me that it's always going to be tied to tribal membership in some way. But I'll -- I'll move on. Just very Official 159 quickly, I'm going to summarize what I understand you to be saying about the Article I issue, and I just want you to tell me if I've got it right or correct me if I don't. In response to Justice Alito's questions in particular and some of Justice Kagan's questions as well, you were saying plenary is plenary. So you would say that Congress's power to regulate Indian affairs is plenary so long as it's rational or, you know, reasonably related or whatever standard we want to use, it's within Congress's power and the only limitation is if it bumps up against some external limit, like the Equal Protection Clause or like sovereign immunity --

Edwin S. Kneedler: No, I -- I -- I think there are -- I think there are built-in restraints if it -- if it -- if the -- if what it's doing is disproportionate perhaps. I mean, it's -- it's hard to articulate this because this Court has never struck down a statute of that sort. And, with respect to the Adarand case, there's no express -- there was no express reference or supposition about tribal membership Official 160 there. And so it was easy to identify it as --

Justice Barrett: Okay. But -- but -- but on my Article I question.

Edwin S. Kneedler: No, on the -- on the Article I question, I think plenary at its core means there are no --

Justice Barrett: No --

Edwin S. Kneedler: -- subject matters, geographic areas categorically beyond its power.

Justice Barrett: But external limits from the Constitution would apply, like equal protection or, in Seminole Tribe, state sovereign immunity?

Edwin S. Kneedler: Yes, they -- they would -- they would apply. And this -- I just want to reiterate this doesn't just come from the -- the Indian Commerce Clause.

Justice Barrett: Right.

Edwin S. Kneedler: There is the inherent power that comes from Congress's --

Justice Barrett: Trust relationships?

Edwin S. Kneedler: -- the federal government, which in turn comes from constitutional powers, like the war power and all of that that renders the tribes dependent Official 161 and, therefore, in need of protection. And so I think it's very hard for this Court to lay down a standard rule about what's necessary to protect the tribes and to fulfill the obligation to the Indians.

Chief Justice Roberts: Justice Jackson?

Justice Jackson: Yes. So I -- I agree to some extent with Justice Kavanaugh that there are strong interests on both sides of these issues. What I'm mostly concerned about is that we might be taking it upon ourselves to weigh those interests where, really, our role should be thinking about what the framers intended with respect to the scope of Congress's authority as it regards Indian affairs and what Congress believed was necessary to protect Indians given that exercise of authority. So I guess I'm -- that makes me wonder whether we shouldn't be giving more weight to the statements in the legislative history from Congress in terms of its decision that ICWA and its provisions were, in fact, related to tribal sovereignty, necessary to preserve tribal sovereignty. So let me just ask you, how -- how Official 162 much weight, if any, should we be giving to clear, direct statements from Congress that this was being done pursuant to its understanding of its plenary authority as given it -- given to it in the Constitution and that it was necessary from Congress's perspective to solve for the problem of these state welfare practices that were causing harm to Indian children given its responsibility as a trust relationship for Indian affairs?

Edwin S. Kneedler: I think very, very great deference, and I think that is the message of cases like Holliday and Perrin and cases like that. And you don't have to look to legislative history for that. It's set out in the -- it's set out in the -- in the beginning of ICWA itself. It starts by saying Clause 3 of Article I provides that Congress shall have the power to regulate commerce with Indians, and through this and other authority it has plenary power. Congress is saying that, through statutes, treaties, et cetera, and -- and the course of dealing with tribes, it has assumed -- assumed the responsibility for the protection of Official 163 Indians. Those are in 1901. 1902 says that Congress hereby declares that it is the policy of this nation to protect the best interests of Indian children by establishing minimum standards in state child welfare proceedings because that was the problem they were addressing. Yes, the boarding school issue was also out there, but Congress saw, again, in the considered, focused way that it deals with problems, it saw a major problem. It thought that this was in the best interests, that the standards and the protections and the framework it set out were in the best interests of the child. And if that displaces ordinary child welfare law in particular cases, Congress made a judgment that the objective factors it set out, which take into account extended family and kinship principles, that family law has, but the way this statute implements them in state proceedings is in the best interests of Indian children, and that judgment by Congress based on extensive hearings is entitled to great deference. Official

Chief Justice Roberts: Thank you, counsel. Mr. Gershengorn. ORAL ARGUMENT OF IAN H. GERSHENGORN ON BEHALF OF THE TRIBAL PARTIES

Ian H. Gershengorn: Mr. Chief Justice, and may it please the Court: Congress enacted ICWA because Indian children were being torn from their families and tribes through the operation of state family law in state courts. I want to emphasize three points at the start. First, there is no -- Congress has plenary power over Indians, and there is no exception in that power for state court child custody proceedings. Since the founding, the health and safety of Indian children has been the province of the federal government and tribes, not the states. And, indeed, when Congress attempted to give states authority over Indian children in the 20th Century, states resisted and said it was an exclusive federal responsibility. Second, Plaintiffs' equal protection claims should be rejected. A facial challenge Official 165 in a case without standing is just about the worst way to consider the constitutionality of a major federal statute. And, in any event, ICWA draws distinctions that are political three times over; it applies only to tribes that the federal government has recognized, it incorporates membership criteria established by sovereign tribes, and it relies on the political decisions of parents to remain tribal members. Third, ICWA protects the best interests of children. It adopts a system of structured decision-making that combines evidence-based presumptions with flexibility to make individualized determinations. It protects child safety, facilitates access to critical remedial services to keep families intact, and it keeps -- works to keep family -- keep children with their families and communities. That's why ICWA is viewed as the gold standard. I'd be happy to take the Court's questions. If not, I will start with -- with the -- I'll take the Court's questions. (Laughter.)

Ian H. Gershengorn: But I'm also happy to keep going. Sorry, though. Official

Chief Justice Roberts: Not that easy. Do you think that ICWA incorporates the familiar best interests of the child inquiry that are -- are applied in family courts throughout the country?

Ian H. Gershengorn: So I think I'd have to say the answer to that is no. What ICWA does is modify that because Congress made the judgment that the best interests standard was being applied in a way that resulted in unwarranted removals. What Congress did was create a system it thought was in the best interests of the child but not by adopting the "state best interests of the child standard" because it found that that was being applied in a discriminatory way. Now, so, Your Honor, there's been a lot of back and forth about good cause, and it seems like good cause is important in the statute. I will say candidly, having looked at the cases, there are three -- the -- the state courts are in a little bit of disarray as to whether the preferences are sort of binding, Official 167 whether there's a straight free -- free-floating best interest standard that sort of -- that -- that works through good cause, or whether, as I think is probably the way Congress intended it, that there's a -- the placements are the default setting and good cause provides a -- a way to rebut the presumption. Now Interior has -- has explained how good cause works. It involves you can take into account the decisions of the -- the views of the parents, the views of the child, if the child is old enough to express them. You can take into account sibling attachment. You can take into account bonding with foster parents as long as it was not done illegally through ICWA. The thing you cannot take into account is socioeconomic status. So what the Casey brief and others say and what -- the reason why medical professionals are here, states are here, family rights advocates are here, is because ICWA is the gold standard. It adopts that -- those evidence-based presumptions and allows for flexibility to protect the best interests of the child. Official 168 So, with respect to sort of the power debate which has been going on, I want to make a couple of points. First, this is at the core of the plenary power doctrine. From the beginning, the -- the plenary power doctrine was used to protect Indians from non-Indians. There is no doubt that if states had moved in and done a wholesale physical removal of Indian children, that would have been within the duty of protection. The fact that this is being done through state courts, through state family law, doesn't deprive Congress of power. Justice Barrett, you were asking about limits. Obviously, when we're talking about plenary power, limits are hard to find, but I will say this Court has identified some. What I would say is, when Congress acts directly on Indians, the limits on plenary power, as opposed to the other provisions, are hard to find, but what Congress said in Perrin was that when Congress acts on non-Indians to protect Indians, then there may be limits. And, in that case, it was the question of banning alcohol sales outside of reservations. And what Congress said -- what Official 169 the Court said was that if you're doing it in counties where there are a lot of Indians, probably okay. If you're doing it statewide when Indians are concentrated in a -- a number of counties, not okay. And so that's a limit that this Court has identified. The limit that does not exist is the one that's tied to land. I -- I've already addressed the limit for state custody proceedings, which, you know, Congress has acted for servicemen to say deployment is not something you can take into -- it cannot be dispositive in a best interest finding, right. Congress has acted pursuant to other federal powers to do exactly what it did in ICWA. The -- the rule that makes no sense is land. Why does it make no sense? From the beginning, Congress has -- from the 17 -- from the Trade and Intercourse Act forward, Congress has legislated off-reservation. It -- it prohibited in the 1834 Act in Section 15 alienating the confidence of Indians. In the earlier acts, it -- it required non-Indians to report Indian invasions to the federal government. It prohibited land sales by Indians Official 170 on and off the reservation. In the liquor sale context, what this Court said in McGowan was Congress has the authority to legislate wherever Indians may be. In Holliday, Forty-Three Gallons, Perrin, all those cases are off reservation. In the treaty cases, this Court has seen in Fishing Vessel, in Cougar Den, right, those were off reservation. And then Indian Health Care Improvement Act, the Indian Housing -- Native American Housing Assistance Program, the Indian Education Program, all of those are off reservation. Why does land make no sense? Land makes no sense because, in the Articles of Confederation, there was a land carveout. It was exactly the kind of reason that we had the change in the Constitution to prevent that. Why does land make no sense? There are landless tribes, right? There are landless tribes in California and Montana. Land is just not a sensible way to divide and limit congressional power.

Justice Alito: There were --

Justice Kavanaugh: What --

Justice Alito: -- several questions Official 171 --

Justice Kavanaugh: Go ahead.

Justice Alito: There were several questions earlier about the justification for granting preference for foster or adoptive parents who are members of an entirely different tribe. Could you speak to that?

Ian H. Gershengorn: Certainly, Your Honor.

Justice Alito: Does that -- is that based on -- on -- on the assumption that all tribes are fungible --

Ian H. Gershengorn: No, Your Honor.

Justice Alito: -- or sufficiently similar to justify that?

Ian H. Gershengorn: No, Your Honor.

Justice Alito: What is it based on?

Ian H. Gershengorn: It is based on the view that -- that -- that all federally recognized -- all federally recognized tribes and members of those tribes share a common political relationship with the United States. That's what renders it political rather than racial. Every member of a federally recognized tribe shares that political relationship. Official 172 Now that then begs the question that a number of the Justices have focused on about, is it rational? That's a fair question, and that's a fair debate. Let me explain why I think it clearly is rational. And some of this Mr. Kneedler touched on and I agree with. It has a clearly -- remember, we're talking about a -- a preference -- a prong that was never applied to any of the -- of the plaintiffs here. And on a facial challenge, right? All I -- all it has to have is a plainly legitimate scope, which it does. In Alaska, for example, it is quite common for Indian members of one tribe to live on the reservation of another. The preference applies quite often there, right? What the -- what your Court -- what the Court has been worrying about is this kind of Maine to Arizona hypo, right, that we identify some tribe in Maine that's going to somehow get a preference. Well, that case has never happened that we have been able to find and able counsel on the other side has been able to find, and I would submit on a facial challenge in a Official 173 situation where it's never applied that would be very odd to strike down a congressional statute. I will say, though, that I -- for the reasons I've said, I think it's -- it is actually quite rational. If the Court disagreed, it's also clearly severable. If I give a -- if I say I would like, you know, Italian food, Chinese food, and any steak joint, and it turns out there's a vegan in the group, that I can't do the steak joint, the first two preferences remain, okay? There's no --

Justice Alito: But why is it rational? I understand that it's a facial challenge, but why -- why is it rational? Before the arrival of Europeans, the tribes were at war with each other often, and they were separated by an entire continent. And I -- I don't know how many cultural similarities you would identify if you compared a tribe in Florida with a tribe in Alaska.

Ian H. Gershengorn: So, Your Honor, I think it's been pretty clear I am not basing this on cultural similarity. I'm basing it on a political relationship with the United States that all the tribes share. Official 174 Now I take Your Honor's point. If we had a case -- and this is why you wait for -- for actual -- for actual as-applied challenges as opposed to facial challenges. If we had a case where a family was denied because a tribe in Maine with no ties to the child was given preference over a Cherokee or a Navajo Indian, we would be talking about a pretty serious -- a pretty serious as-applied challenge. But, of course, we're -- we're a million miles from that. We're the exact opposite. What you're hearing and what the -- what is actually happening on the ground is this is used in situations which are quite unremarkable, as I say, when a member of one tribe is living on the reservation of another, has built exactly the kind of community that ICWA is hoping to preserve. So, you know, from -- from my perspective, I certainly am not here to defend the -- the what I'll call the Maine to Arizona hypo. But I -- what I am here to say is it has a plainly legitimate sweep; it is political, not racial; and that -- that -- that even if Your Honors disagree with that, it's also plainly Official 175 severable.

Chief Justice Roberts: Counsel, on the political and racial point, I'd like to return to the dialogue between Justice Barrett and Mr. Kneedler, which, if I understand it, raised a question, because there are several hypotheticals where Mr. Kneedler, I think, properly recognized that that would present a harder case. And I think the suggestion was, well, is it a harder case because the racial aspect of what is a combined, in most cases anyway, combined polity and blood characterization, in that case, that the racial aspect predominates in some particular way.

Ian H. Gershengorn: Right.

Chief Justice Roberts: Did that seem to resonate with you?

Ian H. Gershengorn: No, Your Honor. You'd be perhaps unsurprised -- no. The way I would view it is -- and this was, I think, one of the ways Justice Barrett framed it, which is how I think about it, which is that's a political characterization. If we're basing -- if -- if Congress is making a judgment on Official 176 federally recognized tribes, remember, that's excluding people who have left the tribe. That's excluding state-recognized tribes.

Chief Justice Roberts: So your answer --

Ian H. Gershengorn: But -- but could I finish? Because I -- I want to respond directly to your question. I'm not finishing on a -- on a tangent. Directly to your question. (Laughter.)

Ian H. Gershengorn: It is a political justification, but it has to meet the Mancari standard, special treatment tied rationally to the fulfillment of Congress's unique obligations to the Indians. What does that mean? Well, I think what it means is that a bare desire to help individual Indians doesn't satisfy it. That's what Mancari suggests, right? Mancari says you can't just give a preference to any Indian, even a federally -- a member of a federally recognized tribe, throughout the government. A bare desire to -- to help is not enough. You know, we could go -- I don't want to parse agency by agency. I think DOJ, which Official 177 does all the litigation for the government and Indian tribes, probably is a situation where you could justify a preference. But the main point, Your Honor, is that Mancari has some bite, right? Mancari says you can't just decide you're going to help any individual Indians and then, you know, close the book.

Chief Justice Roberts: All right. So you disagree with Mr. Kneedler, who did say that in those variety of cases that they would present a harder -- a harder case?

Ian H. Gershengorn: I'm not saying I disagree that it's a harder case. I'm just saying I view them as political.

Chief Justice Roberts: You'd win it just because of --

Ian H. Gershengorn: No.

Chief Justice Roberts: -- despite the fact --

Ian H. Gershengorn: Well, I'd have to hear the particular hypos, Your Honor, but let me -- I want to be clear about the method of analysis, and then I'm happy to answer whatever hypos Your Honor wants. Official 178 The -- the -- my method of analysis is, if the federal government imposes it on federally recognized tribes, it's political. It then has to meet the test that was set forth in Mancari. It has -- the reason -- justification has to be tied rationally to the fulfillment of Congress's unique obligations to the Indians. Some of those, you know, Mancari said BIA, okay; federal government-wide, not okay. And, you know, then I need to see what Congress said. What makes this case so easy, right, is Congress studied this for four years, right? Congress told you exactly why, not in legislative history, but in legislative findings that it said this is what we're worried about, right? We -- this is -- this is going to the -- this is not a peripheral mere desire to benefit individual Indians. This is going to the core of tribal self-government.

Justice Alito: What about the hypothetical about providing COVID vaccines? And suppose Congress says Indians -- the Indian population on the whole has more people with complications -- with -- with factors that make Official 179 them more vulnerable to serious consequences from getting COVID, and, therefore, they should get preference over others in the -- in the distribution of vaccines.

Ian H. Gershengorn: So, Your Honor, the way you posed the hypo, I would consider that a racial classification, not a political one. If Congress were to say just Indians undefined, that might well be a -- a racial classification, might well be. If Congress were to say we're giving it to members of federally recognized Indian tribes first because we find on reservations where the individuals are concentrated that there's a particular problem because they don't have access to healthcare and hospitals in -- in the same way, then I think that would be defensible. That would be a political classification.

Justice Alito: All right. Well, let me modify it. It applies to members of federally recognized tribes but it not -- it's not limited to what happens on the reservation. It's everywhere.

Ian H. Gershengorn: So I think that -- I Official 180 think that would be harder. And it goes back to the bare -- bare desire, that would be a political classification, but the bare desire to help members of tribes is not, we think, is not -- forget what we think -- is not what the Court has said is sufficient under Mancari. And so, you know, I think that -- that that's how I -- that's how I think about it. You know, look, any of the hypos could have hard questions. I've tried to give the Court a sense of what I think this Court's cases demand and, therefore, how we think about it.

Justice Sotomayor: I -- I'd like you to finish that.

Ian H. Gershengorn: No, I'm done.

Justice Sotomayor: You say helping Indians is not enough. But what's the helping Indians plus what?

Ian H. Gershengorn: So I think some link, Your Honor, to tribal self-government is sort of at the core, and that's why I think ICWA is really so easy, because what -- what makes -- Congress made the findings, and -- and a number of the Justices have touched on it this morning -- Congress made the findings that the Official 181 wholesale unwarranted removal of 25 to 35 percent of Indian children was devastating tribes and tribal self-government. There is nothing more core -- this is a place where I disagree quite strongly with my friends on the other side -- like, there is nothing more central to self-government than deciding who --

Justice Sotomayor: So how about --

Ian H. Gershengorn: -- you know, who's a member.

Justice Sotomayor: -- how does -- health --

Ian H. Gershengorn: And you don't have to take my word for it. That's what Congress said.

Justice Sotomayor: -- how does healthcare, the education, the housing allotments, how do they fit in?

Ian H. Gershengorn: I -- I think that --

Justice Sotomayor: Those are the other Title 25.

Ian H. Gershengorn: Yeah, I think that those are -- that shows, Your Honor, a -- a number of things. Official 182 First of all, it shows that Congress has routinely -- there's not -- you know, there's this sense, I think, that Mancari sprung up from -- you know, from the -- from the earth, you know, 40 years ago. And -- but -- but -- what -- what -- Congress has been legislating to help Indians since the beginning, right? It is in the Constitution, and it is there not just -- I'm not using that as sort of an, a-ha, it's in the Constitution. It's in the Constitution because tribes are -- Indians are treated in the Constitution like political entities, right? Congress -- they're treated parallel in the -- in the -- in the -- in the Commerce Clause with foreign nations and with states. There -- Congress has the power to treat -- to conduct treaties with Indians, right? They are -- they are political from the beginning and, like, I mean, I don't want to list all of the Indian-specific statutes, right, but the Dawes Act, the Indian Civil Rights Act, the Indian Reorganization Act, you know, ICWA, IGRA, I mean, Congress has routinely singled out members of federally recognized tribes for Official 183 legislation.

Justice Kagan: Mr. Gershengorn, I want to go back to something you said because you said it -- you know, it's obvious that when you remove 30 percent of children from a political community, you harm that political community. I think some of the strong feelings about this case come from a sense of, yes, but what about the children? I mean, you do harm the political community, but are you saying that the political community is more important than the welfare of the children? And -- and -- and -- and so that's the thing that I think people are going, whoa.

Ian H. Gershengorn: Yeah.

Justice Kagan: I mean, so --

Ian H. Gershengorn: I -- I'm glad you asked that, Your Honor. I think it's critical that what Congress found is not just that ICWA was -- was important for preserving the tribal community. Congress found that ICWA was in the best interests of the children, right? I -- I don't think I could emphasize it more than -- than that. What Congress found Official 184 was that it was -- it was in the interests of the children. And the reason that Congress found that is because -- and the reason ICWA has become the gold standard is because Congress made the judgment and recognized that separating children from their families and communities too soon caused harm. I -- I think it's important to recognize that the average age of people in ICWA is over six years old. This is discussed in the Casey brief. These are children who have formed school mates, school bond. They are children who are playing on sports teams. They are children who have interacted, have a group of friends. They've been -- made connections on the community. And what ICWA realizes is that these children were being taken from their communities too soon. Why? Well, sometimes there was abuse at home, right? But what ICWA says is a lot of times that is remediateable, which is why we have the active efforts provision, right? It's substance abuse, right? It's -- it's the ability, if you can get the child out of the home, get the care to the parents, then Official 185 the child will actually thrive when the child is returned to the home and community.

Chief Justice Roberts: What --

Ian H. Gershengorn: So I --

Chief Justice Roberts: -- what -- what about the third preference, which is a preference for members of another tribe? How does that have to do with keeping the Indian child on the reservation?

Ian H. Gershengorn: So, Your Honor, as I've suggested, the -- the --

Chief Justice Roberts: With the -- with the familiar environment as you suggested.

Ian H. Gershengorn: Sure. The -- and -- and the -- the -- the -- the quickest answer to that, Your Honor, is that -- that in my experience, or I should say my experience talking with people who actually experienced this, which is as close as I've gotten, is that the way this comes up most often actually is tribes -- is individual Indians living on the -- on the reservation of another. And so they are building exactly that community. This is not some random tribe plucked from the ether that all of a sudden gets Official 186 a preference in the real world.

Chief Justice Roberts: Well, there's no limitation of that.

Ian H. Gershengorn: Absolutely, Your Honor. And I am not here to say -- in fact, I think I've conceded that it would be an extraordinarily difficult as-applied challenge in the kinds of -- again, I'm using as a shorthand the Maine to Arizona hypo, but I don't think this is at all difficult on a facial challenge in the real world where this plays out, because what's happening in the real world -- and, remember, we're -- we're talking about not a single example of this appears in any of the briefing that I have seen, okay? And so what's happening in the real world is that individuals are -- are -- individual members are living on the reservations of another and -- and then the preference is going to that tribe.

Chief Justice Roberts: Justice Thomas? Justice Alito? Justice Sotomayor?

Justice Kagan: You, in your opening Official 187 statement, you said that this is a bad case to deal with this question because the individual plaintiffs don't have standing. Why not?

Ian H. Gershengorn: Your Honor, thank you. So they don't have standing for a number of reasons. First, redressability, right? This is a law review article. It does not bind a single state court judge that actually adjudicates a -- a -- a -- a -- a state court adoption proceeding. Second, there is no injury-in-fact. There is not a single individual plaintiff who has had an adoption that existed from the time of the amended complaint through the Fifth Circuit judgment. And so there is no injury-in-fact. And, third, there has been some suggestion that the APA, the challenge to the APA, regs under the APA might save the equal protection challenge. That is incorrect. The injury to the Plaintiffs is coming from the preferences in the statute. There is nothing about the challenge to the regs that eliminates the preferences in the statute or the definition of Indian child. And so there is no Official 188 standing on the equal protection side for --

Justice Kagan: Does it -- does it make a difference that our ruling would bind state officials?

Ian H. Gershengorn: Absolutely not, Your Honor. The -- the Court has been crystal clear that standing needs -- that standing needs to be established in the lower court. Every case would have standing. There would be no advisory opinions because, of course, what this Court says binds everybody. And so the fact that -- that it's made it this far through an erroneous standing ruling does not cure the -- the standing problem that existed at the start. And then I will say, although Your Honor asked me about individuals, Texas has no equal protection rights here. Texas goes on and on, we heard all the numbers this morning, about their injury. That's nice, but injury does not create an equal protection right. And, basically, what -- what Texas's view would do is completely eviscerate third-party standing. Georgia v. McCollum could have been a very short opinion. It could have Official 189 just said Texas is participating in an unconstitutional scheme, thank you very much, but it didn't to that. It looked to see whether there were third-party rights that Georgia could assert that for some reason the third party was unlikely to assert. And -- but regardless of whether teenage drinkers or excluded jurors have a disincentive to -- to bring court cases, that has no application to the situation here, where individual plaintiffs are in court litigating. So there is no justification for Texas to assert rights. And, obviously, the parens patriae is not available against the federal government. So there is no standing, in addition to the fact that the preferences that have most troubled, for example, Justice Kavanaugh and Justice Barrett, they were never applied to any -- like, it's like standing on standing on standing problems. It's like an inverse of turtles all the way down. It's like the absence of turtles anywhere. I need a better metaphor.

Justice Kagan: Thank you.

Chief Justice Roberts: Justice Official 190 Gorsuch?

Justice Gorsuch: You haven't had a chance to address the commandeering arguments in particular with respect to the active efforts provision.

Ian H. Gershengorn: So the active efforts provision, I -- I think I would say two things on that. First of all, the main point from our perspective is that -- and this is at Footnote 44 of -- Footnote 54 on page 85 of our brief -- is that it applies even -- evenhandedly to -- this does not single out Texas or does not single out states for particular treatment. It applies just as much in private placements, and that's set forth in the brief. I also think that it is -- it is right to view this as a situation in which a private right is created. You have the -- the -- the individual Indian child. The -- the tribe has a right to -- you know, to -- to have the placement done only after active efforts are -- you know, active efforts are done. And so I -- I think that with respect to the active efforts provisions, under this Official 191 Court's case law, a provision that applies even-handedly to private parties and to states and creates private rights is -- is not commandeering -- not impermissible commandeering.

Justice Gorsuch: I think we heard from Texas that it disproportionately affects them because most of these are initiated by state entities and also that they'd have to do some work, even in the event of a private-initiated suit.

Ian H. Gershengorn: Yeah, I think, Your Honor, that way madness lies. If this Court is going to evaluate even-handed restrictions to see whether, on balance, they affect more states than private parties, we've really extended the -- you know, the anti-commandeering doctrine and I think the -- this Court's caseload quite substantially because, you know, what the -- you know, it's one thing to say -- you know, not to mention cases like Reno v. Condon. I mean, once you start to say, yes, it regulates even-handedly, yes, in the real world, there are private and state parties at issue, but we're going to look to it and say it more often Official 192 affects, you know, states -- and I think Reno v. Condon is sort of against that. I think that was one where the state may have been more affected. But, in any event, I don't think that that's a sensible line that this Court could ever draw to look at, statute by statute, in the real world, does this affect states more than private citizens.

Justice Gorsuch: Is there any inhibition to a private party raising an as-applied equal protection challenge to the third preference in state court litigation?

Ian H. Gershengorn: Absolutely not.

Justice Gorsuch: And it hasn't happened in 40 years that you're aware of?

Ian H. Gershengorn: I'll just say it has not been brought to our attention either as we've done our research or the other side. As Your Honor knows, recordkeeping in family law cases is tricky, but I'm not aware of -- of -- I'm not aware of an Equal Protection Clause challenge to the third placement. And, indeed, I just want to reemphasize, as I said before, it has not been applied to any of the plaintiffs here. Official

Justice Gorsuch: And, finally, I understand this Court sometimes speaks when Congress hasn't in Indian affairs, but -- but, here, we have a statute by Congress, and are you aware of any time this Court in 200 years has struck down as facially invalid an exercise of Congress's plenary powers over Indian affairs?

Ian H. Gershengorn: I -- I am not.

Chief Justice Roberts: Justice Kavanaugh?

Justice Kavanaugh: Yeah, two questions. First, you mentioned that the average age is six and a half. I assume that means there are hundreds or thousands of children who are relative newborns, one, two, three, over the years, who are affected by this statute. There's no age cutoff in the statute, or are you -- correct?

Ian H. Gershengorn: There is no age cutoff in the statute.

Justice Kavanaugh: And are you aware that it's been applied differently with newborns or --

Ian H. Gershengorn: So, Your Honor --

Justice Kavanaugh: -- younger Official 194 children?

Ian H. Gershengorn: -- that's a trickier question because -- I mean, that's one that I don't think anybody has the empirical research on. I think, as a practical matter, it would surprise me if it weren't, that the statute, the -- the good cause exception itself provides a different application. It says that the wishes of a -- of a child who is old enough to express them are taken into account. The cultural bonds that an older child would have almost certainly would be taken into account if the child comes in and says, you know, I -- I have a friend group, I have a sports team, I have after school activities. So I --

Justice Kavanaugh: You're not -- those are good points, but you're not aware that that's reflected in any case law --

Ian H. Gershengorn: We're on a facial challenge, Your Honor --

Justice Kavanaugh: Yeah.

Ian H. Gershengorn: -- so I'm not aware of --

Justice Kavanaugh: Yeah. Official

Ian H. Gershengorn: -- anything in the record one way or the other on that.

Justice Kavanaugh: Right.

Ian H. Gershengorn: That's the problem, I think, not the solution.

Justice Kavanaugh: No -- no, a fair point. Secondly, on the land question, I just want to get -- make sure this sentence from Mancari -- that you can respond to it: "Literally every piece of legislation dealing with Indian tribes and reservations and certainly all legislation dealing with the BIA, single out for special treatment a constituency of tribal Indians living on or near reservations." Is that accurate then? Is it still accurate now?

Ian H. Gershengorn: I think it was -- I think the scope of history of Indian law suggests that it is not accurate and was never accurate. They -- Congress has legislated for tribal -- and tribal members off the land and has legislated for non-Indians under the Indian powers from the beginning. Official 196 But, as I said, like, to me, the bigger problem is -- is -- two -- two points, Your Honor. One is I really think it's important that Mancari isn't the root of the Congress's special treatment of Indians. That dates back to the text of the Constitution and from the very first Trade and Intercourse Acts, that -- that -- that -- that -- that started, and then for the reasons I've said and I won't repeat --

Justice Kavanaugh: That's fair.

Ian H. Gershengorn: -- I think land is like -- is just a nonsensical -- a nonsensical way to crosscut given what the Constitution was trying to do vis-à-vis the Articles of Confederation, given the history of the treatment, and given --

Justice Kavanaugh: Your --

Ian H. Gershengorn: -- what this Court has said over --

Justice Kavanaugh: -- your point -- sorry, because time --

Ian H. Gershengorn: I'm sorry. I'm sorry.

Justice Kavanaugh: -- is short. Your Official 197 -- your point is the sentence is not accurate? I mean, the tip-off should have been the word "literally," I suppose, but it's in there. (Laughter.)

Justice Kavanaugh: Thank you.

Chief Justice Roberts: Justice Barrett?

Justice Barrett: Active efforts, I'm just trying to get a picture for how this works. You're saying it applies to private parties and the state. And this is just because I'm having a difficult time imagining how this actually happens on the ground. You have to show that efforts have been made to provide remedial services and rehabilitation programs designed to prevent the breakup of the Indian family. Who -- I mean, Texas says, well, that's -- those are state-run programs that would be those efforts, like the rehabilitation.

Ian H. Gershengorn: Yeah.

Justice Barrett: How does that work in the context --

Ian H. Gershengorn: So, Your Honor --

Justice Barrett: -- of a private Official 198 party?

Ian H. Gershengorn: -- I have to confess I don't know, and I -- I apologize for that.

Justice Barrett: No.

Ian H. Gershengorn: I don't know how that works in the real world in private placements. It doesn't seem to me that it inevitably has to go through the state services, but the candid answer to your question is I just don't know.

Justice Barrett: Okay. And then one other quick question. Would your client have any objection -- I -- I asked General Stone, okay, well, one -- one argument that the government makes is this isn't commandeering because you can walk away. You know, you can decide not to do this. Would your client have any objection then if the State of Texas -- General Stone said our substantive law requires us to undertake efforts to place children in foster care in these circumstances, and it would be unmanageable for us to discern when a child is Indian or a member of a tribe or not. Let's imagine Texas says, okay, we want to walk away, we don't want to engage in Official 199 these active efforts, so we're just going to get out of the business, and if we can discern that a child is a member of a tribe, our agencies will not be involved in placing the children in foster care.

Ian H. Gershengorn: So, Your Honor, I -- I mean, I think that would be a disaster on the ground --

Justice Barrett: But -- but could --

Ian H. Gershengorn: -- if that's what Your Honor is asking.

Justice Barrett: -- but would it be legal for Texas to do that? Would there be an equal protection challenge that someone could bring against Texas for treating Indian children differently when it comes to foster placement? I mean, you're saying --

Ian H. Gershengorn: I don't -- yeah.

Justice Barrett: -- that there would be political consequences or practical consequences to Texas walking away from foster care. And I agree.

Ian H. Gershengorn: Yeah.

Justice Barrett: And General Stone made that point. I guess what I'm -- Official

Ian H. Gershengorn: I think it would be hard for me to argue, Your Honor -- I'm sorry to cut you off. Finish your question.

Justice Barrett: Oh, no, I was just going to say, but what I'm asking is, if we're thinking about whether Texas has a legal choice, it --

Ian H. Gershengorn: Yeah.

Justice Barrett: -- there might be practical considerations. I guess I'm trying to figure out is this really voluntary --

Ian H. Gershengorn: So I think I would have to say, Your Honor, given that there were no -- for the first 150 some odd years of our country, there was no childcare system at all, that it would be hard for me to say that Texas is constitutionally required to have one. But that's --

Justice Barrett: But, if they have one, could they cut Indian children out of it, is my question, because they don't have to --

Ian H. Gershengorn: No. I think --

Justice Barrett: -- obey ICWA with respect to -- or follow --

Ian H. Gershengorn: I think, if Texas -- Official 201 I think that would raise serious equal protection problems --

Justice Barrett: So they don't have a choice then --

Ian H. Gershengorn: Well, they have --

Justice Barrett: -- about complying?

Ian H. Gershengorn: -- a choice whether to participate in the proceedings at all. They may or may -- they -- what they may not be able to do is say I'm doing it only for non-Indian children.

Justice Barrett: Participate in proceedings --

Ian H. Gershengorn: In -- in --

Justice Barrett: -- you mean in foster care?

Ian H. Gershengorn: Correct.

Justice Barrett: In the foster care system?

Ian H. Gershengorn: Correct. I don't think there's any constitutional requirement they have a foster care system --

Justice Barrett: But, if they have a foster care system, they couldn't say because of what ICWA requires us to undertake in these Official 202 active efforts and the -- you know, they complain about the recordkeeping, we just want none of that, so we're going to walk away from that, we're not going to let the federal government impose those obligations on us?

Ian H. Gershengorn: So I think that's right, but I have to say, of all the answers I've given today, that's the one I'm least confident of. (Laughter.)

Justice Barrett: Thank you.

Chief Justice Roberts: Justice Jackson?

Justice Jackson: Yes. So is the reason that you, in response to Justice Barrett, the first part of her question, said that you don't really know the details of how ICWA would play out in the ways that she indicated is because we're here on a facial challenge and not an as-applied challenge? You focused on that a couple times.

Ian H. Gershengorn: I think it's most honest to say yes, compounded by my own ignorance. (Laughter.) Official

Justice Jackson: Okay. Well, can you just help me to understand the implications of the facial versus as-applied --

Ian H. Gershengorn: Yeah.

Justice Jackson: -- nature of the challenge that's being --

Ian H. Gershengorn: Sure.

Justice Jackson: -- that's being brought here?

Ian H. Gershengorn: I think it comes in -- in two important ways. First of all, I think it completely changes the standard of review that this Court -- that this Court uses. What the Court has said in facial challenges is statutes -- congressional statutes survive if they have a plainly legitimate scope. And so I think that, like, it completely changes the way we talk about, for example, the -- the third -- the third preference. And, you know, then I think, on the flip side, in addition to sort of the change in legal standard, it changes how we talk about it. What we are talking about here is a series of hypotheticals. Honestly, we don't even have the facts of the individual cases before us. Official 204 Remember, these are childcare proceedings. I mean, there's a debate about -- about Child P, and then there's an amicus brief from the grandmother. They're -- they're presenting starkly different views of what happened. The reason we're doing this is because we're here on facial challenge, right? How this plays out in the real world, what the limits are, this is a very, very difficult area of the law, as the last two, three hours have shown. And -- and to decide it on the basis of hypotheticals that never arise in the real world and yet take away a statute that has made such a meaningful difference for so many children seems to me just like not the way this Court should be deciding questions. Go back to what I said at the start. Deciding a facial challenge to a statute in a situation where there is no standing seems to me like a very poor way to resolve major challenges to critical legislation.

Chief Justice Roberts: Thank you, counsel. The case is submitted