Haaland v. Brackeen/Opinion of Justice Gorsuch
SUPREME COURT OF THE UNITED STATES
Nos. 21–376, 21–377, 21–378 and 21–380
DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL., PETITIONERS
21–376v.21–376
CHAD EVERET BRACKEEN, ET AL.
CHEROKEE NATION, ET AL., PETITIONERS
21–377v.21–377
CHAD EVERET BRACKEEN, ET AL.
TEXAS, PETITIONER
21–378v.21–378
DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.
CHAD EVERET BRACKEEN, ET AL., PETITIONERS
21–380v.21–380
DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL.
ON WRITS OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
[June 15, 2023]
Justice Gorsuch, with whom Justice Sotomayor and Justice Jackson join as to Parts I and III, concurring.
In affirming the constitutionality of the Indian Child Welfare Act (ICWA), the Court safeguards the ability of tribal members to raise their children free from interference by state authorities and other outside parties. In the process, the Court also goes a long way toward restoring the original balance between federal, state, and tribal powers the Constitution envisioned. I am pleased to join the Court’s opinion in full. I write separately to add some historical context. To appreciate fully the significance of today’s decision requires an understanding of the long line of policies that drove Congress to adopt ICWA. And to appreciate why that law surely comports with the Constitution requires a bird’s-eye view of how our founding document mediates between competing federal, state, and tribal claims of sovereignty.
I
The Indian Child Welfare Act did not emerge from a vacuum. It came as a direct response to the mass removal of Indian children from their families during the 1950s, 1960s, and 1970s by state officials and private parties. That practice, in turn, was only the latest iteration of a much older policy of removing Indian children from their families—one initially spearheaded by federal officials with the aid of their state counterparts nearly 150 years ago. In all its many forms, the dissolution of the Indian family has had devastating effects on children and parents alike. It has also presented an existential threat to the continued vitality of Tribes—something many federal and state officials over the years saw as a feature, not as a flaw. This is the story of ICWA. And with this story, it pays to start at the beginning.
A
When Native American Tribes were forced onto reservations, they understood that life would never again be as it was. M. Fletcher & W. Singel, Indian Children and the Federal–Tribal Trust Relationship, 95 Neb. L. Rev. 885, 917–918 (2017) (Fletcher & Singel). Securing a foothold for their children in a rapidly changing world, the Tribes knew, would require schooling. Ibid. So as they ceded their lands, Tribes also negotiated “more than 150” treaties with the United States that included “education-related provisions.” Dept. of Interior, B. Newland, Federal Indian Boarding School Initiative Investigative Report 33 (May 2022) (BIA Report). Many tribal leaders hoped these provisions would lead to the creation of “reservation Indian schools that would blend traditional Indian education with the needed non-Indian skills that would allow their members to adapt to the reservation way of life.” R. Cross, American Indian Education: The Terror of History and the Nation’s Debt to the Indian Peoples, 21 U. Ark. Little Rock L. Rev. 941, 950 (1999).
At first, Indian education typically came in the form of day schools, many of them “established through the … efforts of missionaries or the wives of Army officers stationed at military reservations in the Indian country.” Annual Report of the Commissioner of Indian Affairs to the Secretary of Interior, p. LXI (1886) (ARCIA 1886). At those day schools, “Indian children would learn English as a second language,” along with “math and science.” Fletcher & Singel 917–918. But the children lived at home with their families where they could continue to learn and practice “their languages, beliefs, and traditional knowledge.” Id., at 918. At least in those “early decades,” schooling was “generally … not compulsory” anyway. Id., at 914.
The federal government had darker designs. By the late 1870s, its goals turned toward destroying tribal identity and assimilating Indians into broader society. See L. Lacey, The White Man’s Law and the American Indian Family in the Assimilation Era, 40 Ark. L. Rev. 327, 356–357 (1986). Achieving those goals, officials reasoned, required the “complete isolation of the Indian child from his savage antecedents.” ARCIA 1886, at LXI. And because “the warm reciprocal affection existing between parents and children” was “among the strongest characteristics of the Indian nature,” officials set out to eliminate it by dissolving Indian families. Annual Report of the Commissioner of Indian Affairs to the Secretary of Interior 392 (1904).
Thus began Indian boarding schools. In 1879, the Carlisle Indian Industrial School opened its doors at the site of an old military base in central Pennsylvania. Carlisle’s head, then-Captain Richard Henry Pratt, summarized the school’s mission this way: “[A]ll the Indian there is in the race should be dead. Kill the Indian in him, and save the man.” The Advantages of Mingling Indians With Whites, in Proceedings of the National Conference of Charities and Correction 46 (I. Barrows ed. 1892). From its inception, Carlisle depended on state support. The school “was deeply enmeshed with local governments and their services,” and it was “expanded thanks to the Pennsylvania Legislature.” Brief for American Historical Association et al. as Amici Curiae 11 (Historians Brief). Ultimately, Carlisle became the model for what would become a system of 408 similar federal institutions nationwide. BIA Report 82. “The essential feature” of each was, in the federal government’s own words, “the abolition of the old tribal relations.” Annual Report of the Commissioner of Indian Affairs to the Secretary of Interior 28 (1910).
Unsurprisingly, “[m]any Indian families resisted” the federal government’s boarding school initiative and “refus[ed] to send their children.” S. Rep. No. 91–501, pt. 1, p. 12 (1969). But Congress would not be denied. It authorized the Secretary of the Interior to “prevent the issuing of rations or the furnishing of subsistence” to Indian families who would not surrender their children. Act of Mar. 3, 1893, 27 Stat. 628, 635; see also, e.g., Act of Feb. 14, 1920, 41 Stat. 410. When economic coercion failed, officials sometimes resorted to abduction. See BIA Report 36. As one official later recounted, officers would “visit the [Indian] camps unexpectedly with a detachment of [officers], and seize such children as were proper and take them away to school, willing or unwilling.” ARCIA 1886, at 199. When parents “hurried their children off to the mountains or hid them away in camp,” agents “chase[d] and capture[d] them like so many wild rabbits.” Ibid. Fathers were described as “sullen,” mothers “loud in their lamentations,” and the children “almost out of their wits with fright.” Ibid.
Upon the children’s arrival, the boarding schools would often seek to strip them of nearly every aspect of their identity. The schools would take away their Indian names and give them English ones. See BIA Report 53. The schools would cut their hair—a point of shame in many native communities, see J. Reyhner & J. Eder, American Indian Education 178 (2004)—and confiscate their traditional clothes. ARCIA 1886, at 199. Administrators delighted in the process, describing the “metamorphosis [a]s wonderful,” and professing that, in the main, “the little savage seems quite proud of his appearance.” Ibid. After intake, the schools frequently prohibited children from speaking their native language or engaging in customary cultural or religious practices. BIA Report 53. Nor could children freely associate with members of their own Tribe. Schools would organize dorms by the “[s]ize of cadets, and not their tribal relations,” so as to further “br[eak] up tribal associations.” ARCIA 1886, at 6.
Resistance could invite punishments that included “withholding food” and “whipping.” BIA Report 54 (internal quotation marks omitted). Older boys faced “court-martial,” with other Indian children serving as prosecutors and judges. Annual Report of the Commissioner of Indian Affairs to the Secretary of Interior 188 (1881). Even compliant students faced “[r]ampant physical, sexual, and emotional abuse; disease; malnourishment; overcrowding; and lack of health care.” BIA Report 56. Given these conditions, it is unsurprising that many children tried (often unsuccessfully) to flee. Id., at 55, n. 176 (recounting incidents). State officials played a key role in foiling those efforts. “[P]olice from a variety of jurisdictions” assisted in “captur[ing] and return[ing] runaway school children.” Historians Brief 11–12. For “the runaways,” school administrators believed “a whipping administered soundly and prayerfully, helps greatly towards bringing about the desired result.” BIA Report 55 (internal quotation marks omitted). As one Commissioner of Indian Affairs put it, while “[t]he first wild redskin placed in the school[s] chafes at the loss of freedom and longs to return to his wildwood home,” that resistance would fade “with each successive generation,” leaving a “greater desir[e] to be in touch with the dominant race.” Id., at 51–52 (internal quotation marks omitted).
Adding insult to injury, the United States stuck Tribes with a bill for these programs. At points, as much as 95% of the funding for Indian boarding schools came from “Indian trust fund monies” raised by selling Indian land. Id., at 44. To subsidize operations further, the boarding schools frequently required children not even 12 years old to work on the grounds. Id., at 62–63. Some rationalized this experience as a benefit to the children. Id., at 59–63. But in candor, Indian boarding schools “could not possibly be maintained … were it not for the fact that students [were] required to do … an amount of labor that ha[d] in the aggregate a very appreciable monetary value.” L. Meriam, Institute for Government Research, The Problem of Indian Administration 376 (1928) (Meriam Report).
To lower costs further and promote assimilation, some schools created an “outing system,” which sent Indian children to live “with white families” and perform “household and farm chores” for them. R. Trennert, From Carlisle to Phoenix: The Rise and Fall of the Indian Outing System, 1878–1930, 52 Pacific Hist. Rev. 267, 273 (1983). This program took many Indian children “even further from their homes, families, and cultures.” Fletcher & Singel 943. Advocates of the outing system hoped it would be “extended until every Indian child was in a white home.” D. Otis, The Dawes Act and the Allotment of Indian Lands 68 (1973). In some respects, outing-system advocates were ahead of their time. The program they devised laid the groundwork for the system of mass adoption that, as we shall see, eventually moved Congress to enact ICWA many decades later.
In 1928, the Meriam Report, prepared by the Brookings Institution, examined conditions in the Indian boarding schools. It found, “frankly and unequivocally,” that “the provisions for the care of the Indian children … are grossly inadequate.” Meriam Report 11. It recommended that the federal government “accelerat[e]” the “mov[e] away from the boarding school” system in favor of “day school or public school facilities.” Id., at 35. That transition would be slow to materialize, though. As late as 1971, federal boarding schools continued to house “more than 17 per cent of the Indian school-age population.” W. Byler, The Destruction of American Indian Families 1 (S. Unger ed. 1977) (AAIA Report).
B
The transition away from boarding schools was not the end of efforts to remove Indian children from their families and Tribes; more nearly, it was the end of the beginning. As federal boarding schools closed their doors and Indian children returned to the reservations, States with significant Native American populations found themselves facing significant new educational and welfare responsibilities. Historians Brief 13–18. Around this time, as fate would have it, “shifting racial ideologies and changing gender norms [had] led to an increased demand for Indian children” by adoptive couples. M. Jacobs, Remembering the “Forgotten Child”: The American Indian Child Welfare Crisis of the 1960s and 1970s, 37 Am. Indian Q. 136, 141 (2013). Certain States saw in this shift an opportunity. They could “save … money” by “promoting the adoption of Indian children by private families.” Id., at 153.
This restarted a now-familiar nightmare for Indian families. The same assimilationist rhetoric previously invoked by the federal government persisted, “voiced this time by state and county officials.” L. George, Why the Need for the Indian Child Welfare Act?, 5 J. of Multicultural Social Work 165, 169 (1997). “ ‘If you want to solve the Indian problem you can do it in one generation,’ ” one official put it. Ibid. “ ‘You can take all of [the] children of school age and move them bodily out of the Indian country and transport them to some other part of the United States.’ ” Ibid. This would allow “ ‘civilized people’ ” to raise the children, instead of their families or their tribal communities. Ibid.
In this respect, “[t]he removal of Indian children by [S]tates ha[d] much in common with Indian boarding schools.” Fletcher & Singel 952. Through the 1960s and 1970s, Indian-child removal reached new heights. Surveys conducted in 1969 and 1974 showed that “approximately 25–35 per cent of all Indian children [were] separated from their families.” AAIA Report 1. Often, these removals whisked children not only out of their families but out of their communities. Some estimate that “more than 90 per cent of non-related adoptions of Indian children [were] made by non-Indian couples.” Id., at 2.
These family separations frequently lacked justification. According to one report, only about “1 per cent” of the separations studied involved alleged physical abuse. Ibid. The other 99 percent? “[V]ague grounds” such “as ‘neglect’ or ‘social deprivation.’ ” Ibid. These determinations, often “wholly inappropriate in the context of Indian family life,” came mainly from non-Indian social workers, many of whom were “ignorant of Indian cultural values and social norms.” Id., at 2–3. They routinely penalized Indian parents for conditions of “[p]overty, poor housing, lack of modern plumbing, and overcrowding.” Id., at 3. One 3-year-old Sioux child, for instance, was removed from her family on the State’s “belief that an Indian reservation is an unsuitable environment for a child.” Ibid. So it was that some Indian families, “forced onto reservations at gunpoint,” were later “told that they live[d] in a place unfit for raising their children.” Id., at 3–4.
Aggravating matters, these separations were frequently “carried out without due process of law.” Id., at 4. Children and their parents rarely had counsel. Ibid. For that matter, few cases saw the inside of a courtroom. Welfare departments knew that they could threaten to withhold benefit payments if Indian parents did not surrender custody. Id., at 4–5. Nor were threats always necessary. After all the Tribes had suffered at the government’s hands, many parents simply believed they had no power to resist. Ibid. One interviewed mother “wept that she did not dare protest the taking of her children for fear of going to jail.” Id., at 7. For those Indian parents who did resist, “simple abduction” remained an option. Id., at 5. Parents were, for instance, sometimes tricked into signing forms that they believed authorized only a brief removal of their children. Ibid. Only later would they discover that the forms purported to surrender full custody. Ibid.
Like the boarding school system that preceded it, this new program of removal had often-disastrous consequences. “Because the family is the most fundamental economic, educational, and health-care unit” in society, these “assaults on Indian families” contributed to the precarious conditions that Indian parents and children already faced. Id., at 7–8. Many parents came to “feel hopeless, powerless, and unworthy”—further feeding the cycle of removal. Id., at 8. For many children, separation from their families caused “severe distress” that “interfere[d] with their physical, mental, and social growth and development.” Ibid. It appears, too, that Indian children were “significantly more likely” to experience “physical, sexual, [and] emotional” abuse in foster and adoptive homes than their white counterparts. A. Landers, S. Danes, A. Campbell, & S. White Hawk, Abuse After Abuse: The Recurrent Maltreatment of American Indian Children in Foster Care and Adoption, 111 Child Abuse & Neglect 104805, p. 9 (2021).
All that often translated into long-lasting adverse health and emotional effects. See M. Yellow Horse Brave Heart, The Historical Trauma Response Among Natives and Its Relationship with Substance Abuse: A Lakota Illustration, 35 J. of Psychoactive Drugs 1, 7–13 (2003); U. Running Bear et al., The Impact of Individual and Parental American Indian Boarding School Attendance on Chronic Physical Health of Northern Plains Tribes, 42 Family & Community Health 1, 3–7 (2019). As one study warned: “[E]fforts to make Indian children ‘white,’ ” by removing them from their Tribes, “can destroy them.” AAIA Report 9.
C
Eventually, Congress could ignore the problem no longer. In 1978, it responded with the Indian Child Welfare Act. 92 Stat. 3096. The statute’s findings show that Congress was acutely aware of the scope of the crisis. “[A]n alarmingly high percentage of Indian families,” Congress observed, were being “broken up by the removal, often unwarranted, of their children from them by nontribal [state] public and private agencies.” 25 U. S. C. §1901(4). And “an alarmingly high percentage of such children” were “placed in non-Indian foster and adoptive homes and institutions.” Ibid. Removal at that scale threatened the “continued existence and integrity of Indian [T]ribes.” §1901(3).
The statute Congress settled upon contains various provisions aimed at addressing this crisis. At bottom, though, the law’s operation is simple. It installs substantive and procedural guardrails against the unjustified termination of parental rights and removal of Indian children from tribal life.
The touchstone of the statute is notice. In any involuntary removal proceeding involving an Indian child, the initiating party must inform (1) the parent or custodian; and (2) the child’s Tribe. §1912(a). Either or both can intervene. §1911(c). ICWA also makes it harder for the moving party to win an involuntary removal proceeding. The party must show that “active efforts” have been made to avoid removing the Indian child. §1912(d). It must show the status quo is “likely to result in serious emotional or physical damage to the child.” §1912(e), (f). And it must prove that fact by “clear and convincing evidence,” §1912(e) (for placement in foster services), or “beyond a reasonable doubt,” §1912(f) (for termination of parental rights).
Even when it comes to voluntary removal proceedings, ICWA sets certain “minimum Federal standards” for “the placement of [Indian] children in foster or adoptive homes.” §1902. In any adoptive placement, a court by default must give preference to “(1) a member of the child’s extended family; (2) other members of the Indian child’s [T]ribe; or (3) other Indian families.” §1915(a). This priority governs unless the initiating party can show “good cause.” Ibid. A similar regime applies by default to foster-care or pre-adoptive placements. §1915(b). But note that “by default.” ICWA gives Tribes a voice. It allows them to establish a “different order of preference by resolution,” provided it is “the least restrictive setting appropriate to the particular needs of the child.” §1915(c).
Recognizing that coercion remains possible even with these protections, ICWA also allows for postplacement relief. It lets the Indian child, the parent, or the Tribe “petition any court of competent jurisdiction” to “invalidate” an order that violated key provisions of ICWA. §1914. Of special relevance, an Indian parent consenting to adoption has two years to withdraw consent on “the grounds that consent was obtained through fraud or duress.” §1913(d).
ICWA is not a panacea. While “[a]dopting ICWA marked one step toward upholding tribal rights,” “many [S]tates” have struggled with “effective implementation.” Maine Wabanaki–State Child Welfare Truth & Reconciliation Commission, Beyond the Mandate: Continuing the Conversation 12 (2015). Others resist ICWA outright, as the present litigation by Texas attests. See generally M. Fletcher & W. Singel, Lawyering the Indian Child Welfare Act, 120 Mich. L. Rev. 1755 (2022). Still, the statute “has achieved considerable success in stemming unwarranted removals by state officials of Indian children from their families and communities.” B. Atwood, Flashpoints Under the Indian Child Welfare Act: Toward a New Understanding of State Court Resistance, 51 Emory L. J. 587, 621 (2002). And considerable research “[s]ubsequent to Congress’s enactment of ICWA” has “borne out the statute’s basic premise”—that “[i]t is generally in the best interests of Indian children to be raised in Indian homes.” Brief for American Psychological Association et al. as Amici Curiae 10–24.
II
This history leads us to the question at the heart of today’s cases: Did Congress lack the constitutional authority to enact ICWA, as Texas and the private plaintiffs contend? In truth, that is not one question, but many. What authorities do the Tribes possess under our Constitution? What power does Congress have with respect to tribal relations? What does that mean for States? And how do those principles apply in a context like adoption, which involves competing claims of federal, state, and tribal authority?
Answering these questions requires a full view of the Indian-law bargain struck in our Constitution. Under the terms of that bargain, Indian Tribes remain independent sovereigns with the exclusive power to manage their internal matters. As a corollary of that sovereignty, States have virtually no role to play when it comes to Indian affairs. To preserve this equilibrium between Tribes and States, the Constitution vests in the federal government a set of potent (but limited and enumerated) powers. In particular, the Indian Commerce Clause gives Congress a robust (but not plenary) power to regulate the ways in which non-Indians may interact with Indians. To understand each of those pieces—and how they fit together—is to understand why the Indian Child Welfare Act must survive today’s legal challenge.
This is all much more straightforward than it sounds. Take each piece of the puzzle in turn. Then, with the full constitutional picture assembled, return to ICWA’s provisions. By then, you will have all you need to see why the Court upholds the law.
A
Start with the question how our Constitution approaches tribal sovereignty. In the years before Jamestown, Indian Tribes existed as “self-governing sovereign political communities.” United States v. Wheeler, 435 U. S. 313, 322–323 (1978). They employed “sophisticated governmental models,” formed “[c]onfederacies” with one another, and often engaged in decisionmaking by “consensual agreement.” 1 B. Pritzker, Native Americans: An Encyclopedia of History, Culture, and Peoples xii (1998).
When the British crossed the Atlantic, they brought with them their own legal understandings. A seasoned colonial power, Britain was no stranger to the idea of “tributary” and “feudatory” states. E. de Vattel, Law of Nations 60–61 (1805) (Vattel). And it was a long-held tenet of international law that such entities do not “cease to be sovereign and independent” even when subject to military conquest—at least not “so long as self government and sovereign and independent authority are left in the[ir] administration.” Worcester v. Georgia, 6 Pet. 515, 561 (1832). For that reason, early “history furnishes no example, from the first settlement of our country, of any attempt on the part of the [C]rown to interfere with the internal affairs of the Indians.” Id., at 547; see also Vattel 60. Instead, the “settled state of things” reflected the British view that Tribes were “nations capable of maintaining the relations of peace and war; [and] of governing themselves.” 6 Pet., at 548–549.
Consistent with that understanding, the British regarded “the Indians as owners of their land.” S. Banner, How the Indians Lost Their Land: Law and Power on the Frontier 12 (2005). Britain often purchased land from Tribes (at least nominally) and predicated its system of legal title on those purchases. Ibid. The Crown entered into all manner of treaties with the Tribes too—just as it did with fellow European powers. See, e.g., Letter from Gov. Burnet to Lords of Trade, Nov. 21, 1722, concerning the Great Treaty of 1722 Between the Five Nations, the Mahicans, and the Colonies of New York, Virginia, and Pennsylvania, in 5 Documents Relative to the Colonial History of the State of New York 655–681 (E. O’Callaghan ed. 1955); Deed in Trust From Three of the Five Nations of Indians to the King in 1726, in id., at 800–801; A Treaty Held at the Town of Lancaster with the Indians of the Six Nations in 1744, in Indian Treaties, Printed by Benjamin Franklin, 1736–1762, pp. 43–49 (1938).
Ultimately, “the American Revolution replaced that legal framework with a similar one.” Oklahoma v. Castro-Huerta, 597 U. S. ___, ___ (2022) (Gorsuch, J., dissenting) (slip op., at 2). The newly independent Nation wasted no time entering into treaties of its own—in no small part to secure its continued existence against external threats. See, e.g., Articles of Agreement and Confederation, Sept. 17, 1778, 7 Stat. 13. In practice, too, “[t]he new Republic” broadly recognized “the sovereignty of Indian [T]ribes,” even if it did so “sometimes grudgingly.” W. Quinn, Federal Acknowledgment of American Indian Tribes: The Historical Development of a Legal Concept, 34 Am. J. L. Hist. 331, 337 (1990). As we will see, the period under the Articles of Confederation was marred by significant conflict, driven by state and individual intrusions on tribal land. But the Constitution that followed reflected an understanding that Tribes enjoy a power to rule themselves that no other governmental body—state or federal—may usurp.
Several constitutional provisions prove the point. One sure tell is the federal government’s treaty power. See Art. II, §2, cl. 2. Because the United States “adopted and sanctioned the previous treaties with the Indian nations, [it] consequently admit[ted the Tribes’] rank among those powers who are capable of making treaties.” Worcester, 6 Pet., at 559. Similarly, the Commerce Clause vests in Congress the power to “regulate Commerce with foreign Nations,” “among the several States,” and “with the Indian Tribes,” Art. I, §8, cl. 3—conferrals of authority with respect to three separate sorts of sovereign entities that do not entail the power to eliminate any of them. Even beyond that, the Constitution exempts from the apportionment calculus “Indians not taxed.” §2, cl. 3. This formula “ratified the legal treatment of tribal Indians [even] within the [S]tates as separate and sovereign peoples, who were simply not part of the state polities.” R. Clinton, The Dormant Indian Commerce Clause, 27 Conn. L. Rev. 1055, 1150 (1995) (Clinton 1995). (The Fourteenth Amendment would later reprise this language, Amdt. 14, §2, confirming both the enduring sovereignty of Tribes and the bedrock principle that Indian status is a “political rather than racial” classification, Morton v. Mancari, 417 U. S. 535, 553, n. 24 (1974).)
Given these express provisions, the early conduct of the political branches comes as little surprise. From the beginning, the “Washington Administration acknowledged considerable Native autonomy.” G. Ablavsky, Beyond the Indian Commerce Clause, 124 Yale L. J. 1012, 1067 (2015) (Ablavsky 2015). Henry Knox, President Washington’s Secretary of War, described the Tribes as akin to “foreign nations, not as the subjects of any particular [S]tate.” Letter to G. Washington (July 7, 1789), in 3 Papers of George Washington: Presidential Series 134–141 (D. Twohig ed. 1989). Thomas Jefferson spoke of them as maintaining “full, undivided, and independent sovereignty as long as they chose to keep it,” commenting also “that this might be for ever.” Notes on Cabinet Opinions (Feb. 26, 1793), in 25 Papers of Thomas Jefferson 271–272 (J. Catanzariti ed. 1992). This view would later feature in a formal opinion of the Attorney General, who explained that, “[s]o long as a [T]ribe exists … its title and possession are sovereign and exclusive; and there exists no authority to enter upon their lands, for any purpose whatever, without their consent.” 1 Op. Atty. Gen. 465, 466 (1821).
What went for the Executive went for Congress. In the first few decades of the Nation’s existence, the Legislative Branch passed a battery of statutes known as the Indian Trade and Intercourse Acts. See, e.g., Act of July 22, 1790, ch. 33, 1 Stat. 137; Act of Mar. 1, 1793, ch. 19, 1 Stat. 329; Act of May 19, 1796, ch. 30, 1 Stat. 469; Act of Mar. 30, 1802, ch. 13, 2 Stat. 139; Act of June 30, 1834, 4 Stat. 729. Without exception, those Acts “either explicitly or implicitly regulated only the non-Indians who venture[d] into Indian country to deal with Indians,” and “did not purport to regulate the [T]ribes or their members” in any way. R. Clinton, There is No Federal Supremacy Clause for Indian Tribes, 34 Ariz. St. L. J. 113, 134 (2002) (Clinton 2002).
This Court recognized many of these same points in its early cases. For example, in Worcester, the State of Georgia sought to seize Cherokee lands, abolish the Tribe and its laws, and apply its own criminal laws to tribal lands. 6 Pet., at 525–528. Holding Georgia’s laws unconstitutional, this Court acknowledged that Tribes remain “independent political communities, retaining their original natural rights.” Id., at 559. While “necessarily dependent on” the United States, id., at 555, under “the settled doctrine of the law of nations,” the Court held, “a weaker power does not surrender its independence—its right to self-government, by associating with a stronger and taking its protection,” id., at 560–561. The Cherokee, like other Tribes, remained “a distinct community occupying its own territory … in which the laws of [the State] can have no force, and which the citizens of [that State] have no right to enter, but with the assent of the [Tribe] themselves, or in conformity with treaties, and with the acts of [C]ongress.” Id., at 561. Justice McLean, concurring, put it succinctly: “All the rights which belong to self-government have been recognized as vested in [the Tribes].” Id., at 580.
In the end, President Jackson refused to abide by the Court’s decision in Worcester, precipitating the Trail of Tears. He is quoted as saying: “ ‘John Marshall has made his decision; now let him enforce it.’ ” F. Cohen, Handbook of Federal Indian Law 123 (1942). But just as this Court had no power to enforce its judgment, President Jackson had no power to erase its reasoning. So the rule of Worcester persisted in courts of law, unchanged, for decades. Recognizing the inherent sovereignty of Tribes, this Court held that States could not tax Indian land. See, e.g., The Kansas Indians, 5 Wall. 737, 751–761 (1867); The New York Indians, 5 Wall. 761, 771–772 (1867). It held that the Fourteenth Amendment did not apply on Indian land. See Elk v. Wilkins, 112 U. S. 94, 99–109 (1884). And it sharply limited even the power of the federal government to prosecute crimes between Indians on Indian land where the Tribe had stepped in to resolve the dispute. See Ex parte Crow Dog, 109 U. S. 556, 572 (1883).
Nor did later developments call this original understanding into doubt. To be sure, in 1871, Congress declared that Tribes (prospectively) are no longer parties “with whom the United States may contract by treaty.” Act of Mar. 3, 1871, 16 Stat. 566, codified at 25 U. S. C. §71; but see United States v. Lara, 541 U. S. 193, 218 (2004) (Thomas, J., concurring in judgment) (describing the Act as “constitutionally suspect”); M. Pearl, Originalism and the Indians, 93 Tulane L. Rev. 269, 330–331 (2018) (Pearl) (similar). But the sponsors of that Act sought only to increase the role of bicameral legislation in managing Indian affairs. See Antoine v. Washington, 420 U. S. 194, 202–203 (1975). The law did not purport to “invalidat[e] or impai[r]” any existing “obligation of any treaty lawfully made and ratified.” 25 U. S. C. §71. And the law did not abridge, nor could it have validly abridged, the long-settled view of tribal sovereignty. In fact, the United States proceeded to enter into roughly 400 further executive agreements with the Tribes practically indistinguishable from the treaties that came before. See generally V. Deloria & R. DeMallie, Documents of American Indian Diplomacy: Treaties, Agreements, and Conventions, 1775–1979 (1999). Keep this original understanding of tribal sovereignty in mind. It provides an essential point of framing.
B
Just as the Constitution safeguards the sovereign authority of Tribes, it comes with a “concomitant jurisdictional limit on the reach of state law” over Indian affairs. McClanahan v. Arizona Tax Comm’n, 411 U. S. 164, 171 (1973). As this Court has consistently recognized, “[t]he policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation’s history.” Rice v. Olson, 324 U. S. 786, 789 (1945). Instead, responsibility for managing interactions with the Tribes rests exclusively with the federal government. To appreciate this point, walk through time once more.
Since the first days of British rule, the Crown oversaw—and retained the power to dictate—the Colonies’ engagement with the Indian Tribes. See Clinton 1995, at 1064–1098. In response to a pattern of conflict arising out of colonial intrusion on tribal land, that supervision grew increasingly exacting. Ibid.; see also R. Clinton, The Proclamation of 1763: Colonial Prelude to Two Centuries of Federal-State Conflict Over the Management of Indian Affairs, 69 B. U. L. Rev. 329, 331–337 (1989) (Clinton 1989). In 1743, for example, a British royal commission rejected an effort by the colony of Connecticut to exercise independent jurisdiction over a Tribe within its borders. Id., at 335–336. The decision rested on a now-familiar logic: “The Indians, though living amongst the king’s subjects in these countries, are a separate and distinct people from them, they are treated with as such, they have a polity of their own, they make peace and war with any nation of Indians when they think fit, without controul from the English.” Opinion of Comm’r Horsmanden, Aug. 1, 1743, in Governor and Company of Connecticut, and Mohegan Indians, By Their Guardians 126 (1743).
The mere suggestion of colonial management of tribal relations catalyzed further “centralization of oversight and control of colonial Indian regulation by the British government,” culminating in the Proclamation of 1763. Clinton 1989, at 336. That proclamation announced the Crown’s intent to manage all “land cessions, diplomatic and other relations, and trade with the Indian [T]ribes,” and to displace contrary colonial practice. Id., at 357. Britain never had a chance to iron out the kinks of that approach before the Revolutionary War broke out. But “[i]mmediately prior to 1776, the stage was set” for “complete imperial control over the management of Indian matters.” Id., at 362.
After the Revolution, the Articles of Confederation gave the newly formed “[U]nited [S]tates … the sole and exclusive right and power of … managing all affairs with the Indians, not members of any of the [S]tates.” Art. IX (1777). In providing that grant of authority, the Articles’ drafters may have meant to codify the centralized approach the British had pursued. But the “byzantine” document the drafters created, Ablavsky 2015, at 1034, came with a pair of easily exploited loopholes. First, the language of its Indian affairs clause allowed some to claim that various Tribes were “ ‘members’ ” of the States and thus “exclusively or principally subject to state legislative control.” Clinton 1995, at 1103, 1150. Second, owing to a fear that the phrase “sole and exclusive” could give the misimpression that States lacked power to manage their own affairs, the Articles’ drafters added another clause stipulating that “the legislative right of any [S]tate within its own limits be not infringed or violated.” Art IX. Taken literally, that provision meant only that the Articles left to States what belonged to the States and to the Tribes what belonged to the Tribes. But some States saw in that language too an opportunity to assert their own control. See Clinton 1995, at 1103, 1107, 1113–1118, 1128–1131.
The result? A season of conflict brought about by state and private encroachments on tribal authority. G. Ablavsky, The Savage Constitution, 63 Duke L. J. 999, 1035–1036 (2014) (Ablavsky 2014). By the time the Constitutional Convention rolled around, “Indian uprisings had occurred … in the Ohio River Valley and Virginia,” “the Creeks and Georgia were on the brink of open warfare,” and there was significant turmoil “on the western frontier.” Clinton 1995, at 1147. Those events were not lost on the framers. As they debated how to broker enduring peace, two predominant schools of thought emerged. Madison and his followers favored preventing intrusions on Indian land and interests; Hamilton and his adherents favored resort to military might. Ablavsky 2014, at 1035–1038. Both sides, however, found agreement on the “need for a stronger federal government” presence, without the impediment of state interference. Id., at 1038.
Even as the Constitutional Convention assembled, a committee of the Continental Congress noted that it “had been long understood and pretty well ascertained” that the Crown’s absolute powers to “manag[e] Affairs with the Indians” passed in its “entire[ty] to the Union” following Independence, meaning that “[t]he laws of the State can have no effect upon a [T]ribe of Indians or their lands within the limits of the [S]tate so long as that [T]ribe is independent.” 33 Journals of the Continental Congress 1774–1789, p. 458 (R. Hill ed. 1936). That had to be so, the committee observed, for the same reason that individual States could not enter treaties with foreign powers: “[T]he Indian [T]ribes are justly considered the common friends or enemies of the United States, and no particular [S]tate can have an exclusive interest in the management of Affairs with any of the [T]ribes.” Id., at 459.
This understanding found its way directly into the text of the Constitution. The final version assigned the newly formed federal government a bundle of powers that encompassed “all that is required for the regulation of [the Nation’s] intercourse with the Indians.” Worcester, 6 Pet., at 559. By contrast, the Constitution came with no indication that States had any similar sort of power. Indeed, it omitted the nettlesome language in the Articles about the “legislative right” of States. Not only that. The Constitution’s express exclusion of “Indians not taxed” from the apportionment formula, Art. I, §2, cl. 3, threw cold water on some States’ attempts to claim that Tribes fell within their territory—and therefore their control. And, lest any doubt remain, the Constitution divested States of any power to “enter into any Treaty, Alliance, or Confederation.” §10, cl. 1. By removing that diplomatic power, the Constitution’s design also divested them of the leading tool for managing tribal relations at that time.
The Constitution’s departure from the Articles’ articulation was praised by many and criticized by some. Federalists (such as James Madison) applauded the fact that the new federal government would be “unfettered” by the Articles’ constraints. The Federalist No. 42, p. 268 (C. Rossiter ed. 1961). Certain Anti-Federalists (including Abraham Yates Jr.) disfavored the “tota[l] surrender into the hands of Congress [of] the management and regulation of the Indian affairs.” Letter to Citizens of New York (June 13–14, 1788), in 20 Documentary History of the Ratification of the Constitution 1153, 1158 (J. Kaminski et al. eds. 2004) (emphasis added). At bottom, however, no one questioned that the Constitution took a view about where the power to manage Indian affairs would reside in the future. And no one doubted that it selected the federal government, not the States.
Early practice confirmed this understanding. “The Washington Administration insisted that the federal government enjoyed exclusive constitutional authority” over managing relationships with the Indian Tribes. Ablavsky 2015, at 1019. As President Washington put it, the federal government “possess[ed] the only authority of regulating an intercourse with [the Tribes], and redressing their grievances.” Letter to T. Mifflin (Sept. 4, 1790), in 6 The Papers of George Washington: Presidential Series 396 (D. Twohig ed. 1996) (emphasis added). Even “many state officials agreed” with President Washington’s assessment. Ablavsky 2015, at 1019. South Carolina Governor Charles Pinckney acknowledged that “the sole management of India[n] affairs” is “committed” to “the general Government.” Letter to G. Washington (Dec. 14, 1789), in 4 Papers of George Washington: Presidential Series 404 (D. Twohig ed. 1996). Other leading proponents of States’ rights reluctantly drew the same conclusion. “[U]nder the present Constitution,” Thomas Jefferson lamented, States lack any “right to Treat with the Indians without the consent of the General Government.” Letter to H. Knox (Aug. 10, 1791), in 22 Papers of Thomas Jefferson 27 (C. Cullen ed. 1986).
For its part, this Court understood the absence of state authority over tribal matters as a natural corollary of Tribes’ inherent sovereignty. Precisely because Tribes exist as a “distinct community,” this Court concluded in Worcester, the “laws of [States] can have no force” as to them. 6 Pet., at 561. States could no more prescribe rules for Tribes than they could legislate for one another or a foreign sovereign. More than that, this Court recognized that “[t]he whole intercourse between the United States and [each Tribe], is by our [C]onstitution and laws, vested in the government of the United States.” Ibid. (emphasis added). State laws cannot “interfere forcibly with the relations established between the United States and [an Indian Tribe], the regulation of which, according to the settled principles of our [C]onstitution, are committed exclusively to the government of the [U]nion.” Ibid. (emphasis added). That principle, too, has endured. No one can contest the “ ‘historic immunity from state and local control’ ” that the Tribes enjoy, nor the permissibility of constitutional provisions enacted to protect the Tribes’ “sovereign status.” New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 332 (1983). Tuck that point away too.
C
We now know that, at the founding, the Tribes retained their sovereignty. We know also that States have virtually no role to play in managing interactions with Tribes. From this, it follows that “[t]he only restriction on the power” of Tribes “in respect to [their] internal affairs” arises when their actions “conflict with the Constitution or laws of the United States.” Roff v. Burney, 168 U. S. 218, 222 (1897). In cases like that, the Constitution provides, federal law must prevail. See Art. VI. This creates a hydraulic relationship between federal and tribal authority. The more the former expands, the more the latter shrinks. All of which raises the question: What powers does the federal government possess with respect to Tribes?
1
Because the federal government enjoys only “limited” and “enumerated powers,” we look to the Constitution’s text. McCulloch v. Maryland, 4 Wheat. 316, 405 (1819). Notably, our founding document does not include a plenary federal authority over Tribes. Nor was this an accident, at least not in the final accounting. The framers considered a general Indian Affairs Clause but left it on the cutting-room floor. See L. Toler, The Missing Indian Affairs Clause, 88 U. Chi. L. Rev. 413, 444–476 (2021) (Toler). That choice reflects an important insight about the Constitution’s Indian-law bargain: “Without an Indian affairs power,” any assertion of unbounded federal authority over the Tribes is “constitutionally wanting.” Id., at 476.
Instead of a free-floating Indian-affairs power, the framers opted for a bundle of federal authorities tailored to “the regulation of [the Nation’s] intercourse with the Indians.” Worcester, 6 Pet., at 559. In keeping with the framers’ faith in the separation of powers, they chose to split those authorities “between the [E]xecutive and the [L]egislature.” Toler 479. “The residue of Indian affairs power”—all those Indian-related powers not expressly doled out by the Constitution—remained the province of “the sovereign [T]ribes.” Id., at 481.
What was included in the federal government’s bundle of enumerated powers? In the early years, the most important component was the authority to “make Treaties” with the Tribes. Art. II, §2, cl. 2. But other provisions also facilitated the management of Indian relations. The Constitution vested in Congress the power to “declare War” against the Tribes. Art. I., §8, cl. 11. It gave Congress authority to “dispose of and make all needful Rules and Regulations respecting the Territory or other Property belonging to the United States,” allowing it considerable power over Indians on federal territory. Art. IV, §3, cl. 2. The Constitution also authorized Congress to employ its spending power to divert funds toward Tribes. Art. I, §8, cl. 1. Where all those powers came up short, the Constitution afforded the federal government the power to “regulate Commerce with foreign Nations and among the several States, and with the Indian Tribes.” §8, cl. 3 (emphasis added). Much of modern federal Indian law rests on that commerce power. It demands a closer look.
2
Contained in a single sentence, what we sometimes call “the” Commerce Clause is really three distinct Clauses rolled into one: a Foreign Commerce Clause, an Interstate Commerce Clause, and an Indian Commerce Clause. To be sure, those Clauses share the same lead word: “Commerce.” And, viewed in isolation, that word might appear to sweep narrowly—encompassing activities like “selling, buying, and bartering, as well as transporting for these purposes.” United States v. Lopez, 514 U. S. 549, 585–586 (1995) (Thomas, J., concurring) (citing founding-era definitions). But it is “well established” that the individual Commerce Clauses have “very different applications,” Cotton Petroleum Corp. v. New Mexico, 490 U. S. 163, 192 (1989), a point the framers themselves acknowledged, see, e.g., Letter from E. Randolph to G. Washington (Feb. 12, 1791), in 7 Papers of George Washington: Presidential Series 330, 331–337 (D. Twohig 1998).
Start with the word “Commerce.” From the Nation’s earliest days, Indian commerce was considered “a special subject with a definite content,” quite “distinct and specialized” from other sorts of “commerce.” A. Abel, The Commerce Clause in the Constitutional Convention and in Contemporary Comment, 25 Minn. L. Rev. 432, 467–468 (1941). A survey of founding-era usage confirms that the term “Commerce,” when describing relations with Indians, took on a broader meaning than simple economic exchange. See Ablavsky 2015, at 1012–1032 (compiling primary sources); Brief for Gregory Ablavsky as Amicus Curiae 8–11; App. to id., at 1–18 (same); see also A. Amar, America’s Constitution: A Biography 107 (2005). Instead, the word was used as a “term of art,” Pearl 322, to encompass all manner of “bilateral relations with the [T]ribes,” Clinton 1995, at 1145; see also Toler 422 (noting that “Indian commerce” was a “legal ter[m] of art” that was “informed by the practicalities of Indian affairs”).
This special usage likely emerged out of an international-law idea widely shared “at the time of the founding”: When dealing with a foreign sovereign, the “commercial and noncommercial aspects” of bilateral interactions were “inevitably intertwined” because any intercourse carried potential diplomatic consequences and could even lead to war. J. Balkin, Commerce, 109 Mich. L. Rev. 1, 25 (2010) (Balkin); see also Ablavsky 2015, at 1028–1032 (demonstrating that “trade with the Indians was understood almost solely through this political and diplomatic lens”); Clinton 1989, at 362–363 (observing that, at the founding, Indian “trade” was “intertwined” with concerns of “peace and diplomacy” and with the threat of “war”). Nor was that a speculative possibility when it came to Tribes. As we have seen, even the noncommercial conduct of settlers in the early years was a “continual source of violent conflict [with] Indians,” partially motivating the move away from the Articles of Confederation framework. M. Fletcher & L. Jurss, Tribal Jurisdiction—A Historical Bargain, 76 Md. L. Rev. 593, 597 (2017); see also Ablavsky 2014, at 1033–1038.
At least two terms in the Commerce Clause confirm this special usage. For one thing, the Constitution speaks of “Commerce … among” when discussing interstate dealings, but “Commerce with” when addressing dealings with tribal and foreign sovereigns. Art. I, §8, cl. 3 (emphases added). This language suggests a shared framework for Congress’s Indian and foreign commerce powers and a different one for its interstate commerce authority. See R. Monette, A New Federalism for Indian Tribes: The Relationship Between the United States and Tribes in Light of Our Federalism and Republican Democracy, 25 U. Toledo L. Rev. 617, 629, n. 82 (1994). More than that, the term “with” suggests that Congress has the authority to manage “all interactions or affairs … with the Indian [T]ribes” and foreign sovereigns—wherever those interactions or affairs may occur. Balkin 23. By contrast, the term “among” found in the Interstate Commerce Clause most naturally suggests that Congress may regulate only activities that “extend in their operation beyond the bounds of a particular [S]tate” and into another. Id., at 30. All this goes a long way toward explaining why “Congress’s powers to regulate domestic commerce are more constrained” than its powers to regulate Indian and foreign commerce. Id., at 29.
For another thing, as nouns, “States” and “Indian Tribes” are not alike—and they were not alike at the founding. “States” generally referred then, as it does today, to a collection of territorial entities. Not so “Tribes.” That term necessarily referred to collections of individuals. See C. Green, Tribes, Nations, States: Our Three Commerce Powers, 127 Pa. St. L. Rev. 643, 649, 654–669 (2023) (Green); see also 1 W. Crosskey, Politics and the Constitution in the History of the United States 77 (1953). Want proof? Dust off most any founding-era dictionary and look up the definition of “Tribe.” See, e.g., 2 J. Ash, The New and Complete Dictionary of the English Language (1775) (“[a] family, a body of the people distinguished by family or fortune”); 2 S. Johnson, A Dictionary of the English Language (4th ed. 1773) (“[a] di[s]tinct body of the people as divided by family or fortune, or any other characteri[s]tick”); T. Dyche, A New General English Dictionary (14th ed. 1771) (“the particular descendants or people [s]prung from [s]ome noted head, or a collective number of people in a colony”); N. Bailey, An Universal Etymological English Dictionary (22d ed. 1770) (“a [c]ompany of [p]eople dwelling together in the [s]ame [w]ard or [l]iberty”).
This observation sheds light on why ordinary speakers use the two terms differently. It explains, for instance, why it is grammatical to say you are vacationing “in Colorado,” but not to say you are vacationing “in Navajo.” It explains why it is sensible to say you are meeting “with some Cherokee,” but not to say you are meeting “with some New Jersey.” But this point also helps us make sense of why the Legislative Branch may regulate commerce with Indian Tribes differently than it may regulate commerce among the States. Because Tribes are collections of people, the Indian Commerce Clause endows Congress with the “authority to regulate commerce with Native Americans” as individuals. McGirt v. Oklahoma, 591 U. S. ___, ___ (2020) (slip op., at 7). By contrast, Congress’s power under the Interstate Commerce Clause operates only on commerce that involves “more States than one.” Gibbons v. Ogden, 9 Wheat. 1, 194 (1824). In other words, commerce that takes place “among” (or between) two or more territorial units, and not just any commerce that involves some member of some State. See Green 649–654.
This Court has long appreciated these points of distinction. For example, in United States v. Holliday, 3 Wall. 407 (1866), the Court upheld a federal statute that prohibited the sale of alcohol by non-Indians to Indians—on or off tribal land. Id., at 416–417. Giving the Indian Commerce Clause its most natural reading, the Court concluded that the power to regulate commerce with Indian Tribes must mean the power to regulate “commerce with the individuals composing those [T]ribes.” Id., at 417 (emphasis added). For that reason, too, “[t]he locality of the [commerce could] have nothing to do with the [scope of the] power.” Id., at 418; see also Henderson v. Mayor of New York, 92 U. S. 259, 270 (1876) (quoting Holliday and echoing this point in the context of the Foreign Commerce Clause). More than that, Holliday recognized that this focus on individuals means that Indian commerce must cover “something more” than just economic exchange. 3 Wall., at 417 (internal quotation marks omitted). While it includes “buying and selling and exchanging commodities,” it also extends to the entire “intercourse between the citizens of the United States and those [T]ribes.” Ibid. That “intercourse,” the Court recognized, is “another branch of commerce” with Indians, “and a very important one” at that. Ibid.
If the Constitution’s text left any uncertainty about the scope of Congress’s Indian commerce power, early practice liquidated it. The First Congress adopted the initial Indian Trade and Intercourse Act, which prohibited the “sale of lands made by any Indians” to non-Indians absent a public treaty. Act of July 22, 1790, ch. 33, §4, 1 Stat. 138. The law also extended criminal liability to non-Indians who “commit[ted] any crime upon, or trespass against, the person or property of any peaceable and friendly Indian” in Indian country. §5, ibid. The first of these provisions arguably addressed a narrow question of commerce. But the second “plainly regulated noneconomic” interaction. A. Amar, America’s Constitution and the Yale School of Constitutional Interpretation, 115 Yale L. J. 1997, 2004, n. 25 (2006).
Despite that fact, the Act (and its successors) were “not controversial exercises of congressional power.” N. Newton, Federal Power Over Indians: Its Sources, Scope, and Limitations, 132 U. Pa. L. Rev. 195, 201, n. 25 (1984). Any doubt about their validity “would have been quieted by the [C]ommerce Clause’s commitment of commerce with the Indian [T]ribes to Congress.” Ibid. As Justice McLean (riding circuit) recognized, punishing non-Indians for “committing violence upon the persons or property of the Indians,” fell “clearly within the scope of the power to regulate commerce with the Indian [T]ribes.” United States v. Bailey, 424 F. Cas. 937, 939 (No. 14,495) (CC Tenn. 1834). Of course, the kinds of criminal trespasses Congress regulated as early as 1790 were not themselves commercial. But a trespass against even one individual Indian could disrupt commerce with that individual. See Green 660–661, and n. 76. By extension, such a trespass could disrupt dealings with other members of the Tribe and with other allied Tribes too. See Balkin 24–26. Recognizing this, the framers entrusted Congress with the power previously exercised by the British Parliament to “restrain the disorderly and licentious from intrusions” by non-Indians against even individual Indians—all to preserve functioning channels of trade and intercourse “with the Indians.” Worcester, 6 Pet., at 552, 556.
3
If Congress’s powers under the Indian Commerce Clause are broader than those it enjoys under the Interstate Commerce Clause, “broader” does not mean “plenary.” Even the federal government’s “power to control and manage” relations with the Tribes under the Indian Commerce Clause comes with “pertinent constitutional restrictions.” United States v. Creek Nation, 295 U. S. 103, 110 (1935). Congress cannot, for example, expand the scope of its own power by arbitrarily labeling non-Indians as Indians. See United States v. Sandoval, 231 U. S. 28, 46 (1913). Nor can it regulate in peripherally related fields merely by identifying some incidental connection to non-Indians’ dealings with Indians. Instead, Congress’s actions must still bear a valid “nexus” to Indian commerce to withstand constitutional challenge. Lopez, 514 U. S., at 562 (quoting United States v. Bass, 404 U. S. 336, 347 (1971)). As we have seen, too, “the scope of congressional authority” over the Tribes under the Indian Commerce Clause is “best construed as a negative one.” Pearl 325. Its text “limits the legislative reach to creating federal restrictions concerning what United States citizens and States may do in the context of Indian [T]ribes.” Ibid. Nothing in the Clause grants Congress the affirmative power to reassign to the federal government inherent sovereign authorities that belong to the Tribes.
In that way, the Indian Commerce Clause confirms, rather than abridges, principles of tribal sovereignty. As it must. It is “inconceivable” that a power to regulate non-Indians’ dealings with Indians could be used to “dives[t Tribes] of the right of self-government.” Worcester, 6 Pet., at 554. Otherwise, a power to manage relations with a party would become an instrument for “annihilating the political existence of one of the parties.” Ibid. No one in the Nation’s formative years thought that could be the law. They understood that Congress could no more use its commerce powers to legislate away a Tribe than it could a State or a foreign sovereign. Cf. National League of Cities v. Usery, 426 U. S. 833, 855 (1976); Metcalf & Eddy v. Mitchell, 269 U. S. 514, 523–526 (1926); Lane County v. Oregon, 7 Wall. 71, 76–77 (1869). The framers appreciated, too, that they possessed no more “authority to delegate to the national government power to regulate the [T]ribes directly” than they possessed authority to “delegate power to the federal government over other peoples who were not part of the federal union.” Clinton 2002, at 254; see also R. Barsh, Book Review, Felix S. Cohen’s Handbook of Federal Indian Law, 1982 Ed., 57 Wash. L. Rev. 799, 803 (1982).
D
As we have now seen, the Constitution reflected a carefully considered balance between tribal, state, and federal powers. That scheme predated the founding and it persisted long after. It is not, however, the balance this Court always maintained in the years since. More than a little fault for that fact lies with a doctrinal misstep. In the late 19th century, this Court misplaced the original meaning of the Indian Commerce Clause. That error sent this Court’s Indian-law jurisprudence into a tailspin from which it has only recently begun to recover. Understanding that error—and the steps this Court has taken to correct it—are the last missing pieces of the puzzle.
In 1885, during the period of assimilationist federal policy, Congress enacted the Indian Major Crimes Act, §9, 23 Stat. 385. Among other things, that law extended federal-court jurisdiction over various crimes committed by Indians against Indians on tribal lands. Ibid. In United States v. Kagama, 118 U. S. 375 (1886), this Court upheld the constitutionality of that Act. In the process, though, it stepped off the doctrinal trail. Instead of examining the text and history of the Indian Commerce Clause, the Court offered a free-floating and purposivist account of the Constitution, describing it as extending broad “power [to] the General Government” over tribal affairs. Id., at 384. Building on that move, the Court would later come to describe the federal power over the Tribes as “plenary.” See, e.g., Winton v. Amos, 255 U. S. 373, 391 (1921); Lone Wolf v. Hitchcock, 187 U. S. 553, 565 (1903).
Perhaps the Court meant well. Surely many of its so-called “plenary power” cases reached results explainable under a proper reading of the Constitution’s enumerated powers. Maybe the turn of phrase even made some sense: Congress’s power with regard to the Tribes is “plenary” in that it leaves no room for State involvement. See Ablavsky 2015, at 1014 (“[T]he Court use[d] the term [plenary] interchangeably with ‘exclusive’ ”). But as sometimes happens when this Court elides text and original meaning in favor of broad pronouncements about the Constitution’s purposes, the plenary-power idea baked in the prejudices of the day. Cf. Plessy v. Ferguson, 163 U. S. 537 (1896). The Court suggested that the federal government’s total power over the Tribes derived from its supposedly inherent right to “enforce its laws” over “th[e] remnants of a race once powerful, now weak.” Kagama, 118 U. S., at 384–385. Of course, nothing of the sort follows from “a reasoned analysis derived from the text [or] history … of the United States Constitution.” Clinton 2002, at 163. Instead, the plenary-power idea “constituted an unprincipled assertion of raw federal authority.” Ibid. It rested on nothing more than judicial claims about putative constitutional purposes that aligned with contemporary policy preferences.
Nor was anachronistic language the only consequence of this Court’s abandonment of the Constitution’s original meaning. During what has been called the “high plenary power era of U. S. Indian law,” this Court sometimes took the word “plenary” pretty literally. S. Cleveland, Powers Inherent in Sovereignty: Indians, Aliens, Territories, and the Nineteenth Century Origins of Plenary Power Over Foreign Affairs, 81 Texas L. Rev. 1, 62 (2002) (Cleveland). It assumed that Congress possesses a “virtually unlimited authority to regulate [T]ribes” in every respect. M. Steele, Plenary Power, Political Questions, and Sovereignty in Indian Affairs, 63 UCLA L. Rev. 666, 670 (2016); see Cleveland 62–74. Perhaps most notably, the Court even suggested that Congress’s “plenary authority” might allow it to “limit, modify, or eliminate the powers of local self-government which the [T]ribes otherwise possess.” Santa Clara Pueblo v. Martinez, 436 U. S. 49, 56–57 (1978). It is an “inconceivable” suggestion for anyone who takes the Constitution’s original meaning seriously. Worcester, 6 Pet., at 554.
The Court’s atextual and ahistorical plenary-power move did not just serve to expand the scope of federal power over the Tribes. It also had predictable downstream effects on the relationship between States and Tribes. As Congress assumed new power to intrude on tribal sovereignty, the Constitution’s “concomitant jurisdictional limit on the reach of state law” began to wane. McClanahan, 411 U. S., at 171. It is not hard to draw a through-line between these developments. This Court itself has acknowledged that its plenary-power cases embodied a “trend … away from the idea of inherent Indian sovereignty as a bar to state jurisdiction.” Id., at 172, and n. 7.
It is no coincidence either that this Court’s plenary-power jurisprudence emerged in the same era as Indian boarding schools and other assimilationist policies. See D. Moore & M. Steele, Revitalizing Tribal Sovereignty in Treatymaking, 97 N. Y. U. L. Rev. 137, 142 (2022). Rather, “[f]ederal bureaucratic control over Indian leadership and governments ran parallel to the government’s control over Indian children” during this period. Fletcher & Singel 930. Indian boarding schools and other intrusive “federal educational programs … could not have been implemented without federal control of reservation governance.” Ibid. Nor could any of these federal intrusions on internal tribal affairs have been possible without this Court’s plenary-power misadventure.
I do not mean to overstate the point. Even in the heyday of the plenary-power theory, this Court never doubted that Tribes retain a variety of self-government powers. It has always acknowledged that Tribes are “a separate people, with the power of regulating their internal and social relations.” Kagama, 118 U. S., at 381–382. They may “make their own substantive law in internal matters.” Martinez, 436 U. S., at 55. They may define their own membership. Roff, 168 U. S., at 222. They may set probate rules of their choice. Jones v. Meehan, 175 U. S. 1, 29 (1899). And—especially relevant here—they may handle their own family-law matters, Fisher v. District Court of Sixteenth Judicial Dist. of Mont., 424 U. S. 382, 387 (1976) (per curiam), and domestic disputes, United States v. Quiver, 241 U. S. 602, 605 (1916). But for a period at least, this Court let itself drift from the “basic policy of Worcester,” and with it the Constitution’s promise of tribal sovereignty. Williams v. Lee, 358 U. S. 217, 219 (1959).
Doubtless, too, the rise of the plenary-power theory injected incoherence into our Indian-law jurisprudence. Many scholars have commented on it. See, e.g., P. Frickey, Doctrine, Context, Institutional Relationships, and Commentary: The Malaise of Federal Indian Law Through the Lens of Lone Wolf, 38 Tulsa L. Rev. 5, 9 (2002) (describing our doctrine as “riddled with … inconsistency”); F. Pommersheim, A Path Near the Clearing: An Essay on Constitutional Adjudication in Tribal Courts, 27 Gonz. L. Rev. 393, 403 (1991) (calling our doctrine “bifurcated, if not fully schizophrenic”). So have Members of this Court. Justice Thomas has put the problem well: “[M]uch of the confusion reflected in our precedent arises from two largely incompatible” assumptions: That Congress “can regulate virtually every aspect of the [T]ribes”; and that “Indian [T]ribes retain inherent sovereignty.” Lara, 541 U. S., at 214–215 (opinion concurring in judgment). Those two propositions of course clash. That is because only one is true. Yes, Tribes retain the inherent sovereignty the Constitution left for them. But no, Congress does not possess power to “calibrate ‘the metes and bounds of tribal sovereignty.’ ” Ibid.
In recent years, this Court has begun to correct its mistake. Increasingly, it has emphasized original meaning in constitutional interpretation. See, e.g., Kennedy v. Bremerton School Dist., 597 U. S. ___, ___–___ (2022) (slip op., at 23–24); Ramos v. Louisiana, 590 U. S. ___, ___, ___–___ (2020) (slip op., at 6, 11–17). In the process, it has come again to recognize the Indian Commerce Clause provides the federal government only so much “power to deal with the Indian Tribes.” Mancari, 417 U. S., at 551–552. But to date, these corrective steps have not yielded all they should. While this Court has stopped overreading its own plenary-power precedents, it has yet to recover fully the original meaning of the Indian Commerce Clause.
Today, the Court takes further steps in the right direction. It recognizes that Congress’s powers with respect to the Tribes “derive from the Constitution, not the atmosphere.” Ante, at 11. It engages in a robust history-driven analysis of the various fonts of congressional authority without relying only on platitudes about plenary power. Ante, at 11–13. It notes that, as an original matter, the Indian Commerce Clause is “broad” and covers more than garden-variety commercial activity. Ante, at 11–16. In the process, it reaffirms that “ ‘commerce with the Indian [T]ribes’ ” necessarily covers commerce with “Indians as individuals.” Ante, at 15–16.
No less importantly, the Court acknowledges what the federal government cannot do. “Article I gives Congress a series of enumerated powers, not a series of blank checks.” Ante, at 13. And that means that “Congress’s authority to legislate with respect to Indians is not unbounded,” but instead comes with concrete limitations. Ibid. To resolve the present dispute, the Court understandably sees no need to demarcate those limitations further. But I hope that, in time, it will follow the implications of today’s decision where they lead and return us to the original bargain struck in the Constitution—and, with it, the respect for Indian sovereignty it entails.
III
With all the historical pieces of this puzzle assembled, only one task remains. You must decide for yourself if ICWA passes constitutional muster.
By now, the full picture has come into view and it is easy to see why ICWA must stand. Under our Constitution, Tribes remain independent sovereigns responsible for governing their own affairs. And as this Court has long recognized, domestic law arrangements fall within Tribes’ traditional powers of self-governance. See, e.g., Fisher, 424 U. S., at 387; Quiver, 241 U. S., at 605. As “ ‘a separate people’ ” Tribes may “ ‘regulat[e] their internal and social relations’ ” as they wish. Wheeler, 435 U. S., at 322 (quoting Kagama, 118 U. S., at 381–382). In enacting ICWA, Congress affirmed this understanding. It recognized that “there is no resource that is more vital to the continued existence and integrity of Indian [T]ribes than their children.” 25 U. S. C. §1901(3). Yet it also recognized that the mass-removal of Indian children by States and other outsiders threatened the “continued existence and integrity of Indian [T]ribes.” Ibid.; see also §1901(4). By setting out to eliminate that practice, Congress sought to preserve the Indian-law bargain written into the Constitution’s text by securing the continued viability of the “third sovereign.” S. O’Connor, Remark, Lessons From the Third Sovereign: Indian Tribal Courts, 33 Tulsa L. J. 1 (1997).
No doubt, ICWA sharply limits the ability of States to impose their own family-law policies on tribal members. But as we have seen, state intrusions on tribal authority have been a recurring theme throughout American history. See Ablavsky 2014, at 1009–1037. Long ago, those intrusions led the framers to abandon the loophole-ridden Indian affairs provision in the Articles of Confederation and adopt in the Constitution a different arrangement that commits the management of tribal relations solely to the federal government. Id., at 1038–1051; see also Clinton 1995, at 1098–1165. Recognizing as much, this Court has consistently reaffirmed the Tribes’ “immunity from state and local control.” Arizona v. San Carlos Apache Tribe of Ariz., 463 U. S. 545, 571 (1983) (internal quotation marks omitted). If that immunity means anything, it must mean that States and others cannot use their own laws to displace federal Indian policy.
Nor is there any serious question that Congress has the power under the Indian Commerce Clause to enact protections against the removal of Indian children. Thankfully, Indian children are not (these days) units of commerce. Cf. Fletcher & Singel 897–898 (describing an early practice of enslaving Indian children). But at its core, ICWA restricts how non-Indians (States and private individuals) may engage with Indians. And, as we have seen, that falls in the heartland of Congress’s constitutional authority. Recall that the very first Congresses punished non-Indians who “commit[ted] any crime upon [any] friendly Indian.” Act of July 22, 1790, ch. 33, §5, 1 Stat. 138. ICWA operates in much the same way. The mass removal of Indian children by States and private parties, no less than a pattern of criminal trespasses by States and private parties, directly interferes with tribal intercourse. More than that, it threatens the Tribes’ “political existence.” Worcester, 6 Pet., at 536. And at the risk of stating the obvious, Indian commerce is hard to maintain if there are no Indian communities left to do commerce with.
IV
Often, Native American Tribes have come to this Court seeking justice only to leave with bowed heads and empty hands. But that is not because this Court has no justice to offer them. Our Constitution reserves for the Tribes a place—an enduring place—in the structure of American life. It promises them sovereignty for as long as they wish to keep it. And it secures that promise by divesting States of authority over Indian affairs and by giving the federal government certain significant (but limited and enumerated) powers aimed at building a lasting peace. In adopting the Indian Child Welfare Act, Congress exercised that lawful authority to secure the right of Indian parents to raise their families as they please; the right of Indian children to grow in their culture; and the right of Indian communities to resist fading into the twilight of history. All of that is in keeping with the Constitution’s original design.