Amicus Curiae Brief — Deb Haaland, Secretary of the Interior, et al., Petitioners v. Chad Everet Brackeen, et al.
Supreme Court briefAug 18, 2022
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NO. 21-376, 21-377, 21-378, 21-380
In the Supreme Court of the United States
DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL., Petitioners
v.
CHAD EVERET BRACKEEN, ET AL., Respondents
_____________________
CHEROKEE NATION, ET AL., Petitioners
v.
CHAD EVERET BRACKEEN, ET AL., Respondents
_____________________
THE STATE OF TEXAS, Petitioner
v.
DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL., Respondents
_____________________
CHAD EVERET BRACKEEN, ET AL., Petitioners
v.
DEB HAALAND, SECRETARY OF THE INTERIOR, ET AL., Respondents
_____________________
On Writs of Certiorari to the
United States Court of Appeals for the Fifth Circuit
BRIEF OF AMICI CURIAE
ADMINISTRATIVE LAW AND CONSTITUTIONAL LAW
PROFESSORS IN SUPPORT OF DEB HAALAND, SECRETARY
OF THE INTERIOR, ET AL., AND CHEROKEE NATION, ET AL.
SETH DAVIS
225 BANCROFT WAY
BERKELEY, CA 94704
ASHLEIGH LUSSENDEN
555 CALIFORNIA ST., STE. 2000
SAN FRANCISCO, CA 94104
DAVID S. COALE
COUNSEL OF RECORD
LYNN PINKER HURST &
SCHWEGMANN, LLP
2100 ROSS, STE. 2700
DALLAS, TX 75201
(214) 981-3800
DCOALE@LYNNLLP.COM
AUGUST 18, 2022
SUPREME COURT PRESS
COUNSEL FOR AMICI CURIAE
♦
(888) 958-5705
♦
BOSTON, MASSACHUSETTS
i
TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES ...................................... iii
INTEREST OF THE AMICI CURIAE ....................... 1
INTRODUCTION AND
SUMMARY OF ARGUMENT .............................. 2
ARGUMENT ............................................................... 5
I.
CONGRESS HAS THE POWER TO ENACT
STATUTES THAT IMPLEMENT TREATIES WITH
NATIVE NATIONS AND FULFILL ITS UNIQUE
RESPONSIBILITY TO THEM ................................. 5
A. Congress Enacted ICWA Against the
Backdrop of Its Longstanding Practice
of Implementing Indian Treaties and
Fulfilling Its Unique Responsibility to
Indians as Well as This Court’s
Repeated Reaffirmations of Its Authority
to Do So ....................................................... 7
B. ICWA Does Not Present an Opportunity
for This Court to Revisit Its Precedent
Concerning Congress’s Authority to
Implement Treaties with Foreign
Nations ........................................................ 9
II. THE ANTICOMMANDEERING DOCTRINE DOES
NOT EXEMPT STATE COURT JUDGES OR
STATE AGENCIES FROM APPLYING FEDERAL
LAW THAT CONFERS RIGHTS AND IMPOSES
EVENHANDED REGULATIONS ........................... 14
A. Congress Has the Authority to Enact
Supreme Federal Law That State
Judges Must Apply When Adjudicating
State Law Causes of Action ...................... 14
ii
TABLE OF CONTENTS – Continued
Page
B. Congress Has Authority to Regulate
State Actors Through Evenhanded
Regulations That Confer Rights and
Impose Corresponding Responsibilities
on State and Private Actors Alike............ 19
1. Sections 1912 and 1915 of ICWA
contain rights-conferring provisions
that do not commandeer the States .... 21
2. Sections 1912 and 1915 of ICWA
contain evenhanded regulations that
do not commandeer the States............ 23
III. CONGRESS HAS THE AUTHORITY TO
INCORPORATE ANOTHER SOVEREIGN’S POLICY
JUDGMENTS INTO THE IMPLEMENTATION OF A
FEDERAL REGULATORY SCHEME...................... 25
A. Congress’s Incorporation of Another
Sovereign’s Laws into Federal Law Is
Not an Unconstitutional Delegation of
Congress’s Legislative Authority ............. 26
B. ICWA Contains Intelligible Principles
to Guide the Implementation of
Placement Preferences by States and
Tribes ........................................................ 27
C. The Private Nondelegation Doctrine
Does Not Apply in This Case.................... 28
CONCLUSION.......................................................... 31
APPENDIX List of Amici Curiae ............................ 32
iii
TABLE OF AUTHORITIES
Page
TABLE OF AUTHORITIES
CASES
Antoine v. Washington,
420 U.S. 194 (1975) ............................................. 8
Arizona Pub. Serv. Co. v. EPA,
211 F.3d 1280 (D.C. Cir. 2000) ......................... 29
Brackeen v. Haaland,
994 F.3d 249 (5th Cir. 2021) ....................... 18, 26
Carter v. Carter Coal Co.,
298 U.S. 238 (1936) ........................................... 29
City of Albuquerque v. Browner,
97 F.3d 415 (10th Cir. 1996) ............................. 29
Delaware Tribal Bus. Comm. v. Weeks,
430 U.S. 73 (1977) ............................................... 6
Denezpi v. United States,
142 S.Ct. 1838 (2022) ........................................ 27
Fisher v. District Court,
424 U.S. 382 (1976) ........................................... 30
Gibbons v. Ogden,
22 U.S. (9 Wheat.) 1 (1824) ......................... 26, 27
Hisquierdo v. Hisquierdo,
439 U.S. 572 (1979) ........................................... 15
J.W. Hampton, Jr. & Co.,
276 U.S. 394 (1928) ........................................... 28
Matter of Adoption of B.B.,
417 P.3d 1 (Utah 2017) ..................................... 24
McCarty v. McCarty,
453 U.S. 210 (1981) ........................................... 15
iv
TABLE OF AUTHORITIES – Continued
Page
McCulloch v. Maryland,
17 U.S. (4 Wheat.) 316 (1819) ..................... 12, 13
Mississippi Band of Choctaw Indians
v. Holyfield, 490 U.S. 30 (1989) .................... 9, 27
Missouri v. Holland,
252 U.S. 416 (1920) ................................... passim
Morton v. Mancari,
417 U.S. 535 (1974) ....................................... 6, 10
Murphy v. NCAA,
138 S.Ct. 1461 (2018) ................................ passim
Nat’l Fed’n of Indep. Bus. v. Sebelius,
567 U.S. 519 (2012) ........................................... 12
Neely v. Henkel,
180 U.S. 109 (1901) ....................................... 3, 12
New York v. United States,
505 U.S. 144 (1992) ................................. 4, 15, 22
Oklahoma v. Castro-Huerta,
142 S.Ct. 2486 (2022) ...................................... 3, 8
Philip Morris USA v. Williams,
549 U.S. 346 (2007) ..................................... 15, 17
PLIVA, Inc. v. Mensing,
564 U.S. 604 (2011) ..................................... 15, 17
Printz v. United States,
521 U.S. 898 (1997) ......................... 15, 16, 21, 23
Reno v. Condon,
528 U.S. 141 (2000) ............................... 20, 21, 24
Rice v. Rehner,
463 U.S. 713 (1983) ........................................... 30
v
TABLE OF AUTHORITIES – Continued
Page
South Carolina v. Baker,
485 U.S. 505 (1988) ........................................... 24
Testa v. Katt,
330 U.S. 386 (1947) ........................................... 16
United States v. 43 Gallons of Whiskey,
93 U.S. 188 (1876) ......................................... 7, 10
United States v. Comstock,
560 U.S. 126 (2010) ........................................... 13
United States v. Creek Nation,
295 U.S. 103 (1935) ............................................. 5
United States v. Lara,
541 U.S. 193 (2004) ................................... passim
United States v. Mazurie,
419 U.S. 544 (1975) ....................................... 5, 30
United States v. Sharpnack,
355 U.S. 286 (1958) ................................. 5, 26, 27
United States v. Wheeler,
435 U.S. 313 (1978) ........................................... 29
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) ........................................... 28
Williams v. Lee,
358 U.S. 217 (1959) ..................................... 29, 30
Wisconsin v. EPA,
266 F.3d 741 (7th Cir. 2001) ............................. 29
Worcester v. Georgia,
31 U.S. (6 Pet.) 515 (1832) ........................ 2, 8, 30
vi
TABLE OF AUTHORITIES – Continued
Page
CONSTITUTIONAL PROVISIONS
U.S. Const. art. I, § 8, cl. 7........................................ 13
U.S. Const., art. I, § 8, cl. 18..................................... 10
U.S. Const. art. I, § 18, cl. 1...................................... 10
U.S. Const. art. II, § 2, cl. 2 ...................................... 10
U.S. Const. art.VI, cl. 2. ........................................ 3, 14
STATUTES
15 U.S.C. §§ 6601-17 (1999) ..................................... 18
18 U.S.C. § 1161 ........................................................ 30
21 U.S.C. § 1603 (1998) ............................................ 18
25 U.S.C. § 1901 ................................................ passim
25 U.S.C. § 1901(1) ............................................. 11, 12
25 U.S.C. § 1901(2) ............................................... 9, 11
25 U.S.C. § 1902 .................................................... 9, 25
25 U.S.C. § 1911 .................................................... 9, 16
25 U.S.C. § 1912 ................................................ passim
25 U.S.C. § 1912(a) ............................................. 23, 24
25 U.S.C. § 1912(d) ....................................... 19, 23, 24
25 U.S.C. § 1912(e)-(f) ............................................... 23
25 U.S.C. § 1913 ........................................................ 16
25 U.S.C. § 1914 ........................................................ 16
25 U.S.C. § 1915 ................................................ passim
25 U.S.C. § 1916 ........................................................ 16
vii
TABLE OF AUTHORITIES – Continued
Page
25 U.S.C. § 1917 ........................................................ 16
25 U.S.C. § 1920 ........................................................ 16
25 U.S.C. § 1921 .................................................. 16, 23
25 U.S.C. § 1922 ........................................................ 16
25 U.S.C. § 1923 ........................................................ 16
28 U.S.C. § 3702(1) ................................................... 21
50 U.S.C. § 3911 ........................................................ 18
JUDICIAL RULES
Sup. Ct. R. 37.3(a) ....................................................... 1
CONGRESSIONAL RECORD
H.R. Rep. No. 95-1386 (1978) ..................................... 9
OTHER AUTHORITIES
Curtis A. Bradley,
Federalism, Treaty Implementation, and
Political Process: Bond v. United States,
108 AM. J. INT’L L. 486 (2014) ........................... 12
Evan H. Caminker,
State Sovereignty and Subordinancy: May
Congress Commander State Officers to
Implement Federal Law?, 95 COLUM. L.
REV. 1001 (1995) ................................................ 19
Joshua M. Divine,
Statutory Federalism and Criminal Law,
106 VA. L. REV. 127 (2020) ................................ 26
viii
TABLE OF AUTHORITIES – Continued
Page
Matthew L.M. Fletcher & Wenona T. Singel,
Indian Children and Federal-Trust Trust
Relationship, 95 NEBRASKA L. REV. 885
(2017) ................................................................. 11
Michael C. Dorf,
Dynamic Incorporation of Foreign Law,
157 U. PA. L. REV. 103 (2008) ............................ 26
Nell Jessup Newton et al.,
COHEN’S HANDBOOK OF FEDERAL INDIAN
LAW (2012) ........................................................... 5
Nell Jessup Newton,
Federal Power Over Indians:
Its Sources, Scope, and Limitations,
132 U. PA. L. REV. 195 (1984) .............................. 7
Perry H. Apelbaum & Samara T. Ryder,
Third Wave of Federal Tort Reform:
Protecting the Public or Pushing the
Constitutional Envelope, 8 CORNELL J.L.
& PUB. POL’Y. 592 (1999) ................................... 18
1
INTEREST OF THE AMICI CURIAE1
Amici curiae are professors of administrative law,
constitutional law, and related public law subjects at
institutions around the United States. They have
extensive experience studying and teaching the text,
history, and structure of the Constitution, as well
Supreme Court decisions relating to Congress’s legislative powers and the supremacy of federal law. Their
legal expertise thus bears directly on the constitutional issues in this case. Amici share an interest in
the proper application of constitutional limits on
Congress’s authority to enact supreme federal law and
state courts’ obligations to decide properly presented
federal questions.
A full list of amici, who submit this brief in their
individual capacities and not on behalf of their
institutions, appears in the Appendix.
1 Counsel of record for all parties received timely advance notice
of the intent to file this brief and consented to the filing of the
brief. Sup. Ct. R. 37.3(a). No counsel for any party authored this
brief in whole or in part, and no person or entity other than amici
curiae or their counsel made a monetary contribution intended
to fund the brief’s preparation or submission.
2
INTRODUCTION AND
SUMMARY OF ARGUMENT
The Indian Child Welfare Act (ICWA or the Act)
is a valid exercise of Congress’s authority to enact
supreme federal law that applies in state court proceedings by virtue of the Supremacy Clause. Four
structural principles—each longstanding, and each
relied upon by the political branches—should be
uncontroversial in this case.
First, Congress has the constitutional authority
to enact a statute that implements treaties with Native
Nations and fulfills the U.S.’s unique responsibility to
them. ICWA is just such a statute. In enacting
ICWA, Congress found that its provisions would implement the “Federal responsibility to Indian people,”
including responsibilities arising under treaties between Indian Tribes and the United States. 25 U.S.C.
§ 1901. Thus, Congress exercised what this Court has
called its “broad” constitutional authority over Indian
affairs, which stems from multiple sources and includes
the power to implement Indian treaties. See United
States v. Lara, 541 U.S. 193 (2004).
Since the Founding, Congress has enacted statutes
to implement Indian treaties. This Court has confirmed
Congress’s authority to do so. See, e.g., Worcester v.
Georgia, 31 U.S. (6 Pet.) 515, 561-62 (1832). Nothing
in this Court’s jurisprudence concerning treaties with
foreign nations calls this constitutional authority to
implement Indian treaties into question. To the contrary, this Court has held that Congress may imple-
3
ment a treaty by enacting legislation “as is appropriate to give efficacy to any stipulations which it is competent for the President by and with the advice and
consent of the Senate to insert in a treaty with a
foreign power.” Neely v. Henkel, 180 U.S. 109, 121
(1901); accord Missouri v. Holland, 252 U.S. 416 (1920).
Amici State of Ohio and State of Oklahoma call for this
Court to overrule its precedents concerning foreign
treaties and hold that the Necessary and Proper
Clause does not afford Congress the authority to enact
legislation implementing treaties. Ohio & Okla. Amici
Br. 29. Because, however, Congress relied upon the full
scope of its authority in Indian affairs when enacting
ICWA, this case does not present that question.
Even if it did, this Court has never adopted their
crabbed reading of the Necessary and Proper Clause,
and for good reason: It would radically restrict Congress’s exercise of all of its enumerated powers and
hobble the President’s ability to negotiate treaties with
foreign nations.
Second, Congress has the authority to enact
supreme federal law that state judges must apply
when adjudicating state law causes of action. To hold
otherwise would threaten not only federal statutory
protections for Indian children, but also well-settled
principles of our federal system that stem from the
Supremacy Clause. That Clause provides that federal
law “shall be the supreme Law of the Land; and the
Judges in every State shall be bound thereby, any
Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” U.S. Const. art.VI, cl. 2.
Congress’s constitutional authority over Indian affairs
authorizes it to enact federal law regulating Indians
that preempts state laws. See Oklahoma v. Castro-
4
Huerta, 142 S.Ct. 2486, 2503 (2022). Yet ICWA’s
challengers and their amici argue that Congress’s
decision to do so through ICWA violates the anticommandeering doctrine.
The anticommandeering doctrine does not exempt
state judges from the Supremacy Clause. In Murphy
v. NCAA, this Court reaffirmed that “federal law is
supreme in case of a conflict with state law.” 138 S.Ct.
1461, 1479 (2018); see New York v. United States, 505
U.S. 144, 178 (1992) (anticommandeering doctrine does
not prohibit Congress from enacting federal “laws
enforceable in state courts”). Where ICWA’s federal
standards concerning the adoption or placement of
Indian children apply, they are binding on state
court judges in child custody proceedings and preempt
conflicting state laws. Contrary to arguments of the
individual plaintiffs and their amici, the anticommandeering doctrine does not extend so far as to permit state judges to ignore binding federal law when
they adjudicate state law causes of action.
Third, Congress has the authority to regulate
state actors through evenhanded laws that confer
rights and impose the same responsibilities on state
actors and private parties alike. In Murphy, this
Court reaffirmed first that a statute does not violate
the anticommandeering doctrine when it “imposes
restrictions or confers rights on private actors,” and,
second, that the anticommandeering doctrine does not
prohibit Congress from regulating state actors
through “evenhanded” regulations that apply to states
and private parties. 138 S.Ct. at 1461, 1480. Under
those principles, ICWA’s rights-conferring, generally
applicable provisions may apply to state child welfare
agencies and private organizations alike.
5
Fourth, the nondelegation doctrine does not prohibit Congress from incorporating another sovereign’s
policy judgments into a federal regulatory scheme.
United States v. Sharpnack, 355 U.S. 286 (1958).
Under this principle, Section 1915(c) of ICWA, which
incorporates Native Nations’ sovereign policy judgments
concerning Indian child welfare, is constitutional. And
even if Section 1915(c) were understood to delegate federal authority, the Supreme Court has unanimously
held that Congress may delegate such authority to
Tribes when, as here, it involves a Tribe’s “internal
and social relations.” United States v. Mazurie, 419 U.S.
544, 557 (1975).
ARGUMENT
I.
C ONGRESS H AS THE P OWER TO E NACT
STATUTES THAT IMPLEMENT TREATIES WITH
NATIVE NATIONS AND FULFILL ITS UNIQUE
RESPONSIBILITY TO THEM
The United States and federally recognized Native
Nations have a unique “government-to-government”
relationship under federal law. See Lara, 541 U.S. at
202. This unique relationship is reflected in the
sources and limits on federal authority in Indian
affairs. Federal authority, while broad, “is subject to
limitations,” including “pertinent constitutional
restrictions” as well as the trust responsibility that
the federal government owes to Native Nations.
United States v. Creek Nation, 295 U.S. 103, 109-110
(1935); see Nell Jessup Newton et al., COHEN ’ S
HANDBOOK OF FEDERAL INDIAN LAW § 5.04[2][a] (2012)
6
(“although congressional power is broad, it is subject
to constitutional limitations”). Congress’s constitutional
authority in Indian affairs arises from a constellation
of explicit constitutional provisions and structural
principles implicit in the Constitution. See Lara, 541
U.S. at 200, 204; Morton v. Mancari, 417 U.S. 535, 552
(1974). Congress may exercise its legislative authority
in order to fulfill its “unique obligation toward the
Indians.” Mancari, 417 U.S. at 541-42, 555; cf. Delaware
Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 83–84 (1977)
(explaining that “the legislative judgment should not
be disturbed ‘[a]s long as the special treatment can be
tied rationally to the fulfillment of Congress’ unique
obligation toward the Indians’” (quoting Mancari, 417
U.S. at 555)).
Just as it had done in countless laws stretching
back to the first Trade and Intercourse Act of 1790,
Congress enacted ICWA based upon its constitutional
authority in Indian affairs and acted to fulfill the
unique “Federal responsibility to Indian people,” which,
it found, is based upon federal “statutes, treaties, and
the general course of dealing with Indian tribes.” See
25 U.S.C. § 1901 (emphasis added). The States of Ohio
and Oklahoma, appearing as amici, suggest that ICWA’s
reference to Indian treaties presents an opportunity
for this Court to overrule its precedent concerning
Congress’s authority to enact statutes that implement
treaties with foreign nations. Ohio & Okla. Amici Br.
29. But this case does not present that question.
7
A. Congress Enacted ICWA Against the
Backdrop of Its Longstanding Practice of
Implementing Indian Treaties and
Fulfilling Its Unique Responsibility to
Indians as Well as This Court’s Repeated
Reaffirmations of Its Authority to Do So
As a matter of history and tradition, there
should be no doubt that Congress has the power to
enact a statute that implements treaties with Native
Nations, fulfills the U.S.’s unique responsibilities to
them, and preempts conflicting state law. Indeed, “for
much of the Nation’s history, treaties, and legislation
made pursuant to those treaties, governed relations
between the Federal Government and the Indian
Tribes.” Lara, 541 U.S. at 201 (emphasis added).
The established practice, beginning with the first
Trade and Intercourse Act of 1790, was for Congress
to enact laws “to effectuate treaty promises of protection” made by the United States to Indian Tribes.
Nell Jessup Newton, Federal Power Over Indians:
Its Sources, Scope, and Limitations, 132 U. PA. L.
REV. 195, 201 (1984). Congress did not confine itself
to implementing specific treaty promises when implementing its duty of protection to Tribes. Instead, the
Trade and Intercourse Acts implemented the unique
federal responsibility owed to all Native Nations, just
as ICWA did two centuries later. As implementing
legislation, the Trade and Intercourse Acts “were not
controversial exercises of congressional power.” Id.
Rather, the Treaty and Necessary Proper Clauses,
together with the Indian Commerce Clause, provided
congressional authority to enact the Trade and Intercourse Acts. See id.; see also United States v. 43
Gallons of Whiskey, 93 U.S. 188, 196–197 (1876) (holding
8
that Congress had authority to implement treaty by
enacting statute criminalizing introduction of liquor
into Indian Country and referring to the treaty power
and the commerce power).
In Worcester v. Georgia, this Court confirmed
that Indian treaties and implementing legislation are
supreme federal law. See 31 U.S. (6 Pet.) at 562.
Worcester held that laws of the State of Georgia were
“void” because they conflicted with federal constitutional law, treaties between the Cherokee Nation and
the U.S., and federal statutes. Id. In particular, the
State’s laws were “in direct hostility with treaties”
between the Cherokee Nation and the U.S., and “in
equal hostility with the acts of congress for regulating
this intercourse, and giving effect to the treaties.” Id.
at 562; see also Castro-Huerta, 142 S.Ct. at 2503 (“a
State’s jurisdiction in Indian country may be
preempted . . . by federal law”).
This Court has repeatedly held that Congress has
authority to enact supreme federal law that implements agreements between Native Nations and the
United States. Even though the U.S. ended the practice
of entering into formal treaties with Native Nations in
1871, Congress has continued to ratify agreements with
them. And this Court has held that such agreementimplementing legislation is supreme federal law under
the Supremacy Clause. See Antoine v. Washington,
420 U.S. 194, 204-05 (1975) (holding that Congress
may “legislate . . . federally protected rights into law”
by “enacting . . . implementing statutes that ratified
an Agreement” between Native Nations and the U.S.).
Against this backdrop, ICWA’s references to
Indian treaties and the unique “Federal responsibility
to Indian people” are unexceptional. 25 U.S.C. § 1901.
9
ICWA protects the rights of children and parents by
allocating jurisdiction over child custody proceedings
among Indian Tribes and the states, providing procedures for custody proceedings in state courts, and
providing for a system of preferences for the placement of Indian children. See, e.g., 25 U.S.C. §§ 1911,
1912, 1915. These federal rights and procedures were
necessary, Congress found, to address widespread bias
in state and private welfare agencies and violations of
the due process rights of Indian children and parents
in state courts, which had led to the “‘wholesale removal
of Indian children from their homes.’” Mississippi
Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 3233 (1989); see 25 U.S.C. §§ 1901-1902; H.R. Rep. No.
95-1386, at 10-12 (1978) (explaining that prior to ICWA,
Indian child welfare decisions in “most cases, [were]
carried out without due process of law”). Redressing
these systemic rights violations, Congress concluded,
would fulfill the federal “responsibility for the protection and preservation of Indian tribes and their
resources[,]” which Congress had “assumed” “through
statutes, treaties, and the general course of dealing
with Indian tribes.” 25 U.S.C. § 1901(2).
B. ICWA Does Not Present an Opportunity
for This Court to Revisit Its Precedent
Concerning Congress’s Authority to
Implement Treaties with Foreign Nations
Seizing upon ICWA’s reference to treaties, amici
Ohio and Oklahoma suggest that this Court should
overrule its precedent concerning Congress’s authority
under the Necessary and Proper Clause to implement
treaties with foreign nations. In particular, the amici
argue that this Court should overrule Missouri v.
Holland to the extent it held that “[i]f the treaty [with
10
a foreign nation] is valid there can be no dispute about
the validity of the [implementing] statute under Article
I, Section 8, as a necessary and proper means to
execute the powers of the Government.” 252 U.S. 416,
432 (1920); see Ohio & Okla. Amici Br. 29. But this is
not a case in which the validity of a federal statute
rests solely upon a treaty and Congress’s authority
to implement it under the Necessary and Proper
Clause. And, therefore, this case does not present the
question that amici Ohio and Oklahoma raise.
The Treaty and Necessary and Proper Clauses
together are a source—but not the only source—of
congressional authority to enact statutes addressing
Indian affairs. The Treaty Clause affords the President
the “Power, by and with the Advice and Consent of the
Senate, to make Treaties,” including treaties with
Indian Tribes. U.S. Const. art. II, § 2, cl. 2. And the
Necessary and Proper Clause, in turn, is one source of
Congress’s power to implement treaties with Native
Nations and fulfill its trust responsibility to them. See
U.S. Const., art. I, § 8, cl. 18; Lara, 541 U.S. at 204.
But so too is the Indian Commerce Clause, to name but
another source of Congress’s authority in Indian
affairs. See 43 Gallons of Whiskey, 93 U.S. at 196-97.
Congress’s constitutional authority in Indian
affairs arises from both constitutional text and
structure. In Mancari, this Court explained, Congress’s
power to legislate with respect to Indian affairs “is
drawn both explicitly and implicitly from the Constitution,” including the Indian Commerce Clause, the
treaty power, and the war power, and may be exercised
to “fulfill[] . . . Congress’ unique obligation toward the
Indians.” 417 U.S. at 551, 555. And in Lara, this Court
reaffirmed that “[t]he Constitution grants Congress
11
broad general powers to legislate in respect to Indian
Tribes” through the Indian Commerce Clause, the
Treaty Clause, and the Necessary and Proper Clause,
not to mention the Property Clause. 541 U.S. at 200,
204.
In enacting ICWA to fulfill the “Federal responsibility to Indian people,” Congress did not rely solely
upon Indian treaties as the source of its constitutional
authority. 25 U.S.C. § 1901. To the contrary, Congress
was explicit in its reliance upon the full scope of its
constitutional authority. It cited the Indian Commerce
Clause as well as “other constitutional authority” to
legislate with respect to Indian affairs. Id. § 1901(1).
And Congress pointed to Indian treaties as well as
statutes and the longstanding “course of dealing”
between Tribes and the U.S. as sources of “the responsibility for the protection and preservation of Indian
tribes and their resources” that it aimed to fulfill with
ICWA. Id. § 1901(2). The U.S. government made treaty
promises to multiple Native Nations to protect the
welfare of Indian children. Matthew L.M. Fletcher &
Wenona T. Singel, Indian Children and Federal-Trust
Trust Relationship, 95 NEBRASKA L. REV. 885, 890
(2017) (discussing the “numerous ratified treaties” in
which the U.S. promised “to guarantee the safety,
education, welfare, and land rights of Indian children”).
Unsurprisingly, therefore, Congress cited Indian
treaties as one—but not the only—basis for ICWA. 25
U.S.C. § 1901(2).
ICWA thus does not present an opportunity for
this Court to revisit Holland. To reach the question
that Ohio and Oklahoma raise, this Court would have
to ignore (or reject) all the other “constitutional
authority” that Congress cited when enacting ICWA.
12
See 25 U.S.C. § 1901(1). And not just that: this Court
would also have to assume that Congress’s authority
to implement Indian treaties has precisely the same
scope (and limits) as its authority to implement foreign
treaties under the Necessary and Proper Clause, notwithstanding the government-to-government relationship and unique “Federal responsibility” that Congress
owes “Indian people.” Id. § 1901.
In any event, “it has long been assumed”—and
was explicitly stated by this Court prior to Holland—
“that Congress can use [its] Necessary and Proper
Clause authority to implement treaties.” Curtis A.
Bradley, Federalism, Treaty Implementation, and
Political Process: Bond v. United States, 108 AM. J.
INT’L L. 486, 488 & n.16 (2014) (citing Neely, 180 U.S.
at 121). In amici’s view, however, the Necessary and
Proper Clause does not furnish Congress with the
authority to implement the U.S.’s commitments under
valid treaties, but only to support the making of
treaties. Ohio & Okla. Amici Br. 30. If adopted, this
rule would hobble the President’s ability to make credible
promises and negotiate treaties with foreign nations.
Amici’s reading of the Necessary and Proper
Clause also would radically restrict Congress’s exercise
of its enumerated powers. As this Court put it in Nat’l
Fed’n of Indep. Bus. v. Sebelius, Congress’s “power to
‘make all Laws which shall be necessary and proper
for carrying into Execution’ the powers enumerated
in the Constitution, Art. I, § 8, cl. 18, vests Congress
with authority to enact provisions ‘incidental to the
[enumerated] power, and conducive to its beneficial
exercise.’” 567 U.S. 519, 559 (2012) (quoting McCulloch
v. Maryland, 17 U.S. (4 Wheat.) 316, 418 (1819)).
McCulloch provided a pertinent example to illustrate
13
what it means for Congress to enact laws “incidental”
to an enumerated power and “conducive to its beneficial
exercise”: Congress has the enumerated power “to
Establish Post Offices and post Roads.” U.S. Const.
art. I, § 8, cl. 7. As Chief Justice Marshall pointed
out in McCulloch, strictly speaking, “[t]his power is
executed, by the single act of making the establishment.” 17 U.S. (4 Wheat.) at 417. But, Chief Justice
Marshall continued, “from [the power of establishing
post offices and post roads] has been inferred the
power and duty of carrying the mail along the postroad, from one post-office to another. And from this
implied power, has again been inferred the right
to punish those who steal letters from the post-office,
or rob the mail.” Id. Those powers might not be
“indispensably necessary to the establishment of a
post-office and post-road.” Id. But, this Court concluded,
they were “indeed essential to the beneficial exercise
of the power.” Id.; see also United States v. Comstock,
560 U.S. 126, 144-45 (2010) (citing this example); id.
at 169 & n.8 (Thomas, J., dissenting) (same). Congress’s
authority to enact statutes implementing valid foreign
treaties is similarly “essential to the beneficial exercise of the power” of the President, with the advice and
consent of the Senate, to make treaties. Thus, amici
have provided no good reason to revisit this Court’s
precedent confirming Congress’s authority to implement treaties.
14
II. THE ANTICOMMANDEERING DOCTRINE DOES NOT
E XEMPT S TATE C OURT J UDGES OR S TATE
AGENCIES FROM APPLYING FEDERAL LAW THAT
CONFERS RIGHTS AND IMPOSES EVENHANDED
REGULATIONS
With ICWA, Congress enacted preemptive federal
law that state court judges must apply and imposed
the same responsibilities upon both state and private
actors when they seek to remove Indian children from
their families. That is not unconstitutional commandeering.
A. Congress Has the Authority to Enact
Supreme Federal Law That State Judges
Must Apply When Adjudicating State Law
Causes of Action
ICWA is a federal law enforceable in state court
child welfare proceedings involving Indian children.
To the extent that it affects the adjudication of a state
law cause of action, ICWA is indistinguishable from
countless federal statutes that this Court and the
lower federal courts have applied in cases involving
state causes of action. On this point, the Supremacy
Clause’s text is clear and admits of no “state law cause
of action” exception to the obligation it imposes on
state judges to apply “the supreme Law of the Land,”
U.S. Const. art. VI, cl. 2. There is no merit to the individual plaintiffs’ argument (Br. 62-68) that the anticommandeering doctrine shields state court judges
from their clear duty under the Supremacy Clause to
apply federal law whenever it applies, including in
cases arising under state law causes of action.
This Court has held that the prohibition on commandeering is implicit in the Tenth Amendment and
15
the federal structure of the Constitution. In New York
v. United States, 505 U.S. at 144, this Court held that
Congress may not command state legislatures to enact
specific legislation. In Murphy, this Court held that
Congress may not command state legislatures to refrain
from enacting legislation either. 138 S.Ct. at 1479.
And in Printz v. United States, 521 U.S. 898, 935
(1997), this Court held that state executives are not
bound by federal commands that they administer federal regulatory programs.
This Court has never held that the anticommandeering doctrine exempts state court judges from
their obligation under the Supremacy Clause to
apply federal laws that may be relevant to the adjudication of state law causes of action. In the area of
family law, for example, this Court has held that federal law may modify the relief available under state
law causes of action. See McCarty v. McCarty, 453
U.S. 210, 235-36 (1981) (holding that federal law preempted state courts from allocating military retirement
pay pursuant to state community property laws upon
divorce); Hisquierdo v. Hisquierdo, 439 U.S. 572, 590
(1979) (holding that federal law preempted state law’s
definition of community property subject to division
with respect to federal pension benefits). In myriad
other areas of law, moreover, federal law may affect
state law causes of action, including by preempting
claims altogether and by requiring specific procedures
before a court may award a particular form of relief.
See, e.g., PLIVA, Inc. v. Mensing, 564 U.S. 604 (2011);
Philip Morris USA v. Williams, 549 U.S. 346, 353
(2007).
The Supremacy Clause leaves no doubt that state
judges have the obligation to apply federal law when
16
such application affects adjudication of a state law
cause of action. Writing for the Court in Printz,
Justice Scalia explained that “the Constitution was
originally understood to permit the imposition of an
obligation on state judges to enforce federal prescriptions, insofar as those prescriptions related to matters
appropriate for the judicial power.” Printz, 521 U.S. at
907 (emphasis in original). This obligation of state
judges was implicit in the Madisonian Compromise,
which “made the creation of lower federal courts optional
with Congress—even though it was obvious that the
Supreme Court alone could not hear all federal cases
throughout the United States.” Id. As the Printz Court
explained, Testa v. Katt, 330 U.S. 386 (1947), spelled
out the implication of this Compromise: “state courts
cannot refuse to apply federal law.” Id. (citing Testa,
330 U.S. at 393). This scheme, which preserves federal
supremacy while permitting Congress to defer matters
of federal law to state courts of competent jurisdiction,
has been a feature of federalism since the Founding.
ICWA contains various federal-law provisions
that the Supremacy Clause requires state court judges
to apply when adjudicating child custody proceedings.
These preemptive federal rules include rights to
petition state courts for relief, see 25 U.S.C. §§ 1914,
1916, 1917; jurisdictional and procedural rules for
adjudicating child custody questions, see id. § 1911,
1912, 1920, 1923; and substantive standards concerning
the best interests of Indian children in placement
proceedings, see id. § 1913, 1915, 1921, 1922. The
anticommandeering doctrine does not exempt state
court judges from their constitutional obligation to
apply these federal rules in cases where they apply.
17
This principle—that the Supremacy Clause
requires state court judges to apply federal law—should
go without saying. Nevertheless, the individual plaintiffs argue that state court judges are free to ignore
the placement preferences in Section 1915 of ICWA.
See Ind. Pls.’ Br. 62-68; see also Goldwater Inst. et al.
Amici Br. 29-30.
The implications of their proposed rule—that the
Supremacy Clause does not require state court judges
to apply federal law when considering a state law
cause of action—are mind-boggling. What would this
rule mean for the Fourteenth Amendment Due Process
Clause’s procedural requirements and limits on punitive
damages awards in state law cases? See Philip Morris,
549 U.S. at 353. That is federal law, and by the logic
of the individual plaintiffs’ reading of the Constitution, a state court judge is free to ignore federal law
when adjudicating a state cause of action. What about
federal statutes that preempt state tort causes of action?
See PLIVA, 564 U.S. at 604. Again, as individual plaintiffs put it, the Supremacy Clause “does not suggest
that a state court considering a state cause of action
must apply federal law.” Ind. Pls.’ Br. 66 (emphasis
omitted).2
2 The individual plaintiffs and their amici identify no principled
distinction between these examples and ICWA, which amici insist
“dictates” to state judges how to enforce state law. Goldwater
Inst. Et al. Amici Br. 29. Yet when federal constitutional law limits
punitive damages—which aim to ensure adequate enforcement
of state law when compensatory damages might be inadequate
to deter future violations—that too “dictates” a decision about
enforcement. So too, federal statutory law “dictates” a decision
about enforcement when it preempts a state law cause of action.
18
Indeed, the individual plaintiffs doubt that Congress can enact federal law that would affect the adjudication of state law medical malpractice cases by
imposing a particular standard of proof. Ind. Pls.’ Br.
66-67. Yet, in fact, Congress has legislated extensively
with respect to state tort law. To pick but one pertinent
example, in the Biomaterials Access Assurance Act of
1998, Congress enacted a set of procedural rules enforceable in state court designed to allow the suppliers of
biomaterials and medical implant component parts to
be dismissed from state law products liability actions.
See 21 U.S.C. § 1603 (1998). Or consider the Y2K
Act, an even more pertinent example, which required
a “clear and convincing evidence” standard of proof
for punitive damages claims in actions stemming from
the anticipated year 2000 computer crashes. 15 U.S.C.
§§ 6601-17 (1999); see Perry H. Apelbaum & Samara
T. Ryder, Third Wave of Federal Tort Reform: Protecting
the Public or Pushing the Constitutional Envelope, 8
C ORNELL J.L. & PUB . P OL ’ Y. 592, 620-627 (1999).
Thankfully, the Y2K disaster did not come to pass,
leaving to another day, or perhaps another millennium,
the question of whether Congress may enact federal
law for tort cases involving systemic computer glitches.
This much is clear, however: the anticommandeering
doctrine does not exempt state judges from their constitutional obligation to apply valid federal law when it
As Judge Dennis discussed below, and the Tribes argue in their
briefing to this Court, the individual plaintiffs’ reading of the
Constitution would eviscerate the enforcement of “a host of federal statutes,” including the Servicemembers Civil Relief Act, 50
U.S.C. § 3911 et seq. See Brackeen v. Haaland, 994 F.3d 249, 318
(5th Cir. 2021). Here, too, the individual plaintiffs have
identified no principled distinction that would limit their sweeping,
proposed exception to the clear dictates of the Supremacy Clause.
19
applies in a case arising under a state law cause of
action.3
B. Congress Has Authority to Regulate State
Actors Through Evenhanded Regulations
That Confer Rights and Impose Corresponding Responsibilities on State and
Private Actors Alike
A statute does not violate the anticommandeering
doctrine when it “imposes restrictions or confers rights
on private actors.” Murphy, 138 S.Ct. at 1480. Moreover,
“[t]he anticommandeering doctrine does not apply
when Congress evenhandedly regulates an activity in
which both States and private actors engage.” Id. Thus,
the anticommandeering doctrine does not shield state
agencies from rights-conferring, generally-applicable
provisions that impose the same responsibilities on
state actors and private parties when they engage in
the same activity.
Several of ICWA’s provisions—including Sections
1912(d), (e), and (f), which the court of appeals majority
struck down on anticommandeering grounds—meet
this criterion. That is, they are generally applicable
provisions that confer rights on Indian children and
parents and impose corresponding responsibilities
upon state agencies and private actors alike. Texas
3 The individual plaintiffs cite Professor Evan Caminker’s work
in support of their proposed rule, see Ind. Pls.’ Br. 64-65, but omit
his most relevant conclusion: “a state court may not entertain
and adjudicate causes of action arising under state law in a
manner that would conflict with applicable federal law.” Evan H.
Caminker, State Sovereignty and Subordinancy: May Congress
Commander State Officers to Implement Federal Law?, 95
COLUM. L. REV. 1001, 1023 (1995).
20
concedes (Br. 68) that “several of ICWA’s provisions
apply to any party initiating a child-custody proceeding, see, e.g., 25 U.S.C. §§ 1912, 1915“—that is, these
provisions are generally applicable regulations of an
activity that both state and private actors engage in,
namely, petitioning for the removal of Indian children
from their families. Nevertheless, Texas argues, these
statutory provisions are unconstitutional commandeering because the state has a sovereign interest at
stake in that activity and because the activity does not
involve marketplace competition. Texas Br. 65-69; see
also Academy & NCFA Amici Br. 9. This proposed
“marketplace-competition-only” rule supposedly stems
from this Court’s opinions in Murphy and Reno v.
Condon. See Texas Br. 68-69; Academy & NCFA Amici
Br. 11-12.
Under those precedents, however, Congress may
enact rights-conferring provisions that preempt state
law and impose evenhanded regulations on state and
private actors alike. ICWA is both a rights-conferring
provision and an evenhanded regulation. As to the
evenhanded-regulation rule, Murphy said that it
“formed the basis for the Court’s decision” in Reno v.
Condon, “which concerned a federal law restricting
the disclosure and dissemination of personal information provided in applications for driver’s licenses.”
Murphy, 138 S.Ct. at 1478-79. As this Court explained,
“[t]he law applied equally to state and private actors.
It did not regulate the States’ sovereign authority to
‘regulate their own citizens.’” 138 S.Ct. at 79 (quoting
Reno, 528 U.S. at 151). The Court did not say that
marketplace competition is the only type of activity in
which both States and private actors may engage.
Nor did it say that Congress commandeers the States
21
whenever it regulates an activity in which the states
have a sovereign interest. Instead, this Court implied
that a law “regulated[ing] the States’ sovereign
authority to ‘regulate their own citizens’” would not
be an evenhanded regulation. Id.
ICWA does not commandeer the States by regulating their sovereign authority to regulate their own
citizens. Sections 1912 and 1915 of ICWA contain
rights-conferring provisions that validly preempt
conflicting state law. Moreover, these rights-conferring
provisions impose corresponding and evenhanded responsibilities upon state and private actors. Sections 1912
and 1915 do not “commandeer[] the state legislative
process.” Murphy, 138 S.Ct. at 1479. They do not
“direct[] the States either to enact or to refrain from
enacting a regulation of activities occurring within
their borders.” Id. Nor do they “command” a state
actor “to administer or enforce a federal regulatory
program.” Printz, 521 U.S. at 935. Thus, these provisions do not “regulate the States’ sovereign authority
to ‘regulate their own citizens.’” Murphy, 138 S.Ct. at
1479.
1. Sections 1912 and 1915 of ICWA contain
rights-conferring provisions that do not
commandeer the States
In Murphy, this Court held that the Professional
and Amateur Sports Protection Act (PASPA) unconstitutionally commandeered the states by making it unlawful for a state to “authorize” sports gambling. See 138
S.Ct. at 1468 (quoting PASPA, 28 U.S.C. § 3702(1));
id. at 1478 (holding that PASPA’s prohibition violated
the anticommandeering rule). Prohibiting a state from
enacting new legislation authorizing sports gambling
22
was indistinguishable from requiring a state to enact
legislation, which New York held was unconstitutional commandeering. See id. at 1478; New York, 505
U.S. at 176-177. Thus, Murphy was concerned with
limiting Congress’s power to compel state governments to maintain existing laws on the books, not
with upsetting the longstanding principle that state
governments may not enforce state policies that
conflict with (and thus are preempted by) federal law.
Murphy distinguished PASPA’s bare command to
state governments from federal statutes that regulate
and confer rights upon private parties. This Court
explained that “every form of preemption is based
upon a federal law that regulates the conduct of private
actors, not the States.” 138 S.Ct. at 1481. The challenged provision of PASPA was “not a preemption
provision because there [was] no way in which this
provision [could] be understood as a regulation of
private actors.” Id. It did not “confer any federal rights
on private actors,” nor did “it impose any federal
restrictions on private actors.” Id. A private actor
could open a gambling business without violating the
PASPA provision because that provision was directed
only at the states. See id. As a result, “there [was]
simply no way to understand the provision prohibiting
state authorization as anything other than a direct
command to the States.” Id.
Unlike PASPA, ICWA is not a direct command to
a state legislature to refrain from legislating or to
maintain existing laws. Nor is it a command to state
agencies. Rather, Sections 1912 and 1915, which the
court of appeals majority struck down in part on
anticommandeering grounds, contain various provisions
conferring rights on Indian children and parents and
23
imposing corresponding responsibilities on state and
private actors. Section 1912(a), for example, requires
“the party seeking the foster care placement of, or
termination of parental rights to, an Indian child [to]
notify the parent or Indian custodian and the Indian
child’s Tribe,” thus guaranteeing a federal right to
notice. 25 U.S.C. § 1912(a). Section 1912(d) similarly
confers rights by specifying that any party—whether
a state agency or private organization—must “satisfy
the court that active efforts have been made . . . to
prevent the breakup of the Indian family” before the
court may order a foster care placement or terminate
parental rights at that party’s request. Id. § 1912(d).
Section 1912(e) and (f) confer rights to “continued
custody” of an Indian child unless the opposing party
produces evidence, “including testimony of qualified
expert witnesses,” sufficient to show it is “likely” that
“continued custody” would “result in serious emotional
or physical damage to the child.” Id. § 1912(e)-(f). And
Section 1915(a)-(b) confers rights by establishing a
default set of placement preferences, which, when they
apply, must be followed in the absence of a showing of
“good cause to the contrary.” Id. § 1915(a)-(b). These
provisions are not direct commands “to administer or
enforce a federal program.” Printz, 521 U.S. at 935.
There is simply no way to understand these provisions
as anything other than rights-creating, which, presumably, is why Section 1921 of ICWA refers to “the rights
provided under this subchapter.” 25 U.S.C. § 1921.
2. Sections 1912 and 1915 of ICWA contain
evenhanded regulations that do not
commandeer the States
Congress imposed responsibilities upon both state
and private actors in Section 1912 and Section 1915
24
because both may engage in the same activity: seeking
to initiate child-custody proceedings involving Indian
children. See generally Matter of Adoption of B.B., 417
P.3d 1, 28 (Utah 2017) (concluding that Indian parent
had rights under ICWA in case involving private
agency). To the extent that it creates rights and imposes
corresponding responsibilities upon state agencies
and private organizations alike, ICWA is analogous to
the Driver’s Privacy Protection Act (DPPA), which this
Court unanimously upheld in Reno v. Condon, see 528
U.S. 141 (2000), a decision reaffirmed by this Court in
Murphy, 138 U.S. at 1478. The DPPA prohibited state
departments of motor vehicles from releasing a driver’s
personal information without the driver’s consent.
This prohibition also applied to private entities. This
Court concluded that the DPPA’s “generally applicable”
regulations did not commandeer state activities. Id. at
1478 (citing South Carolina v. Baker, 485 U.S. 505,
514-15 (1988)).
Like the DPPA, subchapter I of ICWA includes
provisions that regulate both state agencies and
private entities. For example, Section 1912(a) requires
“the party seeking the foster care placement of, or
termination of parental rights to, an Indian child [to]
notify the parent or Indian custodian and the Indian
child’s Tribe.” 25 U.S.C. § 1912(a). Section 1912(d)
similarly regulates any party—whether a state agency
or private organization—by requiring them to “satisfy
the court that active efforts have been made . . . to
prevent the breakup of the Indian family” before the
court may order a foster care placement or terminate
parental rights at that party’s request. Id. § 1912(d).
Subsections (e) & (f) of Section 1912 similarly apply
evenhandedly, as do the placement preferences of
25
Section 1915(a)-(b). These are valid preconditions to a
state court’s issuing an order concerning the placement
of an Indian child. And they are valid, generally
applicable regulations of a state’s activities. Just as
Congress could constitutionally regulate state departments of motor vehicles through the DPPA, so too may
it regulate state child welfare agencies through the
generally applicable provisions of ICWA. ICWA, in
other words, is not commandeering but rather an
evenhanded regulation of “an activity in which both
States and private actors engage.” Murphy, 138 S.Ct.
at 1478.
III. CONGRESS HAS THE AUTHORITY TO INCORPORATE
ANOTHER SOVEREIGN’S POLICY JUDGMENTS INTO
THE IMPLEMENTATION OF A FEDERAL REGULATORY
SCHEME
One of Congress’s goals in enacting ICWA was
the “placement of such children in foster or adoptive
homes which will reflect the unique values of Indian
culture.” 25 U.S.C. § 1902. To accomplish this goal,
Congress prospectively incorporated Native Nation’s
policy judgments into implementation of ICWA’s placement preferences. Sections 1915(a)-(b) contain default
placement preferences. Id. § 1915(a)-(b). Section 1915(c)
provides that if “the Indian child’s tribe” establishes
placement preferences, “the agency or court effecting
the placement shall follow such order so long as the
placement is the least restrictive setting appropriate
to the particular needs of the child.” Id. § 1915(c). It
also provides that “[w]here appropriate, the preference of the Indian child or parent shall be considered.”
Id.
The Fifth Circuit correctly held that Section 1915(c)
“validly integrates tribal sovereigns’ decision-making
26
into federal law” and thus “does not violate the nondelegation doctrine.” Brackeen v. Haaland, 994 F.3d
249, 352 (5th Cir. 2021).
A. Congress’s Incorporation of Another
Sovereign’s Laws into Federal Law Is Not
an Unconstitutional Delegation of Congress’s
Legislative Authority
ICWA’s prospective incorporation of Tribal
policymaking into federal law is not unusual. Congress
has enacted various federal statutes that adopt state
law not only as it is at the time of enactment, but also
as it may be in the future at the time of the statute’s
application in a particular case. See Joshua M. Divine,
Statutory Federalism and Criminal Law, 106 VA. L.
REV. 127, 138-143 (2020) (providing examples); Michael
C. Dorf, Dynamic Incorporation of Foreign Law, 157
U. PA. L. REV. 103, 125-26 (2008) (same).
This Court has held Congress does not unconstitutionally delegate legislative power simply by incorporating state law into federal law. In Gibbons v. Ogden,
22 U.S. (9 Wheat.) 1, 207 (1824), this Court stated
that “Congress may adopt the provisions of a State
on any subject.” And in United States v. Sharpnack,
this Court held that Congress has the authority prospectively to incorporate state law. 355 U.S. 286
(1958). In Sharpnack, the Supreme Court upheld the
Assimilative Crimes Act (ACA), a federal statute that
incorporated states’ criminal laws “in force at the
time” of the alleged crime and made them applicable
in federal enclaves within each state. Id. The Court
held that the law was a “deliberate continuing adoption
by Congress” of state law as binding federal law, with
Congress retaining the legislative authority “to exclude
27
a particular state law from the assimilative effect of
the Act.” Id. at 294; see also Gibbons, 9 U.S. (Wheat.)
at 207. Rather than an impermissible delegation of
Congress’s legislative power, the prospective adoption
of state law as federal law was viewed as a “practical
accommodation of the mechanics of the legislative
functions of State and Nation.” Sharpnack, 355 U.S.
at 294.
In this respect, Section 1915(c) of ICWA is
indistinguishable from the ACA. Just as the ACA
incorporates state criminal laws, so too does Section
1915(c) incorporate Tribal laws concerning Indian
children, a matter in which Tribes have sovereign
authority. See Holyfield, 490 U.S. at 42 (tribal authority
“over Indian child custody proceedings is not a novelty
of the ICWA,” but a component of tribal sovereignty);
cf. Denezpi v. United States, 142 S.Ct. 1838, 1850
(2022) (Gorsuch, J., dissenting) (recognizing that federal law might “assimilate tribal crimes”). And like
the ACA, ICWA does not purport to preclude Congress
from withdrawing its adoption of another sovereign’s
law if it decides to do so. As such, Section 1915(c) is a
“deliberate continuing adoption by Congress” of tribal
law into federal law. See Sharpnack, 355 U.S. at 293-94.
B. ICWA Contains Intelligible Principles to
Guide the Implementation of Placement
Preferences by States and Tribes
Even if Section 1915(c) constituted a delegation
of federal authority to Tribes, Congress can make (and
repeatedly has made) such delegations, limited only
by the requirement that the statute in question set
forth an “intelligible principle” governing the delegee’s
discretion. See Whitman v. Am. Trucking Ass’ns, 531
28
U.S. 457, 474 (2001). So long as Congress provides an
“intelligible principle” to govern its delegation of
authority, the recipient of the delegated power is not
exercising “legislative power.” J.W. Hampton, Jr. &
Co., 276 U.S. 394, 409 (1928).
Section 1915 plainly specifies intelligible principles
to govern the placement of an Indian child. Section
1915(c) merely recognizes tribal authority to change
the order of a congressionally established list of child
placement preferences already outlined in Sections
1915(a)-(b). And though Section 1915(c) provides that
an Indian Tribe’s decision may reorder the placement
preferences, a state agency or court must also consider
additional statutory factors bearing upon the placement
decision. If a Tribe “establish[es] a different order” of
placement preferences, then Section 1915(c) directs a
court in a child custody proceeding to follow that
reordered list, but only if the placement would be “the
least restrictive setting appropriate to the particular
needs of the child.” 25 U.S.C. § 1915(c). The statute
further specifies that, “[w]here appropriate, the preference of the Indian child or parent shall be considered.”
Id. The guidance to Tribes and States in Section 1915
is more than enough to satisfy the nondelegation
doctrine’s intelligible principle requirement. See Whitman, 531 U.S. at 474 (direction to regulate in the
“public interest” suffices).
C. The Private Nondelegation Doctrine Does
Not Apply in This Case
Texas and amicus New Civil Liberties Alliance
(“NCLA”) contend that Section 1915’s incorporation of
Indian Tribal placement preferences violates the
private nondelegation doctrine because Indian Tribes
29
are not part of the federal government. See Texas Br.
72-73; NCLA Br. 20-23 (both citing Carter v. Carter
Coal Co., 298 U.S. 238 (1936)). This argument is
squarely foreclosed by this Court’s precedent and
would radically undermine a variety of cooperative
regulatory schemes that include both Tribes and States
in their implementation. See, e.g., Arizona Pub. Serv.
Co. v. EPA, 211 F.3d 1280, 1288 (D.C. Cir. 2000) (noting
that the Clean Air Act expressly delegates regulation
of air quality to Tribes); City of Albuquerque v.
Browner, 97 F.3d 415, 424 (10th Cir. 1996) (holding
that EPA had authority to require upstream dischargers
to comply with Pueblo of Isleta’s limitations even if
those limitations were more stringent than federal
standards); Wisconsin v. EPA, 266 F.3d 741, 748 (7th
Cir. 2001) (concluding that under the Clean Water Act,
EPA may authorize Tribes to regulate off-reservation
discharges).
Native Nations are sovereign governments with
authority to “make their own laws and be ruled by
them.” Williams v. Lee, 358 U.S. 217, 220 (1959). One
of the fundamental attributes of a Native Nation’s
sovereignty is the authority to preside over internal
relations and matters involving tribal members,
especially in the areas of family law and the welfare
of Indian children. See, e.g., Holyfield, 480 U.S. at 42.
Tribes’ exercise of these core self-governance functions
“has never been taken away from them, either explicitly
or implicitly, and is attributable in no way to any
delegation to them of federal authority.” United States
v. Wheeler, 435 U.S. 313, 328 (1978). To hold that
Indian Tribes are subject to the private nondelegation
doctrine would be to ignore two centuries of federal
practice and this Court’s precedent. See, e.g., Worcester
30
31 U.S. (6 Pet.) at 542-43; Williams, 358 U.S. at 220;
Holyfield, 480 U.S at 42.
In Mazurie, this Court expressly rejected the
argument that an Indian Tribe is indistinguishable
from a private entity and therefore cannot exercise
governmental power in implementing a federal
regulatory scheme. Writing for a unanimous Court,
Justice Rehnquist rejected a constitutional challenge
to 18 U.S.C. § 1161, which authorized Indian Tribes
to regulate the introduction of liquor into Indian
country. Mazurie, 419 U.S. at 547; Rice v. Rehner, 463
U.S. 713, 728-29 (1983) (reaffirming Mazurie). In
particular, this Court rejected the court of appeals’
conclusion that the private nondelegation doctrine
applied to delegations to Native Nations. See Mazurie,
419 U.S. at 556 (internal quotation marks omitted).
As the Court reasoned, “it is an important aspect of
this case that Indian Tribes are unique aggregations
possessing attributes of sovereignty over both their
members and their territory” and thus “possess[]
independent authority over the subject matter.” Id. at
556-57.
Like 18 U.S.C. § 1161, Section 1915(c) of ICWA is
constitutional. ICWA concerns the “internal and
social relations of tribal life,” namely the rights of
Indian children and parents. See Mazurie, 419 U.S. at
557; Fisher v. District Court, 424 U.S. 382, 388 (1976).
Section 1915(c) recognizes that Native Nations have
“independent authority over” child custody matters
and the rights of Indian children and includes them to
in a federal scheme addressing matters of Tribal concern. See Mazurie, 419 U.S. at 556-57. It does not violate
the nondelegation doctrine.
31
CONCLUSION
ICWA is supreme federal law that applies in state
court proceedings under longstanding and uncontroversial principles of structural constitutional law.
Respectfully submitted,
DAVID S. COALE
COUNSEL OF RECORD
LYNN PINKER HURST &
SCHWEGMANN, LLP
2100 ROSS, STE. 2700
DALLAS, TX 75201
(214) 981-3800
DCOALE@LYNNLLP.COM
SETH DAVIS
225 BANCROFT WAY
BERKELEY, CA 94704
ASHLEIGH LUSSENDEN
555 CALIFORNIA ST., STE. 2000
SAN FRANCISCO, CA 94104
COUNSEL FOR AMICI CURIAE
AUGUST 18, 2022
32
APPENDIX
LIST OF AMICI CURIAE
Amici curiae, whose affiliations are listed for
descriptive purposes only, are:
Kathryn Abrams, Herma Hill Kay Distinguished Professor of Law, University of
California, Berkeley School of Law
Erwin Chemerinsky, Dean and Jesse H.
Choper Distinguished Professor of Law, University of California, Berkeley School of Law
Michael Coenen, Professor of Law, Seton
Hall University School of Law
Seth Davis, Professor of Law, University of
California, Berkeley School of Law
Daniel T. Deacon, Lecturer, University of
Michigan Law School
Michael C. Dorf, Robert S. Stevens Professor
of Law, Cornell Law School
Daniel Farber, Sho Sato Professor of Law,
University of California, Berkeley School of
Law
Leah Litman, Assistant Professor of Law,
University of Michigan Law School
Martha Minow, 300th Anniversary University Professor, Harvard University
Joshua D. Sarnoff, Professor of Law, DePaul
University College of Law
33
Joshua I. Schwartz, E.K. Gubin Professor of
Government Contracts Law, The George
Washington University Law School
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.