Amicus Curiae Brief — Deb Haaland, Secretary of the Interior, et al., Petitioners v. Chad Everet Brackeen, et al.

Supreme Court briefAug 19, 2022

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Nos. 21-376, 21-377, 21-378, & 21-380

IN THE

Supreme Court of the United States

DEB HAALAND,

SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, et al.,

Petitioners,

CHAD EVERET BRACKEEN, et al.,

Respondents.

On Writs of Certiorari to the

United States Court of Appeals for the Fifth Circuit

BRIEF OF CONSTITUTIONAL

ACCOUNTABILITY CENTER AS AMICUS

CURIAE IN SUPPORT OF PETITIONERS IN

21-376 & 21-377 AND RESPONDENTS

IN 21-378 & 21-380

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

SMITA GHOSH

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

August 19, 2022

* Counsel of Record

Additional Captions Listed on Inside Cover

CHEROKEE NATION, et al.,

Petitioners,

CHAD EVERET BRACKEEN, et al.,

Respondents.

STATE OF TEXAS,

Petitioner,

DEB HAALAND,

SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, et al.,

Respondents.

CHAD EVERET BRACKEEN, et al.,

Petitioners,

DEB HAALAND,

SECRETARY, U.S. DEPARTMENT OF THE INTERIOR, et al.,

Respondents.

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

INTEREST OF AMICUS CURIAE ......................

INTRODUCTION AND SUMMARY

OF ARGUMENT................................................

ARGUMENT .........................................................

Founding-Era History and this Court’s

Precedent Demonstrate that Congress

May Make Rules that Apply in State

Courts .........................................................

History and this Court’s Precedent

Demonstrate Congress’s Power to

Require State Actors to Perform Certain

Tasks that Supplement the Adjudicative

Process, Including Keeping Records and

Sharing Information with the Federal

Government ................................................

CONCLUSION .....................................................

II.

(i)

TABLE OF AUTHORITIES

Page(s)

Cases

Barstow v. Adams,

2 Day 70 (Conn. 1805) ............................

Batesville Inst. v. Kauffman,

85 U.S. 151 (1873) ..................................

Brown v. Cuming,

2 Cai. R. (N.Y. 1804) ..............................

Claflin v. Houseman,

93 U.S. 130 (1876) ..................................

Davidson v. Laws,

837 S.E.2d 482 (N.C. Ct. App. 2020) .....

Egelhoff v. Egelhoff ex rel. Breiner,

532 U.S. 141 (2001) ................................

Georgia v. Brailsford,

3 U.S. 1 (1794) ........................................

Gordon v. Longest,

41 U.S. 97 (1842) ................................... 5, 6, 13

Hayburn’s Case,

2 U.S. 409 (1792) ....................................

Haywood v. Drown,

556 U.S. 729 (2009) ................................

Hernandez v. Hernandez,

169 Md. App. 679, 690 (2006) ................

iii

TABLE OF AUTHORITIES – cont’d

Holmgren v. United States,

217 U.S. 509 (1910) ................................

Page(s)

In re A.R.,

170 Cal. App. 4th 733 (2009) .................

In re C.K.,

No. 12-1279, 2013 WL 5788570

(W. Va. Oct. 28, 2013) ............................

Jinks v. Richland County,

538 U.S. 456 (2003) ........................... 3, 9, 14, 18

Kelley v. Kelley,

38 N.Y.S.2d 344 (Sup. Ct. 1942) ............

Konkel v. State,

168 Wis. 335 (1919) ................................

McCune v. Essig,

199 U.S. 382 (1905) ................................

8, 14

Miss. Band of Choctaw Indians v.

Holyfield,

490 U.S. 30 (1989) ..................................

Murphy v. Nat’l Collegiate Athletic Ass’n,

138 S. Ct. 1461 (2018) ....................... 16, 17, 18

New Jersey Div. of Youth & Fam. Servs. v.

V.W., No. A-5196-08T4, 2010 WL

4075325 (N.J. Super. Ct. App. Div.

July 12, 2010) ........................................

TABLE OF AUTHORITIES – cont’d

New York v. United States,

505 U.S. 144 (1992) ................................

Page(s)

6, 15

Parker v. State,

57 N.Y.S.2d 242 (N.Y. Ct. Cl. 1945) ......

Perkins v. Manning,

59 Ariz. 60 (1942) ...................................

Pierce County v. Guillen,

537 U.S. 129 (2003) ................................

Printz v. United States,

521 U.S. 898 (1997) ................................ passim

Reno v. Condon,

528 U.S. 141 (2000) ................................

Shell Oil Co. v. Indus. Comm’n,

407 Ill. 186 (1950) ..................................

Stewart v. Kahn,

78 U.S. 493 (1870) ..................................

3, 14

S.S. v. Stephanie H.,

241 Ariz. 419 (Ariz. Ct. App. 2017) .......

Sullivan v. Bridge,

1 Mass. 511 (1805) ................................. 3, 7, 8

Testa v. Katt,

330 U.S. 386 (1947) ................................

5, 13

United States v. Noah,

27 F. Cas. 176 (C.C.S.D.N.Y. 1825) .......

TABLE OF AUTHORITIES – cont’d

United States v. Jones,

109 U.S. 513 (1883) ................................

Page(s)

Ward v. Jenkins,

51 Mass. 583 (1846) ...............................

7, 28

Wood v. Woeste,

461 S.W.3d 778 (Ky. Ct. App. 2015) ......

Wilcox v. Jackson ex dem. McConnel,

38 U.S. 498 (1839) .......................... 8, 9, 13, 14

Constitutional Provisions, Statutes and Legislative

Materials

Act of Sept. 24, 1789, 1 Stat. 73 ................

4, 19

Act of Mar. 26, 1790, 1 Stat. 103 ..............

Act of July 16, 1790, 1 Stat. 129 ...............

Act of July 20, 1790, 1 Stat. 131 ...............

Act of Mar. 3, 1791, 1 Stat. 198 ................

Act of Mar. 1, 1792, 1 Stat. 239 ................

Act of May 5, 1792, 1 Stat. 265 .................

Act of Feb. 28, 1793, 1 Stat 324 ................

Act of Jan. 29, 1795, 1 Stat. 414 ...............

Act of May 28, 1798, 1 Stat. 558 ...............

Act of June 18, 1798, 1 Stat. 566 ..............

Act of April 4, 1800, 2 Stat. 19 ..................

TABLE OF AUTHORITIES – cont’d

Page(s)

Act of April 14, 1802, 2 Stat. 153 ..............

Act of Feb. 4, 1815, 3 Stat. 195 .................

Act of Mar. 3, 1817, 3 Stat. 396 ................

Act of Mar. 18, 1818, 3 Stat. 410 ..............

Act of May 29, 1830, 4 Stat. 420 ...............

Act of May 20, 1862, 12 Stat. 392 .............

Act of June 11, 1864, 13 Stat. 123 ............

Act of Mar. 8, 1918, 40 Stat. 440 ..............

Act of Oct. 17, 1940, 54 Stat. 1180 ...........

6 Acts of the General Assembly of New

Jersey (1781) ..........................................

1 Annals of Cong. (1789) (Joseph

Gales ed., 1834) ...................................... 19, 20

3 Annals of Cong. (Dec. 1791) ...................

H.R. Rep. No. 95-1386 (1978) ...................

H.R. Rep. No. 108-81 (2003) .....................

La. Resolution relative to the duty of the

Attorney General, 10th Leg., 1st sess.

(Jan. 21, 1831) ........................................

Parental Kidnapping Prevention Act, 28

U.S.C. § 1738A .......................................

vii

TABLE OF AUTHORITIES – cont’d

Pub. L. No. 110-181,

122 Stat. 128 (2008) ...............................

Page(s)

15 U.S.C. § 2224 ........................................

20 U.S.C. § 4013 ........................................

25 U.S.C. § 1901 ........................................

5, 28

25 U.S.C. § 1902 ........................................

25 U.S.C. § 1903 ........................................

25 U.S.C. § 1912 ........................................

25 U.S.C. § 1915 ........................................

2, 28

25 U.S.C. § 1921 ........................................

25 U.S.C. § 1951 ........................................

42 U.S.C. § 6933 ........................................

50 U.S.C. § 3901 ........................................

50 U.S.C. § 3902 ........................................

50 U.S.C. § 3931 ........................................

50 U.S.C. § 3936 ........................................

50 U.S.C. § 3938 ........................................

50 U.S.C. § 3951 ........................................

50 U.S.C. § 3952 ........................................

50 U.S.C. § 3953 ........................................

viii

TABLE OF AUTHORITIES – cont’d

Page(s)

U.S. Const. art. VI, cl. 2 ............................

2, 6

Books, Articles, and Other Authorities

American State Papers: Miscellaneous

(Walter Lowrie & Walter S. Franklin

eds., 1834) ...............................................

Anthony G. Amsterdam, Criminal Prosecutions Affecting Federally Guaranteed

Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State

Court Trial, 113 U. Pa. L. Rev. 793

(1965) ......................................................

Wesley J. Campbell, Commandeering and

Constitutional Change, 122 Yale L.J.

(2013) ...................................................... passim

David P. Currie, The Constitution in Congress: Substantive Issues in the First

Congress, 1789-1791, 61 U. Chi. L. Rev.

775 (1994) ............................................. 20, 21, 23

David P. Currie, The Constitution in Congress: The Second Congress, 1791-1793,

90 Nw. U. L. Rev. 606 (1996) .................

Henry Glasson, Federal Military Pensions

in the United States (1918) .................... 24, 25

Gregory M. Huckabee, Operations Desert

Shield and Desert Storm: Resurrection

of the Soldiers’ and Sailors’ Civil Relief

Act, 132 Mil. L. Rev. 141 (1991) ............

TABLE OF AUTHORITIES – cont’d

Page(s)

Edward D. Ingraham, A View of the Insolvent Laws of Pennsylvania (1827) .........

1 The Records of the Federal Convention of

1787 (Max Farrand ed., 1911) ...............

5, 6

Christopher Missick, Child Custody Protections in the Servicemembers Civil Relief Act: Congress Acts to Protect Parents

Serving in the Armed Forces, 29 Whittier L. Rev. 857 (2008)............................

Letter of Henry Knox, Feb. 25, 1791,

in American State Papers: Claims

(Walter Lowrie & Walter S. Franklin

eds., 1834) ...............................................

Letter of Richard Bland, Commissioner,

Mar. 26, 1817, in American State Papers: Claims (Walter Lowrie & Walter S.

Franklin eds., 1834) ...............................

Letter of Richard Peters, Jan. 8, 1798, in

American

State

Papers:

Claims

(Walter Lowrie & Walter S. Franklin

eds., 1834) ...............................................

Regulation of the 26th of March, 1818, in

American

State

Papers:

Claims

(Walter Lowrie & Walter S. Franklin

eds., 1834) ...............................................

4, 25

TABLE OF AUTHORITIES – cont’d

Page(s)

War Department Regulation of June

1818, in American State Papers: Claims

(Walter Lowrie & Walter S. Franklin

eds., 1834) ..............................................

INTEREST OF AMICUS CURIAE1

Constitutional Accountability Center (CAC) is a

think tank and public interest law firm dedicated to

fulfilling the progressive promise of the Constitution’s

text and history. CAC has an interest in ensuring that

Constitutional provisions, including the Tenth

Amendment, are interpreted in a manner consistent

with their text and history and accordingly has an interest in this case.

INTRODUCTION AND

SUMMARY OF ARGUMENT

To “promote the stability and security of Indian

tribes and families,” the Indian Child Welfare Act

(ICWA) sets “minimum Federal standards for the removal of Indian children from their families.” 25

U.S.C. § 1902. These standards apply in “child custody proceedings,” including proceedings for the termination of parental rights and for foster, pre-adoptive,

and adoptive placements, see id. § 1903(1), and to “any

party” seeking to place an Indian child in foster care

or adoption, id. § 1912(a), (d). In service of its mission,

ICWA also requires “state court[s]” to share final adoption decrees with the Secretary of the Interior, id.

§ 1951(a), and mandates that “the state” make records

of adoption or foster placements available to the

1 The parties have consented to the filing of this brief.

Under

Rule 37.6 of the Rules of this Court, amicus states that no counsel

for a party authored this brief in whole or in part, and no counsel

or party made a monetary contribution intended to fund the preparation or submission of this brief. No person other than amicus

or its counsel made a monetary contribution to its preparation or

submission.

Secretary of the Interior or to the Indian child’s tribe,

id. § 1915(e).

Notwithstanding the powerful role these provisions play in advancing ICWA’s efforts to “protect the

rights of the Indian child . . . and the rights of the Indian community and tribe,” Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 37 (1989) (citing H.R.

Rep. No. 95-1386, 23 (1978)), Plaintiffs argue that they

are unconstitutional because, among other things,

they impermissibly commandeer state actors. Texas

Br. 60-69; Individual Pet’rs Br. 59-68. But Plaintiffs

are wrong. Their argument is at odds with both

Founding-era history and this Court’s anti-commandeering precedents.

First, most of the challenged provisions simply

create federal standards that state judges must enforce in proceedings governed by ICWA. Contrary to

Plaintiffs’ arguments, Congress does not run afoul of

any anti-commandeering prohibition when it requires

a “state court considering a state cause of action to apply federal law,” Individual Pet’rs Br. 66.

Seeking to ensure national unity, the Framers of

the Constitution provided that federal law “shall be

the supreme Law of the Land; and the judges in every

state shall be bound thereby.” U.S. Const. art. VI, cl.

2. And in the years following ratification, Congress repeatedly passed laws that assumed that state courts

would apply that “supreme Law of the Land,” id., even

in state-law causes of action. In the Bankruptcy Act of

1800, for example, Congress created federal rights

that private parties could assert in state causes of action, and state judges were in turn required to comply

with that federal law. See Act of April 4, 1800, ch. 18,

§ 13, 2 Stat. 25. And Congress has done the same in

countless federal laws since, including acts relating to

servicemembers’ rights in child custody and placement

proceedings. See infra Part I.

Plaintiffs also contend that ICWA’s provisions constitute commandeering because states “must take extensive affirmative steps to comply” with them. Texas

Br. 60-61; see also Individual Pet’rs Br. 67. But the

historical record does not support this understanding

of the anti-commandeering doctrine. Many early laws

establishing federal rights enforceable in state courts

tangentially imposed obligations on state litigants.

For example, when state officials were parties to proceedings under the Bankruptcy Act of 1800, those officials were required to comply with the Act’s requirements as any other party would. See Sullivan v.

Bridge, 1 Mass. 511, 516 (1805) (Sedgwick, J.) (considering assignee’s suit against sheriff). And laws protecting servicemembers in child custody proceedings

affect participating state agencies much like ICWA

does. Nevertheless, so far as amicus is aware, there is

no evidence that anyone has objected to these laws because they affect state actors who participate in regulated proceedings.

Consistent with this history, this Court has recognized that courts should be “viewed distinctively” in

the anti-commandeering analysis, Printz, 521 U.S. at

907. Indeed, this Court has 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.”

Id. It also has confirmed Congress’s “substantial

power” to prescribe rules that affect state causes of action. Stewart v. Kahn, 78 U.S. 493, 506 (1870); Jinks

v. Richland County, 538 U.S. 456, 465 (2003)

(Congress has the power to make substantive changes

to state limitations periods).

Second, there is no anti-commandeering concern

when Congress requires state officials, particularly

state courts, to engage in recordkeeping and share information with the federal government.

Congress has long relied on state courts to perform

administrative tasks that facilitate the enforcement of

federal law. In the Judiciary Act of 1789, for example,

Congress required state officials to arrest and release

federal offenders. See Act of Sept. 24, 1789, ch. 20,

§ 33, 1 Stat. 73, 91. And in a 1790 law protecting the

rights of mariners, Congress required state judges to

take evidence and certify claims—obligations that

aided in the adjudication of federal rights. See Act of

July 20, 1790, ch. 29, §§ 2-3, 1 Stat. 131, 132.

Most significantly, some Founding-era legislation

included recordkeeping and information-sharing duties that parallel those imposed by ICWA. For example, early federal laws required state officials to keep

records and share them with federal entities, including

the Secretary of State, see Act of June 18, 1798, ch. 54,

§ 2, 1 Stat. 566, 567, and the Secretary of War, see Regulation of the 26th of March, 1818, in American State

Papers: Claims 683 (Walter Lowrie & Walter S. Franklin eds., 1834) [hereinafter Claims]. This Court has

never held that laws requiring recordkeeping or “the

provision of information to the Federal Government”

commandeer state officials. Printz, 521 U.S. at 918.

Indeed, in the context of laws related to information

that is “judicial in nature,” this Court has indicated to

the contrary, suggesting that such laws are valid.

Printz, 521 U.S. at 908 n.2.

In summary, neither history nor this Court’s precedent supports the conclusion that ICWA is unconstitutional on anti-commandeering grounds.

Both

demonstrate that Congress has the power to create

standards that state courts must follow. As this Court

has instructed, when Congress creates a “right under

the law of the United States,” state courts have “no

discretion to withhold that right,” Gordon v. Longest,

41 U.S. 97, 104 (1842); Testa v. Katt, 330 U.S. 386, 394

(1947) (state courts cannot “deny enforcement to

claims growing out of a valid federal law”), even when

a state litigant is involved. Furthermore, ICWA’s

modest recordkeeping and information-sharing requirements, which are “ancillary,” Printz, 521 U.S. at

908 n.2, to the law’s core provisions, do not unlawfully

commandeer state officials, either. There is no merit

to the argument that any of ICWA’s provisions, which

are “vital to the continued existence and integrity of

Indian tribes,” 25 U.S.C. § 1901(3), must fall on anticommandeering grounds, and this Court should reject

it.

ARGUMENT

Founding-Era History and this Court’s

Precedent Demonstrate that Congress May

Make Rules that Apply in State Courts.

At the Constitutional Convention in 1787, the

Founding generation debated different means of ensuring that states could not “defeat[]” or ignore the

acts of Congress, 1 The Records of the Federal Convention of 1787, at 164 (Max Farrand ed., 1911) (Pickney),

a proposition that would “destroy the order & harmony” of the new nation’s “political system,” id. at 165

(Madison). In the end, the Constitution’s Framers concluded that the “Judiciary department”—including the

“Judiciaries of the several states,” 2 id. at 28-29—

would best preserve the “National authority,” 1 id. 165

(Madison). For this reason, the Constitution’s Supremacy Clause instructs that “Judges in every State

shall be bound” by any “Laws of the United States,”

notwithstanding “anything in the Constitution or

Laws of any State to the Contrary.” U.S. Const. art.

VI, cl. 2. Since then, Congress has passed many

“[f]ederal statutes enforceable in state courts,” New

York v. United States, 505 U.S. 144, 178 (1992), and

has often directed state judges to participate in the implementation of federal law.

A. The first Congress—the same Congress that

proposed the Tenth Amendment—passed several laws

enforceable in state courts, including laws that applied

in state-law causes of action.

For example, the Judiciary Act of 1789 stated that

it “shall . . . be the duty of the state court” to “proceed

no further” in cases where litigants invoked the federal

courts’ removal jurisdiction. § 12, 1 Stat. at 79; see

Gordon, 41 U.S. at 104 (holding that removal was a

“right under the law of the United States; and . . . [a

state] judge had no discretion to withhold that right”).

In a later customs act, Congress created a similar duty

for state courts to “proceed no further” in “suit[s] or

prosecution[s] . . . commenced” against federal officers.

Act of Feb. 4, 1815, ch. 31 § 8, 3 Stat. 195, 198; Act of

Mar. 3, 1817, ch. 109, § 2, 3 Stat. 396 (extending these

provisions for four years); see Anthony G. Amsterdam,

Criminal Prosecutions Affecting Federally Guaranteed

Civil Rights: Federal Removal and Habeas Corpus Jurisdiction to Abort State Court Trial, 113 U. Pa. L. Rev.

793, 805-07 (1965) (describing later removal provisions). Although these removal statutes required state

courts to stop adjudications in a wide array of contexts,

including when they were adjudicating state-law

causes of action, there is no suggestion that lawmakers

worried that the Act “put[] state courts under the direct control of Congress,” Individual Pet’rs Br. 63.

Beyond the removal provisions, Congress in the

Provisional Army Act of 1798 provided that enlisted

soldiers would be exempt from arrest for “any debt or

contract” and instructed that “it shall be the duty” of

federal and state judges to grant a writ of habeas corpus and discharge soldiers from such arrests. Act of

May 28, 1798, ch. 47, § 14, 1 Stat. 558, 560-61. This

Act—a precursor to a variety of statutes establishing

certain rights for servicemembers, see infra at 9-12—

preempted state laws that permitted arrest for debt or

contract, but Congress passed it without any suggestion that doing so would impermissibly “graft [federal

law] onto state-law causes of action,” Individual Pet’rs

Br. 30.

Similarly, the Bankruptcy Act of 1800 permitted

federal bankruptcy commissioners to assign debts due

to bankrupt people to “assignees” and required state

courts to enforce assignees’ “remedy to recover” the

debts in “their . . . own name.” § 13, 2 Stat. at 25.

State courts routinely complied with the “general policy of the bankrupt law” by permitting assignees to

bring state-law claims that had been assigned by federal bankruptcy commissioners, Sullivan, 1 Mass. at

516 (reviewing assignee’s tort and debt claims);

Barstow v. Adams, 2 Day 70, 95 (Conn. 1805) (holding

that assignees can maintain action for ejectment);

Brown v. Cuming, 2 Cai. R. 33 (N.Y. 1804) (reviewing

assignee’s assumpsit action), even when the assignee

would have been unable to do so under state law, see

Ward v. Jenkins, 51 Mass. 583, 593 (1846); Edward D.

Ingraham, A View of the Insolvent Laws of Pennsylvania 62-63 (1827) (noting conflict between assignees’

powers under state and federal law).

In sum, many acts of Congress have affected statelaw causes of action, and state courts have consistently

recognized those laws as supreme.

Plaintiffs nonetheless argue that ICWA’s provisions constitute commandeering because they may require state child welfare agencies to take “extensive

affirmative steps.” See Texas Br. 60-61. But nineteenth century state courts understood the Bankruptcy Act to require them to hear assignees’ claims

against state officials, see Sullivan, 1 Mass. at 512

(permitting assignee to sue sheriff), suggesting that

the participation of state officials in suits regulated by

the Act did not amount to unconstitutional commandeering—even when the officials were defendants in

the proceedings and thus did not choose to participate

in the legal process that required them to undertake

“extensive” actions.

Laws relating to federal property also created

rights and procedures that state courts were bound to

follow in state-law cases. Various laws gave settlers a

“right of pre-emption” to public land—a right to purchase a property from the federal government notwithstanding competing claims. See, e.g., Act of May 29,

1830, ch. 208, § 3, Stat. 420, 420-21; Wilcox v. Jackson

ex dem. McConnel, 38 U.S. 498, 517 (1839) (citing acts).

These acts also prescribed how state courts should

evaluate the “assignment” and “transfer” of claims to

federal land. The Homestead Act, for example, gave

settlers the right to seek title to public land, Act of May

20, 1862, ch. 75, §§ 1-2, 12 Stat. 392, and as this Court

observed, determined “to whom and for whom title

would pass” after the death of a claimant, McCune v.

Essig, 199 U.S. 382, 388 (1905). These laws sometimes

conflicted with state laws that determined inheritance

and property ownership, but state courts were bound

to follow the federal procedures because, as this Court

noted, “state legislation” could not “take from the

United States their own land.” Wilcox, 38 U.S. at 517.

Furthermore, these laws easily could have required

state officials participating in property disputes to

take “extensive affirmative steps.” Texas Br. 60-61;

see, e.g., La. Resolution relative to the duty of the Attorney General, 10th Leg., 1st sess. (Jan. 21, 1831)

(giving the state Attorney General the duty to “institute . . . suit or suits on behalf of the state” regarding

property). Notwithstanding all that, no evidence suggests that states objected to participating in such lawsuits on anti-commandeering grounds.

In addition, during periods of national conflict,

Congress used its war powers to make various and extensive changes to state-law causes of action. For example, during the Civil War, it passed statutes tolling

limitations periods for state causes of action during the

war-related “interruption of judicial proceedings,” see

Act of June 11, 1864, ch. 118, 13 Stat. 123, and for the

period of an individual’s military service, see id.; see

also Act of Mar. 8, 1918, ch. 20, § 205, 40 Stat. 440,

443; Act of Oct. 17, 1940, ch. 888, § 205, 54 Stat. 1180,

1181; Jinks, 538 U.S. at 461 (noting that “the enactment of § 1367(d) was not the first time Congress prescribed the alteration of a state-law limitations period”

and citing statutes). Significantly, state courts used

these tolling provisions to revive otherwise timebarred actions against state officials.

See, e.g.,

Batesville Inst. v. Kauffman, 85 U.S. 151 (1873); Parker v. State, 57 N.Y.S.2d 242 (N.Y. Ct. Cl. 1945); Perkins v. Manning, 59 Ariz. 60 (1942); Shell Oil Co. v.

Indus. Comm’n, 407 Ill. 186 (1950). While participating in these actions certainly required “extensive

affirmative steps” of state officials, Texas Br. 61, anticommandeering objections were not raised in these

cases.

In addition to requiring tolling, these laws exempted members of the military from a variety of

state-law actions. See Gregory M. Huckabee, Operations Desert Shield and Desert Storm: Resurrection of

the Soldiers’ and Sailors’ Civil Relief Act, 132 Mil. L.

Rev. 141, 143 (1991) (describing acts that made “soldiers or sailors . . . immune from service of process and

arrest” for various actions); see § 1, 13 Stat. at 123.

They protected service members from actions for “eviction or distress,” § 300, 40 Stat. at 443; § 300, 54 Stat.

at 1181, the enforcement of taxes or assessments on

property, § 500, 40 Stat. at 447, § 500, 54 Stat. at 1186,

and from “proceeding[s] to resume possession of a motor vehicle,” § 303, 54 Stat. at 1183; § 301, 40 Stat. at

443 (preventing actions for repossession of “real or personal property”). They also required state courts to enforce servicemembers’ “right[s] to redeem” property

that was sold during their service, § 500, 54 Stat. at

1186; § 500, 40 Stat. at 447, and created procedures

that “any court” was required to follow to “protect[]

persons in military service” against default judgment,

§ 200, 40 Stat. at 441 (requiring state courts to accept

an affidavit “as to [the] status of defendant” before entering default judgment); § 200, 54 Stat. at 1180

(same).

In 2003, Congress strengthened and modified

these provisions by passing the Servicemembers Civil

Relief Act (SCRA), 50 U.S.C. §§ 3901 et seq., which

aims to help members of the military “devote their entire energy to the defense needs of the Nation,” id.

§ 3902. Like previous acts, the SCRA tolls statutes of

limitations in cases involving servicemembers, id.

§ 3936, and protects them from eviction, id. § 3951,

foreclosure, id. § 3953, repossession, id. § 3952, and

default judgments, id. § 3931. The Act also provides

that state courts must automatically stay proceedings

against servicemembers if certain conditions are met,

further “expand[ing] protections” for servicemembers

in state courts. H.R. Rep. No. 108-81, at 35, 45 (2003);

50 U.S.C. § 3931.

In 2008, inspired by reporting about servicemembers losing custody of their children during deployments to Iraq and Afghanistan, Congress amended the

SCRA to provide explicitly that its automatic stay and

default judgment provisions apply in child custody

proceedings. See Pub. L. No. 110-181, 122 Stat. 128

(2008); Christopher Missick, Child Custody Protections in the Servicemembers Civil Relief Act: Congress

Acts to Protect Parents Serving in the Armed Forces, 29

Whittier L. Rev. 857, 858 (2008) (describing coverage).

In 2014, Congress amended the Act to further protect

the custody rights of deployed servicemembers, using

language that mirrors ICWA’s. Compare 50 U.S.C.

§ 3938(d) (state courts “shall apply” federal law in a

custody proceeding if doing so would offer servicemember a “higher standard of protection”), with 25 U.S.C.

§ 1921 (courts “shall apply the State or Federal standard” that offers a “higher standard of protection to the

rights of the parent or . . . custodian of an Indian

child”).

State courts routinely apply these provisions to

protect servicemembers’ “substantial right[s]” in custody cases. Davidson v. Laws, 837 S.E.2d 482 (N.C.

Ct. App. 2020) (unpublished table decision) (referring

to “[t]he statutory right for deployed servicemen to request a stay of a child custody proceedings”); Wood v.

Woeste, 461 S.W.3d 778, 782 (Ky. Ct. App. 2015)

(holding that “[t]he SCRA directly applies to child custody proceedings”). State courts also consistently comply with the SCRA’s provisions when a state agency

initiates custody or termination proceedings, even if

the agency is required to undertake “extensive” efforts

as a result. See In re A.R., 170 Cal. App. 4th 733, 744

(2009) (holding that the court below violated the SCRA

by permitting the agency to terminate a father’s parental rights); In re C.K., No. 12-1279, 2013 WL

5788570, at *4 (W. Va. Oct. 28, 2013) (holding that the

court below erred by allowing the agency to terminate

parental rights without complying with the SCRA);

New Jersey Div. of Youth & Fam. Servs. v. V.W., No.

A-5196-08T4, 2010 WL 4075325, at *6 (N.J. Super. Ct.

App. Div. July 12, 2010) (suggesting that the trial

court would be required to grant a stay under the

SCRA if the servicemember sought it against the

agency).2

And the SCRA is just one of many federal laws

that regulate state family law proceedings. See, e.g.,

Parental Kidnapping Prevention Act, 28 U.S.C.

§ 1738A (requiring states to enforce and not modify the

child custody determinations of other states when they

meet certain criteria); Tribal Defs.’ Br. 42-43 (citing

additional examples).

B. Consistent with this history, this Court’s precedent makes clear that whatever restrictions on commandeering state officials the Tenth Amendment may

impose, those restrictions do not prevent Congress

2 Even before the 2008 amendments, courts consistently enforced servicemembers’ federal rights in state-law cases involving

custody and family law. See, e.g., Konkel v. State, 168 Wis. 335

(1919) (child support); Kelley v. Kelley, 38 N.Y.S.2d 344, 347 (Sup.

Ct., Oneida Cnty. 1942) (divorce); Hernandez v. Hernandez, 169

Md. App. 679, 690, 906 (2006) (divorce and custody).

from requiring state courts to enforce federal law.

As an initial matter, this Court has long held that

Congress can create substantive standards that state

courts are “bound to recognize . . . as operative.”

Claflin v. Houseman, 93 U.S. 130, 137 (1876); see Gordon, 41 U.S. at 104. In Claflin, for example, this Court

heard a case involving the Bankruptcy Act of 1867

which, like earlier bankruptcy laws, see supra at 7-8,

invested assignees “with all the bankrupt’s rights of

action,” Claflin, 93 U.S. at 135. Claflin was sued by an

assignee in state court and argued that the court had

no jurisdiction. Id. at 133. This Court rejected the argument, concluding that “[t]he fact that a State court

derives its existence and functions from the State laws

is no reason why it should not afford relief” made available by a federal statute. Id. at 137. This Court also

observed that the state court had to follow the Bankruptcy Act’s requirements “because it is subject also to

the laws of the United States.” Id.; see Testa, 330 U.S.

at 394 (state court was not “free to refuse enforcement”

of federal claim when it had “jurisdiction adequate and

appropriate under established local law to adjudicate

[the] action”).

The principle that state courts are bound to recognize federally created rights as “paramount,” Wilcox,

38 U.S. at 517, is equally strong in areas within the

“States’ traditional control,” Texas Br. 40. In Wilcox,

the plaintiff claimed a right to a plot of federal land

because an Illinois land office had allowed him to claim

the land under Illinois law. Id. at 510. Although this

Court recognized that Illinois law would have allowed

the plaintiff to have title to the land without a patent

from the federal government, id. at 516, it concluded

that Congress had “declared [that] . . . a patent is necessary to complete the title,” id. at 516, and Illinois’s

laws were not “paramount to those of Congress,” id. at

517, even when they concerned the “disposition of the

property of her citizens,” id. at 516; see McCune, 199

U.S. at 390 (rejecting effort to “assert[] the law of the

state against the law of the United States” when state

probate law conflicted with provisions of the Homestead Act); Egelhoff v. Egelhoff ex rel. Breiner, 532 U.S.

141, 151 (2001) (describing the possibility of federal

preemption in “areas of traditional state regulation

such as family law”).

Finally, this Court has also confirmed Congress’s

“substantial power” to require state courts to apply

federal tolling provisions in state-law cases. Stewart,

78 U.S. at 506. In Stewart, this Court upheld a federal

statute that tolled state limitations periods in civil and

criminal cases during the Civil War. It rejected an argument that Congress cannot “prescribe rules of property or practice for the . . . courts of the several States,”

id. at 498 (argument of counsel), upholding the tolling

provision because it stemmed from a “substantial

power[] . . . confided by the Constitution” to Congress,

id. at 506; see also Pierce County v. Guillen, 537 U.S.

129, 146-48 (2003) (Congress is authorized by the

Commerce Clause to establish a federal evidentiary

privilege applicable in cases arising under state law);

Jinks, 538 U.S. at 461-65 (Congress can require courts

to toll state statute of limitations on a state-law claim

while a supplemental federal cause of action is pending); see Amici Const’l Scholars Br. Part II.

C. This Court’s cases concerning the anti-commandeering doctrine do not disturb these precedents.

According to this Court, the anti-commandeering principle bars Congress from “command[ing] state and local law enforcement officers” to “participate . . . in the

administration of a federally enacted regulatory

scheme,” Printz, 521 U.S. at 902, 904, and from “directly compelling” state legislatures “to enact and enforce a federal regulatory program,” New York, 505

U.S. at 176 (internal quotation omitted).

In New York, this Court invalidated a federal requirement that states either “take title” to nuclear

waste produced in their boundaries or enact a congressionally dictated regulatory program. Id. at 175. In

deciding that case, this Court specifically distinguished Congress’s authority to pass the take-title provision from “the well established power of Congress to

pass laws enforceable in state courts.” Id. at 178.

While Congress could not “require the States to regulate,” id., it could “direct state judges to enforce” federal statutes in state courts because “this sort of federal ‘direction’ of state judges is mandated by the text

of the Supremacy Clause,” id. at 178-79.

In Printz, this Court similarly distinguished “statutes imposing obligations on state courts” from those

that “impress the state executive into its service.” 521

U.S. at 907. Printz involved a federal law that required local law enforcement agents to conduct background checks of prospective handgun purchasers. Id.

at 903. Surveying the history of “executive-commandeering statutes in the early Congresses,” id. at 916,

this Court explained that this requirement violated

state sovereignty by “conscripting the State’s officers

directly,” id. at 935. In doing so, it distinguished laws

that impose obligations on state judges—including the

naturalization and maritime laws surveyed below, see

infra at 20-24—and concluded that “the Constitution

was originally understood to permit imposition of an

obligation on state judges to enforce federal

prescriptions,” Printz, 521 U.S. at 907.3 This original

understanding—rooted in the text of the Supremacy

Clause as well as the “implicit” structure of the Constitution—distinguished the regulation of state court

proceedings from the impermissible commandeering of

“States’ executive power.” Id. at 909.

Most recently, in Murphy, this Court struck down

a provision of the Professional and Amateur Sports

Protection Act (PASPA) that prohibited states in

which sports gambling was illegal from “author[izing]”

it. Murphy v. Nat’l Collegiate Athletic Ass’n, 138 S. Ct.

1461, 1473 (2018). The provision was impermissible,

this Court explained, because it “unequivocally dictate[d] what a state legislature may and may not do,”

putting the legislature “under the direct control of

3 Printz raised the possibility that these early naturalization

laws “applied only in States that authorized their courts to conduct naturalization proceedings.” 521 U.S. at 906 (citing

Holmgren v. United States, 217 U.S. 509 (1910) and United States

v. Jones, 109 U.S. 513 (1883)). To be sure, there is some debate

about the extent to which Congress can authorize state courts to

hear cases over which they have no jurisdiction, compare

Holmgren, 217 U.S. at 517 (1910) (observing that “the right to

create courts for the states does not exist in Congress”); Jones,

109 U.S. at 520 (reviewing the naturalization acts and noting that

“the jurisdiction thus conferred could not be enforced against the

consent of the states” (emphasis added)), with Haywood v. Drown,

556 U.S. 729, 739 (2009) (holding that state statute depriving

courts of jurisdiction over certain claims under 42 U.S.C. § 1983

violates the Supremacy Clause because “[a] jurisdictional rule

cannot be used as a device to undermine federal law, no matter

how evenhanded it may appear”). But this does not mean that a

state court that has valid jurisdiction may ignore the rules of decision created by Congress. See Holmgren, 217 U.S. at 218 (noting that Congress may “constitutionally authorize the magistrates or courts of a state to enforce a statute providing for a uniform system of naturalization”).

Congress.” Id. at 1478. Once again, this Court distinguished the commandeering of state legislatures from

provisions requiring state courts to enforce preemptive

federal statutes. Id. at 1479-81. It confirmed that

Congress can “enact[] a law that imposes restrictions

or confers rights on private actors,” id. at 1480, and

distinguished the PAPSA provision because it could in

“no way . . . be understood as a regulation of private

actors,” or indeed “as anything other than a direct command to the States,” id. at 1481.

As this Court confirmed in Murphy, the anti-commandeering doctrine does not bar Congress from “evenhandedly regulat[ing] an activity in which both

States and private actors engage.” Id. at 1478 (quoting

Reno v. Condon, 528 U.S. 141, 151 (2000)). In Condon,

this Court considered whether a federal statute regulating the disclosure of personal information contained

in state motor vehicle departments violated the anticommandeering doctrine. 528 U.S. at 143. While state

parties argued that the statute “thrusts upon the

States all of the day-to-day responsibility for administering its complex provisions,” id. at 149-50 (citations

omitted), the Court upheld the statute because it “regulates the universe of entities that participate as suppliers to the market for motor vehicle information,” including both states and private parties, id. at 151.

Consistent with this principle, this Court has

never held that Congress offends the Tenth Amendment by making rules that apply in state courts, even

if those rules affect state actors as litigants. That is

why this Court has upheld Congress’s suspension of

state limitations periods, notwithstanding that the

suspension applied to state litigants. See supra at 910. Similarly, when this Court upheld 28 U.S.C.

§ 1367(d), a provision of the supplemental jurisdiction

statute that requires state courts to toll state statutes

of limitations while cases are pending in federal court,

it rejected the argument that the provision should be

invalidated on anti-commandeering grounds. Jinks,

538 U.S. at 465-66 (describing contention that “Congress may not, consistent with the Constitution, prescribe procedural rules for state courts’ adjudication of

purely state-law claims,” but concluding that the tolling provision fell on the “‘substantive’ side of the line”);

Resp. Br., Jinks v. Richland County, 2003 WL 145133,

at *5. It also did not suggest that it would violate the

Tenth Amendment to apply the law when state or local

agencies initiate proceedings affected by § 1367(d).

Jinks, 538 U.S. at 466 (noting only that the sovereign

immunity doctrine would prevent the application of

§ 1367(d) to state defendants).

Given these precedents, there is simply no basis

for Plaintiffs’ claim that ICWA violates anti-commandeering principles by imposing duties on state agencies. Those duties arise from state agencies’ participation in adoption, termination, and placement proceedings and apply to “any party” seeking to participate in

those proceedings, state and private actors alike, see

Pet. App. 125a-26a (describing the participation of private parties in ICWA-regulated actions); S.S. v. Stephanie H., 241 Ariz. 419, 423 (Ariz. Ct. App. 2017)

(“ICWA’s plain language does not limit its scope to proceedings brought by state-licensed or public agencies.”). Unlike PASPA, which could in “no way . . . be

understood as a regulation of private actors [or] as anything other than a direct command to the States,”

Murphy, 138 S. Ct. at 1481, ICWA plainly regulates an

activity in which both private and state actors participate—including actions in which no state or state actor is a party.

II. History and this Court’s Precedent

Demonstrate Congress’s Power to Require

State Actors to Perform Certain Tasks that

Supplement the Adjudicative Process,

Including Keeping Records and Sharing

Information with the Federal Government.

In addition to requiring state courts to comply

with federal standards, Founding-era legislation often

compelled state judicial officials to play a role in the

enforcement of federal law. Many of these laws specifically required state officials to record information and

share it with the federal government.

A. As an initial matter, early legislation often imposed ancillary administrative duties on state judicial

officials. The Judiciary Act of 1789, for example, gave

justices of the peace and “magistrates of any of the

United States” the power to arrest and imprison federal offenders and required those judges to set bail at

the offenders’ request. § 33, 1 Stat. at 91. The law also

gave state courts concurrent jurisdiction over certain

federal claims. Id. §§ 9, 11, 1 Stat. at 76-79.

Both aspects of the Act provoked objections that

it commandeered state officers, see, e.g., 1 Annals of

Cong. 839 (1789) (Joseph Gales ed., 1834) [hereinafter,

Annals] (Rep. Ames) (“Individuals may be commanded, but are we authorized to require the servants

of the States to serve us?”); Wesley J. Campbell, Commandeering and Constitutional Change, 122 Yale L.J.

1150 n.198 (2013) (noting a Senator’s objection that

Congress “Cannot compel [state judges] to act—or to

become our Officers”), although most objectors raised

practical rather than legal concerns, see, e.g., 1 Annals

836 (Rep. Sedgwick) (worrying that state courts

“might refuse or neglect to attend to the national business”); Campbell, supra, at 1147-50.

Lawmakers countered these concerns by arguing

that the “General Government [was] authorized” to

make demands on state judges when “carrying into execution the powers of the Constitution.” 1 Annals 861

(Rep. Gerry). They noted that state “Executive and

Judicial officers” had been “bound by oath or affirmation to support . . . the laws of the United States,” 1 id.

863 (Rep. Livermore), and so could be compelled to set

bail for federal offenders and, in certain circumstances, to adjudicate federal claims. In the end, Congress rejected the anti-commandeering objections. See

Campbell, supra, at 1164 (“During the Judiciary Act

debates in 1789, Fisher Ames and William Maclay had

directly questioned federal power to commandeer state

officers . . . [but] were far outnumbered by endorsements of federal commandeering power.”).

The next year, Congress passed a maritime labor

law that required judicial officials to gather and certify

evidence. This law, which was “possibly the most ambitious exercise of the commerce power” on the part of

the first Congress, established certain rights for crewmembers, David P. Currie, The Constitution in Congress: Substantive Issues in the First Congress, 17891791, 61 U. Chi. L. Rev. 775, 791 (1995), including the

right to request a review of the fitness of a vessel, id.

at 791-72; §§ 2-3, 1 Stat. at 131-32. The law clearly

envisioned the “participation of state officials in the

enforcement of federal law.” Currie, supra, at 792

n.93. It allowed sailors to appeal to their first mate

and then to the “justice of the peace of the city, town

or place” closest to the ship’s location. § 3, 1 Stat. at

132. After such an appeal, the Act “required” the justice of the peace to direct three of the “persons in the

neighbourhood . . . most skilful in maritime affairs” to

report on the vessel’s fitness. Id. Judicial officials

were also required to “certify” the report and “commit

by warrant under his hand and seal” any sailor who

refused to return to a ship after its fitness was determined. Id. Congress passed these provisions without

debate, Currie, supra, at 791, suggesting that lawmakers did not view them as an incursion on state sovereignty.

Finally, Congress required state judges to undertake recordkeeping efforts to enforce a law protecting

imprisoned debtors. A 1792 Act provided that people

imprisoned for debts issuing out of federal courts

“shall be entitled to like privileges . . . as persons confined . . . for debt on judgments rendered in [state

courts].” Act of May 5, 1792, ch. 29, § 1, 1 Stat. 265.

To enforce this requirement, a prisoner was entitled to

“have [an] oath or affirmation” of his poverty “administered to him” by a district or state supreme court

judge near the site of imprisonment. Id. § 1, 1 Stat. at

266. The judge would then certify the oath to the

“prison keeper” and “fix a reasonable allowance for the

debtor[’]s support.” Id. If the creditor did not pay the

“reasonable allowance,” the law provided that the

debtor “shall be discharged.” Id. While some federal

judges protested that these provisions, which they interpreted to be obligations, were “degrading,” no one

objected that the provisions commandeered state

judges in violation of the Constitution. Letter of

Charles Lee, Jan. 10, 1798, in Claims, supra, at 162,

(validating judges’ objections that the law was “burdensome”); Letter of Richard Peters, Jan. 8, 1798, in

id. (noting that “it is impracticable to do business with

propriety and effect in a jail”). After receiving complaints from federal judges, a congressional committee

recommended certain alterations to the Act, but once

again made no mention of its use of state judges.

American State Papers: Miscellaneous 179-80 (Walter

Lowrie & Walter S. Franklin eds., 1834) (reprinting reports from Reps. Smith and Otis on Feb. 26, 1798 and

April 25, 1798).4

At the turn of the century, a court affirmed Congress’s power to impose administrative responsibilities

on state officials in United States v. Mannen. Campbell, supra, at 1167 (reprinting archival copy of United

States v. Mannen (6th Cir. 1802)). There, Mannen argued that he could not be convicted for obstructing a

local constable empowered to enforce federal law because Congress, in his words, lacked “the power . . . to

require any service to be performed by a State Officer

in his official capacity.” Id. at 1168-69 (quoting archival copy of opinion); see also Act of Mar. 3, 1791, ch.

15, § 32, 1 Stat. 198, 207 (providing that local

4 In addition to requiring state judges to take “burdensome” actions, the 1792 Act could have required state litigants to take “extensive affirmative steps” when seeking relief in debt cases, Texas

Br. 66. Specifically, the 1792 Act affected creditors, including

states prosecuting actions for debt against imprisoned debtors,

see, e.g., 6 Acts of the General Assembly of New Jersey 47 (1781)

(permitting the treasurer and Superintendent of Purchases to

bring “an action of debt . . . on behalf of the state” against contractors); State of Georgia v. Brailsford, 3 U.S. 1, 4-5, (1794) (noting

that the State of Georgia sued “three private persons” for debt).

The Act’s requirements for the treatment of debtors also affected

the many states that agreed to “receive and keep safe” federal

prisoners in their jails. United States v. Noah, 27 F. Cas. 176, 177

(C.C.S.D.N.Y. 1825) (describing New York law agreeing to “receive [federal prisoners] in their respective jails”). But no one at

the time suggested that these provisions constituted unconstitutional commandeering merely because they affected state judges,

litigants, or jailers.

constable could search “suspected places” with a warrant authorized by state judges in order to enforce federal tax on distilled spirits). The Sixth Circuit rejected

this argument on Supremacy Clause grounds, concluding that Congress’s authority to involve local officials

in the collection of duties was “evident from the Constitution,” which made the “Laws of the U. States . . .

the Supreme Law of the Land.” Campbell, supra, at

1168 n.256. The court further noted that several statutes, including the Judiciary Act, “compelled [state officers] to act officially in order to carry into effect particular Laws of the U.S.” Id.

B. In addition to demanding the assistance of

state judicial officials in the enforcement of federal

law, early legislation also required state officials to

record and share information with the federal government.

For example, a 1790 naturalization act required

the state courts that received naturalization applications to “record” these applications and “the proceedings thereon.” Act of Mar. 26, 1790, ch. 3, § 1, 1 Stat.

103. Even though this law plainly “co-opt[ed] state

agencies to enforce federal law,” there “is no evidence

that the First Congress was troubled by . . . [this] concern[].” Currie, supra, at 824-25. Subsequent naturalization statutes required state judicial officials to keep

similar records. See Act of April 14, 1802, ch. 28, § 2,

2 Stat. 153, 154 (requiring the court “of a particular

state” to “receive” and “register” certain information

from any arriving non-citizen, including their “name,

birthplace, age . . . and place of . . . intended settlement”). Indeed, in 1795, Congress once again required

state courts hearing naturalization petitions to keep a

record of related oaths. Act of Jan. 29, 1795, ch. 20,

§ 1, 1 Stat. 414 (requiring a non-citizen to make “oath

or affirmation before the supreme, superior, district or

circuit court of some one of the states” or in a federal

court). Three years later, Congress made it the “duty

of the clerk, or other recording officer of [a] court,” including a state court, to “certify and transmit” non-citizens’ declarations to the federal Secretary of State.

§§ 1-3, 1 Stat. 567 (referring to courts empowered to

receive declarations under the Act of Jan. 29, 1795,

which explicitly included state courts); see also § 6, 1

Stat. at 200 (“any magistrate . . . shall take an oath or

affirmation” which “shall be transmitted to the comptroller of the treasury”).

Congress also compelled state courts to provide information relating to pension claims to federal officials. The Confederation Congress had given states

the “right of judging” veterans’ pension claims, see Letter of Henry Knox, Feb. 25, 1791, in Claims, supra at

28 (noting that in a June 1788 enactment, “Congress,

by a liberal and honorable conduct, transferred to the

several States the right of judging who of their citizens

respectively were entitled to be placed on the list of invalid pensioners of the United States and ascertaining

the sum they should receive”), and in 1790, Congress

authorized pension payments based on these state

judgments, William Henry Glasson, Federal Military

Pensions in the United States 54-55 (1918); Act of July

16, 1790, ch. 27, 1 Stat. 129, 129-30. In the years after,

Congress experimented with using the new federal judiciary to evaluate pensioners’ claims and transmit

them to the Secretary of War for final approval.

Glasson, supra, at 56-58. This prompted objections

from federal judges, who protested that it was unconstitutional to authorize the Secretary “to sit as a court

of errors on the judicial acts” of federal judges. Hayburn’s Case, 2 U.S. 409, 414 (1792). Later, Congress

revised the law so that it “imposed no duty of making

a decision upon the judges,” Glasson, supra, at 60, but

instead required them to take evidence and “transmit”

it to the Secretary of War. Act of Feb. 28, 1793, ch. 18,

§§ 1-2, 1 Stat 324, 325.

Years later, lawmakers imposed similar recordkeeping duties on state judges. See Act of Mar. 18,

1818, ch. 19, §§ 1-2, 3 Stat. 410 (claimant “shall make

a declaration” before “any judge or court of record of

the county, state, or territory”). Regulations concerning these duties explain that the law required judges

to certify and “attest by seal” to certain discharge records and transmit them to the federal government.

Regulation of the 26th of March, 1818, in Claims, supra, at 683-84; War Department Regulation of June

1818, in id. State judges complied with the pension

law’s requirements without protest. Glasson, supra,

at 66-71 (describing debate about the pension law, but

not about its use of state judges). And the next year,

Congress once again called upon local magistrates and

justices of the peace to take evidence for claimants to

enforce a law authorizing payment for property destroyed in the War of 1812. Letter of Richard Bland,

Commissioner, Mar. 26, 1817, in Claims, supra, at

693.

Notably, state judicial officers were not the only

state officials who Congress subjected to recordkeeping requirements in this early period. The Second

Congress also imposed recordkeeping duties on state

governors. A 1792 Act regulating presidential elections provided “[t]hat the executive authority of each

state shall cause three lists of the names of the electors

of such state to be made and certified and to be delivered to the electors” before the election. Act of Mar. 1,

1792, ch. 8, § 3, 1 Stat. 239, 240; id. § 4 (providing for

enforcement by the Secretary of State). During congressional debate, one lawmaker moved to eliminate

the provision because “no person could be called upon

to discharge any duty on behalf of the United States

. . . who had not accepted of an appointment under

their authority.” 3 Annals 279 (Dec. 1791) (Rep.

Niles). Others responded that the law was not an “undue assumption of power,” id. at 280 (Rep. Livermore),

because Congress was authorized to make such a demand of state executives, id. at 279-80 (noting that

Rep. Sedgwick “observed that if Congress were not authorized to call on the Executives of the several States,

he could not conceive what description of persons they

were empowered to call upon”). The House rejected

the motion to eliminate the obligation for governors,

suggesting that most lawmakers had not “perceived

any constitutional problem” with the requirement.

David P. Currie, The Constitution in Congress: The

Second Congress, 1791-1793, 90 Nw. U. L. Rev. 606,

618 (1996).

C. Even as this Court has created other limits on

commandeering state officials, it has never prohibited

Congress from imposing modest recordkeeping requirements on state actors, and it has even affirmatively suggested that recordkeeping and informationsharing obligations that are “ancillary” to state court

functions are permissible. Printz, 521 U.S. at 908 n.2.

In Printz, this Court expressly declined to address

the constitutionality of laws “requir[ing] only the provision of information to the Federal Government,”

even when applicable to “executive” officials. Id. at

918; see id. at 936 (O’Connor, J., concurring) (noting

that the Court “appropriately refrain[ed] from deciding whether purely ministerial reporting requirements imposed by Congress on state and local

authorities” were invalid). Indeed, as Justice O’Connor noted in her concurrence, several statutes then imposed reporting requirements on state and local law

enforcement agencies, including 42 U.S.C. § 5779(a),

which required state officials to report cases of missing

persons to the Department of Justice. Id. (referencing

42 U.S.C. § 5779, which was subsequently transferred

to 34 U.S.C. § 41307); see also 15 U.S.C. § 2224 (requiring states to submit information to the Administrator

of FEMA); 20 U.S.C. § 4013 (requiring governors to

“maintain records” relating to the presence of asbestos

in school buildings); 42 U.S.C. § 6933(a) (requiring

states to develop an inventory of sites at which “hazardous waste” has been stored or disposed of).

Furthermore, this Court suggested in Printz that

Congress can impose information-sharing requirements on state officials “insofar as . . . [they] relate[] to

matters appropriate for the judicial power.” Id. at 907.

It reviewed several of the Founding-era statutes discussed above, including a 1798 Act requiring state

courts to transmit naturalization records to the secretary of state. Id. at 90-07 (citing § 2, 1 Stat. at 567).

“Given that state courts were entrusted with the quintessentially adjudicative task of determining whether

applicants for citizenship met the requisite qualifications,” this Court explained, it was appropriate for

Congress to require state courts to perform the “ancillary functions of recording, registering, and certifying

the citizenship applications,” as well as sharing them

with the federal government. Id. at 908 n.2.

In other words, this Court has recognized that

Congress can require state courts to comply with recording and information-sharing obligations that are

“ancillary” to adjudication. Id. This recognition undermines the claim that ICWA commandeers states

when it requires them to “create and maintain records

for each placement of an Indian child,” Texas Br. 63

(referencing 25 U.S.C. § 1915(e)). This requirement is

best understood as an obligation that is ancillary to the

“quintessentially adjudicative task” of applying

ICWA’s core provisions. Printz, 521 U.S. at 908 n.2.

***

Since the Founding era, Congress has imposed obligations on state courts and judges, both by creating

laws that are “to be of force and effect in all courts,

state or national,” Ward, 51 Mass. at 592, and by requiring state courts and other state officials to engage

in modest recordkeeping and information-sharing related to federal laws. In ICWA, in order to remedy

state courts’ persistent “fail[ure] to recognize the essential tribal relations of Indian people,” 25 U.S.C.

§ 1901(5), Congress created a series of substantive and

procedural requirements that protect Indian families,

id. § 1901(4). These requirements are entirely consistent with the kinds of obligations that Congress has

imposed on state actors since the Founding, and this

Court should hold that they are constitutional.

CONCLUSION

For the foregoing reasons, this Court should hold

that ICWA is not unconstitutional on anti-commandeering grounds.

Respectfully submitted,

ELIZABETH B. WYDRA

BRIANNE J. GOROD*

SMITA GHOSH

CONSTITUTIONAL

ACCOUNTABILITY CENTER

1200 18th Street NW, Suite 501

Washington, D.C. 20036

(202) 296-6889

brianne@theusconstitution.org

Counsel for Amicus Curiae

August 19, 2022

* Counsel of Record

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.