The Supreme Court has ruled 72 in favor of the law that prritizes keeping native american adoptees within their ibe or family. It supportshe constitutionality of the 1978 indian Child Welfare act which is being challenged on the ground tt violated the equal protection clause. The case was argued before the court last november. This is about three hours and 15 nutes. We will hear arguments this morning in case 21376 and the consolidated cases. Thk you and may i please the court. Government, in 2020 there we over 11,000 nativrican children in state foster care. The indian Child Welfare act deprives indian children of thee the best intes of the child test. It replaces the test tube the hierarchy o the placement preferences that puts nonindian families at the bottom of the list. As the court explained, this fixed rates a federal policy of sending indian children to the dian community. The problem is that there are fewer than 2,000 native american foster homes. That means each year hundreds if not thousands of indian children are placed in nonindian foster home sometimes yet when those families try to adopt those children it will rear its head for a second time allowing tribes to play the proverbial card at the 11th hour. This is happening now for the second time as they try to adopt. For the second time they are asked to show good cause to overcome the placeme preferences under the new regulatory standard that i the agencys words, its marrow, limited and not a best interest. Not even the deep aachment after being part of the family for four years is sufficient. For both that child and her family this clouds the promise of equal justice under the law. I welcome the courts questions. Wouldou spend minute on what the good cause standard is . Of course you understand that is ready an adoption in process but how does that work . Justice thomas, after the 2016 rule with 25 c. 132 there are now five enumerated ways in which the good cause can be shown. E government says the regulation merely says that it should be one of these five factors budged the remarkable thing happs when a Family Court Judge in the state picks up a copy of t code of federal regulations he tats it as finding federal law and that is how it happens on the ground it is treated as enumerated things that must be shown. Further, it excludes any consideration of socioeconomic circumstans of the competing families and finally, it says what the regulation describes as ordinary bonding and attacent that arises from a placent in violation oflacement preferences shall not be a sufficient or sole basis for showing good cause and of course the child had issue in these proceedings has no stake in whether she or he was placed in the supposed violation of the prefens. You havent challge the regulation. We chaend, we raised a challenge. I am not asking about the complaint. It doesnt inclu challenges. We challenge t rulation as a nonconstitutional implementati. Answer the question is i part of the question preseed did you serve on that . We didnt seek on t estion whether its a permissible constructionf the statute. We sought whether the state if you dont seek that, theres nothing on that good cause standard. Can i turno something you said which was the best child standard in mos ste custody proceeng the best interest of the child is what guides those decisions yet we have the convention on the abduction of children that basically says to the court you cant make that determination. You have to send thehild back in the exceptions et cetera and it even says standards of proof et cetera. Why is this case any different than the convention . For i think a couple of reasons. First, the convention as i unrstand would send the child back to the pce of their habitual resence. But thats not necessarily in the best interest of their child. If i might finish my thought, your honor, that standard is essentiallduplicated in section 1911 which provides for tribal courts to have exclusive jurisdiction concerning children who areomiciled on tribal lands so i think that parallels the convention. But how meaning these ildren are in the u. S. They have a relationship with a tre of which we have recognized for over two centurie congress has authority of congress had enumerated power could supersede the states standard why cant they in anher . They can save the best interest of the child shouldnt be the on test either good cause or Something Else why is that beyond Congress Power . Im not aware of the challenges ever presented to the convention. Do you think congresses Foreign Affairs powers dont permit it to legislate with respect to the relationships of a foreign country and its competing custody issues . The Foreign Affairs powers subject to the fifth amendnt. The question of wther citizenship would rise to the level of the classification based on citizenship would amount to race discrimination and essentially be the question of whether the citizenship is being used as a proxy. To what extent is the best interest of the child were the same considerations that are taken into account under the best Interest Incorporated in the good causshowing that could be made under . I would say they are not, your honor. The good cause standard as a holistic standard that takes all of the childs circumstances and needs into account. With t good cause standard does is sharply limited that under the rule to enumerated factors. In 2013 when the adoptive couple case was before the court the government described the good cause standard as a safety thats footnote two ofts brief. Its no longer a safety belt. The department has promulgated these regulations with a specific purpose of making it limited, narrow and in its own words not a best interest tes so it differs very much from what we see is the traditional best interest test. How do you understand this to work if you have for example an indian couple lawn tribal members exactlyow does the state Court Adoption of already take into account, how do they weigh the interests of the nonfamily tribe member against . You say you dont take into account the interest ofhe best child are you weighing on the other side . If you look to the texas court of appeals decision in the case as an example of this the question is whether the person challenging the placement has shown one of the enumerated factors by at t time clear and convincing evidence that standard of proof has fallen by the wayside so thats how it ayoutn the round. It is one of those five factors demonstrated by preponderance of the evidence it does not, those five factors dont take into account the bonding or attachment of the cld which would be the most obvious and most compelling part of the interest standard. It only says there is a showing of extradiry needs that is not just something the gution describes as ordinary bonding and attachment. Good cause can be shown after the 2016 regulation the placement preferences are dispositive in many cases. Can i take you to the scope of the power weve described i as plenary and area after area weve allowed congress to exceed anything we would think of as commerce in the sense of trade. Are you asking uso overrule all of those precedents . No, your honor. Im not going to speak for my colleagues from the state of texas, but for our part we dont think you need to errule. Because you woulhave it focused on the equal protection. On the article one piece, this cannot be understood as within theourts indian commer clause precedents. Its not commerce in any normal sense of the word. The question is then whether it is part ofhe plenary power that otherwise he has been has beendescribed in the courts preceden and that plenary power in the courts cases and is elaborated that pnary power applies to the tribes areas of its sovereign interests, tribal lands, treaty powers, its internal affairs, its ability to self govern. Its not in power to gulate indians everywhere wherever they might be and in the jurisdiction of the United States. What do you do with that line of cases like 1888 setting of the evidentiary area standard for proving a marriage in cases of an iian woman a a white man . That send in evidentiary standard for the trade act of 1834 such burdensf proof and all tribes for their own reservations were outside of reservations about Property Rights between indians and nonindians and the act of 1799 proper bail when federal officers detained offenders who trespassed into indian territory. So that one arguably has something to do with it, but theres a legion of cases as eluded to where congress has gone off of indianand, had nothing to do with sovereignty, had nothing to do with trade or commerce, with the relationsp with indians whether on or off the reservations. I guess i would have two parts to the response. The constitution confers and authority to regulate commerce and that power as understood as justic thomas is opinion. We describe the power as more plenary than that. This is just the fundamental portion and i respect the fact we might not agree on this, but that there is a commee power that allows the government to regulate commerce wherever it happens within the United States and then in addition to that of there is a plenary power that allows the tribes were allows the federal government to regulate the tribes and that arises from the federal governments role d the subjugating sovereign of the tribes and its role as the protector of those tribes, but that power is not unlimited. Yo suggesting the power that you described is limited by the tbal land and i dont understand where that comes from. I dont think it is just tribal land although the decision and the claims Commerce Bank says that is the core of the sovereign interest but it also would extend to the treaty rights and internal affairs of the tribe and the law that address the scope and the form of the self government. So you can see that congress has the plenary powerver the selfgovernment then. It has the power to adjt and change the scope to govern themselv. What did we do with the legislative history with regar to this act in which congress repeatedly referred to the kind of restrictions and regulations in this area as a matter of tribal governance and lfgovernment and sovereignty . Congress said things like theres no resource that is more vital, the continued existence and the Indian Tribes and their children. They constantly tk relations regarding children, indian children as a matter of tribal integrity, selfgovernan, existence. So, why isnt that enough to bring it within the scope of their plenary power . Addressing the tbal existence point i have for responses to that. The placement preferences doesnt even rationally advance the objective placi a seminal child with a cherokee fily doesnt rationally advance the existence of either tribe. The second point is tha placement doesnt dictate membership. You need only look at as far as why rj to show that. But i feel like you are in the weeds of the regulion. What im asking is aroad question about whether or not congress has the ability to regulate in thi area. I understood your response to be not anything outside of commerce or the plenary power expanding to or extending to selfgovernance and selfregulation so im a why arent regulations that concern whether o the children are going to remain in the tribes sitting within that plenary power . In williams the court describedheower of selfgovernment has the power of reservation indians to make their own laws and to be ruled by them. It has nothing to do with that. I am struggli t understand your argument for the first half of it i heard policy complaints. It took a while for me to even hear the words equal protection of article one and i guess im curious what do you think is the better argument . We are here to advance both arguments and id like to talk about the equal protection. So your better argument what do we do about the standing problem. Youve sued federal officials not the state courts that are actually tasked with operating. I think that my answer of that starts with the traceability standd. Im sorry i didnt hear the question. Can any federal official tell a state courts what to do . I would thin that might be the end of it. What am i missing . Two things, your honor. The traceability standard is causation and as in the courts decision, the agency that you should use the regulation is the de facto cause of a separate pay that implements it. Youre asking us to join somebody operating the statute people that operate ourtate court judges. We also are asking the court to affirm the judgment on the grounds that it implements. For the purpose of this question how is is a racial classifition rather than a political classication . The tribes are mentioned in the nstitution and we have the treaty per that mentis tribes as separate, indicates the separate sovereigns. The tribal classifications. It drew the line between the gulation, the use of tribal classifications and regulating tribal internal affairs and regulating the affairs of the state. Do you agree congress can treat with tribes . Of course, your honor. With rpect to the reference issue. Lets turn to article one. Im struggling to understand whatt is. Im sorry, i will carry on leader. Briefly, counsel, is there a difference between regulating a tribe or Tribal Affairs and regulating someone that happens to be indian . Your honor, i think it depends on the context. Somebody if, by the wd in thi case, i dont want to get the whole range. We are talking about children who do not rese on the reservation, right . The are covered by the statute, yes. They are not necsarily members of the tribe and that is what im interested in. Is there a difference between regulating a tribe and a reservation . An regulating someone who happens to have some indian ood . Certainly not in this case. Congress here told us what it wasoi. It was identifying a css of persons on page o the house report. It wanted to put thatlass of people in the community writ large. I dont th thats what im asking and i will stop with this. What im asking is assuming there is Plenary Authority f the National Government to treat and regulate Tribal Affairs a affairs on reservations were relateto reservaon when someone happens to be n a part of a tribe or associated with the tribe do we consider them the same or dfent . Because they are also a citizen of the United States and im asking you are we need to just put them ion because you can regulate tba affairs. The preference was limited to tribal indians and the court recognized the hiring preference that had a special relationship in the governance of tribes and this i think is perhaps addressing the plaintiff the question theres a difference between regulating tribes and regulating persons that happen to have trib blood and those persons. Anything further . Congress pow is only with respect to tribes and not indians . They cant regulate between indians and others whether they are on the tri or not . So all of those laws that i read about previously at the founding they were unconstitutional to start with . They had nothing to do with reservations they had to do with individuals . Some of the laws h recited i think of serious equal protection problems including for instance one still on the books that provides for the federal government to forcibly and role indians and boarding schools, that is 25302, so there are some serious equal protection problems in some of the cases. That doesnt talk to us about what youre suggesting with the answer to Justice Thomas that is the plery power when its dealing with tribes and not the trtments. In the racial classification, the submission is that the classification is political when it regulates the tribes of soveren interest which is to say regulating t tribe when it regulates indian land. Only individuals if it has to do with the limited sovereignty question is that what youre saying . S an equal protection matter. Im not sure i do so im going to continue on the same. We have a long history of cases where weve understood legislation relating to the tribes and is political in nature and not asacial when you regulate the tribes youre regulating political entities and th on very different situations, nber one, a 15th amendment case not involved here. The classification did not rete to a tribe. It relatedo some centuriesold affiations with native hawaiians, which was much harder to understand as a curtain today political entity, so i guess i think it doesnt do much for you and all these other cases knock the legs out from under this argument and im wondering whether you would comment on that. Let metart with rice i think it does explain the long referred to. Tions that youve it cites of them ihi on page are in a long list of other racial classcasions. It was quite clearha that was the bia one is that right. Correct. Im sorry. I was mistaken. Im strugin with how different the classification in rice was to the classifications here. I understand the qution, your honor, this was the at the core of the riceecision, rice starts by assuming what it calls not established in the case law, native hawaiians should be treated as indian tbe. That Court Assumed that. Assumed they we an indian tribe, hawaii had power to leg rate. Regulate and held that ngress could not regulate a tribe in this way because it was regulating the affair of a state not the tribes own selfgovernment. The point iurther point out would make about rice. Rice that the statute there had a closer t to selfgovernment. It washe office of hawaiiian affairs. First. First thing you need for segovernment, function and quality, congres is very cle in this statute it thinks that is critical to the continuing existence of the tribe as a political entity. That is one of the reason it passes this statute, the political entity is its threatened because of the way decisio on the placement of children are made. I cant imagine a statute that is more wrapped up given the terms a what we know about what congress was doing. Is more wrappedp in that continued flourishment of political communities. Your honor. The placement preferences d not affect tribal maybe memberships, you can be a membership of the price wherever y are placed. The further point your hono embedded in the question is a premise that tries have a proprietary interest in the children, i have to rejec that. This is congress understanding, back to Justice Gorsuchs view, you can questionhe poly or not, the policy is for congress t make, congress understood the childrens placement decisions as integral to continued thriving ofndian co