Transcripts For CSPAN2 Justices 20240705 : vimarsana.com

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 communities and congress had a different view of the costs and benefits of how the decisions were made, that not sething we can could guess. It is unds nstitution. Your honor. The congress does not have the power to treat these children as property of the tribes we could second guess ings unders constitutn if you made a case of equal protection violation, i am saying standing up there sayg there has nothing to do with continued thriving of indian communities that say judge for congress to make. I want to be clear about this. There was realroblem that congress was trying to address, were not denying theroblem, but means that congress chose were im permissible, two wrongs t not make a right. Putting aside the equal protection complains, on article one argument, you argue that aas outside of congress control, all right. At least as i understood it going i im wondering, i am confused that argument. Do you acknowledgehat congress has some off tribal land power . Congress can regulate sorry to interrupt, cgrs may under the indian commerce power regulate commerce with Indian Tribes er it occurs. So you agree for example with the press back to 1865 in reference to any indian tribe os person who member of tribe is absolute without reference. Not sure which case you are referring to. Holiday. There is equal protection. Put that aside. Congress can regulate off reservation. Can regulate commerce with indians off reservation, yes. Would you he us if your view of come sers tha narrow comers is that narrow what happens to regulate health care for indians, a mor part of title 25. I dont think our view of commerce is any more limited than the court described in lopez. That might go . No, i dontelieve so. That would snd, they could regulate hlthcare for indians off reservation, yes or no. I think to extent you are regulati articles of commerce that comes went heartlan healthcare counts. It comes within heartland of how lopez defined commerce as i understd it. Ealthcare counts but this does not. This is treatinghildren as property. Protect. It goes to commerce. Commerce includes health care but not education . And child rearring is that your view . No. It is you inserted education. But, our position commerce power does n extend to child place am decisions. Talking about, that putting ade off reservation, this has to do about family law, i take it. This is a family law case. Hat is the core of problem in your View Congress cannot regulate Family Matters for india off reservation. If this is within congress authority then there is nothing that cannot be regulated by congress if it touches upon inindias. How about the congress touches on other laws, kidnapping and disputes among states. And Justice Sotomayor mentions, foreign sereigns it speaks there, wont question that authority. It would be odd t think it could not do the same here . Wh respect to the latter point of congress. Ha power to enact laws to implement treaties, i think Hague Convention typ legislation is unremarkable. Parent kidnappg statute. Iill confess to not being familiar with that. Well put, that side then, you say impossible under the treaty power, what if Congress Tomorrow adopted a treaty within the tribes it would i tnk it perhaps would be one the article one power. That is my question. How about under the spending clause . That is how congress regulates the states in multiethnic placement act. It could do it in article one, you are complaining it is down under indian commerce claus that is ourent, were not saying that congress is powerless in this area, congress has power through the spending clause to do any number of things. With respect to state how states govern themsve with placement of children, is it an akronistic to think that states have a parcur sovereign interest when many did not involve themselves until 1960s, mostly done privately for most of the history of of the nation. I dont know that i would describe it as in akronnistic, but things were done privately doesot change what this court said out the states primary ro in the area of child custody matters. How about the fact that federal government has been historically involved in Family Law Matters with reect native americans for a longe, as justicec kagan pointed out. It could have done the border schls or is that improper too . Ihink that boarding hos statu requiring the or permiin forcible llment without consent ofheir parentss obviouslynconstitutional. Underle 1. Yes, it hasothing to do with congress would be my submission. O justic kagans questions. Tribal governmental arrangements, i guess im struggling to understand why this falls on the other side of the le. When Congress Makes the judgment that this is essential to indian preservation of Indian Tribes. The power tt has been rec niced i the power to effectua indian selfgovernment, the power of tribes to make their own laws and be ruled by them, does not affect tribes ability to make their own laws or le by them or section 11 a, pertaining to children who are residence on tribal land. S there an iro are here to vindicate states rights whave 23 states lined upn the other side, never had atate court in 40something years, complainingbout this arranger. Arrangement. I do know understand that to be correct your honor, i think stateous have recognized has far exceeds congress. Has they held this is unconstitutional. The cases that held that it what w known at existi indn family doctrine it would be unconstitutional if applied to a child wh no connection to tribe. No, i wouldoncede no state court has ge done that. Thank you. Justice kavanaugh. In response to Justice Jacksons questions about legislative history, you said you had 4 responses about cherokee and seminole. I think i do justice kavanaugh. Third point is that the placement to ext were talking aut tribal selfgovernment, the ability of tribes to make theirwn laws, williams reservatn indians, to make their own laws and be ruled by tm, the placeme preferences do not suggest thatny indian child has to live on or nears reservation, and fourth point theost fundamental, which is embedded in tsrgument is that tribes have a interest in the children. And they areuman beings, they a citizens of the unitedtas, and the states in which the reside, they are persons within the means o fifth amendment. And they have liberty interests that the tribe cannot override by unilaterally enrolling them. It w be important for us t figure out scope and limits of moncary, would that justify a hiring preference for American Indians in oer agents beyond t bia. In your view . No. Because one mancary casts doubt on that. And t, there would be no tether t indian selfgovernment. Would mancary provide a ndory preference for state Universities College admissions for an indians i your view. No, your honor. Why not. It would hav no tethered it reduces to anything that is good for indians that could be chaized in that way, orhat the government in its paternalistic judgment thinks might be good for indians. Why would that linkup with the tribal selfgovernment. It is too attenuated. Rice explains this. It draws a line and u of tribal class aces and use of tribal class case in affairs of the state, talking about affairs of the state. Important point about rice, they are in t case, there was a not just a ps able, airect tie to lfgovernment of the indigious peoeut the limitedd exceptionecse the on role in bia regulating Indian Tribes that is not in your hypothetical. Jus barrett. Ask you about active effort provision, get a grip how this works. That pro visio requires partyng to affect foster carelacement or terminatio parental rights to satisfy the courts that active efforts have been made. And the governmentays, this applies to private pa and state agencies. So it is not directed a ste encies in compelling government actio and take to take steps, how does this work. Do private agency initiate e proceedgsr the state. N ground on the states in overwhelming majority of the cases. I cant speak to the whole of the United States but, i understand that in overwhelmi mority of cases it fallsn the states to do this. That is the they are the ones that have the abill fee bility to do so. Thank you. Justice jackson. Is an aspect of your article 1 argument that really bown to fundamental question tha comes up in the law a lot, who decides. Who decides whether regulation in this area unts for indian a sufficient tether, it, has hear you say inesponse questions that you think that regulation related to Family Affairs does not have a sufficient connection to indian selfgove, but in the actual legislative history of this i am read are from federal register, congress says, indicates that reflects the concern about preserving the integrity of tribes self governing sovereign entities and can survive culturaly and politi 81 federal register 38781. It seems me that congress has made decision that regulating in this area is imt for preserving the integrity of tribes as self governing sovereign entities, i donnk it is sufficient for you to say us, that you think that is not true. Tell me we were supposed decide based on your view on whether there this sufficient tether i guess i have two responseses to that,usce jackson, first, i would look to this courts cases that define the interesn selfgovernment. I would start with williams versusee. Which defines it right or ability of reservation indians to make their laws and be ruled by them, that case has never been toy Knowledge Limited that is my understanding of how this court defines the interest in selfgovernment. Why is t our decision then . Im worried that would be this court displacing congressy judgment. The particula the statute xt oftate and operative affect does no advance the objectives. If t objective is preserving tribes, trd placement let me ask you. You have seem to be very upset about congress exercise of Plenary Authority over Indian Affairs, you sayeeed to look at it in more narrow lens, can general understands that congress imited authority, im a little bit confused about and concerned about is whether it is really correct that we have t at it so narrowly, the scope of core authority as it ccerns indian, fairs we have plenary and exclusive authority and history of our constitution indicatest constitutional design was about ensuring in a way that the federalernment hads authority over the tribal res and affairs and the state, seems to me that baked to the constitutions structure related to this, outside of just the i Commerce Clause provision, it a notion that federal government you know visavis the states would take charge of this. In light of t articles of con federations precedent. If that is the case, then what would you say about the thought that rather than you know searching for you know, what additional lit there are on congress thority we start with premise in respect to Indian Affairs congress has Plenary Authority and their as we said in the priores, as long as it involves Indian Affairs, and congress is making policygments, they have constitutional basis for doing so. Justice jackson, if this arises froms constitutiona structure. As you suggested, it has to be the United States vement the u. S. Governnt regulation of tribes a government to gornnt basis that is the constitutional structure point. And if were talking about reng tribes as vement, governments we are talking about regulating their residual sovereign interests which a indian lands, treaty rights. Ea but do youte there is a trust relationshy understanding we talking sovereign to sovereign as a paf that was states was the greaterted sovereign it was t over the indian sovereignty and this a trust relationship that arose in that contact d they were text and they were responsible for Indian Affairs. We dont dispute the existing of trust relationship we saying that power that congress exercises has been described at ple is limited by the sovereign interest. Ongress can carry out trust relationship but only inhe limited ways that you now articulate displging. Ing. In. No, you dont have to say anything wespect to federal governments trust indian trib recognize that power does not extend to regulating placement of indian children in state cots. Even if congress decided that regulation in the area is necessary to prevent the extincf tribes. Your honor, we do not concede tha that for the the reasons that i have elaborated this is not a the tribes do have a proprietary interest in the children. Im sorry. Can i askne more estion. With respect to commandeering. Do yave a case that is older than thearly99 related to t commandeering principle . Is that the first te i ied to look back to figure out what it came from, as a constitutional concept, i am concerned about it because, i tt is ratively recent and i am trying continued to whether it even continued to whether i even applies to an area which we have already long recognized that the federal government has the sort of plenary autho because stat were interfering w Indian Affairs. It seems odd we would say, in t area, using a new antimmdeering principle that federal gover cant do what it long done in terms of ting control of this area away from the state. Related t Indian Affairs. Your honor, the courts anticommandeering case rec arising from nstitution and amendment that was recognized by new york versus United States. But, 1992. As i recall, there was a case called coil, i think from 1925s that involved federal govnmt dictating where oklahoma p it state capital. D i think that was the earliest case i found tha actually applied some veio of this. We dont have any alive Indian Affairs contact this would be first time. Im not aware of any. Thank y. Do you have a further i would just extent okl arise fr once upon a time indian thank you, counsel. Eral stone. Thank you, mr. Chief j require states to administer a nation wild child custody regime, as far as state is aware that court upheld 3 kinds of lawsn under a plenary congressional power over Indian Tribes, first. Those regulating trade or treaties withbes than ordinary original understandings of clauses, second those applyingo inwithin u. S. Territories or indian lands and or regulating tribal governments, it would far exceed this plena power, applying to only child custody proceedings i reservations, it issues a dozen commands where states of officials and. It is prohibited under murphy. General sne it would profit us that if you would address your sndg in this case. Particularly since it seems that to extent youepresent parents. Or potential parents they could represent themselves it could be get to get your standing. First and foremost, consistent with West Virginia from last term, regulated party, obligated to implement fro beginning to end. West virginia and similar states were those who were requiredo cuts emissions alter Energy Distribution that was enough to leave littbt to their stdi for the interty of the second. Texas stands on lose amo of sociality part 4 b and emoney in 2018 texas received 410 million under the parts, theyre expressl cditions to texas taking affirmative steps to comply with eqa. That shall withhold up to 42 of that 410 million, texas that is 172 million for agencyith two. 4 billion dollar think about. Equal protection injury, it costs us money to implement the provisions we have to determine whether an individual is anian child pursuant to regulations, there is a conjunction of constituon obligations federal equal protectiond component of the fifth amendmentnd 14 ames clause, have the same commandings. Any command by federal government that violates fifth amendment. A mandatory requirement on states to carry out t eq protecttion opponent. That is texas as a states, suffers. This is quite a theory you have. Evime a state has to interpret federal law that ght be unconstitutiona the state has standing even if that law hurts someone else. That is what you are saying. Because weou come complicit in act of violating someone elses rights that is how i hear your argument. Honor. Tainly your you dont have first first, fifth amendment, you cant individuals with equal protection claims, the parents are here before us, i can understand your anticomms and allegation claims that has to do with your expenses. But the other equal otection violations of being treated unequally lo to the parents not texas. Texas suffers a classic pocketbook injury. You are saying what i started with, take the position that any time have to enf an unconstitutional law, you are complicit and you have standing. No, your honor, it results from a conjunction of extremelyal components of these commands one is we. We doot view these commands perle under ncaasus murphy by to state. Those comma that is anticommandee that is one, what is second. The commandsrom federal government themselves violate fifth ant equalction component. As it applies to the individuals. Yes. Before, your third. I said because because that fifth amendment equal protectionlation is texas equal protection requirement if they implement fifth amendment violation is self violates 14 amendment. Re back my first point. Im trying to fiut how this work. The question i asked for mcgill, is this active effort provision that imposes obligation on state or could fall on private agency. Al rules preamble solved. Final rules state that active effort provision to make sta provide substantive services to indian families, in langu to makes state incur the cost to provide social services that is the heard of what murphy was cautions about, a command understood as rng state to do thing. Doctrine this is under that Second Branch is an easy case for purposes that rkd we have other provisions challenging. Record keeping goes a bit farther than other cases. He court reserved in print withpefic caveats, i, degree, court said, it might be permissionic. Given it was up clear the courts may well have volunteered to have jurisdiction then a case of if courts are willingly serving for purposes of ing a federal thing it is a smaller instruction. The thinness of historical of those two of them are, unconstitutional. One is onef actions, and the other a lawhat requires a court make determine nation on pension eligible that was review able by an executive branch, two more, haveothing to do with states, and one has nothing to do with state homesteading actoes not mention state crts or governments cannot tell us anything. Two more, the permissible but not mandatory for states to accept bail regarding certain federal and other two print regarding rd keeping for naturalization. The law far from show. Strate what prints that assumes that anticommandeering applies in this area. Can you speak to concern about that. I understood from new york vs u. S. That anticommon escongress has power to re individuals not states. Which they be as general matter, b terms of i affairs, we have longnterpreted the constitution give Congress Plenary authority because the constitution seems to be structured to give congress the federal government power at the expense o the s with respect to Indian Affairs, likes background states were getting involved and constitution saido, congress is the one that directs i wrapped up in that authority is not congress authority to direct the states to sta out of the wayr do whatever it is necessary, to ensure that you know Indian Affairs, soverei is protected. One from court case law. One, nearest analogue, this court under indian commerce play a breach state sovereign iy. That seminole tribe rejected that and overned union gas in the process. This court has recognized, it made in delaware versus there may be a plenary power but it is not absolute. Has been applied for specifically preserving sovereign progtives of before. If iight. Im sorry, i want to understand your commandeering argument see to be related to two modest aspects. One is record kee you did. Right . That is one of them. And the otheror one, are is activets provision. They are two ofost major. All right. With respe to active im not sure i heard answer to justice barretts question, does it apply eqho whoever is bringing act in state Court Whether state or a private party. Does it app both equally . To both, yes, equally no, it is und some circumstances priva parties have to make efforts. That is the state as was acknowledged in final rule. Typically because the party starting proceedings. Typically yes. But not at walking. Always. But later, court said that way is this better looked at as a rion of the sovereign or got it. Provision speaks to what a state court may do with its official power. Can i come back to the question, whether the anticommandeering detective doctrine applies when congress is exercises its power overndians. A law ordering states to inact legislation. Relating to indians. Would that be a violation of the. Most direct. I we, turn to article 1. We had many variations of this argument. We heardt has to relateo commerce. Heard no. Later today we heard no. It can be off reservation, and familyaw sometimes. Ant be this combination here. What are you asking us to adopting . What beyondhe article 1 power. To clear up a few things were not claiming there say domestic relations excepttion generally, a thaters must reservations sometimes. Yes. Andestic relations sometimes. What is the magic broth that makes it a problem ng conceded both those points. Because of three poi points of court recognized plenary power first treaties or understood in commerce, court described congress having a plenary power when they are prohibited alcohol sa to tribes, forbidding any of good would be an regulati commerce. We disavowed that ment what is rule you i write the opinion . How do three point components. Lets where ishe limit. From several c cases, one emphasize that congress has special power. Government has power specifically on regulatin indian members or tribes on indian land. Said that is not lim here either, you said does not havee on reservation, can be dommest regulations, what how do you canrite this. Respectfully, congress may act if onen three parcels ofow one is not reletsed to geography. The ercise of treaty power, of the comme power, and territory clauseould be geographically, but there is not aeographic component, second there is one. This isourt recognize power goes to the soil and people within the limits speaking of indian country. The third is the powert congress has to act on indian governments as governments. For exampesting them withril immunity and foreclosgbility to prosecuterimes. On their land. To one ofhese component it falls within Congress Power as republicly understood or plenary power were not asking the courts to contract. Im curious to where you get the 3 categories. There are description there is no place where we have said t are three categories, that definehat plenary power. Two places congress specifically stated i say special power. Second and third categories that im describing, third that the tribal u. S. Government e complete power that the tribal immunity or sovereignty exists this say sng congress severence. I guess point. We could fine places where court said cs has power over each of these areas. But i doink you will be able it find a place where the court said, th plenary power m these three things, and 3 things alone. Does not extend further. When court uses phrase plenary power over decades it means encompassing, i dont dhat you said it migh have an here and there but this strikes me as odd way to think about plenary pow to start constg categond saying Everything Else is left out. Wh have said over and over everything except real rare things are in. Two points first, we agree were describes a power that has left article 1 constitutionalounds, because it is already beyond original understanding of power that congress has, that court should not attend it further, have not said. We haveces marshall and story,sing very broad language power. We have a series of laws that were notimited to the way you talked about and series of laws for00 year not limited. You are exc from that list all of the trust obligations. That include all of the things that justice vaugh asked bhealth clinics, education. Marital relations, in indian women married to white men they are all out side of the three areas you talked about. Core legislated them and certainly as far back as founding of our constitution, eve understood plenary meant anything that had to do with the intercourse with indians and trust obligation that United States took at yo colleague said at beginning took over the sovereign nation. Your honor, i would like to begin wit observation regarding trust relationship o backwards. The regarding of tst obon in in band in wisc indians and apach nation this court made clear court described guardian relationship ands ward relationship. Under this trusts that core component, come from positive law, from statutes which dictate obligations by the United States. We dont doubt that. Ver they do not have a common law component where there is a trust or trust relationship that united stas plenary power to do as it wishes to indians wherever, regarding storical understanding of intercourse, specifically out justice stories commentaries, my friends on other side site, speaking about commerce and about trade and intercourse and intercourse wit navigation. As courts in give i to say, in stories example, a about how foreign vessel in u. S. , control channels of commerce. Im sorry. This new rule wld think take a huge bite out of tit 25 of the u. S. Code, which regulates the federal governments relationship with tribal members. There are heae provisions. That congress promised to native americans off reservation. That does not seem to fall in your congress per permit tris to exercise per over environmental relation that would seem to go too. He laws thatromise native americans access to sacred off reservaon and that would seem to go. Andot sure maybe liquor le maybe that is commerce i dont know. But there would be a lot to be bit en out, we would be busy for nextany years striking things down. Ont think that the case youror, start with morton the first clue that not the case. When morton was describing why kind of preference this recognized would not violate equal protection, case im not talking about m talking article 1. I understan describes that every indian preference in title of 25 pending that is not true. You can state it at podium, if you look atle 25 there are healthc promises to indians whoive in areas. That strikes me at commerce were back to, that heal is commerce but this is not. Child adoptions are not commerce. They are not. But health c is . Yes. Okay. Andonmental laws, with regulation off reservation. Eitherstate. Religious liberties and right to accesses off rvation. Not commerce but in courts. No. The law just says you get access to places. There might be article 1 problem for same reason there was in asking us. Here is a lot you well be busy very busy. Were not requesting court shrink plenary wer. Do you agree with our colleague t congress could do same law with a few around edges deering. But could adopt Something Like, qa in. I think that problem is treaty power side it would provoke tha court left open to bond whether or not pursuant to a treaty. Te i dont know what answe would be. Spending clause. Equal protection problem would remain for ps of spending clause. There is a magic wd problem we have. Certain not. Congress is not free to regulate 50tate child adoption proceedings on basis of race, regardless of what it cal it. Can i ask you a question, i will list a series of statues, does congress have power to pass astute out and is it aint. Okay. Protecting service mem including child custody cases, notice, appointment of c and sets aside of judgment. Does congress have power to pass that. Only under or article 1. Und article 1. Yes, that is fine. Now. You thi violation of statute. Comring yes, and intercountry adoption, a state court must verify certain evidence make certain did. Ngs, is that yes. I would have to know more erify certain evidence and make certain determination before it permits the intercountry adoption component. Nli to verify i have gone through our light is so i will wait. Thank you. Justice thomas. All right. 1799 trade. Requiring state court to ke proper bail for certain individuals arrested by federal authority can the government do that. Article yes, anticommandeering n and 1834 trade intercourse act. Sets standard of proof in property disputes involving indians. Certainly in part, they specifically apply u. S. Ter or on indian reservation. How about 1888 certains every that indian woman could use in state court to common lawriagee was a information they do tha i dont know. For example if there were geographic component. Assuming there is not. Dont think so. Re is not i any stateourt, they dont have article 1, and it would know mmandeering violation. How about state law rcement can enforce immigrationo long as they fol certain minimal procedures, why is that anticommandeering it says can. Ates choose to do so. Just a chance to respond to react i had to your brie there is a amountf texas view of policy. In your brief. Ill read you few things. Ssubordineseeds of indian chire and results fr traffic outcomesnd returns church do unsafe environments andic cuses physical abuse. I cou g on. It may be texas view ts is not a view that any other state has told us it shares. I dont know whether texas view are right or not. I dont have any policy views in this aa to speak of. I dont know enough, courts dont knownough, really. This is a matter f congress, is it not, not the courts to decide whether it does the terrible things or it does not donying of them is that not really Congress Judgment that were to respect . Two parts first, i agree statement just atmosphere. In part, yes, and part because there is a dispute any equal protection, is ratir scrutiny, my friends on other side to that congress purpose, fact that purpose has been woefully unmet by actual affect of relative for it were of this court. Thank you. Justice gorsuch. You agree that congress could do Something Like eqa if it were limited to children on reservations. Absolutely your honor. Ow do we deal with the fact, we talk about reservations throughout the conversation and bri indian land in western u. S. And im sure you appreciate, after the allotment era is full of checker boards, you hhildren on alotted indian land or next door. Part of what y areng, argument would encourage for people to keep their children on indianand not necessarily allow them to be foster cared off the indian land. Ongress has the power if it wished toake newlands, and add them to alls or team f purposes of article one. This is might Case Congress ha appropriate money to take titles to some of those automobiling. Would p. Er b problem unles Congress Took action. It could. And it seems that a lot of focus on fact that is family law. I want to give you an really two parts. Spond. Federal government often plays role remid yates disputes in f law area within the sovereigns. Why would it be awkward to think that congress could exercise a simil authority with respe sagreement bwe state and sovereign. On the they have a chance to walk away. Difference is that thes have no choice to bk walk. Walk. They have now choice there there is no miating between states and tribes. That is what it does in hague you shall do this, a rule of decision. And for purposes of treaties that is a operation by article ii removal from state. Back to if they did it threw treaty itould be okay in or closer. How about fact that federal government has b involved in Domestic Affairs wipect to namerican children through tre or why is that evidence of plenary power. With boarding schools, ordinary powers children off reservation. I know that. Nderstand there is no gettin around fact that federal a state history regarding shameful and terrible elements. You say linked to territory, that not. Problem ith treaties with respect to native ame orphans. Congress attempted t remedy the problem. And court outside article one power. Justice kavanaugh. Equal protection issue. Diffictecause we have to he line between two fundamental and critical constitutional values, on hand. Great respect forbal selfgovernment and success of iia tribes with ition of history of op pression and discrinion, on other hand, fundament princie dont treat people differely, we would not all come to say that whi parents should get preference f white children in adoption, that would not beermitted. Those two principles on equal protection i t focus inquiry. How to we draw the line in i ink first, you look to mancary its, that attempted to draw the line there were two necessary preconditions, describin rice. Th preference reached only s of a federally recognized indian tribe that was component that me it clear you we dealing with the indian trib body and each preferencesha otherwise understood operated on or near a reservation, political preference related to selfgovernment to a couple things, to individuals wght to serve municipalernment to promote efficient delivery of services to territorial requireme of serving office in u. S. Constitution, those two that puts this on the raceat, in discrimination side of a tricky line. Thank you. Justice barrett. Back to provision. A response gent has ate could choose cou walk away. How wom that work, am tex walk away, if you had a child who was a member of a tribe and in a situation. Could texas agency choose to notntvene or seek foster care place. As matter of texas substantive law no, it would be strange for the federal government to say, this is not commandeering you can just stop, when you talk about core police power. Health safety a welfare of vulnerable people, that is the sort of component they are offering, i have no idea. Do i way or else, that is more than a confession. Thank you. Justice jackson. In the case. We said quote plenary p of congress to dealh special probl ofn drawn from the constitution itself. Proposition. With that no,ou honor, we eve some components of plenary power ear. Power. We accept that. You accept this. Im w about what is special problem o the indians is the manner in which a state i handling custody determinations, is manner in which placement determinations are made are these children b matched from theires, et ceter anticommandeering print pehls would prohibit federal gove who has plenary power over solving special pr of indians to direct atate in light of this power to do something aboutt. Justice alito said they legislate, i dont know that i could see they could not given the plenary power. Im also worried about the a historical gloss, stein design of the constitution gave that to federal power at expense of the state, with a previous set of circumstances where federal andtate government shared poweated to Indian Affairs, and a constitution camelong gave it to federal governm can you help me to understand, why we would have anticommandeering principles at work to thwart the tomorrow governm from exernary authority it has been given to deal with the special ps of indians in this way starting with hisl materials originalial, original draft became in commeruse by james madison. What about art of con fion . Wwhat we do about inferences, historians tell us. It was about making sure that the federalernment had 7 authority it was one of those a on this two p first federalist holds part of th ans. Sites two limitations regarding article 9. And then later, describes how removed itself of the embarrassment its said, it wer will allow regulation of tra specifically world to describe power thatas been unshackled by please two, idea that understanding of changes to article 9 of the articles of federation would could pan to Indian Affairs eu. In actual constitution we have commerce and historians said that at the t commerce meant more than trade. Includ intercourse. What do say. Probl is commerce can mean tradend intercourse, intercourse can m all relationships between groups of men, and commerce can be be groups of men, inrse pared up on w navigation, intercou does not get responding to does not get beyond we think of Commerce Clause. Thank y thank you. Mr. Chief justice, this courtecognized, in onse to harms caused by widespread Child Welfare tices that resulted in separation large numbers indian families. Ththrough adoption or foster placement, and become integrated inons ate Child Welfare practices. Ere is nod to uproot those practices, valid exercise of Congress Power several respects. Rs in in text of the constitution, that including india Indian Tribes occupy a unique status to u. S. U. Ees a duties of protection, that it from fact that natiols government and state aidin it throughaty and war wers diminish tribes ability and court said and other cases gavee to duty of protection that ep compassed a power of protection, con effort to address the problems protecting f integrity and unity and integrity and longterm existence of tribes. It does so by not noty displacing state authority but imposing minimum standards on the states exercise of thatuthority. By seeing foster care and adoption in sta courts. Petitionly plea to this court to set aside on t face would undermine the vital protections that have worked well. Since the enactment, it woulermine the courts indian jury is prudence b carving up congress a plenar power and under mine reliance of congress of tribes and of individual members and states on ngress exercise of pow power. In plenary power has no lits and there is no article 1 issue for us to decide, does have this no limits in your view. No. The core of the t reted to the fulfillment of congress obligations to indian and protection whether thats comes just fromian Commerce Clause or an alga mation of various powers this court said it has to be reasonable and rational reletsed to the comings fulfillment of the powers. There is a reaeness there. Rationaly related. Is that the usual rational basis test. I think cones judgment whether it does serve that purpose is en titled to great deference, it is important to recognize that congress hased over the two centuries since adoption of the constitution in pragmatic ways, its h been confronted wit a particular proem it has come up with what it regards as aroiate solution, and acted in a reasonable manner this court has said deference to Congress Judgment about what is reasonably official to carry out trust responsibility is called fo could congress say go rtr than it has gone and say that an indian child may not be adopted by a nonindianouple under any circumstan i think that would go further. And i would want to know the circumstances, but i would think that wou be a difficult law to defend. Not rationally related in same way that is, i i had that great difficultyling with article one question, plenary means plenary that is an easy case, but it is hard for me to see where any limits are. I thinkce to start,. I think it difficult to e one rule that applies across the board in various circumst where Congress Might act, crimalaws. Education healthcare. Child welfare. But court said andeback to this an example with Tax Exemption for property, the court up holding that said the tax exetis are appropriate in aid of congress carry out. School law does congress have that. Gress had the power at the time. I think. If it if it were to it tomorw, would that fallout side of it has to be, plenary power, i think at least to two things to bear in mind. Congren dealing with a and political paty, has a deal deal of tribes or regulate the tribes ee of governmental authority. Thats dealing withs at tribes in a political capacity, where congress protects individual indiant is what triggers formulation of the responsili. It has to be related to congress u be on dpaig. Obligation. Could congrnact a lawhat alters the substance of law that states in areas like contracts orts or rules of evidence when one of the rties in the case is an indian, i think that mere fact that party is an indianould not be sufficient. Why isnt that rationall related to furthering the interest of the indians . Yet again, i think in amining and hypothetica statute or context its necessary to look at judgment tha congress made and to know why congress and indian contracts for ample, there were years contracts by many inal indians were not lid unless approved by secretary of interior pause of a sudden certain they would take concern, if there wasort of of justification, i dont think we could assume congress would act in it would be tracing a rl world problem. I know that. One more. I dont know how to analyze this question. If plenary means everything at is what it means otherwise, i have gotend briefs and argumen w have to try to extract certain rules at cases. That strikes me as a mismash. Could congress have required that indian get prefenc in the receiving the covid vaccines . Would that be an equal protecttion violation. I dont know that is preference or congres delivering healthcare. Congress has a duty t indians andight buy a lot of vaccines and deliver them. Areription to a tate might be different. I do want to follow up on Justice Alitos question, do a limited number of vaccines can federal government distribute those to indians and not others . Well. That is a simple hypothetical. Probably not, but i want to caveat there plenary power dud not include that. Well. Swering what plenary means, i thi several th there no subject m off limits. Because it is indians, there no geographic componhich rendering something there is something abo distributing vaccines. Limited suphat is you suggested, it may be within that power. In a courts reviewing of something of the con done in exercise of plenary r, the test the court applied, if ut use different formulations. To essential. Essential. What iftial, if but what reay. Not a familiar tomorrow. In english. But in the juries prudent, but ifurnishing vaccines to a pride was part of a General Program i guess this is the point. Argue for special treatment with respect toians, why would it matter if its part a program to serve under privileges. It may not. But congress h not done the tou are describing. I t answer was going to be that issue was not really teeing up a question about plenary r, the issues they identified would be under the equal protection clause. It would b but it also he are two questionings, whether you can cld do it in first ac then you could do it in a way that distinguishes. I think the two questions raise may be under plenary power,y is no dou urnishing vaccine tondns with connection, no out e that is a valid end for congress action, the question is if the approach they okay was reasonable or arbitrary. I am hav difficulty understanding how placement priorities work, say there is a sixmonthaby born to an indian couple, for reason the couple i longer there and no family membersnhe tribe. Nonindian coupleays we would like, to adopt t baby, they check the boxes of the best interest of thehild. Normal issues a perfect lacement but nonfamily members tribe say that no, they think it would be better for the child to bed with the tribe on the reservation. Does that priority trump the other berest finding. Well. Several questions about that. Congress enacted or it was very concerned about thelication of the best terest of the child standard it lead to subjected judgmen. Assume this is a good faith and reasonable application. About what congress did, was to ado objective standards, the priority with respect to members there is a kinship. Oes that priority displays state court agency toermining of best interest of the child. Agent would hav to determine that the tribal family qualified. Then secondly, that ent it is a rebuttable presumption and not absolute, there is a good cause. That the child would be placed with the nonfamily members . That isne way to de it but yes. So okay, my point, in that parti situation. The besterest of the child would be sub in 1902 said itas implementing the pes interest of thehild. Prop tig so, you say congress determined that it is in best interest of child to remain with nonfamily members of the triben in every case there not in every case, Child Welfare practices come more closely resystem. But, looking to not just the immediate family, but to kin. And congress made judgments i amg trouble figuring out h this works in practice and concrete case. Hypothet i p would the interest of nonfamily members of the tribe trump the state agency determination, they make the rminations every day. Of wt is in the best interest of t child, not respect tolacement with other couple. Not in best interest of child but there are things they consider. They do not operate that way, first question. If extended family ers, that how the tribe in my right. It foes to second preference. For a couple or parents in the tribe, butt is subject to the good cause exception. You that did how does that work. It i not articulated that way. Ybe some same consideratiout, congress and for example, thereference of the parents given again, my hypothetical. The par are no longer on thes. But, okay. There are cases where they are. It happens. Itoes. Im saying that the examples hy the good cause is not absolute. It can be reb and says, should not say shall or must. That allows for considering of other factors. Could it be rebutted the agency saying we have gone through determinations of what best interest of the child . We think that child should be placed with that couple. Do priorities trump tt. That is not the make. Mination they would that is what it was erned about. Subjective judgments that could cou made byhild welfare personnel and long looking at family and financial status of family. Can i one can assume two things. Following on Justice Alito and robert initial questio ifu u. S. Agreed with england to supplyt first with vaccine before t states,. Would our foreign powers permit plenary foreign powers permit u. S. To do that . I think itrobably would. Tt precedent would more kely president would mo than likely not get reelected. Same thing if there was a political judgment. That the Indian Tribes required vaccine first. Forom rational the reason, 90 of the pap population was whatever the reason was it was a reason that would you have plenary power. The power to furnish the vaccine was there. Chris chris . Correct and that goehe judgment of who should make that judgment and what saying. In particular because it was concerned about the ordinary operation of the courts decision in smith versus the organization of families makes this point. So i understand let him finish that. Ongress concerned about the application of the best interests of the child standard and as this couognized, for exa it imposed a burden of proof to remove child or for placements of the child with someone ed what it determined is the framework tht it set up wase best interest of the cldecause congress made audgment that placing the child with the extended family failing and not with the tribe which is a kinship, Community Interest thats taken account in the nonindian context of theld welfare practices that was in e best interest of the child with of the occasion of t possibility of the prospect of individualized exceptions. Are you finished with your answer . As the agency allows to consider the two different proposeds placements. The fundamental right in parenting their children and congress didnt say this a fundamental right of extended family tries but it thought it was aery important right that be recognized and not likely taken awayh huge numbers of indianren from their extended families and tribes and communities and that was damaging the longterm interests. Is the trust relationship trsponsibility the federal government is that responsibility to the tribe or individual members of the tribe . I think congress has and the holiday decision that was referred to previously is very instructive in this point and a number of reasons it involved congss ability to engage in the prohibition run sales in that case offering observation it rejecte proposition that just because the indiansre were citizens and that i beyond what congress could do and it said that could be upheld as an riate exercise of the power. Its important to understand about the w that it operates on tis of citip. The definition is that the child must be a member of the tribe or if not, the child has to be elible for along those lines, suppose the parent of child that is go be adopted, say we dont want a childreated as an indian and the tribe says this child is eligible for trial membership or maybe we have enrolled unilaterally, what happens then . Im not sure of all the facts and hypotheticals if they are giving the child up for adopt that wouldnt necessarily trigger the preferences its ill subject, but this is an impo point to understand this was a cha to the statute that i operated for 40 years day today. What happens in a particular case depends upon the state agencies or the private agenci the third preference for oth including families that are of a fferent tribe, correct . Does the third preference that preference ever make a differ i dont know in empirically but it can in the following circumstance. First ismportant to understand to give the best interest would have been a different family but that third preference does it ever make a difference . It could but tould be Different Reasons if i could explain because you could have a chil for example whose parents are members of two tribes. Im explaining the reasons t is there and guess the third preference hasnt been ed in this case, no plaintiff in thi case has been affected by it but i was trying to give an explanation for why its there and applications would be obvisl okay if you have a child that has a parent member of two tribes one is se as the primary tribe, but if for someeason t not a suitable parent that comes forward the second would be a logical place. You also have situations where they show the same reservation and theres a lot o interaction een them or you have a situation and this is true a breakup of thereat sioux nation in the Northern Plains yo have one great nation that is dividedp into discrete trib on different reserv, but they have common cultural concern about this, you would agree i think and tell me if disagree thatgress couldnt give a preference for white families, white children, black families, black children, lat families with latino children, for asian families and asian children, do you agree . That is purely based on race. And this is different because . Because it has to do with Indian Tribes. Including the pfence that doesnt require the se tribe . But it is a tri of the political relationship to the United States if the child goes there, the childs, somebody in that family will be a member of that tribe. I dont understand that. I ought more broadly tha that that you could have even in your hypothetical you have a mother that bon to one tribe being a father that belongs to another. Maybe im misunderstanding how the preference works but i thought the third preference would kick in and give preference teone that belonged to a different altogether. It could but it would operate from the basisf the childs primyribe and if you had a second tribe that wouldnt come under the first or second ence. Im assuming you get down to the is that you didnt have the placement available, you get downe third preference and i will get to the heart of my concern if youre inking about that from equal Protection Point ow lets assume i agree that these are political classifications, this is just treating Indian Tribes as fungible. Each those tribes has a litical government to government relatp in the United States and they have that in common. The tribes have aligned over the years inommon interest. Congress certainly thought this was true some common cultural ties or practices or spiritual practices. Th m not be deposited but its a recognition that that could beru the third preferen dsnt come up imcthe petitions from the case havent identified any case that fits the parig where you have anoer tribe with no other connection to the child. A child isnt just gog to grab chd. They will do it because they have some interest. Its not a propertinrest. Governments have an interestn their citizens and their children, consular protection for aliens from other countries is a vital thing. Its not property. Adults can change their country of citizenship. The children dont voluntarily join the tribe and in my hypothetical where the par dont want the child to be treated as a member of the tribe. Its solely based on the childs status. It either automatically confers citizenship which the United States does in som citizen abroad. Or the u. S. Its n unheardof proposition and at the parallels between dealing with tribes and reign countries is very direct for these purposes dealing with another an athat parallel is present in the Commerce Clause which tten in terms of Foreign Government ands. Either citizenship could descend automatically at birth or when the ilbecomes 18 a child might choose a member that is another important consion of the child ac with somebody in the tribe. The good cause in the regulations and good cau exception of all cases in fact a specific you can hypothesize the ation which may be it should have beediositive or not but some state court judge has to make a difficult judgment a if there are problems with that in a particularas the person seeking custody could appeal and one of the cases in th ce but this a facial challenge the idea that all of the operations exceeds the article one powers or where is violation of equal protection we have numerous tribes saying it is critical and congresses judgment 40 years ago remai sound. One last question. Is rational basis the standard for all classifications that treat indians differently from other people . Evenf e classion disfavors them . The first question ishether it is a val what is the level ofcrutiny for the classification . If what congresoes is act matter saying your powers are diminished, thats a Political Congress can do things tribes t think are not worthy. Its uniformly tho to have beenul and congress cannot armful things individuals tribal members like it cant to anyone else that sounds like a level of scrutat is dit from the ordinary rational basis. At least something on the ordinary rational basis ought to be implied. Does that aither way or only to classifications that are disfavoring . Again i think it com both with respect to article one as it is related to congress fulfillment of itsow and then the rational basis for equal protection and they overlap and one could think of the issues here but under the article one power,esnt cut both ways. Justice, anything further . If you are a child who is an indianemr and we havent even addressed that i seems to me that ihe quintessential. The government wants to protect you in a certain way the vement should be unfettered. I thought that might have been one part of the question but i wasnt sure. Subject as a child who iis member yet but whose parents are in indian tribe membership and that one it seems t me presume that ahild will follow its parents, correct . Yes. Even with citizenship, children who are born of parents abroad i dont think in all ciances are automatically considered a citizen. Theres all sortsf benefits given but they have to declare at 18 or something. Its no different than anyf those ls, correct . Citizenship passing by has been common throughout our history but here itstant to recognize the tribal membership into citizenship is defined by the tribe thats an important aspect and recognizing the sovereignty of indian nations of which are mentioned in the cstution. Im wondering if you can comment on the variousifications of adopting a series of the article one power, and weve hrd few different iterations. Congress has power where it is acting out of a particular treaty and i oigations where its regulating on tribal lands congress has power and Everything Else is outside what an article in title 25 would that exclu . The program furnishes a lot of services to indians who some of whom are not actually formal tribal members but they are the judgmentaseen made to that they are affiliate wh a state of tribe o Something Like that. Its created criminal offenses for the conduct occurring on t reservation its not just commerce its interaconnd any anytime there can be abuses arising between indians and nonindians. Its very important not to cut off congress ability to make the contact specific jgments when the practical problem arises. If the import of your question that it doesnt fall into one of the categories precisely. It just doesnt fall within the article one powers. That is essentially the shackling with powers of protection coming from the ercise of the war and treaty powet would be in the teeth of the framers shedding of those shackles. Whether they were all in the indian Commerce Clause or elsewhere that was a deliberate se to give Congress Plenary power that was refle and it connected penalties for crimes over the years the classic intercourse o connection between indians and nonindians. Ustice . On your point that this is political classification and acial including the preference i wt to understand what you see a the limits into the couple hticals i asked earlier can congress create a hiring preference to American Indians for agencies such as treasury or justice . I think tould be much more difficult. And why is that . Because the preference was the agency that was regulating Tribal Affairs, so there was a particularly close nexus t the Indian Tribes a tbal members who were going to work for it. So i t that rose an unusual situation in federal employment it was very closely related to the tribe. But i think if you get away from t would be much more difficult tend. H about congress decides tribal members to mandate the states give a preference in College Admissions to american indi. I think its the relationship to the tribal relationship is moreuated into bumps up and bump against interests that other people might have. That may be an important consideration but ct that to the long furnished funds to educate. Universities have had that as part of their mission for years that might present different questions. And youve suggeste everythings been operating smoothly. Leave well enough alone but i want to speak to the concern on the other side which is you in as an adopt couple, you want to adopt a cthe state court otherwise would say the be interest for the child would be to go with you and then you ldo, youre the wrong race. With reif its one of the preferences that there is a tribal political citizenship aspect to the determination even whf the third preference . It has to be a member of that means thats the political relationshipell. Whether there could b a ratiasis challenge to that in a partilacase, we dont have anything like that here. Where the tribe occupies thes same reservation. Butn apply even when its a different tribe with none of that, corre is that a yes . Its possible. Yes you would have to look a it. That is a good cause exception it might allow greater flexibility. K you referred earlier to comment practices that may exist in the ccutances, does that suggest the congress could say parents should get a preference . No, not at a. All i meant to s bye that is congress made a judgment that there are cultural characteristics among the tribes or it had that a judgment or at least that the preferences it is set up allow for taking into account because its its extended family and extended another tribe with cultural similarities. Not all members are alike but to sobal members have a strong affinity for their tri in terms of their heritage going back before the founding of the country. Its an important part of their cultural stability and kinship and stability of growing up. I respect those. Terests and im just trying to say theres a strong interest some the other sich is why the is. I want to up where the justice left off. You said that it would b a harde than some of the hypotheticalsresented say treasury and tference in employment. Is because you would say i the classifications for indians are diffiecause theres a racial component and political identity component. Are you struggling with those hypothetical are you finding those more what to say that theres someou circumstancehich the classification operates more like a racial classification because it is unconnected to the tribal sovereignty . You can see the conn between the claation and tribal sovereignty so its easier to shats a political fication subject to the rational basis of scrutiny if you movether away from that as we are talking about treasury then would you say that it operata political classification but doesnt sfy or would you say its a racial classification butails strict scrutiny . You can think about it either way. I thin its still political classification, but perhap an unreasonable one because there is as the cour cases that have look a this there is at some point a proportionality aspect to it and other people in the society would be greatly adversely affected or something, t on the equal protection side i think its a good example of that because it was a preference for contracting within series groups it was expressed inority racial terms and the court said was subject to strict scrutiny but thats why its important to look at the context in which congress is acting and because cong doesnt make to clarify, sometimesa. Classification can operate as racial and sometimes it would be political depending on the ntext. I think if it is express based on tribal citizenship h the child or the parent. If it t on the tribal memberr the tribal citizenship then i think is political in its essence whether it goes to forgiving the beneft to someone of that pol question otherwise there could be its always going to be time you are saying plenary isme way plenary so you would say it is plenary so long as it is rational or reasonably r its within Congress Power and the only limitation is up against the limited like the equa protection clause or sovereign immunity. Because theyve never struck down a statute of that sort and with response to the case there was no expreeference for the suppositionbout the tribal membershipt was easily identified. L protection or sovereign immunity. This doesnt just come from the co clause thatenders the tribes dependent and there is a need so therefore it is hard for the courto lay down its standard of rule about what is necessary to protect the tribes obligation. A. I aeehere are strong interests on bhides of the issues with respect to the scope he authority as it regards to Indian Affairs and what congress believed was necessary to protect given that exercise of authority so that me wonder whether weuldnt be giving more weight to the statements in the legis history from congress in terms of its decision that its provisions were it related to tribal sovereignty so let me ask the clear statements that its understanding of i plenaryo authority and give it to it in the constitution that it was necessarym congress perspective ve the problem of the stateelfare practices that were causing harm to indian children given its responsibility as a trust relationship. Its set out inhe beginning itself. Throe statutes, treaties et cetera it has assumed the responsibility. 1902 says the congresseby declares the policy of the nation to protect the best interest of indian children by establishing minimumtandards proceedings because that was the problem they were addressing. The standas and the protection of the framework is in the best interest of the child and this congress made the statement that ther is set out taken into account the kinship principles but its in the best interest and that is based on extensive hearinh the deference. Thank you, counsel. Mr. Chief justice may i please t court,oness enacted because indian children were being torn from their families with the operation of stat fily law in state courts. I want to emphasize three pois to start. First congress has plenary power dhere is no exception and that power for state which proceedings since the founding the health and safety of the indian children has been the province of the federal government at the tribes not the states and indeed when congress attempted to give states the authority in the 20th century states resisted and said i was exclusive federal respsility. The plaintiffs equal protection claims should be rejected a facial challenge in a case with outstanding is about the worst way to consider the constitiality of the major federal statute and in any event drawls the distinctions thatre political three times over and applies to tribes the federal governmentasecognized and membership criteria established by sovereign tribes and relies on the political decisions of parents to remain tribal mbers. Third, protecting the best test of children it adopts the system of structud decisionmakinwi flexibility to make individualized determinations and protect us child safety facilities access t Remedial Services to keep families intact. Do you think it incorporates the familiar best interest of the child inquiry its in t best interest of the child but not by adopting the best intert of the child because it found it was applied in the dirinatory way its the way congressntended that there is a placeme tts a default setting a provides a way to rebut the presumption. Its explained how good cause works and you canak into account the views of the parent and the child ohe child is old enough to express the man to take into account sibling attachment and bonding with foster parents as long as it wasnt done illegally. Ththg you cannot take into account is socioeconomic status. Sohaothers say end of the reason why medical professionals are here and states are here and family rights advocates are here is because it is the gd standard that adopts those evidencebased presumptions and allows flexibility to protect the btnterest of thehi. So with respect to the power of debate going on i want t me a couple of points. Firs this is asked the court of e plenary power doctrine from the beginning it was used to protect indians from nonindians theres no doubt if the ste had mod and did a wholesale feral removal that would have beenn e duty of protection. Eact that this is being done through state courts and state family law doesnt deprive congress of power. You were asking about limits. Atalking about the plenary power limits are hard fd but this court has identified some. What i wouldayhen congress act distractedly the lit on the plenary powers aspped to find. Provisions are hard to then there may be limits and in that case it was a question of banning alcohol sales outsidef congress and the court said was that if youreoi it in unes where cs a limit this cou has identified. Ive already addressed to the litor the state custody proceedings which congress had acted pursuant to other federal powers. The rule thates no sense has legislated off reservation it prohibed in the 1834 act in section 15. All those cases are off servation. In treaty cases those were off reservaon and the ement act all of those a off reservation. Why does it make nose . Because the articles of confederio it was a land carveout andas the kind of reason we had at the change in the constitution to prevent that. Why does it make no sense . There are landless tribes in california, montana. Its just not a sensible way divide implement congressional po. Based on assumption but sufficiently similar. Its based on the view share a common political relationship with the United States thats what renders it political rather than racial. Any member of the tribes share that political relationship. That the question a number of theces have focused on on is it rational that is a fair quesnd d some of this remember we are talking about a prong that was never applied to any of the iffs here and on the challenge all it has to have as a plainly legitimate scope. For example it is quite common reservation of another. The the preference applies but q often its this kind of main to arizona. Its also if i say i would like italian food, chine food, and it turns out theres a vegan in thero the first two preferences remain. Why is it rational . Before the a, the tribes were at war with eh other often a they were separated by an entire continent and i dont know how many cultural similariesou would identify. Similarity but the relationship but i take the point ifad a case and ts is why you wait for actual as applied to challenges if we had a ce a caseyfamily was denied because a with no ties to t child was given preference over a cherokee or navajo indian we would be talking about a pretty serious as applied challenge but we are a million miles from that. This is use in situations that are quite unremarkhen a member of oneri is on the reservation of another and has the same kind of community that they are hoping to preserve so from my perspective im not here end what i call the main to arizona it is political, not racial and even if your owners disagree with that it is sufferable. I would like to return to the dialogue which if i understand itses the question are there several hypotheticals properly recognized because the racial aspect of what is aombined characteri that it predes. It has to meet thendards. Special treatment to the fulfillment of the unique obligations what does that mean . I think what it means is the desire to help individual indians doesnt satisfy. You cant just give a preference of their desire to help not enough. The doj that does all of the information is a situation where you could justify the preree but the main point it s you cant just decid yre going to help any individual indians and close the book. So in the variety of cases that they would present a harder case. I view them as political. I want to bear about the method of analys,he method of analysisf the federal government imposes thes its political federal government wide, not okay and i need to s wt congress said. In legislative findings that he said this is what we are worried about. This is not a peripheral desire to benefit. This is going to thore of the tribal selfgovernment. What about the hypothetical of providing cid vaccines and e indian population on the whole as more people with factors that make them more lnable to serious consequences and thefore they should get preference. If congress were to say jus indians undefined that may be a racial classification. The members of the federally recognized tribebunot what happens on the reservation. That would be harder and it goes back to the desire of the political classification with the desire to help members of tribes is not what the court has said is suffici some link to the tribal selfgovernm at the core and why is so easy because what makes Congress Make the Findings Congress made the findings that the removal of 25 5 was devastating tribes d ibal selfgovernment. Strongly theres nothing more central than deciding. How does healthcare, the education, the housing allotment, how dy figure . That shows a number of things. It Shows Congress has routinely it sprung up from the ear 40 years and what congress has beenislating to help since the beginning in the constitution it is there not who they are treated paralle the Commerce Clause and congress has the power to conduct treaties wh dians. They are political from the beginning. Congressas routinely singled out membersoregislation. I want to go back to something you sai you said its obvious that when you remove0 of children from a Political Community you harm that Political Community. I think some strong feelings about this case, from a sense of yes but what about the children. You do harm the Political Community but are you saying that theomnity is more important than the welfare of the children, and so thatth thing i think. Its critical what cs found isnt just thatt was portant for preserving the tribal community, Congress Found it was in the best interes of the childre i dont think i can emphasize it more than that. At Congress Found is that it was in the interest of children d the reason Congress Found that is because the reasont become the goldtandard as they made the judgment didnt recognize to separating children from their families and communities to soon caused harm. Its important to recognize t average age is over 6yearsold. These are chi that formed the school bonds and are playing on spoams and have a group of friends that have made coections. These children were being taken from their communities to soon. Sometimes there was abuse at ho but a lot of times that i why we have the active efforts provision. To get the care to the parents that they will when they are returned to the home community. The preference for the numbers of the tribe what does that have to do with k the indian chi the reservati the quickest answer to tha in my experience talking with people that actually expernc this the ws comes up most often is indians living on the reservation of another so they are building exactly that community. This isnt a random tribe that all of a sudden gs i think that ive conceded that it would be an extraordinari as difficult to apply challenge but i dont think thi is as all difficult on the challenge on inal world where this plays out. Whats happening in the world as individuals are living on theesvations of another and then the preference is going to theribe. In your Opening Statement you said this was a bad case to deal with this questionecause the indidu plaintiffs dont have standi. Why not . They dont have standg r a number of reasons. This is a law riew article. From the state court adoptn proceeding second there is no ngle individual plaintiff who has had an adoptn that existed from the time of the amended complaint through the fifth circuit judgment that is incorrect. The injury to the plaintiffs is ming from the preferences theres nothing about the challenge thaelinates the preferences in the statute or the definioso there is no standing on the equal protection size. The standingee to be established in the lower court texas has no eal protection rights here. A Third Party Rights georgia could assert that the party was ly to assert but regardless whetherge drinkers were excluded jurs have aisincentive to court cas h no application to the situation here the parents there is no standing in addition to the fact the preferences for example they were never applied. If you havent had a chance to ess the commandeering. The main point from our perspective is the footnote 44, 54 page 85 that it applies evenhandedly this isnt a single out of texas or states from paar treatment it applies placements set forth in t brief. Its also right to view this as situation in which a private right is c. You have the individual right to have the placement only after active efforts are done and so with reto the provisions under the case law its evenhandedly to private parties and states and creates private rights is not impermissible. It affects emecause most of these are initiated by state entities and they have to do some work evennhe event of a private initiated suit. Itsoi to have restrictio oweather and whetherd balance they affect the stas and pritearties weve extended the doctrine and i think this courts caseloais quite substantially because not toention cases like once you start to say yes it gutes evenhandedly and yes in the real world there are priva a state parties that issue but we ar gng to look to it and say it affects states and that is e where the state may have been more affected but in any event i dont think tha i a sensible line the court could draw to look at statute by statute in real world doe this affect. Is there any ambition to a private party. It hasnt been brought to our atn as we do the reseah on the other side. Record keeping and familyaw is tricky but im not aware o equal protectionlaend i just want to reemphasize it hasnt been applied to any of the plaintiffs here. I understand but here we have a statute by core. Are you aware of any time the court struck down an exercise of congresses plenary powers . I am not. First you mentioned the avere i assume that means there are hundreds or thousands of children who are relative newborns over the years affected by this, theres no age cut in the statuter, correct . Are you aware its been applied differently . That is arickier question becausehas one that i dont research on as a pale empirical matter it would surprise me if it werent. The cultural bond that an older child woul would be taken into account if the child comes team,ftschool activities. But youre not aware that that is reflected . Im not aware of anything in the record one way or another. Secondly on the land question i want to mak sure you can respond to it. Every piece of legislation dealing with Indian Tribes and reservations to single out a special treatment and constituency living on or near reservations is that accurate to then and still accurate now . The scope suggests that its not accurate and was never accurate. Congress has legd off the land and for nonindians under the indian powers from beginning but as i said to me the bigger problem is two points. It isnt the root of the special treatment that dates back to the text of the constitution from the trade aercourse act at started given what the constitution was trying to do the private pti and the state to provide remedial es and rehabilitation programs designed to prevent the breaku the indian family. I dont knoi apologize for that i dont knowow that works. Eems it has to inevitably go through the state services. We dont to engage in these to get out of the business and discern a is the member of a tribe. I think that would be a disaster on the ground. Would tre be a cllenge for treating india children diertly . Youre saying there would be political consequences o practical consequences and i agree. Itould be hard for me to argue. Abouthaim asking is if we are thinking about whether texas has a legal choice it may be practical consideration. I think i would have to say gin that there were no given for the first 150om odd years of the country there was no child care system at all that it would be hard for me to say its constitutionally required to have one. The choice whether to rticipate in the proceedings at all. To participate in proceedings in foster care . Iont think theres any constitial requirement. But if they have a fosr care system of all the answers given we are here on a special challenge, focused on that a couple of yes compounded by my own ignorance. Can you just helped me to understand the implications of the facial versus as applied nature of the challenge that being brought re first of all i think it completely changes the standard of review that to this court uses and w its said is statutes,onessional statutes survive if they have a plan and legitimate scope and it completely changes the way talk about for example the third preference and then i think on the flipside it changes how we about it. Its a series of hypotheticals but honestly we dont even h the facts of the individual cases. There are different views of at happened. How this plays out in the real world and what the limits are this is a very dlt are and to decidenhe basis of hypotheticals tver arise in the real world and yet take away a statute that has made such a meaningful difference for so many children. It seems to mean not the way the coould be deciding questions and going back to what i said at the start to a statute in a situation where there is no standing seems to be a very poor way to r major challenges to the critical legislation. Thank you very much mr. Chief stice. I wille the hint. [laughter] i want to start with howhi works in practice. I assure you it is not at all hypothetical. It starts with being on a list of willing foster care pviders join appendix one oh eight says we are willing when a child comes into the foster care system the preferences are applied. Th final rule ispplied. The good cause ruiment to the final rule is applied each and every tim ahild comes into the system. In texas alone and Footnote Four of the distric opinion 39 children in the state foster care system. Appendix 108. Hodo a gd cause requirement get applied on the grnd . I would ask the court of appeals decision it says that seeking to establish a goocae for not followinth placement preferences the partmu bring forth by clear and conncg evidence. The government in any event it suggtshat it applies to only related to tribes. We know why it applies. Its in the courtsecision there is a federal policy t send indian children to the indian community. Not thei community as the government seems to alternate in the brief, the indn community writar. We heard the proprietary interest is the duty of protection iou submit theres at least as much proprietary interts a navajo nation. Itshemoking gun textual evidenceoness is acting with a racial purpose and its backstop by the house report. It say that relationship is the touchstone of t ability to enjoy the befs of aribe. The government here is making the same argument is made on the ual Protection Point. You can see that from the one paragraph to send but theres one notable exception. The oral argument the government was preparedo concede to the outer world. The tribal classification can be a proxy for race. Th classification was political becauset directly advanced the tribes ability t govern themselves. The justice and treasury hypotheticals present more difficult questnsecause the tie to selfgovernan in those cases is much me attenuated. It was insufficient to meet the classification political becau it operated in this spher O Administration of state law by the state anc there is no connection to tribal government at all. Whether it is adopted by will not affect one iota the ability to pass itswn laws were to govern themselves. It doesnt apply on indian land at all. It doesnt even affect the tribal existence. She is already a member of the navajo natio and will remain so. Why rj is objected to a different standard based on the status that she has zero ability to control. That to differing standard, the placement preferences is at best a set of stereotypes of what is be f the child that has indian ancestry. Thank you, counsel. The case is submitted