Opinion of the Court
Fifth Circuit did not uphold ICWA on that rationale.
Presumably recognizing these obstacles, petitioners turn to criticizing our precedent as inconsistent with the Constitution’s original meaning. Yet here too, they offer no account of how their argument fits within the landscape of our case law. For instance, they neither ask us to overrule the precedent they criticize nor try to reconcile their approach with it. They are also silent about the potential consequences of their position. Would it undermine established cases and statutes? If so, which ones? Petitioners do not say.
We recognize that our case law puts petitioners in a difficult spot. We have often sustained Indian legislation without specifying the source of Congress’s power, and we have insisted that Congress’s power has limits without saying what they are. Yet petitioners’ strategy for dealing with the confusion is not to offer a theory for rationalizing this body of law—that would at least give us something to work with.[1] Instead, they frame their arguments as if the slate were clean. More than two centuries in, it is anything but.
If there are arguments that ICWA exceeds Congress’s authority as our precedent stands today, petitioners do not make them. We therefore decline to disturb the Fifth Circuit’s conclusion that ICWA is consistent with Article I.
- ↑ Texas floated a theory for the first time at oral argument. It said that, taken together, our plenary power cases fall into three buckets: (1) those allowing Congress to legislate pursuant to an enumerated power, such as the Indian Commerce Clause or the Treaty Clause; (2) those allowing Congress to regulate the tribes as government entities; and (3) those allowing Congress to enact legislation that applies to federal or tribal land. Tr. of Oral Arg. 55. According to Texas, ICWA is unconstitutional because it does not fall within any of these categories. We have never broken down our cases this way. But even if Texas’s theory is descriptively accurate, Texas offers no explanation for why Congress’s power is limited to these categories.
