Former ICWA children, hurt by the law, will have their stories heard! See our Amicus Brief -

Brief of Christian Alliance for Indian Child Welfare and ICWA Children
and families as Amici Curiae  Supporting Petitioners


Nos. 21-378 & 21-380

CAICW Amicus Brief – Brackeen SCOTUS pdf


Christian Alliance for Indian Child Welfare (“Alliance”) is a North Dakota nonprofit corporation with members in thirty-five states, including Texas.  Alliance was formed, in part, to (1) promote human rights for all United States citizens and residents; (2) educate the public about Indian rights, laws, and issues; and (3) encourage government accountability to families with Indian ancestry.

Alliance promotes the civil and constitutional rights of all Americans, especially those of Native American ancestry, through education, outreach, and legal advocacy.  One area of constitutional concern for Alliance is the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963 (“ICWA”).  In enacting the ICWA, Congress invoked power delegated by the “Indian Commerce Clause” in Article I of the Constitution,  see 25 U.S.C. § 1901(1),  which grants Congress the power to “[t]o regulate Commerce . . . with the Indian Tribes,” U.S. Const. art. I § 8.  The ICWA is a broad and far-reaching law that has little or nothing to do with commerce, and it affects individuals that have no connection to, or have actively chosen to avoid entanglement with, tribal government.

Alliance is particularly concerned for families with members of Indian ancestry who have been denied the full range of rights and protections of the federal and state constitutions when subjected to tribal jurisdiction under the ICWA.  This case raises particularly significant issues for Alliance because its members are birth parents, birth relatives, foster parents, and adoptive parents of children with varying amounts of Indian ancestry, as well as tribal members, individuals with tribal heritage, or former ICWA children, all of whom have seen or experienced the tragic consequences of applying ICWA’s race-based distinctions.

Tania Blackburn, Sage DesRochers, Cari Esparza, Nina Martin-Gonzalez, Rebecca McDonald, Christopher Moore, and Sierra Whitefeather are former ICWA Children—individuals who as children were “eligible for membership in an Indian tribe” and were the “biological child of a member of an Indian tribe,” 25 U.S.C. § 1903(4)—or birth parents of ICWA Children (collectively, “ICWA Children and Families”), who have been harmed and suffered deprivations of their legal rights as a result of the ICWA.  Due to the ICWA’s race-based classifications, the ICWA Children and Families have been singled out for differential treatment, forced into tribal custody proceedings against their will or their best interests, and deprived of their legal rights, solely because they have (or their children have) Native American ancestry.

Ms. Tania Blackburn, a member of the Delaware Tribe of Indians and the Cherokee Nation of Oklahoma, is a former ICWA child.  Ms. Blackburn is also an Alliance board member.  Due to the ICWA, [the Cherokee Nation] shuttled [her] between [most] foster homes—at the Cherokee Nation’s guidance—that were “native” in name only and that neither respected her traditional practices nor protected her safety.

Ms. Sage DesRochers, a member of the White Mountain Apache Tribe in Arizona, is a former ICWA child.  Ms. DesRochers is also an Alliance board member. Under the ICWA, she was treated as property and taken from the custody of her now-adoptive family and turned over to her unfit alcoholic mother who abused and abandoned Ms. DesRochers.

Ms. Cari Esparza is a non-native birth mother of a daughter covered by the ICWA.  Due to the ICWA’s discriminatory placement preferences, and the resultant tribal custody proceedings, Ms. Esparza has experienced gross mistreatment, denial of her rights, and the loss of her daughter’s custody in the Gila River Indian Community of Arizona.

Ms. Nina Martin-Gonzalez is a member of the Spirit Lake Tribe of North Dakota and mother to a daughter covered by the ICWA.  Due to the ICWA, the Tribe took custody of her daughter and violated both the ICWA and procedural rules to prevent her from seeing her daughter and to terminate Ms. Martin-Gonzalez’s parental rights.

Ms. Rebecca McDonald is a member of the Oglala Sioux Nation in South Dakota and a former ICWA child.  Due to the ICWA, she was shuffled between foster homes and her struggling birth mother, who would have lost her parental rights on several different occasions had the Sioux Nation not intervened. [interfered? Resulting in… ]

Mr. Chris Moore is one-sixteenth Native American descended from the Iowa Tribe of Kansas and Nebraska and—even though his birth parents were never part of the Tribe—is a former ICWA child.  Mr. Moore’s non-native biological grandmother invoked the ICWA and took advantage of tribal custody proceedings to interfere with Mr. Moore’s adoption by non-native parents.

Ms. Sierra Whitefeather is a member of the Leech Lake Tribe of Minnesota, a former ICWA child, and the biological mother of an ICWA child.  Ms. Whitefeather is also an Alliance board member.  Due to the ICWA, Ms. Whitefeather was shuffled between thirty-two different foster homes as a young child, suffering sexual, physical, and emotional abuse.  When she finally found a safe, loving home that supported her native heritage, the Tribe used the ICWA to prevent her adoption by non-native parents.


The ICWA imposes race-based classifications that harm Indian children and families, and it is an unconstitutional extension of Congress’s power under the Indian Commerce Clause.  Thus, not only does the ICWA cause incredible harm to individuals, it is legally untenable.  Indian children and families have been hurt by this unconstitutional law for far too long.

At bottom, this case is about the harm suffered by Indian children and their families as a result of the race-based classifications in the ICWA.  For nearly fifty years, the ICWA has imposed race-based classifications on Indian children and their families—a clear violation of Equal Protection—and has cause horrendous personal harm as a result.  As demonstrated by the stories provided by the ICWA Children and Families, the ICWA, at best, interferes with and prevents children from being placed in loving and safe homes.  And at worst, the ICWA is used as a weapon by estranged relatives, Tribes, and unfit birth parents to obtain control or custody that they would otherwise be denied.  [due to ..]

To add insult to injury, the ICWA is an unconstitutional overreach of the power granted to Congress by the Indian Commerce Clause.  The Indian Commerce Clause is a narrow grant of power to the United States to regulate “commerce” with Indian Tribes.  By its plain terms, the Indian Commerce Clause does not give Congress plenary jurisdiction over all Indian affairs, much less the authority to impose sweeping regulations like the ICWA that are unrelated to commerce and interfere with state-law matters.  The ICWA, therefore, is also an unconstitutional exercise of Congress’s authority under the Indian Commerce Clause.


I.           This Court’s Review Is Warranted Because The ICWA’s Race-Based Classifications and Discriminatory Placement Preferences Harm Indian Children And Families.

The ICWA unquestionably singles out and imposes differential treatment on Indian children and families on account of race. [heritage]  As a result, and on its face, the ICWA is a clear violation of Equal Protection.  To make matters worse, this differential treatment has caused unspeakable harm to countless individuals.  The ICWA Children and Families are a small portion of the individuals who have been hurt by the ICWA’s race-based classifications and the discriminatory placement preferences mandated by the ICWA.  Their stories make clear that the discriminatory treatment mandated by the ICWA cannot be tolerated any longer.

A.          The ICWA Imposes Unconstitutional Race-Based Classifications.

No government may categorize children or their parents based on their race. See Parents Involved in Cmty. Schs. v. Seattle Sch. Dist. No. 1, 551 U.S. 701, 720 (2007); Palmore v. Sidoti, 466 U.S. 429, 432 (1984).  Indeed, the “central mandate” of equal protection “is racial neutrality in governmental decisionmaking.”  Miller v. Johnson, 515 U.S. 900, 904 (1995).  Racial classifications “are by their very nature odious to a free people whose institutions are founded upon the doctrine of equality.” Shaw v. Reno, 509 U.S. 630, 643 (1993) (quotation omitted).  And “any individual suffers an injury when he or she is disadvantaged by the government because of his or her race, whatever that race may be.” Adarand Constr., Inc. v. Pena, 515 U.S. 200, 230 (1995).  The Constitution accordingly requires the law to treat each person as an individual and not simply as a member of a racial [or political] group. See Miller, 515 U.S. at 911.

The ICWA imposes just such “odious” race-based distinctions.  In its simplest form, for an Indian child, the ICWA affects “almost every aspect of the social work and legal case.” Tex. App. 550a. […argue this is a political, not racial distinction, but according to the ICWA…]  An “Indian child” is any minor that is either “(a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe,” 25 U.S.C. § 1903(4).  […children who are not members of the political body are… due to their heritage and nothing more.]  The very application of ICWA depends on a person’s ancestry and genetics. Race-based distinctions are thus baked into the ICWA, because a “blood relationship is the very touchstone of a person’s right to share in the cultural and property benefits of an Indian tribe.”  H.R. Rep. No. 95- 1386 at 20 (1978).[2]

B.          The ICWA’s Race-Based Classifications and Discriminatory Placement Preferences Harm ICWA Children and Families.

As a result of the ICWA’s race-based classifications, Indian children [children who have tribal heritage] and families are subjected to a weighted child-custody system that prioritizes keeping children “in the Indian community,” often at the expense of the child’s best interest.  H.R. Rep. No. 95-1386, at 23.  Specifically, under the ICWA, “preference shall be given” to “other members of the Indian child’s tribe” or “other Indian families” (regardless of Tribe or relationship) over any non-Indian placement.  Id. § 1915(a); see also id. § 1915(b).  The result is that Indian children regularly are denied loving and safe homes—and often put into dangerous or otherwise inappropriate custody situations that would not otherwise be allowed—simply because the placement family is not “native.”  Even worse, the ICWA’s placement preferences can, and often are, invoked as a weapon to interfere with adoption proceedings or to obtain access to a child that otherwise would not be available.  These are precisely the circumstances experienced by the ICWA Children and Families.

Tania Blackburn

Due to the ICWA, Ms. Blackburn was placed in far-flung foster homes that were “native” in name only and that neither respected her traditional or cultural practices nor adequately ensured her safety. As a member of both the Delaware Tribe of Indians and the Cherokee Nation of Oklahoma, Ms. Blackburn was subject to tribal custody proceedings under the ICWA. During the proceedings, she was surprised to learn that two Cherokee Nation lawyers were involved in her placement, even though the Tribe did not provide any assistance to Ms. Blackburn or her birth mother [and told the judge they were there to represent the tribe].  The Cherokee Nation lawyers, instead, worked to ensure Ms. Blackburn was placed in foster homes with at least one “native” parent, but at the expense of ensuring that those homes were fit to care for children. The shortage of native foster homes that were approved by the Cherokee Nation meant that Ms. Blackburn was often placed in homes hours away from her mother, the court, and her community, despite the availability of closer, non-native foster homes. Further, [many of] the foster parents with which Ms. Blackburn was placed did not share (or even attempt to continue) the traditional or cultural practices to which Ms. Blackburn was accustomed. Some of these foster parents were also neglectful, failed to prevent abuse, and made disparaging comments about Ms. Blackburn’s heritage.  Thus, not only did the ICWA fail to help Ms. Blackburn find a safe, stable home, it actively prevented it and caused Ms. Blackburn to be further removed from her community and heritage.

[more important to be with a tribal member than to be placed close to her mother.]

Sage DesRochers

The ICWA forced Ms. DesRochers to be taken from a loving non-native family and placed into an unfit and dangerous custody situation.  Ms. DesRochers entered the foster care of a non-native family when she was five months old.  This family loved and cared for Ms. DesRochers as their own, and they attempted to adopt her when she was five years old. However, invoking the ICWA, the White Mountain Apache Tribe and Ms. DesRochers’ birth mother (who had not been a part of Ms. DesRochers’ life since birth) intervened to force Ms. DesRochers to return to her birth mother’s custody.  Ms. DesRochers’ birth mother suffered from alcoholism and was not a fit guardian.  Nonetheless, under the ICWA, Ms. DesRochers was taken from the only family she had ever known and was placed her with her unfit alcoholic mother.  Throughout the process, Ms. DesRochers remembers that she was treated “like property” of the Tribe and that her best interests were not important.  While in the care of her birth mother, Ms. DesRochers suffered physical abuse and was prevented from attending court hearings in her case. Ms. DesRochers’ birth mother eventually decided she no longer wanted her daughter, and sent her back to the DesRochers family, in contravention of the court order she herself had sought.

Cari Esparza

The ICWA has allowed Ms. Esparza’s autistic daughter to be taken from her in favor of placement with her birth father, who belongs to the Gila River Indian Community of Arizona.  As a non-native mother of an “Indian child,” Ms. Esparza has experienced gross mistreatment and denial of her legal rights. After caring for her daughter alone for more than ten years, Ms. Esparza moved to the Gila River Indian Community to allow her daughter to know her birth father and to expose her to her native heritage.  However, when a custody dispute arose, Ms. Esparza was demeaned and threatened because she sought to retain custody of her daughter. She was excluded from meetings with case workers and was discriminated against by the tribal court because she is not native. The wishes of Ms. Esparza’s daughter, and her relationship with her mother, were ignored in favor of granting the child’s native birth father custody. Ms. Esparza had been her daughter’s caretaker and advocate since infancy, but due to the ICWA, her daughter was taken from her. Instead of protecting the relationship between mother and daughter, the ICWA gave preferential treatment to part of Ms. Esparza’s daughter’s heritage over all else.

Nina Martin-Gonzalez

The ICWA was meant to protect Ms. Martin-Gonzalez—a member of the Spirit Lake Tribe in North Dakota and mother to an “Indian child”—but instead it was used against her.  When Ms. Martin-Gonzalez became pregnant with her daughter in 2016, she was struggling with addiction, though she is now five years sober. Ms. Martin-Gonzalez began working with Social Services upon the birth of her daughter and chose to live away from the Tribe.  She expressed to Social Services that she did not wish to involve the Tribe; she lived one hundred miles away from the Spirit Lakes Reservation; and she did not enroll her daughter in the Tribe. However, under the ICWA, Social Services delivered Ms. Martin-Gonzalez’s daughter to the Tribe anyway.  The Tribe did not give Ms. Martin-Gonzalez visitation to her daughter, and it prevented her daughter from leaving the boundaries of Spirit Lake.  Family members who were willing and able to take custody were not allowed to intervene, and Ms. Martin-Gonzalez’s daughter was instead placed with a woman who had lost her foster license.[3]  Despite [her sobriety and] years of fighting to get her daughter back, Ms. Martin-Gonzalez’s parental rights were terminated, and she was not given the opportunity to appeal.

Rebecca McDonald

As a member of the Oglala Sioux Nation in South Dakota, Ms. McDonald believed that ICWA would help her find a stable home, but it did just the opposite.  Ms. McDonald’s birth mother struggled with substance abuse and repeatedly lost custody of Ms. McDonald, resulting in Ms. McDonald’s placement with a foster family.  However, each time the court would consider terminating her birth mother’s parental rights, the Tribe would step in to prevent it.  The Tribe would send Ms. McDonald’s birth mother to treatment—even though she consistently failed to make progress and would not show up to court—which would allow her to regain custody of Ms. McDonald for a short period of time before the cycle would repeat.  Thus, due to the ICWA, Ms. McDonald was shuffled between her birth mother’s custody and foster homes for the majority of her childhood.

Chris Moore

The ICWA interfered, in violation of Mr. Moore’s birth mother’s wishes, with his adoption by a non-native family.  Even though Mr. Moore is only one-sixteenth Native American and had no relationship with  the Iowa Tribe of Kansas and Nebraska of which his birth mother was a member, the ICWA still applied to him.[4]  Mr. Moore’s birth mother struggled with drug and alcohol dependency and she was in and out of prison throughout Mr. Moore’s childhood.  Mr. Moore’s biological father had no native blood and left before Mr. Moore was born. Mr. Moore was therefore placed with a loving non-native foster family that sought to adopt him.  Yet when adoption proceedings began, Mr. Moore’s paternal grandmother—who was not native nor a member of any Tribe—informed Social Services of Mr. Moore’s Indian heritage as a means to obtain visitation rights that she otherwise would have been denied.  As a result of the ICWA’s application, Mr. Moore’s case was transferred to tribal court, which ordered mandatory weekend visits to his grandmother (who lived two hours away) and mandated visits to the Tribe, even though Mr. Moore knew no one and had no family there.  This absurdity continued for several years until Mr. Moore’s mother was able to appear in tribal court in support of Mr. Moore’s adoption.

Sierra Whitefeather

Because of the ICWA, Ms. Whitefeather (a member of the Leech Lake Tribe of Minnesota) was subjected to a chaotic and abusive childhood in foster care and her adoption by a non-native family was prevented.  Ms. Whitefeather was placed in the foster care system with her two sisters when she was young.  Due to the ICWA’s mandate that preference be given to Indian placements, and the difficulty in finding such placements, Ms. Whitefeather was placed in thirty-two different foster homes by the time she was seven years old.  During her time in foster care, Ms. Whitefeather was sexually, physically, and emotionally abused. When Ms. Whitefeather was finally placed with a non-native family who provided a safe, loving home and sought to ensure that Ms. Whitefeather retained her native culture, the ICWA interfered.  Pursuant to the ICWA, the Tribe objected to her adoption by a non-native family, and Ms. Whitefeather was taken from her foster parents.  Ms. Whitefeather ran away on several occasions and survived multiple suicide attempts, all the while begging her Tribe to send her back to her foster parents.  The Tribe finally permitted Ms. Whitefeather to return when she was 16 years old.


The ICWA Children and Families are merely a sampling of the individuals who have been hurt by the ICWA.[5]  Instead of helping families, the ICWA and its discriminatory provisions are used to prevent Indian children from being placed with or adopted by non-native families—even if doing so is in the child’s best interest—or to gain access to Indian children in circumstances where that access is inappropriate and would otherwise be denied. [in some cases to discriminate against non-native or dissident parents who are enrollable.]  This Court should grant review to put a stop to these gross abuses and discriminatory treatment.

II.         This Court’s Review Is Warranted Because The ICWA Exceeds Congress’s Authority Under The Indian Commerce Clause.

The Constitution grants to Congress specific “enumerated powers.”  United States v. Lopez, 514 U.S. 549, 552 (1995).  Thus, “[e]very law enacted by Congress must be based on one or more of its powers enumerated in the Constitution.”  United States v. Morrison, 529 U.S. 598, 607 (2000).  When “Congress has exceeded its constitutional bounds,” the Court must “invalidate [that] congressional enactment.”  Id.

Here, the Indian Commerce Clause does not grant Congress “plenary” authority to regulate Indian affairs, much less traditional state-law matters like family and child custody issues address in the ICWA.  The ICWA is therefore an unconstitutional expansion of Congress’s authority under the Indian Commerce Clause and should be struck down.

A.          The Indian Commerce Clause Does Not Give Congress Plenary Authority To Regulate All Indian Affairs.

The Indian Commerce Clause is a limited grant of authority that allows Congress “[t]o regulate Commerce . . . with the Indian Tribes.”  U.S. Const. art. I, § 8.  Both the text of the Indian Commerce Clause, and this Court’s review of that Clause, make clear that the Indian Commerce Clause is a limited grant of power to regulate trade and other similar economic activities.

First, the term “commerce,” as used in the Indian Commerce Clause and at the founding, almost exclusively refers to trade or comparable economic exchange.[6]  For example, prominent mid-to-late eighteenth century dictionaries define “commerce” as “trade,” or similar mercantile exchange.  See Giles Jacob, A New Law-Dictionary (8th ed. 1762) (“Commerce, (Commercium) Traffick, Trade or Merchandise in Buying and Selling of Goods. See Merchant.”); Samuel Johnson, 1 A Dictionary of the English Language (J.F. Rivington, et al. 6th ed. 1785) (“Intercourse; exchange of one thing for another; interchange of any thing; trade; traffick.”).  These definitions reflect the inherently commercial or economic character of the term “commerce.”  See Robert G. Natelson, The Legal Meaning of “Commerce” in the Commerce Clause, 80 St. John’s L. Rev. 789, 817-18 (2006) [hereinafter Natelson, Legal Meaning of “Commerce”]; see also Lopez, 514 U.S. at 586-87 (Thomas, J., concurring) (relying on lay and legal dictionaries, convention records, founding era communications, and the Federalist Papers to narrowly define the term “commerce”).

Definitions of the term “commerce” stand in stark contrast to other, broader terms—such as “Indian affairs”—which have been misapplied to the Indian Commerce Clause.  See, e.g., Cotton Petroleum Corp. v. New Mexico, 490 U.S. 163, 192 (1989) (describing Congress’s power “to legislate in the field of Indian affairs”).  The term “affair” has a more extensive meaning, indicating an important distinction in the meaning and use of the terms “commerce” and “affair.”  See, e.g., Samuel Johnson, 1 A Dictionary of the English Language (J.F. Rivington, et al. 6th ed. 1785) (defining “affair” as “[b]usiness; something to be managed or transacted”);  Nathan Bailey, A Universal Etymological English Dictionary (Edinburgh 25th ed. 1783 unpaginated) (defining “affair” as “business, concern, matter, thing”); see also Natelson, Indian Commerce Clause at 217 (comparing historical dictionary definitions of “commerce” and “affair”).  In short, the term “affair”—as it was defined at the time of the Constitution’s ratification—is “a much broader category than trade or commerce.”  Natelson, Indian Commerce Clause at 217.

Lay and legal texts in the eighteenth century further support a more limited understanding of the term “commerce.”  The term regularly “referred to mercantile activities: buying, selling, and certain closely-related conduct, such as navigation and commercial finance.”  Natelson, Legal Meaning of “Commerce” at 805-06; see id. at 821–22 (reviewing Blackstone’s Commentaries).  Indeed, the use of “commerce” was remarkably consistent in both legal and lay texts at the time of the founding.  See, e.g., Natelson, Legal Meaning of “Commerce” at 845 (reviewing extensive source material to to come to the simple conclusion: “the word ‘commerce’ nearly always has an economic meaning”); Randy E. Barnett, New Evidence of the Original Meaning of the Commerce Clause, 55 Ark. L. Rev. 847, 858 (2003) (reviewing newspaper publications to conclude that it “impossible here to convey the overwhelming consistency of the usage of ‘commerce’ to refer to trading activity (especially shipping and foreign trade) without listing one example after another”); Robert G. Natelson, The Original Understanding of the Indian Commerce Clause, 85 Denv. U. L. Rev. 201, 214-15 (2007) [hereinafter Natelson, Indian Commerce Clause]; Robert G. Natelson & David Kopel, Commerce in the Commerce Clause: A Response to Jack Balkin, 109 Mich. L. Rev. First Impressions 55, 56 (2010) [hereinafter Natelson & Kopel, Response].

Similarly, when used during the Constitutional Convention and related state conventions, the term “commerce” was almost entirely limited to trade or similar economic matters.  Indeed, “if anyone in the Constitutional Convention or the state ratification conventions used the term ‘commerce’ to refer to something more comprehensive than ‘trade’ or ‘exchange,’ they either failed to make explicit that meaning or their comments were not recorded for posterity.”  Barnett, Original Meaning at 124; see Natelson, Legal Meaning of “Commerce” at 839-41; see Adoptive Couple, 570 U.S. at 659 (Thomas, J., concurring) (“[W]hen Federalists and Anti-Federalists discussed the Commerce Clause during the ratification period, they often used trade (in its selling/bartering sense) and commerce interchangeably.” (internal citations omitted)).

Further, this Court has employed this understanding of the term “commerce” in other contexts.[7]  The term “commerce” as it used in the Interstate Commerce Clause is understood generally to mean economic activity.[8]  See Taylor v. United States, 136 S. Ct. 2074, 2079-80 (2016) (“‘[T]hus far in our Nation’s history our cases have upheld Commerce Clause regulation of intrastate activity only where that activity is economic in nature.’” (quoting Morrison, 529 U.S. at 613)); Lopez, 514 U.S. at 560.  Even in one of this Court’s broadest recent opinions regarding the scope of the Interstate Commerce Clause, Gonzales v. Raich, 545 U.S. 1 (2005), which allowed Congress to regulate purely local growth of marijuana for medical use, the Court explained that the regulations were acceptable because they governed an “economic ‘class of activities’ that have a substantial effect on interstate commerce.”  Id. at 17.

The text of the Indian Commerce Clause thus does not grant plenary jurisdiction over all Indian affairs.  As Justice Thomas has explained, “‘neither the text nor the original understanding of the [Indian Commerce] Clause supports Congress’ claim to such ‘plenary’ power.’ . . .  Instead, . . . the Clause extends only to ‘regulat[ing] trade with Indian tribes—that is, Indians who had not been incorporated into the body-politic of any State.’”  Upstate Citizens for Equal., Inc. v. United States, 199 L. Ed. 2d 372 (2017) (Thomas, J., dissenting from denial of cert.) (citations omitted); see United States v. Bryant, 136 S. Ct. 1954, 1968 (2016) (Thomas, J., concurring) (“No enumerated power—not Congress’ power to ‘regulate Commerce . . . with Indian Tribes,’ not the Senate’s role in approving treaties, nor anything else—gives Congress [plenary authority].”); Adoptive Couple, 570 U.S. at 659.  Even opposing legal scholars agree on this point: “[T]he history of the Indian Commerce Clause’s drafting, ratification, and early interpretation does not support either ‘exclusive’ or ‘plenary’ federal power over Indians.  In short, Justice Thomas[‘s concurrence in Adoptive Couple, 570 U.S. 637] is right: Indian law’s current doctrinal foundation in the [Indian Commerce] Clause is historically untenable.”  Ablavsky, Beyond, at 1017 (emphasis added).

Second, even if the text of the Indian Commerce Clause could support Congress’s claim to “plenary” authority, such an assertion is at odds with this Court’s precedent.  On the one occasion that the Court analyzed the reach of the Indian Commerce Clause, it rejected a claim to broad, plenary authority.  The Court stated that such a ruling would result in a “very strained construction” of the clause to find that “without any reference to their relation to any kind of commerce,” a criminal code was somehow “authorized by the grant of power to regulate commerce with the Indian tribe.”  United States v. Kagama, 118 U.S. 375, 379 (1886) (rejecting the argument that the Indian Commerce Clause granted Congress the power to create a federal criminal code for Indian land); see Nathan Speed, Examining the Interstate Commerce Clause Through the Lens of the Indian Commerce Clause, 87 B.U. L. Rev. 467, 470-71 (2007) (“[W]hen Congress eventually began asserting plenary power over Indian tribes, the Supreme Court expressly rejected the assertion that the Indian Commerce Clause provided a basis for such a power. This evidence supports a narrow interpretation of the power to ‘regulate Commerce,’ and in turn, a narrow interpretation of both the Indian Commerce Clause and the Interstate Commerce Clause.”).

The oft-cited opinion of United States v. Lara, 541 U.S. 193 (2004), is not to the contrary.  Except for a concurrence by Justice Thomas, the Lara opinion did not analyze the proper scope of the Indian Commerce Clause.  See id. at 224 (Thomas, J., concurring) (“I cannot agree that the Indian Commerce Clause provides Congress with plenary power to legislate in the field of Indian affairs.  At one time, the implausibility of this assertion at least troubled the Court, and I would be willing to revisit the question.” (internal citations, quotation marks, and alterations omitted)).  The Lara opinion instead involved a double-jeopardy analysis, focusing primarily on the Tribe’s inherent power to prosecute and punish a nonmember defendant and the sovereign authority of Tribes.  See id. at 199-200.

Thus, Congress cannot be said to possess plenary authority to regulate “Indian affairs”—or to pass the ICWA—in the name of the Indian Commerce Clause.


B.          Family and Child Custody Matters Cover By The ICWA Are State Issues That Do Not Affect “Commerce.”

The constitutional grant of power to regulate “commerce” does “not include economic activity such as ‘manufacturing and agriculture,’ let alone noneconomic activity such as adoption of children.”  Adoptive Couple, 570 U.S. at 659 (Thomas, J., concurring) (citations omitted).  The ICWA further intrudes on matters that are typically reserved to the states, bypassing the firm constitutional distinction between federal and local authority.

The ICWA is, at bottom, a federal regulation of child custody proceedings and adoption.  See ROA.4011 (describing the ICWA).  The ICWA was enacted in response to the “rising concern in the mid–1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that resulted in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement, usually in non-Indian homes.”  Adoptive Couple, 570 U.S. at 642 (quoting Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989)).  The ICWA has no relationship to commerce or economic activity, and, indeed, it does not claim to have any relationship or connection to commerce.  See 25 U.S.C. § 1901.

This case is analogous to Lopez and Morrison, in which the Court struck down expansive laws that, although based on the Interstate Commerce Clause, had little or nothing to do with commerce.  For example, in Lopez, 514 U.S. 549, this Court invalidated the Gun-Free School Zones Act of 1990, 18 U.S.C. § 922(q), because it “neither regulates a commercial activity nor contains a requirement that the possession be connected in any way to interstate commerce.”  Lopez, 514 U.S. at 551.  The Court made clear that the Act was “a criminal statute that by its terms has nothing to do with ‘commerce’ or any sort of economic enterprise, however broadly one might define those terms.”  Id. at 561; cf. Jones v. United States, 529 U.S. 848, 859 (2000) (rejecting applicability of federal arson statute, passed pursuant to the Interstate Commerce Clause, because damage to an owner-occupied private residence was not sufficiently related to commerce and infringed on state police power).  Similarly, in Morrison, 529 U.S. 598, the Supreme Court struck down 42 U.S.C. § 13981, the civil remedy portion of the Violence Against Women Act, because “[g]ender-motivated crimes of violence are not, in any sense of the phrase, economic activity.”  Morrison, 529 U.S. at 613; see also Nat’l Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 558-59 (2012) (finding that economic inactivity was not sufficiently related to commerce to justify regulation under the Interstate Commerce Clause).

Adoption proceedings have no more relationship to commerce than domestic violence or guns near schools.  See Adoptive Couple, 570 U.S. at 666 (Thomas, J., concurring) (citations omitted) (noting also that adoption proceedings, like the ones at issue here, do not involve Indian Tribes, an additional requirement of the Indian Commerce Clause).  Indeed, by its terms, the ICWA “deals with ‘child custody proceedings,’ not ‘commerce.’”  Id. at 665 (internal citations omitted).  As Justice Thomas has noted, the ICWA “was enacted in response to concerns that ‘an alarmingly high percentage of Indian families [were] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies.’ The perceived problem was that many Indian children were ‘placed in non-Indian foster and adoptive homes and institutions.’  This problem, however, had nothing to do with commerce.”  Id. (emphasis added) (internal citations omitted).

As a result, the ICWA also intrudes on a quintessential area of state concern that is entirely distinct from “commerce” that may be regulated by Congress: family law.  “The Constitution requires a distinction between what is truly national and what is truly local.”  Morrison, 529 U.S. at 617-18 (citation omitted).  By regulating on truly local issues of family and personal relationships, the ICWA further exceeds the power granted to Congress by the Constitution and obliterates this important distinction between federal and local powers.

This Court has repeatedly acknowledged that marriage, divorce, child custody, and adoption are outside of Congress’s control.  See Sosna v. Iowa, 419 U.S. 393, 404 (1975) (explaining that domestic relations have “long been regarded as a virtually exclusive province of the states”).  “The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the states, and not to the laws of the United States.”  Ex parte Burrus, 136 U.S. 586, 593-94 (1890).  Indeed, these matters are distinct and separate from Congress’s authority to regulate, as the “Constitution delegated no authority to the Government of the United States on the subject of marriage and divorce.”  United States v. Windsor, 570 U.S. 744, 766-67 (2013) (quotation omitted).

This Court has rejected interpretations of the Commerce Clause that would allow Congress to the “regulate any activity that it found was related to the economic productivity of individual citizens[, including] family law ( [] marriage, divorce, and child custody).”  Lopez, 514 U.S. at 564; see Morrison, 529 U.S. at 616 (rejecting reasoning that may “be applied equally as well to family law and other areas of traditional state regulation”).  Congress thus may not exercise power over such matters under the guise of regulating commerce, because such power would be effectively limitless.  The ICWA, therefore, exceeds Congress’s power to regulate commerce—not only because it is entirely unrelated to commerce—because it intrudes on noncommercial subject matter belonging entirely to the states.


For the foregoing reasons, this Court should grant the petitions for a writ of certiorari.


Respectfully submitted,



October 8, 2021

Stephen J. Obermeier

Counsel of Record

Krystal B. Swendsboe

Wiley Rein LLP

Washington, DC 20006

Counsel for Amici Curiae




[1]  No party’s counsel authored this brief in whole or in part, and no person or entity, other than amici or its counsel, made a monetary contribution to fund the brief’s preparation or submission. All parties in this case have consented to amici’s filing of this brief.

[2] The definitional distinctions contained in the ICWA are racial distinctions, and not political.  As Petitioners aptly explain, this Court has held that distinctions based on Indian ancestry or tribal membership, constitute political distinctions in only limited circumstances which are not present here.  Tex. Br. 19–24; Brackeen Br. 17–21.  [No constitutional right of any government, organization or individual to assign political affiliation to an individual.] 



[5] See, e.g.,;

[6] When interpreting constitutional text, the Court gives words the meaning they had when the text was adopted.  See Wis. Cent. Ltd. v. United States, 138 S. Ct. 2067, 2070 (2018) (“As usual, our job is to interpret the words consistent with their ordinary meaning . . . at the time Congress enacted the statute.” (quotation omitted)).  This is a foundational canon of interpretation, that applies in interpreting provisions of the U.S. Constitution.  See District of Columbia v. Heller, 554 U.S. 570, 576-77 (2008).  To determine the meaning of pertinent terms, this Court has looked to contemporaneous dictionaries and legal and non-legal publications related to the ratification of the Constitution.  See Heller, 554 U.S. 581-95; Randy E. Barnett, The Original Meaning of the Commerce Clause, 68 U. Chi. L. Rev. 101, 107-08 (2001) [hereinafter Barnett, Original Meaning].

[7] Absent some contrary indication, repeated words or phrases in a statute are interpreted to have the same meaning. Clark v. Martinez, 543 U.S. 371, 378 (2005) (“To give th[e] same words a different meaning for each category would be to invent a statute rather than interpret one.”).  This canon is equally applicable to constitutional interpretation.  See Weems v. United States, 217 U.S. 349, 395 (1910).

[8] Alliance focuses on interstate commerce here as the Court has not addressed the scope of Congress’s power to regulate foreign commerce.  On the few occasions where this Court has addressed foreign commerce, those opinions have addressed laws regulating a significant connection with the United States or the “so-called dormant Foreign Commerce Clause.”  Baston v. United States, 137 S. Ct. 850, 851 (2017) (Thomas, J., dissenting from denial of cert.) (listing examples).  However, in no circumstance has the Court held that the Foreign Commerce Clause would apply to noncommercial conduct.


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