Page:Haaland v. Brackeen.pdf/121

Rh within the sole jurisdiction of States merely because they happen to be Indians, ICWA stands clearly outside the framework of our Indian-law precedents. To uphold ICWA therefore would drastically expand the context in which we have previously upheld Indian-related laws in Kagama’s framework.

But, even if that is so, the majority appears to ask “why Congress’s power is limited to these scenarios.” The majority nearly answers itself: because our Constitution is one of enumerated powers, and limiting Congress’ authority to those “buckets” would bring our jurisprudence closer to the powers enumerated by the text and original meaning of the Constitution. See, ,. While I share the majority’s frustration with petitioners’ limited engagement with the Court’s precedents, I would recognize the contexts of those cases and limit the so-called plenary power to those contexts. Such limits would at least start us on the road back to the Constitution’s original meaning in the area of Indian law.

The Constitution confers enumerated powers on the Federal Government. Not one of them supports ICWA. Nor does precedent. To the contrary, this Court has never upheld a federal statute that regulates the noncommercial activities of a U. S. citizen residing on lands under the sole jurisdiction of States merely because he happens to be an Indian. But that is exactly what ICWA does: It regulates child custody proceedings, brought in state courts, for those who need never have set foot on Indian lands. It is not about tribal lands or tribal governments, commerce, treaties, or federal property. It therefore fails equally under the Court’s precedents as it fails under the plain text and original meaning of the Constitution.

If there is one saving grace to today’s decision, it is that