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Rh the couple joined this lawsuit did the Tribe agree to a settlement that would permit the couple to finalize the adoption.

After nearly two years moving between foster-care placements, Child P., whose maternal grandmother is a member of an Indian Tribe, was placed with a non-Indian couple who provided her a stable home. After the placement, the Tribe, which had told the state court years earlier that Child P. was not eligible for tribal membership, reversed its position without explanation and enrolled her as a member. The Tribe then objected to the couple’s efforts to adopt Child P., even though her court-appointed guardian believed that the adoption was in Child P.’s best interest. “To comply with the ICWA,” the state court removed Child P. from the couple’s custody and placed her with her maternal grandmother, “who had lost her foster license due to a criminal conviction.” (majority opinion).

Does the Constitution give Congress the authority to bring about such results? I would hold that it does not. Whatever authority Congress possesses in the area of Indian affairs, it does not have the power to sacrifice the best interests of vulnerable children to promote the interests of tribes in maintaining membership. Nor does Congress have the power to force state judges to disserve the best interests of children or the power to delegate to tribes the authority to force those judges to abide by the tribes’ priorities regarding adoption and foster-care placement.

The Court makes a valiant effort to bring coherence to what has been said in past cases about Congress’s power in this area, but its attempt falls short. At the end of a lengthy discussion, the majority distills only this nugget: Congress’s power over Indian affairs is “plenary” but not “absolute.” The majority in today’s cases did not coin this formulation; it merely repeats what earlier cases have