Page:Haaland v. Brackeen.pdf/4

4 Petitioners also assert that ICWA takes the “commerce” out of the Indian Commerce Clause because “children are not commodities that can be traded.” Brief for Individual Petitioners 16. This point, while rhetorically powerful, ignores the Court’s precedent interpreting the Indian Commerce Clause to encompass not only trade but also other Indian affairs. Petitioners next argue that ICWA cannot be authorized by principles inherent in the Constitution’s structure because those principles “extend, at most, to matters of war and peace.” Brief for Petitioner Texas 28. Again, petitioners make no argument that takes this Court’s cases on their own terms. The Court has referred generally to the powers “necessarily inherent in any Federal Government” and has offered non-military examples, such as “creating departments of Indian affairs.” Lara, 541 U. S., at 201–202. Petitioners next observe that ICWA does not implement a federal treaty, but Congress did not purport to enact ICWA pursuant to its treaty power and the Fifth Circuit did not uphold ICWA on that rationale. Finally, petitioners turn to criticizing this Court’s precedent as inconsistent with the Constitution’s original meaning, but they neither ask the Court to overrule the precedent they criticize nor try to reconcile their approach with it. If there are arguments that ICWA exceeds Congress’s authority as precedent stands today, petitioners do not make them here. Pp. 15–17.

(a) First, petitioners challenge certain requirements that apply in involuntary proceedings to place a child in foster care or terminate parental rights, focusing on the requirement that an initiating party demonstrate “active efforts” to keep the Indian family together. §1912(d). Petitioners contend this subsection directs state and local agencies to provide extensive services to the parents of Indian children, even though it is well established that the Tenth Amendment bars Congress from “command[ing] the States’ officers, or those of their political subdivisions, to administer or enforce a federal regulatory program.” Printz v. United States, 521 U. S. 898, 935. To succeed, petitioners must show that §1912(d) harnesses a State’s legislative or executive authority. But the provision applies to “any party” who initiates an involuntary proceeding, thus sweeping in private individuals and agencies as well as government entities. A demand that either public or private actors can satisfy is unlikely to require the use of sovereign power. Murphy v. National Collegiate Athletic Assn., 584 U. S. ___, ___–___. Petitioners nonetheless insist that States institute the vast majority of involuntary proceedings. But examples of private suits are not hard to find. And while petitioners treat “active efforts” as synonymous with “government programs,” state courts have applied