Page:Haaland v. Brackeen.pdf/55

Rh Constitution vests in the federal government a set of potent (but limited and enumerated) powers. In particular, the Indian Commerce Clause gives Congress a robust (but not plenary) power to regulate the ways in which non-Indians may interact with Indians. To understand each of those pieces—and how they fit together—is to understand why the Indian Child Welfare Act must survive today’s legal challenge.

This is all much more straightforward than it sounds. Take each piece of the puzzle in turn. Then, with the full constitutional picture assembled, return to ICWA’s provisions. By then, you will have all you need to see why the Court upholds the law.

Start with the question how our Constitution approaches tribal sovereignty. In the years before Jamestown, Indian Tribes existed as “self-governing sovereign political communities.” United States v. Wheeler, 435 U. S. 313, 322–323 (1978). They employed “sophisticated governmental models,” formed “[c]onfederacies” with one another, and often engaged in decisionmaking by “consensual agreement.” 1 B. Pritzker, Native Americans: An Encyclopedia of History, Culture, and Peoples xii (1998).

When the British crossed the Atlantic, they brought with them their own legal understandings. A seasoned colonial power, Britain was no stranger to the idea of “tributary” and “feudatory” states. E. de Vattel, Law of Nations 60–61 (1805) (Vattel). And it was a long-held tenet of international law that such entities do not “cease to be sovereign and independent” even when subject to military conquest—at least not “so long as self government and sovereign and independent authority are left in the[ir] administration.” Worcester v. Georgia, 6 Pet. 515, 561 (1832). For that reason, early “history furnishes no example, from the first settlement of our country, of any attempt on the part of the