LEWIS MURRAY: Good evening,good evening, good evening. My name is Lewis Murray, andI’m the Vise President of Ames. Welcome to the AmesMoot Court final round. [CROWD CHEERS] Presiding over thisyear’s competition are the HonorableMerrick Garland, Chief Judge, UnitedStates Court of Appeals District of Columbia circuit. The Honorable Michelle Friedlandof the United States Court of Appeals forthe Ninth Circuit. And the Honorable Amul Thaparof the United States Court of Appeals forthe Sixth Circuit. This evening’s case waswritten by Elizabeth Prelogar and Tajinder Singh. Today’s case posestwo key questions. One. Whether the IndianChild Welfare Act and the final ruleimplementing the statute violate equal protection? Two. Whether the IndianChild Welfare Act and the final ruleimplementing the statute violate theanti-commandeering component of the Tenth Amendment? Representing the petitioner, theJanet Wood Reno Memorial Team, Kevin Chen.McKayla Gilbert-Lurie, oralist. Eliza Green, CaseyJaskie, Al Kelley, oralist, and Carolyn Lee. Representing the respondent. The Patricia RobertsHarris Memorial Team, Alicia Alvaro-Kosky, CharlotteUtash, Melanie Faunts, oralist. Kelsey Frazier, oralist. Hilary Hurd, and Kate Piefer. Please silence all phonesand electronic devices. And please, no photosduring the competition. Finally, pleaserefrain from leaving the courtroom during arguments. Thank you so muchfor your attendance, and enjoy the competition. [APPLAUSE] SPEAKER 1: All rise. The Honorable,the Chief Justice, and the AssociateJustices of the Supreme Court of the United States. Oh yay, yay, yay. All persons having businessbefore the Honorable, the Supreme Courtof the United States are admonished to draw nearand give their attention for the Court is now sitting. God, save the United States,and this honorable Court. MERRICK GARLAND: OK. I’ll call the first,and apparently, only case for the day. Number 19-619 UnitedStates Department of the Interior v.Bryce Caldwell et al. Attorneys for the petitioner. MCKAYLA GILBERT-LURIE:Mr. Chief Justice, and may it please the Court. My name is McKaylaGilbert-Lurie, and I, along with myco-counsel Mr.Al Kelly, represent the United StatesDepartment of the Interior. I will be addressing theequal protection issue, and Mr. Kelly will be addressingthe anti-commandeering issue. We would like to reservethree minutes for rebuttal. The federal government’srelationship with Indian tribes is premised on an understandingenshrined in the Constitution that Indian tribesconstitute a political class. This understandingserves as the principle underlying allfederal legislation governing Indian Affairs. At issue today is onesuch piece of legislation. The Indian ChildWelfare Act, or ICWA. This Court reviewslegislation, like ICWA, that is directed atthose who are politically affiliated with federallyrecognized tribes under the standard establishedin Morton V Mancari.The Mancari testupholds such legislation as long as it canbe tied rationally to Congress’s uniqueobligation toward Indians. ICWA satisfies the Mancari test. It is directed only atthose who are politically affiliated with federallyrecognized tribes, and is– AMUL THAPAR: Can you– I’m sorry to interruptyou– but can you explain to us what theymean by political in that case? MCKAYLA GILBERT-LURIE:Absolutely, Justice Thapar. So a political affiliation witha federally recognized tribe is what this Courthas always understood, and what is enshrinedin the Constitution, as a relationship witha political entity that has a sovereign tosovereign relationship with the federal government, andIndian tribes– at least those which are federally recognizedby the United States government– dohave the sovereign to sovereign relationship.And ICWA contains twodefinitions of an Indian child. There are two ways that a childcan qualify as an Indian child for the purposes of ICWA. First, a child canqualify as an Indian child by being an enrolled member ofa federally recognized tribe. And this definitionfalls squarely within the Mancaridefinition, and respondents don’t contest that thisdefinition of Indian child falls– AMUL THAPAR: The problemis right– the second part. That’s where they take issue? MCKAYLA GILBERT-LURIE:Yes, Justice Thapar. If there is a problem, it wouldbe with the second definition. And the second definitionallows children, who are the biological childrenof enrolled tribe members, who are themselves eligiblefor tribal enrollment, to be covered by ICWA.But this definitiondoes not change the fact that Mancari is theappropriate standard under which to review ICWA. MICHELLE FRIEDLAND: Butthis child in this case was not a member of thetribe, and hadn’t even had contact with the parentwho was a member of a tribe. So how is that a politicalconnection instead of a blood connection at that point? The only connection is throughthe blood of the father. Right? MCKAYLA GILBERT-LURIE:Well, respectfully, Justice Friedland,we would disagree with that characterization. CJ, in this case, hasa political affiliation with the [INAUDIBLE] nation. And that’s because CJ is thechild of an enrolled member of [INAUDIBLE] nation. And it’s useful tothink about membership in a federally recognized tribeas analogous to citizenship. And in much the same way thatthe United States government grants to grant citizenship tothe children of United States citizens who are born abroad,federally recognized tribes impute onto the childrenof their members, a political affiliationwith that tribe. And it’s thatpolitical affiliation. AMUL THAPAR: So how– I’m sorry.MICHELLE FRIEDLAND: I wasjust going to ask, how do you get to another tribe? Because it was actuallya different tribe that expressed aninterest in this child. And I have an easier timeseeing what the rationale could be for helping the child becomea member of his or her parent’s tribe, rather thansome other tribe. MCKAYLA GILBERT-LURIE:Certainly. So the fact thatICWA allows children to be placed withmembers of another tribe speaks to Congress’sconcern when they were passing ICWAin 1978, that children were being removed not onlyfrom their tribes and families, but from Indianculture more generally. And it was this concern that– MERRICK GARLAND: Sohow is that, though, political rather than racial? That is, if the child has noconnection to the other tribe. I understand the argumentyou’re making about the tribe that his father’s from,but for the other tribe, there is no connection.Why is this political? MCKAYLA GILBERT-LURIE:Well, Your Honor, because CJ, or a given child,has a political affiliation with a tribe, that child, thus,has a political affiliation to Indian culture. And Congress sought to correctthe devastating consequences, and the psychologicalharm to children– MERRICK GARLAND: Isthe United States’ relationship with Indian tribesindividually or with anyone who is an Indian? That is the politicalrelationship. MCKAYLA GILBERT-LURIE:Well, Your Honor, it’s a politicalaffiliation with both tribes and with children– or rather–with members of tribes, so it’s both an individualand a collective political affiliation. But it’s not apolitical affiliation with all who identifyas Indian, and that’s because membership in afederally recognized tribe is distinct from identifying asan Indian or a Native American.The two don’t mapon to one another. There are 5.2 million peoplein this country, at least according to themost recent census, that identify as AmericanIndian or Alaskan Native. MICHELLE FRIEDLAND: But they’renot all of the same culture, are they? So you were juststarting to talk about the legislativehistory, and you talk about in your brief aswell that Congress was trying to remedythe harms of removing Indian children fromquote “Indian society”, but is there any suchthing as Indian society? Or is that just a stereotype? It seems like there aremany different tribes with many different cultures.MCKAYLA GILBERT-LURIE:Justice Friedland, it’s true. Tribes do haveindividual cultures, and they are distinctpolitical entities. But we would suggestthat this Court look to the amicus brief filedjust this year, in the Fifth Circuit the 325 tribes– federally recognized tribes–who filed an amicus brief in Bracheen v Burnhardt, whoall evinced their understanding that ICWA does serve to protectIndian children and tribes, even with this thirdplacement, that allows children tobe placed in a tribe, even if it’s not thetribe they were born into. And that’s because this thirdpreference allows for children to be placed with other Indianfamilies, if, for example– AMUL THAPAR: Doesn’t that– Doesn’t that changeyou when you add in the thirdpreference, any tribe, aren’t you evisceratingthe political distinction and really making ita racial distinction? MCKAYLA GILBERT-LURIE: I don’tthink so, Justice Thapar.And that’s becausethese children only have a political affiliationwith Indian culture at all because they are thechildren of members of tribes. And those members havea political affiliation with the tribe. And this Court has alwaysunderstood this relationship to be a political one. And starting with Mancari, andall the way through until 2005, with Rice, this Courthas always understood that to be a fundamentallypolitical class indication. AMUL THAPAR: So can the tribesdefine who their members are any way they want? MCKAYLA GILBERT-LURIE:Yes, Justice Thapar. This Court– AMUL THAPAR: Sowhat if they were like racially discriminatoryin defining the definition of the tribal members. Saying anyone with even onedrop of Asian, or Black blood, can’t be a member. Then, would you still say itwas political in nature, and OK? MCKAYLA GILBERT-LURIE: Well, twopoints on that, Justice Thapar. First, yes, tribes, accordingto this Court in Santa Clara Pueblo v Martinez,are authorized to have complete authority todefine their own membership.But the second point isthat Congress need not recognize all of these tribes. So if a tribe did define itsmembership in a way that was anathema to Congress’sunderstanding of what a tribe should be– or at leastwhat the government should recognize as a tribe– AMUL THAPAR: But ifCongress recognized them, you’d say that then,we would have to allow racially discriminatory tribes? MCKAYLA GILBERT-LURIE:No, Your Honor, that would present amuch closer question, and would be the kindof classification that this Court might reviewunder strict scrutiny. But that’s not the casewe have before us today. AMUL THAPAR: So I’m sorryto take you on this tangent. But explain why then itwould be strict scrutiny, and a nonpoliticalclassification? We can look at– is what you’resaying, we can look at how tribesdefine their members to decide if it’s a politicalclassification or a racial one? MCKAYLA GILBERT-LURIE:Yes, Justice Thapar, if a tribe did define itsmembership in a racial way, then that could be thekind of classification– even though it would be apolitical classification– if it had a racialelement as well, it would be a much closerquestion of the kind that this Court would reviewunder strict scrutiny.MICHELLE FRIEDLAND:But don’t many tribes have some blood requirements? So they do have a racialpart of the definition of their tribal membership? MCKAYLA GILBERT-LURIE: JusticeFriedland, many tribes have a blood quantum requirement. And the two tribes at issuetoday, the [INAUDIBLE]—- MERRICK GARLAND:It seems for that, we need Elizabeth Holmes, ratherthan Oliver Wendell Holmes.What do you meanby a blood quantum? And what is the test that[INAUDIBLE] developed for this? MCKAYLA GILBERT-LURIE:Mr Chief Justice, we would not need touse– and thankfully, we would not need touse– any sort of– [INTERPOSING VOICES] MCKAYLA GILBERT-LURIE: –here. And that’s becauseblood quantum doesn’t refer to any sort of DNA test,or any sort of blood test at all. It merely refers to thenumber of generations removed that an individual is fromsomeone whose name is listed on an original tribal roll. It has no bloodrequirement, even though it might sound like asignifier of race, this Court has alwaysunderstood blood quantum. MERRICK GARLAND: Soeven if you’re right, that it’s political,and we apply Mancari, it still has to be rational. So what’s rational aboutsending a child, who lives in Ames, for example,to Washington state, to a tribe of whichthe child could never be a member, oversomeone closer, someone who has morerelationships with the tribe.How is this rational? Even if we agree thatrational basis is the test. MCKAYLA GILBERT-LURIE:Well, Your Honor, in creating federalminimum standards for the removal of Indianchildren from their families, ICWA ensures that childrendo remain enmeshed in their tribal culture. MERRICK GARLAND: It’sa different truck. The hypothesis is it’snot their tribal culture. It’s a completely differenttribe across the country, and they cannot ever becomea member of that tribe, because they have no ancestral–ancestors from the tribe. MCKAYLA GILBERT-LURIE:Certainly, Justice, chief– Mr. Chief Justice. In this case, thechild would still have a politicalconnection to that tribe. MERRICK GARLAND: I getthe political point.Now, I’m moving on tohow is it rational. MCKAYLA GILBERT-LURIE:Well, Your Honor. MERRICK GARLAND: Political justgets you to what the test is. Right? Now we have to see whetherthis is a reasonable thing for Congress to have done. MCKAYLA GILBERT-LURIE:It’s rational. And, so far, is thatit allows for children to be protected in their– [COLLECTIVE GASP] MERRICK GARLAND: Iwithdraw the question. [CROWD CHEERS] MCKAYLA GILBERT-LURIE: What? Yes. [INTERPOSING VOICES] [APPLAUSE] MERRICK GARLAND: Wouldyou like a brief recess? MCKAYLA GILBERT-LURIE:No, Your Honor. MERRICK GARLAND: Are you sure? MCKAYLA GILBERT-LURIE: I’m fine.No, I’m really good. MERRICK GARLAND: All right. I direct the Bailiff togive her her time back. MCKAYLA GILBERT-LURIE:It was a ploy. Would you mind repeatingthe question, Your Honor? AMUL THAPAR: I don’t knowif we want him to ask. [CROWD CHEERS] MERRICK GARLAND: I think you’vealready answered it perfectly. MICHELLE FRIEDLAND:So maybe, I can ask a version ofthe question, which is how is it rational to senda child to a different tribe? So one that neither parenthad a relationship with, even if we consider it apolitical type of relationship, why would there be arationality in sending a child to a different tribe? MCKAYLA GILBERT-LURIE:Certainly.So a child who has a politicalconnection with one tribe, and would necessarily be apart of this larger culture that this Court inMancari, and in Holyfield subsequently understoodwas one of the reasons that ICWA was passed. In Holyfield, thisCourt made clear that Congress sought, in part,to allow for children to remain a part of their tribal culture. And, in sounderstanding, this Court has acknowledged whatCongress made clear in its 1978 report accompanyingthe passage of ICWA, which is that children sufferpsychological harm when they are removed not onlyfrom their own tribe, but from Indianculture more generally. And while respondentsmight take– [INTERPOSING VOICES] AMUL THAPAR: But wouldn’tthey suffer the same way being moved across thecountry, versus right next to their tribein a familiar area? And especially, if they hadnever been a part of the tribe? MCKAYLA GILBERT-LURIE:Perhaps, Justice Thapar, but Congressdetermined that it was in the Indianchild’s best interest to remain in theTribal Community.AMUL THAPAR: Do we haveto defer to that finding? MCKAYLA GILBERT-LURIE:No, Justice Thapar. So this Court made clear inthe United States versus Sioux Nation that this Court neednot take Congress at its word that its legislation servesthe best interests of tribes, or advances their interests. However, this Court canlook to external evidence to confirm thatthis does, in fact, serve Congress’s interests. Or rather, that this doesn’tserve tribes interests. And one example of thisis as recently as 2016, the Bureau of IndianAffairs promulgated a rule that implemented it. Where that’s the finalrule, and in that rule, it evinced the intent of atleast the leading government agency with respect to IndianAffairs, that ICWA does, in fact, serve the purposethat it was intended to serve.And that Congress was correctthat these three preferences are rationally tied– MICHELLE FRIEDLAND: So theState Family Court, though, thought that thischild’s best interest was to stay with the Caldwell’s. Right? MCKAYLA GILBERT-LURIE: Notexactly, Justice Friedland. So the FamilyCourt, in this case, denied the Caldwell’s adoptionpetition in order to– MICHELLE FRIEDLAND: But inorder to comply with ICWA. Right? I thought the premise was thatotherwise, they would have– the Court would have giventhe child to the Caldwell’s? MCKAYLA GILBERT-LURIE:It’s not clear, Your Honor. And I want to hew closelyto the record on this issue, but it’s not clearthat the Family Court did determine that. Instead, they determinedthat the Caldwell’s were not, in any way, notfit to be parents. But the– MERRICK GARLAND: Ithought it was a burden of proof question, a burden– MCKAYLA GILBERT-LURIE:Well, certainly. MERRICK GARLAND: It didn’tsatisfy the burden of proof. MCKAYLA GILBERT-LURIE: Exactly. Mr. Chief Justice. What the FamilyCourt did determine was that the Caldwell’sdid not present clear and compelling evidence– that the Caldwell’s submittedsufficient justification to deviate for a good cause.And so it’s not clearthat they thought the Caldwell’s were, in fact,the appropriate parents. But rather thatfollowing ICWA’s dictates was more appropriatein this case, which– MICHELLE FRIEDLAND: So ifthe Family Court had said, the best interestsof the child was to stay with theCaldwell’s, do you think that that would havenecessarily been erroneous? Is your argument that it’sactually in the child’s best interest to be with a tribe? An argument that wouldsay, really, a Court couldn’t reasonably find that? MCKAYLA GILBERT-LURIE:No, Justice Friedland.So this is where thegood cause exception is particularly important. And it ensures thatICWA is really as narrow as it can be in providingprotection to Indian children, parents, and tribes. And the good causeprovision allows for Courts to deviate from ICWA’sprovisions for good cause. And the Bureau of IndianAffairs, in its recent rule promulgated fornonexhaustive factors that Courts areauthorized to consider in determining good cause. So if the lowercourt had, in fact, determined that therewas sufficient evidence– MERRICK GARLAND:Could the good clause include that it’s too far away? It’s at another tribe,but it’s too far away, or it’s a tribe that theycan’t be a member of? Or anything like That MCKAYLA GILBERT-LURIE:Well, Chief Justice Garland, that’s not one ofthe four factors that is explicitly listed. Those four factors include theopinion of a biological parent, the opinion of the child, ifhe or she is of sufficient age and capacity to have heropinion taken into account, the extreme emotional, physical,or mental needs of the child, or the presence ofa sibling attachment that can only be maintainedthrough a certain placement.But the factorsare nonexhaustive. So that’s not to say thatphysical distance couldn’t create a mentalneed for the child to stay with a given family. It’s just the– MICHELLE FRIEDLAND: I noticedthat the regulations say that attachment that flowed fromtime spent with a non preferred placement cannot be considered. Was this anonpreferred placement? Did this placement violate ICWA? MCKAYLA GILBERT-LURIE:Yes, Justice Friedland. This was anonpreferred placement. MICHELLE FRIEDLAND: Meaningeven the foster care. So there wasessentially a mistake in putting this child with theCaldwell’s in the first place? MCKAYLA GILBERT-LURIE:Exactly, Justice Friedland. There was a mistake becausethe Child and Family Services was not aware that CJ hada tribal affiliation– or the politicalrelationship with the tribe– until the Caldwell’spetition to adopt, and the Court becameaware of CJ’s status. And this Court hasnever before held that a statute thatclassifies based on political affiliation witha federally recognized tribe violates equal protection.And it should not do sofor the first time today. For the foregoingreasons, we respectfully ask that this Court reverse. Thank you. MERRICK GARLAND: Good rebbutal. [CROWD CHEERS] All right, we’re goingto be easier on you. AL KELLEY: Thank you. Mr. Chief Justice, andmay it please the Court. The anti-commandeeringdoctrine stands for the fundamentalnotion that Congress must direct legislationat private actors, rather than at states. ICWA does not violatethis clear rule. The Act confers rights onindividuals and tribes involved in child welfare proceedings. Accordingly, underthe Supremacy Clause, states must respectthese rights. And insofar asICWA’s provisioned of rights affectsstate actors, it does so as a statuteof general application, not as a law directedat the states.The parties here agree thatthe appropriate framework under which to analyze thisanti-commandeering challenge comes from this Court’sopinion last year in Murphy. In Murphy, the Courtlaid out a two part test to determine whethera statute constitutes impermissible commandeeringof the state’s, or valid preemptionof state law. First, the Court looks towhether a statute represents the valid exercise of one ofCongress’s enumerated powers. And then the Court asks whetherthat statute is best read as regulating private actors.ICWA satisfies bothprongs of this test. MICHELLE FRIEDLAND: On yourprivate actors argument. So are you arguing that ICWAregulates private actors at the sense ofthe families whose relationships are affected? Or is your argument thatthere are private adoption agencies who are regulated? AL KELLEY: Both, Your Honor. So ICWA is best referred asregulating private actors for two primary reasons. The first is that itserves to confer rights on private actors, Indianchildren, parents, and tribes involved in these proceedings. And the second isthat the statute is of general application. So it applies withequal force to both public and private actors.So states involved inthese proceedings, as well as individuals, such as theCaldwell’s, and perhaps, private adoption or foster. AMUL THAPAR: What aboutwhen it requires states to keep records and the like? Isn’t it requiring statesto affirmatively do certain things? AL KELLEY: So the recordkeeping requirement is best read as securingone of the rights that ICWA conferson private actors. And that’s the rightconferred in Section 1917, for an adoptedIndian child to learn of their tribal affiliationthrough Court records.And the only way forthis right to be secured is by requiring thatstate courts maintain records in Section 1951. So that’s still best read asregulating private actors, because it servesto confer a right. And ICWA provides anumber of other rights to tribes, in theform of the ability to intervene inproceedings, and parents, and all of theseprovisions are best read as regulatingprivate actors, not as directing the states. MERRICK GARLAND: I’m puzzledby one aspect of your brief where you appear toinsist that the placement preferences are proceduralrather than substantive. I have two questions.One, why is that so? And two, why does that help you? AL KELLEY: So takingthose questions in turn. First, we arguethat these are best understood as rightsthat are secured through procedural guarantees. So we didn’t mean toindicate that this is procedural versussubstantive for eerie purposes. And as this Court discussed injinx, it’s indeed in this area, hard to draw any distinctline between procedural and substantive mandates. So we merely meant topoint out that they’re procedural guaranteesthat ensure these rights. MERRICK GARLAND:What’s the right? AL KELLEY: The right is– depending on the provision– MERRICK GARLAND: Withrespect to the preference. I assume the right isa substantive right to not be removedto a family, other than one of the preferences. AL KELLEY: Yes, so– MERRICK GARLAND: That’sa substantive right. AL KELLEY: That’s asubstantive right. And as Congress noted,in passing ICWA, it found that Indianchildren suffer harms from being placed outside oftheir tribe and their culture.And so the right vestedin Indian children through theplacement preferences is to be able to growup within one’s culture. And the rights thatare given to try– MICHELLE FRIEDLAND:Are the findings that the children suffer,or that the tribe suffers? AL KELLEY: Both, Your Honor. So Congress, in passing ICWA,found that children suffer serious psychological harms. But it also foundthat tribes were– their ability to continueas self-governing entities was being threatenedby the removal of so many current and potentialmembers from their ranks.So it’s a right vestedin both parties. And the respondents don’tcontest that it was– AMUL THAPAR: I’mpuzzled, why doesn’t the state have an interest? If you have a child who’s nota member of an Indian tribe, why wouldn’t thestate have an interest at that point that wasequal to, if not greater, than the Indian tribes? AL KELLEY: Well, Congressmade the determination when weighing therelative interests there to apply federal lawthat gave greater weight to the protection ofthese Indian children, parents, and tribes. So it was Congress’s jobto determine how to balance those competing interests. And it did hold– it did establish in Section– AMUL THAPAR: Wheredoes the power come from that gives Congressthe ability to balance those competing interests? Because it doesn’t seem to comefrom the Indian’s, the Commerce Clause? AL KELLEY: Well, Your Honor,this Court has consistently characterized Congress’spower under not just the Indian CommerceClause, but also the treaty clause as forming plenary, andexclusive grant of authority in this area.And there’s no subjectmatter limitation on this power Congresshas saw fit to regulate in a wide range of areasthat affect [INAUDIBLE].. AMUL THAPAR: Buthere, you have a child without any tribal membership. Right? And so, I’m not sure,what’s their interest in that situation? AL KELLEY: Congressstill has an interest as a part of its trustobligation towards the tribes to regulate with regardto these children. And this Court has neverlimited Congress’s power in the field of IndianAffairs to regulating only enrolled members of tribes. For example, in Mazurie, itregulated the sale of alcohol by nontribal members inon, or near reservations.And this is a very broadgrant of authority. And the only time thatthis Court has ever found that a statute exceeds thebreadth of Congress’s authority under the IndianCommerce Clause is when that statute has beenused to try to abrogate state sovereign immunity to violate. AMUL THAPAR: Doyou have any cases where there wasn’ttribal membership, where we’ve upheld the law? Because here, there’sno tribal membership. And you’re asking us to hold it. And in all the othercases I’ve seen, the cases related directlyto tribal membership.AL KELLEY: Well, YourHonor, in the United States versus Mazurie from 1975,the court applied a statute to non-tribal members. And it generally hasdone so with regard to on or nearreservation activities. And so it’s never heldthat the Indian Commerce Clause is limited toonly regulating members of federally recognized tribes. It can be anything that relatesto this trust obligation, as this issue surely does. Now, respondents don’t contestthat ICWA confers rights on private actors, butinstead argue that it requires states to confer rights. But this conflatesrespect for rights with conferral for rights. Unlike the statutes that wereat issue in New York and Murphy, ICWA doesn’t requirestate legislatures to create any new standardsor pass any legislation.It simply requiresthat state actors comply with these generallyapplicable regulations. And any conferral ofrights will necessarily affect third parties. But ICWA’s effects occurequally and even-handedly to both public andprivate actors. And it’s thus similar to– MICHELLE FRIEDLAND: I know youargue that, in that regard, it’s similar to Garcia. But in Garcia theminimum wage requirements that defined thestates as employer applied to lots ofprivate employers.And overall, there areprobably more private employers than there are state employers. But here, aren’tchild welfare services usually government run? So to the extent,part of your argument is, well, there areprivate ones too, it’s kind of the opposite of Garcia. AL KELLEY: That may bethe case, Your Honor. However, it’s very similarto what this court faced in Reno v Condon,in which Congress passed a law regulatingthe use of information created by state DMVs. And it held therethat the statute was of generalapplication, because it applied not just to state DMVs,but to the private parties who had obtained that informationfrom those agencies. And so there, thestatute clearly have an outsizedeffect on states. But the court stillheld that, because it was of generalapplication it didn’t violate theanti-commandeering doctrine or implicate the same concernsthat this court was faced with for example, in Prince. And this case is alsodistinguishable from what was at issue in Prince becausewhereas Prince involved an unconditionalorder to state actors, ICWA is better understood asa limitation on state action.So the Brady HandgunAct Provision that was at issue in Princeordered state officers to conduct backgroundchecks irrespective of any other state action. But ICWA’s mandatesonly come into effect when the state decidesto remove an Indian child from their biologicalparents or place that child in foster or adoptive care. And thus it’s more similarto what this court faced in South Carolina v Baker,where it held that states could be compelled to complywith obligations or regulations dealingwith the issuance of bonds. Because states had to makean affirmative decision to issue bonds before thoserequirements came into place. MICHELLE FRIEDLAND:So I know one of your argumentsin your brief is that we shouldn’tworry that people will blame the wrong sovereign. So if they’re upsetabout ICWA they will understand thatICWA is a federal law because the federalgovernment usually is who’s involved in Indian Affairs.But I think that assumesa much higher level of civics knowledge thanpeople usually have. There are lots of peoplein this country who can’t name three branchesof government or members of our court. And I’m wondering why youthink that people, especially people like the Caldwellswho are not Native American, will understand how thefederal government interacts with Native Americans. AL KELLEY: Well, twopoints on that, Your Honor. First, this court has citedpolitical accountability as one of the concernsor rationales that undergrow theanti-commandeering doctrine. But it’s neverheld that those are dispositive in the analysis. But second, we doargue that the kind of political accountabilityconcerns that were added to in this Court’sprevious anti-commandeering cases aren’t at issue here. And that’s becausethe federal government does have a longstanding relationship with federal tribes. AMUL THAPAR: Yeah, but I mean,what political accountability comes down to is who are theygoing to hold accountable, just a simplified way.And all this occursin the state court system as youyourself acknowledge, and the state system. So why wouldn’t they belooking to the states? AL KELLEY: Well,Your Honor, we think there are certain areas thatthe federal government has traditionally beenmore responsible for. In our brief, wecite a statute that deals with family lawproceedings involving service members, activeduty service members. And we think the sameimplications are at issue here. I think most people wouldn’thold the state government accountable fordifferent standards that apply to custody ordersinvolving active duty service members.And the same is truefor Indian tribes. MERRICK GARLAND: SoI’m a new justice, and I’m trying to understand. What is the PoliticalAccountability Clause of the Constitutionof the United States? There is no suchclause, is there? AL KELLEY: Thereis not, Your Honor. MERRICK GARLAND:So I tend to, when I think about this I refer toa famous law review article by an obscure law school deannamed Manning, who Fortunately was saved from privatepractice by the fact that Arnold and Porterdid not hire him. And he takes the positionin this 2009 article that the NI commandeering entiredoctrine is atextual and worst of all, purposovist.Where does it come from,and should we not reconsider a doctrine that reallyhas no basis in the text of the Constitution? The Constitution has specificprovisions that provide the elements of federalism. But to go beyond them, likepolitical accountability, that sounds like something wetalk about in poly sci courses. Why don’t you just challengethe doctrine altogether? AL KELLEY: Because Your Honor,the anti-commandeering doctrine is not centered in thetext or any one provision of the Constitution becauseit represents an omission from the Constitution. And that’s the omission of thepower of the federal government to do– MERRICK GARLAND: So that seemslike the kind of argument the other side might make. You would do a lotbetter if there were no anti-commandeeringprinciple, wouldn’t you? AL KELLEY: PerhapsYour Honor, but there is no anti-commandeering issueeven under the current doctrine here.And that’s because what’sat issue here with ICWA is the kind of regulationthat Congress has frequently used in the past and has neverbeen understood to raise– MERRICK GARLAND: Whatabout the question of procedure versus substancethat I started with? Can Congress enact procedures,rules of civil procedure to cover federal rightsin state causes of action? AL KELLEY: Well, as thiscourt discussed in Jinx, it hasn’t reached that question. MERRICK GARLAND: Sothat’s why I’m asking you. Now we have toreach that question. AL KELLEY: I think for purelyprocedural guarantees or purely procedural mandatesthat may implicate the anti-commandeering doctrine. But whenever those mandateshave a real substantive bite, as they do here, it doesn’timplicate the doctrine. Because these areprocedural guarantees that are securing a right. And the anti-commandeeringdoctrine has never beenunderstood to prevent the federal governmentfrom conferring rights on private actors.And it’s also never– MERRICK GARLAND: What aboutthis provision that requires you to produce an expert? Is that proceduralor substantive? AL KELLEY: Likely similarto the other guarantees, it would be a proceduralguarantee that secures a substantive right. And there it’s theright of Indian families to remain together. If the state wishes to remove achild in certain circumstances, it must producean expert witness. But as this courtdiscussed in Prince, this kind of productionof expert witnesses has a long history,and has been allowed in the past for congressionalmandates on state courts. Thank you. [APPLAUSE] MERRICK GARLAND: We will nowhear from the respondents. MELANIE FONTS: Thankyou, Mr.Chief Justice. And may it please the court. My name is Melanie Fonts, andon behalf of respondents Bryce and Candice Caldwelland the state of Ames I will address theequal protection issue. This court should affirm thejudgment of the Ames Circuit and holds that the Indian ChildWelfare Act and the final rule are unconstitutionalfor three reasons. First, ICWA classifieschildren on the basis of their Indianancestry and thus is a racial classificationsubject to strict scrutiny. Second, ICWA failsstrict scrutiny because it is notnarrowly tailored to a compellinggovernment interest. And third, even if ICWA diduse a political classification it fails any lowerstandard of review because it is notrationally related to a legitimate state interest.Thus, we ask thatthis court strike down ICWA and the final rule. First, ICWA operateson the basis of a racial classification,not a political classification. MICHELLE FRIEDLAND: So it seems like– I’m sorry. MERRICK GARLAND:No, no, go ahead. MICHELLE FRIEDLAND : It seemslike a lot of your argument on this point and other pointshas to do with the second choice preference of goingto a different tribe instead of the tribe that aparent is a member of. I’m wondering if we agreewith you that that part is not rational or doesn’t have acompelling interest, depending on what standardapplies, and we find that to be severable,whether you still have all of your arguments asto the remainder of the statute. MELANIE FONTS: Yes,Your Honor we do. And that’s because weunderstand to sever any part of either thedefinition or the placement preferences or anyother part of ICWA would be to change fundamentallythe applicability of the law. We know this becausewe know that– AMUL THAPAR: OK, but dowe just ignore, then, Congress’s severability clause? It seems to me Congressgets to make that call.MELANIE FONTS: YourHonor, Congress does get to make this call. However, we have evidence fromthe legislative history where we see that theDepartment of Justice asked Congress twice to change,for example, the definition– MERRICK GARLAND: Thatword, legislative history, I don’t think I like that word. AMUL THAPAR: Ithink Dean Manning’s written about that too. MERRICK GARLAND: Yeah, I know. I don’t like that. I may be jumping the gun,but to take the question from the justice on myright a little bit further. Is your position that allclassifications that are based on ancestry are racial? MELANIE FONTS: Yes, Your Honor.MERRICK GARLAND: Soaren’t all Indians tribes based on ancestry? That is, everyrecognized Indian tribe requires that there be someoriginal historical group, and that the currentmembers are descendants of that group, isn’t that true? MELANIE FONTS: Thatis true, Your Honor. It’s our understandingthat the presumption is where a lawclassifies on ancestry, and thus race, it is aracial classification unless the law fitsinto the narrow, carved out space of Mancari. Mancari is a narrow exceptionto our understanding of racial classification.As this court made clear inits opinion in that case– MERRICK GARLAND: Whatis the narrowing? Why doesn’t, under your theory,every federal law relating to Indian tribes subjectto strict scrutiny? Because every Indiantribe, every current member has to trace theirancestry one way or another to the originalhistorical tribes. MELANIE FONTS: Although everytribe has some ancestral requirement formembership, we recognize that there is a politicalact involved, rather, two political acts involvedin membership in a federally recognized tribe.The first of thosepolitical acts is the actual recognitionby the federal government of that tribe. The second is the affirmativechoice an individual makes to join that tribe. Without those twopolitical acts, what we have is theracial group of Indians. MERRICK GARLAND:OK, so now you’re talking about theenrollment question, right? Is that what you’re saying, thatthe problem here is the child’s not yet enrolled? MELANIE FONTS: Yes, Your Honor. MERRICK GARLAND: So let’s assumethat the statute ended at 4A, and the child was alreadya member of a tribe. Is that a racial classification? MELANIE FONTS: Yes, Your Honor. MERRICK GARLAND:So then it doesn’t matter whether it’s enrolled. Your position is everymember of every tribe comes through ancestry. And therefore every rulethe federal government relating to Indians issubject to strict scrutiny. Is that right? MELANIE FONTS: Notquite, Your Honor.And that’s becauseMancari recognizes that a law ceases to bea racial classification and becomes a politicalclassification where there are two factors present. First is that the lawapplies only to members of federally recognized tribes. And second is thatthe legislation aims at the federalinterests in furthering tribal self-government. So where this law, which doesnot aim at furthering tribal self-government, even if– AMUL THAPAR: Why doesn’t it? I’m not sure I follow you. Why wouldn’t it aim infurthering self-government? If the whole principleis to keep the tribes and allow people that shouldbe members to be members, isn’t that fosteringself-government ultimately? MELANIE FONTS: Not asthis court has understood.In Mancari, we saw thatthis court understood tribal self-governancequite narrowly as a political andeconomic interest to paraphrase from the opinion. And the Ninth Circuit hashelpfully defined this for us, and told us to look foruniquely Indian interests– MERRICK GARLAND: TheNinth Circuit actually doesn’t carry much sway here. And Mancari only talked about– no disrespect to the NinthCircuit, but it is the fact. Mancari talked abouttribal self-government as something thatmattered in that case. Did we suggest thatthat was the only possible ground forrecognizing this as a political circumstance? The example that my colleagueon the left expresses is close to tribal government. We never said tribalself-government was the only thingthat would satisfy us. MELANIE FONTS: YourHonor, this court did not. However, if we look at the lineof cases following Mancari, we see that tribalself-governance has been construed narrowly. So we can fast forward, forexample, to Rice in 2000 where this court held that thecandidate qualification preference for native Hawaiianswho had an ancestor who was present in theHawaiian Islands in 1778, that even if nativeHawaiians were members of a federally recognizedtribe, that preference would still fail Mancari.Because it went tocritical state affairs. Even though the Office ofHawaiian Affairs in many ways functioned similar to parts ofthe Bureau of Indian Affairs. And we can see thistime and time again if we look at this court’sprecedent following Mancari. MICHELLE FRIEDLAND : Butin both of those cases, there was some tribal ornative-related entity. But we’re talkingabout the tribe itself. How can the tribesurvive without members? MELANIE FONTS: Your Honor,while the tribe cannot survive without members the questionbefore us right now is whether that interest is enough to lowerthe standard of review here. We argue that it is not becausethat falls outside this court’s long-held understandingof where there is a political classification. So to turn to some examples. We see in cases likeFisher and Angelo, those cases involved politicalclassifications not just because they appliedonly to members of federally recognized tribes,but because they advanced tribal politicalself governance that is transferring jurisdictionfrom state courts to tribal and federal courts.In Moe, for example,we saw that the law was a political classificationbecause it advanced economicself-governance, that is, providing the Indiantribe tax immunity from local and state taxes. MERRICK GARLAND: Why isn’tmaintaining the human beings who are going to makeup a tribe as much a matter of the continuingself-government of the tribe as is economic issues? Why isn’t it more important? Seems like it wouldcome a fortiori if we’re going to protecteconomic interests of the tribe that we’re to protect theirinterests in surviving to the next generation. MELANIE FONTS:Because, Your Honor, the inquiry here is justwhether the standard of review ought to change becauseof the interests involved. We construe tribal selfgovernance narrowly, not because we don’trecognize that there might be other tribalinterests at stake, but because we realizethat Congress ought to be owed more deference whereit is legislating with respect to tribal Indians. But that same levelof deference can’t be owed where the federalgovernment is aiming at something other thanthat narrow conception of tribal self-governance.AMUL THAPAR: Can Igo back to your– I’m sorry to interrupt. Can I go back to your racialclassification for a second? Because I’m struggling. So can a tribe define itsmembers however it wants? MELANIE FONTS: Withinsome limits, Your Honor, as this court held inSanta Clara v Martinez, the tribes have broad authorityto set their own membership requirements. However, we can see withsome of the lower courts that there are some limits. For example, if we look at the[INAUDIBLE] case, for which this court denied comingout of the Tenth Circuit, there the TenthCircuit held that where the tribe had changed itseligibility requirement, where it had automatically enrolledchildren for 240 days after birth in order to avoidany perverse consequences with ICWA.There the court struck downthat membership requirement because it held that thatwas just doing gamesmanship with a federal statute. Similar to– AMUL THAPAR: So assumethey’re not doing gamesmanship with the federal statute. But assume, as you I thinkacknowledged in your briefs, they’re lettingwhites in, descendants of slaves, people that have noancestry traced to the tribe. You would still call ita racial classification under that circumstance? MELANIE FONTS: Yes,Your Honor, it’s still a racial classificationunder that circumstance for three reasons. First, even though a law mayclassify other individuals excluding or outsidethat racial group, the law is not any lessof a racial classification where race is thepredominant factor. And we can see this inother equal protection cases for example, inMiller v Johnson. Second, This court has held thatthe political classification is narrowed to members offederally recognized tribes. Because it recognizesthat there is an official process for thatfederal recognition. For example, if we look atthe Federal Acknowledgment Act, which has governedthe federal recognition process since 1994,part of that act requires that tribes submitconstitutions and bylaws defining their membership.So federal recognitionis predicated on an understandingof how the tribe will define its membership. And as the DCCircuit, for example, held in Cherokee Nation versusNash very recently where– MERRICK GARLAND: That’sanother circuit that doesn’t get much sway up here. MICHELLE FRIEDLAND : Iwas going to interrupt. MELANIE FONTS: But toprovide an example, there, where the CherokeeNation attempted to disenroll the descendantsof former freedmen and former slaves,the Court struck down that membershipchange because it acted against an 1866 treaty. So we understand thatmembership is tied to the– MERRICK GARLAND:Can I get back to– I think it was theTenth Circuit, which we’re going to give some swayto, that you are talking about. But which unfortunately,I didn’t read the opinion. Because it’s acircuit and we only read our own opinions up here. Are you saying it held that youcan’t have automatic enrollment in the tribe? MELANIE FONTS: No, Your Honor. There the TenthCircuit took notice that the tribe hadchanged its enrollment criteria simply to avoidthe application of ICWA.So there becomes a question ofwhen the court will question. MERRICK GARLAND: Sowhat if the tribe had birthright citizenship? Right, you’re born ofa member of the tribe, you’re automaticallyin the tribe. Just like you’re born of anAmerican, you’re an American. Would that be OK or not OK,from your point of view? MELANIE FONTS: YourHonor, it depends. If that automaticenrollment process was part of the membershipcriteria submitted through the FederalAcknowledgment Act or however the tribe were recognized– MERRICK GARLAND: Yeah, I’minterested in the question whether you think that’sracial or not racial, whether it be subject tostrict scrutiny or not strict scrutiny? If a tribe just wantedto say, everybody born of a member of the tribeis a member of the tribe rather than having to enrollits children separately for some reason,would that child– it would be appropriate to treatthat child under ICWA the way the Caldwell’s fosterchild was treated here? MELANIE FONTS: Presumablyyes, Your Honor.However if that werethe case that we had tribes automaticallyenrolling their members, that would fundamentally changeour analysis under Mancari. Mancari is clear that whenlegislation applies only to members of federallyrecognized tribes it ought to be considereda political classification. MICHELLE FRIEDLAND : Butwe’re talking about babies. So I don’t know– I mean, what is thedifference between what ICWA actually does, at leastwith respect to children of and their relationship to atribe that one of their parents was a member of that theycould become a member of? If they’re just babiesand they haven’t yet had the opportunityto make a choice, why shouldn’t they be treatedas the birthright example? MELANIE FONTS: For tworeasons, Your Honor.Children, like anyother individual, retain the choice toenroll in an Indian tribe at any point in their lives. So ICWA does nothing toadvance or prevent that choice. However, even if we wereto take special solicitude of the fact– MICHELLE FRIEDLAND : But ICWAdoes advance that choice, doesn’t it? Because it makesit much more likely that they’re living withmembers of the tribe. If the tribe has a reservationthat they’re there perhaps, rather than with someone with noconnection to the tribe at all.Doesn’t that makeit much more likely that they’ll become amember of the tribe? MELANIE FONTS: Not necessarily,Your Honor, for the simple fact that the 1915 placementpreferences don’t set any procedural safeguardsfor that sort of choice, and even allow thechild to be transferred to another tribe to which theyhave no ancestral connection and to which, like CJthey may never be– AMUL THAPAR: Can I stopyou on the first half because I’m notsure I understand. Are you saying that if they areraised by members of the tribe, they’re not more likely toparticipate in the tribe? MELANIE FONTS: It may be thatthose particular children may be more likely tojoin the tribe. However, we’re– AMUL THAPAR: Sowhy wouldn’t that be an interest in whichthe government can promote? MELANIE FONTS: Because thelaw does not hew that closely. When we look atthe text of ICWA, it’s applying to a vast majorityof Indian children, that is enrolled tribalchildren and those who are eligible for tribal membership.And the proceduralsafeguards set forth in the placement preferences,for example, are thin. They do not guaranteethat the child will be placed witha family and thus enroll in that Indian tribe. Then this– MICHELLE FRIEDLAND : Butyou’re arguing that there shouldn’t even be an attempt. I mean, just becauseit’s not perfect or it doesn’talways guarantee it, does that meanCongress can’t try? MELANIE FONTS:Your Honor, insofar as ICWA is a racialclassification subject to strictscrutiny, Congress may not. And that– MICHELLE FRIEDLAND : SoI’m wondering whether it even is a compelling interest. I mean, the historyhere is terrible. The federal governmentran, I believe, 150 or more boarding schools andsent Native American children to them. And they were beaten if theyspoke their native languages. I mean, there wasa massive effort to assimilate these childrenso that tribes would be wiped out of existence. Why is it not acompelling interest to remedy that history? MELANIE FONTS: Your Honor,it’s not a compelling interest to remedy thathistory because that’s not the history thatCongress was responding to.As petitioners notein their own brief, that history withthe boarding schools ended well before considerationof ICWA before Congress. And so the state– MICHELLE FRIEDLAND : Butwasn’t it the beginning– I mean, maybe not the beginning. There’s a longhistory of problems. But it was a big chunkof a problem that led to tribes nothaving as many members, which then maybe gotcontinued by states. But that was a serious problemfor tribes having members. So I don’t understand how that’snot still part of the history that could be attemptedto be remedied.MELANIE FONTS:Your Honor, that’s because it falls outside thiscourt’s jurisprudence on what qualifies as acompelling state interest where we’re consideringpast discrimination. This court has consistently heldat [INAUDIBLE] that remedying discrimination without moreis not a compelling interest unless the federalgovernment shows that it was thegovernmental actor doing the discriminating– MERRICK GARLAND:I don’t think so. I think you’re misconstruing[INAUDIBLE] and [INAUDIBLE].. The issue in both of thosecases was whether the preference applied to the entitythat had committed the history of discrimination. It wasn’t a question of whetherthe federal government could apply the preferenceto that same entity. The federal governmentis not applying this preference to itselfbased on discrimination in the states. It is applying thepreference to the states based on discrimination by thestates, past discrimination. So I think we’re goingto have to strike out a new kind of case law hereto go where you’re going. Explain to me why[INAUDIBLE] and [INAUDIBLE] really match this question.MELANIE FONTS: Your Honor,those cases match this question because theyrecognize that there must be a strongbasis in the evidence to use remedyingpast discrimination as a compelling state interest. And that’s because,due to this country’s historical discriminationagainst racial minorities, we recognize that this idea ofremedying past discrimination is simply tooamorphous a concept to justifyconstitutional injury, not just on those classified bythe law, but by other actors– MICHELLE FRIEDLAND : So is thereanything that Congress could do to remedy these past injustices? MELANIE FONTS: Yes, Your Honor. Congress could pass a lawgranting tribal courts exclusive jurisdictionover adoption proceedings for tribal childrenliving on or near reservations. That would fall withinCongress’s power. [APPLAUSE] KELSEY FRAZIER:Mr. Chief Justice, and may it please the court. The second issue in thiscase is whether Congress can compel thestates to implement a federal regulatoryprogram on its behalf.Under the anti-commandeeringdoctrine the answer is no. ICWA is thus unconstitutionaland should be struck down. When the framersdrafted the Constitution they explicitly chose toestablish the federal and state governments as separatespheres of sovereignty, and to grant the federalgovernment the power to act on individuals, not on states. MICHELLE FRIEDLAND: So, I know one of your arguments is that familylaw is the realm of the states. But I believe yourcolleague just said that we could take anentire aspect of family law away and give it totribal governments. How is that not abigger imposition than what has been done here? KELSEY FRAZIER: Your Honor, ifthat transfer of jurisdiction were limited toindividuals who fall within the federal government’spower over Indian Affairs, whether that’s understood asbeing in the Indian Commerce Clause or an understandingof plenary power, a transfer of jurisdiction totribes might be permissible. One of the keyinfirmities with ICWA, however, is that it’snot limited to that group of individuals withinCongress’s power under the Indian Affairs power.That’s because, as you’vediscussed with my colleague, it regulates alsochildren who are not enrolled members of tribes. It also regulates the parents ofthose children who might not be Indian at all, as in this case. And even the adoptiveparents, whose rights– MERRICK GARLAND: Soyou’re challenging the other provisions ofICWA’s big violations of equal protection? KELSEY FRAZIER: Your Honor– MERRICK GARLAND: Sojust only an as applied challenge to the child inthis case and to the fact that this child in thiscase is not enrolled member? KELSEY FRAZIER: No, Your Honor.This is a facialchallenge to law because– MERRICK GARLAND: Howcan it be if you’re telling my colleaguethat if it were limited in certain ways, that is ifwe severed out the bad parts and saved the goodparts, it would be OK? KELSEY FRAZIER: YourHonor, for the purposes of the equalprotection challenge, the focus is on the definition. And as you’ve discussed,our primary issue with the definitionis the second part. That is the part that appliesnot to enroll tribal members, but to children who are eligibleto be members of tribes. That’s relevant to thecommandeering analysis in so far as inorder for this law to be a valid exercise ofCongress’s preemption power, it needs to be withinCongress’s power. And it’s our argumentthat it is not because it extends beyond that. But this law is also aconstitutional violation because it is not bestread as a law that regulates private actors. That’s the second partof the Murphy test, that is merely a restatement ofthe proposition that Congress cannot commandeer the states.And because ICWA– AMUL THAPAR: How are theycommandeering states? With specific provisionscommandeered the states? KELSEY FRAZIER: Your Honor, ourchallenge is focused on 1911, 1912, 1913, and 1915,which are essentially the provisions that requirestates to implement ICWA. So they’re the provisionsthat require state executive officers, namely employees ofthe Child Protective Services division, to say takeactive efforts to prevent the breakup of Indian families. They’re the provisionsthat change the procedures that state courts have to followwhen adjudicating state law. AMUL THAPAR: I’m notsure I follow why they don’t have the plenary power. Because they have plenarypower over Indian Affairs, why wouldn’t they beallowed to do this? In other words, they’re notcommandeering in the same way as Prince or Murphy. They’re not doing anything tothe executive or legislature, per se. KELSEY FRAZIER:Well, Your Honor, we believe this is notwithin the Indian Affairs power for two reasons. One reason is thatthis regulates too broad a groupof individuals, as we’ve just discussed. The other reason isthat even if this were a law limited to thatgroup of individuals, that is, tribal members, theplenary power is not absolute as this court has heldsince at least Creek Nation and [INAUDIBLE].And most relevant, this courtheld in Seminole Tribe v Florida that theIndian Affairs power, even if understoodto be plenary, is limited by the provisionsof the Constitution. They are the relevant provisionwas the 11th Amendment. The court held thatCongress did not have the ability underthe Indian Affairs power to abrogate state sovereignimmunity in violation of the 11th Amendment. Here, theanti-commandeering doctrine provides the limitation. And so even if this isregulating the right group of individualsbecause it requires the states to implementit, this is a violation of the Constitution. MERRICK GARLAND: Let’sseparate out the executive from the courts for a moment. With respect to thecourts, doesn’t it just require the courtsto enforce federal law? KELSEY FRAZIER: Itdoes not, Your Honor, at least not in a way thatthis court has upheld before. This court hassaid that Congress can issue some directionto the state courts. That is, Congress canrequire state courts to hear federalcauses of action, at least when thestate courts would hear them if thosesame causes of action arose under state law.That’s the Testa line of cases. And that’s what the courtsin New York and Prince are citing when theysuggest that there might be an exception to theanti-commandeering doctrine for courts. But what ICWA does is different. ICWA does not create afederal cause of action. Indeed, the text of ICWAitself says repeatedly that these are proceedingsunder state law. Instead, ICWA ischanging the procedures by which state judges– MERRICK GARLAND: So if wethink of what’s happening here as conferring a right onthe child and the tribe to not have the childremoved outside of the tribe. And what Congress is sayingis that the state court has to enforce that right.You’re saying that violatesanti-commandeering. KELSEY FRAZIER: Weare, Your Honor. MERRICK GARLAND: So what ifCongress passed a statute that said state courts cannotdiscriminate against African-American children. And we’re not givinga cause of action, just saying theycan’t discriminate. And if they do, thenthey’re acting in violation of the Supremacy Clause. We’re preempting anycontrary state statute. Why is this any different? KELSEY FRAZIER: Well, YourHonor, because in that case, as you said, there is arelevant cost of action. Congress has provided asubstantive right, as you say, that is not to be discriminatedagainst on the basis of your race. And then it has provided acause of action for someone to seek enforcementof that right if that right has been violated. The relevant differencehere is that ICWA doesn’t provide the cause of action. And instead, it sits ontop of existing state law causes of action, andit tells state judges how to decide those cases.MERRICK GARLAND: Well, becausewouldn’t the other statute tell state judges theycan’t discriminate in their decision makingagainst African-Americans? That’s what the statute says. State judges maynot discriminate in their decision makingagainst African-Americans. And if they do, thenjust as in this case, the intervener, thetribe, can object that’s what’s happened here. KELSEY FRAZIER: Yes, Your Honor. It’s my understandingthough that that statute would essentiallybe a restatement of a constitutional principle. And the procedures that arebeing followed in these cases are otherwiseconstitutionally sufficient. MERRICK GARLAND: Nowwe’re slipping back to the question of whetherthere’s plenary power. For purposes of this hypo, we’llassume there’s plenary power, you offered that up. So if there isplenary power, now we get to the next question. And Congress has thepower to act with respect to this kind ofmember of a tribe, or possible member of a tribe.Aren’t those twoseparate questions, whether Congress has the power? I appreciate that in myexample maybe the power comes from the 14th Amendment. But if the power comesfrom the Indian Commerce Clause for purposes of thehypo, why is it any different? KELSEY FRAZIER:Well, Your Honor, this court has treated statutespassed under the 14th Amendment differently from statutespassed under the, if you will, original provisionsof the Constitution. Because the 14th Amendmenthas been understood to change the federal statebalance and, in some cases, to allow laws thatwould otherwise be considered commandeering. The example, you provide,I believe is quite similar to the Multi-ethnicPlacement Act, which is an act Congresspassed that said courts should not consider a race of– I believe it’s theparents in that act in adoption proceedings. But that’s actually aconditional funding scheme, which recognizes thatCongress apparently thought it did not have thepower to pass that statute. MICHELLE FRIEDLAND :But isn’t ICWA also? There is funding inthe Social Security Act that contingent on statesfollowing ICWA, isn’t there? KELSEY FRAZIER: There is,Your Honor, in title 4B.But ICWA is not aconditional funding scheme. ICWA is a law that bindsthe states regardless of whether or not they’rereceiving funding. The Social Security Act providesadditional funding to states if they comply with ICWA. But if states were toforgo that funding, they’re still bound byICWA’s requirements. MICHELLE FRIEDLAND : Butdid Ames forgo that funding? KELSEY FRAZIER:Your Honor, I don’t believe we have in therecord whether Ames has forgone that funding. But I don’t believethe answer to that question is dispositive here. Ames is still bound by ICWAand, as far as we know, has complied with ICWA, orat least try to comply with. Certainly in this case they did. The difference betweena conditional funding scheme and ICWA, alaw that’s binding, is that the statehas the choice not to regulate in the waythe federal government has asked it to regulate. That is, in a conditionalfunding scheme, the state can chooseto regulate according to the federalgovernment’s preferences. But it doesn’t have to.And that means that thestate remains politically accountable to its citizens. If the citizens don’t likethat the state is or is not complying, they can seek toelect different officials who will or will not comply. They can’t do that here. Ames has no control over whetheror not it complies with ICWA. MERRICK GARLAND:I’m still thinking on this question of whyit matters that it’s a federal cause of action, ascompared to a federal defense, or a right that can beasserted by intervention. So imagine that astate wants to hold– not California. If a state wants to hold automanufacturers to a higher standard than thefederal standard, the federal standard preemptingthat higher standard. And then the state says,well, we don’t care.You can’t stop us, you didn’tcreate a cause of action. We are going to prosecute thisauto manufacturer in this state for not meeting thehigher standard. And at that point,not as a cause of action but as a defense,the manufacturer says, well, you can’t do that. Your statute is preempted. Only in that respect, you canhave all kinds of procedures you want about enforcingpollution controls, but you can’t have that one. First of all, do you thinkthat would be commandeering? KELSEY FRAZIER: I don’t,Your Honor, assuming that the federalgovernment properly had the power to regulate there. MERRICK GARLAND:Right, so assume here that the federalgovernment has that power. Because I want to hone youin only on the commandeering question. Why is that different? KELSEY FRAZIER:Well, Your Honor, it’s my understandingthat in that case the reason the federal statutegoverns and does not commandeer is that there essentiallyis no state cause of action because the federallaw has replaced it.And the federal law,which acts directly upon the automanufacturers presumably, is not commandeering. It’s not tellingthe state courts how to decide their cases. Instead, it’s just sayingthe federal government has determined that our lawsgoverning these actions. And so there is nostate cause of action. MERRICK GARLAND: Why isn’tthe federal government replaced the normal preferencesof the state of Ames family law? It’s just replaced them. KELSEY FRAZIER: Your Honor,the federal government here is replacing the way thatthe state judges decide how to place children, certainly. But the proceeding itselfis under state law. Again, ICWA itselftells us this. The federal governmenthas not created a federal cause of action. And indeed, itprobably could not because as we began ourdiscussion by saying, family law is typically withinthe nearly exclusive province of the states. This court hasrecognized a principle, that the federal law takes thestate courts as it finds them.AMUL THAPAR: So are you sayingthey can never get involved with American Indian children? KELSEY FRAZIER: The federalgovernment, Your Honor? AMUL THAPAR: Yes, and any typeof preferences related to them. KELSEY FRAZIER: YourHonor we believe that the federal law couldask the states to apply these similarpreferences through, for example, a conditionalfunding scheme. And we believe– AMUL THAPAR: But they can’tthrough their plenary power, is your point. KELSEY FRAZIER: Theycould regulate, perhaps, family law throughtheir plenary powers, though this court has neversaid that the Indian Affairs power extends, or thatthe Indian Commerce Clause power extends to family law. AMUL THAPAR: What if a state– I’m sorry to interrupt you. What if a state used exclusivelyprivate adoption services? KELSEY FRAZIER: Your Honor, thatwould be a much more difficult question, admittedly,because then we would be asking essentiallya question about how this law is best read.First of all, that’snot the situation here. Adoption is typicallydone by the states. But under this hypothetical,it might be the case that a law could be best read asregulating private actors if we knew that a significantpercentage of adoptions were performed by privateactors in the states. We might also lookat the activity itself and ask whether that’ssomething that the states have traditionally done. Indeed, that was alittle bit closer to the inquiry in theReno and Baker cases, the cases that found the lawsto be generally applicable.Those cases were concerned notso much with the percentage breakdown of who wasperforming activities, but with what the activitywas and how the states were being regulated. So in the Reno case forexample, the government upheld this lawgoverning how states treat private informationcollected from drivers. Because it was alaw that regulated states acting essentiallylike private entities. And specificallybecause it was not a law that regulated how statesregulate private individuals, or that it requiredstates to implement a federal regulatory program. ICWA is all about how statesregulate private individuals. MICHELLE FRIEDLAND : I’d liketo go back to your answer. I think you saidthis could be done through conditionalspending legislation. But I’m confused, wouldn’tyou say there’d still be an equal protection problem? AL KELLEY: We would, Your Honor. I amend my statement,that was just with regard to theanti-commandeering concern. We believe that theanti-commandeering concern would be remedied if thiswere a conditional spending program, again, because then thestate maintains the decision of whether or not itwishes to comply and thus remainremains politically accountable to its citizens.MICHELLE FRIEDLAND : So sorry,going back to this hypothetical where a state has justprivate adoption agencies. KELSEY FRAZIER: Yes. MICHELLE FRIEDLAND : Ihave trouble seeing how you have a commandeering problem. I know you’ll say somethingabout maybe the state courts that the adoption agencieswould need to go through. But I have troubleseeing how there aren’t all kinds of federal lawsthat state courts have to apply and that have that– it’s a much harderpart of your argument. KELSEY FRAZIER: YourHonor, that certainly would be a much harder case ifprivate adoption agencies were doing all of the work.The only way that would looklike a commandeering problem is if we think about theactivity being regulated, and whether that’ssomething that is typically left to the states,and the states are choosing toessentially contract out. But that raises questionsabout state delegation to private entities thataren’t at issue here. Here, states are primarilyperforming the functions that ICWA regulates.That is true of adoption,but many of the functions that ICWA regulates are actuallythings only states can perform. For example, all of thestate court proceedings. None of that could bedone by private actor. And even some of the provisionsthat impose obligations on the state executiveagencies appear that they might be right toapply to private actors too. But really applyprimarily to state actors.For example, 1912D, which is theactive efforts provision, which is one that is mostcommandeering insofar as it requires child protectiveservices officers to take active efforts, whichare affirmative efforts to– MICHELLE FRIEDLAND : Thatprovision wasn’t implicated in this case at all, was it? I’m a little unclear how youcan challenge that provision. KELSEY FRAZIER: It wasn’timplicated in this case under the facts of this case,but it should have been. Because CJ Is an Indianchild within the definition of ICWA and CJ was removedfrom his biological mother, AW’s home. Now, because thestate did not know that CJ was an Indianchild, it did not have it did not comply with 1912D. But had it known,the state would have had to take active efforts,those are affirmative actions, to prevent thebreakup of the family before it could removeCJ from his home. Again, it didn’t hearbecause it wasn’t aware, which simply highlights thatthis provision is applying even to children who do not havean existing tribal connection, and who are not eligiblemembers, or the children of eligible members.For the foregoingreasons we respectfully request this court affirm. [APPLAUSE] AL KELLEY: Mr. Chief Justice,a few brief points in response. First, on the EqualProtection issue, respondents proposed heretoday several limitations that this court should place onthe application of the Mancari Rational Relationship Test. But none of theselimitations follow from this court’sopinion in Mancari or any of its subsequentapplications of that test. First, respondentsargued that there should be a limitation basedon whether a statute deals with tribal self-government. But as this court madeclear in Antelope, tribal self-governmentis only one way for a statute to be rationallytied to Congress’s fulfillment of its trust obligations. And subsequent cases like theWashington commercial passenger fishing vessel caseonly dealt with statutes that had, if any connectionto tribal self-government, a very tenuous one there.It was a grant offishing rights. And so this isn’t a limitationthat this court has recognized previously on the Mancari Test. But even if it was,ICWA satisfies this test because it clearly servestribal self-government by giving tribes the rightto intervene in proceedings and by indeedensuring that tribes have the membership to continueas self-governing entities. And respondents also argued thatMancari should be limited only to enrolled members. MERRICK GARLAND: Can I ask howsending an Indian child who is eligible for onetribe to another tribe across the country maintainstribal self-government with the first tribe? AL KELLEY: Well, YourHonor, it maintains tribal self-governmentbecause it ensures that those childrengrow up in Indian culture and therefore are more likelyto form a political relationship with their tribe, theirown tribe later on, having grown upin a society that has respect for thatkind of political bond. Now, turning to theanti-commandeering issue, respondents argue that ICWAcommandeers state courts. But requiring state judgesto apply different burdens and standards hasnever been understood to implicate theanti-commandeering doctrine.It’s a straightforwardapplication of the supremacy clause. AMUL THAPAR: What about theactive efforts provision? That’s the one theymainly object to. AL KELLEY: So theactive efforts provision is of general application. Section 1912Dapplies to any party who seeks to affect the fosterplacement of an Indian child or a removal of thatchild from their parents. And thus it’s close to what thiscourt faced in Reno v Condon. And it similarly is a grantof a right to those children to only be removed from theirhomes and to the parents to only have theirchildren removed when active efforts have been made.So it’s a condition and alimitation on state action rather than anaffirmative order. It only comes into play whenthe state decides to remove a child from their home. So what respondentsare asking for here is not an application of theanti-commandeering doctrine but an extension of it farbeyond what this court has recognized in its past cases. For those reasons we ask thatthis court reverse, thank you. [APPLAUSE] MERRICK GARLAND:No surprise, we’ll be taking this matterunder submission.And if you’ll give us recess. SPEAKER 1: All rise. [APPLAUSE] Round of applause. All rise. Please be seated. MERRICK GARLAND:And come to order. OK, in the matter of theAmes Moot Court final round, the decision of thejudges is as follows. Best briefs, the petitioners. You can applaud. [APPLAUSE] Best oralist, respondentKelsey Frazier. [APPLAUSE] Best team, respondents. [APPLAUSE] Now, does the Dean wantus to do something else? You don’t know, OK. SPEAKER 1: You know what to do. MERRICK GARLAND: Well,there was some reference to a brief discussionabout oral argument. Is that correct? Oh, you have something to say. MICHELLE FRIEDLAND: So should we not make comments about them? SPEAKER 1: So yeah, makesome brief comments here to the oralists.And then we willrecess here and then do private commentary later. MICHELLE FRIEDLAND : OK,so I thought all of you were tremendously excellent. I wish that I had advocateslike you in court all the time. I occasionally have peoplealmost as good as you guys, but not usually. And it was really wonderfulto watch all of you and to be able to be hereand to be a part of this. You did extraordinarily well. I think you all had theidea that you were really answering questions,you were really listening to our questions.You stayed very calm. You were really just excellent. Should we save individualremarks for later? OK. I will make a pitch though,since I have this opportunity to tell you that, in theNinth Circuit, if you take up a pro bono case you areguaranteed an oral argument. I hope that I willsee all of you in my court in the near future. AMUL THAPAR: We try to dothe same in the Sixth, so. MERRICK GARLAND: Allright, we’ll do the same. But only to the people in thisroom, don’t tell anybody else. AMUL THAPAR: That’sa pro-Harvard bias. MERRICK GARLAND: Good point. Yeah, it requiresstrict scrutiny, though. There’s compelling interest. I second everything thatJudge Friedland said. I thought this wasreally terrific, both the briefs and the oralarguments were quite amazing and up to the highestprofessional standards that we see.And I’ll just say,just a tiny addition to what Judge Friedlandsaid about the nature of the discussion. So for me, the thingabout oral argument is it should be adiscussion with the judge. It should not be, I’vegot these 25 points and I have to get them–get through them, regardless of whether those are thequestions the judges are asking or not. And all of you didthis extremely well. That is, when weasked a question, you diverged fromwhatever else you thought your business was going to be.And you answered the question. And then we could move on. Questions are not to be feared. The whole point inoral argument is you want to know what isbothering the judge so you can fix that problem. We gave you the Supreme Court’snew innovation a little bit, which is that you get acouple of minutes, two minutes at the very beginning. But very few courts give youthat two minutes anymore. And I’ll be very surprisedif the Supreme Court doesn’t deteriorate with respectto those two minutes and people start askingquestions before. And you should want that,you should want to know– not from court purposes,but from the point of view of being an advocate, you wantto know, what is your weakness, and can I explain it? And you all did that,I thought it was great.AMUL THAPAR: Yeah, Ithought it was exceptional. I agree with everythingthey both said. The one thing I’ll say forpeople that have never done it, it’s incrediblyhard to stand there, I think almostuniversally without notes or without looking down. Look us in the eye,answer the questions. We’ll come up with questionsthat are sometimes crazy, or try to throw you off orturn you a different way, and all four of you did anexceptional job of just staying the course, answering thequestions, making sure you answered the question. And then weavingit, like, seamlessly back into your argument. Right into the case law,right into everything. Even if we askedyou a completely off the wall question, you’dmake it sound reasonable and weave it rightback in, which is really a masterfulskill, and something I commend you all for. And I hope you will cometo the Sixth Circuit first, because it’s closer. SPEAKER 1: And if we couldgive one more round of applause for our competitorsand our judges.[APPLAUSE] If everyone would rise.