LEWIS MURRAY: Good evening,
good evening, good evening. My name is Lewis Murray, and
I'm the Vise President of Ames. Welcome to the Ames
Moot Court final round. [CROWD CHEERS] Presiding over this
year's competition are the Honorable
Merrick Garland, Chief Judge, United
States Court of Appeals District of Columbia circuit. The Honorable Michelle Friedland
of the United States Court of Appeals for
the Ninth Circuit. And the Honorable Amul Thapar
of the United States Court of Appeals for
the Sixth Circuit. This evening's case was
written by Elizabeth Prelogar and Tajinder Singh. Today's case poses
two key questions. One. Whether the Indian
Child Welfare Act and the final rule
implementing the statute violate equal protection? Two. Whether the Indian
Child Welfare Act and the final rule
implementing the statute violate the
anti-commandeering component of the Tenth Amendment? Representing the petitioner, the
Janet Wood Reno Memorial Team, Kevin Chen. McKayla Gilbert-Lurie, oralist. Eliza Green, Casey
Jaskie, Al Kelley, oralist, and Carolyn Lee. Representing the respondent. The Patricia Roberts
Harris Memorial Team, Alicia Alvaro-Kosky, Charlotte
Utash, Melanie Faunts, oralist. Kelsey Frazier, oralist. Hilary Hurd, and Kate Piefer. Please silence all phones
and electronic devices. And please, no photos
during the competition. Finally, please
refrain from leaving the courtroom during arguments. Thank you so much
for your attendance, and enjoy the competition. [APPLAUSE] SPEAKER 1: All rise. The Honorable,
the Chief Justice, and the Associate
Justices of the Supreme Court of the United States. Oh yay, yay, yay. All persons having business
before the Honorable, the Supreme Court
of the United States are admonished to draw near
and 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 United
States 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 McKayla
Gilbert-Lurie, and I, along with my
co-counsel Mr. Al Kelly, represent the United States
Department of the Interior. I will be addressing the
equal protection issue, and Mr. Kelly will be addressing
the anti-commandeering issue. We would like to reserve
three minutes for rebuttal. The federal government's
relationship with Indian tribes is premised on an understanding
enshrined in the Constitution that Indian tribes
constitute a political class. This understanding
serves as the principle underlying all
federal legislation governing Indian Affairs. At issue today is one
such piece of legislation. The Indian Child
Welfare Act, or ICWA. This Court reviews
legislation, like ICWA, that is directed at
those who are politically affiliated with federally
recognized tribes under the standard established
in Morton V Mancari. The Mancari test
upholds such legislation as long as it can
be tied rationally to Congress's unique
obligation toward Indians. ICWA satisfies the Mancari test. It is directed only at
those who are politically affiliated with federally
recognized tribes, and is-- AMUL THAPAR: Can you-- I'm sorry to interrupt
you-- but can you explain to us what they
mean by political in that case? MCKAYLA GILBERT-LURIE:
Absolutely, Justice Thapar. So a political affiliation with
a federally recognized tribe is what this Court
has always understood, and what is enshrined
in the Constitution, as a relationship with
a political entity that has a sovereign to
sovereign relationship with the federal government, and
Indian tribes-- at least those which are federally recognized
by the United States government-- do
have the sovereign to sovereign relationship. And ICWA contains two
definitions of an Indian child. There are two ways that a child
can qualify as an Indian child for the purposes of ICWA. First, a child can
qualify as an Indian child by being an enrolled member of
a federally recognized tribe. And this definition
falls squarely within the Mancari
definition, and respondents don't contest that this
definition of Indian child falls-- AMUL THAPAR: The problem
is right-- the second part. That's where they take issue? MCKAYLA GILBERT-LURIE:
Yes, Justice Thapar. If there is a problem, it would
be with the second definition. And the second definition
allows children, who are the biological children
of enrolled tribe members, who are themselves eligible
for tribal enrollment, to be covered by ICWA. But this definition
does not change the fact that Mancari is the
appropriate standard under which to review ICWA. MICHELLE FRIEDLAND: But
this child in this case was not a member of the
tribe, and hadn't even had contact with the parent
who was a member of a tribe. So how is that a political
connection instead of a blood connection at that point? The only connection is through
the blood of the father. Right? MCKAYLA GILBERT-LURIE:
Well, respectfully, Justice Friedland,
we would disagree with that characterization. CJ, in this case, has
a political affiliation with the [INAUDIBLE] nation. And that's because CJ is the
child of an enrolled member of [INAUDIBLE] nation. And it's useful to
think about membership in a federally recognized tribe
as analogous to citizenship. And in much the same way that
the United States government grants to grant citizenship to
the children of United States citizens who are born abroad,
federally recognized tribes impute onto the children
of their members, a political affiliation
with that tribe. And it's that
political affiliation. AMUL THAPAR: So how-- I'm sorry. MICHELLE FRIEDLAND: I was
just going to ask, how do you get to another tribe? Because it was actually
a different tribe that expressed an
interest in this child. And I have an easier time
seeing what the rationale could be for helping the child become
a member of his or her parent's tribe, rather than
some other tribe. MCKAYLA GILBERT-LURIE:
Certainly. So the fact that
ICWA allows children to be placed with
members of another tribe speaks to Congress's
concern when they were passing ICWA
in 1978, that children were being removed not only
from their tribes and families, but from Indian
culture more generally. And it was this concern that-- MERRICK GARLAND: So
how is that, though, political rather than racial? That is, if the child has no
connection to the other tribe. I understand the argument
you'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 correct
the devastating consequences, and the psychological
harm to children-- MERRICK GARLAND: Is
the United States' relationship with Indian tribes
individually or with anyone who is an Indian? That is the political
relationship. MCKAYLA GILBERT-LURIE:
Well, Your Honor, it's a political
affiliation with both tribes and with children-- or rather--
with members of tribes, so it's both an individual
and a collective political affiliation. But it's not a
political affiliation with all who identify
as Indian, and that's because membership in a
federally recognized tribe is distinct from identifying as
an Indian or a Native American. The two don't map
on to one another. There are 5.2 million people
in this country, at least according to the
most recent census, that identify as American
Indian or Alaskan Native. MICHELLE FRIEDLAND: But they're
not all of the same culture, are they? So you were just
starting to talk about the legislative
history, and you talk about in your brief as
well that Congress was trying to remedy
the harms of removing Indian children from
quote "Indian society", but is there any such
thing as Indian society? Or is that just a stereotype? It seems like there are
many different tribes with many different cultures. MCKAYLA GILBERT-LURIE:
Justice Friedland, it's true. Tribes do have
individual cultures, and they are distinct
political entities. But we would suggest
that this Court look to the amicus brief filed
just this year, in the Fifth Circuit the 325 tribes-- federally recognized tribes--
who filed an amicus brief in Bracheen v Burnhardt, who
all evinced their understanding that ICWA does serve to protect
Indian children and tribes, even with this third
placement, that allows children to
be placed in a tribe, even if it's not the
tribe they were born into. And that's because this third
preference allows for children to be placed with other Indian
families, if, for example-- AMUL THAPAR: Doesn't that-- Doesn't that change
you when you add in the third
preference, any tribe, aren't you eviscerating
the political distinction and really making it
a racial distinction? MCKAYLA GILBERT-LURIE: I don't
think so, Justice Thapar. And that's because
these children only have a political affiliation
with Indian culture at all because they are the
children of members of tribes. And those members have
a political affiliation with the tribe. And this Court has always
understood this relationship to be a political one. And starting with Mancari, and
all the way through until 2005, with Rice, this Court
has always understood that to be a fundamentally
political class indication. AMUL THAPAR: So can the tribes
define who their members are any way they want? MCKAYLA GILBERT-LURIE:
Yes, Justice Thapar. This Court-- AMUL THAPAR: So
what if they were like racially discriminatory
in defining the definition of the tribal members. Saying anyone with even one
drop of Asian, or Black blood, can't be a member. Then, would you still say it
was political in nature, and OK? MCKAYLA GILBERT-LURIE: Well, two
points on that, Justice Thapar. First, yes, tribes, according
to this Court in Santa Clara Pueblo v Martinez,
are authorized to have complete authority to
define their own membership. But the second point is
that Congress need not recognize all of these tribes. So if a tribe did define its
membership in a way that was anathema to Congress's
understanding of what a tribe should be-- or at least
what the government should recognize as a tribe-- AMUL THAPAR: But if
Congress recognized them, you'd say that then,
we would have to allow racially discriminatory tribes? MCKAYLA GILBERT-LURIE:
No, Your Honor, that would present a
much closer question, and would be the kind
of classification that this Court might review
under strict scrutiny. But that's not the case
we have before us today. AMUL THAPAR: So I'm sorry
to take you on this tangent. But explain why then it
would be strict scrutiny, and a nonpolitical
classification? We can look at-- is what you're
saying, we can look at how tribes
define their members to decide if it's a political
classification or a racial one? MCKAYLA GILBERT-LURIE:
Yes, Justice Thapar, if a tribe did define its
membership in a racial way, then that could be the
kind of classification-- even though it would be a
political classification-- if it had a racial
element as well, it would be a much closer
question of the kind that this Court would review
under strict scrutiny. MICHELLE FRIEDLAND:
But don't many tribes have some blood requirements? So they do have a racial
part of the definition of their tribal membership? MCKAYLA GILBERT-LURIE: Justice
Friedland, many tribes have a blood quantum requirement. And the two tribes at issue
today, the [INAUDIBLE]---- MERRICK GARLAND:
It seems for that, we need Elizabeth Holmes, rather
than Oliver Wendell Holmes. What do you mean
by a blood quantum? And what is the test that
[INAUDIBLE] developed for this? MCKAYLA GILBERT-LURIE:
Mr Chief Justice, we would not need to
use-- and thankfully, we would not need to
use-- any sort of-- [INTERPOSING VOICES] MCKAYLA GILBERT-LURIE: --here. And that's because
blood quantum doesn't refer to any sort of DNA test,
or any sort of blood test at all. It merely refers to the
number of generations removed that an individual is from
someone whose name is listed on an original tribal roll. It has no blood
requirement, even though it might sound like a
signifier of race, this Court has always
understood blood quantum. MERRICK GARLAND: So
even if you're right, that it's political,
and we apply Mancari, it still has to be rational. So what's rational about
sending a child, who lives in Ames, for example,
to Washington state, to a tribe of which
the child could never be a member, over
someone closer, someone who has more
relationships with the tribe. How is this rational? Even if we agree that
rational basis is the test. MCKAYLA GILBERT-LURIE:
Well, Your Honor, in creating federal
minimum standards for the removal of Indian
children from their families, ICWA ensures that children
do remain enmeshed in their tribal culture. MERRICK GARLAND: It's
a different truck. The hypothesis is it's
not their tribal culture. It's a completely different
tribe across the country, and they cannot ever become
a 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, the
child would still have a political
connection to that tribe. MERRICK GARLAND: I get
the political point. Now, I'm moving on to
how is it rational. MCKAYLA GILBERT-LURIE:
Well, Your Honor. MERRICK GARLAND: Political just
gets you to what the test is. Right? Now we have to see whether
this is a reasonable thing for Congress to have done. MCKAYLA GILBERT-LURIE:
It's rational. And, so far, is that
it allows for children to be protected in their-- [COLLECTIVE GASP] MERRICK GARLAND: I
withdraw the question. [CROWD CHEERS] MCKAYLA GILBERT-LURIE: What? Yes. [INTERPOSING VOICES] [APPLAUSE] MERRICK GARLAND: Would
you 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 to
give her her time back. MCKAYLA GILBERT-LURIE:
It was a ploy. Would you mind repeating
the question, Your Honor? AMUL THAPAR: I don't know
if we want him to ask. [CROWD CHEERS] MERRICK GARLAND: I think you've
already answered it perfectly. MICHELLE FRIEDLAND:
So maybe, I can ask a version of
the question, which is how is it rational to send
a child to a different tribe? So one that neither parent
had a relationship with, even if we consider it a
political type of relationship, why would there be a
rationality in sending a child to a different tribe? MCKAYLA GILBERT-LURIE:
Certainly. So a child who has a political
connection with one tribe, and would necessarily be a
part of this larger culture that this Court in
Mancari, and in Holyfield subsequently understood
was one of the reasons that ICWA was passed. In Holyfield, this
Court made clear that Congress sought, in part,
to allow for children to remain a part of their tribal culture. And, in so
understanding, this Court has acknowledged what
Congress made clear in its 1978 report accompanying
the passage of ICWA, which is that children suffer
psychological harm when they are removed not only
from their own tribe, but from Indian
culture more generally. And while respondents
might take-- [INTERPOSING VOICES] AMUL THAPAR: But wouldn't
they suffer the same way being moved across the
country, versus right next to their tribe
in a familiar area? And especially, if they had
never been a part of the tribe? MCKAYLA GILBERT-LURIE:
Perhaps, Justice Thapar, but Congress
determined that it was in the Indian
child's best interest to remain in the
Tribal Community. AMUL THAPAR: Do we have
to defer to that finding? MCKAYLA GILBERT-LURIE:
No, Justice Thapar. So this Court made clear in
the United States versus Sioux Nation that this Court need
not take Congress at its word that its legislation serves
the best interests of tribes, or advances their interests. However, this Court can
look to external evidence to confirm that
this does, in fact, serve Congress's interests. Or rather, that this doesn't
serve tribes interests. And one example of this
is as recently as 2016, the Bureau of Indian
Affairs promulgated a rule that implemented it. Where that's the final
rule, and in that rule, it evinced the intent of at
least the leading government agency with respect to Indian
Affairs, that ICWA does, in fact, serve the purpose
that it was intended to serve. And that Congress was correct
that these three preferences are rationally tied-- MICHELLE FRIEDLAND: So the
State Family Court, though, thought that this
child's best interest was to stay with the Caldwell's. Right? MCKAYLA GILBERT-LURIE: Not
exactly, Justice Friedland. So the Family
Court, in this case, denied the Caldwell's adoption
petition in order to-- MICHELLE FRIEDLAND: But in
order to comply with ICWA. Right? I thought the premise was that
otherwise, they would have-- the Court would have given
the child to the Caldwell's? MCKAYLA GILBERT-LURIE:
It's not clear, Your Honor. And I want to hew closely
to the record on this issue, but it's not clear
that the Family Court did determine that. Instead, they determined
that the Caldwell's were not, in any way, not
fit to be parents. But the-- MERRICK GARLAND: I
thought it was a burden of proof question, a burden-- MCKAYLA GILBERT-LURIE:
Well, certainly. MERRICK GARLAND: It didn't
satisfy the burden of proof. MCKAYLA GILBERT-LURIE: Exactly. Mr. Chief Justice. What the Family
Court did determine was that the Caldwell's
did not present clear and compelling evidence-- that the Caldwell's submitted
sufficient justification to deviate for a good cause. And so it's not clear
that they thought the Caldwell's were, in fact,
the appropriate parents. But rather that
following ICWA's dictates was more appropriate
in this case, which-- MICHELLE FRIEDLAND: So if
the Family Court had said, the best interests
of the child was to stay with the
Caldwell's, do you think that that would have
necessarily been erroneous? Is your argument that it's
actually in the child's best interest to be with a tribe? An argument that would
say, really, a Court couldn't reasonably find that? MCKAYLA GILBERT-LURIE:
No, Justice Friedland. So this is where the
good cause exception is particularly important. And it ensures that
ICWA is really as narrow as it can be in providing
protection to Indian children, parents, and tribes. And the good cause
provision allows for Courts to deviate from ICWA's
provisions for good cause. And the Bureau of Indian
Affairs, in its recent rule promulgated for
nonexhaustive factors that Courts are
authorized to consider in determining good cause. So if the lower
court had, in fact, determined that there
was 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 they
can't be a member of? Or anything like That MCKAYLA GILBERT-LURIE:
Well, Chief Justice Garland, that's not one of
the four factors that is explicitly listed. Those four factors include the
opinion of a biological parent, the opinion of the child, if
he or she is of sufficient age and capacity to have her
opinion taken into account, the extreme emotional, physical,
or mental needs of the child, or the presence of
a sibling attachment that can only be maintained
through a certain placement. But the factors
are nonexhaustive. So that's not to say that
physical distance couldn't create a mental
need for the child to stay with a given family. It's just the-- MICHELLE FRIEDLAND: I noticed
that the regulations say that attachment that flowed from
time spent with a non preferred placement cannot be considered. Was this a
nonpreferred placement? Did this placement violate ICWA? MCKAYLA GILBERT-LURIE:
Yes, Justice Friedland. This was a
nonpreferred placement. MICHELLE FRIEDLAND: Meaning
even the foster care. So there was
essentially a mistake in putting this child with the
Caldwell's in the first place? MCKAYLA GILBERT-LURIE:
Exactly, Justice Friedland. There was a mistake because
the Child and Family Services was not aware that CJ had
a tribal affiliation-- or the political
relationship with the tribe-- until the Caldwell's
petition to adopt, and the Court became
aware of CJ's status. And this Court has
never before held that a statute that
classifies based on political affiliation with
a federally recognized tribe violates equal protection. And it should not do so
for the first time today. For the foregoing
reasons, we respectfully ask that this Court reverse. Thank you. MERRICK GARLAND: Good rebbutal. [CROWD CHEERS] All right, we're going
to be easier on you. AL KELLEY: Thank you. Mr. Chief Justice, and
may it please the Court. The anti-commandeering
doctrine stands for the fundamental
notion that Congress must direct legislation
at private actors, rather than at states. ICWA does not violate
this clear rule. The Act confers rights on
individuals and tribes involved in child welfare proceedings. Accordingly, under
the Supremacy Clause, states must respect
these rights. And insofar as
ICWA's provisioned of rights affects
state actors, it does so as a statute
of general application, not as a law directed
at the states. The parties here agree that
the appropriate framework under which to analyze this
anti-commandeering challenge comes from this Court's
opinion last year in Murphy. In Murphy, the Court
laid out a two part test to determine whether
a statute constitutes impermissible commandeering
of the state's, or valid preemption
of state law. First, the Court looks to
whether a statute represents the valid exercise of one of
Congress's enumerated powers. And then the Court asks whether
that statute is best read as regulating private actors. ICWA satisfies both
prongs of this test. MICHELLE FRIEDLAND: On your
private actors argument. So are you arguing that ICWA
regulates private actors at the sense of
the families whose relationships are affected? Or is your argument that
there are private adoption agencies who are regulated? AL KELLEY: Both, Your Honor. So ICWA is best referred as
regulating private actors for two primary reasons. The first is that it
serves to confer rights on private actors, Indian
children, parents, and tribes involved in these proceedings. And the second is
that the statute is of general application. So it applies with
equal force to both public and private actors. So states involved in
these proceedings, as well as individuals, such as the
Caldwell's, and perhaps, private adoption or foster. AMUL THAPAR: What about
when it requires states to keep records and the like? Isn't it requiring states
to affirmatively do certain things? AL KELLEY: So the record
keeping requirement is best read as securing
one of the rights that ICWA confers
on private actors. And that's the right
conferred in Section 1917, for an adopted
Indian child to learn of their tribal affiliation
through Court records. And the only way for
this right to be secured is by requiring that
state courts maintain records in Section 1951. So that's still best read as
regulating private actors, because it serves
to confer a right. And ICWA provides a
number of other rights to tribes, in the
form of the ability to intervene in
proceedings, and parents, and all of these
provisions are best read as regulating
private actors, not as directing the states. MERRICK GARLAND: I'm puzzled
by one aspect of your brief where you appear to
insist that the placement preferences are procedural
rather than substantive. I have two questions. One, why is that so? And two, why does that help you? AL KELLEY: So taking
those questions in turn. First, we argue
that these are best understood as rights
that are secured through procedural guarantees. So we didn't mean to
indicate that this is procedural versus
substantive for eerie purposes. And as this Court discussed in
jinx, it's indeed in this area, hard to draw any distinct
line between procedural and substantive mandates. So we merely meant to
point out that they're procedural guarantees
that ensure these rights. MERRICK GARLAND:
What's the right? AL KELLEY: The right is-- depending on the provision-- MERRICK GARLAND: With
respect to the preference. I assume the right is
a substantive right to not be removed
to a family, other than one of the preferences. AL KELLEY: Yes, so-- MERRICK GARLAND: That's
a substantive right. AL KELLEY: That's a
substantive right. And as Congress noted,
in passing ICWA, it found that Indian
children suffer harms from being placed outside of
their tribe and their culture. And so the right vested
in Indian children through the
placement preferences is to be able to grow
up within one's culture. And the rights that
are 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 found
that tribes were-- their ability to continue
as self-governing entities was being threatened
by the removal of so many current and potential
members from their ranks. So it's a right vested
in both parties. And the respondents don't
contest that it was-- AMUL THAPAR: I'm
puzzled, why doesn't the state have an interest? If you have a child who's not
a member of an Indian tribe, why wouldn't the
state have an interest at that point that was
equal to, if not greater, than the Indian tribes? AL KELLEY: Well, Congress
made the determination when weighing the
relative interests there to apply federal law
that gave greater weight to the protection of
these Indian children, parents, and tribes. So it was Congress's job
to determine how to balance those competing interests. And it did hold-- it did establish in Section-- AMUL THAPAR: Where
does the power come from that gives Congress
the ability to balance those competing interests? Because it doesn't seem to come
from the Indian's, the Commerce Clause? AL KELLEY: Well, Your Honor,
this Court has consistently characterized Congress's
power under not just the Indian Commerce
Clause, but also the treaty clause as forming plenary, and
exclusive grant of authority in this area. And there's no subject
matter limitation on this power Congress
has saw fit to regulate in a wide range of areas
that affect [INAUDIBLE].. AMUL THAPAR: But
here, you have a child without any tribal membership. Right? And so, I'm not sure,
what's their interest in that situation? AL KELLEY: Congress
still has an interest as a part of its trust
obligation towards the tribes to regulate with regard
to these children. And this Court has never
limited Congress's power in the field of Indian
Affairs to regulating only enrolled members of tribes. For example, in Mazurie, it
regulated the sale of alcohol by nontribal members in
on, or near reservations. And this is a very broad
grant of authority. And the only time that
this Court has ever found that a statute exceeds the
breadth of Congress's authority under the Indian
Commerce Clause is when that statute has been
used to try to abrogate state sovereign immunity to violate. AMUL THAPAR: Do
you have any cases where there wasn't
tribal membership, where we've upheld the law? Because here, there's
no tribal membership. And you're asking us to hold it. And in all the other
cases I've seen, the cases related directly
to tribal membership. AL KELLEY: Well, Your
Honor, in the United States versus Mazurie from 1975,
the court applied a statute to non-tribal members. And it generally has
done so with regard to on or near
reservation activities. And so it's never held
that the Indian Commerce Clause is limited to
only regulating members of federally recognized tribes. It can be anything that relates
to this trust obligation, as this issue surely does. Now, respondents don't contest
that ICWA confers rights on private actors, but
instead argue that it requires states to confer rights. But this conflates
respect for rights with conferral for rights. Unlike the statutes that were
at issue in New York and Murphy, ICWA doesn't require
state legislatures to create any new standards
or pass any legislation. It simply requires
that state actors comply with these generally
applicable regulations. And any conferral of
rights will necessarily affect third parties. But ICWA's effects occur
equally and even-handedly to both public and
private actors. And it's thus similar to-- MICHELLE FRIEDLAND: I know you
argue that, in that regard, it's similar to Garcia. But in Garcia the
minimum wage requirements that defined the
states as employer applied to lots of
private employers. And overall, there are
probably more private employers than there are state employers. But here, aren't
child welfare services usually government run? So to the extent,
part of your argument is, well, there are
private ones too, it's kind of the opposite of Garcia. AL KELLEY: That may be
the case, Your Honor. However, it's very similar
to what this court faced in Reno v Condon,
in which Congress passed a law regulating
the use of information created by state DMVs. And it held there
that the statute was of general
application, because it applied not just to state DMVs,
but to the private parties who had obtained that information
from those agencies. And so there, the
statute clearly have an outsized
effect on states. But the court still
held that, because it was of general
application it didn't violate the
anti-commandeering doctrine or implicate the same concerns
that this court was faced with for example, in Prince. And this case is also
distinguishable from what was at issue in Prince because
whereas Prince involved an unconditional
order to state actors, ICWA is better understood as
a limitation on state action. So the Brady Handgun
Act Provision that was at issue in Prince
ordered state officers to conduct background
checks irrespective of any other state action. But ICWA's mandates
only come into effect when the state decides
to remove an Indian child from their biological
parents or place that child in foster or adoptive care. And thus it's more similar
to what this court faced in South Carolina v Baker,
where it held that states could be compelled to comply
with obligations or regulations dealing
with the issuance of bonds. Because states had to make
an affirmative decision to issue bonds before those
requirements came into place. MICHELLE FRIEDLAND:
So I know one of your arguments
in your brief is that we shouldn't
worry that people will blame the wrong sovereign. So if they're upset
about ICWA they will understand that
ICWA is a federal law because the federal
government usually is who's involved in Indian Affairs. But I think that assumes
a much higher level of civics knowledge than
people usually have. There are lots of people
in this country who can't name three branches
of government or members of our court. And I'm wondering why you
think that people, especially people like the Caldwells
who are not Native American, will understand how the
federal government interacts with Native Americans. AL KELLEY: Well, two
points on that, Your Honor. First, this court has cited
political accountability as one of the concerns
or rationales that undergrow the
anti-commandeering doctrine. But it's never
held that those are dispositive in the analysis. But second, we do
argue that the kind of political accountability
concerns that were added to in this Court's
previous anti-commandeering cases aren't at issue here. And that's because
the federal government does have a long
standing relationship with federal tribes. AMUL THAPAR: Yeah, but I mean,
what political accountability comes down to is who are they
going to hold accountable, just a simplified way. And all this occurs
in the state court system as you
yourself acknowledge, and the state system. So why wouldn't they be
looking to the states? AL KELLEY: Well,
Your Honor, we think there are certain areas that
the federal government has traditionally been
more responsible for. In our brief, we
cite a statute that deals with family law
proceedings involving service members, active
duty service members. And we think the same
implications are at issue here. I think most people wouldn't
hold the state government accountable for
different standards that apply to custody orders
involving active duty service members. And the same is true
for Indian tribes. MERRICK GARLAND: So
I'm a new justice, and I'm trying to understand. What is the Political
Accountability Clause of the Constitution
of the United States? There is no such
clause, is there? AL KELLEY: There
is not, Your Honor. MERRICK GARLAND:
So I tend to, when I think about this I refer to
a famous law review article by an obscure law school dean
named Manning, who Fortunately was saved from private
practice by the fact that Arnold and Porter
did not hire him. And he takes the position
in this 2009 article that the NI commandeering entire
doctrine is atextual and worst of all, purposovist. Where does it come from,
and should we not reconsider a doctrine that really
has no basis in the text of the Constitution? The Constitution has specific
provisions that provide the elements of federalism. But to go beyond them, like
political accountability, that sounds like something we
talk about in poly sci courses. Why don't you just challenge
the doctrine altogether? AL KELLEY: Because Your Honor,
the anti-commandeering doctrine is not centered in the
text or any one provision of the Constitution because
it represents an omission from the Constitution. And that's the omission of the
power of the federal government to do-- MERRICK GARLAND: So that seems
like the kind of argument the other side might make. You would do a lot
better if there were no anti-commandeering
principle, wouldn't you? AL KELLEY: Perhaps
Your Honor, but there is no anti-commandeering issue
even under the current doctrine here. And that's because what's
at issue here with ICWA is the kind of regulation
that Congress has frequently used in the past and has never
been understood to raise-- MERRICK GARLAND: What
about the question of procedure versus substance
that I started with? Can Congress enact procedures,
rules of civil procedure to cover federal rights
in state causes of action? AL KELLEY: Well, as this
court discussed in Jinx, it hasn't reached that question. MERRICK GARLAND: So
that's why I'm asking you. Now we have to
reach that question. AL KELLEY: I think for purely
procedural guarantees or purely procedural mandates
that may implicate the anti-commandeering doctrine. But whenever those mandates
have a real substantive bite, as they do here, it doesn't
implicate the doctrine. Because these are
procedural guarantees that are securing a right. And the anti-commandeering
doctrine has never been
understood to prevent the federal government
from conferring rights on private actors. And it's also never-- MERRICK GARLAND: What about
this provision that requires you to produce an expert? Is that procedural
or substantive? AL KELLEY: Likely similar
to the other guarantees, it would be a procedural
guarantee that secures a substantive right. And there it's the
right of Indian families to remain together. If the state wishes to remove a
child in certain circumstances, it must produce
an expert witness. But as this court
discussed in Prince, this kind of production
of expert witnesses has a long history,
and has been allowed in the past for congressional
mandates on state courts. Thank you. [APPLAUSE] MERRICK GARLAND: We will now
hear from the respondents. MELANIE FONTS: Thank
you, Mr. Chief Justice. And may it please the court. My name is Melanie Fonts, and
on behalf of respondents Bryce and Candice Caldwell
and the state of Ames I will address the
equal protection issue. This court should affirm the
judgment of the Ames Circuit and holds that the Indian Child
Welfare Act and the final rule are unconstitutional
for three reasons. First, ICWA classifies
children on the basis of their Indian
ancestry and thus is a racial classification
subject to strict scrutiny. Second, ICWA fails
strict scrutiny because it is not
narrowly tailored to a compelling
government interest. And third, even if ICWA did
use a political classification it fails any lower
standard of review because it is not
rationally related to a legitimate state interest. Thus, we ask that
this court strike down ICWA and the final rule. First, ICWA operates
on 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 seems
like a lot of your argument on this point and other points
has to do with the second choice preference of going
to a different tribe instead of the tribe that a
parent is a member of. I'm wondering if we agree
with you that that part is not rational or doesn't have a
compelling interest, depending on what standard
applies, and we find that to be severable,
whether you still have all of your arguments as
to the remainder of the statute. MELANIE FONTS: Yes,
Your Honor we do. And that's because we
understand to sever any part of either the
definition or the placement preferences or any
other part of ICWA would be to change fundamentally
the applicability of the law. We know this because
we know that-- AMUL THAPAR: OK, but do
we just ignore, then, Congress's severability clause? It seems to me Congress
gets to make that call. MELANIE FONTS: Your
Honor, Congress does get to make this call. However, we have evidence from
the legislative history where we see that the
Department of Justice asked Congress twice to change,
for example, the definition-- MERRICK GARLAND: That
word, legislative history, I don't think I like that word. AMUL THAPAR: I
think 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 my
right a little bit further. Is your position that all
classifications that are based on ancestry are racial? MELANIE FONTS: Yes, Your Honor. MERRICK GARLAND: So
aren't all Indians tribes based on ancestry? That is, every
recognized Indian tribe requires that there be some
original historical group, and that the current
members are descendants of that group, isn't that true? MELANIE FONTS: That
is true, Your Honor. It's our understanding
that the presumption is where a law
classifies on ancestry, and thus race, it is a
racial classification unless the law fits
into the narrow, carved out space of Mancari. Mancari is a narrow exception
to our understanding of racial classification. As this court made clear in
its opinion in that case-- MERRICK GARLAND: What
is the narrowing? Why doesn't, under your theory,
every federal law relating to Indian tribes subject
to strict scrutiny? Because every Indian
tribe, every current member has to trace their
ancestry one way or another to the original
historical tribes. MELANIE FONTS: Although every
tribe has some ancestral requirement for
membership, we recognize that there is a political
act involved, rather, two political acts involved
in membership in a federally recognized tribe. The first of those
political acts is the actual recognition
by the federal government of that tribe. The second is the affirmative
choice an individual makes to join that tribe. Without those two
political acts, what we have is the
racial group of Indians. MERRICK GARLAND:
OK, so now you're talking about the
enrollment question, right? Is that what you're saying, that
the problem here is the child's not yet enrolled? MELANIE FONTS: Yes, Your Honor. MERRICK GARLAND: So let's assume
that the statute ended at 4A, and the child was already
a 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 every
member of every tribe comes through ancestry. And therefore every rule
the federal government relating to Indians is
subject to strict scrutiny. Is that right? MELANIE FONTS: Not
quite, Your Honor. And that's because
Mancari recognizes that a law ceases to be
a racial classification and becomes a political
classification where there are two factors present. First is that the law
applies only to members of federally recognized tribes. And second is that
the legislation aims at the federal
interests in furthering tribal self-government. So where this law, which does
not 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 in
furthering self-government? If the whole principle
is to keep the tribes and allow people that should
be members to be members, isn't that fostering
self-government ultimately? MELANIE FONTS: Not as
this court has understood. In Mancari, we saw that
this court understood tribal self-governance
quite narrowly as a political and
economic interest to paraphrase from the opinion. And the Ninth Circuit has
helpfully defined this for us, and told us to look for
uniquely Indian interests-- MERRICK GARLAND: The
Ninth Circuit actually doesn't carry much sway here. And Mancari only talked about-- no disrespect to the Ninth
Circuit, but it is the fact. Mancari talked about
tribal self-government as something that
mattered in that case. Did we suggest that
that was the only possible ground for
recognizing this as a political circumstance? The example that my colleague
on the left expresses is close to tribal government. We never said tribal
self-government was the only thing
that would satisfy us. MELANIE FONTS: Your
Honor, this court did not. However, if we look at the line
of cases following Mancari, we see that tribal
self-governance has been construed narrowly. So we can fast forward, for
example, to Rice in 2000 where this court held that the
candidate qualification preference for native Hawaiians
who had an ancestor who was present in the
Hawaiian Islands in 1778, that even if native
Hawaiians were members of a federally recognized
tribe, that preference would still fail Mancari. Because it went to
critical state affairs. Even though the Office of
Hawaiian Affairs in many ways functioned similar to parts of
the Bureau of Indian Affairs. And we can see this
time and time again if we look at this court's
precedent following Mancari. MICHELLE FRIEDLAND : But
in both of those cases, there was some tribal or
native-related entity. But we're talking
about the tribe itself. How can the tribe
survive without members? MELANIE FONTS: Your Honor,
while the tribe cannot survive without members the question
before us right now is whether that interest is enough to lower
the standard of review here. We argue that it is not because
that falls outside this court's long-held understanding
of where there is a political classification. So to turn to some examples. We see in cases like
Fisher and Angelo, those cases involved political
classifications not just because they applied
only to members of federally recognized tribes,
but because they advanced tribal political
self governance that is transferring jurisdiction
from state courts to tribal and federal courts. In Moe, for example,
we saw that the law was a political classification
because it advanced economic
self-governance, that is, providing the Indian
tribe tax immunity from local and state taxes. MERRICK GARLAND: Why isn't
maintaining the human beings who are going to make
up a tribe as much a matter of the continuing
self-government of the tribe as is economic issues? Why isn't it more important? Seems like it would
come a fortiori if we're going to protect
economic interests of the tribe that we're to protect their
interests in surviving to the next generation. MELANIE FONTS:
Because, Your Honor, the inquiry here is just
whether the standard of review ought to change because
of the interests involved. We construe tribal self
governance narrowly, not because we don't
recognize that there might be other tribal
interests at stake, but because we realize
that Congress ought to be owed more deference where
it is legislating with respect to tribal Indians. But that same level
of deference can't be owed where the federal
government is aiming at something other than
that narrow conception of tribal self-governance. AMUL THAPAR: Can I
go back to your-- I'm sorry to interrupt. Can I go back to your racial
classification for a second? Because I'm struggling. So can a tribe define its
members however it wants? MELANIE FONTS: Within
some limits, Your Honor, as this court held in
Santa Clara v Martinez, the tribes have broad authority
to set their own membership requirements. However, we can see with
some of the lower courts that there are some limits. For example, if we look at the
[INAUDIBLE] case, for which this court denied coming
out of the Tenth Circuit, there the Tenth
Circuit held that where the tribe had changed its
eligibility requirement, where it had automatically enrolled
children for 240 days after birth in order to avoid
any perverse consequences with ICWA. There the court struck down
that membership requirement because it held that that
was just doing gamesmanship with a federal statute. Similar to-- AMUL THAPAR: So assume
they're not doing gamesmanship with the federal statute. But assume, as you I think
acknowledged in your briefs, they're letting
whites in, descendants of slaves, people that have no
ancestry traced to the tribe. You would still call it
a racial classification under that circumstance? MELANIE FONTS: Yes,
Your Honor, it's still a racial classification
under that circumstance for three reasons. First, even though a law may
classify other individuals excluding or outside
that racial group, the law is not any less
of a racial classification where race is the
predominant factor. And we can see this in
other equal protection cases for example, in
Miller v Johnson. Second, This court has held that
the political classification is narrowed to members of
federally recognized tribes. Because it recognizes
that there is an official process for that
federal recognition. For example, if we look at
the Federal Acknowledgment Act, which has governed
the federal recognition process since 1994,
part of that act requires that tribes submit
constitutions and bylaws defining their membership. So federal recognition
is predicated on an understanding
of how the tribe will define its membership. And as the DC
Circuit, for example, held in Cherokee Nation versus
Nash very recently where-- MERRICK GARLAND: That's
another circuit that doesn't get much sway up here. MICHELLE FRIEDLAND : I
was going to interrupt. MELANIE FONTS: But to
provide an example, there, where the Cherokee
Nation attempted to disenroll the descendants
of former freedmen and former slaves,
the Court struck down that membership
change because it acted against an 1866 treaty. So we understand that
membership is tied to the-- MERRICK GARLAND:
Can I get back to-- I think it was the
Tenth Circuit, which we're going to give some sway
to, that you are talking about. But which unfortunately,
I didn't read the opinion. Because it's a
circuit and we only read our own opinions up here. Are you saying it held that you
can't have automatic enrollment in the tribe? MELANIE FONTS: No, Your Honor. There the Tenth
Circuit took notice that the tribe had
changed its enrollment criteria simply to avoid
the application of ICWA. So there becomes a question of
when the court will question. MERRICK GARLAND: So
what if the tribe had birthright citizenship? Right, you're born of
a member of the tribe, you're automatically
in the tribe. Just like you're born of an
American, you're an American. Would that be OK or not OK,
from your point of view? MELANIE FONTS: Your
Honor, it depends. If that automatic
enrollment process was part of the membership
criteria submitted through the Federal
Acknowledgment Act or however the tribe were recognized-- MERRICK GARLAND: Yeah, I'm
interested in the question whether you think that's
racial or not racial, whether it be subject to
strict scrutiny or not strict scrutiny? If a tribe just wanted
to say, everybody born of a member of the tribe
is a member of the tribe rather than having to enroll
its children separately for some reason,
would that child-- it would be appropriate to treat
that child under ICWA the way the Caldwell's foster
child was treated here? MELANIE FONTS: Presumably
yes, Your Honor. However if that were
the case that we had tribes automatically
enrolling their members, that would fundamentally change
our analysis under Mancari. Mancari is clear that when
legislation applies only to members of federally
recognized tribes it ought to be considered
a political classification. MICHELLE FRIEDLAND : But
we're talking about babies. So I don't know-- I mean, what is the
difference between what ICWA actually does, at least
with respect to children of and their relationship to a
tribe that one of their parents was a member of that they
could become a member of? If they're just babies
and they haven't yet had the opportunity
to make a choice, why shouldn't they be treated
as the birthright example? MELANIE FONTS: For two
reasons, Your Honor. Children, like any
other individual, retain the choice to
enroll in an Indian tribe at any point in their lives. So ICWA does nothing to
advance or prevent that choice. However, even if we were
to take special solicitude of the fact-- MICHELLE FRIEDLAND : But ICWA
does advance that choice, doesn't it? Because it makes
it much more likely that they're living with
members of the tribe. If the tribe has a reservation
that they're there perhaps, rather than with someone with no
connection to the tribe at all. Doesn't that make
it much more likely that they'll become a
member of the tribe? MELANIE FONTS: Not necessarily,
Your Honor, for the simple fact that the 1915 placement
preferences don't set any procedural safeguards
for that sort of choice, and even allow the
child to be transferred to another tribe to which they
have no ancestral connection and to which, like CJ
they may never be-- AMUL THAPAR: Can I stop
you on the first half because I'm not
sure I understand. Are you saying that if they are
raised by members of the tribe, they're not more likely to
participate in the tribe? MELANIE FONTS: It may be that
those particular children may be more likely to
join the tribe. However, we're-- AMUL THAPAR: So
why wouldn't that be an interest in which
the government can promote? MELANIE FONTS: Because the
law does not hew that closely. When we look at
the text of ICWA, it's applying to a vast majority
of Indian children, that is enrolled tribal
children and those who are eligible for tribal membership. And the procedural
safeguards set forth in the placement preferences,
for example, are thin. They do not guarantee
that the child will be placed with
a family and thus enroll in that Indian tribe. Then this-- MICHELLE FRIEDLAND : But
you're arguing that there shouldn't even be an attempt. I mean, just because
it's not perfect or it doesn't
always guarantee it, does that mean
Congress can't try? MELANIE FONTS:
Your Honor, insofar as ICWA is a racial
classification subject to strict
scrutiny, Congress may not. And that-- MICHELLE FRIEDLAND : So
I'm wondering whether it even is a compelling interest. I mean, the history
here is terrible. The federal government
ran, I believe, 150 or more boarding schools and
sent Native American children to them. And they were beaten if they
spoke their native languages. I mean, there was
a massive effort to assimilate these children
so that tribes would be wiped out of existence. Why is it not a
compelling interest to remedy that history? MELANIE FONTS: Your Honor,
it's not a compelling interest to remedy that
history because that's not the history that
Congress was responding to. As petitioners note
in their own brief, that history with
the boarding schools ended well before consideration
of ICWA before Congress. And so the state-- MICHELLE FRIEDLAND : But
wasn't it the beginning-- I mean, maybe not the beginning. There's a long
history of problems. But it was a big chunk
of a problem that led to tribes not
having as many members, which then maybe got
continued by states. But that was a serious problem
for tribes having members. So I don't understand how that's
not still part of the history that could be attempted
to be remedied. MELANIE FONTS:
Your Honor, that's because it falls outside this
court's jurisprudence on what qualifies as a
compelling state interest where we're considering
past discrimination. This court has consistently held
at [INAUDIBLE] that remedying discrimination without more
is not a compelling interest unless the federal
government shows that it was the
governmental actor doing the discriminating-- MERRICK GARLAND:
I don't think so. I think you're misconstruing
[INAUDIBLE] and [INAUDIBLE].. The issue in both of those
cases was whether the preference applied to the entity
that had committed the history of discrimination. It wasn't a question of whether
the federal government could apply the preference
to that same entity. The federal government
is not applying this preference to itself
based on discrimination in the states. It is applying the
preference to the states based on discrimination by the
states, past discrimination. So I think we're going
to have to strike out a new kind of case law here
to 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 they
recognize that there must be a strong
basis in the evidence to use remedying
past discrimination as a compelling state interest. And that's because,
due to this country's historical discrimination
against racial minorities, we recognize that this idea of
remedying past discrimination is simply too
amorphous a concept to justify
constitutional injury, not just on those classified by
the law, but by other actors-- MICHELLE FRIEDLAND : So is there
anything that Congress could do to remedy these past injustices? MELANIE FONTS: Yes, Your Honor. Congress could pass a law
granting tribal courts exclusive jurisdiction
over adoption proceedings for tribal children
living on or near reservations. That would fall within
Congress's power. [APPLAUSE] KELSEY FRAZIER:
Mr. Chief Justice, and may it please the court. The second issue in this
case is whether Congress can compel the
states to implement a federal regulatory
program on its behalf. Under the anti-commandeering
doctrine the answer is no. ICWA is thus unconstitutional
and should be struck down. When the framers
drafted the Constitution they explicitly chose to
establish the federal and state governments as separate
spheres of sovereignty, and to grant the federal
government the power to act on individuals, not on states. MICHELLE FRIEDLAND
: So, I know one of your arguments is that family
law is the realm of the states. But I believe your
colleague just said that we could take an
entire aspect of family law away and give it to
tribal governments. How is that not a
bigger imposition than what has been done here? KELSEY FRAZIER: Your Honor, if
that transfer of jurisdiction were limited to
individuals who fall within the federal government's
power over Indian Affairs, whether that's understood as
being in the Indian Commerce Clause or an understanding
of plenary power, a transfer of jurisdiction to
tribes might be permissible. One of the key
infirmities with ICWA, however, is that it's
not limited to that group of individuals within
Congress's power under the Indian Affairs power. That's because, as you've
discussed with my colleague, it regulates also
children who are not enrolled members of tribes. It also regulates the parents of
those children who might not be Indian at all, as in this case. And even the adoptive
parents, whose rights-- MERRICK GARLAND: So
you're challenging the other provisions of
ICWA's big violations of equal protection? KELSEY FRAZIER: Your Honor-- MERRICK GARLAND: So
just only an as applied challenge to the child in
this case and to the fact that this child in this
case is not enrolled member? KELSEY FRAZIER: No, Your Honor. This is a facial
challenge to law because-- MERRICK GARLAND: How
can it be if you're telling my colleague
that if it were limited in certain ways, that is if
we severed out the bad parts and saved the good
parts, it would be OK? KELSEY FRAZIER: Your
Honor, for the purposes of the equal
protection challenge, the focus is on the definition. And as you've discussed,
our primary issue with the definition
is the second part. That is the part that applies
not to enroll tribal members, but to children who are eligible
to be members of tribes. That's relevant to the
commandeering analysis in so far as in
order for this law to be a valid exercise of
Congress's preemption power, it needs to be within
Congress's power. And it's our argument
that it is not because it extends beyond that. But this law is also a
constitutional violation because it is not best
read as a law that regulates private actors. That's the second part
of the Murphy test, that is merely a restatement of
the proposition that Congress cannot commandeer the states. And because ICWA-- AMUL THAPAR: How are they
commandeering states? With specific provisions
commandeered the states? KELSEY FRAZIER: Your Honor, our
challenge is focused on 1911, 1912, 1913, and 1915,
which are essentially the provisions that require
states to implement ICWA. So they're the provisions
that require state executive officers, namely employees of
the Child Protective Services division, to say take
active efforts to prevent the breakup of Indian families. They're the provisions
that change the procedures that state courts have to follow
when adjudicating state law. AMUL THAPAR: I'm not
sure I follow why they don't have the plenary power. Because they have plenary
power over Indian Affairs, why wouldn't they be
allowed to do this? In other words, they're not
commandeering in the same way as Prince or Murphy. They're not doing anything to
the executive or legislature, per se. KELSEY FRAZIER:
Well, Your Honor, we believe this is not
within the Indian Affairs power for two reasons. One reason is that
this regulates too broad a group
of individuals, as we've just discussed. The other reason is
that even if this were a law limited to that
group of individuals, that is, tribal members, the
plenary power is not absolute as this court has held
since at least Creek Nation and [INAUDIBLE]. And most relevant, this court
held in Seminole Tribe v Florida that the
Indian Affairs power, even if understood
to be plenary, is limited by the provisions
of the Constitution. They are the relevant provision
was the 11th Amendment. The court held that
Congress did not have the ability under
the Indian Affairs power to abrogate state sovereign
immunity in violation of the 11th Amendment. Here, the
anti-commandeering doctrine provides the limitation. And so even if this is
regulating the right group of individuals
because it requires the states to implement
it, this is a violation of the Constitution. MERRICK GARLAND: Let's
separate out the executive from the courts for a moment. With respect to the
courts, doesn't it just require the courts
to enforce federal law? KELSEY FRAZIER: It
does not, Your Honor, at least not in a way that
this court has upheld before. This court has
said that Congress can issue some direction
to the state courts. That is, Congress can
require state courts to hear federal
causes of action, at least when the
state courts would hear them if those
same causes of action arose under state law. That's the Testa line of cases. And that's what the courts
in New York and Prince are citing when they
suggest that there might be an exception to the
anti-commandeering doctrine for courts. But what ICWA does is different. ICWA does not create a
federal cause of action. Indeed, the text of ICWA
itself says repeatedly that these are proceedings
under state law. Instead, ICWA is
changing the procedures by which state judges-- MERRICK GARLAND: So if we
think of what's happening here as conferring a right on
the child and the tribe to not have the child
removed outside of the tribe. And what Congress is saying
is that the state court has to enforce that right. You're saying that violates
anti-commandeering. KELSEY FRAZIER: We
are, Your Honor. MERRICK GARLAND: So what if
Congress passed a statute that said state courts cannot
discriminate against African-American children. And we're not giving
a cause of action, just saying they
can't discriminate. And if they do, then
they're acting in violation of the Supremacy Clause. We're preempting any
contrary state statute. Why is this any different? KELSEY FRAZIER: Well, Your
Honor, because in that case, as you said, there is a
relevant cost of action. Congress has provided a
substantive right, as you say, that is not to be discriminated
against on the basis of your race. And then it has provided a
cause of action for someone to seek enforcement
of that right if that right has been violated. The relevant difference
here is that ICWA doesn't provide the cause of action. And instead, it sits on
top of existing state law causes of action, and
it tells state judges how to decide those cases. MERRICK GARLAND: Well, because
wouldn't the other statute tell state judges they
can't discriminate in their decision making
against African-Americans? That's what the statute says. State judges may
not discriminate in their decision making
against African-Americans. And if they do, then
just as in this case, the intervener, the
tribe, can object that's what's happened here. KELSEY FRAZIER: Yes, Your Honor. It's my understanding
though that that statute would essentially
be a restatement of a constitutional principle. And the procedures that are
being followed in these cases are otherwise
constitutionally sufficient. MERRICK GARLAND: Now
we're slipping back to the question of whether
there's plenary power. For purposes of this hypo, we'll
assume there's plenary power, you offered that up. So if there is
plenary power, now we get to the next question. And Congress has the
power to act with respect to this kind of
member of a tribe, or possible member of a tribe. Aren't those two
separate questions, whether Congress has the power? I appreciate that in my
example maybe the power comes from the 14th Amendment. But if the power comes
from the Indian Commerce Clause for purposes of the
hypo, why is it any different? KELSEY FRAZIER:
Well, Your Honor, this court has treated statutes
passed under the 14th Amendment differently from statutes
passed under the, if you will, original provisions
of the Constitution. Because the 14th Amendment
has been understood to change the federal state
balance and, in some cases, to allow laws that
would otherwise be considered commandeering. The example, you provide,
I believe is quite similar to the Multi-ethnic
Placement Act, which is an act Congress
passed that said courts should not consider a race of-- I believe it's the
parents in that act in adoption proceedings. But that's actually a
conditional funding scheme, which recognizes that
Congress apparently thought it did not have the
power to pass that statute. MICHELLE FRIEDLAND :
But isn't ICWA also? There is funding in
the Social Security Act that contingent on states
following ICWA, isn't there? KELSEY FRAZIER: There is,
Your Honor, in title 4B. But ICWA is not a
conditional funding scheme. ICWA is a law that binds
the states regardless of whether or not they're
receiving funding. The Social Security Act provides
additional funding to states if they comply with ICWA. But if states were to
forgo that funding, they're still bound by
ICWA's requirements. MICHELLE FRIEDLAND : But
did Ames forgo that funding? KELSEY FRAZIER:
Your Honor, I don't believe we have in the
record whether Ames has forgone that funding. But I don't believe
the answer to that question is dispositive here. Ames is still bound by ICWA
and, as far as we know, has complied with ICWA, or
at least try to comply with. Certainly in this case they did. The difference between
a conditional funding scheme and ICWA, a
law that's binding, is that the state
has the choice not to regulate in the way
the federal government has asked it to regulate. That is, in a conditional
funding scheme, the state can choose
to regulate according to the federal
government's preferences. But it doesn't have to. And that means that the
state remains politically accountable to its citizens. If the citizens don't like
that the state is or is not complying, they can seek to
elect different officials who will or will not comply. They can't do that here. Ames has no control over whether
or not it complies with ICWA. MERRICK GARLAND:
I'm still thinking on this question of why
it matters that it's a federal cause of action, as
compared to a federal defense, or a right that can be
asserted by intervention. So imagine that a
state wants to hold-- not California. If a state wants to hold auto
manufacturers to a higher standard than the
federal standard, the federal standard preempting
that higher standard. And then the state says,
well, we don't care. You can't stop us, you didn't
create a cause of action. We are going to prosecute this
auto manufacturer in this state for not meeting the
higher 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 can
have all kinds of procedures you want about enforcing
pollution controls, but you can't have that one. First of all, do you think
that would be commandeering? KELSEY FRAZIER: I don't,
Your Honor, assuming that the federal
government properly had the power to regulate there. MERRICK GARLAND:
Right, so assume here that the federal
government has that power. Because I want to hone you
in only on the commandeering question. Why is that different? KELSEY FRAZIER:
Well, Your Honor, it's my understanding
that in that case the reason the federal statute
governs and does not commandeer is that there essentially
is no state cause of action because the federal
law has replaced it. And the federal law,
which acts directly upon the auto
manufacturers presumably, is not commandeering. It's not telling
the state courts how to decide their cases. Instead, it's just saying
the federal government has determined that our laws
governing these actions. And so there is no
state cause of action. MERRICK GARLAND: Why isn't
the federal government replaced the normal preferences
of the state of Ames family law? It's just replaced them. KELSEY FRAZIER: Your Honor,
the federal government here is replacing the way that
the state judges decide how to place children, certainly. But the proceeding itself
is under state law. Again, ICWA itself
tells us this. The federal government
has not created a federal cause of action. And indeed, it
probably could not because as we began our
discussion by saying, family law is typically within
the nearly exclusive province of the states. This court has
recognized a principle, that the federal law takes the
state courts as it finds them. AMUL THAPAR: So are you saying
they can never get involved with American Indian children? KELSEY FRAZIER: The federal
government, Your Honor? AMUL THAPAR: Yes, and any type
of preferences related to them. KELSEY FRAZIER: Your
Honor we believe that the federal law could
ask the states to apply these similar
preferences through, for example, a conditional
funding scheme. And we believe-- AMUL THAPAR: But they can't
through their plenary power, is your point. KELSEY FRAZIER: They
could regulate, perhaps, family law through
their plenary powers, though this court has never
said that the Indian Affairs power extends, or that
the 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 exclusively
private adoption services? KELSEY FRAZIER: Your Honor, that
would be a much more difficult question, admittedly,
because then we would be asking essentially
a question about how this law is best read. First of all, that's
not the situation here. Adoption is typically
done by the states. But under this hypothetical,
it might be the case that a law could be best read as
regulating private actors if we knew that a significant
percentage of adoptions were performed by private
actors in the states. We might also look
at the activity itself and ask whether that's
something that the states have traditionally done. Indeed, that was a
little bit closer to the inquiry in the
Reno and Baker cases, the cases that found the laws
to be generally applicable. Those cases were concerned not
so much with the percentage breakdown of who was
performing activities, but with what the activity
was and how the states were being regulated. So in the Reno case for
example, the government upheld this law
governing how states treat private information
collected from drivers. Because it was a
law that regulated states acting essentially
like private entities. And specifically
because it was not a law that regulated how states
regulate private individuals, or that it required
states to implement a federal regulatory program. ICWA is all about how states
regulate private individuals. MICHELLE FRIEDLAND : I'd like
to go back to your answer. I think you said
this could be done through conditional
spending legislation. But I'm confused, wouldn't
you 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 the
anti-commandeering concern. We believe that the
anti-commandeering concern would be remedied if this
were a conditional spending program, again, because then the
state maintains the decision of whether or not it
wishes to comply and thus remain
remains politically accountable to its citizens. MICHELLE FRIEDLAND : So sorry,
going back to this hypothetical where a state has just
private adoption agencies. KELSEY FRAZIER: Yes. MICHELLE FRIEDLAND : I
have trouble seeing how you have a commandeering problem. I know you'll say something
about maybe the state courts that the adoption agencies
would need to go through. But I have trouble
seeing how there aren't all kinds of federal laws
that state courts have to apply and that have that-- it's a much harder
part of your argument. KELSEY FRAZIER: Your
Honor, that certainly would be a much harder case if
private adoption agencies were doing all of the work. The only way that would look
like a commandeering problem is if we think about the
activity being regulated, and whether that's
something that is typically left to the states,
and the states are choosing to
essentially contract out. But that raises questions
about state delegation to private entities that
aren't at issue here. Here, states are primarily
performing the functions that ICWA regulates. That is true of adoption,
but many of the functions that ICWA regulates are actually
things only states can perform. For example, all of the
state court proceedings. None of that could be
done by private actor. And even some of the provisions
that impose obligations on the state executive
agencies appear that they might be right to
apply to private actors too. But really apply
primarily to state actors. For example, 1912D, which is the
active efforts provision, which is one that is most
commandeering insofar as it requires child protective
services officers to take active efforts, which
are affirmative efforts to-- MICHELLE FRIEDLAND : That
provision wasn't implicated in this case at all, was it? I'm a little unclear how you
can challenge that provision. KELSEY FRAZIER: It wasn't
implicated in this case under the facts of this case,
but it should have been. Because CJ Is an Indian
child within the definition of ICWA and CJ was removed
from his biological mother, AW's home. Now, because the
state did not know that CJ was an Indian
child, 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 the
breakup of the family before it could remove
CJ from his home. Again, it didn't hear
because it wasn't aware, which simply highlights that
this provision is applying even to children who do not have
an existing tribal connection, and who are not eligible
members, or the children of eligible members. For the foregoing
reasons we respectfully request this court affirm. [APPLAUSE] AL KELLEY: Mr. Chief Justice,
a few brief points in response. First, on the Equal
Protection issue, respondents proposed here
today several limitations that this court should place on
the application of the Mancari Rational Relationship Test. But none of these
limitations follow from this court's
opinion in Mancari or any of its subsequent
applications of that test. First, respondents
argued that there should be a limitation based
on whether a statute deals with tribal self-government. But as this court made
clear in Antelope, tribal self-government
is only one way for a statute to be rationally
tied to Congress's fulfillment of its trust obligations. And subsequent cases like the
Washington commercial passenger fishing vessel case
only dealt with statutes that had, if any connection
to tribal self-government, a very tenuous one there. It was a grant of
fishing rights. And so this isn't a limitation
that this court has recognized previously on the Mancari Test. But even if it was,
ICWA satisfies this test because it clearly serves
tribal self-government by giving tribes the right
to intervene in proceedings and by indeed
ensuring that tribes have the membership to continue
as self-governing entities. And respondents also argued that
Mancari should be limited only to enrolled members. MERRICK GARLAND: Can I ask how
sending an Indian child who is eligible for one
tribe to another tribe across the country maintains
tribal self-government with the first tribe? AL KELLEY: Well, Your
Honor, it maintains tribal self-government
because it ensures that those children
grow up in Indian culture and therefore are more likely
to form a political relationship with their tribe, their
own tribe later on, having grown up
in a society that has respect for that
kind of political bond. Now, turning to the
anti-commandeering issue, respondents argue that ICWA
commandeers state courts. But requiring state judges
to apply different burdens and standards has
never been understood to implicate the
anti-commandeering doctrine. It's a straightforward
application of the supremacy clause. AMUL THAPAR: What about the
active efforts provision? That's the one they
mainly object to. AL KELLEY: So the
active efforts provision is of general application. Section 1912D
applies to any party who seeks to affect the foster
placement of an Indian child or a removal of that
child from their parents. And thus it's close to what this
court faced in Reno v Condon. And it similarly is a grant
of a right to those children to only be removed from their
homes and to the parents to only have their
children removed when active efforts have been made. So it's a condition and a
limitation on state action rather than an
affirmative order. It only comes into play when
the state decides to remove a child from their home. So what respondents
are asking for here is not an application of the
anti-commandeering doctrine but an extension of it far
beyond what this court has recognized in its past cases. For those reasons we ask that
this court reverse, thank you. [APPLAUSE] MERRICK GARLAND:
No surprise, we'll be taking this matter
under 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 the
Ames Moot Court final round, the decision of the
judges is as follows. Best briefs, the petitioners. You can applaud. [APPLAUSE] Best oralist, respondent
Kelsey Frazier. [APPLAUSE] Best team, respondents. [APPLAUSE] Now, does the Dean want
us 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 discussion
about 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, make
some brief comments here to the oralists. And then we will
recess here and then do private commentary later. MICHELLE FRIEDLAND : OK,
so I thought all of you were tremendously excellent. I wish that I had advocates
like you in court all the time. I occasionally have people
almost as good as you guys, but not usually. And it was really wonderful
to watch all of you and to be able to be here
and to be a part of this. You did extraordinarily well. I think you all had the
idea 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 individual
remarks for later? OK. I will make a pitch though,
since I have this opportunity to tell you that, in the
Ninth Circuit, if you take up a pro bono case you are
guaranteed an oral argument. I hope that I will
see all of you in my court in the near future. AMUL THAPAR: We try to do
the same in the Sixth, so. MERRICK GARLAND: All
right, we'll do the same. But only to the people in this
room, don't tell anybody else. AMUL THAPAR: That's
a pro-Harvard bias. MERRICK GARLAND: Good point. Yeah, it requires
strict scrutiny, though. There's compelling interest. I second everything that
Judge Friedland said. I thought this was
really terrific, both the briefs and the oral
arguments were quite amazing and up to the highest
professional standards that we see. And I'll just say,
just a tiny addition to what Judge Friedland
said about the nature of the discussion. So for me, the thing
about oral argument is it should be a
discussion with the judge. It should not be, I've
got these 25 points and I have to get them--
get through them, regardless of whether those are the
questions the judges are asking or not. And all of you did
this extremely well. That is, when we
asked a question, you diverged from
whatever 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 in
oral argument is you want to know what is
bothering the judge so you can fix that problem. We gave you the Supreme Court's
new innovation a little bit, which is that you get a
couple of minutes, two minutes at the very beginning. But very few courts give you
that two minutes anymore. And I'll be very surprised
if the Supreme Court doesn't deteriorate with respect
to those two minutes and people start asking
questions 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 want
to know, what is your weakness, and can I explain it? And you all did that,
I thought it was great. AMUL THAPAR: Yeah, I
thought it was exceptional. I agree with everything
they both said. The one thing I'll say for
people that have never done it, it's incredibly
hard to stand there, I think almost
universally without notes or without looking down. Look us in the eye,
answer the questions. We'll come up with questions
that are sometimes crazy, or try to throw you off or
turn you a different way, and all four of you did an
exceptional job of just staying the course, answering the
questions, making sure you answered the question. And then weaving
it, like, seamlessly back into your argument. Right into the case law,
right into everything. Even if we asked
you a completely off the wall question, you'd
make it sound reasonable and weave it right
back in, which is really a masterful
skill, and something I commend you all for. And I hope you will come
to the Sixth Circuit first, because it's closer. SPEAKER 1: And if we could
give one more round of applause for our competitors
and our judges. [APPLAUSE] If everyone would rise.
My personal public freakout is that Judge Merrick Garland should be on the Supreme Court and not in this video. Joe please don't forget about him.
Never lock your knees
When you faint and regain consciousness knowing you’re still more intelligent and have a larger vocabulary than almost all of the reddit community.
Ah the old debate and faint
Did you see his hands? They're beautiful, I think we should settle
Thats how you debate.
Frank the Tank would be proud
Mooting can cause a lady to swoon.
At least she recovered her time.