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