January 24, 2020
By Timothy Sandefur
Wednesday’s arguments in Brackeen, the case challenging the
constitutionality of the Indian Child Welfare Act (ICWA), focused largely on
the way ICWA imposes its unjust burdens on children who fit a single genetic
profile—that is, who qualify for membership in an Indian tribe, which depends
exclusively on biological characteristics. But even aside from the question of
whether that violates the U.S. Constitution’s prohibition on race-based laws,
ICWA also violates other constitutional standards, particularly those that
differentiate between state and federal powers.
Protecting at-risk kids is a job for states, not the feds.
Not only does the Constitution give Congress no power to regulate things like
foster care and adoption, but federal courts will even refuse to hear cases
involving those questions, regardless of whether they have jurisdiction. And
courts have often struck down federal laws that interfere with state family
law. For example, in United States v. Windsor, the Supreme Court held that
the Defense of Marriage Act was unconstitutional because it required states to
discriminate against same-sex couples, when the states would have preferred not
to.
ICWA doesn’t just override state child welfare law, though.
It does something truly bizarre—something no other federal law does: It
dictates to state court judges how they may apply state laws. ICWA sets
the procedural rules and the standards of evidence that state judges must
employ when applying state, not federal laws. That’s different from what
usually happens when Congress creates a federal law and then requires courts to
follow certain procedures when applying that federal law. For example,
the Fair and Accurate Credit Transactions Act (FACTA) makes it illegal to print
a person’s credit card number on a receipt—and people can sue in state court if
a cashier violates that law. The state judge must follow FACTA’s rules when
applying FACTA.
But ICWA does something different: It says that state judges
may use state procedures when applying state laws—but when the child is
“Indian,” the state judge has to follow federal procedures when applying
state laws. One major question in the Brackeen case is whether
that violates the rule against “commandeering”—which bars Congress from forcing
state officers to enforce federal laws if they prefer not to. No Supreme Court
case has addressed that specific point, but in the 1997 Printz case, the Court said that state executive
branch officials can’t be compelled to enforce federal law, and that state judicial
officers can be required to follow federal rules when enforcing federal
laws. Whether Congress can change the procedures or the evidentiary rules
of state laws, however—as it did in ICWA—remains an open question.
Of course, ICWA also overrides the authority of state executive
officers in ways that more obviously violate the rule against commandeering. It
forces state child protection services—executive agencies overseen by governors
and state attorneys general—to take certain steps and to keep certain records,
which Printz quite clearly said is unconstitutional.
And ICWA intrudes on state authority in other, even more
unusual ways. Before Wednesday’s oral argument, the judges issued an order
specifically asking the attorneys to discuss whether ICWA violates the
Constitution’s Presentment Clause. Oddly, that question never
actually came up during the argument itself, but the answer is plainly yes.
The Presentment Clause requires that any “law” be passed by
both houses of Congress and “presented” to the President for his signature or
veto. The Clause was at issue in some complicated cases such as INS v. Chadha and the 1991 Airports case. But the precedent that comes
closest is actually Clinton v. New York, the 1996 decision that held
the line-item veto unconstitutional. The Court explained that when the President
“line-item vetoed” a law that had already been adopted by Congress and signed
by the President, the result was a new law—one missing the vetoed provisions—which
had never been passed by Congress or signed by the President. That violated the
Presentment Clause. Congress couldn’t create a procedure whereby a law could be
passed in the ordinary way—and then partly repealed by the President acting alone.
Yet that’s just what ICWA does. Section 1915(c) allows tribal governments to write rules governing which
adults should take custody of “Indian” foster children (who do not live
on tribal lands and might not be tribal members at all). These rules then
override not only the state law that would apply if the kids where white,
black, Asian, or Hispanic—but also override ICWA itself, which contains
its own provisions governing the placement of foster kids. In other words, ICWA
contains a provision that allows tribal governments to “line-item veto” the
placement rules contained in the Act itself. But Congress never passes, and the
President never signs, those placement rules. Once a tribe adopts them, state
officials are required—by federal law—to follow them.
Of course, that also violates the rule against “delegation,”
which forbids Congress from giving its lawmaking powers to anyone else. The
trial judge in the Brackeen case ruled that ICWA was unconstitutional
because it delegated powers to tribes in that way. But even if that weren’t the
case, the Clinton v. New York decision makes clear that ICWA also
violates the Presentment Clause.
Defenders of the status quo claim that ICWA is just an ordinary
exercise of Congress’s power to regulate “commerce…with the Indian tribes.” But
that’s absurd. The Supreme Court has made clear that the word “commerce” does
not include things like this; for example, in the 2000 Morrison case, it struck down the Violence
Against Women Act on the grounds that violence against women—horrible as it
is—just isn’t commercial activity. It’s criminal activity, which is already
against the law in all 50 states, and is a job for state law. Tribal lawyers
argue that the Morrison case was decided under the “Interstate Commerce
Clause,” and that the “Indian Commerce Clause” is different—but no, they’re the
same Clause, and the word doesn’t change meanings.
Tribal lawyers also argue that since tribes are sovereign,
Indian children are basically like foreigners, and that Congress can allow
foreign governments to control how foreign children are treated in the United
States. But Indian children are not foreigners. They’re citizens of the
United States and of the state where they reside, and Congress cannot deprive
them of their rights even under a treaty. ICWA isn’t a treaty, but even if it
were, it would be unconstitutional. In Reid v. Covert, the Supreme Court held that
Congress can’t make a treaty that subjects American citizens to a separate
legal system that lacks the constitutional protections that govern ordinary
civil courts. But ICWA does just that—forcing Indian children and the adults
who love them into tribal courts that aren’t required to follow the
Constitution.
One interesting moment during the oral argument made the point clear enough.
Asked whether Congress could pass a law that just adopted the law of a foreign
government, the attorney for the state of Texas answered, “Your Honor, that’s
exactly the problem. If Congress were to pass a law giving Her Royal Highness
the Queen of England the power to write rules that govern divorce proceedings
here in Orleans Parish, Louisiana, it would be declared unconstitutional in the
blink of an eye.”
There are many other ways in which ICWA intrudes on the
autonomy of states—detailed in this article—but these alone are reasons
enough to declare it unconstitutional. Whatever power Congress might have over
tribal members, or people who reside on reservations, it has no authority to do
what ICWA does: to override how states administer their own child welfare laws
for kids who live not on reservation but in ordinary cities and towns, and who
may not even be tribal members—but who simply qualify for membership based on
their genetic ancestry.
Timothy Sandefur
is the Vice President for Litigation at the Goldwater Institute.
