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Cancelling Debate over ICWA

December 1, 2021

December 1, 2021
By Timothy Sandefur

The Indian Child Welfare Act (ICWA) is a federal law that restricts the ability of states to protect Native American children from abuse, or to find them adoptive homes when needed. The Goldwater Institute’s Equal Protection for Indian Children project is devoted to defending children against its unconstitutional burdens—and ICWA is now the subject of a lawsuit pending before the U.S. Supreme Court. In that case, the Fifth Circuit struck down portions of ICWA because it intrudes on the powers reserved to states, violating the federalism principles of the Constitution.

But in some quarters, any debate over the constitutionality of ICWA is considered politically unacceptable. And in today’s “cancel culture” atmosphere, it’s become common for bar associations and universities to try to silence any discussion of the issue. In late 2017, Goldwater Institute attorney Adi Dynar was scheduled to speak at Michigan State University about ICWA—only to have that event cancelled at the insistence of a professor who runs the University’s “ICWA Appellate Project.” In 2018, the Minnesota Bar Association cancelled a presentation by Mark Fiddler—one of the nation’s leading ICWA experts—because he is a high-profile critic of the Act. And in the latest example, the American Indian Law Review has cancelled publication of my article, “The Federalism Problems with the Indian Child Welfare Act,” after the Review accepted it—and signed a publication agreement—in May of last year.

Law reviews publish scholarship and debate on legal and constitutional questions, and, unlike scientific journals, they’re typically run by students, who choose the articles to be published and then assist the author in finalizing it for publication, by double-checking citations and ensuring the article is readable. Law reviews are an important forum for discussing different legal perspectives and providing research for lawyers and judges. The American Indian Law Review calls itself “a nationwide scholarly forum for analysis of developments in legal issues pertaining to Native Americans and indigenous peoples worldwide.”

But that turns out not to be true. On November 23, the Review’s editor in chief wrote to say “there are significant issues that emerged with your article that have raised concerns with the Board of AILR. After long deliberation and careful thought, the Board has determined that it is in the best interest of the journal to withhold publication of your article.”

What “issues” could justify cancellation of an article that the Review already accepted? The publication contract specifies the reasons for which the Review may withhold publication. They are: 1) the copyright is invalid, 2) copies are used for classroom use without the Review’s permission, 3) the article is not the author’s own work; 4) there is previous publication (except that we agreed that I could post drafts of the article on SSRN), 5) research deficiencies such as plagiarism, or 6) refusal to cooperate with the editing process. None of these have occurred.

A week later, the editor specified the “issues” she was referring to:

The article contains unforeseen research deficiencies. Among the deficiencies is the fact that the primary argument of the article is inconsistent with long-standing case law. ICWA does not address questions of race, and the article ignores Supreme Court precedent on the Indian Commerce Clause. The Court has explicitly stated that “Indian” is not a racial category, but instead a political classification. And although biological classifications may be a proxy for race, the Court has clarified that that principle does not apply in the Indian law context. The biological references therefore ignore several landmark decisions by the Court in Indian law jurisprudence.  

Additionally, the Plenary Power Doctrine is clear that the plenary power of Congress is generally held exclusive of the states. This power is interpreted incredibly broadly and covers the authority to protect tribal children in communities. The article also mentions the 1924 Citizenship Act; however, since the passing of that Act, Title 25 has repeatedly been amended and expanded, and has been deemed not to deprive the federal government of its plenary power over Indian affairs. The Court has repeatedly held that the Act did not take away the Federal Government’s ability to regulate Indian Affairs.  

Your arguments to the contrary disregard the common law tools that the Court has used for two centuries to find that the Federal Government has exclusive authority over Native American persons and property. Due to the magnitude of these unforeseen research deficiencies, we will not be able to make the modifications necessary to publish this article in our academic journal.

You can read the draft of the article here and see that none of these things are true. I discuss the plenary power doctrine in detail on pages 9 through 20, and the Indian Commerce Clause precedent on pages 9-14 and 22-25. As for the “racial” issue, the article simply does not address that at all, because it’s not the subject of the article. In fact, it uses the word “racial” precisely one time, on page 2, where it says it will not address the racial/non-racial question. As for the idea that the article “disregard[s] the common law tools that the Court has used for two centuries,” that is obviously false: The entire article employs those tools to argue that ICWA contradicts existing precedents regarding federalism.

I have made no changes to the article since it was accepted in May. If the article was unpublishable due to “research deficiencies,” why did the Review accept the article in the first place—and sign a publication contract? Since the article is unchanged, these alleged “deficiencies” cannot have been “unforeseen.”

The answer is obvious: The student editors view my argument—that ICWA does indeed have serious federalism problems—as politically unacceptable. Despite the fact that this is a position that a dozen judges on the Fifth Circuit Court of Appeals have agreed with, the Review will not tolerate discussion of it. The alleged “deficiencies” are the editors’ excuse to stifle open discussion of what is probably the most pressing constitutional issue in Indian law today. So much for “a nationwide scholarly forum for analysis.”

Fortunately, this effort at cancelling me has failed. The Texas Review of Law and Politics has stepped in, and yesterday, I signed an agreement to publish the article in their Spring 2022 issue, meaning that there will be no delay in getting the paper out. My thanks to that journal, and my congratulations to the University of Texas for living up to a standard that the Oklahoma University College of Law has betrayed.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute. He has litigated several Indian Child Welfare Act cases.



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