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The Federalism Problems with the Indian Child Welfare Act

July 11, 2022

The Indian Child Welfare Act (ICWA) imposes cruel burdens on some of the nation’s most vulnerable children—depriving Native American kids of the legal protections that other children enjoy and forcing state child welfare officials to return abused Native kids to the families who are hurting them. But ICWA is also a brazen violation of the U.S. Constitution’s system for dividing power between the states and the federal government. As I explain in my new article, “The Federalism Problems with the Indian Child Welfare Act,” now available from the Texas Review of Law and Politics, ICWA goes far beyond anything Congress has power to do, and deprives states of their constitutional authority—and duty—to protect the rights of their citizens.

This article is the second in a two-part series addressing the constitutional questions that are now pending in the Brackeen case in the Supreme Court. In the first article, I explored how ICWA treats people differently on the basis of race, which violates the nation’s highest law. In this article—which was originally scheduled for publication in the American Indian Law Review before it chose to “cancel” me, instead—I explain how, even aside from drawing racial lines, ICWA also defies the Constitution’s system of federalism.

That system leaves questions involving child safety, foster care, and adoption primarily to the states, and gives Congress no power to intrude on legal issues involving family law. Where, then, does Congress get authority to enact ICWA? Experts claim this power comes from the Commerce Clause, which says Congress can “regulate commerce with foreign nations, and among the several states, and with the Indian tribes.” But child safety, adoption, foster care, and such matters aren’t “commerce.”

And even if “commerce” were broad enough to include such questions, Congress’ powers are still limited when using this authority, in ways that ICWA ignores. For example, even when using its “commerce” power, Congress can’t force states to enforce federal laws if states don’t want to. (That’s the principle known as “anti-commandeering.”) Yet ICWA forces state officials to implement federal law even when it’s contrary to the state’s laws. That’s unconstitutional. Nor can Congress, when using its “commerce” power, force American citizens into court systems that lack the protections of the Bill of Rights. Yet ICWA does that, too.

Defenders of the status quo typically resort to arguing that Congress has “plenary” power with respect to Indian tribes. But this is misleading. The Constitution makes no reference to this “plenary” power, which is actually a theory cobbled together by modern law professors. The theory holds that because the federal government was often at war with tribes in the past, its power with respect to tribes today is basically the same as a conqueror would have over a subject populace after a successful war. But that way of looking at things ignores, among other things, the 1924 Indian Citizenship Act, which conferred American citizenship on all Native Americans and put an end to the notion that Natives are a hostile enemy race. For 98 years now, all Native Americans have been citizens of the United States, entitled to the same rights as all other Americans—rights ICWA deprives them of. Congress does not have “plenary” power over American citizens—that’s just why we have a Constitution.

Yet even if Congress has “plenary” power with respect to tribes, that would not justify ICWA’s violations of the principles of federalism. After all, the Supreme Court has also said that Congress has “plenary” power under the Interstate Commerce Clause with respect to foreign nations, the military, and even the citizens of Washington, D.C. Yet in all these areas, too, Congress is obliged to respect constitutional limits—including the “anti-commandeering” principle and the rule against sending people to court systems that lack constitutional protections.

There are many constitutional subtleties to the federalism questions at issue in the Brackeen lawsuit. I delve into these in detail in my article, which shows why ICWA doesn’t just harm at-risk Native children—it also flouts the fundamental structure of our Constitution.

You can read my article in the Texas Review of Law and Politics here, and you can learn more about what Goldwater is doing to ensure equal protection for Native children here.

Timothy Sandefur is the Vice President for Litigation at the Goldwater Institute.



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