Commandeering Confrontation: A Novel Threat to the Indian Child Welfare Act and Tribal Sovereignty

Congress enacted the Indian Child Welfare Act (“ICWA”) in 1978 to address abuses by state and private child welfare agencies that resulted in the forced removal of roughly one-third of all Indian children from their families. However, four decades after the passage of the law, opponents of ICWA make the novel argument that it impermissibly commandeers the States, in violation of the Tenth Amendment. In Brackeen v. Bernhardt—a 2018 decision that contradicted much of modern anti-commandeering doctrine—the U.S. District Court for the Northern District of Texas became the first court to declare ICWA unconstitutional. The anti-commandeering challenge to ICWA threatens to upend much of federal Indian law and to disrupt the delicate balance of power among states, tribes, and the federal government. This Note refutes the claim that ICWA commandeers the States. The commandeering claims advanced against ICWA contradict settled Supreme Court doctrine and misconstrue the practical application of the statute. Under a proper reading of modern anti-commandeering jurisprudence and an informed understanding of how state child custody proceedings work, it is clear that ICWA falls well within the bounds of the Tenth Amendment.