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.
Leanne Gale, B.A. University of Pennsylvania 2015, J.D. Yale Law School 2020, Kelly E. McClure, B.Sc. Cornell University 2016, J.D. Yale Law School (expected) 2021. We are deeply grateful to Anne C. Dailey, Samuel Moyn, Douglas NeJaime, Gerald Torres, and Stephen L. Pevar for their critical feedback, contributions, and encouragement. Special thanks to Dan Lewerenz (Iowa Tribe of Kansas and Nebraska), Erin C. Dougherty Lynch, Adam H. Charnes, Kathryn E. Fort, Lisset M. Pino, Hannah Hussey, Lorenzo Gudino (Fort Sill Chiricahua Warm Springs Apache), and Briana M. Clark for their invaluable feedback. Thank you to Alexander S. Lewis, Destiny R. Lopez, Serena M. Walker, Justin M. Farmer, and Mary Charlotte Y. Carroll for your love and support, without which this project could not have been possible. Thank you to Reva Siegel, Justice Monica Márquez, Maggie Blackhawk (Fond du Lac Band of Lake Superior Ojibwe), Heather K. Gerken, Doug Kysar, Matthew L.M. Fletcher (Grand Traverse Band of Ottawa and Chippewa), and Gregory Ablavsky for your support and encouragement. We are indebted to the editors of the Yale Law & Policy Review for their careful editing and feedback.
