ICWA and the Commerce Clause

Abstract:     
Congress enacted the Indian Child Welfare Act, it said, in accordance with its authority under the Indian Commerce Clause and because it has assumed responsibility over Indian affairs. But under the line of cases developed by the Rehnquist Court, the Court takes a very dim view of Congressional authority under the Commerce Clause, while resurrecting the Tenth Amendment from its stasis as a "truism." At least one Justice asserts that there is nothing in the Constitution that authorizes Congress to assume authority over Indian affairs to the exclusion of the Executive branch or the states. This paper argues that, despite the Court's recent Commerce Clause jurisprudence, Congress had sufficient authority to enact the Indian Child Welfare Act. The intent of the paper is to present the strongest case for the constitutionality of the Indian Child Welfare Act as a matter of the original understanding of the Indian Commerce Clause.

Accepted Paper Series