The Federalism Problems with the Indian Child Welfare Act

55 Pages Posted: 28 May 2021 Last revised: 22 Jun 2022

Date Written: May 26, 2021

Abstract

The Indian Child Welfare Act of 1978 (ICWA) establishes a set of rules governing child welfare cases involving “Indian children.” These rules override state law and reduce the protections afforded to such children, thereby making it harder for state child welfare agencies to protect them from abuse or neglect, or to find them adoptive homes when needed. Because ICWA’s definition of “Indian child” is based on genetic ancestry, the Act has come under criticism for establishing a prohibited racial classification. But ICWA also intrudes on other constitutional values, involving the relationship between the federal government and the states. In the 2018 case of Brackeen v. Zinke, a federal district court found various provisions of ICWA unconstitutional on the grounds that they violated federalism principles. That decision was partially affirmed and partially reversed by a narrowly divided en banc panel that released opinions totaling more than 300 pages, addressing many of these important structural constitutional questions. This article sets aside debates about race to discuss, in light of the Brackeen decision, how ICWA violates principles of federalism—specifically, the limits on Congress’s regulatory powers, the anti-commandeering principle, and the non-delegation doctrine.

Keywords: ICWA, Indian Child Welfare Act, Brackeen, federalism, Native American children, non-delegation, commandeering

Suggested Citation

Sandefur, Timothy, The Federalism Problems with the Indian Child Welfare Act (May 26, 2021). Texas Review of Law & Politics, Forthcoming 2022, Available at SSRN: https://ssrn.com/abstract=3853970

Timothy Sandefur (Contact Author)

Goldwater Institute ( email )

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