ICWA and the Commerce Clause

The Indian Child Welfare Act at 30: Facing the Future, Matthew L.M. Fletcher & Wenona T. Singel, eds., Michigan State University Press, 2008

MSU Legal Studies Research Paper No. 04-25

22 Pages Posted: 3 Apr 2007 Last revised: 26 Jan 2016

Matthew L. M. Fletcher

Michigan State University College of Law

Date Written: 2008

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.

Suggested Citation

Fletcher, Matthew L. M., ICWA and the Commerce Clause (2008). The Indian Child Welfare Act at 30: Facing the Future, Matthew L.M. Fletcher & Wenona T. Singel, eds., Michigan State University Press, 2008; MSU Legal Studies Research Paper No. 04-25. Available at SSRN: https://ssrn.com/abstract=977325

Matthew L. M. Fletcher (Contact Author)

Michigan State University College of Law ( email )

318 Law College Building
East Lansing, MI 48824-1300
United States

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