In its foundational Indian law decisions, the U.S. Supreme Court has consistently recognized federal supremacy on all matters regarding Indian affairs. This plenary power can preempt both Tribal and state authorities. SCOTUS granted certiorari in Haaland v. Brackeen to assess the constitutionality of the Indian Child Welfare Act (ICWA), with some of the challenges being on the basis that the law infringes on state authority under the Tenth Amendment’s anticommandeering doctrine. Indian country anxiously awaited to see if the court would once again abandon longstanding Indian law precedent in favor of state rights, as it recently did in Oklahoma v. Castro Huerta. The court concluded that ICWA was valid. But, the decision left me confounded on the continued viability of anticommandeering arguments to strike down federal Indian affairs legislation. Fortunately, Professor Ann Tweedy’s recent article, Anticommandeering & Indian Affairs Legislation, published in the Harvard Journal on Legislation, considers the applicability of anticommandeering to Indian law following Brackeen.
The anticommandeering doctrine holds that when Congress requires states to adopt or enforce federal law, such actions violate the Tenth Amendment. First articulated by the Supreme Court in the 1990s under the Rehnquist court, the doctrine has been successfully used to strike out provisions of various pieces of federal legislation including the Low-Level Radioactive Waste Policy Amendments Act (required states to take title and assume liability for radioactive waste within their borders), the Brady Handgun Violence Protection Act (required state and local law enforcement to conduct background checks on prospective gun buyers), and the Professional and Amateur Sports Protection Act (prohibited states from establishing sports gambling regulatory schemes).
Congress passed ICWA in 1978 in response to “an alarmingly high percentage of Indian families [] broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and [] an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.” In custody proceedings involving an Indian child, the law provides Tribes sole jurisdiction when the child resides or is domiciled in Indian country or when the child is a ward of a Tribal court. In all other scenarios, Tribes and states maintain concurrent jurisdiction. When the proceedings are in state court, ICWA mandates substantive and procedural safeguards to ensure Tribal access to the proceedings and to prevent the breakup of Indian families. ICWA also establishes placement preferences for members of the child’s extended family; other members of the Indian child’s Tribe; and other Indian families. ICWA has led to increased Tribal participation and Indian placements in applicable child custody proceedings.
The original plaintiffs (three non-Native couples, the birth mother of an Indian child, and Texas, Louisiana, and Indiana) challenged ICWA on a variety of bases, including the nondelegation doctrine, the Equal Protection Clause, and the Tenth Amendment. In the Court’s June 2023 decision, none of these challenges proved successful, although the Court dismissed the equal protection arguments due to lack of standing, leaving room for future litigation on that issue on the merits. In the context of anticommandeering, Justice Barrett, writing for the majority (joined by Roberts, Sotomayor, Kagan, Gorsuch, Kavanaugh, and Jackson), dismissed the numerous anticommandeering arguments raised by the plaintiffs against various ICWA provisions. Professor Tweedy deftly untangles all of the arguments and the Court’s response against their application.
To summarize, the Court concluded that the anticommandeering doctrine does not apply to legislation like ICWA “that applies ‘evenhandedly’ to state and private actors.” It also found that ICWA’s placement preferences and recordkeeping requirements were not sufficiently burdensome to run afoul of the Tenth Amendment. Finally, it found that Congress can direct state courts to follow federal law due to federal preemption.
Although the anticommandeering doctrine was not successful in striking down ICWA, it could be successful in striking down other federal Indian laws. Professor Tweedy argues that the majority could have made the case against the application of the anticommandeering doctrine more simply and more broadly: “[T]he Tenth Amendment generally has no application in the context of Indian Affairs legislation, particularly where Congress has directly spoken on an issue, given Congress’s plenary power in that area.” (P. 59.) Instead, the Court took what Professor Tweedy describes as a “granular” approach the application of the anticommandeering doctrine in Indian affairs. By doing so, the Court opens the floodgates to litigation on other Indian affairs legislation.
Professor Tweedy highlights another important flaw in the majority’s discussion of anticommandeering. The Court had previously only examined the anticommandeering doctrine against federal legislation passed under Congress’s interstate commerce authority. The Court fails to consider whether the doctrine should apply in the context of the Indian Commerce Clause, part of the basis of federal supremacy in Indian affairs, the scope of which differs from that of the Interstate Commerce Clause.
The anticommandeering doctrine is not going away. But Professor Tweedy’s important work may provide a path to limit the viability of anticommandeering claims in Indian country moving forward.
