Ann E. Tweedy has posted “Anticommandeering and Indian Affairs Legislation,” forthcoming in the Harvard Journal on Legislation, on SSRN.
Here is the abstract:
The Supreme Court recently applied the narrow and relatively new anticommandeering doctrine for the first time to federal Indian Affairs legislation in Halaand v. Brackeen without explaining why the doctrine should be extended from the Interstate Commerce Clause context to that of the Indian Commerce Clause, as well as to the other congressional powers that form the basis of the Indian Child Welfare Act (ICWA). In subsequent cases relating to Indian Affairs legislation, the Court should clarify that only a very narrow version of the anticommandeering doctrine applies in this context because of the virtual absence of state authority in the area and the history of acceptance of federal activities that can be described as commandeering state enforcement activities. Existing literature in this area is limited, with Matthew Fletcher and Randall Khalil having argued, before Brackeen was issued, that ICWA should be interpreted as having been enacted under Section 5 of the Fourteenth Amendment, an invitation that the Court ultimately did not take up. This Essay, The Diminished Significance of the Anticommandeering Doctrine in the Context of Indian Affairs Legislation, is important because it explains holes in the Court’s reasoning in Brackeen and because it safeguards Congress’s ability to protect Native Americans and Tribes from longstanding abusive state practices such as the unwarranted removal of Indian children from their homes.
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