This document is primarily for non-lawyers, so while you can @ me about details, there is a reason this document doesn’t get into the nitty gritty question of federal court jurisdiction in state court trials (please note the work the word “may” is doing). We hope this will be helpful for tribal social workers, their state counterparts, reporters, and maybe some lawyers who are trying to understand the implications of a 325 page decision.
Lower court materials here.
We’ve been looking forward to this article for a while. Highly recommended.
This Note argues that ICWA does not commandeer the States. Part I grounds the discussion in the history of genocide and colonization of Indian peoples. This historical context is crucial to understanding the passage of ICWA and the current reactionary effort to dismantle it. Part II provides a brief overview of the anti-commandeering doctrine and lays out the commandeering claims that opponents have leveled against ICWA. Additionally, this Part argues that ICWA fully aligns with modern anti-commandeering doctrine for four reasons. First, it is settled doctrine that state courts must enforce federal law. As such, anti-commandeering doctrine does not apply to state courts in the same way as it applies to the state political branches. Second, Congress may impose federal procedures on state courts to vindicate federal rights, federal causes of action, and–we argue–vital federal interests, including the protection of the federal trust obligation to Indian tribes. The procedural requirements imposed by ICWA on state courts fall within all three of these categories. Third, it is established doctrine that Congress may impose record-keeping requirements on the States, including the record-keeping required by ICWA. Fourth, contrary to the claims of its opponents, ICWA even-handedly regulates states and private entities, consistent with the Constitution’s anti-commandeering requirements. Part III explains the dangerous implications of the anti-commandeering argument for tribal sovereignty, demonstrating the high stakes of ICWA litigation for federal Indian law more broadly. The Note concludes with an exploration of how attacks on ICWA based on anti-commandeering doctrine threaten the very structure of federalism in the United States.
Whether the Restoration Act provides the Pueblo with sovereign authority to regulate non-prohibited gaming activities on its lands (including bingo), as set forth in the plain language of Section 107(b), the Act’s legislative history, and this Court’s holding in California v. Cabazon Band of Mission Indians, 480 U.S. 202 (1987), or whether the Fifth Circuit’s decision affirming Ysleta I correctly subjects the Pueblo to all Texas gaming regulations.
Lower court materials here.
Here are the briefs in Mitchell v. Bailey:
Lower court materials in Mitchell v. Bailey (W.D. Tex.):