This year (2022), the Supreme Court agreed to review wide-ranging constitutional challenges to the Indian Child Welfare Act (ICWA) brought by the State of Texas and three non-Indian foster families in the October 2022 Term. The Fifth Circuit, sitting en banc, held that certain provisions of ICWA violated the anticommandeering principle implied in the Tenth Amendment and the equal protection component of the Fifth Amendment’s Due Process Clause. We argue that the anticommandeering challenges against ICWA are unfounded because all provisions of ICWA provides a set of legal standards to be applied in state which validly and expressly preempt state law without unlawfully commandeering the States’ executive or legislative branches. Congress’s power to compel state courts to apply federal law is long established and beyond question. Yet even if some provisions of ICWA did violate the Tenth, we argue that Section 5 of the Fourteenth Amendment sufficiently authorizes Congress’s enactment of ICWA so as to defeat the anti-commandeering concerns. Strangely, no party ever invoked Congress’s power under Section 5 of the Fourteenth Amendment to assess its constitutionality. ICWA seems like an obvious candidate for analysis under Congress’s enforcement powers under Section 5. States routinely discriminated against American Indian families on the basis of their race and ancestry (and their religion and culture), and ICWA is designed to remedy the abuses of state courts and agencies. We further have no doubt that the state legislatures that adopted ICWA in whole, in part, or as modified also possessed the power to do so, even in the event the Supreme Court holds all or portions of ICWA unconstitutional.
To protect state sovereignty, contemporary textualism has reinvigorated the Tenth Amendment as a judicially enforceable limit on federal powers. However, in casting the Tenth Amendment as the states’ rights amendment, these textualists have inexplicably glossed over the Tenth Amendment’s final four words, which reserve powers to “the people.” This Article highlights this inconsistency and argues that this omission ignores a vital structural protection against federal and state tyranny. Viewed through the same textualism that reinvigorated state sovereignty, the Tenth Amendment’s final words cannot be redundant or superfluous but rather define and protect the people as a sovereign body capable of wielding specific powers — particularly those powers that the Constitution places beyond the reach of our governments. Primarily, the Tenth Amendment protects that power which is at the heart of popular sovereignty as well as the foundation of our democracy, the power of the people to choose their government. The Tenth Amendment ought to protect popular sovereignty — as it protects state sovereignty — by serving as a source for robust judicial review of federal and state laws that infringe on popular sovereignty. Recognizing this overlooked portion of the Tenth Amendment could alter current legal doctrine surrounding voting rights by treating free, fair, and accessible elections as a matter of competing sovereign powers rather than individual voting rights. By ignoring the people in the Tenth Amendment, American jurisprudence has ignored a vital structural protection against federal and state tyranny and risked government-driven erosion of democracy in America.
A federal court has held that ICWA violates the equal protection component of the Fifth Amendment’s Due Process Clause, rejecting the Morton v. Mancari argument and applying strict scrutiny. The court further held that ICWA violated the Tenth Amendment’s prohibition on commandeering state legislative functions. The court more or less summarily rejected the argument that the Indian Commerce Clause authorized Congress to enact ICWA. Finally, the court struck down the ICWA regulations.
Still, there will certainly be an appeal. The case is limited only to the parties involved.
In every election cycle, Indian tribes vigorously attempt to influence such critical matters of state governance as to who will be the state’s governor, who will be elected to the state’s legislative bodies, and what will be the provisions of the state’s constitution. These incursions into the realm of state governance have renewed questions about the sovereignty of Indian tribes in relation to the states’ sovereignty.
In order to understand those conflicting rights, this article will review the historical roots of legal doctrine regarding the position of Indian tribes with respect to the United States government and each state’s government. It will then trace significant doctrinal changes that arose as the result of changing political and cultural attitudes toward Indians. Finally, it will address new theories raised in Agua Caliente v. California FPPC and will comment on the California Supreme Court’s resolution of the constitutional issues and the parties’ eventual Stipulation for Judgment in that matter.
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