Fletcher and Khalil on ICWA Preemption and Commandeering

Fletcher and Randall F. Khalil have posted “Preemption, Commandeering, and the Indian Child Welfare Act,” forthcoming in the Wisconsin Law Review, on SSRN. This paper is part of the law review’s symposium on Interpretation in the States.

The abstract:

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.

The Wisconsin Law School gargoyle.

Elizabeth Reese on the People’s Tenth Amendment

Elizabeth Reese has posted “Or to the People: Popular Sovereignty and the Power to Choose a Government,” published in the Cardozo Law Review, on SSRN.

Here is the abstract:

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.

Federal Judge Rules ICWA Unconstitutional in Brackeen v. Zinke

Here is the opinion in Brackeen v. Zinke (N.D. Tex.):

166_DCT Order.pdf

Case page with briefs here.

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.

2nd Circuit Affirms Oneida Fee into Trust Judgment

Here are the materials in the matter of Upstate Citizens for Equality v. United States of America, 15-cv-01688 (Nov. 9, 2016):

Doc. 100 Brief for Plaintiffs-Appellants Town of Vernon, New York, Town of Verona, Abraham Acee and Arthur Strife

Doc. 101 Brief and Special Appendix for Plaintiffs Appellants Upstate Citizens for Equality, Inc., David Brown Vickers, Richard Tallcot, Scott Peterman and Daniel T. Warren

Doc. 134 Reply Brief for Plaintiffs-Appellants Town of Vernon, New York, Town of Verona, Abraham Acee and Arthur Strife

Doc. 149 Reply Brief for Plaintiffs-Appellants Upstate Citizens for Equality, Inc., David Brown Vickers, Richard Tallcot, Scott Peterman and Daniel T. Warren

Doc. 151 Response Brief of the Federal Defendants-Appellees

Doc. 183 Judgment

Link to previously posted lower court materials here.

Challenge to Oneida Fee to Trust Defeated

Here are the materials in Upstate Citizens for Equality v. Jewell (N.D. N.Y.):

79-1 US Motion for Summary J

80 UCE Response

81 US Reply

84 DCT Order

And the materials in Central New York Fair Business Association v. Jewell (N.D. N.Y.):

114-1 US Motion for Summary J

119 Response

122 Reply

127 DCT Order

And the materials in Town of Verona v. Jewell (N.D. N.Y.):

64-9 Town Motion for Summary J

65-1 US Motion for Summary J

67 Town Response

68 US Response

69 US Reply

81 DCT Order

Available Briefs in Second Circuit Appeal of Constitutional Challenge to IGRA and Seneca Compacts

Here are the appellee briefs in Warren v. United States:

Brief for Federal Appellees

Brief for New York Appellees

Brief for Seneca Nation Amicus

Lower court materials here.

Constitutional Challenge to IGRA by Anti-Seneca Gaming Advocate Rejected

As first noted on Indianz, here are the materials in Warren v. United States (W.D. N.Y.):

Warren Proposed Amended Complaint

USA 1st Motion to Dismiss

USA 2nd Motion to Dismiss

DCT Order Dismissing Warren Complaint

UPDATE: 01 Amicus Seneca Nation of Indians’ Response to Plaintiff’s Motion to Amend Complaint 

Goldsmith on the Agua Caliente State Election Case

Gary Goldsmith has published “Big Spenders in State Elections–Has Financial Participation by Indian Tribes Defined the Limits of Tribal Sovereign Immunity From Suit” in the William Mitchell Law Review.

From the introduction:

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.