Excerpted From: Matthew L.M. Fletcher and Randall F. Khalil, Preemption, Commandeering, and the Indian Child Welfare Act, 2022 Wisconsin Law Review 1199 (2022) (241 Footnotes) (Full Document)


fletcherKhalilIn the language of the Anishinaabe nations, the words for baby or young child are binoojiinh (Ojibwe and Odawa) and penojé (Bodewadmi), which means literally “a young spirit coming forth.” For Anishinaabe people, children are supernatural creatures. They come into the world with powers of observation and learning far exceeding that of grown people. They are treated with deference and respect. Anishinaabe people take their obligations to children seriously. Anishinaabe children “learn about governance, power, decision making and our political cultures” through their place in family. Anishinaabe people privilege connectivity over individuality, harmony over control, and deference to Anishinaabewaki, the world around us. Aabawaadiziwin means “togetherness,” a manifestation of the political philosophies rooted in Anishinaabe culture. Anishinaabe people hope to teach their children to “[m]aintain[] balance and harmony through good relationships.”

In contrast, American political philosophy is rooted in dominion, hierarchy, and power. Life is compartmentalized, not interconnected. “At common law, children were treated as chattel.” First year law students learn in Torts that American courts valued children primarily by the economic value of their labor; if children were lost, the cost could quickly be offset by the production of another child. Because the law presumed children's economic value declined as children stopped entering the workforce in great numbers, it makes sense that state governments did virtually nothing to establish governmental service programs for children in need at the Founding until well into the 20th century. Because child welfare services are expensive and, again, children generate little economic value as a matter of law, it makes further sense that child protective services that states eventually established were poorly designed and funded. And because these services are directed toward underprivileged persons, it was all too easy for states to weaponize those services against poor people and people of color. If child welfare systems are microcosms of the government American children learn, then American children learn a very specific form of brutal government.

As any observer of American history realizes, the American government (and its colonial predecessors) focused policies of dominion, hierarchy, and power on Native families for centuries. A government rooted in dominion, hierarchy, and power still uses exactly those tools to remedy these harms. Only in the last half century or so has the United States government begun to take small steps to acknowledge and repair the intergenerational harms these policies caused. One of Congress's key tools for this is Section 5 of the Fourteenth Amendment.

American Indian affairs and the Fourteenth Amendment have a strange, undertheorized relationship. It is well established that Congress possesses plenary power in Indian affairs by virtue of several Constitutional provisions, the structure of the Constitution, and treaties made with Indian tribes. The Supreme Court has pointed to the Commerce Clause, the Treaty Power, the Property and Territory Clause, and even the preconstitutional powers of the United States as sources of this power. The Court has also held that the relationship between Indian tribes and the United States, known since the Founding as the “duty of protection,” is also a source of Congressional power. Virtually all of federal Indian law--acts of Congress, executive orders, federal regulations, and Indian treaties--derive from these sources of authority.

What is almost always missing from listings of sources of Congressional power is Section 5 of the Fourteenth Amendment--the enforcement power. Remedial civil rights statutes constitute a healthy proportion of Congressional enactments in Indian affairs. Most obviously, there is the Indian Civil Rights Act, which requires tribal governments to guarantee certain civil rights to persons under tribal jurisdiction. There is a law extending American citizenship to all American Indians. There is a law authorizing the Interior Secretary to acquire land in trust to restore lost tribal lands. There is also a law authorizing tribal courts to issue personal protection orders and obligating state courts to give full faith and credit to those orders. Occasionally, federal courts are asked to assess the constitutionality of these statutes. The challenges almost always involve the scope of Congress' power under the Commerce Clause or the Treaty Clause, but we are aware of no challenge in which a party invoked Section 5.

One of the most important, most litigated, and most controversial Indian affairs-related civil rights statutes is the Indian Child Welfare Act ( ICWA). ICWA [Indian Child Welfare Act] partially strips state courts of jurisdiction over certain child welfare matters involving Indian children and imposes obligations on state governments as a means of remedying decades of horrific civil rights abuses perpetrated by states throughout the mid-twentieth century. Nine states have adopted portions of ICWA [Indian Child Welfare Act] as state law or have adopted modified versions of ICWA [Indian Child Welfare Act] even more protective of Indian families than ICWA [Indian Child Welfare Act] itself.

Late in the October Term 2021, the Supreme Court agreed to review wide-ranging constitutional challenges to ICWA [Indian Child Welfare Act] brought by the State of Texas and three non-Indian foster families in the October Term 2022. The Fifth Circuit, sitting en banc, held that certain provisions within ICWA [Indian Child Welfare Act] violated the anti-commandeering principle implied in the Tenth Amendment and the equal protection component implied in the Fifth Amendment's Due Process Clause. Texas and the foster families also argued Congress does not possess the power to enact ICWA [Indian Child Welfare Act] and that it violates the non-delegation doctrine.

This Essay focuses on the anti-commandeering challenges. We argue that the anti-commandeering challenges against ICWA [Indian Child Welfare Act] are unfounded because all provisions of ICWA [Indian Child Welfare Act] validly and expressly preempt state law. ICWA [Indian Child Welfare Act] mostly provides a set of legal standards for state courts to apply in child status proceedings involving Indian children, and Congress's power to compel state courts to apply federal law is long established and beyond question. ICWA [Indian Child Welfare Act] is a valid exercise of Congressional power. ICWA [Indian Child Welfare Act] creates a set of rights under federal law protecting parents and Indian custodians of Indian children and in no way directly regulates or commands the States.

We have no doubt that Congress's Indian affairs powers authorize the enactment of ICWA [Indian Child Welfare Act] (a conclusion reached even by the Fifth Circuit). Yet strangely, no party has ever invoked Congress's power under Section 5 of the Fourteenth Amendment to assess its constitutionality. Perhaps the reason is that Congress itself implicitly claimed to invoke only its Indian affairs powers to enact ICWA [Indian Child Welfare Act], not Section 5. ICWA [Indian Child Welfare Act] seems like an obvious candidate for analysis under Congress's Section 5 enforcement powers. States routinely discriminated against American Indian families based on their race and ancestry (and religion and culture). Congress designed ICWA [Indian Child Welfare Act] to remedy the abuses of state courts and agencies. We have no doubt that Section 5 provides Congress with power sufficient to defeat the anti-commandeering concerns. ICWA [Indian Child Welfare Act] is valid federal law which state courts must apply. Finally, we conclude that states retain the power to comply with ICWA [Indian Child Welfare Act] even if it is declared unconstitutional.

We begin in Part I with a description of the Indian Child Welfare Act and the attacks on its constitutionality. In Part II, we explain anti-commandeering and preemption doctrine and the distinction between them. In Part III, we argue that ICWA [Indian Child Welfare Act] creates individual rights under federal law and validly preempts contrary state law without violating the Tenth Amendment's anti-commandeering principle. In Part IV, we provide a short description of the role (or lack thereof) of the Fourteenth Amendment in Indian affairs and argue that even if portions of ICWA [Indian Child Welfare Act] violate the anti-commandeering principle, they are nonetheless constitutional because Congress possesses power under Section 5 of the Fourteenth Amendment to enact them using a theory of remedial commandeering.

[. . .]

The Indian Child Welfare Act continues to be an important statute. Race discrimination by state actors, after all, cannot be legislated away. Consider the suit brought by the Oglala Sioux Tribe against state judges in Rapid City, South Dakota, Oglala Sioux Tribe v. Van Hunnik. The court found that the practices of state judges, led by Judge Jeff Davis, routinely violated Indian parents' and custodians' due process rights:

Judge Davis does not permit Indian parents to present evidence opposing the State's petition for temporary custody. Judge Davis prevents Indian parents from cross-examining any of the State's witnesses who would support of the petition. Judge Davis does not require the States Attorney or [Department of Social Services] to call witnesses to support removal of Indian children nor does Judge Davis permit testimony as to whether a removed child is in immediate risk of harm if returned to her parents.

The court added further that Judge Davis' practices plainly violate ICWA [Indian Child Welfare Act]:

Judge Davis does not conduct any inquiry during the 48-hour hearings to determine whether emergency removal remains necessary. He permits no testimony by the Indian parents or presentation of testimony by the tribal attorney to determine whether the risk of imminent physical harm has passed. Contrary to the clear intent of ICWA [Indian Child Welfare Act], the [Department of the Interior] Guidelines and the [South Dakota] Guidelines, all of which contemplate evidence will be presented on the record in open court, Judge Davis relies on the ICWA [Indian Child Welfare Act] affidavit and petition for temporary custody which routinely are disclosed only to him and not to the Indian parents, their attorney or custodians. These undisclosed documents are not subject to cross-examination or challenge by the presentation of contradictory evidence.

The federal district court concluded that the Rapid City judiciary's practices violated the Due Process Clause:

Judge Davis and the other defendants failed to protect Indian parents' fundamental rights to a fair hearing by not allowing them to present evidence to contradict the State's removal documents. The defendants failed by not allowing the parents to confront and cross-examine DSS witnesses. The defendants failed by using documents as a basis for the court's decisions which were not provided to the parents and which were not received in evidence at the 48-hour hearings.

Plaintiffs are entitled to judgment as a matter of law on their Due Process Clause claims.

In short, the “wholesale” removal of Indian children from their Indian parents and custodians that so concerned Congress in 1978 never stopped in Rapid City.

Van Hunnik is perhaps an extreme example, but recent studies conclude that state court compliance with ICWA [Indian Child Welfare Act] is unusually rare. In 2015, a Casey Family Programs study found that state compliance with ICWA [Indian Child Welfare Act] was “inconsistent.” Another study found that adoption attorneys often intentionally violate or subvert compliance with ICWA [Indian Child Welfare Act]. This year, scholars reviewing ICWA [Indian Child Welfare Act] compliance studies found that tribes do not receive notice of ICWA [Indian Child Welfare Act]-eligible cases, children are under-identified as Indian children, ICWA [Indian Child Welfare Act] cases are treated the same as non- ICWA [Indian Child Welfare Act] cases, and more. One consequence to the lack of compliance is that “Native American children are continuously overrepresented at alarmingly high rates in the child welfare system.”

Other states go the opposite direction, going so far as to codify and domesticate ICWA [Indian Child Welfare Act]. Ten states, most recently New Mexico's Indian Family Preservation Act, have adopted such laws. State laws enacted in furtherance of the federal government's duty of protection to Indians and Indian tribes are valid under the Fourteenth Amendment Equal Protection Clause. Recently, the Washington Supreme Court roundly approved of and broadly applied the Washington Indian Child Welfare Act, which extended protections to Indian children where their parents were not yet enrolled as a tribal citizen. ICWA [Indian Child Welfare Act] defines “Indian child” as one who is either a member of an Indian tribe or is the biological child of a tribal member. The court relied on ICWA [Indian Child Welfare Act], but in an important alternative holding, concluded that the state statute alone was a sufficient and valid basis for reaching that conclusion.

All of this is to say that twenty percent of states have endorsed ICWA [Indian Child Welfare Act] through positive legislation adopting or domesticating the law. These states have learned the ICWA [Indian Child Welfare Act] lesson.

Where state actors comply with ICWA [Indian Child Welfare Act], success stories abound. Consider the story of Chief Judge Allie Greenleaf Maldonado, a citizen of the Little Traverse Bay Bands of Odawa Indians:

I am looking at a picture of a beautiful little boy who is a citizen of the Little River Band of Odawa Indians. He is my son. He became my son because of ICWA [Indian Child Welfare Act].

His 14-year-old biological mother ran away to Nevada where she gave birth. The State of Nevada immediately took custody of the baby and placed him into a non-relative, non-Indian placement. However, the Little River Band was properly notified and the tribe intervened. The good people of Nevada wanted to follow ICWA [Indian Child Welfare Act] and so they asked the tribe for an appropriate placement.

If they had not followed ICWA [Indian Child Welfare Act], under Nevada law, the family that brought him home from the hospital would have maintained custody and would have had the first right to adopt him if no family members came forward. They were very nice people, great people, but they had no ties to the Native community whatsoever. My son would have been brought up thousands of miles from his tribe and his culture but for ICWA [Indian Child Welfare Act].

However, because he is Indian, and Nevada followed federal law, he was transported back to Michigan and placed into foster care with my husband and me. I am from a sister tribe and member of the same clan as my son, so the tribe decided we were an appropriate placement. After about two years of trying to reunite him with his birth mother, both birth parents voluntarily gave up their parental rights and we were allowed to adopt him.

In the Anishinaabe traditional creation stories, Gitchi Manitou (the great mystery) created Anishinaabewaki (the world). The first human beings were created and introduced into Anishinaabewaki last. They were physically weak compared to other entities and creatures already present in and around the world, creatures like mukwaag (bears) and entities like animikiiwaag (thunderers). But these had two great powers: independence and the power to dream. These earliest humans forgot the Ki Inaakonigewin (great laws), which angered Gitchi Manitou. They sent a great flood and destroyed all of Anishinaabewaki, including all of the Anishinaabeg. There was one creature who remained, Gizhigokwe (Sky Woman), who lived in the sky. Gizhigokwe descended onto the world, landing on the back of mikinaak (turtle) and created new people, known as the Anishinaabeg. These Anishinaabeg were different than the earlier people. They were not made of earth, water, fire, and wind--they were “spontaneous creatures.” The Anishinaabeg are the manifestation of the full circle of creation, destruction, and recreation.

The very existence of an Anishinaabe binoojiinhl penojé is the continuing manifestation of this cycle of re-creation. As Leanne Simpson concludes, “Nishnaabeg parenting was rooted in attachment, following children through their stages of development, with empathy, patience, unconditional love, mutual respect, and freedom of choice.” Children are not chattel. Children are people with agency, to whom we are all obligated. And because children are effectively agents of change, they are the greatest threats to those who now possess power. It is obvious why colonizers and oppressors target children.

Congress has power to enact ICWA [Indian Child Welfare Act], to preempt inconstant state laws, and require that state courts apply it. Even if some provisions of ICWA [Indian Child Welfare Act] violated that Anti-commandeering principle of the Tenth Amendment, Congress has potent power under Section 5 to enact those provisions and to force state actors to comply with it.

Harry Burns Hutchins Collegiate Professor of Law and Professor of American Culture, University of Michigan. J.D., University of Michigan Law School, 1997.

J.D., University of Michigan Law School, 2022.