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Preemption, Commandeering, And The Indian Child Welfare Act, Matthew L.M. Fletcher, Randall F. Khalil
Preemption, Commandeering, And The Indian Child Welfare Act, Matthew L.M. Fletcher, Randall F. Khalil
Articles
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 anti-commandeering principle implied in the Tenth Amendment and the equal protection component of the Fifth Amendment’s Due Process Clause.
We argue that the anti-commandeering challenges against ICWA are unfounded because all provisions of ICWA provide a set of legal standards to be applied in states which validly and expressly preempt state …
The Indian Child Welfare Act: A Brief Overview To Contextualize Current Controversies., Frank E. E. Vandervort
The Indian Child Welfare Act: A Brief Overview To Contextualize Current Controversies., Frank E. E. Vandervort
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Congress passed and the president signed the Indian Child Welfare Act (ICWA) into federal law in 1978. Because the Constitution grants to Congress the authority to make law regarding Indian tribes, ICWA’s provisions are mandatory, unlike other federal child welfare legislation such as the Child Abuse Prevention and Treatment Act, which are voluntary. State authorities handling any case involving an “Indian child” must comply with ICWA.