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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
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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 …