Brackeen, the Indian Child Welfare Act, and the Presentment Clause: A Very Pink Herring

On Wednesday, the Fifth Circuit Court of Appeals will rehear Brackeen v. Bernhardt en banc, a broad constitutional challenge to the Indian Child Welfare Act. The argument will rehash many of the claims that the panel rejected—as well as a novel suggestion that ICWA violates the Presentment Clause, which requires that every bill pass Congress and be presented to the President for signature. Obviously, ICWA was signed by then-President Carter; the issue, rather, is whether ICWA contains, in the words of the Fifth Circuit’s order, an impermissible “delegation” of legislative power to tribes, presumably because it allows tribes to establish different placement preferences for Indian children.

That framing is flawed. As the briefing in the case ably demonstrates, ICWA is not a delegation to the tribes. One might think this was clear after the Supreme Court rejected the argument that tribal authority is delegated federal authority in 1896. Or again in 1978. Or again in 2004. Or again in 2016. Indian law can be famously confusing, but this principle is crystal clear.

To be fair to the Fifth Circuit, in Mazurie, the Supreme Court did use the language of delegation to affirm a tribe’s power to regulate liquor sales—likely using delegation because, as the Court would later note, tribes lacked any “inherent authority” over “liquor regulation,” in sharp contrast to family or criminal law. But Mazurie still does not help the Presentment Clause argument, since the Court there explicitly endorsed the principle that Congress could validate tribes’ legislative judgments.

If the Presentment Clause bars Congress from honoring the divergent policy judgments of other sovereigns, then federalism is in trouble. After all, as the briefs stress and the Supreme Court has explicitly endorsed, Congress has expressly adopted state law as federal law in the Assimilative Crimes Act and the Federal Tort Claims Act. It has expressly authorized states to create wage and hour standards higher than the federal government in the Federal Labor Standards Act. It has allowed states to establish different water and air quality standards from the federal government upon EPA approval, a power that the Court has repeatedly ruled on without saying boo.

The case that the Fifth Circuit’s order cited, Metropolitan Washington Airports Authority, is inapposite. In that case, Congress created a review board staffed by congressional representatives with aviation expertise—but they served in their “individual capacity.” The Court saw through this ruse, noting that, labels notwithstanding, this was effectively a federal review board. How this reasoning sweeps in hundreds of independently elected tribal councils is unclear; the leaps of logic required would likely render state legislatures federal instruments, too.

All these intricacies are wholly unnecessary. Rather than requiring a dive into the obscure realms of the Presentment Clause, the ICWA provision concerning placement preferences is in fact a garden-variety legislative device: a preemption savings clause, which explicitly reserves to other sovereigns the power to legislate. Congress has specified the circumstances when federal law applies, and when tribal law applies instead. Nothing particularly mysterious or complicated about that.

Thanks to Sam Lazerwitz, SLS JD ’20, for his assistance.
Greg Ablavsky is an associate professor of law at Stanford Law School. His scholarship focuses on early American legal history, particularly on issues of sovereignty, territory, and property in the early American West.