Supreme Court takes up the Indian Child Welfare Act


Publish Date:
November 7, 2022
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The current Supreme Court has demonstrated it cares about states’ rights and is hostile to any programs that attempt to remediate past racial discrimination, according to Elizabeth Hidalgo Reese, a citizen of the Nambe’ Pueblo and an assistant professor at Stanford Law School.

“There are just so many ways to lose this case,” Reese said. “This doesn’t bode well for the ICWA.”

In one of the worst-case scenarios, she said, the court could rule that the law violates the U.S. Constitution’s guarantees of equal protection regardless of race.

“This would be incredibly disruptive to the rest of Indian law and tribal sovereignty,” Reese said.

“The scope of Congress’s power over Indians has been a cornerstone of federal Indian law for a very long time,” Reese said. “Almost every law passed by Congress involving Indians would now come under a microscope.”

If the court finds the law unconstitutional under the anti-commandeering clause, however, it’s likely that only the ICWA would be impacted. At least six states have enacted their own ICWA laws, which include provisions from the federal act.

Such a decision, Reese said, “would be about the mechanics of the specific ICWA statute which tell states how they implement the law.”

As Reese notes, the constitutional challenges to the law are very broad.

“So many people are focused on the race issue in this case; I feel like everybody’s about to get blind-sided by the court’s decision,” she said. “We need to be listening very closely during oral arguments, The outcome could be a bit of a surprise.”

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