Court ’s ICWA Ruling Doesn’t Reach Individual Rights Claims

Walter OlsonThe Supreme Court today decidedHaaland v. Brackeen, a  challenge to the Indian Child Welfare Act of 1978. It did not reach vital underlying Constitutional issues of equal protection and individual rights for children and families, and these remain to be resolved another day. Instead, the Court addressed important structural issues concerning the relat ionship between federal, state, and tribal governments. It interpreted the Constitution as giving robust powers to Congress to regulate Indian matters, while sharply limiting the underlying authority of state governments. It also found the doctrine of “commandeering” inapplicable to the facts he re and denied some claims of standing. The 7–2 decision was written by Justice Amy Coney Barrett, with Justices Clarence Thomas and Sam Alito writing dissents and Justice Brett Kavanaugh a concurrence.Future cases may frame more sharply than this one did such questions as whether children and parents who have never lived in tribal relations or in Indian country may nonetheless be subjected to tribal sovereignty and special custody presumptions because of blood descent alone. Cato raised some of these issuesin its brief.Everyone interested in these issues should read Justice Neil Gorsuch ’s eloquent concurrence, joined in part by Justices Sonia Sotomayor and Ketanji Brown Jackson, in which he lays out the grim history of government intervention in Indian family life to which ICWA was a reaction. It is a history in ...
Source: Cato-at-liberty - Category: American Health Authors: Source Type: blogs