Rule of Law

RELEASE: Justices Skeptical of ICWA Challengers’ Broad Anti-Commandeering Argument

WASHINGTON, DC – Following oral argument at the Supreme Court this morning in Haaland v. Brackeen and consolidated cases in which the Supreme Court is considering the constitutionality of the Indian Child Welfare Act (ICWA), a 1978 federal law passed to prevent state courts from unnecessarily separating Indian families and communities using state adoption and foster care systems, Constitutional Accountability Center Appellate Counsel Smita Ghosh issued the following reaction:

At oral argument this morning, a number of Justices seemed rightly skeptical of the argument being made by ICWA’s challengers that the law unconstitutionally “commandeers” state courts and agencies by forcing them to follow federal law. Indeed, Justice Jackson pointed out the anti-commandeering doctrine’s relatively recent roots, asking a lawyer for the individual challengers to ICWA whether he could identify a case predating the 1990s in which the Court applied that doctrine. As the lawyer acknowledged, the doctrine was only recognized by the court in 1992 and has never been applied in the context of a law regulating tribal sovereignty.

Significantly, whatever the validity of the Court’s anti-commandeering doctrine, constitutional history makes clear that Congress does not run afoul of any anti-commandeering prohibition when it does what it did in ICWA. ICWA merely requires state courts to apply federal law and state officials to keep records and share information with the federal government.

Echoing a point we made in our amicus brief, Justice Gorsuch noted that Congress has regulated state family court practices throughout history, including in an act that protects military servicemembers from losing custody of their children while deployed. According to the Attorney General for the State of Texas, one of ICWA’s challengers, that law raises the same anti-commandeering concerns as ICWA does. And other Justices focused on a provision of ICWA that applies equally to private parties as well as state agencies, and observed that the Supreme Court has never applied its anti-commandeering doctrine in that type of situation.

In short, the requirements ICWA imposes on state officials are constitutional under Supreme Court precedent and entirely consistent with the kinds of obligations that Congress has imposed on state actors since the Founding. The Court should hold that they are constitutional.



Case page in Haaland v. Brackeen:


Constitutional Accountability Center is a nonpartisan think tank and public interest law firm dedicated to fulfilling the progressive promise of the Constitution’s text, history, and values. Visit CAC’s website at


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