Indian Child Welfare Act: Another case of Congress’s overreach goes to the Supreme Court

By: Rob Natelson

The federal Indian Child Welfare Act (ICWA) is a classic instance of congressional overreach: It imposes sweeping child adoption rules on the states and has caused extreme hardship for Native children and the non-Native families who have opened their hearts and homes to those children.

The Supreme Court has agreed to review whether the ICWA is constitutional. There are four consolidated cases under the title of Haaland v. Brackeen.

Those challenging the law raise several constitutional issues. They claim the ICWA’s treatment of Indian children violates the 14th Amendment’s Equal Protection Clause. They also say the law “commandeers” state agencies—i.e., directly orders those agencies to do certain things, thereby violating the 10th Amendment.

The challengers further question a constitutional theory long popular among the legal elite. That theory holds that the federal government has absolute (“plenary”) power over the Indian tribes, without regard to the reserved powers of the states. Several years ago, I published a research article concluding that this theory was erroneous (pdf).

Garnering less attention is another issue: Assuming for sake of argument (but not conceding) that the federal government does hold plenary power over Indian tribes, then is Congress the proper federal entity for regulating Indian adoptions?

This essay explains why the answer is “no.”

The Constitution’s Separation of Powers over Indian Affairs

Between 1781 and 1789, our only central “government” was a loose treaty organization called the Articles of Confederation. The Articles were somewhat comparable to the modern North Atlantic Treaty Organization (NATO). Just as NATO has a coordinating assembly called the North Atlantic Council, the Articles designated a coordinating assembly called “Congress.”

The Articles granted the Confederation Congress general authority (subject to two exceptions) to “regulat[e] the trade and manag[e] all affairs with the Indians.” In the language of the time, the phrases “affairs with the Indians” and “Indian affairs” described all relations, both in peace and war.

The Constitution created a central government that was, for the most part, more potent than the old Confederation Congress had been. But the Constitution split the new central government’s functions among different branches. This split is called “separation of powers.”

For example, instead of granting general “Indian affairs” power to any one branch of government, the Constitution divided it among Congress, the president, and the Senate. Thus, under the constitutional scheme—

• Congress declares war, governs Natives (and others) occupying federal lands, and “regulate[s] Commerce … with the Indian Tribes.” (The quoted language is the “Indian Commerce Clause” —Article I, Section 8, Clause 3.)
• The president, as commander-in-chief of the armed forces, conducts any armed struggles against the tribes.
• All other Indian relationships are governed by treaties between the United States and individual tribes. Treaties are negotiated through the president and approved by two thirds of the Senate. If deemed necessary, Congress may pass legislation to implement a treaty (pdf).

The Constitution allows the states to address whatever is left.

I think the Constitution is pretty clear about this division of power. Nonetheless, advocates for congressional omnipotence—of whom there is never any lack—insist that Congress and Congress alone has unlimited sway over Indian affairs: Whatever Congress does overrides state law.

Yet advocates for congressional omnipotence have great difficulty explaining why this should be so. Some claim unlimited congressional power derives from an extra-constitutional “implied sovereign authority” that the federal government inherited from the English Crown. But that theory is based on a misreading of history. And it doesn’t explain why Congress, rather than, say, the president-and-Senate, should exercise that “implied sovereign authority.”

Moreover, any “implied sovereign authority” that may have survived ratification of the Constitution was abolished by the 10th Amendment in 1791. That amendment says explicitly that all powers the Constitution does not delegate to the United States “are reserved to the States respectively, or to the people.”

The most popular “explanation” for plenary congressional power over Indian affairs is the Indian Commerce Clause (see above). However, by its terms, that clause gives Congress power only over “Commerce.” In the Constitution, “Commerce” means trade and certain associated activities (pdf). Admittedly, the modern Supreme Court has expanded Congress’s Commerce Power. But even this expanded version does not include non-economic activities such as child adoption.

The Appeals Court’s ‘Holistic’ Approach: Emanations and Penumbras

Advocates of congressional omnipotence have another argument. They say that if you add together the federal government’s Treaty Power, Commerce Power, War Power, and Federal Lands Power, they amount to plenary authority over the Indians. A 2015 Yale Law Journal article expounded a sophisticated version of this idea. The article called it a “holistic” approach. The article further contended that, as applied to the Indians, the term “Commerce” is broader than when applied to other forms of commerce.

The United States Court of Appeals for the Fifth Circuit relied heavily on that article in ruling that Congress had power to pass the ICWA.

“Holistic” arguments are common among writers who (1) want the Constitution to say something, but (2) can’t find anything in the Constitution that actually says it. A typical holistic argument runs like this:

True, no single clause in the Constitution accomplishes X. (“X” is whatever the writer wants.) But we should not be “clause-bound”—i.e., limited by the Constitution’s actual words. Rather, if we put together Clauses 1, 4, 7a, and 18d and examine (what we imagine are) the common reasons underlying them, then we get X!

The most famous example of this mode of reasoning is the notorious “emanations” and “penumbras” language in the Supreme Court’s 1965 case, Griswold v. Connecticut (pdf). In that case, the majority opinion admitted there’s no right to privacy spelled out in the Constitution. Yet it claimed (although it didn’t actually rule) that if you put together several related provisions, then their emanations and penumbras create a right to privacy.

Defects in the ‘Holistic’ Approach

The “holistic” method is used by those who want to insert something into the Constitution that isn’t there. It’s utterly incompatible with how the Constitution’s ratifiers understood the document. Throughout the ratification debates the Constitution’s advocates strenuously assured everyone that the document was limited by its terms—in other words, that there were no emanations or penumbras.

The holistic device also conflicts with the Ninth Amendment, which was adopted to reinforce the stated limits on the powers granted.

Finally, the holistic argument distorts the Constitution’s Commerce Clause. Consider the Constitution’s words: “regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes.” The holistic argument would have you believe that the word “Commerce” means one thing with respect to foreign and interstate commerce, and then shifts its meaning when applied to Indian tribes.

This violates a fundamental rule for interpreting legal documents. It also violates common sense. It’s like saying that the word “shoe” in the phrase “the shoes of Fred, Joe, and Max” means “shoe” when applied to Fred and Joe but “pants” when applied to Max. Yes, there are differences between Fred, Joe, and Max, but they’re not as different as all that!

The fundamental reason the holistic/emanations-and-penumbras approach is not a good way to interpret the Constitution is that it really isn’t a way of interpreting the Constitution. It’s a way of sticking in the document things you want but aren’t there.

In fact, you can use the “holistic” approach to “prove” almost anything. In 2000 two libertarian scholars wrote a tongue-in-cheek article to illustrate this point. They were Andrew Morriss, a law professor, and the late Richard Stroup, a nationally known economist.

Their article addressed the Third Amendment (pdf). That amendment is very straightforward: It regulates the quartering of troops in private homes. But then Morriss and Stroup attacked the amendment with “emanations” and “penumbras” and the like. By the time they had finished—Voila! —they had “proved” that the Third Amendment voided the Endangered Species Act!

In Haaland v. Brackeen, the Supreme Court should rule that Congress’s power under the Indian Commerce Clause does not extend to laws like the ICWA. If the federal government wishes to regulate Indian affairs beyond the scope of commerce, then the president and Senate may enter into treaties for that purpose with the Indian tribes.

This essay first appeared in the March 23, 2022 Epoch Times.