As explained in my previous post, the Supreme Court must decide in Brackeen whether the Indian Child Welfare Act (ICWA) differentiates between people based on race or based on the “political” status of tribal membership. But it must also decide whether ICWA trespasses on state autonomy in a manner forbidden by the constitutional principle of federalism—especially the “anti-commandeering” rule, which says that while states must respect federal laws, Congress can’t require them to enforce those laws. Or, as the Supreme Court put it in Printz v. United States, the Constitution protects state officers from being “‘dragooned’ . . . into administering federal law.”

ICWA forces state executive officers to administer federal law in several ways—most notably under its “active efforts” requirement. Here’s how it works: the laws of every state provide that if a child is taken away from an abusive family, state officials must make “reasonable efforts” to help that family regain custody. These “reasonable efforts” can take the form of access to alcohol treatment programs or anger management classes. But “reasonable efforts” are not required where there are “aggravated circumstances,” such as sexual molestation or drug addiction by the parents—because it would be wrong to return abused children to homes where they will only be harmed again.

ICWA’s “active efforts” requirement differs from this “reasonable efforts” rule, however. Although ICWA doesn’t define “active efforts,” courts have interpreted it as meaning that in cases involving “Indian children,” states must do more than provide services. In a 2013 case, for example, the Supreme Court said it requires states to “stimulate” a birth parent’s “desire to be a parent.” And “active efforts” are not excused by “aggravated circumstances.” That means state child welfare officers must send abused “Indian children” back to homes they know to be abusive. This has resulted, in case after case, in the murder of children by parents the state knew to be dangerous.

By forcing state child protection agencies to implement the “active efforts” rule (and other requirements), ICWA commandeers state executive officials just as the firearms law in Printz did. Indeed, ICWA is unique in being the only federal law that is enforced exclusively by state officers.

But ICWA goes even further, dragooning not only state agencies—which, as parts of the executive branch, fall squarely within the Printz precedent—but also state judges. This is a unique feature of ICWA, and it presents a fascinating new federalism issue in the Brackeen case.

ICWA forces state judges to follow a set of evidentiary burdens in cases involving “Indian children”—even though they are implementing state laws. Consider, for example, the termination of parental rights. The grounds for terminating parental rights are specified only in state law—ICWA makes no mention of them—and in cases involving non-“Indian children,” state law requires that those grounds be proven by “clear and convincing evidence” before a parent’s rights can be terminated. In fact, “clear and convincing” is the standard the Supreme Court itself required in Santosky v. Kramer, in which the Supreme Court said that the “preponderance of the evidence” standard would make it too easy to take children from their parents, and that the “beyond a reasonable doubt” standard “would erect an unreasonable barrier to state efforts to free permanently neglected children for adoption.”

But in cases involving “Indian children,” ICWA forces state judges to follow that “beyond a reasonable doubt” standard when applying state laws about the termination of parental rights—and also requires expert witness testimony. That’s a higher standard than applies even in death penalty cases, where expert witness testimony isn’t required.

Even laying aside the question of whether erecting such an “unreasonable barrier” is good for abused Native children, it’s doubtful that Congress has power to change the burden of proof that governs the application of a state law. It can certainly require state judges to follow evidentiary or procedural rules when applying federal laws, but ICWA’s burden of proof provisions don’t do that. Instead, they tell state courts how to decide cases under the state statutes specifying the grounds for terminating parental rights. That’s like telling state judges that in lawsuits involving car accidents—decided under state law—there must be at least three eye-witnesses.

No previous Supreme Court decision has said whether Congress can do that. The Constitution’s authors, however, certainly thought the answer was “no”; in Federalist 33, for example, Alexander Hamilton ridiculed the very idea that Congress might “attempt to vary the law of descent in any State,” since interference in such domestic matters would obviously “exceed[] its jurisdiction.” Changing how states apply their own child welfare laws is equally intrusive. Nor can this question be resolved by reference to the Indian Commerce Clause. As Professor Robert Natelson has rightly argued, that Clause, “like Congress’s powers under the Foreign and Interstate Commerce Clauses, [is] limited to regulating certain economic activities.” And Congress can’t “dragoon” the states when acting under the Interstate or Foreign Commerce powers.

Tribal governments argue in Brackeen that ICWA’s evidentiary provisions aren’t so unusual. They point to federal laws that (for instance) empower state courts to re-open default judgments against military servicemembers who were unable to appear in court due to their military service. But those laws are dissimilar; state courts may refuse to re-open a case, for example, if doing so would unjustly prejudice the other party. By contrast, the whole point of ICWA is to prejudice the non-Indian party—and ICWA gives state judges no discretion to decline to apply its separate evidentiary rules.


ICWA’s provisions commandeering state executive and judicial officers are wholly unique. No other federal law does anything quite like this. When the Justices address the federalism questions in Brackeen, they will be staking out new constitutional ground.

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