Senior Essay Title: "Tribal Sovereignty and American Federalism: A defense of the Indian Child Welfare Act in support of the Defendants-Appellants in Brackeen v. Bernhardt"
Adviser: Ned Blackhawk
Abstract: For nearly half a century, the Indian Child Welfare Act (ICWA) has protected Native American children from unwarranted removals from their families and communities. During this same period, state and federal courts alike have sustained the constitutionality of ICWA. In 2018, however, the District Court for the Northern District of Texas disregarded precedent by holding provisions of ICWA to be unconstitutional in Brackeen v. Bernhardt. Although this ruling was reversed in the Fifth Circuit Court of Appeals in 2019, additional oral arguments were heard en banc in January of 2020 upon a petition by Plaintiffs. The Fifth Circuit Court of Appeals has not yet issued judgment.
In this essay, I defend the constitutionality of ICWA. I argue that a decision to strike down ICWA threatens both the welfare of Native American children and the sovereignty of their communities. To achieve this end, I first foreground Federal Indian Law scholarship to outline the historic relationship between Native American nations and the federal government. Next, I contextualize ICWA within this history, highlighting Supreme Court cases that expanded federal authority over “Indian Affairs” during the 19th and 20th centuries. Finally, I interrogate and counter the constitutional challenges raised by Plaintiffs in Brackeen.