Indian Commerce Clause - Did Congress have authority to adopt ICWA (Indian Child Welfare Act)?"

The U.S. Constitution gives Congress only limited powers, and it says nothing about legislating for “Indian child welfare.” So what gives Congress the power to pass a law like the ICWA?

Some say the Founding Fathers intended to give Congress that power by a section in the Constitution allowing Congress to “regulate Commerce with the Indian Tribes.” But is that true?

A noted constitutional law professor recently investigated to see if laws like ICWA really are constitutional as regulating “Commerce with the Indian Tribes.” His answer: Absolutely not.

Professor Rob Natelson of the University of Montana is one of the country’s top experts on the original meaning of the Constitution. He concluded that the purpose of the section giving power to Congress to regulate commerce with the Indian tribes was to allow Congress to regulate trade between Indians and whites – no more. Foster care, adoption, parental rights, etc. were be governed by state law, not federal law.

Professor Natelson documented his findings in a lead article published in Denver University Law Review. He also examined other claimed bases for laws like the ICWA, including the “Indian trust doctrine” – and he found they didn’t have any merit, either.

“There is not much doubt on the question,” he said. “At least according the Founding Fathers, Congress had absolutely no authority to adopt the ICWA. Eventually, the courts may see their error and strike it down as unconstitutional.”

The article – and some of Professor Natelson’s other research – can be found at www.umt.edu/law/faculty/natelson.htm

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The Original Meaning of the Indian Commerce Clause

85 Denv. U. L. Rev. 201 (2007)

The Legal Meaning of "Commerce" In the Commerce Clause

80 St. John's L. Rev. 789 (2006)

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Christian Alliance for Indian Child Welfare
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