Friday, April 13, 2007
Fletcher on Originalism, the Indian Commerce Clause and the Indian Child Welfare Act
Posted by Mary L. Dudziak
Matthew L.M. Fletcher, Michigan State, has posted a new essay, ICWA and the Commerce Clause, forthcoming in THE INDIAN CHILD WELFARE ACT AT 30: FACING THE FUTURE, Matthew L.M. Fletcher & Wenona T. Singel, eds., (Michigan State University Press, 2008). Here's the abstract: Congress enacted the Indian Child Welfare Act, it said, in accordance with its authority under the Indian Commerce Clause and because it has assumed responsibility over Indian affairs. But under the line of cases developed by the Rehnquist Court, the Court takes a very dim view of Congressional authority under the Commerce Clause, while resurrecting the Tenth Amendment from its stasis as a “truism.” At least one Justice asserts that there is nothing in the Constitution that authorizes Congress to assume authority over Indian affairs to the exclusion of the Executive branch or the states. This paper argues that, despite the Court's recent Commerce Clause jurisprudence, Congress had sufficient authority to enact the Indian Child Welfare Act. The intent of the paper is to present the strongest case for the constitutionality of the Indian Child Welfare Act as a matter of the original understanding of the Indian Commerce Clause.