Anticommandeering & Indian Affairs Legislation – Harvard Journal on Legislation

Anne E. Tweedy [*] View PDF

Abstract

The Supreme Court recently applied the narrow and relatively new anticommandeering doctrine for the first time to federal Indian Affairs legislation in Haaland v. Brackeen. It did so without explaining why the doctrine should be extended from the Interstate Commerce Clause context to that of the Indian Commerce Clause, as well as to the other congressional powers that form the basis of the Indian Child Welfare Act (ICWA). In subsequent cases relating to Indian Affairs legislation, the Court should clarify that only a very narrow version of the anticommandeering doctrine applies in this context because of the virtual absence of state authority in the area and the history of acceptance of federal activities that can be described as commandeering state enforcement activities. Examples used to demonstrate the general acceptance in Indian Affairs of federal actions that would be considered commandeering in other areas include a treaty rights case that culminated in temporary federal management of state fisheries, Public Law 280, and the Indian Gaming Regulatory Act’s requirement that states negotiate with Tribes in order to come to agreement on a gaming compact. Existing literature in this area is limited, with Professor Matthew Fletcher and Randall Khalil having argued, before the opinion in Brackeen was issued, that ICWA should be interpreted as having been enacted under Section 5 of the Fourteenth Amendment, an invitation that the Court ultimately did not take up. This Essay, Anticommandeering and Indian Affairs Legislation, is important because it explains holes in the Court’s reasoning in Brackeen and because it safeguards Congress’s ability to protect Native Americans and Tribes from longstanding abusive state practices such as the unwarranted removal of Indian children from their homes.

I. Introduction

In Haaland v. Brackeen,¹ the Court missed an important opportunity to demarcate the limitations of the anticommandeering doctrine.² The anticommandeering doctrine should be viewed to have, at most, an extremely limited scope in relation to statutes enacted under Congress’s plenary authority vis a vis Indian Tribes,³ such as the Indian Child Welfare Act (ICWA).⁴ The crux of the anticommandeering doctrine as evidenced in pre-Brackeen case law is that Congress may not “use its power over interstate commerce to require state or local government to take legislative or executive actions.”⁵ As explained below, the Court has not expressly limited the doctrine to the context of its interstate commerce power (or to its commerce power more broadly), but all of the cases applying the doctrine before Brackeen concerned congressional actions pursuant to interstate commerce power.⁶ This Essay argues that the anticommandeering doctrine should not apply to Indian Affairs legislation except in the unlikely event that Congress orders state legislatures to enact specific legislation.

During the Supreme Court oral argument in Brackeen, Justice Jackson raised the issue of whether the anticommandeering doctrine even applies to federal statutes pertaining to Indian Tribes and questioned counsel for the individual plaintiffs about the doctrine’s application in this context, particularly in light of the doctrine’s recent vintage.⁷ The majority opinion, however, does not address these concerns and, instead, relies on a granular analysis of the challenged provisions of ICWA and the strictures of the anticommandeering doctrine that ultimately results in the Court’s rejection of the anticommandeering challenges on the merits.⁸ While this merits analysis is generally sound and would have been appropriate in another context,⁹ the Court missed an important opportunity to clarify the limited scope of the doctrine in the context of federal legislation enacted for the benefit of Indian Tribes. Such a clarification would have helped the Court conserve judicial resources by discouraging future challenges rooted in the doctrine in the context of federal statutes relating to Tribes. Indeed, although Texas, Louisiana, Indiana, and the individual plaintiffs did not succeed on their anticommandeering arguments in Brackeen, the increasing prominence of the doctrine, and perhaps the partial win before the Fifth Circuit en banc,¹⁰ has emboldened some states. For example, Utah recently codified a process to prohibit state officials from complying with federal directives that the state has determined to “violate[] the principles of state sovereignty.”¹¹ Indian Affairs legislation appears to be in the crosshairs of Utah’s recent enactment as the law contains provisions for notice to Tribal governments when the new state process is invoked.¹² Additionally, several states recently invoked the anticommandeering doctrine in their challenge to an Environmental Protection Agency rule promulgated under the Clean Water Act¹³ that is designed to protect Tribes’ reserved water rights.¹⁴

The ICWA was enacted in 1978 to provide Native children, Native parents, Indian custodians, and Tribes with protections from (1) states’ widespread, unjustified removals of Indian children from their families and Tribes and (2) states’ placement of these children with non-Indian families.¹⁵ Statistics pertaining to state removal of Native children from their families in the years leading up to the passage of ICWA make the need for such a statute clear. “By the late 1960s, it is estimated that state governments removed a startling 25–35% of all Indian children from their families and placed them into foster homes, adoptive homes, or institutions.”¹⁶ The situation in some states was even more stark. “Native children in New Mexico were separated from their families at a rate of seventy-four times that of non-Indian children.”¹⁷ One striking story from the legislative history of the ICWA recounts how a Native child called Ivan “was saved because the sheriff, the social worker and the prospective foster parents fled when the tribal chairman ran to get a camera to photograph their efforts to wrest [Ivan] . . . from his Indian guardian’s arms.”¹⁸

Devastatingly, the damage from “abusive [state] child welfare practices” that resulted in these disproportionate removals¹⁹ was compounded by federal assimilationist practices that also resulted in, and were designed for, destruction of Indian families. Such actions include the earlier forced removal of Native children to residential boarding schools²⁰ and the federally-funded Indian Adoption Project through which Native children were removed from their families and placed for adoption with non-Native families.²¹

Given this egregious history of wrongs against Native families, ICWA is properly considered a remedial statute²² designed to protect the rights of Native parents and custodians, as well as those of Native children and the Indian Tribes that they are part of.²³ Although Professor Fletcher and Randall Khalil have argued that ICWA should be interpreted to have been enacted under section 5 of the Fourteenth Amendment, and therefore to be remedial in that sense,²⁴ this Essay uses the term more broadly, arguing instead that the horrifying record of state wrongs against Indian parents, Indian children, and their Tribes must be part of the analysis as to the validity of ICWA’s requirements that affect states.²⁵

ICWA was enacted, in part, pursuant to Congress’s power under the Commerce Clause “[t]o regulate Commerce . . . with Indian tribes.”²⁶ In ICWA’s legislative findings section, Congress also alludes to the Treaty power, the trust responsibility,²⁷ and congressional plenary power, which it notes is based on the Indian Commerce Clause “and other constitutional authority.”²⁸ Congress’s plenary power relating to Indian Tribes has been most frequently tied to the Commerce Clause, with the Treaty Clause also being mentioned in some cases.²⁹ Additionally, the Property and Territory Clause and the United States’ preconstitutional powers have been cited as bases of congressional plenary power as well.³⁰

The plaintiffs in Brackeen, including the States of Texas, Indiana, and Louisiana, a birth mother, and foster and adoptive (and prospective adoptive) parents challenged the constitutionality of the ICWA and associated federal regulations on multiple grounds.³¹ The Supreme Court rejected most of the challenges on the merits but declined to reach the equal protection and nondelegation doctrine challenges due to lack of standing.³² This Essay focuses in particular on the constitutional challenges based on the anticommandeering doctrine. The Court has held the anticommandeering doctrine to be rooted in the Tenth Amendment,³³ as well as, in some cases, the structure of the Constitution.³⁴ While this Essay addresses ICWA specifically, the analysis applies equally to other federal statutes pertaining to Indian Affairs. For example, the Indian Gaming Regulatory Act (IGRA)³⁵ and Public Law 280,³⁶ as described in Part II.D., have faced occasional anticommandeering challenges as well. Additionally, Indian Affairs statutes are likely to be enacted in the future that some states may challenge on anticommandeering grounds.³⁷

The question that Justice Jackson explored in oral argument in Brackeen—namely, what role, if any, does the relatively new anticommandeering doctrine play in an area such as Indian Affairs in which the federal government has long been acknowledged to have broad plenary power, with state power being correspondingly severely circumscribed or even nonexistent—is the primary focus of this Essay.³⁸

As a result of Congress’s plenary power over Indian Affairs, the Tenth Amendment does not generally play a role in federal legislation relating to Indian Affairs, and states are generally excluded from legislating in this area of law absent congressional authorization.³⁹ Thus, the anticommandeering doctrine, which has been most often held to derive from the Tenth Amendment,⁴⁰ should have at most an extremely limited role in evaluating the validity of such legislation. Only the most egregious intrusions on state sovereignty, such as commandeering a state’s legislative process, should be a basis for invalidating such legislation as a result of a violation of the principles inherent in the structure of the United States Constitution.⁴¹ While one must be mindful that the Supreme Court has read the Tenth Amendment broadly in the anticommandeering context, interpreting it to have residual, extra-textual power to protect state sovereignty,⁴² the fact that state power is at its nadir in the context of Indian Affairs should be understood to significantly reduce the potency of the doctrine in this context. The history of state over-reach during the period in which the Articles of Confederation were in place and the Founders’ decision to set forth stronger federal power over Indian Affairs in the United States Constitution also supports this conclusion.⁴³

II. The Anticommandeering Doctrine and the ICWA

A. An Overview of the Anticommandeering Doctrine

Importantly, the anticommandeering doctrine has been described as a “very limited principle,” and it has been defined in only a small body of Supreme Court case law.⁴⁴ At the outset, one key aspect of the doctrine is that it is to be distinguished from valid federal preemption.⁴⁵ The Court formerly appeared to draw a distinction between legislation imposing affirmative duties on states, which was not permissible, and that prohibiting harmful activities, which was permissible, in distinguishing the two doctrines.⁴⁶ More recently, however, the Court has distinguished preemption from commandeering on the basis that federal laws that validly preempt state laws “confer a federal right” on “private entities.”⁴⁷

The primary cases elucidating the anticommandeering doctrine are described below. To briefly distill these complex cases into their most fundamental elements, the Court in New York v. United States,⁴⁸ held that Congress may neither commandeer state legislatures to enact legislation pursuant to a federal regulatory scheme nor may it compel states to take title to radioactive waste.⁴⁹ This holding was extended in Printz v. United States⁵⁰521 U.S. 898 (1997). to also prohibit Congress from compelling state and local officials to aid in the enforcement of a federal scheme.⁵¹ In Murphy v. National Collegiate Athletic Association,⁵² the Court struck down a law regarding sports betting that grandfathered in pre-existing state laws permitting sports betting but prohibited states from altering their own statutory prohibitions on sports betting.⁵³ Murphy also contains the aforementioned discussion of preemption, concluding that a valid, preemptive federal law confers rights on private parties.⁵⁴ Reno v. Condon⁵⁵ 528 U.S. 141 (2000). focused on whether a state was voluntarily choosing to engage in an activity that the federal government regulated, and, secondarily, the Court noted, without deciding whether general applicability was required, that the same federal regulations also governed private parties engaged in the activity. In Condon, the Court determined that there was no commandeering problem.⁵⁶

These four cases are described in fuller detail below, with the discussion proceeding chronologically of the three cases that struck down federal legislative provisions based on the doctrine (New York, Printz, and Murphy) and concluding with the one case pre-Brackeen that upheld legislation in the face of such a challenge (Condon).

1. The Origin of the Doctrine: New York v. United States

The anticommandeering principle was first enunciated in 1992 in New York v. United States.⁵⁷ In New York, the Court explored the balance between state and federal power before arriving at its conclusion that the federal statute at issue in that case, the Low-Level Radioactive Waste Policy Amendments Act of 1985,⁵⁸ contained one invalid provision. This provision impermissibly required some states to choose between regulating radioactive waste according to federal instructions or taking title to, and accepting liability for, radioactive waste produced in the state.⁵⁹ The Court relied primarily on the Tenth Amendment in defining the scope of the anticommandeering doctrine.⁶⁰ It explained that courts sometimes look to whether a challenged action by Congress is within the enumerated powers laid out in Article I or whether it relates to a power reserved by the states in the Tenth Amendment but that, either way, “the two inquiries are mirror images of each other.”⁶¹ The Court also noted, however, that sometimes Congress’s Article I powers are constrained by other constitutional provisions, drawing upon the First Amendment’s constraints on Congress’s commerce power as an example.⁶² Despite the lack of any hint in the text of the Tenth Amendment to support its conclusion,⁶³ the Court further expounded that the Tenth Amendment, like the First Amendment, contains implicit limits on Congress’s ability to impinge on “incident[s] of state sovereignty.”⁶⁴

The Court left in place two of the challenged provisions of the Low-Level Radioactive Waste Policy Amendments Act of 1985 in New York. The first involved Congress’s “condition[ing] grants to the States upon the States’ attainment of a series of milestones,” and the Court held it to be “well within” Congress’s authority.⁶⁵ The other challenged provision the Court upheld authorized increases in costs for access to radioactive waste disposal sites, followed by denial of “access altogether, to radioactive waste generated in States that [did] . . . not meet federal deadlines.”⁶⁶ In upholding this provision, the Court noted that it was “a conditional exercise of Congress’ commerce power, along the lines of those we have held to be within Congress’ authority.”⁶⁷ But the Court, as noted above, struck down the third provision, concluding that the third challenged provision of “the Act commandeers the legislative processes of the States by directly compelling them to enact and enforce a federal regulatory program.”⁶⁸ In so holding, the Court emphasized that the Constitutional “Convention [had] opted for a Constitution in which Congress would exercise its legislative authority directly over individuals rather than over States.”⁶⁹ Like the Court’s other analyses of the strictures of federalism, the Court’s analysis in New York suffers from the omission of any recognition of the role of Tribes as the Third Sovereign.⁷⁰

2. The Other Major Cases

Prior to Brackeen, three additional Supreme Court cases elucidated the anticommandeering doctrine: Printz v. United States,⁷¹ Murphy v. National Collegiate Athletic Association,⁷² and Reno v. Condon.⁷³ In Printz and Murphy, decided in 1997 and 2018 respectively, the Court struck down statutory provisions based on the anticommandeering doctrine. In Condon, decided in 2000, the Court rejected the anticommandeering challenge.

Printz involved the legality of an interim requirement of the Brady Handgun Violence Prevention Act (“Brady Act”)⁷⁴ under which certain state and local law enforcement officers were required to undertake background checks of prospective handgun purchasers.⁷⁵ The Court rejected the government’s emphasis on the importance of the Brady Act and on the efficiency of utilizing state and local law enforcement for these purposes by distinguishing between laws of general applicability that incidentally apply to state governments from those, like the Brady Act, whose “whole object” is to “direct the functioning of the state executive.”⁷⁶ Over a strong dissent by Justice Stevens, the Court struck down the requirement that state officers and local sheriffs undertake background checks on the basis of dicta in New York v. United States stating that “[t]he Federal Government may not compel the States to enact or administer a federal regulatory program.”⁷⁷ As Justice Stevens explains in his dissent, the question of whether states can be compelled to administer a federal regulatory program was not at issue in New York, so the Court’s pronouncements on that question in New York are properly considered dicta.⁷⁸

In Murphy, the Court examined, and ultimately struck down, a complicated statute regarding sports gambling, the Professional and Amateur Sports Protection Act (PAPSA).⁷⁹ In PAPSA, Congress declined to make sports gambling a federal crime, instead inviting civil actions by specified types of organizations and by the Attorney General, and, as relevant here, it also made it “‘unlawful’ for a State or any of its subdivisions ‘to sponsor, operate, advertise, promote, license, or authorize by law or compact . . . a lottery, sweepstakes, or other betting, gambling, or wagering scheme based . . . on’ competitive sporting events.”⁸⁰ The Murphy Court invalidated the provision quoted above prohibiting states from authorizing sports gambling on the basis that it “unequivocally dictates what a state legislature may and may not do.”⁸¹ The Court then declined to sever the invalid provision because the Act would not operate coherently without it.⁸²

Murphy has been criticized on the basis that the directives in PAPSA should have been read as preemption rather than commandeering.⁸³ As Ronald D. Rotunda and John E. Nowak explain, the true problem with the Act was likely its lack of clarity as to “the conditions under which federal preemption would or would not kick in to displace state law.”⁸⁴

Besides Brackeen, Condon is the sole Supreme Court anticommandeering case holding the doctrine not to have been violated. Condon pertained to the validity of the Driver’s Privacy Protection Act (DPPA),⁸⁵ which generally prohibits the disclosure of a driver’s personal information without his or her consent.⁸⁶ The Court first held that the personal information at issue was itself an article of commerce.⁸⁷ While agreeing with South Carolina’s argument that the statute would require a significant amount of effort on the part of state employees, the Court upheld the statute, relying substantially on its decision in South Carolina v. Baker⁸⁸485 U.S. 505 (1988). in doing so.⁸⁹ As the Court in Condon explained, the Court in Baker “upheld a statute that prohibited States from issuing unregistered bonds.”⁹⁰ The Court in Condon quoted the Baker Court’s statement that: “‘[a]ny federal regulation demands compliance. That a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect.’”⁹¹ The Condon Court concluded that the “DPPA does not require the States in their sovereign capacity to regulate their own citizens. The DPPA regulates the States as the owners of data bases.”⁹² Finally, the Court noted that the DPPA regulates not just states but also “private resellers or redisclosers of that information in commerce.”⁹³ It thus used DPPA’s applicability to private parties to bolster its conclusion that there was no anticommandeering problem with the statute, a conclusion that was based primarily on the fact that the state had voluntarily elected to engage in a federally-regulated sphere of activity.⁹⁴

3. Take-Aways from the Court’s Anticommandeering Pronouncements

All four of the Court’s pre-existing anticommandeering cases rely in some measure on the Tenth Amendment,⁹⁵ with Printz being somewhat unique among them in its prioritizing the structure of the Constitution as a basis of its holding above the Tenth Amendment.⁹⁶ This difference in focus in Printz may be due to the fact that the late Justice Scalia authored the majority opinion, and perhaps, as a dyed-in-the-wool textualist,⁹⁷ he could not quite bring himself to read into the Tenth Amendment requirements that were not supported by its text. The other three anticommandeering cases do primarily rely on the Tenth Amendment.⁹⁸ As alluded to above and as New York illustrates, the Court’s broad view of the Tenth Amendment is not textually rooted.⁹⁹ Rather, the Court reads into the Amendment some residual protection of state sovereignty that goes beyond the textual question of whether a power has been delegated to the federal government, thus removing it from the states’ purview.¹⁰⁰

In terms of the holdings of cases striking down federal legislation on anticommandeering grounds, New York is the narrowest, with its proscription of a congressional requirement that a state enact legislation mandated by a federal statute. The idea that the federal legislature should not be allowed to order a state legislature to enact legislation has intuitive appeal as such a scenario would appear to demean state legislatures and could even be said to make a mockery of their work since they would not be truly making the choice to enact anything in such a case. In addition to having intuitive appeal, this rejection of legislative commandeering may well accord with the Founders’ intent.¹⁰¹ The Court’s concern that, “where the Federal Government compels States to regulate, the accountability of both state and federal officials is diminished” appears to have some truth to it.¹⁰² Citizens would naturally expect that the sovereign that passes a given piece of legislation has chosen to do so, rather than having had the legislation be pre-ordained by another sovereign, behind the scenes.

Printz substantially broadens New York’s proscription to also apply to the duties of state and local executive officials. Under Printz, these officials may not be required to undertake federally-mandated enforcement duties.¹⁰³ However, the holding in Printz appears to be qualified by Condon’s explanation “[t]hat a State wishing to engage in certain activity must take administrative and sometimes legislative action to comply with federal standards regulating that activity is a commonplace that presents no constitutional defect.”¹⁰⁴ Thus, under Condon, if the federally mandated duties arise from a state’s voluntary decision to engage in a certain sphere of activity, the anticommandeering problem is avoided. Additionally, the dissent in Printz sharply criticized the majority, pointing out discussions in the Federalist Papers in which federal utilization of state officials was contemplated, as well as several historical instances in which state officials (primarily in state courts) were tasked with federal duties.¹⁰⁵

The legislation at issue in Murphy was subject to conflicting interpretations by the parties,¹⁰⁶ but the Court adopted petitioner’s view that the PASPA, with exceptions not at issue in the case, required states to leave in place any pre-existing bans on sports gambling.¹⁰⁷ Read in that way, Murphy can be viewed as the unremarkable progeny of New York. Just as Congress cannot compel a state legislature to enact particular legislation, it cannot command that existing state legislation be left in place in the face of changing state policy. If Congress wishes to enforce its policy via legislation, it must do so through its own legislation, not by freezing state legislation, thus avoiding the accountability problems that could otherwise arise.

The bedrock of the anticommandeering doctrine thus appears to be New York’s holding that the federal legislature must not commandeer state legislatures to enact particular legislation or, as Murphy clarifies, to leave their existing legislation in place unchanged. The first part of this statement constitutes the Court’s first clear enunciation of the anticommandeering doctrine, and this encapsulation is in harmony with longstanding, robust protections for the legislative process, such as the recognition of legislative immunity for the legislative actions of state and local legislators.¹⁰⁸ The significant expansion we see in Printz to state executive officials is less analytically sound both because it is rooted in dicta from New York and because the majority does not adequately address the dissent’s historical analyses of the Federalist Papers and of early legislation. Even accepting the validity of Printz, as a significant expansion of the doctrine applied in New York, Printz clearly represents the outer perimeter of the doctrine, while New York constitutes the inner core. In other words, as the Court’s first statement of, and application of, the anticommandeering doctrine, New York represents its core, a conceptualization supported by New York’s focus on protecting state legislative functions from federal interference, a sphere of governmental activity long considered to warrant strong protections from outside interference.¹⁰⁹ By contrast, Printz’s expansion of the doctrine to the broader realm of state and local officials’ enforcement of laws constitutes the outer perimeter of the anticommandeering doctrine, a conceptualization supported by the Court’s treatment of functions involving enforcement of laws as being protected only by qualified immunity (and thus as potentially subject to liability in the case of abuses of power), a treatment that indicates that these functions are neither as sacrosanct nor as in need of special protections as the legislative functions the Court protected in New York.¹¹⁰ While immunities available to state and local actors do not bear directly on the anticommandeering doctrine, the immunities available in other contexts shed light on the meaning of applying the doctrine to different spheres of state activity.

As noted above, although some argue that the Court misconstrued the questions at issue in Murphy¹¹¹, Rotunda & Nowak, supra note 5, § 4.10(d)(i). in its framing of the case, Murphy can be seen, under the Court’s interpretation, as raising a related—but converse—question to that at issue in New York, namely whether Congress can order states to leave in place existing legislation in the face of changing policy. Condon fleshes out some of the subtleties of the anticommandeering doctrine, relating to the significance of a state’s choosing to engage in a federally regulated sphere of activity and, secondarily, of whether Congress is regulating both state and private actors.

B. The Plaintiffs’ Anticommandeering Challenges in Haaland v. Brackeen and the Court’s Responses

In Brackeen, the plaintiffs set forth a “host of anticommandeering arguments.”¹¹² The Court divided them into three categories.¹¹³ The first category related to ICWA’s provisions imposing certain requirements when a child is being adopted or placed in foster care as a result of involuntary proceedings.¹¹⁴ The second category of challenges pertained to ICWA’s placement preferences, which apply when a child is being placed with an adoptive parent or in foster care.¹¹⁵ The third and final set of challenges attacked recordkeeping requirements that ICWA imposes on state courts.¹¹⁶

As noted, the first category pertained to provisions of ICWA applicable to involuntary proceedings to either place a child in foster care or to terminate parental rights.¹¹⁷ This first category included challenges to ICWA’s

requirements that an initiating party demonstrate “active efforts” to keep the Indian family together; serve notice of the proceeding on the parent or Indian custodian and tribe; and demonstrate, by a heightened burden of proof and expert testimony, that the child is likely to suffer “serious emotional or physical damage” if the parent or Indian custodian retains custody.¹¹⁸

The Court disposed of the challenges in this first category on the basis that the contested provisions of ICWA relating to involuntary proceedings applied to both state and private actors.¹¹⁹ The anticommandeering doctrine was described in Murphy (and suggested in earlier cases) to not encompass congressional commands that apply to both state and private actors,¹²⁰ and the Court’s conclusion on this point was, therefore, a viable basis on which to reject this set of challenges.

The plaintiffs’ second set of anticommandeering challenges pertained to ICWA’s placement preferences for foster and adoptive placements.¹²¹ Section 1915 of ICWA dictates that state or private agencies placing Indian children in foster care or for adoption comply with certain ranked placement preferences, with the first preference for both types of placements being “a member of the child’s extended family.”¹²² The individual plaintiffs, in their opening brief, colorfully argued that “the forcible application of Congress’s own placement preferences to state-law adoption petitions unlawfully ‘reduc[es] States to puppets of a ventriloquist Congress.’”¹²³ The State of Texas similarly challenged the placement preferences on anticommandeering grounds, making a more modulated argument that they require the State to undertake “a ‘proactive effort[] to comply with the placement preferences.’”¹²⁴

The Court rejected the anticommandeering challenges to the placement preferences on three grounds. First, it noted that, as with the first category of anticommandeering challenges, the placement preferences apply to both private and state parties so they do not offend the anticommandeering doctrine.¹²⁵ Second, it held, based on its troubling decision in Adoptive Couple v. Baby Girl,¹²⁶ that the preferences do not require states or private agencies to seek out placements that comply with the preferences, instead simply requiring compliance with the preferences if eligible placements have come forward.¹²⁷ While this interpretation follows from Adoptive Couple, Adoptive Couple was a results-oriented decision that broke with prior interpretations of ICWA generally and with those relating to the placement preferences specifically.¹²⁸ Because of the analytical weakness of the Court’s construal of ICWA’s placement preference requirements in Adoptive Couple, the Court’s decision in Brackeen would have been stronger if it had avoided relying on this second rationale to reject the anticommandeering challenge to the placement preferences. Finally, the Court in Brackeen rejected the anticommandeering challenge relating to the requirement that state courts apply the preferences based on the Supremacy Clause.¹²⁹ The Court explained that Congress can require state courts to apply federal law without running afoul of the anticommandeering doctrine because this requirement is considered preemption, not commandeering, further clarifying that it makes no difference whether state law is providing the cause of action, which is then modified by federal law, or whether it is a federal cause of action.¹³⁰

The third set of anticommandeering challenges related to recordkeeping duties that the ICWA imposes on state courts.¹³¹ The Court rejected these challenges, affirming that “Congress may impose ancillary recordkeeping requirements related to state-court proceedings without violating the Tenth Amendment.”¹³² The Court’s determination that imposition of recordkeeping requirements on state courts is constitutional was based on language in Printz permitting Congress to impose requirements on state courts that are “‘ancillary’” to their adjudicatory functions.¹³³ The Court also conducted a historical analysis in which it canvassed “early congressional enactments” imposing duties on state courts relating to such matters as processing and transmitting citizenship applications and coordinating inspection of vessels and then preparing reports on the results of the inspections, among other matters.¹³⁴ The Court concluded that these early federal laws “provid[e] ‘contemporaneous and weighty evidence’ of the Constitution’s meaning.”¹³⁵ It therefore rejected the challenges to ICWA’s recordkeeping requirements.

Conspicuously missing from the Court’s anticommandeering analysis is a discussion of the fact that the Tenth Amendment generally has no application in the context of Indian Affairs legislation, particularly where Congress has directly spoken on an issue, given Congress’s plenary power in that area.¹³⁶ While the Supreme Court very recently invoked the Tenth Amendment in a federal Indian law case, namely Oklahoma v. Castro-Huerta,¹³⁷ this decision flies in the face of almost two centuries of precedent, as many scholars have recognized.¹³⁸ Even setting those issues aside, however, Castro-Huerta raised very different issues and arose in a very different context than Brackeen in that the ICWA unquestionably constitutes an act of federal preemption, whereas the majority in Castro-Huerta viewed the lack of explicit language in federal statutes as indicating a lack of federal preemption.¹³⁹ Perhaps more importantly, Castro-Huerta concerned a state’s attempts to criminally regulate non-Indians, albeit within an Indian reservation,¹⁴⁰ whereas the plaintiffs’ anticommandeering challenges in Brackeen struck at the heart of federal legislation directly relating to, and enacted for the benefit of, Native Americans.¹⁴¹ Thus, as the majority in Castro-Huerta viewed the issues at stake, the question of whether the Tenth Amendment preserves any authority for states when Congress speaks clearly and directly on matters involving Tribes and individual Native Americans was not raised in Castro-Huerta.¹⁴²

Because all previous Supreme Court cases on anticommandeering examined legislation enacted under the Interstate Commerce Clause,¹⁴³ the Court’s omission of any discussion of why the doctrine should also apply in the context of legislation enacted under the Indian Commerce Clause is a significant analytical gap. This conclusion is bolstered by the fact that scholars have persuasively argued that, historically, the meaning of “commerce” in each of the clauses was different, with the notion of “commerce” being significantly broader in the context of commerce relating to Indian Tribes than it was understood to be in the interstate commerce context.¹⁴⁴ Additionally, the fact that the Indian Commerce Clause appears to have been drafted in response to the record of state (as well as settler) transgressions against Tribes under the weaker and internally contradictory language of the Articles of Confederation further supports this conclusion.¹⁴⁵

To summarize, the following three factors signal that the application of the anticommandeering doctrine must, at a minimum, be vastly constrained in the context of Indian Affairs legislation: (1) the Tenth Amendment has been recognized to have no role to play in Indian Affairs in the presence of clear Congressional direction;¹⁴⁶ (2) the long history of exclusive federal control of issues relating to Indian Affairs;¹⁴⁷ and (3) the history of state abuses of power with respect to Tribes under the Articles of Confederation, which the stronger federal authority over Indian Affairs reflected in the Constitution was designed to avoid.¹⁴⁸ Given this backdrop, the doctrine should only exist in a much weaker form, if at all, in the context of Indian Affairs legislation. Specifically, in this context, it should be confined to its role as a prohibition on commandeering state legislatures.¹⁴⁹ This would mean that Congress would be prohibited from ordering states to enact legislation relating to Tribes or Indian Affairs issues but that Congress could impose duties on state and local officials relating to enforcement of Indian Affairs legislation. To roughly analogize to Printz, under the approach argued for here, a hypothetical statute that required state and local law enforcement officials to provide state background check data to a Tribe at its request when an individual applied for a Tribal permit to carry a firearm would be permissible.¹⁵⁰

The Court’s failure to grapple with these important issues in Brackeen constitutes a missed opportunity to clarify the applicability of the doctrine in different areas of the law and unfortunately is likely to invite further, baseless attacks on Indian Affairs legislation pertaining to other subject areas.

C. How the ICWA, and Indian Affairs Legislation Generally, Fits in with Pre-Existing Anticommandeering Cases

All four pre-existing anticommandeering cases involved statutes enacted under Congress’s Interstate Commerce Power,¹⁵¹ whereas ICWA, as discussed above, was enacted under the Indian Commerce Power, as well as Congress’s trust responsibility to Indian Tribes.¹⁵² Additionally, ICWA alludes to “other constitutional authority” in addition to the Indian Commerce Clause, as a basis for Congress’s plenary authority with respect to Tribes,¹⁵³ and it implicitly references the treaty power in describing Congress’s trust responsibility with respect to Tribes.¹⁵⁴

The Indian Commerce Clause has long been interpreted more broadly than the Interstate Commerce Clause, and such a broad interpretation is sound because, as scholars such as Gregory Ablavsky have explained, the concepts of “commerce” and “trade” in the context of the United States’ relations with Indian Tribes were interpreted at the time of the drafting and ratification of the Constitution much more broadly than those terms were understood in other contexts.¹⁵⁵ Indeed, the Court has not required a tie to commerce in evaluating legislation enacted under the Indian commerce power.¹⁵⁶ Additionally, the plenary power Congress exercises over Indian Affairs, relied upon as a basis of congressional authority in Section 1901(1) of ICWA,¹⁵⁷ is best understood as not being rooted solely in the Indian Commerce Clause but as having other bases as well, including the Treaty Clause and Congress’s pre-constitutional powers.¹⁵⁸ The Court has consistently interpreted Congress’s plenary power relating to Tribes quite broadly, as explained below.

The United States’ trust responsibility with respect to Indian Tribes is another basis of authority that Congress relied on in passing the ICWA.¹⁵⁹ Cohen’s Handbook of Federal Indian Law describes the trust responsibility as follows:

One of the basic principles in Indian law is that the federal government has a trust or special relationship with Indian tribes. Courts have invoked language of guardian and ward, or more recently trustee and beneficiary, to describe this relationship in a variety of legal settings. The concept of a federal trust responsibility to Indians evolved from early treaties with tribes; statutes, particularly the Trade and Intercourse Acts; and opinions of the Supreme Court. Today the trust doctrine is one of the cornerstones of Indian law.¹⁶⁰

The trust responsibility is at the root of the Court’s relatively liberal test for evaluating whether federal legislation relating to Tribes or individual Indians violates equal protection. Under Morton v. Mancari,¹⁶¹ as long as Congress’s special treatment for Indians “can be tied rationally to the fulfillment of Congress’ unique obligation toward the Indians, such legislative judgments will not be disturbed.”¹⁶²

Because Congress relied on different sources of authority in enacting the ICWA than the source of authority at issue in the other anticommandeering cases—namely the Indian Commerce Clause and, to some degree, the Treaty Clause—it follows that, as Justice Jackson suggested in oral argument, a different analysis should apply.¹⁶³ The scope of congressional and state power will necessarily be delineated differently under different constitutional provisions,¹⁶⁴ and the text of the Tenth Amendment tells us that it concerns those particular balances of power.¹⁶⁵ As described above, the Indian Commerce Clause, one of the powers Congress relied on in enacting the ICWA,¹⁶⁶ has been interpreted more broadly than the Interstate Commerce Clause. Additionally, the historical interpretation of the notion of Indian trade and commerce was also much broader than was the understanding of commerce in relation to the states.¹⁶⁷ Moreover, given that ICWA’s congressional findings also expressly invoke Congress’s plenary power,¹⁶⁸ the fact that the Court has only very rarely struck down congressional exercises of plenary authority relating to Indian Affairs should logically be part of the anticommandeering analysis.¹⁶⁹

Notable examples of instances in which the Court has determined that legislation enacted under Congress’s plenary power relating to Indian Affairs was held invalid include a statute that provided for uncompensated takings of individual Indians’ property upon death (to consolidate fractionated land ownership), thus violating the Fifth Amendment, and a statute that abrogated state immunity from suit, thus violating the Eleventh Amendment.¹⁷⁰ Importantly, it was not that Congress’s plenary power was held to be too narrow to support the legislation in these cases but rather that specific constitutional amendments served as checks on that power in the context of these cases.¹⁷¹ States have generally not fared well in arguing that a congressional exercise of plenary authority impinges on their authority, with the only win in that regard involving state sovereign immunity from suit under the Eleventh Amendment.¹⁷² Indian Affairs has been described as the exclusive province of the federal government, with states being unable to regulate in the area absent authority conferred by Congress,¹⁷³ with a limited exception for situations in which states are legislating in furtherance of a federal scheme.¹⁷⁴ Importantly, state challenges to Indian Affairs legislation under the Tenth Amendment have failed.¹⁷⁵

This landscape contrasts sharply with that presented by the pre-existing anticommandeering cases and federal and state power under the Interstate Commerce Clause more broadly. For example, unlike the Court’s approach to evaluating legislation enacted pursuant to the Indian Commerce Clause, the Supreme Court scrutinizes legislation enacted under the Interstate Commerce Clause to ensure that it has a substantial connection to interstate commerce.¹⁷⁶ Additionally, states retain some power to regulate in ways that affect interstate commerce so long as “any state regulation [is] . . . consistent with the paramount federal power over foreign and interstate commerce and . . . [does] not incidentally impose an undue burden or substantially interfere with interstate or foreign commerce.”¹⁷⁷ Moreover, longstanding precedent elucidates that federal preemption of state authority is a much broader doctrine in the context of federal Indian law than the version of preemption we find outside of that context¹⁷⁸ (although the Castro-Huerta Court did not recognize this).¹⁷⁹

The history of adoption of the Indian Commerce Clause is also instructive. Briefly, the Articles of Confederation contained an internally contradictory provision regarding Tribes that caused a great deal of strife between the federal and state governments. As Cohen’s Handbook of Federal Indian Law explains:

Article IX of the Articles conferred on the Continental Congress “the sole and exclusive right and power of … regulating the trade and managing all affairs with Indians not members of any of the states; provided, that the legislative right of any state within its own limits be not infringed or violated.”¹⁸⁰

This compromise between the federal government and the states “produced constant federal-state friction during the period of government under the Articles.”¹⁸¹ More specifically, states such as New York, Georgia, and North Carolina flouted federal law under the Articles of Confederation, seized Indian land, and actively attempted to thwart federal treaty-making with Tribes, with New York and Georgia also attempting to negotiate illegal treaties with Tribes.¹⁸² Thus, such state abuses, combined with settler land theft and violence, led to the circumstance that, as the Constitutional “Convention gathered in Philadelphia, the nation confronted two Indian wars of its own making it could ill-afford.”¹⁸³ Secretary of War Henry Knox in July 1787 had pointed to state “usurpation” of treaty-protected lands as the cause of the violence.¹⁸⁴ John Jay similarly argued in Federalist No. 3 that there were “several instances of Indian hostilities having been provoked by the improper conduct of individual States.”¹⁸⁵

Although the Indian Commerce Clause, originally drafted by James Madison, occasioned little debate at the Constitutional Convention,¹⁸⁶ the events preceding the adoption of the Indian Commerce Clause suggest a strong need for effective federal regulation of states, including the ability to prevent states that were violating federal treaties with Tribes and other federal laws, such as non-intercourse acts,¹⁸⁷ from continuing to do so. It can be inferred from this background that federal regulation of states was one of the goals of replacing the equivocating provision of Article IX of the Articles of Confederation with the clearer wording of the Indian Commerce Clause. This need for the federal government to have the sole authority with respect to Indian Affairs to the exclusion of states is also supported by other provisions of the Constitution, such as the Treaty Clause.¹⁸⁸

Indeed, while different versions of what became the Indian Commerce Clause were proposed during the Constitutional Convention, the one that ultimately passed granted full authority to the federal government.¹⁸⁹ James Madison praised the final version as resolving the earlier tensions in favor of the federal government, whereas Anti-Federalist Abraham Yates, Jr. “attacked the Clause along with other provisions” because he viewed them as “grant[ing] the federal government an improper supremacy over Indian affairs.”¹⁹⁰

This history demonstrates a resolution of the conflict regarding authority over Indian Affairs under the Articles of Confederation in favor of the federal government, and, as described above, it also demonstrates a corresponding need for the federal government to be able to enforce this authority in the face of recalcitrant states. In this sense, there is some level of similarity between the Indian Commerce Clause and the Fourteenth Amendment in that the Indian Commerce Clause appears to have been drafted, in large part, to deal with state overreach.¹⁹¹ This history also leads to the conclusion that the anticommandeering doctrine should, at a minimum, have less force in the context of legislation based on congressional power rooted in the Indian Commerce Clause and other provisions that support federal power in Indian Affairs, such as the Treaty Clause. Otherwise, the federal supremacy relating to Indian Affairs reflected in the Indian Commerce Clause and other constitutional provisions could be rendered a nullity.

Thus, from the general absence of state constitutional authority in the face of explicit federal legislation regarding Native Americans,¹⁹² it necessarily follows that the scope of the anticommandeering doctrine would be minimized, if it applies at all in this context.¹⁹³ Admittedly, the Court in New York attributed extra-textual protections for states to the Tenth Amendment,¹⁹⁴ while, in other cases, such as Printz, the Court has attributed such protections to the structure of the Constitution.¹⁹⁵ Whether the source of protections for state sovereignty expressed in the anticommandeering doctrine are properly understood to be the Tenth Amendment or the structure of the Constitution, longstanding precedent counsels that, at a minimum, there is general absence of state authority in the face of a federal statute like the ICWA that explicitly preempts state law.¹⁹⁶ This fact, in turn, counsels in favor of a very limited view of the anticommandeering doctrine if it is to apply at all in this context.

It is important to note that there are two additional reasons, based on the Supreme Court’s anticommandeering cases, that ICWA does not constitute commandeering even if the doctrine continues to be held to apply in this context. One is based on the fact that states have voluntarily entered the realm of child welfare, and the second is that ICWA’s provisions are properly viewed as preemptive as opposed to commandeering. These reasons are briefly addressed below.

First, Condon explained that, when a state voluntarily decides to engage in a sphere of activity, it must comply with applicable federal regulations.¹⁹⁷ While state regulation of child welfare is so common now as to be taken for granted, states did not begin to pass laws governing child welfare until the early 1900s.¹⁹⁸ Prior to that, these issues were dealt with by religious and charitable organizations and, later, private agencies.¹⁹⁹ Thus, child welfare is, in fact, a sphere of activity that states have voluntarily entered into. Justice Barrett touched on this question during oral argument but in a more limited way, asking if states could decline to address Native American child welfare issues.²⁰⁰ Counsel for the Tribal parties rightly answered that, while declining to deal with the welfare of Native American children could raise equal protection problems, states did have a choice about whether to run a foster care system at all.²⁰¹ Thus, an additional reason that ICWA does not qualify as commandeering is because, under Condon, child welfare systems are a sphere of activity that states have voluntarily entered into.

A second reason that ICWA should not be interpreted as commandeering states even if the doctrine applies in full force to Indian Affairs legislation is that the statute meets the Court’s definition of preemption. The Court explained in Murphy that preemptive legislation is to be distinguished from commandeering legislation on the basis that the former “imposes restrictions or confers rights on private actors.”²⁰² As discussed in the Introduction, ICWA was designed to protect the rights of Native parents and Indian custodians, as well as those of Native children and the Indian Tribes to which they and their families belong.²⁰³ Moreover, in the context of federal Indian law, state law has been held to be preempted not just because of negative impacts on the federally protected rights of individuals but also because of such impacts on the rights of Tribal governments.²⁰⁴ Thus, as Fletcher and Khalil have underscored, ICWA validly preempts state law and no commandeering analysis is needed, even if the doctrine is held, contrary to the arguments in this Essay, to be fully applicable to Indian Affairs legislation.²⁰⁵

Next, this Essay turns to three examples of federal laws that would almost certainly be construed as impermissible commandeering in other contexts.

D. Examples of Judicially Approved Commandeering in the Indian Affairs Context

Three important examples illustrate that commandeering of state executive officials has been allowed in the context of Indian law. One example involves the federal district court’s taking over control of Washington State’s fisheries department after the state refused to comply with federal court orders recognizing Tribal treaty fishing rights.²⁰⁶ The second example is Public Law 280. A third example relates to a provision of the IGRA that requires states to negotiate with Tribes in good faith regarding proposed gaming compacts.²⁰⁷

Taking the district court’s management of the state fisheries first, both the Supreme Court and the Ninth Circuit approved the district court’s management in light of the state’s intransigence in upholding the treaty rights recognized by the federal courts.²⁰⁸ As the Ninth Circuit explained:

The state’s extraordinary machinations in resisting the decree have forced the district court to take over a large share of the management of the state’s fishery in order to enforce its decrees. Except for some desegregation cases, the district court has faced the most concerted official and private efforts to frustrate a decree of a federal court witnessed in this century. The challenged orders in this appeal must be reviewed by this court in the context of events forced by litigants who offered the court no reasonable choice.²⁰⁹

It is true that federal courts have been held to have broad authority to enforce their rulings, especially in the face of repeated violations.²¹⁰ However, just as the federal district court in Puget Sound Gillnetters Ass’n v. U.S. District Court for Western District of Washington²¹¹, 573 F.2d at 1126, 1130 (describing district court decision). found itself bound to undertake fisheries management in the stead of a state that refused to recognize and enforce federal law, the ICWA is Congress’s response to states’ longstanding failure to recognize the rights of Indian parents, Indian children, and the Tribes they are part of.²¹² The parental rights that the states flouted before ICWA, and which ICWA is still needed to protect today, include the substantive due process right to raise one’s children,²¹³ the right not to be denied equal protection,²¹⁴ and the right to procedural due process.²¹⁵ ICWA’s legislative history focuses on shocking violations of procedural due process in particular, as indicated in this statement made during a 1974 congressional hearing:

The decision to take Indian children from their natural homes is, in most cases, carried out without due process of law. For example, it is rare for either Indian children or their parents to be represented by counsel or to have the supporting testimony of expert witnesses. Many cases do not go through an adjudicatory process at all, since the voluntary waiver of parental rights is a device widely employed by social workers to gain custody of children. Because of the availability of the waivers and because a great number of Indian parents depend on welfare payments for survival, they are exposed to the sometimes coercive arguments of welfare departments. In a current South Dakota entrapment case, an Indian parent in a time of trouble was persuaded to sign a waiver granting temporary custody to the State, only to find that this is now being advanced as evidence of neglect and grounds for the permanent termination of parental rights.²¹⁶

As Fletcher and Khalil argue, states’ egregious history of violating all three of the rights that ICWA is designed to protect (substantive due process, procedural due process, and equal protection) makes the subject matter of ICWA an ideal candidate for congressional action under Section 5 of the Fourteenth Amendment.²¹⁷ However, assuming that ICWA was not enacted pursuant to Section 5 of the Fourteenth Amendment (because the Fourteenth Amendment is not explicitly referenced in ICWA’s legislative findings), Congress should nonetheless have the power to remedy state violations of Native Americans’ and Tribes’ federal rights through legislation enacted pursuant to its Indian Affairs power. Because Congress is the branch of the federal government that has plenary power with respect to Tribes, it unquestionably has the authority to protect Tribal rights and those of individual Indians.²¹⁸ Although its record of doing so has been checkered, there have been many instances, besides ICWA, where it has protected such rights.²¹⁹ The federal government’s duty to protect Tribal interests pursuant to the trust responsibility, another basis of authority relied upon in ICWA, also supports the validity of ICWA.²²⁰ Moreover, it would appear to contravene the plenary power doctrine for the Court to hold that only the federal courts may protect the constitutional rights of Indian parents, Indian children, and their Tribes,²²¹ despite the Court’s cursory attempt in New York to distinguish the treaty rights case discussed here on the basis that it involved the actions of federal courts, not Congress.²²² Additionally, because neither federally-protected Tribal rights nor those of individual Native Americans were at issue in New York, the Court’s passing reference to those rights in that case was dicta. Finally, even with ICWA in place, Tribes and individual Native American parents have struggled—and have often been unable—to protect their rights.²²³ These difficulties underscore the need for strong legislation like ICWA because it can only be assumed that, without ICWA or a comparable federal statute, the situation in many states would be even more dire.²²⁴

As mentioned, Public Law 280 is the second example of federal legislation commandeering state executive officials in the Indian law context—under the statute, state and local police, probation officers, parole officers, prison guards, prosecutors, defense attorneys, and courts are all commandeered with respect to on-reservation crimes.²²⁵ Through Section 2 of Public Law 280, the federal government unilaterally conferred general state criminal jurisdiction on the vast majority of reservations in six states.²²⁶ Section 4 of the statute also requires state courts in those states to hear civil causes of action brought by individual Native Americans,²²⁷ and to apply state and federal law and, in some cases, Tribal law.²²⁸

The federal government had multiple motives in enacting the statute, including off-loading the cost of law enforcement and judicial resources from itself to state governments and furthering the assimilation of Indians.²²⁹ As practitioner Andy Harrington explains, in enacting Public Law 280, “Congress, in an early version of an unfunded mandate, called upon the states to extend the reach of their criminal laws into the Indian country within their borders. Congress made this criminal law jurisdictional extension mandatory” for six states.²³⁰ While the Printz Court expressed concern that “[t]he power of the Federal Government would be augmented immeasurably if it were able to impress into its service—and at no cost to itself—the police officers of the 50 States,”²³¹ Public Law 280 did precisely that with respect to the police officers of six states, as well as a host of other state officials who work in the criminal justice system. Indeed, it has been held that Public Law 280 required no acceptance by those states,²³² and its constitutionality has been upheld in federal appellate courts, as well as state courts.²³³

In a case examining the validity of Public Law 280, the Ninth Circuit distinguished Printz on the grounds that the criminal regulatory scheme at issue was not federal (because the affected states were permitted to enforce their own laws against Indians) and that states were not required to enact legislation to comply with Public Law 280.²³⁴ However, the fact remains that Public Law 280 conferred extensive new law enforcement and criminal justice system mandates on the affected states without even providing funds to implement them.²³⁵

The provision of Public Law 280 requiring state courts to hear civil causes of action involving Native litigants also raises interesting commandeering issues.²³⁶ As discussed above in Part II.B, the Court has held that state courts are uniquely subject to federal commandeering based, controversially, on the text of the Supremacy Clause.²³⁷ However, the text of the Supremacy Clause that the Court relied on for this proposition requires state courts to uphold federal law.²³⁸ A federal requirement for state courts to apply Tribal law in certain circumstances most likely would not have been anticipated by the Framers and therefore could be seen as exceeding the authorization in the Supremacy Clause and raising the specter of commandeering for originalist justices like the late Justice Scalia.²³⁹ The fact that this requirement was passed by Congress in 1953, during a period in which the federal government was hostile to Tribal rights,²⁴⁰ and that it remains on the books, suggests that commandeering has long been viewed as acceptable in the context of Indian Affairs legislation.

It does not appear that states have challenged Public Law 280’s constitutionality,²⁴¹ and this could conceivably be part of the reason that the constitutional challenges to date have failed, although it is important to note that the Court has linked federalism to preservation of individual liberty, explaining that “[s]tates are not the sole intended beneficiaries of federalism.”²⁴² In theory, then, individual and Tribal challenges to Public Law 280 should carry just as much weight as a state challenge would.

Significantly, an amendment to Public Law 280 in 1968 allowed states to request retrocession of criminal jurisdiction conferred under the Act and allowed the United States to accept or reject such a request.²⁴³ Professor Goldberg attributes this amendment to states’ financial difficulties resulting from the obligations imposed by Public Law 280.²⁴⁴ Tribes have no formal role in this process under federal law,²⁴⁵ but the retrocessions that have occurred in the six mandatory Public Law 280 states²⁴⁶ merely except out certain Tribes from state jurisdiction rather constituting a wholesale retrocession of state jurisdiction in those states.²⁴⁷ Thus, state criminal jurisdiction remains in place, with important exceptions for certain Tribes, in the mandatory states.²⁴⁸ However, “[t]here was no provision [in the 1968 amendment] for retrocession of civil jurisdiction.”²⁴⁹

The 1968 amendment allowing for state retrocession did partially ameliorate the commandeering aspects of the criminal jurisdiction provision of Public Law 280 going forward, although discretion remains with the federal government whether to accept a proffered retrocession. As noted, the civil provision requiring state application of Tribal law in some circumstances, which could also be understood as commandeering, remains in place, with no opportunity for retrocession.

The small number of challenges to the constitutionality of Public Law 280²⁵⁰ and the fact that they have all failed appear to indicate a lack of salience of anticommandeering concerns in the context of federal legislation relating to Tribes.²⁵¹

Turning to the third example of federal Indian Affairs legislation that permits commandeering, the requirement in the IGRA that, in certain circumstances, a state must negotiate in good faith with a Tribe to enter a gaming compact when a Tribe requests that it do so also contains elements of commandeering.²⁵² The IGRA was enacted based on Congress’s power under the Indian Commerce Clause.²⁵³ Lower courts have gone both ways on whether this provision violates the anticommandeering doctrine, with the vast majority holding that there is no violation.²⁵⁴ For example, in Cheyenne River Sioux Tribe v. South Dakota²⁵⁵830 F. Supp. 523, 526 (D.S.D. 1993). the court noted that the IGRA gives states additional input into Indian gaming that they would not otherwise have and further held that the state was not forced to negotiate under the provision because the IGRA provides that, if a state does not negotiate, after a certain period of time and several interim steps, the Secretary of Interior can simply prescribe the procedures for class III Indian gaming for that particular Tribe.²⁵⁶ Although the Cheyenne River Sioux Court’s functional analysis of this portion of the statute is understandable, the directive statutory language providing that “the State shall negotiate” is striking, and it is hard to see how a federal requirement that a sovereign state negotiate in good faith could escape the commandeering bar in another context.

As the Cheyenne River Sioux Court recognizes, IGRA governs the relationship between two types of sovereigns, states and Tribes, and the statute did provide states with rights that the Supreme Court had held them to lack in California v. Cabazon Band of Mission Indians.²⁵⁷ Because the IGRA offers states the possibility of regulatory rights with respect to Tribal gaming that they would otherwise lack, some courts appear to view the negotiation requirement as analogous to the type of conditional grant of federal funds that was upheld in New York.²⁵⁸ Unlike a conditional funding statute, however, IGRA does not offer states an either-or option, with negotiating on one side and not having any regulatory say on the other. Rather, the IGRA requires states to negotiate; it is simply that the consequences of disobeying the requirement, at least after the Supreme Court, on Eleventh Amendment grounds, struck down the statutory provision allowing Tribes to hale non-complying states into court,²⁵⁹ are merely that the disobeying state foregoes the possibility of having any regulatory authority.²⁶⁰

Indeed, IGRA’s requirement of good faith negotiation is in some respects more onerous than the background check requirement struck down in Printz. Rather than state and local law enforcement officers having to engage in run-of-the-mill activities to support a federal law outside of the public’s view, the IGRA requires high-level state officials to negotiate with another sovereign regarding that sovereign’s plans for often-controversial economic development activities. Individual states and Tribes may have fraught relationships that make good-faith negotiation more difficult.²⁶¹ Non-Native citizens of the state may, in some cases, vociferously object to the negotiations.²⁶² It is true that there is no requirement that negotiations ultimately result in a compact—the Secretary of Interior will determine how the gaming establishment will be regulated if there is no compact²⁶³—but, given the public visibility of Tribal-state negotiations and the requirement that high-level state officials engage in them, some states may view IGRA’s negotiation requirement to be more nettlesome than the background check requirement struck down in Printz. Despite the court holdings pointing to the unobjectionable quality of a negotiation requirement, perhaps the true reason that this IGRA provision has been so often upheld over the course of thirty-five years is that commandeering is simply understood to be less objectionable in the Indian Affairs context. Indeed, as explained above, this course of events regarding IGRA suggests that the anticommandeering doctrine is applied weakly if at all in the context of Indian Affairs legislation.

III. Conclusion

In sum, the anticommandeering doctrine should be interpreted very narrowly in the context of Indian Affairs legislation for two important reasons. First, congressional authority with respect to Indian Affairs is broader than that under the Interstate Commerce Clause, with state authority being entirely excluded in the face of explicit federal legislation regarding Tribes or individual Indians. Second, courts have upheld commandeering of state officials in the context of treaty rights, the jurisdictional provisions of Public Law 280, and IGRA’s gaming compact negotiation requirement. If the doctrine has a role in this context, it should be limited to a narrow version of the doctrine, namely a prohibition on Congress’s commandeering of state legislatures. This narrow approach would harmonize the doctrine with the history of the federal, state, and Tribal relationship in the context of Indian Affairs, including the treaty rights, Public Law 280, and IGRA examples.²⁶⁴ Such an approach should also be attractive to originalist judges and justices because it may well be more faithful to the Founders’ original intent, given that commandeering of state officials for enforcement of federal laws appears to have been generally an acceptable practice at the time that the Constitution was drafted and ratified.²⁶⁵

The conclusion that the anticommandeering doctrine should play a diminished role in the context of Indian Affairs legislation seems particularly strong in the face of a statute like the ICWA that was enacted to prevent further violations of the rights of Native parents, Native children, and Indian Tribes.²⁶⁶ At a minimum, then, the commandeering examples from the treaty fishing, the Public Law 280, and the IGRA contexts indicate that federal commandeering of state executive officials is permissible in the context of Indian Affairs. The IGRA example is perhaps the strongest in that it requires negotiation in a sovereign capacity with another governmental sovereign.

Read narrowly, the treaty fishing example could tell us only that federal commandeering is permissible when there has been a state history of violation of federal rights, as there has been in the ICWA context. And the Public Law 280 example could be read in a restrictive way to suggest that, even in the absence of such a history of state violation of Tribal or individual Indians’ rights, the federal government may offload its duties onto states, at least if states have discretion as to implementation.²⁶⁷ Read in this way, of the two examples, the treaty fishing rights example of permissible commandeering is more in line with the background and operation of the ICWA.

In closing, if the anticommandeering doctrine is to be retained with respect to Indian Affairs legislation, it should either be restricted to a prohibition on commandeering state legislatures or, at a minimum, it should not apply when a federal statute is enacted to remedy states’ violations of Tribal and/or individual Native Americans’ rights. Doctrinal tests in federal Indian law tend to be rife with uncertainty,²⁶⁸ and the Court in the next anticommandeering case involving Indian Affairs legislation should sharply restrict the doctrine’s scope in this area. This approach would conserve judicial resources, reinforce that Congress—rather than the Court—has authority to regulate in this area, and create a much-needed pocket of predictability in a field generally clouded with uncertainty.

Rebecca Aviel theorizes that “commandeering concerns jump into action where Congress does not have authority to regulate states directly.”²⁶⁹ While the Indian Commerce Clause and the other bases of Congress’s plenary power with respect to Indian Affairs, such as the treaty power, may not explicitly describe the authority to regulate states, the history of the Indian Commerce Clause (and that of its predecessor in the Articles of Confederation) demonstrates that it is rooted in a need to regulate states. Moreover, Congress’s exercise of statutory regulation of states in the Indian Affairs context goes back to at least 1790, when Congress enacted the first Trade and Intercourse Act.²⁷⁰ Among other provisions, this Act barred states from purchasing land from Indian Tribes.²⁷¹ Other historical examples exist as well.²⁷² If anticommandeering has any role to play in the context of federal Indian Affairs legislation, it must be an extremely limited one.

[*] Visiting Professor of Law, Boston University School of Law, and Professor of Law, University of South Dakota Knudson School of Law. The author is extremely grateful to Dean Erwin Chemerinsky and Professors Eric Eberhard, Carole Goldberg, Steve Macias, Tyler Moore, and Frank Pommersheim for reviewing drafts of this article, as well as to faculties at University of South Dakota Knudson School of Law and Boston University School of Law for their very helpful comments during faculty colloquia. Deep thanks also go to her research assistant, Emily Greco, for her invaluable help and to the editors of Harvard Journal on Legislation for their excellent suggestions and careful attention to this piece.

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