The Supreme Court’s Chaotic Commerce Clause Decision
Commentary
On June 15, the Supreme Court issued Haaland v. Brackeen (pdf). Among other issues, the court addressed the scope of the Constitution’s Commerce Clause. Specifically, it upheld the federal Indian Child Welfare Act (ICWA) as within Congress’s power to “regulate Commerce … with the Indian Tribes.”
The Commerce Clause part of the decision is a mess. There’s no more polite way to describe it.
Before going further, I should mention the Orwellian nature of the statute’s name. It isn’t really about “child welfare.” Rather, it places the interests of tribal politicians above those of homeless Indian children. It requires state courts, when placing homeless Indian children, to subordinate the “best interests of the child” to placement with members of tribes—including tribes with which the child has no connection whatsoever….