The Necessity of the Indian Child Welfare Act
A case now before the Fifth Circuit threatens to upend the laws that enable Native self-governance.
Congress today has substantial and sweeping powers over Native nations and Native people, including the authority to abolish tribes and tribal reservations, and to expand or restrict tribal authority. These powers come from a series of Supreme Court decisions in the late 1800s and early 1900s that were based on racist views about American Indians—that Congress needed virtually unlimited authority over American Indian affairs because Natives were not equipped to govern themselves. The Court reasoned that Natives’ “weakness and helplessness” gave the federal government “broad domain” over them; later cases pointed to Natives’ “condition of tutelage or dependency.” Those decisions gave Congress more power when it comes to Native affairs
