Watch as our panel of experts discuss the constitutionality of the ICWA against the backdrop of the Supreme Court’s upcoming decision in Brackeen v. Haaland, presented by the Law & Economics Center’s Tribal Law & Economics Program.

On November 9, 2022, the Supreme Court will hear oral arguments in Brackeen v. Haaland, a case questioning the constitutionality of the Indian Child Welfare Act (ICWA). ICWA was enacted in 1978 because Congress found “an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions.” 25 U.S.C. 1901(4).

Proponents of ICWA claim the law is a valid exercise of Congress’s authority over Indian affairs and necessary to preserve tribal cultures. Opponents of ICWA assert the law is unconstitutional because it singles out Indian children based upon their race rather than their tribal citizenship. ICWA opponents further contend the law unconstitutionally commandeers state agencies and courts.

Bethany Berger, Wallace Stevens Professor of Law, University of Connecticut School of Law

David E. Bernstein, University Professor of Law; Executive Director, Liberty & Law Center, George Mason University Antonin Scalia Law School

Thomas F. Gede, Of Counsel, Morgan, Lewis and Bockius LLP

Chrissi Ross Nimmo, Deputy Attorney General, Office of the Cherokee Nation Attorney General

Moderator: Adam Crepelle, Assistant Professor of Law; Director, LEC Tribal Law & Economics Program, George Mason University Antonin Scalia Law School

Questions? Please contact Andrew Dowless at adowless@gmu.edu or 703.993.9962.