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Sample Authorities,
Indexed For Your Research:
(In re Santos Y. contains:
Existing Indian Family Doctrine,
Constitutional Limitations
upon the Scope of ICWA)
Need Help with Legal Research? **
Elizabeth Morris
Data-Aide LLC
Tell Congress Write Letters to the Editors Tell Talk Show Hosts Contact CAICW.org
Legal Assistance Resource Sites See - Caicw.org/LegalAssistance
Fighting the Indian Child Welfare Act Resource See - Caicw.org -
THE COMMERCE CLAUSE
Article 1, Section 8, Clause 3 of the United States Constitution,
known as the Commerce Clause, states that Congress has the exclusive authority to manage commerce between the states, with foreign nations, and Indian tribes. Courts and commentators have tended to discuss each of these three areas as a separate power granted to Congress. It is common to see the Commerce Clause referred to as "the Foreign Commerce Clause", "the Interstate Commerce Clause", and "the Indian Commerce Clause", each of which refers to the same single sentence in the constitution that covers all three.
So did Congress have the authority to adopt laws unrelated to Commerce
- such as the Indian Child Welfare Act (ICWA)?
A noted constitutional law professor recently investigated to see if
laws like ICWA really are constitutional as regulating “Commerce with the Indian Tribes.”
His answer: Absolutely not.
The Original Meaning of the Indian Commerce Clause
85 Denv. U. L. Rev. 201 (2007)
The U.S. Constitution gives Congress only limited powers, and it says nothing about legislating for “Indian child welfare.” So what gives Congress the power to pass a law like the ICWA?
Some say the Founding Fathers intended to give Congress that power by a section in the Constitution allowing Congress to “regulate Commerce with the Indian Tribes.” But is that true?
A noted constitutional law professor recently investigated to see if laws like ICWA really are constitutional as regulating “Commerce with the Indian Tribes.” His answer: Absolutely not.
Professor Rob Natelson of the University of Montana is one of the country’s top experts on the original meaning of the Constitution. He concluded that the purpose of the section giving power to Congress to regulate commerce with the Indian tribes was to allow Congress to regulate trade between Indians and whites – no more. Foster care, adoption, parental rights, etc. were be governed by state law, not federal law.
Professor Natelson documented his findings in a lead article published in Denver University Law Review.
He also examined other claimed bases for laws like the ICWA, including the “Indian trust doctrine” – and he found they didn’t have any merit, either.
“There is not much doubt on the question,” he said. “At least according the Founding Fathers, Congress had absolutely no authority to adopt the ICWA. Eventually, the courts may see their error and strike it down as unconstitutional.”
The Original Meaning of the Indian Commerce Clause
85 Denv. U. L. Rev. 201 (2007)
The article – and some of Professor Natelson’s other research –
can also be found at www.umt.edu/law/faculty/natelson.htm
The University of Montana website doesn't always appear to be functioning. However, if this is one of your lucky days
, Professor Natelson's research is must read for any Constitutional Law Student:
The Original Meaning of the Indian Commerce Clause
85 Denv. U. L. Rev. 201 (2007)
The Legal Meaning of "Commerce" In the Commerce Clause
80 St. John's L. Rev. 789 (2006)
Commerce Clause
Article 1, Section 8, Clause 3 of the United States Constitution
.