Supreme Court Justice Neil Gorsuch offers a masterclass on tribal sovereignty in his concurring opinion offered in the court’s recent decision to uphold the Indian Child Welfare Act.
“In affirming the constitutionality of the Indian Child Welfare Act (ICWA), the Court safeguards the ability of tribal members to raise their children free from interference by state authorities and other outside parties. In the process, the Court also goes a long way toward restoring the original balance between federal, state, and tribal powers the Constitution envisioned,” he writes in a 43-page opinion.
“I write separately to add some historical context. To appreciate fully the significance of today’s decision requires an understanding of the long line of policies that drove Congress to adopt ICWA. And to appreciate why that law surely comports with the Constitution requires a bird’s-eye view of how our founding document mediates between competing federal, state, and tribal claims of sovereignty.”