ICWA was passed in 1978, in an effort to put an end to the long history of states forcibly placing Native children with white families or sending Native children to abusive boarding schools. Following the passage of ICWA, states were required to err on the side of placing Native children with Native families in cases of adoption and to follow a series of procedural rules in cases where authorities feel there is no choice but to break up a Native family.

In 2017, Texas filed Brackeen v. Bernhardt, challenging the federal government’s regulation of states’ treatment of Native children in foster care or up for adoption. Texas was joined by three non-Native families, including the Brackeens, who were seeking to adopt Native children. (Some of the Native children had Native relatives who sought custody.)

In Brackeen, Texas has mounted nothing less than a frontal attack on the entire corpus of federal law that governs Indian affairs today.

The challengers in Brackeen are arguing that the federal government’s authority over Indian affairs ought to be much more limited than the expansive powers that the Supreme Court granted the federal government. They argue that the Constitution allows Congress to regulate only commerce, such as barter and trade, with tribes, and not areas of domestic relations.

But this is not the case. The Constitution and Indian tribes themselves gave Congress the authority to regulate almost anything that touches on Native American affairs, including family law. The Constitution recognizes Indian tribes as sovereigns, alongside states and foreign nations. The federal-tribal relationship originated under the international-law principle of the “duty of protection,” in which a superior sovereign agrees to take an inferior sovereign under its wing. Tragically, the United States abused this power, overextending its power to undermine tribal governance and dispossess Indians and tribes of their lands, resources, and cultures.

Tribes, of course, fought the federal government in court, but lost in those late-19th- and early-20th-century cases that confirmed the United States’ powers over tribes. But those losses are now what allows Congress to protect Native communities from discrimination. One of the ways that states and white communities sought to eradicate Native communities was by taking away their children; ICWA’s family-law rules provide some protection against those practices.

The challengers are also arguing that ICWA, which applies to children who are descendants of members of Native tribes, impermissibly discriminates on the basis of race. Laws that single out particular racial groups are subject to the most rigorous form of judicial scrutiny; therefore, if courts view ICWA as involving a racial distinction, then ICWA may very well be unconstitutional.