26 Children’s Legal Rights Journal [Vol. 37: 1 2017]
Congress’s trust obligation to preserve tribal sovereignty cannot excuse ICWA from the
mandates of due process and equal protection. However “plenary” Congress’s powers with
regard to Indians may be, those powers are “‘not absolute’” and cannot trump the Constitution. 132
Nobody would contend, for example, that the trust obligation to preserve tribal sovereignty
would entitle Congress to, say, forbid Indians from relinquishing tribal membership, or leaving
reservations, or marrying non-Indians, or obtaining abortions. 133 All these things would help
increase and strengthen tribal membership, but Congress’s powers with regard to its trust
obligation are limited by the Constitution, and particularly by constitutional protections for the
rights of American citizens. 134 Likewise, Congress has no constitutional authority to order that
cases involving children within a biologically defined category be transferred to the jurisdiction
of tribal courts in the absence of minimum contacts.
As in all cases, personal jurisdiction in ICWA cases must satisfy the requirements of due
process, including the “minimum contacts/purposeful availment” analysis. Yet while the
minimum contacts requirement is certainly satisfied when a tribal court exercises jurisdiction
over tribal members domiciled on the reservation, that requirement is not satisfied in cases
involving off-reservation children whose sole connection to a tribe is their ancestry.
132 Delaware Tribal Bus. Comm. v. Weeks, 430 U.S. 73, 84 (1977) (quoting United States v. Alcea Band of
Tillamooks, 329 U.S. 40, 54 (1946) (plurality)).
133 Cf. KENNEDY, supra note 29, at 513 (“I see little virtue in burdening the living, particularly youngsters who have
no choice in the matter, for the sake of preserving—freezing—group identities as they are presently constituted.”).
134 The term “plenary” is misleading. As Justice Thomas has convincingly shown, Congress has no “plenary” power
with regard to Indians. United States v. Lara, 541 U.S. 193, 214–26 (2004) (Thomas, J., concurring). Certainly the
Indian Commerce Clause cannot authorize such power. See Robert G. Natelson, The Original Understanding of the
Indian Commerce Clause, 85 DENV. U. L. REV. 201, 265 (2007) (“The Indian Commerce Clause was adopted to
grant Congress power to regulate Indian trade between people under state or federal jurisdiction and the tribes . . . .
It did not grant to Congress a police power over the Indians, nor a general power to otherwise intervene in tribal
affairs.”). It is hard to see how, if Congress lacks power under the Interstate Commerce Clause to compel
individuals to engage in commerce, see Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2589 (2012), it
could have power under the Indian Commerce Clause to essentially compel tribal membership.