32 Children’s Legal Rights Journal [Vol. 37: 1 2017]
the minimum contacts test should govern ICWA cases, too. People with no minimum contacts to
the tribal court should not be haled into tribal court solely on account of their biological ancestry.
ICWA’s interference with state court jurisdiction also collides with principles of
federalism. There is typically no disputing the federal government’s power to preempt states
with regard to Indian law, but such preemption is problematic when it is stretched to include off-reservation matters involving children who are not members of a tribe, but only eligible for
membership for biological reasons. Family law is quintessentially a subject of state concern, left
to the purview of the states by the Tenth Amendment. 165 So great is the role of states in this area
that federal courts even lack authority to decide divorce or child custody cases in diversity
jurisdiction. 166 Primary responsibility for family law is with the states, subject to the limits of
federal constitutional protections. 167
But ICWA overrides state jurisdiction over family law, and—as explained below—
dictates substantive law that state officials must implement in family law adjudications. In doing
so, it disrupts what would otherwise be the uniform application of state law relating to foster
care, custody, or adoption, without regard to race, ethnicity, or national origin. ICWA overrides
this nondiscriminatory state law, and segregates “Indian children” into a special category subject
to different rules, solely as a consequence of their ethnicity.
In United States v. Windsor, the Supreme Court held the federal Defense of Marriage Act
unconstitutional in part because it interfered with state family law and mandated discrimination
165 Sosna v. Iowa, 419 U.S. 393, 404 (1975).
166 Ankenbrandt v. Richards, 504 U.S. 689, 703–07 (1992).