where none would have applied otherwise. 168 Many states had chosen to broaden the definition
of marriage to include same-sex couples, the Court noted, but the Defense of Marriage Act
“intrude[d] on state power” and forced states to discriminate against same-sex couples. 169 By
imposing separate legal treatment where state law would ordinarily have applied a non-discriminatory rule, the Act “disrupt[ed] the federal balance.” 170 The same is true of ICWA. It
subjects children whose ethnic ancestry renders them eligible for tribal membership to unequal
treatment, and overrides non-discriminatory state law in a way that makes it harder to ensure
their safety and to find them adoptive homes.
True, ICWA was intended in part to remedy past discrimination, and Congress has power
to override state law when necessary for this purpose. 171 But such intervention imposes current
burdens and must be justified by current needs. 172 Whatever need there may have been a
generation ago for federal intervention to protect American Indians from abuse at the hands of
state child protection agencies, that cannot justify the continued intrusion on state law matters
without some showing that those abuses remain, and that ICWA resolves them in a
constitutionally acceptable manner. 173
168 See id. at 2692.
171 See generally Nevada v. Hibbs, 538 U.S. 721 (2003).
172 Cf. Shelby Cty., Ala. v. Holder, 133 S. Ct. 2612, 2619 (2013). See also Williams v. Babbitt, 115 F.3d 657, 665–
66 (9th Cir. 1997) (where social and economic conditions of indigenous population have changed, legislation that
addresses their interests may be rendered unconstitutional).
173 Indian children are still removed from Indian homes and placed in non-Indian homes at a disproportionately high
rate, but as the problems of poverty, alcoholism, drug abuse, and domestic violence are disproportionately higher in
Indian country, this fact alone cannot show that the problems ICWA was enacted to redress still remain. See
STEPHEN L. PEVAR, THE RIGHTS OF INDIANS AND TRIBES 306 (4th ed. 2012) (“The extent to which these disparities
are due to persistent bias and prejudice as opposed to legitimate responses to child abuse and neglect cannot be
determined with any degree of certainty.”). Of course, there are still abuses, including the shocking case of Oglala
Sioux Tribe v. Van Hunnik, 100 F. Supp. 3d 749 (D.S.D. 2015). But the abuses involved there were sufficiently
addressed by due process protections. See id. at 769–72.