34 Children’s Legal Rights Journal [Vol. 37: 1 2017]
ICWA violates another essential protection for federalism: the anti-commandeering rule.
The federal government may not force state officers or state legislatures to enforce federal
law. 174 In Printz v. United States, 175 the Supreme Court found the Brady Act of 1993
unconstitutional because it “direct[ed] state law enforcement officers to participate, albeit only
temporarily, in the administration of a federally enacted regulatory scheme.” 176 People selling
firearms were required to submit information forms to these officers so that background checks
could be performed. 177 Notably, the Act instructed officers to “make a reasonable effort” to
determine whether a proposed firearm purchase was legal. 178 If an officer determined that a sale
would violate the law, the Act required the officer to give the would-be buyer a written
explanation. If the purchase was legal, the officer was instructed to destroy the paperwork. 179
Like the Brady Act, ICWA commands not only state judges but also state executive
officers to participate in the administration of a federal regulatory program—one that overrides
the quintessential state-law realm of family law. Among other things, it orders state child
welfare officers to place children in foster care or adoptive families in conformity with its
preferences, 180 mandates state record-keeping and inspection practices, 181 and requires that state
officers make “active efforts” to reunite Indian families—which includes “provid[ing] remedial
services and rehabilitative programs” to abusive parents. 182 In striking down the Brady Act, the
Printz Court was particularly troubled by the Act’s “reasonable efforts” provision, noting that it
174 See New York v. United States, 505 U.S. 144, 161–66 (1992).
175 521 U.S. 898 (1997).
176 Id. at 904.
179 Id. at 903–04.
180 25 U.S.C. § 1915(b).
181 Id. § 1915(e).
182 Id. § 1912(d).