essentially compelled states to adopt compliant policies, and “‘dragooned’” state officers “into
administering federal law.” 183 ICWA does precisely this—commanding not only that states
adopt and implement “active efforts” policies, but also that they comply with the administration
of a federally-mandated body of family law.
The recent BIA Guidelines are even more express in directly commanding state courts.
They use the word “must” 101 times while instructing state agencies and officers. The
Guidelines are meant to “clarify the minimum Federal standards, and best practices . . . to ensure
that ICWA is applied in all States consistent with the Act’s express language,” 184 and include
instructions such as: “The agency seeking a[n] . . . adoptive . . . placement of an Indian child
must always follow the placement preferences.” 185 State courts often insist that the Guidelines
are not mandatory,186 but they are certainly phrased in mandatory language.
In The Federalist, Alexander Hamilton found it so hard to imagine the federal
government trying “by some forced constructions of its authority” to “vary the [state] law”
relating to inheritance or other domestic matters that only the “imprudent zeal” of the
Constitution’s opponents could envision such a thing.187 Yet with ICWA, Congress has not only
varied the law of child welfare for one specific ethnic group, but has compelled state officials to
develop and implement a special set of standards that deviates from the state-law norm—often in
ways that harm children.
B. “Active Efforts” to Reunify Families
183 Printz, 521 U.S. at 927–28.
184 Guidelines, 80 Fed. Reg. 10146, 10150 A. 1 (Feb. 25, 2015) (emphasis added).
185 Id. at 10157, F. 1(b) (emphasis added).
186 See, e.g., In re M.K. T., 368 P.3d 771, 783–84; (Okla. 2016); Brenda O. v. Arizona Dep’t. of Econ. Sec., 226
Ariz. 137, 140 (Ct. App. 2010); In re Interest of Tavian B., 292 Neb. 804, 815 (2016) (Stacy, J., concurring and
dissenting) (“we are under no obligation to follow the guidelines.”).
187 THE FEDERALIST No. 33 at 206 (J. Cooke ed., 1961) (Alexander Hamilton).