US Supreme Court's June 2023 ruling concludes Indian Child Welfare Act of 1978 is constitutional

Lawrence J. Altman¹ is an adjunct professor at Avila University in Kansas City. Until he retired in January of 2016, Altman was the special education lead attorney and compliance officer for Kansas City Public Schools and the Title IX coordinator for the Kansas City School District. In addition, on Feb. 6, 2023, Altman was appointed as a member of the Advisory Board of Project Innovation for Mental Health Enhancement (PRIME), a project funded by the United States Department of Education. On May 24, 2024, Avila University awarded Altman its Diversity, Equity, Inclusion Ambassador Award. Altman has presented CLEs through MoBarCLE about diversity, equity, and inclusion topics and cases.

In June 2023, the U.S. Supreme Court issued a ruling in Haaland, Secretary of the Interior v. Brackeen³ that discussed Native Americans’ rights under the Indian Child Welfare Act of 1978 (ICWA).⁴ This federal law determines the rights of Native American tribes regarding the placement of Native American children who are put up for adoption or placed in foster care. The plaintiffs in this case challenged Congress’ authority to enact the ICWA and asked that the Court strike down the ICWA as unconstitutional and issue a restraining order against the U.S. Secretary of the Interior preventing the secretary from enforcing the ICWA. Holding that Congress did not exceed its authority under the Constitution when enacting the ICWA, and that the ICWA did not violate the Constitution, the Court denied the plaintiffs’ request for a restraining order. 

Justice Amy Coney Barrett wrote the majority opinion in Haaland, describing the history that led to the enactment of the ICWA, and Justice Neil Gorsuch added a concurring opinion to provide additional historical information. This article will discuss Gorsuch’s historical narrative in support of the ruling, Barrett’s reasons for upholding the ICWA, and the claim that the ICWA violates the equal protection clause in light of the Supreme Court’s ruling in Students for Fair Admissions, Inc. v. President and Fellows of Harvard College.

Case history 

The petitioners in this case were a birth mother, foster and adoptive parents, and the state of Texas. They filed their complaint against the United States and other federal parties. In their case, the petitioners claimed: Congress lacked the authority to enact the ICWA and that several sections of the ICWA violated the anti-commandeering principle of the 10th Amendment; and the ICWA illegally employed racial classifications that unjustly hindered non-Native American families from fostering or adopting Native American children. 

After the complaint was filed, several Native American tribes intervened to help defend the validity of the ICWA. Leaders within the Native American tribes indicated they wanted to join this case because of historical conflicts between the federal government and tribes, as well as the belief Native Americans are best suited to advocate for what was in their best interest. Gorsuch added Native Americans had ample reason to distrust the government from strongly advocating on their behalf. 

The District Court granted summary judgment on the petitioners’ constitutional claims. On appeal, the en banc 5th U.S. Circuit Court of Appeals affirmed in part and reversed in part the District Court ruling. The Court of Appeals concluded that when Congress enacted the ICWA, it did not exceed its legislative power, it did not violate the nondelegation 10th Amendment doctrine, and some of the ICWA’s placement preferences did satisfy the requirements of the equal protection clause under the 14th Amendment. That said, the 5th Circuit was evenly divided as to whether the ICWA’s preferences prioritizing “other Indian families” and “Indian foster homes” over non-Native American families was unconstitutional discrimination based upon race. Thus, the Court of Appeals confirmed the District Court’s ruling that these preferences were unconstitutional. 

The U.S. Supreme Court ruled that Congress had the authority under Article I of the Constitution to enact the ICWA and reversed those portions of the Court of Appeals’ ruling, upholding the District Court’s ruling. The U.S. Supreme Court rejected all equal protection claims made by the petitioners, yet did not address the merits of those claims because, as Barett concluded, no party before the Court had standing to raise them. The Supreme Court, therefore, by a vote of 7-2, with Justices Samuel Alito and Clarence Thomas dissenting, affirmed in part, reversed in part, vacated in part, and remanded in part the court of appeal’s ruling. 

Background of ICWA 

The ICWA requires a state court to place a Native American child, who is to be placed in foster care or adopted, with a Native American caretaker if one is available. This must happen even if the child is already living with a non-Native American family and the state court believes that it is in the best interest of the child to live with the non-Native American family. 

Congress enacted the ICWA in 1978 in response to congressional concerns with how often state courts and state agencies were breaking up Native American families without proper cause during the 1950s, 1960s, and 1970s.⁵ In addition, after the breakup, Native American children were placed in non-Native American foster care or with non-Native American families. Because of these actions, there was a failure to recognize the essential tribal relationship of Native Americans and the social standards prevailing in Native American communities. 

In fact, Gorsuch said in his concurring opinion, the United States government had been a proponent of “dissolving” Native American families since the 1870s.⁶ Starting in the 1870s, he said, the goal of the federal government was “destroying the tribal identity and assimilating [Native Americans] into a broader society.”⁷ This led to the opening of Native American boarding schools during the 1870s. The goal of these schools was to abolish all tribal relations between Native American children and their families and tribes.⁸ 

In response to the resistance of Native Americans and tribes to the placement of their children in these boarding schools, Congress passed the Act of March 3, 1893 (27 Stat. 628, 635) and the Act of February 14, 1920 (41 Stat. 41). These laws authorized the U.S. Secretary of the Interior to “prevent the issuing of rations or furnishing of substance” to Native American families who would not place their children in the Native American boarding schools.⁹ Further, although not included within the two acts, there were accounts of abductions of Native American children who did not want to be separated from their families, who were then placed in the boarding schools.¹⁰ 

To lower cost and promote assimilation, some boarding schools created an “outing system” that sent Native American children to “live with white families.”¹¹ These programs led to mass adoptions of Native American children. Gorsuch said the goal of these boarding schools and outing programs was to place every Native American child in white homes, thereby leading to the elimination of all Native Americans in the United States.¹² 

These actions were impeding the ability of the Native American communities to maintain their existence. Further, Congress received data confirming that a high percentage of Native American families were broken up by the removal, often unwarranted, of Native American children by state, public, and private agencies.¹³ “An alarmingly high percentage of [Native American] children” were placed in non-Native American foster homes, institutions, and families.¹⁴ Congress therefore concluded that the scale of removal of Native American children threatened the continued existence of Native American tribes,¹⁵ and Gorsuch concluded it took over 100 years for Congress to accept the fact that inaction would lead to the extinction of all Native Americans in the United States. Congress, therefore, responded in 1978 with the enactment of the ICWA, 92 Stat. 3096. 

The ICWA installs substantive and procedural guardrails against unjustified termination of Native American families’ parental rights and removal of Native American children from their tribal life. The ICWA also protects the rights of Native American tribes to remain independent sovereigns responsible for governing their own affairs. 

Gorsuch also noted the Supreme Court’s prior rulings justified the enactment of the ICWA. To illustrate, Gorsuch said the Court has held that domestic law arrangements for Native Americans fall within traditional tribal powers of self-government.¹⁶ 

Response to claims of unconstitutionality 

In response to the claim that Congress did not have authority to enact the ICWA, Barrett disagreed and said Congress’ Article I power to enact legislation, including legislation impacting Native Americans, was well established and broad in scope.¹⁷ Although marriage and child custody issues are generally controlled by the states, when Congress legislates under its Article I power on those issues, conflicting state law is preempted.¹⁸ 

The Supreme Court has recognized Congress’ Article I power to displace the jurisdiction of state court adoption proceedings involving Native American children.¹⁹ And it referred to one of the founders of the Constitution, James Madison, who said that when the Constitution confers power upon Congress, it might exercise this power even if it could interfere with state law or a state constitution. Accordingly, the Court rejected the plaintiffs’ attempt to turn a general observation that Congress rarely enacts legislation that touches family law issues into a constitutional ban prohibiting Congress from using its Article I power. 

In fact, Article VI of the Constitution says that laws of the United States are the laws of the land and must be followed by state courts even if they conflict. Therefore, the Supreme Court has held that when Congress enacts a valid federal statute as permitted under its Article I power, if state laws conflict with the federal statute, federal law prevails.²⁰ Barrett concluded that any conflict the ICWA has with state law results in the ICWA prevailing. 

Barrett also rejected the argument that Congress’ Article I power did not “stretch” far enough to justify the enactment of the ICWA.²¹ Indeed, the plaintiffs argued that nowhere in the Constitution is Congress authorized to regulate custody proceedings for Native American children. Barrett said Article I, § 8, Clause 3 of the Constitution – known as the commerce clause – gave Congress the authority to enact the ICWA. However, the plaintiffs argued that the commerce clause does not apply because (1) Native American children are not commerce, and (2) the clause only allows Congress to make legislation about Native American tribes, not Native Americans as individuals.²² Agreeing that Native American children are not commerce, Barrett rejected these arguments because the commerce clause applies to Native American affairs and the Court has ruled that commerce with Native American tribes means commerce with individuals composing the tribes.²³ Barrett also noted the ICWA applies to the “affair” of preserving the Native American tribes by preventing the removal of Native American children from tribes until at some point in time there would no longer be Native American children, thereby ending the existence of Native Americans in the United States.²⁴ 

The argument that the ICWA violates the 10th Amendment that bans Congress from “commanding the states’ officials or the officials from political subdivisions of the states” to administer or enforce federal regulatory programs was also rejected as the ICWA applies to state and local agencies, along with individuals and private agencies, Barrett said.²⁵ Therefore, legislation that applies “evenhandedly” to states and private agencies does not have any 10th Amendment implications.²⁶ 

The plaintiffs in this case also did not have the standing to raise a claim under the equal protection clause, the Court explained, because Article III, § 2 of the Constitution gives federal courts the power to adjudicate only genuine “cases” and “controversies.” Because the plaintiffs could not show they would suffer an injury traceable to the alleged unlawful conduct by the defendants that a court could redress, there was no controversy.²⁷ Thus, the Court would not rule upon the plaintiffs’ violation claim. 

Further, Barrett said the petitioners did not have standing to bring a 14th Amendment claim because none of the named defendants were engaged in enforcing the ICWA as state courts are obligated to enforce the ICWA.²⁸ None of the named defendants were employees of Texas or any local government agency nor had mandatory enforcement obligations under the ICWA. Neither Texas nor any local agency was a defendant in this litigation. No federal court or federal agencies have any power of enforcement under the ICWA because all enforcement obligations under the ICWA are left to the states. Further, the Court said that one of the plaintiffs, the state of Texas, had no standing to proceed with an equal protection claim against the ICWA for three reasons: 

1. The Supreme Court has ruled that a state has no standing to challenge a placement preference for children.²⁹ 
2. States have no equal protection rights of their own. 
3. States cannot assert equal protection rights on behalf of their citizens.³⁰ 

Considering these points, the Court ruled that Congress had the constitutional authority to pass the ICWA and denied the plaintiffs’ claims for equal protection relief. 

Claim that the ICWA violates the equal protection clause in light of the Supreme Court’s ruling in Students for Fair Admissions, Inc. v. President & Fellows of Harvard College³¹ 

Barrett and Justice Brett Kavanaugh said the claim the ICWA violated the equal protection clause of the 14th Amendment was not properly before the U.S. Supreme Court. But both left open the possibility that a later case, brought by parties who had standing, could result in a different outcome. Indeed, the District Court and Court of Appeals believed that sections of the ICWA were acts of racial discrimination and therefore in violation of the 14th Amendment. 

The 1st Circuit Court of Appeals listed three “practices” the Supreme Court ruled were prohibited by the 14th Amendment’s equal protection clause.³² The first was where “state action” expressly classifies individuals by race.³³ The second occurs when a policy is facially neutral but is unevenly implemented based upon race.³⁴ And the third occurs when a facially neutral and evenly applied policy results in a racially disparate impact motivated by discriminatory intent.³⁵ 

Indeed, since the ICWA is not facially neutral because it provides a preference for Native American families over non-Native American families, the second and third practices that violate the 14th Amendment do not apply. In fact, as the 1st Circuit said, the first listed violation of the 14th Amendment was the reason the U.S. Supreme Court ruled the affirmative action plans of the schools in Students for Fair Admissions violated the Constitution.³⁶ An argument could be made that the ICWA does exactly this when it expresses a preference for Native Americans over non-Native Americans regarding the adoption of foster care of Native American children. 

Yet, there are factors that distinguish the ICWA from the types of affirmative action plans the Supreme Court ruled violated the equal protection clause of the 14th Amendment. Unlike affirmative action plans, the protection of Native American children is specified by a statute, the ICWA. In addition, a nondiscriminatory reason exists that would exempt it from a claim that it violates the 14th Amendment: Prevention of the extinction of Native Americans. Congress wanted to make certain that the tribal nations would continue to exist. 

As noted earlier by Gorsuch, starting in the 1870s, the federal government attempted to assimilate Native American into “white men” society.³⁷ In President Theodore Roosevelt’s 1894 book, “The Winning of the West,” he said a crowning achievement in protecting civilization in the United States was the white triumph over the Native American population that reduced the Native American population from millions to a few hundred thousand.³⁸ And historian Roxanne Dunbar-Ortiz opined that the low point for Native Americans occurred with the enactment of the Indian Citizenship Act of 1924. Dunbar-Ortiz claimed that the goal of this “imposed unsolicited citizenship on American Indians”³⁹ was to assimilate and dissolve Native American nations. She concluded that “Democracy, equality, and equal rights do not fit with dominance of one race by another, much less with genocide.”⁴⁰ Indeed, as Gorsuch concluded, by setting out to eliminate the removal of Native American children by state officials, local officials, and others, Congress wanted to maintain the existence and integrity of Native Americans in the United States. Thus, it can be argued the ICWA was enacted to prevent the genocide⁴¹ of Native Americans, ultimately a nondiscriminatory response. 

The American Bar Association published an article in late 2023 describing how “fine tuning” diversity policies would avoid the Supreme Court’s prohibition discussed in Students for Fair Admissions.⁴² Indeed, as suggested by the article, fine-tuning policies that expand the focus beyond race can meet the legal mandate of the Supreme Court and comply with the equal protection clause of the 14th Amendment. The ICWA does just that. Because the ICWA focuses upon prevention of genocide of Native Americans, something beyond race, the claim of a violation of the 14th Amendment’s equal protection clause would be denied, theoretically. 

The Constitution also provides a measure of sovereignty and respect for Native American tribes and their members. Article I, § 8 of the Constitution says Congress has the power to: “Regulate Commerce with foreign nations, and among the states and with Indian Tribes.”⁴³ This article of the Constitution is evidence that the founders recognized that Native American tribes have a status different from individuals. Further, the power to deal with Native American tribes was solely vested in Congress and no other branch of the United States government. By contrast, the ruling in Students for Fair Admissions focused upon individuals, not a foreign nation, a state, or a Native American tribe. So, when Congress enacted the ICWA, it did so based upon its authority given to it by the Constitution and was consistent with the intent of the founders when they included Article I, § 8, Clause 3 in the Constitution. Accordingly, a 14th Amendment equal protection claim the ICWA is unconstitutional would fail because it would be contrary to the intent of the framers expressed in the Constitution. 

The ICWA is not the only time Congress enacted legislation that provides benefits to Native Americans and their tribes. In 1996 Congress enacted the Indian Self-Determination and Education Assistance Act.⁴⁴ As explained by Congress: “The United States is committed to supporting and assisting Indian Tribes in the development of strong and stable governments, capable of administering quality programs and developing the economies of their respective communities.”⁴⁵ 

Congress’ words provide additional support for the Supreme Court to find the ICWA does not violate the 14th Amendment. Indeed, this law recognizes that Native American tribes are to be treated as sovereign nations or states because it refers to the tribes as “governments.” Congress has said that one of the goals of this law is to help tribes develop strong economies for their communities. A long-term commitment to this goal would include the prevention of the extinction of Native Americans so the tribes could take advantage of the benefits of this law. Thus, one way to make certain that Native Americans continue to exist is to allow the ICWA to remain as the law. 

Also, when Congress enacted the Not Invisible Act of 2019,⁴⁶ Congress again expressed its intent to meet its obligations to “Tribal Nations” by enacting a law addressing the crisis of missing, murdered, and trafficked Native Americans and Alaska Natives.⁴⁷ This law created a new position in the United States Department of Interior to collaborate with tribal leaders and law enforcement agencies across the United States to address what Congress called a “crisis.” The key words of this law, “Tribal Nations,” is another example of how Congress recognizes its constitutional authority, not given to any other branch of government, to interact with Native Americans. 

What’s more, Gorsuch in his opinion in McGirt v. Oklahoma⁴⁸ and in his dissenting opinion in Arizona v. Navajo Nation⁴⁹ provides additional support that only Congress determines the relationship between the United States government and Native American tribes. In McGirt,⁵⁰ Gorsuch said the power to make or break promises made in treaties with tribes belongs only to Congress. In Gorsuch’s dissent in Navajo Nation, he said when reviewing interactions between the United States and Native American tribes when Congress enters into treaties with the tribes, there is a duty that the government will act in good faith to protect the tribe and the tribe’s way of life.⁵¹ Although some may argue the ICWA is not a treaty, it does serve as an example of the exclusive power Congress has when interacting with Native Americans. 

Thus, the ICWA is an exercise of Congress’ exclusive power under the Constitution to establish the ongoing relationship between Native American tribes and the United States government and protect the way of life of Native American tribes. Therefore, it could be argued, the ICWA would not be subject to a non-Native American individual’s claims of a violation of the equal protection clause of the 14th Amendment to the Constitution. 

Conclusion 

At least for now, the Supreme Court upheld the ICWA and ruled it withstood all constitutional challenges it elected to rule upon. That said, Barrett and Kavanaugh left the door open for a further challenge to the ICWA for those who have standing to claim the ICWA violates the equal protection clause of the 14th Amendment. The ICWA does provide an advantage to one race: Native Americans when Native American children are to be placed in foster care or could be adopted. Accordingly, the question remains unanswered of whether the ICWA should be set aside because it violates the equal protection clause in accordance with the Supreme Court’s ruling in Students for Fair Admissions. 

Yet there are compelling reasons to conclude that the ICWA does not violate the Supreme Court mandate. First, affirmative action for school admissions is not specially mandated by any federal statute. Also, unlike the facts in Students for Fair Admissions, there was a critical reason beside race as to why Congress enacted the ICWA: Prevention of the extinction of all Native Americans. Congress was given authority under Article 1, § 8, Clause 3 of the United States Constitution. By including that article, the founders gave Congress the exclusive power and authority to work with Native American tribes. Using that power and authority, Congress enacted the ICWA. Further, as Congress said when it enacted the ICWA: “[T]here is no resource … more vital to the … tribes than their children.”⁵² 

Accordingly, any attempt to lessen Congress’ authority to enact and enforce the ICWA would not be consistent with the intent of the founders and would be an illegal usurpation of the constitutional authority given to the Congress.

Endnotes 

1 The reason I am so passionate about the rights of Native Americans can be linked to my work in the field of education. I am an adjunct professor at Avila University in Kansas City and have been teaching an “Introduction to Business Law” undergraduate class for over nine years. Major topics in this class include diversity, equity, and prohibiting discrimination in the workplace. Because of the diversity of students in my class, including several Native American students, I began researching the history and culture of Native Americans. 

As part of my research, I read Roxanne Dunbar-Ortiz’s book, “An Indigenous Peoples’ History of the United States” and three opinions written by Justice Neil Gorsuch in “U.S. Supreme Court Rulings impacting Native Americans.” I became a member of a board supervising a Department of Education grant awarded to my colleagues at the University of Oklahoma, and some members of that board are Native American. I shared what I had been studying, and they encouraged me to continue the process and helped me expand my knowledge and understanding of Native American history. I also became friends with a member of the Choctaw Tribe who lives in the Kansas City area. Now, each semester, he comes to my Avila class as a guest speaker. 

November is National Native American Heritage Month, and my research has made me passionate about the history of Native Americans and a proponent of protecting their right to exist and prosper. 

When describing American tribal members, my Choctaw friend explained to my students that it is up to the tribal leaders or tribal elders to determine how their members should be identified. To illustrate, his tribe describes their members as “American Indians.” In one of my classes, a student who was a member of another tribe said their leaders want to be referred to as “Native Americans.” And Dunbar-Ortiz refers to tribal members as “Indigenous People.” So, the best practice if someone meets a tribal member is to ask that person how they and their members should be identified during discussions. 

2 AP Style specifies using “Native Americans” “in broad references when referring to two or more people of different tribal affiliations within the contiguous U.S. geographic boundaries.” See “race-related coverage” entry in the 2024 AP Stylebook. 

3 Haaland v. Brackeen, 599 U.S. 255 (2023). 

4 25 U.S.C. §§ 1901-63. 

5 Attempts to extinguish Native Americans from the United States was not confined to the 20th century. Roxanne Dunbar-Ortiz, in her book, “An Indigenous Peoples’ History of the United States,” page 41 (Beacon Press, 2014), pointed out that between 1852 and 1867, as part of the attempt of white settlers to extinguish all California Native Americans, in addition to killing many Native Americans by armed forces, 4,000 Native American Children were kidnapped. Those kidnapped children lost all contact with their families and assimilated in white society with no memory of tribal traditions or their first language. 

6 Haaland, 599 U.S. 255 at 299.

7 Id. at 298. 

8 Annual Report of the Commission of Indian Affairs to the Secretary of the Interior, 28 (1910). 

9 Roxanne Dunbar-Ortiz, in her book, “An Indigenous Peoples' History of the United States,” page 151, discussed the conditions forced upon Native American children in the boarding schools. To illustrate, Native American children were prohibited from speaking in their native language or practicing their religions. Those children who violated the rules were beaten by the staff. 

10 Report of the Commissioner of Indian Affairs (ARCIA) (1886). 

11 The Rise and Fall of the Indian Outing System 1878-1930, 52 PACIFIC HIST. REV. 267, 273 (1983). 

12 Haaland, 599 U.S. 255 at 302. 

13 25 U.S.C. § 1904(4). 

14 § 1901(3). 

15 25 U.S.C. § 1901(3). 

16 Haaland, 599 U.S. 255 at 331. See also United States v. Quiver, 21 U.S. 602, 605 (1916); Fisher v. District Court, 424 U.S. 382, 387 (1976). 

17 Haaland, 599 U.S. 255 at 273. 

18 Hillman v. Maretta, 569 U.S. 483, 491 (2013). 

19 Fisher v. District Court Sixteenth Judicial District of Mont., 424 U.S. 382, 390 (1976) (per curiam). 

20 Crosby v. National Foreign Trade Council, 530 U.S. 363, 372 (2000). 

21 Haaland, 599 U.S. 255 at 277. 

22 The Congress shall have the power to “regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.” U.S. Const., art. I, § 8, cl. 3. 

23 United States v. Nice, 241 U.S. 591, 600 (1916). 

24 Haaland, 599 U.S. 255. 

25 Id. 

26 Id. at 283. 

27 California v. Texas, 593 U.S. 659 (2021). 

28 Haaland, 599 U.S. 255. 

29 South Carolina v. Katzenbach, 301 U.S. 301, 323 (1966). 

30 Alfred L. Snapp & Sons, Inc. v. Puerto Rico ex rel. Barez, 458 U.S. 592, 610, n.16 (1982). 

31 600 U.S. 181 (2023).

32 Boston Parent Coalition for Academic Excellence v. The School Committee for the City of Boston, 89 F.4th 46 (1st Cir. 2023). 

33 Students for Fair Admissions, Inc. v. President & Fellows of Harvard College, 600 U.S. 181 (2023). 

34 Boston Parent Coalition for Academic Excellence v. The School Committee for the City of Boston, 89 F.4th (1st Cir. 2023), citing Yick Wu v. Hopkins, 118 U.S.356, 373–374 (1886). 

35 Boston Parent Coalition for Academic Excellence v. The School Committee for the City of Boston, 89 F.4th (1st Cir. 2023), citing Vill. Of Arlington Heights v. Metro-Hous. Dev. Corp, 429 U.S. 252, 264–265 (1977); Washington v. Davis, 426 U.S. 229, 242 (1976). 

36 Students for Fair Admissions, Inc. v. President & Fellows ff Harvard College, 600 U.S. 181 (2023). 

37 Haaland, 599 U.S. 255 

38 RACHEL MADDOW, PREQUEL, AN AMERICAN FIGHT AGAINST FASCISM 23 (Beacon Press, 2014). 

39 Id. at 169. 

40 Id. at 103. 

41 “Genocide” is defined as the deliberate killing or severe mistreatment of a large number of people from a particular national or ethnic group with the aim of destroying that nation or group (Merriam-Webster Dictionary). 

42 John Roemer, Now What? 109 ABA JOURNAL 11, 12 (Dec/Jan 2023-24). 43 U.S. CONST., art. I, § 8, cl. 3. 

44 Pub. L. 93-638, codified at 25 U.S.C. § 5303. 

45 Id. Section 4, as fully explained in P.L. 93-638, as Amended and Renumbered and as Explained, by Hobbs, Straus, Dean, & Walker, LLP., www.hobbsstraus.com, October 2020. 

46 Pub. L. 116-166. 

47 The Associated Press defines Indigenous groups in Alaska as “Alaska Natives.” 

48 591 U.S. 894 (2020). 

49 599 U.S. 555 (2023). 

50 McGirt v. Oklahoma, 591 U.S. 894 (2020), citing Lonewolf v. Hitchcock, 187 U.S. 553, 566–568 (1903), citing U.S. CONST., art. I, § 8. 

51 Arizona v. Navajo Nation, 599 U.S. 555 (2023), citing Minnesota v. Mille Laws Band of Chippewa Indians, 526 U.S. 172, 196 (1999). 

52 25 U.S.C. §1901 (3).