Law 360: Analysis: Pending High Court ICWA Decision Holds Broad Implications

The Supreme Court has long recognized that federal regulation of Native American affairs is based on permissible political classifications rather than impermissible racial ones. Nevertheless, the challengers seek to impose broad limits on the circumstances in which a federal law can permissibly single out Native Americans. If the court were to adopt such limits, it would have drastic consequences for Congress’ ability to fulfill its trust obligations to Native American tribes, and it likely would also have ramifications for universities, employers and other entities that provide preferences or benefits to Native Americans or operate diversity programs that include Native Americans.

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