One common theme of this shameful history is that Indians have often suffered from
undertakings that were advertised at the time as “helping.” 16 The infamous boarding school
system, with its policy of “kill the Indian to save the man,” 17 or the self-serving myth that
Indians had no concept of private property rights—which functioned as a handy excuse to
deprive them of their homelands—are obvious examples. 18 In these and other ways, Indians
have frequently been betrayed under promises that the government would “benefit” and “protect”
So, too, with ICWA. Though enacted with good intentions, the provisions of ICWA
critiqued below harm Indian children, deprive them of the protection of the “best interests of the
child” standard, move them beyond the reach of state protective services, curtail their rights to
due process and equal protection, subordinate their interests to those of tribal governments, and
cripple efforts to rescue them from abuse and find them stable homes. The “ICWA Penalty Box”
obstructs the ability of American Indian children to realize the benefits of their American
This last point is worth emphasizing. All Indian children are citizens of the United
States19 and entitled to the equal protection of the laws. That they are denied such protection
today is a disgrace. However noble the intentions behind ICWA’s passage, it is today often a
cause of abuse. All children, regardless of their ancestry, deserve to be regarded as individuals,
16 See generally NAOMI SCHAEFER RILEY, THE NEW TRAIL OF TEARS: HOW WASHINGTON IS DESTROYING
AMERICAN INDIANS (2016) (describing how paternalistic policies such as the “trust” relationship—that bars private
ownership of land on reservations—BIA regulations on businesses on reservations—which make it harder to engage
in trades—and other allegedly helpful policies harm Native Americans).
17 See generally Ann Piccard, Death by Boarding School: The “Last Acceptable Racism” And the United States’
Genocide of Native Americans, 49 GONZ. L. REV. 137, 140 (2014).
18 See generally TERRY L. ANDERSON, SOVEREIGN NATIONS OR RESERVATIONS? INDIAN ECONOMIES: AN ECONOMIC
HISTORY OF AMERICAN INDIANS (1995); TOM FLANAGAN ET AL., BEYOND THE INDIAN ACT: RESTORING
ABORIGINAL PROPERTY RIGHTS (2010); Robert J. Miller, Economic Development in Indian Country: Will
Capitalism or Socialism Succeed?, 80 OR. L. REV. 757, 764–80 (2001).
19 8 U.S.C. § 1401(b) (2012).