6 Children’s Legal Rights Journal [Vol. 37: 1 2017]
and their best interests should be the overriding consideration in cases involving their welfare.
The United States owes American Indian children nothing less.
“We never have objected to become citizens of the United States and to conform to her laws; but
in the event of conforming to her laws, we have required the protection and the privileges of her
laws to accompany that conformity on our part.”
A. The History of ICWA
To understand ICWA, one must keep in mind the precarious, often inconsistent, legal
regime that governs American Indians. Federal Indian policy has wavered between efforts to
eradicate tribal power and to strengthen it. These conflicting goals have left the field of Indian
law strewn with confusion, contradiction, and sometimes cynicism.
In 1934, the Indian Reorganization Act21 announced a retreat from the federal
government’s previous policy of seeking to eradicate tribes. 22 Yet in the 1950s, Congress again
moved toward ending tribal authority, and under the banner of “termination,” passed laws that
aimed to close the tribes down, and to extend state criminal jurisdiction over reservation lands. 23
Then the federal government reversed course again. 24 The Civil Rights era led to the formation
20 JOHN ROSS, LETTER FROM JOHN ROSS, PRINCIPAL CHIEF OF THE CHEROKEE NATION OF INDIANS IN ANSWER TO
INQUIRIES FROM A FRIEND REGARDING THE CHEROKEE AFFAIRS WITH THE UNITED STATES 12 (1836).
21 Indian Reorganization Act, 25 U.S.C. § 461 (1934) (current version at 25 U.S.C. § 5101 (2012)).
22 See CHARLES WILKINSON, BLOOD STRUGGLE: THE RISE OF MODERN INDIAN NATIONS 60–63 (2005) (Although
the Act imposed “a top-down, paternalistic approach” on tribes, it ended the “allotment” policy that sought to divide
and sell reservation land and created a framework for tribes to establish formal governments).
23 These included House Concurrent Resolution 108 (H.R. Con. Res. 108, 83d Cong., 1st Sess. (1953)); Pub. Law
280, 67 Stat. 588 (codified as amended at 18 U.S.C. § 1162, 28 U.S.C. § 1360); and the Indian Relocation Act of
1956, Pub. L. No. 84-959, 70 Stat. 986. The record, however, is not unmixed. Although not often mentioned, the
termination policy was enacted alongside other laws that also sought to end the policy of paternalism that deprived
Indians of much of their freedom. Thus, Public Law 281, 67 Stat. 590, repealed prohibitions on Indians buying and
selling various goods, including farming tools, guns, and clothes, and Public Law 277, 67 Stat. 586, allowed tribes to
decide for themselves whether to allow or prohibit alcohol on reservations.