of the American Indian Policy Review Commission, which in 1977 issued a report calling for
significant changes to federal Indian policy. 25 Among the fruits of this renewed commitment to
self-government were the Indian Self-Determination and Education Assistance Act of 1975, 26
federal regulations governing recognition of tribes, 27 and Supreme Court decisions that
recognized, but limited, tribal sovereignty. 28 Among the capstones of this era was ICWA.
ICWA was enacted in response to efforts during the termination era to assimilate Indian
children into American society. At that time, federal policy consciously sought to separate
Indian children from their parents29 and to place them in boarding schools, where many children
were abused and were punished for speaking Indian languages or practicing traditional
religions. 30 Children were also removed from Indian families under local standards that failed to
account for traditional Indian cultural practices, and were adopted by non-Indian families, with a
view to assimilating Indians into white society and terminating the existence of tribes. 31
26 25 U.S.C. § 450 (1975) (current version at 25 U.S.C. § 5301 (2016)).
27 See generally 25 C.F.R. § 83.
28 See N. BRUCE DUTHU, AMERICAN INDIANS AND THE LAW 16–34 (2008).
29 Randall Kennedy provides a powerful critique of the allegations of abuse that led to the passage of ICWA.
RANDALL KENNEDY, INTERRACIAL INTIMACIES: SEX, MARRIAGE, IDENTITY, AND ADOPTION 484–99 (2003). On the
other hand, as Kennedy acknowledges, hard evidence on such subjects is difficult to come by. Id. at 489–502. As
recently as March, 2015, a federal district court in South Dakota found that local child welfare officers were failing
to comply with ICWA and were engaging in abusive practices that “failed to protect Indian parents’ fundamental
rights to a fair hearing.” Oglala Sioux Tribe v. Van Hunnik, 100 F. Supp. 3d 749, 772 (D.S.D. 2015).
30 Until enactment of the American Indian Religious Freedom Act, 42 U.S.C. § 1996 (2012), in 1978, various
federal directives essentially outlawed many native religious practices. This was often done not by statute but by
executive order. See generally JACQUELINE SHEA MURPHY, THE PEOPLE HAVE NEVER STOPPED DANCING: NATIVE
AMERICAN MODERN DANCE HISTORIES (2007). This is just one of the many examples of the way Indians have often
suffered because they have been governed not by law but by administrative decree. In her classic Origins of
Totalitarianism, Hannah Arendt explored the ways nineteenth century administrative rule served as a precursor to
totalitarian government. See generally HANNAH ARENDT, THE ORIGINS OF TOTALITARIANISM, 123–304 (1976).
Administrative rule “has conspicuous advantages for the domination of far-flung territories with heterogeneous
populations, and for a policy of oppression,” wrote Arendt. “It can easily overcome the variety of local customs and
need not rely on the necessarily slow process of development of general law.” Id. at 244. Such rule, Arendt argues,
encourages lawlessness generally and destabilizes the political culture in such a way as to hinder the growth of