16 Children’s Legal Rights Journal [Vol. 37: 1 2017]
the “paramount consideration,” a parent’s “prima facie right to . . . custody is not . . .
ICWA’s presumptions are at least as powerful as those rejected in Stanley, Kelsey S., and
Dickason. They categorically presume that Indian children are better off in Indian families, or in
families selected by tribal governments, than with non-Indian families. That presumption
compromises, and often forsakes, the welfare of children, by subordinating their interests to
those of tribal collectives. This fact is plain from ICWA’s very first words: the Act itself defines
children as “resources” that should be managed to achieve “the continued existence and integrity
of Indian tribes.” 81 But Indian children are not resources. They are persons—citizens of the
United States—and it is improper for government to treat any individual, or group of citizens
defined by their ethnicity, as a means to achieve some third party’s ends. 82
Of course, there are cases in which the interests of tribes as corporate institutions conflict
with the interests of children. Where ICWA goes wrong is in its failure, when such conflicts
occur, to unequivocally prioritize the latter. In Holyfield, the Supreme Court quoted the Utah
Supreme Court’s rationale for ICWA’s equivocation between tribal interests and the interests of
children: “[the] relationship between Indian tribes and Indian children domiciled on the
reservation finds no parallel in other ethnic cultures,” it declared. “It is a relationship that many
non-Indians find difficult to understand and that non-Indian courts are slow to recognize.” 83 But
81 25 U.S.C. §1901( 3).
82 See, e.g., In re Jasmon O., 8 Cal.4th 398, 419 (1994) (“Children . . . have fundamental rights—including the
fundamental right to . . . ‘have a placement that is stable [and] permanent.’ Children are not simply chattels . . . but
have fundamental interests of their own”) (citations omitted); Sullivan v. Sullivan, 249 Neb. 573, 581 (1996)
(“Children are not chattels”).
83 Holyfield, 490 U.S. at 32 (quoting In re Adoption of Halloway, 732 P.2d 962, 969 (Utah 1986)). Note that the
Holyfield Court confined this romanticized conception to children domiciled on reservations. ICWA goes far
beyond that, and applies off-reservation children as well.