the Utah court supported that assertion, not by reference to any unique needs of Indian children,
but by reference to the tribal government’s interest in exercising its sovereignty. 84 Specifically,
it cited two cases that emphasized the importance of tribal jurisdiction in child custody cases to
the autonomy of tribes: “if tribal sovereignty is to have any meaning at all,” it concluded, “it
must necessarily include the right, within its own boundaries and membership, to provide for the
care and upbringing of its young, a sine qua non to the preservation of its identity.” 85
All of that may be true, but it is also irrelevant to the question of whether Indian children
as individual persons have special needs that justify ICWA’s legal presumption that they are
themselves better off in the hands of tribal authorities. It may be the case that the authority to
adjudicate custody disputes on reservations is a sine qua non of tribal sovereignty, but it simply
does not follow that this is in the children’s best interests—or that ICWA’s means of serving the
interests of tribes is compatible with their due process rights or those of their parents or would-be
adoptive parents. Holyfield simply never addressed that subject.
While the United States has a trust obligation to respect and protect tribal sovereignty, 86 it
does not follow that an American citizen may be legally segregated based on her Indian ancestry,
or may be regarded as a member of a separate legal class based on her national origin, or that she
may be subordinated to the federal government’s goal of benefitting another government entity. 87
Indeed, such a proposition is fundamentally incompatible with the proposition that all men are
84 See Halloway, 732 P.2d at 969 n. 5.
85 Id. (quoting Wisconsin Potawatomies of the Hannahville Indian Community v. Houston, 393 F. Supp. 719, 730
(W.D. Mich. 1973) (quotation marks omitted)).
86 See, e.g., Worcester v. Georgia, 31 U.S. 515, 561 (1832).
87 Cf. Reid v. Covert, 354 U.S. 1, 5–6, 16 (1957) (“no agreement with a foreign nation can confer power on the
Congress, or on any other branch of Government, which is free from the restraints of the Constitution,” or allow
Congress to “strip away” the “shield which the Bill of Rights and other parts of the Constitution provide . . . just
because [the citizen] happens to be in another land.”).