56 Children’s Legal Rights Journal [Vol. 37: 1 2017]
As the Whiteshield and Lexi cases, and countless others, demonstrate, ICWA prioritizes
ethnic criteria above the individualized consideration of a child’s best interests—to the detriment
of children and the adults who love them.
2. ICWA’s Foster And Adoption Preferences Deprive Indian Children of Due Process,
Equal Protection, And Freedom of Association Rights
ICWA’s placement preferences deprive Indian children of their rights to due process,
equal protection, and freedom of association. One of the most basic elements of due process of
law327 is that courts must address the specific facts of a case,328 and issue individualized
judgments rather than impose blanket assumptions premised on a person’s race, national origin,
or other “immutable characteristic[s] determined solely by the accident of birth.”329 Yet in an
ICWA case, the most crucial factor—virtually the deciding factor—is the child’s biologically-determined Indian status. ICWA’s race-based foster and adoption preferences deprive children
of the individualized consideration inherent in due process, and because these preferences result
in treating them differently than other children exclusively on account of their racial or national
origin, these preferences also deprive Indian children of the equal protection of the law.
ICWA’s preferences also violate the freedom of association. Tribal membership and
family relationships are both forms of association protected by the First Amendment.330 The
327 Minors have the right under the Due Process Clause to fundamentally fair judicial proceedings. In re Application
of Gault, 387 U.S. 1, 19–22 (1967).
328 See, e.g., Abdulai v. Ashcroft, 239 F.3d 542, 549–50 (3d Cir. 2001); Cleveland Bd. of Educ. v. LaFleur, 414 U.S.
632, 644–45 (1974); Stanley v. Illinois, 405 U.S. 645, 656–57 (1972).
329 Frontiero v. Richardson, 411 U.S. 677, 686 (1973).
330 Cf. Roberts v. United States Jaycees, 468 U.S. 609, 617–18 (1984) (freedom of association especially protects
family association, because the “choices to enter into and maintain certain intimate human relationships” are an
essential “individual freedom . . . [and] central to our constitutional scheme.”); United States v. Crook, 25 F. Cas.
695, 699 (C.C.D. Neb. 1879) (“the individual Indian possesses the clear and God-given right to withdraw from his
tribe and forever live away from it.”).