right to associate includes the right not to associate.331 Minors have First Amendment rights,
including the right not to associate.332 Yet ICWA tries to force the formation of tribal and even
familial bonds by essentially compelling children to join Indian families based on their biological
ancestry, irrespective of their individual best interests. BIA regulations even require state
officers to enroll children in tribes if they are not already enrolled.333 Thus even putting aside the
question of whether ICWA establishes a political or a racial classification,334 the Act’s placement
preferences are unconstitutional.
The First Amendment forbids government from forcing people to join political
associations,335 make political statements,336 or pledge allegiance to the government.337 But
ICWA seeks to force one specific class of American citizens to obtain formal membership in a
political unit that enjoys attributes of sovereignty. Tribal membership is not ordinary dual
citizenship, of course, given the “unique and limited”338 nature of tribal sovereignty, but tribal
membership significantly changes the legal regime that applies to a person,339 because it
“denotes an association with the [tribal] polity” and imposes an “unequivocal legal bond.”340 A
331 California Democratic Party v. Jones, 530 U.S. 567, 574 (2000).
332 Tinker v. Des Moines Indep. Cnty. Sch. Dist., 393 U.S. 503 (1969); W. Va. State Bd. of Educ. v. Barnette, 319
U.S. 624 (1943).
333 Guidelines, 80 Fed. Reg. at 10153, B. 4(d)( iii).
334 See infra, Section III.A.
335 See, e.g., Abood v. Detroit Bd. of Ed., 431 U.S. 209, 233–36 (1977); Elrod v. Burns, 427 U.S. 347, 355–57
336 See, e.g., Wooley v. Maynard, 430 U.S. 705, 714 (1977); Pacific Gas & Elec. Co. v. Public Utils. Comm’n, 475
U.S. 1, 20–21 (1986). In addition to compulsory membership intruding on the First Amendment, being forced to
join an Indian tribe also interferes with the First Amendment right against compulsory speech. Unlike unions or bar
associations, tribes are not prohibited from using their resources for political lobbying, and unlike states, they are not
barred from using resources to endorse official religions. See, e.g., Native Am. Church of N. Am. v. Navajo Tribal
Council, 272 F.2d 131, 135 (10th Cir. 1959). Being compelled to join a tribe therefore inherently includes being
compelled to engage in speech, including religious speech, and association.
337 Barnette, 319 U.S. at 642.
338 United States v. Wheeler, 435 U.S. 313, 323 (1978).
339 See DUTHU, supra note 28, at 138 (“As domestic dual citizens, American Indian members of federally recognized
tribes are heirs to the American legal tradition . . . as well as their own tribal systems . . . . [T]here is clearly a
tension between the two.”).