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person with dual nationality can be “subject to claims from both nations, claims which at times
may be competing or conflicting.”341 The government may not force one group of citizens,
defined by ancestry, to obtain citizenship from another sovereign and thereby submit to a change
in their legal rights and obligations.
Even more intrusively, ICWA seeks to create Indian families through its preferences as
well as through its “active efforts” provision. Freedom of association, a fundamental aspect of
individual liberty, includes family relationships, because these are intimate and “involve deep
attachments and commitments” to those “few” others with whom one shares “a special
community of thoughts, experiences, and beliefs” and the “distinctively personal aspects of one’s
life.”342 Yet ICWA tries to force the formation of family bonds by mandating adoption of Indian
children by “other Indian families,” and also obstructs the formation of consensual family bonds
between Indian children and non-Indian adoptive families. The decision to form a family is
entitled to legal protection,343 yet ICWA can negate that choice even where birth parents and fit
adoptive families (and even children themselves344) would prefer to form an adoptive family
outside the racial categories ICWA imposes.
341 Kawakita v. United States, 343 U.S. 717, 733 (1952). Tribal members are subject to tribal criminal jurisdiction in
ways that non-members are not, see Oliphant v. Suquamish Indian Tribe, 435 U.S. 191, 195 (1978), and can be
taxed by tribes in ways non-members cannot be. See Atkinson Trading Co. v. Shirley, 532 U.S. 645, 649–51 (2001).
Tribal governments are exempt from many of the constitutional rules that protect people against other forms of
government in the United States. See, e.g., Santa Clara Pueblo v. Martinez, 436 U.S. 49, 63 (1978) (Indian Civil
Rights Act “does not prohibit the establishment of religion, nor does it require jury trials in civil cases, or
appointment of counsel for indigents in criminal cases.”). And the legal remedies available when tribes deprive
members of their federal constitutional rights are far narrower than those available when states violate the rights of
citizens. Shenandoah v. Halbritter, 366 F.3d 89, 92–93 (2d Cir. 2004).
342 Roberts, 468 U.S. at 620.
343 Obergefell v. Hodges, 135 S. Ct. 2584, 2597–98 (2015).
344 See Barbara Atwood, The Voice of the Indian Child: Strengthening the Indian Child Welfare Act Through
Children’s Participation, 50 ARIZ. L. REV. 127, 137 (2008) (although ICWA includes consideration of the child’s
wishes in placement determinations, “[t]he opaque statutory reference and the [BIA] Guidelines together leave
courts to decide on a case-by-case basis whether a particular Indian child’s request should be a significant factor in
the placement decision.”). Cf. In re S.L., 2006 WL 477772, 5, 15 (Cal. Ct. App. 2006) (remanding a termination
case for compliance with ICWA despite child’s expressed wishes to the contrary).