68 Children’s Legal Rights Journal [Vol. 37: 1 2017]
which is a matter of federal and state law, and thus subject to the requirement of equal
protection.401 While it is correct that federal and state courts generally have no role to play in
tribal determinations of membership criteria,402 they are responsible for applying constitutional
standards to state and federal governments. Second, critics are right to detect a clash between
“liberal conceptions of parents’ and children’s individual rights, ideals of color-blind equality,
and a peculiarly American kind of liberty” on one hand,403 and, on the other hand, the racialist
assumption that children can be subjected to a separate legal regime exclusively as a
consequence of their biological ancestry. But there is nothing paternalistic or demeaning in the
way the Doctrine resolves that conflict. The Doctrine is premised on the notion that Indian
children, like all other American citizens, are individuals, entitled to equal treatment before the
law, and that political and legal status cannot be predicated on ethnic origin.
Critics are correct, however, in pointing out that the Doctrine has no basis in the text of
ICWA, which makes no mention of cultural affiliation in its definition of “Indian child.” And
while courts are correct that something like the Doctrine is necessary if the application of ICWA
is to avoid conflict with equal protection, it is also true that inviting courts to determine how
much and what kind of cultural connection must exist does risk intrusion into questions of tribal
self-determination that ICWA sought to avoid.404 Critics are right that genuine sovereignty must
include the right to determine citizenship. But how that principle works in the ICWA context is
401 Cf. In re Abbigail A., 1 Cal. 5th 83, 95 (2016) (noting this distinction).
402 But see Vann v. U.S. Dep’t of Interior, 701 F.3d 927 (D.C. Cir. 2013) (allowing lawsuit challenging Cherokee
exclusion of “Cherokee Freedmen” from tribal membership to proceed).
403 Barbara Bennett Woodhouse, “Are You My Mother?”: Conceptualizing Children's Identity Rights in Transracial
Adoptions, 2 DUKE J. GENDER L. & POL’Y 107, 108 (1995).
404 See, e.g., Graham, supra note 406, at 36 (“The Doctrine . . . violates basic principles of tribal sovereignty. Native
American nations, as distinct political communities, have the authority to determine their own membership.”).