70 Children’s Legal Rights Journal [Vol. 37: 1 2017]
separate legal track for American citizens of a particular ethnicity. Nor can it empower another
sovereign, no matter how friendly, to assert unreviewable power to pluck American citizen
children out of state judicial systems and adjudicate their foster and adoption placements,
entirely on account of their biological ancestry.411 Certainly no foreign power could do so. One
can hardly imagine, say, Japan granting Japanese citizenship to all Americans of Japanese
ancestry, and then ordering that civil or criminal proceedings involving them be transferred to
Commentators debate whether Adoptive Couple incorporated the Existing Indian Family
Doctrine.413 Certainly its refusal to apply ICWA’s “active efforts” provision where there is no
existing Indian family to be broken up suggests that the decision employs some version of the
Doctrine. But even if the Doctrine’s critics prevail, abolishing it would only unveil ICWA’s
racially discriminatory aspects.
THE BEST INTERESTS OF THE INDIVIDUAL CHILD
“ . . . all men are created equal.”
—Declaration of Independence414
411 Such a prospect hearkens back to the doctrine of “natural allegiance” which held that a person born subject to the
crown had no power to give up his allegiance and become a citizen of another nation. 1 WILLIAM BLACKSTONE,
COMMENTARIES *357. This doctrine has long been considered anathema to the U.S. Constitution. Perez, 356 U.S.
at 66–67. It even formed the basis of the British policy of “impressment” in the nineteenth century, one of the
leading causes of the War of 1812. See generally David W. Maxey, Loss of Nationality: Individual Choice or
Government Fiat?, 26 ALB. L. REV. 151, 154, 160 (1962).
412 One early commentator analogized ICWA’s jurisdictional provisions to the Soldier’s and Sailor’s Relief Act of
1940, 50 U.S.C. § 501, which suspended enforcement of civil proceedings against persons in active military service.
See Mary Lou Vanderpan, Note, In re D.L.L. & C.L.L., Minors: Ruling on the Constitutionality of the Indian Child
Welfare Act, 26 S.D. L. REV. 67, 77 (1981). But that Act was an ordinary exercise of federal preemption, and
contained no racial or ethnic component.
413 Murphy, The Supreme Court’s Revitalization, supra note 387, at 643.