“To be citizens on a par with others is to be de facto whites, to engage in a process not of
[Indigenous people’s] making, and so to have indigenous voices silenced and replaced by voices
borrowed from the other.”
—Steven Curry415
In American Indians and The Law, Professor N. Bruce Duthu acknowledges that ICWA
cases “may appear on the social radar as instances in which group rights unfairly trump
individual rights.”416 But, he contends, viewing them this way would only demonstrate
“ignoran[ce]” or “hostil[ity]” toward tribal sovereignty and toward Indian culture and values.417
The principle of individual sovereignty that ultimately undergirds the best interests of the child
standard is only a “Western legal theory” that should not be foisted upon Native Americans.418
Many other commentators on ICWA share this perspective. In their view, the idea that
the law should treat Indian children as individual citizens with basic rights antecedent to tribal
affiliation is a kind of cultural bias or even a form of racism. “A rights-focused analysis,” writes
Jennifer Nutt Carleton, “is contrary to the provisions of ICWA.”419 Professor Michael Dale
describes the best interest of the child test as an “Anglo middle-class standard,” which is
“decidedly different” from Indian values.420 “[T]he inclusion of the child’s ‘best interests’” in
ICWA cases, writes Professor Annett Ruth Appell, “reveal[s] the tenacity of cultural
hegemony.”421 Professor Lorie Graham calls the principle underlying the Existing Indian Family
Doctrine—that judges should regard children as individuals with rights, rather than as fungible
members of a separate class—“offensive” because it disregards both the child’s “unique
415 STEVEN CURRY, INDIGENOUS SOVEREIGNTY AND THE DEMOCRATIC PROJECT 99 (2004).
416 DUTHU, supra note 28, at 155.
417 Id.
419 Jennifer Nutt Carleton, The Indian Child Welfare Act: A Study in the Codification of the Ethnic Best Interests of
the Child, 81 MARQ. L. REV. 21, 37 (1997).
420 Michael J. Dale, State Court Jurisdiction Under the Indian Child Welfare Act and the Unstated Best Interest of
the Child Test, 27 GONZ. L. REV. 353, 370, 372 (1991).
