72 Children’s Legal Rights Journal [Vol. 37: 1 2017]
symbiotic relationship” with the tribe and the child’s “potential relationship . . . to the kinship
community.”422 Perhaps most succinctly, the Texas Court of Appeals declared in 1995 that using
the best interest of the child standard in ICWA cases “defeats the [law’s] very purpose,” because
it “allows Anglo cultural biases into the picture.”423
This is dangerously wrongheaded. It is true, as these critics claim, that the best interests
of the child standard, as well as the Existing Indian Family Doctrine, reflect a cultural norm.
That cultural norm is the proposition that all people deserve equal treatment before the law,
regardless of race. This principle lies at the heart of the American constitutional order. It forms
the basis of the Declaration of Independence and of the Fifth and Fourteenth Amendments, with
their protections for due process of law and equal protection of the laws.424 The best interests
standard and Existing Indian Family Doctrine manifest this principle because they are inherently
individualized, focus on the specific needs of the particular child whose welfare is at issue in the
case at hand, and treat the child as a person first, and as an Indian only secondarily.
This cultural norm is in no sense a distinctively “Anglo” or white cultural attitude. On
the contrary, it is a universal principle based on human values.425 The propositions that all
people—including Indians—are born free and equal, and that their fundamental rights must take
precedence over the claims of any collective or state, do not depend on the culture of the person
involved. They are true of all people, everywhere, at all times. In fact, these propositions did
422 Graham, supra note 406, at 39–40.
423 Yavapai-Apache Tribe v. Mejia, 906 S.W.2d 152, 170 (Tex. App. 1995).
424 See generally TIMOTHY SANDEFUR, THE CONSCIENCE OF THE CONSTITUTION: THE DECLARATION OF
INDEPENDENCE AND THE RIGHT TO LIBERTY (2014).
425 See generally HARRY V. JAFFA, HOW TO THINK ABOUT THE AMERICAN REVOLUTION (Claremont, CA: Claremont
Institute Press, 1999) (1978); INDIVIDUAL RIGHTS RECONSIDERED: ARE THE TRUTHS OF THE U.S. DECLARATION OF
INDEPENDENCE LASTING? (Tibor R. Machan, ed., 2001); DANIELLE ALLEN, OUR DECLARATION: A READING OF THE
DECLARATION OF INDEPENDENCE IN DEFENSE OF EQUALITY (2014).