with others makes Indians “de facto whites.”438 What it makes them is fellow citizens—equal
participants in American democracy, whose rights the government must defend.
Incidentally, the idea that tribal membership is a function of genetics is also not original
to Indians. It is a legacy of racist doctrines introduced by whites in the nineteenth and twentieth
centuries, in contradiction of the Declaration’s principle of equality. The very concept of generic
“Indian” was “an arbitrary collectivization” imposed by Europeans in disregard of the cultural
differences between aboriginal inhabitants of the Western hemisphere.439 When the Dawes
Commission sought to compile authoritative lists of the native population, it categorized people
into tribes on the basis of biology, and affiliated each person with only a single tribe,
notwithstanding the long tradition of tribes accepting members from other tribes or even from
white society.440 White anthropologists, in the grip of racist pseudo-scientific fads, also
employed phrenology and other quack methods to categorize Indians—and to impose significant
legal handicaps.441 ICWA’s use of such stereotypical language as “an Indian family” is a
throwback to the racialized concept of “generic Indian” that whites invented to serve a racist
agenda.442 Those who assert that blood ancestry is sufficient justification for treating Indian
children differently, and reject both the best interests of the child test and the Existing Indian
438 CURRY, supra note 421, at 99.
439 ROBERT M. UTLEY, THE INDIAN FRONTIER, 1846–1890 at 4–6 (Allen Billington et al. eds., Univ. of N.M. Press
rev. ed. 2003) (1984).
440 Ray, supra note 40, at 408; ELLEN SAMUELS, FANTASIES OF IDENTIFICATION: DISABILITY, GENDER, RACE 161–85
441 See, e.g., ORIN STERN, ISHI’S BRAIN: IN SEARCH OF AMERICA’S LAST “WILD” INDIAN 174, 174–86 (2004).
442 See further CHARLES C. GLENN, AMERICAN INDIAN/FIRST NATIONS SCHOOLING: FROM THE COLONIAL PERIOD TO
THE PRESENT 196 (2011) (“Continuing to emphasize generic ‘Indian’ separateness detached from specific tribal
identities and cultures benefits the virtuosi of identity, those who make it their business to be accepted as ethnic
leaders or spokesmen . . . . [T]he demand for special treatment is often made not only on the basis of a deprived
condition but also on what is represented to be a racially based and significantly distinct mode of functioning that
only the racial virtuoso understands and can prescribe for. This has the effect of reviving the assumptions about
fundamental racial differences that have been so profoundly harmful to the education of Indian youth.”).