Professor Christine Metteer has put the point in particularly striking terms. Quoting
novelist Barbara Kingsolver, she argues that an Indian child should be subjected to tribal
jurisdiction just like “a baby elephant [ought to] be raised by elephants.”446 But dividing human
beings along biological lines—regarding Indians as a different species, as pack animals that, like
elephants, must be raised by “their own kind”—is repugnant to a constitutional order that strives
to protect every person as an individual human being. The proposition that “it is per se in an
Indian child’s best interest to remain with his or her family and/or tribe,”447 or that “the child
belongs to the tribe”448 because of her genetics, or that “the best interests of Indian children” are
“necessarily dependent upon” the tribe’s interests,449 or that a child is a “tribal resource” if her
biology fits a certain profile—all these are obnoxious to American legal institutions. Our
nation’s commitment to the constitutional rights of every citizen, including American Indian
children, cannot yield to Volksgemeinschaft reasoning—let alone tolerate ICWA’s implicit
notion of Republikflucht.450 Even if it were true that “the Indian community focuses on the
collective rights of the community as a large cultural group and not on individual rights”451—a
generalization not supported by history452—then the fact that Indian children are citizens of the
United States, whose rights are constitutionally guaranteed, must still take precedence.
446 Christine Metteer, Pigs in Heaven: A Parable of Native American Adoption Under the Indian Child Welfare Act,
28 ARIZ. ST. L.J. 589, 624 (1996) (quoting KINGSOLVER, supra note 356).
447 Mall, Keeping it in The Family, supra note 51, at 165 (emphasis added).
448 Paul David Kouri, Note, In Re M.J.J., J.P.L., & J.P.G:.: The “Qualified Expert Witness” Requirements of the
Indian Child Welfare Act, 29 AM. INDIAN L. REV. 403, 415 (2005).
449 Brian D. Gallagher, Indian Child Welfare Act of 1978: The Congressional Foray into the Adoption Process, 15
N. ILL. U. L. REV. 81, 105–06 (1994) (emphasis added).
450 Republikflucht was the term applied by the East German government to the act of “deserting” the nation by
fleeing across the Berlin Wall. See PATRICK MAJOR, BEHIND THE BERLIN WALL: EAST GERMANY AND THE
FRONTIERS OF POWER ch. 3 (2010).
451 Debra Dumontier-Pierre, The Indian Child Welfare Act of 1978: A Montana Analysis, 56 MONT. L. REV. 505,
452 American Indian tribes have widely different cultures. Some, such as the Sioux and Cherokee, have long been
renowned for their strong individualism. See, e.g, Stephen Cornell & Joseph P. Kalt, Where Does Economic
Development Really Come From? Constitutional Rule Among the Modern Sioux And Apache (Harvard Project on