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There is nothing ignorant or chauvinistic about saying so.453 Quite the contrary. It is
precisely because the idea of individual rights is the opposite of ignorance or chauvinism that it
has any meaning at all, and that peoples of vastly different cultures may justly claim it.454 On
this principle, the legal institutions of the United States must hold firm, as with a chain of
steel.455 To the extent that sovereignty—whether of a state or of a tribe—may conflict with
protections for the rights of individual children, that sovereignty must yield.456
None of this is to deny that Indians have suffered cruel wrongs at the hands of the federal
government. Nor is it to minimize the persistent problems of racism. Indeed, it is just because
we must regard Indians as individuals, and not as biologically beyond the pale of legal equality,
that we see racism, past and present, as wrong. And that is why it is imperative that our law
cease depriving Indian children of the protections available to children of other races. Nor is it to
deny that state courts applying the best-interest standard have sometimes wrongly incorporated
American Indian Economic Development, Apr. 1993) at 27,
http://t.hpaied.org/sites/default/files/publications/PRS93-7.pdf (“In fact, a high degree of individualism
characterized Sioux society.”); ROYAL B. HASSRICK, THE SIOUX: LIFE AND CUSTOMS OF A WARRIOR SOCIETY 31
(1964) (Sioux culture included an “individualism that could be daring to the point of recalcitrance.”); Amy Sturgis,
Liberty in Perfection: Freedom in Native American Thought, FOUND. FOR ECON. EDUC., Sept. 1, 1999,
https://fee.org/articles/liberty-in-perfection-freedom-in-native-american-thought/ (“Native American culture and
politics revolved around the individual.”). In others, that individualist tradition was radically undermined by the
Indian Reorganization Act and other federal policies that imposed a romanticized vision of collectivism on tribes.
See ANDERSON, supra note 18, at 140–46, 168–71. Today, Indian tribes continue to develop and implement legal
approaches to protect individual rights. See generally Carole E. Goldberg, Individual Rights and Tribal
Revitalization, 35 ARIZ. ST. L.J. 889 (2003).
453 Cf. Ester C. Kim, Mississippi Band of Choctaw Indians v. Holyfield: The Contemplation of All, the Best Interests
of None, 43 RUTGERS L. REV. 761, 789 (1991) (noting how appeals to Indian cultural uniqueness often “serve as
an impenetrable shield” against criticism of ICWA because “[a]ny attack made on this ‘unique’ relationship by a
non-Indian can immediately be discounted without further discussion because of that person’s non-Indian
454 Those who view such principles as chauvinistic or racist commit the fallacy of the “stolen concept”: the only
reason why racism is a wrong to be condemned is because it offends the principle of equality underlying the
Declaration. It is logically incoherent to denounce the proposition of universal human equality and at the same time
to embrace the idea that different legal standards should apply to people on the basis of race.
455 Cf. Letter from Abraham Lincoln to Elihu Washburne, Dec. 13, 1860, in 4 BASLER, supra note 450, at 151.
456 Cf. FEDERALIST No. 45, supra note 192, at 309 (James Madison) (to the extent that sovereignty is irreconcilable
with individual rights, “the voice of every good citizen must be, Let the former be sacrificed to the latter.”).