4 Children’s Legal Rights Journal [Vol. 37: 1 2017]
this be fixed in a way that respects the legitimate interests of Indian citizens while protecting the
most vulnerable Americans?
Part I of this article provides a brief overview of the origin and structure of ICWA. Part
II focuses on six provisions of the Act that place Indian children in what we term “the ICWA
Penalty Box,” depriving them of critical legal protections. Part III addresses the question of
whether ICWA’s differential treatment of Indian children qualifies as unconstitutional racial
discrimination, and the “Existing Indian Family Doctrine”—a legal theory that state courts
developed in an effort to avoid the equal protection problems that arise from an undiluted
application of ICWA’s literal language. 14 Because this article focuses primarily on cases
involving children who are not domiciled on reservations, and have no cultural connection to
tribes—but who are eligible for membership solely on account of their ancestry—not every
argument presented here will necessarily be relevant to all ICWA proceedings. But Part IV does
address a basic question of constitutional principle that applies to all cases: is equal treatment
before the law appropriate for Indian children?
The answer to that question is yes. But before beginning, a disclaimer is warranted.
American Indian law is fraught with a bloody, tragic, often plainly disgusting history of racism,
violence, and even genocide. That history—which played a prominent role in ICWA’s
origin15—must not and cannot be ignored or treated euphemistically. This article is written in
full recognition of the deplorable legacy of abuse and betrayal, mutual incomprehension and
prejudice, which has plagued relations between Indians and non-Indians in North America. It is
tragic that these problems persist to this day—and that ICWA is partly to blame.
14 See infra Part III.
15 For an especially thorough and powerful explanation of the history of abuse that led to the adoption of ICWA, see
Fletcher & Singel, supra note 9.