Tribal sovereignty as we know it today is an extraordinarily complicated idea, one that’s hard to discuss without involving the whole complex mass of Indian law. Sovereignty itself isn’t a Native American idea, but is rooted in Roman imperial and Christian monarchical tradition, as corrected by the discoveries of the seventeenth century classical liberals. Today, tribal sovereignty is best understood as American law’s effort to account for tribes’ less formal social and political systems—an effort that has often distorted or completely overwhelmed the original traditions. Efforts to map the limits of tribal sovereignty today seem only to cause more confusion.
For our purposes, only two points are essential: first, since at least 1924, all American Indians have been citizens of the United States, entitled to the same legal protections all other Americans enjoy. Second, as James Madison noted, sovereignty is legitimate only when it respects the rights of the individual: “the Sovereignty of the Society as vested in & exerciseable by the majority, may do any thing that could be rightfully done, by the unanimous concurrence of the members,” he wrote, “the reserved rights of individuals…being beyond the legitimate reach of Sovereignty.” Whatever the legitimate interests of tribal governments, those governments—and federal and state governments—are morally and legally obliged to respect the natural and civil rights of tribal citizens.
The Indian Child Welfare Act fails that test. It does much more than protect the lawful authority of tribal governments, and it reaches far beyond Indian country. Its separate system of rules is triggered, not by membership in a tribe, but by eligibility for membership, which is a biological, not political or cultural status, which means it conflicts with the principle that “separate but equal” has no place in our law. And it gives tribal governments power over “Indian children” wherever they reside—a power not even states enjoy. Nevada couldn’t transfer a foster care case from Kentucky courts to its own courts simply because the child’s great-grandfather was born in Vegas—that would violate the “minimum contacts” rule mandated by the Fourteenth Amendment. But ICWA lets tribal governments do just this in child custody cases anywhere in the country based solely on a child’s DNA—in violation of due process.
Tribes, of course, have the right to determine their own membership, just as the Democratic Party, or the Gulf Shipbuilding Corporation, or the Tennessee Secondary School Athletic Association do. But when private decisions cause government to treat people differently, that raises constitutional problems—and requires constitutional protections.
Take the Democratic Party, for instance. It’s a private organization based on political affiliation, and that means it can decide who may and may not join. Since the Constitution doesn’t bar private groups from discriminating on the basis of race, the Party could even exclude black people from picking nominees, if it wanted, and there was a time when it did so. But in the 1940s, when just about all southerners were Democrats, the outcome of the Party’s primary election—a private action—would basically decide the general election, a state action. And that raised constitutional problems. So-called “White Primaries” were an effective way of disenfranchising black voters. And in Smith v. Allwright, the Supreme Court held them invalid. The state was so closely connected with the primary election process that the party was essentially “an agency of the State.” Thus “[w]hen primaries become a part of the machinery for choosing officials, state and national, as they have here, the same [constitutional rules]…should be applied to the primary as are applied to the general election.”
Or consider the Gulf Corporation. It’s a private company, and thus not bound by the same constitutional rules that limit what government entities can do. But in 1946, the Supreme Court ruled that those constitutional limits did apply to the town of Chickasaw, Alabama—a “company town” owned entirely by the corporation. Gulf didn’t allow people to distribute leaflets without a permit, and arrested a Jehovah’s Witness who broke the rule, charging her with trespassing. The land was private property, it said, which meant the First Amendment didn’t apply. The Supreme Court disagreed. “[T]he town of Chickasaw does not function differently from any other town,” it ruled. “The managers appointed by the corporation cannot curtail the liberty of press and religion of these people consistently with the purposes of the Constitutional guarantees.”
Or consider the Tennessee Secondary School Athletic Association. In 2001, the Supreme Court ruled that it, too, was a government entity, bound to respect constitutional rules, even though it was organized as a non-profit membership corporation. “The nominally private character of the Association is overborne by the pervasive entwinement of public institutions and public officials in its composition and workings,” the Court ruled. So there, too, constitutional protections applied.
Obviously “Indian tribes…are a good deal more than ‘private, voluntary organizations’”—they’re sovereign governments. But that’s all the more reason why constitutional rules must apply. And that’s why the distinction I noted earlier, between tribal membership (a matter of tribal law) and “Indian child” status under ICWA (a federal law matter) is so important. Whatever authority tribes have to establish their own membership criteria, federal and state governments are bound by the constitutional prohibition against racial discrimination and requirement of due process. Jurisdiction transfer, placement preferences, standards of evidence, and other provisions of ICWA are imposed not by tribal courts—to which ICWA does not apply—but by state courts.
Imagine a law mandating that cases involving defendants with Jewish ancestry must be decided under different rules of evidence, or letting the Japanese government intervene in cases involving plaintiffs whose great grandparents emigrated from Japan!
When a tribe hales a child and her would-be adoptive parents before its own courts, just because of the child’s biological ancestry—because her parent was a tribal member and she satisfies the tribe’s blood quantum—it’s doing much more than choosing its own citizens. It’s setting in motion a legal process that affects the rights and liabilities of American citizens. It won’t do to shrug off the constitutional ban on discrimination, and say that tribes have the right to choose their own members. Yes, they do—just as the Democratic Party, Gulf Inc., and school athletic associations do. But when those choices involve the rights of U.S. citizens, constitutional protections must apply.
This shouldn’t be regarded as an assault on legitimate tribal interests. Sovereignty, as I said, is bound to respect individual rights. But this is a point where our differences may be intractable. In his book American Indians and The Law, Prof. N. Bruce Duthu dismisses concerns about ICWA by saying that they’re motivated by ignorance or hostility toward tribal sovereignty, and approvingly quotes Prof. Steven Curry: “To be citizens on a par with others is to be de facto whites, to engage in a process not of their making, and so to have indigenous voices silenced and replaced by voices borrowed from the other.” To insist that individual rights trump government sovereignty, he writes, is to “impose the Western legal theory of ‘consent of the governed.’”
Such complaints are at once senseless, intolerable, and ironic. They’re senseless because the idea of sovereignty is itself a “Western legal theory,” so deploying that concept to contradict its underpinnings is a fallacy. They’re intolerable because the proposition that all men are created equal, with inalienable rights all governments must respect, is a universal proposition applicable to all people at all times, everywhere. To say this principle is only for non-Indians—that being equal citizens means “borrowing voices from the other”—is racist.
And it’s ironic because western political philosophy first learned the idea of universal human rights from its interaction with Native Americans in the western hemisphere. It was in 1550 that the Spanish priest Bartholomé de Las Casas raised powerful objections to the enslavement and brutality his government was meting out to Native Americans, arguing that “there is no natural difference in the creation of men”—and thus no basis for depriving Indians of the legal protections that applied to non-Indians. Alas, his arguments and those of others who followed in his footsteps were ignored, and Native Americans were relegated to second-class status by governments that insisted that they were a race apart, not entitled to the same constitutional protections afforded to others. Today, on the principle that all Americans of Native descent deserve equal protection, there can be no compromise.
“We never have objected to become citizens of the United States and to conform to her laws,” said Cherokee chief John Ross in 1836, “but…we have required the protection and the privileges of her laws to accompany that conformity on our part.” That protection has too long been denied. If tribal sovereignty is worth preserving, so are the constitutional rights of America’s Native citizens—particularly children—and tribal governments can have no just complaint against efforts to protect the rights that, as I’ve shown, ICWA too often overrides.