Tribes, States, and Sovereigns’ Interest in Children

66 Pages Posted: 28 Sep 2023 Last revised: 21 Apr 2024

See all articles by Emily Stolzenberg

Emily Stolzenberg

Villanova University Charles Widger School of Law

Date Written: September 1, 2023

Abstract

Haaland v. Brackeen, last year’s unsuccessful Supreme Court challenge to the Indian Child Welfare Act (“ICWA”), trumpeted a critique made consistently over the statute’s forty-five-year history: that ICWA harms Indian children by subordinating their interests to their tribes’ interests, unlike State family law, which pursues the “best interests of the child.” This critique is likely to underpin future challenges to ICWA—and it is wrong in both fact and theory. Not only does ICWA generally benefit Indian children. More fundamentally, a tribe’s interest in Indian children corresponds directly to an interest States regularly pursue vis-à-vis all children: the political community’s interest in self-perpetuation. ICWA just does explicitly what State law does implicitly. This means that at base, challenges to ICWA are fights about which sovereign, representing which political community, gets to govern Indian children.

This Article takes opposition to ICWA as an opportunity to scrutinize the nature and permissible scope of political communities’ interests in children. Recognizing that all sovereigns pursue their political communities’ interests in children—as ICWA forces us to do—requires admitting the uncomfortable truth that a community’s and a child’s interests may at times conflict. Acknowledging this possibility, in turn, makes clear the need to develop tools to identify and manage such conflicts when they occur.

This Article proposes one such means. Drawing from political theory and family law scholarship, it outlines a four-part normative framework for assessing political communities’ attempts to influence their youngest members’ development. It then applies the framework to defend ICWA, to assess abolitionist critiques of the child welfare system, and to narrow debates over gender-affirming healthcare for transgender youth. While I focus on just three applications for illustrative purposes, the Article’s “citizen-shaping” framework offers broad purchase, yielding insights across contexts in which sovereigns seek to regulate children.

Keywords: Indian law, Indian Child Welfare Act, ICWA, family law, children, child custody, political theory, civic education, child welfare, child welfare system, abolition, gender affirming medical care, transgender youth

Suggested Citation

Stolzenberg, Emily, Tribes, States, and Sovereigns’ Interest in Children (September 1, 2023). 102 N.C. L. Rev. 1093 (2024), Available at SSRN: https://ssrn.com/abstract=4559159

Emily Stolzenberg (Contact Author)

Villanova University Charles Widger School of Law ( email )

299 N. Spring Mill Road
Villanova, PA 19085
United States

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