Document Type and Release Option
Thesis (open access)
Dr. Elizabeth Butterfield
In the later twentieth century, American law attempted to address legacies of unjust treatment of Native Americans though legislation like the Indian Child Welfare Act, which requires considering Native American identity in child custody decisions. This created some complex legal questions about exactly what constituted Native identity. The Supreme Court case, Adoptive Couple v. Baby Girl, exposed a number of problems that arose from determining authentic tribal identity. To offer a more precise analysis of the problem of identity in American law, I will engage in philosophical investigations into the nature of authenticity, bringing in the work of the German philosopher, Martin Heidegger. Since the publication of his work Being and Time, there have been many critics of Heidegger and authenticity as a whole. These critics argue that the jargon of authenticity no holds truth; its understanding has been manipulated and skewed beyond repair, and thus, they argue, that authenticity is a concept that should be thrown away. But authenticity is not an idea that can be ignored due to its prevalence in the laws of The United States. The law is required to make a decision despite authenticity’s vagueness and misinterpretations. The confusion in the case of Baby Girl demonstrates why a conversation of authenticity is necessary and cannot be disregarded. Furthermore, it proves that the dismissal of authenticity on the grounds that it is a confused notion only perpetuates the misinterpretation and thus causes lawyers and judges to continue to make decisions in ways that may be even more imprecise.
American law has attempted to address unjust treatment of Native Americans though legislation like the Indian Child Welfare Act, which has created complex legal questions about exactly what constituted Native identity. This paper will draw on philosophical discussions of authenticity to reimagine legal conceptions of individual and collective identity.
Hayes, Madison, "Who Is Baby Girl? A philosophical discussion of the legal obligation to define authenticity" (2019). University Honors Program Theses. 412.