10 Children’s Legal Rights Journal [Vol. 37: 1 2017]
would not be eligible for Navajo citizenship) and is subject to ICWA. 43 It also means that a child
who is fully connected to a tribe’s culture—say, the adopted child of a tribal member—is not
subject to ICWA, while a child whose connection to a tribe is only genetic is, even if that child
has no cultural or social ties to the tribe.
Once a child qualifies as “an Indian child” under ICWA, the tribe’s authority with regard
to that child is in many ways elevated to a parity with the rights of the parents. 44 Even if the
parents wish to block application of ICWA, they are often unable to do so, and tribes can even
override their expressed wishes. 45 In Mississippi Band of Choctaw Indians v. Holyfield, Indian
parents chose to leave the reservation before giving birth, and signed voluntary consent forms
agreeing to have their child adopted by a non-Indian couple. 46 Nevertheless, the tribe
successfully moved to have the adoption order vacated for non-compliance with ICWA. 47 The
Supreme Court concluded that ICWA “was not meant to be defeated by the actions of individual
members,” because the statute protects “not solely . . . Indian children and families, but also . . .
tribes themselves.” 48
43 Id. Even Cherokee whose ancestors did sign might be denied membership. Consider the ongoing controversy
over the status of the “Cherokee Freedmen”—descendants of slaves owned by the Cherokee prior to the Civil War.
Ray, supra note 40, at 437–46; Jeremiah Chin, Red Law, White Supremacy: Cherokee Freedmen, Tribal
Sovereignty, and the Colonial Feedback Loop, 47 J. MARSHALL L. REV. 1227, 1267–68 (2014).
44 Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 52 (1989).
45 ICWA does allow parents to object when a tribe seeks to transfer jurisdiction over a foster care or termination of
parental rights proceeding to its own courts, in cases involving children not domiciled or residing within the tribe’s
reservation. 25 U.S.C. § 1911(b) (2012). But parents do not have similar rights in cases involving children
domiciled on a reservation, as in Holyfield. Nor can parents bar a tribe’s authority to intervene in a state court
proceeding, or block application of ICWA’s adoption or foster care placement preferences, or block other
applications of ICWA. See also In re S.B., 130 Cal. App. 4th 1148, 1159 (2005) (ICWA “serve[s] the interests of the
Indian tribes irrespective of the position of the parents and cannot be waived by the parent.” (citations and quotation
46 Holyfield, 490 U.S. at 37–38.