In another case, a Cherokee father tried to relinquish his tribal membership in an effort to
block application of ICWA and to “‘take the matter out of—out of the Tribe’s hands’” and “‘help
keep . . . [the child] where she’s at.’” 49 But the tribe intervened and defeated the father’s efforts
to avoid application of ICWA. 50 In short, ICWA empowers tribal governments in ways that
supersede the judgment of parents when the two come into conflict. As one Indian law expert
puts it, “[t]he purpose of ICWA . . . is ultimately to maintain the survival of the tribe through the
retention of its members.” 51
The idea of government elevating any third party to “parity” with the rights of parents is
disturbing, and contradicts constitutional protections for parental rights. 52 In Troxel v.
Granville, 53 the Supreme Court struck down a Washington State law that forced parents to let
“any person” visit with their children whenever a court determined that this would be “in the best
interest of the child,” even if it ran contrary to the parents’ preferences. 54 Six justices found that
parental rights, being fundamental rights, could only be infringed for extraordinarily important
reasons, and that the Washington statute overrode those rights on too light a basis. 55 Worse, the
Court suspected that Washington judges were applying a presumption against parental choices:
“In effect, the judge placed on . . . the fit custodial parent, the burden of disproving that visitation
49 In re M.K. T., 368 P.3d 771, 776 (Okla. 2016).
50 Id. at 800.
51 Lorinda Mall, Keeping it In The Family: The Legal and Social Evolution of ICWA in State and Tribal
Jurisprudence, in FACING THE FUTURE: THE INDIAN CHILD WELFARE ACT AT 30 165 (Matthew L. M. Fletcher, et al.,
eds., 2009). This is not entirely accurate. Provisions of ICWA depend not on tribal affiliation, but on Indian
ancestry. Thus, ICWA declares that if extended family or members of the child’s tribe are unable to adopt an Indian
child, that child must be placed with “other Indian families,” regardless of tribe, instead of non-Indian families. 25
U.S.C. § 1915(a) (2012). Thus, the Act prioritizes Indianness as a racial classification over the survival of the tribe
as a cultural entity.
52 See Philip McCarthy, Jr., The Oncoming Storm: State Indian Child Welfare Act Laws and The Clash of Tribal,
Parental, and Child Rights, 4 J. L. & FAM. STUD. 1027, 1029–35 (2013).