12 Children’s Legal Rights Journal [Vol. 37: 1 2017]
would be in the best interest of her daughters.” 56 Given the fundamental status of parental rights,
the Supreme Court ruled that parents’ decisions must be accorded “special weight,” over and
above the quotidian “best interests” standard. 57
But ICWA goes even further than the Washington visitation statute. It involves not mere
visitation rights, but the far more intrusive matter of tribal jurisdiction to make operative
decisions about child foster care, adoption, and other matters, even where those children are not
domiciled on a reservation and are not members of tribes (but are only eligible for membership).
It allows tribes to block adoption indefinitely while they seek foster and adoptive families of
Native American ancestry, and to obstruct it by mandating that children be placed in accordance
with the preferences laid out in the Act. 58 ICWA thus promotes the interests of tribal
governments—non-family members—above the choices of parents, and does so not on the basis
of a “best interests” determination—which, however unclear or “free-ranging” 59 it might have
been in the Troxel case, at least it involved an assessment of a child’s unique needs.
For centuries, the best interests of the child standard has been viewed as the essential
lodestar for child welfare litigation. 60 A judge must, in the words of Justice Benjamin Cardozo,
“put himself in the position of a ‘wise affectionate and careful parent’ and make provision for the
56 Id. at 69 (plurality).
57 Id. at 70 (plurality); See also Santosky v. Kramer, 455 U.S. 745, 758 (1982) (parental rights are so important that
it is unconstitutional for the state to authorize termination of those rights on a “preponderance of the evidence”
58 See infra, section II.D.
59 Troxel, 530 U.S. at 76 (Souter, J.).
60 See 2 JOSEPH STORY, COMMENTARIES ON EQUITY JURISPRUDENCE AS ADMINISTERED IN ENGLAND AND AMERICA
675–77 (13th ed. 1886) (tracing the origins of the best interests of the child standard to the English parens patriae
doctrine); Julia Halloran McLaughlin, The Fundamental Truth About Best Interests, 54 ST. LOUIS U. L. J. 113, 160–
61 (2009) (The best interest standard has “exist[ed] from time immemorial and has become the bedrock of our state
custody statutory law.” It is a “right that is ‘so rooted in the traditions and conscience of our people as to be ranked
as fundamental or implicit in the concept of ordered liberty.’” (quoting Michael H. v. Gerald D., 491 U.S. 110, 127
n. 6 (1989)).