child accordingly.” 61 Courts have called the best interests standard the “touchstone” 62 and the
“linchpin” 63 of the law of child welfare. This standard is inherently individualized, meaning that
it focuses on the particular interests of the specific child under his or her unique circumstances. 64
ICWA deprives children whose ancestry is Indian of the protection of that rule and
substitutes a uniform, often insurmountable, presumption that it is in an Indian child’s best
interests to have her future determined by tribal authorities. Some courts—and the BIA—have
taken the position that this presumption overrides individualized consideration of the child’s
personal best interests, except in the rarest circumstances. 65 And this presumption does not
depend on existing social or cultural links between child and tribe; it depends on biology. BIA
regulations even impose a presumption that ICWA applies when a child is merely suspected of
having Indian ancestry. 66
61 Finlay v. Finlay, 240 N. Y. 429, 433 (1925) (citation omitted). The best interests standard is also the paramount
consideration in much Indian tribal law. See, e.g., Lente v. Notah, 3 Navajo Rptr. 72, 78–80 (1982) (child’s best
interest takes precedence over tribal custom).
62 In re Marriage of Wellman, 104 Cal. App. 3d 992, 998 (1980).
63 In re Robert L., 21 Cal. App. 4th 1057, 1068 (1993).
64 See In re Adoption of Kelsey S., 1 Cal. 4th 816, 845–50 (1992) (“best interests” standard focuses on the child’s
individual circumstances); cf. In re Adoption of Abel, 931 N. Y.S.2d 829, 834–35 (N.Y. Fam. Ct. 2011) (children
have a “due process right to an individualized determination of whether this adoption is in [the child’s] best
interest”); Dawn D. v. Superior Court (Jerry K.), 17 Cal. 4th 932, 965 (1998) (“a court must make an individualized
determination of the child’s best interest in determining the extent, if any, of [a father’s] parental rights”); People v.
McCoy, 9 Cal. App. 4th 1578, 1583 (1992) (state law “requires the court to individually assess each child’s best
interests in fashioning [custody] orders”). California mandates an individualized best-interest determination by
statute. See CAL. FAM. CODE § 3011 (2012).
65 See, e.g., In re C.H., 997 P.2d 776, 782 (Mont. 2000) (“while the best interests of the child is an appropriate and
significant factor in custody cases under state law, it is improper” in ICWA cases because “ICWA expresses the
presumption that it is in an Indian child’s best interests to be placed in conformance with the preferences”); In re
Zylena R., 284 Neb. 834, 852 (2012) (“Permitting a state court to deny a motion to transfer [to tribal court] based
upon its perception of the best interests of the child negates the concept of ‘presumptively tribal jurisdiction’”);
contra, In re Alexandria P., 228 Cal. App. 4th 1322, 1353–54 (2014); Navajo Nation v. Arizona Dep’t of Econ. Sec.,
230 Ariz. 339, 348 (Ct. App. 2012).
66 25 C.F.R § 23. 111(e). The regulations require that ICWA be applied when there is “reason to know” a child is an
“Indian child” under ICWA. But “reason to know” is defined in remarkably loose ways. It occurs when “[a]ny
participant in the proceeding . . . informs the court that the child is an Indian child,” or if “[a]ny participant . . .
informs the court that it has discovered information indicating that the child is an Indian child,” or if “[t]he child . . .
gives the court reason to know he or she is an Indian child,” among other things. Id. § 23. 107(c). While a child may
later prove not to be an Indian child—due to ineligibility for tribal membership, for instance—ICWA’s provisions
may have caused substantial delay in the proceedings by the time eligibility is disproven.