reviewed, and the author did not disclose her methodology. Other surveys suffer from similar
flaws. 94 More reliable evidence supports the proposition that cross-ethnic adoption is good for
children, or at least does not harm them. 95
Even if there were scientific support for the proposition that Indian children are better off
when placed with other Indians, it is doubtful that ICWA properly addresses that problem. For
one thing, neither the Act nor its implementing regulations apply to tribal court proceedings. 96
This means that tribal courts can, and do, approve foster and adoption placements with non-Indian households. 97 If ICWA is intended to protect Indian children from the allegedly unique
injury of being placed with families of other ethnicities, it would make no sense to allow such
placements simply because tribal courts order them. 98 Nor does ICWA apply to divorce
proceedings, even though divorces frequently involve child custody. 99 State courts can therefore
award custody of an Indian child to a non-Indian parent in a divorce proceeding without
94 See KENNEDY, supra note 29, at 499–503 (critiquing other “junk social science” cited by ICWA advocates).
95 See, e.g., DAVID FANSHEL, FAR FROM THE RESERVATION 322 (1972) (“My overall impression is that the children
are doing remarkably well as a group”); RITA J. SIMON & SARAH HERNANDEZ, NATIVE AMERICAN TRANSRACIAL
ADOPTEES TELL THEIR STORIES 13–14 (2008) (non-scientific series of interviews with subjects in which 16 of 20
Indians adopted into non-Indian families reported positive experiences); Elizabeth Bartholet, Where Do Black
Children Belong? The Politics of Race Matching in Adoption , 139 U. PA. L. REV. 1163, 1221–24 (1991); See also
Christine D. Bakeis, The Indian Child Welfare Act of 1978: Violating Personal Rights for the Sake of the Tribe, 10
NOTRE DAME J.L. ETHICS & PUB. POL’Y 543, 548–49 (1996) (listing research that shows “that although leaving a
child with his or her natural parents is normally preferable, Indian children can develop normally in non-Indian
96 Notice of Proposed Rulemaking, Regulations for State Courts and Agencies in Indian Child Custody Proceedings,
25 C.F.R. § 23. 103(e) (2015) (to be codified at 25 C.F.R. pt. 23); Michael C. Snyder, An Overview of the Indian
Child Welfare Act, 7 ST. THOMAS L. REV. 815, 820 (1995).
97 See Christine Metteer, Hard Cases Making Bad Law: The Need for Revision of the Indian Child Welfare Act, 38
SANTA CLARA L. REV. 419, 422 (1998) (complaining that tribal courts allow Indian children to remain with non-Indian adoptive parents, thus “reward[ing] the non-Indian parents” and “mak[ing] bad law.”).
98 See also Catherine M. Brooks, The Indian Child Welfare Act in Nebraska: Fifteen Years, A Foundation for the
Future, 27 CREIGHTON L. REV. 661, 707–08 (1994) (“If the placement parent is willing to learn how to prepare the
child for adult life as a member of a racial minority and to instill in the child a racial identity in which he or she
takes pride, what interest is served by making the child wait for placement in a race matched home? If it is purely
the preservation of the racial culture, the infant or child who has had no connection to that culture is not the best
bearer of that burden.”).