tribal custom295); if none are available, with a foster home approved or specified by the tribe; if
none are available, with an Indian foster home approved by a non-Indian authority; and, again, if
none are available, with an institution approved by an Indian tribe or an Indian organization.296
In adoption cases, the court must give preference first to a member of the child’s extended family
(as defined by the tribe); second, to other members of the child’s tribe; and, lastly, to “other
These placement preferences are based on race, not on political or tribal affiliation.298
The foster care preferences mandate that a child be sent to “an Indian” foster facility approved
by “an Indian tribe”—not the child’s own tribe—and the adoption preference hierarchy gives
preference to “other Indian families” over non-Indians who wish to adopt, even if those families
are of a different tribe.299 It is thus not tribal membership that matters, but generic Indianness.
As if that were not enough, the federal Multi-Ethnic Placement Act forbids the denial or delay of
an adoption or custody proceeding on the basis of race—but it specifically excludes one group of
children from this protection: Indian children.300
Ranking would-be foster and adoptive families in terms of ancestry rather than in terms
of the children’s best interests is bound to cause problems, and severe problems have indeed
295 25 U.S.C. § 1903( 2) (2012).
296 Id. § 1915(b).
297 Id. § 1915(a).
298 Even if they did break down on tribal lines, they would likely constitute national-origin discrimination. See
generally Dawavendewa v. Salt River Project Agr. Imp. & Power Dist., 154 F.3d 1117 (9th Cir. 1998).
299 See, e.g., In re K.B., 173 Cal. App. 4th 1275, 1290 (2009) (approving custody despite the fact that children were
Choctaw and adoptive father was Cherokee); Dep’t. of Hum. Servs. v. W.H.F., 254 Or. App. 298, 300–01 (2012)
(approving adoption because “[t]he potential adoptive father is an Indian tribal member, although not of the same
tribe.”). In In re T.S., 801 P.2d 77, 81 (Mont. 1990), the Montana Supreme Court upheld a trial court’s finding that
good cause existed to deviate from ICWA, but concluded that the state had “made a good faith attempt to comply
with the recommended preferential treatment” by placing the child “with an Indian foster mother,” even though she
was of Plains Indian heritage—an entirely different tribe. The dissenting justice found it “improper and somewhat
patronizing” to assume that one tribe was essentially as good as another. Id. at 83 (Sheehy, J., dissenting).