syllogistically that ICWA applies to a racial group consisting of Indians.374 True, factors other
than biology also count, so that not all children of Native American ancestry are included within
the class, but that was also true of the law at issue in Rice. “Simply because a class defined by
ancestry does not include all members of the race does not suffice to make the classification race
ICWA’s racial nature is reinforced in various other ways. For example, recent BIA
regulations and some state laws apply ICWA based on a child being suspected of Indian
ancestry, even before tribal status is determined,376 and require state officials to register children
for tribal membership if they are eligible.377 ICWA also applies only to children who are both
eligible for tribal membership and who are the biological children of members, meaning that a
non-Native child adopted by a tribal member is not subject to ICWA, regardless of cultural or
political affiliation. Thus, for instance, Sam Houston—an adopted member of the Cherokee
tribe378—or Linda Wishkob—the fictional adoptee who plays a critical role in Louise Erdrich’s
374 Solangel Maldonado, Race, Culture, and Adoption: Lessons from Mississippi Band of Choctaw Indians v.
Holyfield, 17 COLUM. J. GENDER & L. 1, 23 (2008).
375 Rice, 528 U.S. at 516–17. A racial category does not cease to be a racial category just because factors other than
race play a role in defining the class. After all, the executive order forcing Japanese Americans into detention
centers in World War II applied only to persons with more than one-sixteenth Japanese ancestry. See WENDY NG,
JAPANESE INTERNMENT DURING WORLD WAR II: A HISTORY AND REFERENCE GUIDE 37 (2002). Even persons with
more than this amount of Japanese ancestry could leave detention centers if they enlisted in the military or obtained
sponsorship. See BENSON TONG, ASIAN-AMERICAN CHILDREN: A HISTORICAL HANDBOOK AND GUIDE 95 (2004).
But the fact that not all persons of Japanese heritage were subject to the order did not make that order anything other
than a race-based rule subject to strict scrutiny. Korematsu v. United States, 323 U.S. 214, 216 (1944). The law is
clear: if race is a but-for factor in the calculus, that calculus is race-based, regardless of the role other factors may
376 See Guidelines, 80 Fed. Reg. at 14887, 23. 103(d) (ICWA applies “[ i]f there is any reason to believe the child is
an Indian child . . . unless and until it is determined that the child is not a member or is not eligible for membership
in an Indian tribe.”); In re Jack C., III, 192 Cal. App. 4th 967, 981 (2011) (upholding state court rule requiring courts
to proceed under ICWA before a child’s tribal membership is determined).
377 Guidelines, 80 Fed. Reg. at 14893, 23. 134(b), (c).
378 See MARQUIS JAMES, THE RAVEN: A BIOGRAPHY OF SAM HOUSTON 20 (Austin: University of Texas Press, 2004)
(1929). Houston, adopted at the age of 16 in 1809 by Chief Oo-loo-te-ka, was named Colonneh, or The Raven, in
Cherokee. Under today’s Cherokee Constitution, Houston would be ineligible for membership in the tribe, since he
obviously had no ancestor who signed the Dawes Rolls. Nor was he the biological child of a tribal member. He
therefore could not qualify as an “Indian child” under ICWA despite his cultural affiliation with the tribe.