64 Children’s Legal Rights Journal [Vol. 37: 1 2017]
novel The Round House379—would not have been subject to ICWA despite their complete
cultural and social affiliation with their tribes, whereas Lexi was subject to ICWA, despite
lacking any cultural or social connections to a tribe. The deciding factor is genetic. Also, other
provisions of ICWA, such as the adoption preference granted to “other Indian families” and the
foster-care preferences for “an Indian foster home,” expressly apply to the “Indian” race in the
abstract, rather than to tribes as specific political entities. Thanks to these provisions, an Alaskan
child of Eskimo heritage could be placed with an unrelated member of a Plains Indian tribe in
Montana, rather than with a fit, or even fitter, adoptive family of a different race—again, not
because of political affiliation, but because of their “Indianness.”380 The ICWA Penalty Box
depends not on membership in a political organization, but on the ethnic quality of being
Race was at the forefront of the Supreme Court’s recent decision in Adoptive Couple,
which involved a child (known as “Baby Veronica”) whose Cherokee father had surrendered his
parental rights before her birth and who had never even met her.382 The mother volunteered
379 See LOUISE ERDRICH, THE ROUND HOUSE 114 (2012). In the novel, Linda, a white child born with birth defects,
is abandoned by her birth parents and taken in by members of the Ojibwe tribe. Under that tribe’s Constitution,
Linda would not be eligible for membership, because membership requires biological Chippewa ancestry. See
MINN. CHIPPEWA TRIBE CONST. art. II (1964). Nor is she a biological child of a tribal member, as required by 25
U.S.C. § 1903( 4)(b).
380 Cf. In re T.S., 801 P.2d 77, 83 (Mont. 1990) (Sheehy, J., dissenting) (criticizing majority for the “patronizing”
assumption that ICWA was satisfied by placing Eskimo child with family of Plains ancestry).
381 See also Maldonado, supra note 380, at 25 (“Under ICWA, all Indian families, other than members of the child’s
tribe, are treated equally regardless of cultural, political, economic, or religious differences between the tribes, or the
fact that there are over 250 different tribal languages. Further, ICWA makes no distinction between ‘local’ tribes
and those located thousands of miles from the child’s tribe.”); Carole Goldberg, Descent into Race, 49 UCLA L.
REV. 1373, 1381–82 (2002) (acknowledging that these provisions of ICWA establish “racialized preferences.”);
Shawn L. Murphy, The Supreme Court’s Revitalization of the Dying “Existing Indian Family” Exception, 46
MCGEORGE L. REV. 629, 640 (2014) (“The legal fiction that ‘Indian’ is a political affiliation and not a racial
category is further discredited in that Indian tribes do not enroll members on the basis of member agreement with the
politics of the tribe, but on the basis of blood quantum and familial ancestry.”).