2 Children’s Legal Rights Journal [Vol. 37: 1 2017]
But Lexi was not like other children. Her great, great, great, great-grandparent was a
full-blooded Choctaw Indian. 5 That meant that foster-care and adoption proceedings in her case
were governed by the Indian Child Welfare Act of 1978 (ICWA). 6 ICWA defines “Indian
children” as tribal “resources,” 7 and gives tribal governments extraordinary power to control the
fate of abused, neglected, or abandoned Indian children. It mandates that Indian children in
foster care or eligible for adoption be placed with other Indians or with families chosen by tribal
governments. These and other provisions of ICWA override the “best interests of the child”
standard that applies to all other children. Indeed, guidelines recently promulgated by the
Bureau of Indian Affairs (BIA) make the point clear: for courts to engage in “an independent
consideration of the best interest of the Indian child” is improper, according to the BIA, “because
the [dictated] preferences reflect the best interests of an Indian child in light of the purposes of
the Act.” 8
5 The Choctaw Constitution accords citizenship to the “lineal descendants” of “all Choctaw Indians by blood whose
names appear on the final rolls of the Choctaw Nation” approved in 1906. CHOCTAW CONST. art. II, § 1.
6 25 U.S.C. §§ 1901–1963 (2012).
7 Id. § 1901(2), ( 3).
8 Guidelines for State Courts and Agencies in Indian Child Custody Proceedings, 80 Fed. Reg. 10146, 10158
F. 4(c)( 3) (Feb. 25, 2015) [hereinafter Guidelines]. See also 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.”). The BIA recently published new final ICWA regulations. Indian Welfare Act
Proceedings, 25 C.F.R. § 23 (2016). These regulations include no explicit reference to the best interests standard,
and do not specify what constitutes “good cause” for deviating from ICWA, although they do provide that a good
cause finding “should” be based on factors such as the wishes of the parents, the unavailability of a suitable ICWA-compliant placement, and the “extraordinary” needs of the child—but not “ordinary bonding or attachment that
flowed from time spent in a non-preferred placement that was made in violation of ICWA.” Id. § 23. 132(e)(c)( 3).
They do forbid courts from considering various factors in the good cause determination, however, including whether
the foster-care proceeding is at an advanced stage, or the “negative perception of Tribal . . . social services or
judicial systems.” Id. § 23. 118(c)( 1), ( 5). The comments accompanying the regulations definitively reject “a free-ranging ‘best interests’ determination,” 81 Fed. Reg. 38777, 38847 (June 14, 2016), and emphasize that “[t]he final
rule does not include a ‘best interests’ consideration.” Id. at 38827.