declined to apply ICWA to a case involving two-year-old Indian twins who had been
relinquished for adoption at birth.396 The birth parents later tried to rescind consent, which
ICWA allows, but the court refused, holding that ICWA did not apply.397 “[T]here are
significant constitutional impediments,” it found, to using ICWA in cases involving “persons
who are not residents or domiciliaries of an Indian reservation, are not socially or culturally
connected with an Indian community, and, in all respects except genetic heritage, are
indistinguishable from other residents of the state.”398 To do so would be to impose an
unconstitutional racial distinction. Instead, there must be “social, cultural or political
relationships between Indian children and their tribes” before ICWA’s differential treatment of
Indian children could qualify as a Mancari-type political distinction.399
Writers harshly criticized Bridget R. on the grounds that the court was “determin[ing] if
the member acts American Indian enough to appease their perception of what an American
Indian should do or be,” and was putting courts in charge of deciding who is and is not an
Indian.400 Such criticism is misguided. First, it fails to distinguish between Indian tribal
membership, which is solely a matter of tribal law, and “Indian child” status under ICWA—
396 41 Cal. App. 4th 1483, 1523 (1996).
397 Id. at 1521–22.
398 Id. at 1501.
399 Id. at 1508.
400 Cheyañna L. Jaffke, The “Existing Indian Family” Exception to the Indian Child Welfare Act: The States’
Attempt to Slaughter Tribal Interests in Indian Children, 66 LA. L. REV. 733, 748 (2006). See also Marcia A. Zug,
The Real Impact of Adoptive Couple v. Baby Girl: The Existing Indian Family Doctrine Is Not Affirmed, but the
Future of the ICWA’s Placement Preferences Is Jeopardized, 42 CAP. U. L. REV. 327, 329–38 (2014); Lorie M.
Graham, “The Past Never Vanishes”: A Contextual Critique of the Existing Indian Family Doctrine, 23 AM. INDIAN
L. REV. 1, 39–43 (1998); Aliza G. Organick, Holding Back The Tide: The Existing Indian Family Doctrine and Its
Continued Denial of the Right to Culture for Indigenous Children, in FLETCHER, ET AL., supra note 51, at 221; Dan
Lewerenz & Padraic McCoy, The End of “Existing Indian Family” Jurisprudence: Holyfield at 20, In the Matter of
A.J.S., and the Last Gasps of a Dying Doctrine, 36 WM. MITCHELL L. REV. 684, 715–17 (2010); Suzianne D.
Painter-Thorne, One Step Forward, Two Giant Steps Back: How the “Existing Indian Family” Exception
(Re)Imposes Anglo American Legal Values on American Indian Tribes to the Detriment of Cultural Autonomy , 33
AM. INDIAN L. REV. 329, 376 (2009); Annette Ruth Appell, Uneasy Tensions Between Children’s Rights and Civil
Rights, 5 NEV. L.J. 141, 161–66 (2004).