ICWA, intermarriage, and not-studying-for-finals

The final and much dreader exercise in the Lawyering Program curriculum is an oral argument exercise focusing on the Indian Child Welfare Act of 1978. ICWA resurfaced in my Family Law reading this week, prompting what follows. Congress' state intent was to "protect the best interests of Indian children and to promote the stability and security of Indian tribes and families" (25 U.S.C. § 1902).
So, what happens when admittedly Indian parents choose to cut off all ties for the child by purposefully leaving the reservation to give birth, and selecting a non-Indian adoptive parent? No dice, says the Supreme Court, "for Congress was concerned not solely about the interest of Indian children and families, but also about the impact on the tribes themselves of the large number of Indian children adopted by non-Indians." (Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49 (1989)).
What if an Indian parent has cut ties with the tribe before even becoming pregnant with a child she seeks to surrender for an adoption by a non-Indian (actually, gay and Jewish) couple of her choice? I learned in Family Law that ICWA still applies according to a New York court. (In re Baby Boy C. 805 N.Y.S.2d 313 (App Div 2005)).
ICWA does have an exception to its preference for placement with and Indian family for "good cause," and the Bureau of Indian Affairs includes the request of the child or parent as "good cause." In Baby Boy C the appellate court declined to make a good cause determination itself, but left the question open on remand. In Holyfield, good cause is absent because the question was decided on a different part of the statute. Holyfield's failure to mention good cause does give some pause, however, such that perhaps individual parental preferences are not a clear cut/obviously controlling exception.
So what about intermarriage? Well, it seems to me that the arguments against interfaith marriage on a personal level tend to be weak (by which I mean uncompelling and perhaps incoherent). That is, it's hard to argue to an individual who thinks otherwise that intermarriage is a bad decision for them, individually. The strong (as in, coherent and less likely to sound silly) arguments are on a national (tribal, if you will) level: we are concerned, to paraphrase the Court, not solely about the interest of Jewish individuals and their partners, but also about the impact on the tribe itself of the large number of Jews marrying non-Jews. (For now, I leave open the soundness of this concern even when the children will be raised at least as Jewish as they would with a secular-Jewish second parent.)
Is this racist? Well, perhaps, but my point here is only that American law, and society, seem to tolerate a very similar sort of racism in a particular context, which might imply that, even from a secular perspective, there are at least legitimate values on both sides.
Of course, Indian law is "different" because of the quasi-sovereign status of tribes. However, from an internal-Jewish perspective the situation looks a lot like it does from inside the tribes, and recognition of that tribal perspective as legitimat is at least interesting.

ps

Actually, on a less trivial note, what does anyone think of this article?
I thought it would be more interesting than it was, but it's still somewhat interesting...

goings on

Blogging about nothing is about the last thing i should be doing now. (I hope oren doesn't read this today ;) ). But, it's always the last 2% of packing that's the hardest. You know, the packing of all the things that you left to the end because you didn't know what to do with them. If you're me, you are usually in a real rush by the time you get to them (whereas now I have at least 1 hour at home before the movers come... ;) ) so you just throw them in boxes. this is ok. Just so long as you unpack those boxes and figure out what to do with all the _stuff_ later which, if you are me, is no guaranteed. But at least I finally threw out the salad dressing from _last_ pesach...
In any case, the last few weeks have featured me doing 20-minute errands during most of my 10 minute breaks, looking for apartments, finding and apartment (yay, washington heights!) and pack-pack-packing. That is not interesting at all, but that is all.
Well, I guess I learned some moderately interesting things in between too. Perhaps I will write about some of those things another time. but not now. Until then.
Miriam