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.