James R. v. Cindy R. (41 Cal. App. 4th 1483, 1996)

Opinion

CROSKEY, J.

California recognizes the principle that children are not merely chattels belonging to their parents, but rather have fundamental interests of their own. (In re Jasmon O. (1994) 8 Cal.4th 398, 419 [33 Cal.Rptr.2d 85, 878 P.2d 1297].) Such fundamental interests are of constitutional dimension. This principle is central to our resolution of the multiple and complex issues presented by this case.

We reverse an order of the trial court made pursuant to sections 1913 and 1914 of the Indian Child Welfare Act of 1978 (25 U.S.C. § 1901 et seq.; hereafter ICWA or the Act). The court’s order invalidated a voluntary relinquishment of parental rights respecting Bridget and Lucy R., twin two-year-old girls, and ordered the twins removed from their adoptive family, with whom they have lived since birth, and returned to the extended family of the biological father. The adoptive parents (hereafter the R’s or adoptive parents) appealed, joined by the licensed adoption agency through which the twins were placed.

The twins are of American Indian descent, and the within dispute over their prospective adoption and custody raises issues concerning the scope of ICWA. Specifically, it raises the question of whether the Act should be limited in its application, as some courts have limited it, to children who not only are of Indian descent, but also belong to an “existing Indian family.” (See, e.g., In re Adoption of Crews (1992) 118 Wn.2d 561 [825 P.2d 305]; Matter of Adoption of Baby Boy L. (1982) 231 Kan. 199 [643 P.2d 168].) We conclude that question must be answered in the affirmative.

ICWA was enacted by Congress to protect the best interests of Indian children and promote the stability of Indian tribes and families. (25 U.S.C.A. § 1902; Mississippi Choctaw Indian Band v. Holyfield (1989) 490 U.S. 30, 32-37 [104 L.Ed.2d 29, 36-39, 109 S.Ct. 1597]; Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 408 [280 Cal.Rptr. 194].) To this end, ICWA requires, among other things, that any voluntary termination of parental rights respecting an Indian child be (1) executed in writing, (2) recorded before a judge, and (3) executed more than 10 days after the birth of the child. (25 U.S.C. § 1913(a).) Any consent not meeting these requirements is invalid and may be declared so at any time by a court of competent jurisdiction upon petition by the child, the Indian parent or custodian, or the child’s tribe. (25 U.S.C. § 1914.)

Here, the twins’ biological parents, Richard A. (Richard) and Cindy R. (Cindy), initially relinquished the twins to appellant Vista Del Mar Child and Family Services (Vista Del Mar) pursuant to section 8700 of California’s Family Code for adoption by the R’s, a non-Indian couple. However, Richard and Cindy later purported to withdraw their consent. With the assistance of the Dry Creek Ranchería of Porno Indians, the federally recognized Indian tribe from which Richard is descended (hereafter the Tribe), they initiated proceedings under ICWA to invalidate their relinquishments of parental rights. It is undisputed that the relinquishments were not executed in the manner required by ICWA. It is also undisputed that Richard and the twins are now recognized by the Tribe as tribal members. However, the record raises substantial doubt as to whether Richard, who, at all relevant times, resided several hundred miles from the tribal reservation, ever participated in tribal life or maintained any significant social, cultural or political relationship with the Tribe.

Although urged by Vista Del Mar and the R’s to apply the “existing Indian family doctrine” in this case, and uphold the relinquishments of parental rights unless the biological parents established that they were such a family, the trial court declined to apply that doctrine or hold any hearing with respect thereto. The court simply declared the relinquishments invalid as violative of ICWA and ordered the twins placed in the custody of their paternal grandparents, who were appointed temporary guardians. The trial court also dismissed a petition by the adoptive parents to terminate the biological parent’s parental rights on the ground of abandonment. (Fam. Code, § 7822.) The court found ICWA precluded it from proceeding on that petition.

As we explain, recognition of the existing Indian family doctrine is necessary in a case such as this in order to preserve ICWA’s constitutionality. We hold that under the Fifth, Tenth and Fourteenth Amendments to the United States Constitution, ICWA does not and cannot apply to invalidate a voluntary termination of parental rights respecting an Indian child who is not domiciled on a reservation, unless the child’s biological parent, or parents, are not only of American Indian descent, but also maintain a significant social, cultural or political relationship with their tribe. Because the factual issues raised by such a rule have not been resolved, we reverse the trial court’s order and remand the case for a determination as to whether the twins’ biological parents had such a relationship at the time that they voluntarily acted to relinquish their parental rights under California law. In the event that the trial court, after consideration of all the evidence, determines that such a relationship did not exist, then those relinquishments will be valid and binding and ICWA will not bar any pending adoption proceedings. On the other hand, if the trial court finds that the biological parents did have a significant social, cultural or political relationship with the Tribe, and therefore the provisions of ICWA can properly be applied, then a further guardianship hearing will be required to resolve the question of whether the twins should be removed from the custody of the R’s.

Factual Background

Bridget and Lucy, twin girls, were bom on November 9, 1993, in Los Angeles County, California, to Richard and Cindy. He is of American Indian descent, while she is descended from the Yaqui Tribe of Mexico. Richard is three-sixteenths Pomo and is currently an enrolled member of the Tribe.

The Tribe, which occupies a reservation in Sonoma County, in Northern California, has approximately 225 enrolled members, of whom approximately 25 live on the reservation. Since 1973, the Tribe has been governed by a set of articles of association, which, among other things, establish the qualifications of tribal membership. Under the articles, such membership includes all persons who (1) have completed an application for membership, and (2) are named in a June 4, 1915, Bureau of Indian Affairs census of Indians “in, near and up Dry Creek from Healdsburg” and Indians “in and near Geyserville,” or are descendants of persons in those censuses, or are both California Indians and spouses of tribal members who hold valid assignments of land on the Ranchería. A person who is otherwise qualified to be a member is disqualified if he or she has been formally enrolled in another tribe, band or group, or has received an allotment of land by virtue of an affiliation with such other tribe, band or group. The Tribe’s Board of Directors is responsible for maintaining a current membership roll.

Before the adoption of the articles of association in 1973, the Tribe was governed solely by custom and tradition, under which any lineal descendant of a historic tribal member was automatically a member of the Tribe and was recognized as such from birth. Marcellena Becerra, the tribal administrator, testified in the proceedings below that, when the articles of association were adopted, it was determined that existing members would continue to be recognized as members without the need to enroll formally. Thus, although his name is not on the Bureau of Indian Affairs’ enrollment list for the Tribe, Richard, who was bom in 1972, is recognized as a tribal member according to pre-1973 customs. He became an enrolled member of the Tribe March of 1994, after the present custody dispute began, when his mother, Karen A. (Karen), submitted a membership application on his behalf.

In mid-1993, Richard and Cindy discovered that Cindy was pregnant. Richard was then 21 years old, and Cindy was 20. They then lived together with their two sons, Anthony, age two, and Richard Andrew, age one, in the City of Whittier in Los Angeles County, California. However, by August of 1993, Cindy and the children were living in a shelter. Richard and Cindy realized they would not be able care for the expected twins, and so determined to relinquish them for adoption. They consulted Durand Cook, an attorney specializing in adoption, for this purpose.

Richard initially identified himself to Cook as one quarter American Indian. However, when told the adoptions would be delayed or prevented if Richard’s Indian ancestry were known, Richard filled in a revised form, omitting the information that he was Indian.

During the ninth month of Cindy’s pregnancy, she and Richard met with a social worker from Vista Del Mar. On November 11 and 12 respectively, after receiving counseling concerning the relinquishment and adoption process as required by regulations (Cal. Code Regs., tit. 22, § 35128 et seq.), promulgated by the Department of Social Services pursuant to legislative authority (Welf. & Inst. Code, § 10553; see now Fam. Code, § 8621), Richard and Cindy signed documents relinquishing the twins to Vista Del Mar, with the intent that they would be adopted by the R’s. The relinquishments were filed with the state Department of Social Services on November 23, 1993. Although the relinquishment documents contained direct queries as to whether either biological parent was of Indian descent, Richard concealed his Indian ancestry and listed his “basic ethnic group” as “white.”

A few days after the relinquishments were executed, the R’s returned with the twins to their home in Ohio, where they have lived as a family ever since. On May 4, 1994, the R’s filed a petition in Franklin County, Ohio, to adopt Bridget and Lucy. That petition is presumably still pending.

In December of 1993, Richard told his mother, Karen, about Cindy’s pregnancy, the birth of the twins and their adoption. In early February of 1994, Karen contacted Attorney Cook. At approximately the same time, Karen contacted the Tribe. A representative of the Tribe contacted Cook in February or March of 1994. Cook informed the R’s of this communication. On March 4, 1994, Amy Martin, the Tribe’s chairperson, wrote to the Los Angeles County Children’s Court, stating that the twins were potential members of the Tribe and requesting intervention in any proceedings concerning them. On approximately that same date, Karen submitted tribal enrollment applications for herself, Richard, the twins, and Richard’s two other children. On March 9, 1994, Amy Martin wrote to Vista Del Mar, stating that the twins were of Indian descent, and Karen, their paternal grandmother, wished them placed within the extended Indian family.

During these weeks and months, the relationship between Richard and Cindy was deteriorating. On April 27, 1994, Cindy obtained a restraining order, which required Richard to remain at least 100 yards from Cindy and their 2 sons, Anthony and Richard Andrew. In a declaration in support of her application for the restraining order, Cindy related that on numerous occasions during March, Richard hit and kicked Cindy and pushed her down, broke furniture, and abused the one- and two-year-old children by picking them up by the neck and shaking or dropping them, poking them in the face, or hitting them in the head. On at least one of these occasions, Richard was intoxicated.

On April 22,1994, Richard sent to Vista Del Mar a letter which stated that Richard wished to rescind his relinquishment of the twins and to have them raised within his extended family. This letter was drafted by Lorraine Laiwa, a member of the Tribe. Laiwa read the letter to Richard over the telephone. After he approved its contents, she mailed it to him for his signature. After signing the letter, Richard sent the original to Vista Del Mar and a copy to his mother. Richard later testified that his intent, when he signed the letter, was to place the twins with his sister.

On June 20, 1994, Richard had a meeting with Elias Lefferman, Ph.D., director of community services at Vista Del Mar, concerning the request to rescind his relinquishment of the twins. During this meeting, Richard acknowledged that he had previously concealed his Indian ancestry. He stated that his decision to rescind his relinquishment of parental rights was prompted by his mother, Karen, so that Richard’s sister could raise the twins. Vista Del Mar denied Richard’s request to withdraw the relinquishments, and the proceedings that are now before us for review followed.

Contentions

On appeal and in their petition for writ of mandate, the adoptive parents contend that: (1) the trial court erred in failing to recognize the “existing Indian family” doctrine and (2) ICWA is unconstitutional, unless limited by the “existing Indian family” doctrine, in that it (a) impedes the exercise of fundamental rights of adopted children and their adoptive families; (b) creates an impermissible racial classification, and (c) exceeds the enumerated powers of Congress and violates the Tenth Amendment.

In the alternative, the adoptive parents argue that, even if ICWA is constitutional and is not limited by the “existing Indian family” doctrine, the trial court’s order must be reversed, because: (1) Richard is not a presumed father, (2) the Tribe is precluded from retroactively enrolling Richard and the twins as tribal members, (3) the twins are only 3/32 Indian, (4) the biological parents, having concealed Richard’s Indian heritage in order to facilitate the adoption, are estopped from invoking ICWA to prevent it and (5) ICWA’s provisions do not defeat the requirement that a hearing must be held on the issue of whether a change of custody to the extended biological family is in the best interests of the children or will be a detriment to them.

Discussion

1. Summary of Relevant Portions of ICWA

ICWA, enacted by Congress to prevent the further “wholesale separation of Indian children from their families” through state court proceedings, was prompted by studies conducted in the 1970’s which showed that Native American children were being removed from their homes, through both foster care and adoption, in disproportionate numbers. (Mississippi Choctaw Indian Band v. Holyfield, supra, 490 U.S. at pp. 32-37 [104 L.Ed.2d at pp. 36-39].)

The Act is broken down into two titles. In this case, we are concerned only with title I (25 U.S.C. §§ 1901-1923), which provides for the allocation of jurisdiction over Indian child custody proceedings between Indian tribes and the states and establishes federal standards to protect Indian families. Title II of the Act (25 U.S.C. §§ 1931-1963) provides for grants to Indian tribes and organizations to operate child and family service programs.

Sections 1901 and 1902 set forth the historical and policy bases of ICWA. The stated policies are to protect the best interests of Indian children and protect the cultural heritage of Indian nations from destruction through the removal of children from Indian tribes (25 U.S.C. §§ 1901, 1902). Section 1903 defines the Act’s operative terms. An “ ‘Indian child’ ” is defined as “any unmarried person who is under age eighteen and either (a) is a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a tribal member.” (25 U.S.C. § 1903(4).) An “Indian tribe” is “any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians. . . .” (25 U.S.C. § 1903(8).)

Section 1911(a) gives an Indian tribe “jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides on or is domiciled within” the tribal reservation (25 U.S.C. § 1911(a)). When an Indian child who is not domiciled on a reservation is the subject of child custody proceedings in a state court, section 1911(b) provides that, absent good cause, jurisdiction shall be transferred to the child’s tribe upon request by either parent or the tribe. Subdivision (c) provides that an Indian child’s tribe may intervene in any state court custody proceeding affecting the child. Subdivision (d) requires all jurisdictions within the United States to give full faith and credit to the acts of an Indian tribe that are applicable to Indian child custody proceedings.

Section 1912 provides standards for involuntary proceedings respecting the removal of Indian children from their homes. These include a requirement of clear and convincing evidence of a threat of serious harm before an Indian child may be placed in foster care or in the custody of a guardian (25 U.S.C. § 1912(e)), and a requirement of proof beyond a reasonable doubt, supported by the testimony of qualified experts, of a threat of serious harm before parental rights respecting an Indian child may be terminated (25 U.S.C. § 1913(f)).

Section 1913 sets forth standards for voluntary foster care placements and voluntary terminations of parental rights (25 U.S.C. § 1913). Subdivision (a) provides that Indian parents who relinquish their parental rights must execute the relinquishments in writing before a judge, who must certify that the proceedings were explained to the parents in a language they understand. Subdivision (a) further provides that “Any consent given prior to, or within ten days after, birth of the Indian child shall not be valid.” Subdivision (b) provides that a parent or Indian custodian may withdraw consent to a foster care placement at any time, and upon such withdrawal, the child must be returned. Subdivision (c) provides that a parent or Indian custodian may withdraw consent to termination of parental rights at any time until entry of a final order of adoption or termination, and upon such withdrawal, the child must be returned. Subdivision (d) provides that a final court decree of adoption may be overturned at any time within two years of its entry if parental consent was obtained through fraud or duress.

Section 1914 of ICWA (25 U.S.C. § 1914) allows any Indian child, parent or Indian custodian from whom a child was removed, and the Indian child’s tribe to petition a court of competent jurisdiction to invalidate a foster care placement or termination of parental rights upon a showing that such action violated any provision of sections 1911, 1912 or 1913.

2. The “Existing Indian Family” Doctrine

As noted above, ICWA applies to any child who is either: (1) a member of an Indian tribe, or (2) eligible to be a member, and the biological child of a member of a tribe. (25 U.S.C. § 1903(4).) However, some courts have declined to apply the Act where a child is not being removed from an existing Indian family, because, in such circumstances, ICWA’s underlying policies of preserving Indian culture and promoting the stability and security of Indian tribes and families are not furthered. (In re Adoption of Crews, supra, 825 P.2d 305; Matter of Adoption of Baby Boy L., supra, 643 P.2d 168.)

The earliest case to articulate what later became known as the “existing Indian family” doctrine was Matter of Adoption of Baby Boy L., supra, 643 P.2d 168. In that case, the Kansas Supreme Court observed that the purpose of ICWA was to maintain family and tribal relationships existing in Indian homes and to set standards for removal of Indian children from an existing Indian environment. (643 P.2d at p. 175.) The court found that the child whose custody was at issue in that case had been relinquished by his non-Indian mother at birth and had never been in the custody of his Indian father. The child thus had never been part of an Indian family relationship. Preservation of an Indian family was therefore not involved in the case; consequently, ICWA did not apply. (643 P.2d at p. 175; see also Matter of Adoption of T.R.M. (Ind. 1988) 525 N.E.2d 298, 303; Claymore v. Serr (S.D. 1987) 405 N.W.2d 650, 654; In the Interest of S.A.M. (Mo.Ct.App. 1986) 703 S.W.2d 603, 609; Adoption of Baby Boy D. (Okla. 1985) 742 P.2d 1059, 1064, cert. den. Harjo v. Duello (1988) 484 U.S. 1072 [98 L.Ed.2d 1005, 108 S.Ct. 1042].)

While the above cases found ICWA inapplicable because the Indian child himself (or herself) had never lived in an Indian environment, other cases have focused upon the question of whether the child’s natural family was part of an Indian tribe or community or maintained a significant relationship with one. In Matter of Adoption of Crews, supra, 825 P.2d 305, a case involving facts very similar to those before us, the Supreme Court of Washington found ICWA inapplicable to an adoption proceeding where the biological parents had no substantial ties to a specific tribe, and neither the parents nor their families had resided or planned to reside within a tribal reservation, although the birth mother was formally enrolled as a tribal member. In such a situation, the court found the application of ICWA would not further the Act’s policies and purposes and would consequently not be proper. (825 P.2d at pp. 308-310; see also Hampton v. J.A.L. (La.Ct.App. 1995) 658 So.2d 331, 336, affd. by Supreme Court of Louisiana at 662 So.2d 478.)

In California, at least two courts have recognized the existing family doctrine. In In re Wanomi P. (1989) 216 Cal.App.3d 156 [264 Cal.Rptr. 623], the court found ICWA inapplicable by its express terms, because the tribe to which the child’s mother belonged was a Canadian tribe, not a federally recognized tribe, as required by section 1903(8) of ICWA. (216 Cal.App.3d at p. 166.) However, the court also observed, in dictum, that regulating the unwarranted removal of children from Indian families by nontribal agencies was among the objectives of ICWA, and no evidence suggested the existence of an Indian family from which the minor was being removed. (Id. at p. 168.) Thus, the court noted that there would be no occasion for an application of ICWA. (Ibid.) In In re Baby Girl A. (1991) 230 Cal.App.3d 1611 [282 Cal.Rptr. 105], the majority found the baby’s tribe had a right to intervene in adoption proceedings. However, the right of intervention existed under state law, independently of ICWA. (230 Cal.App.3d at pp. 1618-1619.) The court found that, upon remand of the action, the preferences for the placement of Indian children in Indian families or settings, which are provided in section 1915 of ICWA, need not be followed if the trial court found the child had no actual Indian family ties. (230 Cal.App.3d at pp. 1620-1621.)

Two other California courts, however, have refused to apply the existing Indian family doctrine, or at least that version of the doctrine which holds that ICWA applies only if the child himself (or herself) has lived in an Indian family or community. In Adoption of Lindsay C., supra, 229 Cal.App.3d 404, the court characterized the doctrine as follows: “Generally speaking, [the doctrine] hold[s] the Act inapplicable in adoption proceedings involving an illegitimate Indian child who has never been a member of an Indian home or Indian culture, and who is being given up by his or her non-Indian mother.” (229 Cal.App.3d at p. 410.) The Lindsay C. court rejected the doctrine as so characterized. (Id. at pp. 415-416.) The trial court had found the tribe of the child’s unwed father had no right to notice of a pending stepparent adoption affecting the child, because he was the illegitimate child of a non-Indian mother, had always resided with the non-Indian mother, and had never been in the care or custody of the natural father, nor had any connection with Indian culture. Thus, without ever considering whether the natural father had significant ties with an Indian community, which he might one day share with the child if their family ties were not severed, the trial court concluded that no issue of the preservation of an Indian family was involved, as the child had never been a part of an Indian family. (Id. at p. 415.) The Court of Appeal rejected this reasoning and reversed. (Id. at pp. 415-416.)

Likewise in In re Junious M. (1983) 144 Cal.App.3d 786 [193 Cal.Rptr. 40], in a proceeding under (former) Civil Code section 232, the child’s mother informed the court on the third day of trial that she was of Indian descent. (144 Cal.App.3d at pp. 788-789.) The court found the mother’s tribe had a right to notice of the proceedings and a right to intervene, even though the minor had never lived in an Indian environment. “The language of the Act contains no [existing Indian family] exception to its applicability, and we do not deem it appropriate to create one judicially.” (Id. at p. 796, citing A.B.M. v. M.H. (Alaska 1982) 651 P.2d 1170, 1173.)

We agree that a rule which would preclude the application of ICWA to any Indian child who has not himself (or herself) lived in an Indian family does not comport with either the language or purpose of the Act. Moreover, the United States Supreme Court has implicitly rejected any such limitation on ICWA. In Mississippi Choctaw Indian Band v. Holyfield, supra, 490 U.S. 30, the only case in which the federal high court has construed ICWA, application of the Act’s tribal jurisdiction provisions (25 U.S.C. § 1911(a)) was challenged by the adoptive parents of illegitimate twin babies whose parents were enrolled members of an Indian tribe and were residents of the tribal reservation. (490 U.S. at pp. 37-38 [104 L.Ed.2d at pp. 39-40].) The babies were bom off of the reservation and immediately relinquished to a non-Indian family, who adopted them in the state chancery court. The birth mother returned home to the reservation after giving birth. On a subsequent motion by the tribe to vacate the adoption on the ground that the tribal court had exclusive jurisdiction over matters affecting the children’s custody, the state court found the children had never resided, or even been physically present, on the reservation, and were thus not domiciled there. Consequently, the court found ICWA did not apply. (Ibid.) The Supreme Court reversed (Id. at p. 41 [104 L.Ed.2d at pp. 41-42]), finding that (1) a general federal rule of domicile must apply for purposes of determining jurisdiction under ICWA (Id. at pp. 43-45 [104 L.Ed.2d at pp. 44-45]); (2) under such rule, the children’s domicile at birth followed that of their natural mother, and she was domiciled on the reservation (Id. at pp. 47-49 [104 L.Ed.2d at pp. 45-47]); (3) therefore, the tribe had exclusive jurisdiction over custody proceedings affecting the children under section 1911 (a). (490 U.S. at p. 53 [104 L.Ed.2d at pp. 49-50].)

Holyfield establishes, by clear implication, that an application of ICWA will not be defeated by the mere fact that an Indian child has not himself (or herself) been part of an Indian family or community. However, it does not follow from Holyfield that ICWA should apply when neither the child nor either natural parent has ever resided or been domiciled on a reservation or maintained any significant social, cultural or political relationship with an Indian tribe. To the contrary, in our view, there are significant constitutional impediments to applying ICWA, rather than state law, in proceedings affecting the family relationships of 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. These impediments arise from the due process and equal protection guarantees of the Fifth and Fourteenth Amendments and from the Tenth Amendment’s reservation to the states of all powers not delegated to the federal government. We must, of course, construe the statute to uphold its constitutionality. (DeBartolo Corp. v. Fla. Gulf Coast Trades Council (1983) 485 U.S. 568, 575 [99 L.Ed.2d 645, 654-656, 108 S.Ct. 1392]; Adoption of Kelsey S. (1992) 1 Cal.4th 816, 826 [4 Cal.Rptr.2d 615, 823 P.2d 1216].)

3. Constitutional Limitations Upon the Scope of ICW A

a. Due Process.

The intent of Congress in enacting ICW A was to “protect the best interests of Indian children,” as well as “promote the stability and security of Indian tribes and families.” (25 U.S.C. § 1902.) These two elements of ICWA’s underlying policy are in harmony in the circumstance in which ICWA was primarily intended to apply—where nontribal public and private agencies act to remove Indian children from their homes and place them in non-Indian homes or institutions. (See 25 U.S.C. § 1901(4).) But in cases such as this one, where, owing to noncompliance with ICWA’s procedural requirements, ICWA’s remedial provisions are invoked to remove children from adoptive families to whom the children were voluntarily given by the biological parents, the harmony is bound to be strained. Indeed, in circumstances of this kind, the interests of the tribe and the biological family may be in direct conflict with the children’s strong needs, which we find to be constitutionally protected, to remain through their developing years in one stable and loving home.

An individual’s many related interests in matters of family life are compelling and are ranked among the most basic of civil rights. (Quilloin v. Walcott (1978) 434 U.S. 246, 255 [54 L.Ed.2d 511, 519-520, 98 S.Ct. 549]; In re Marilyn H. (1993) 5 Cal.4th 295, 306 [19 Cal.Rptr.2d 544, 851 P.2d 826].) The United States Supreme Court has stated that “[t]he intangible fibers that connect parent and child have an infinite variety. They are woven throughout the fabric of our society, providing it with strength, beauty and flexibility. It is self-evident that they are sufficiently vital to merit constitutional protection in appropriate cases.” (Lehr v. Robertson (1983) 463 U.S. 248, 256 [77 L.Ed.2d 614, 623, 103 S.Ct. 985].) The high court has explained that its decisions which accord federal constitutional protection to certain parental rights rest upon “the historic respect—indeed, sanctity would not be too strong a term—traditionally accorded to the relationships that develop within the unitary family.” (Michael H. v. Gerald D. (1989) 491 U.S. 110, 123 [105 L.Ed.2d 91, 106, 109 S.Ct. 2333].)

Family rights are afforded not only procedural but also substantive protection under the due process clause. (Santosky v. Kramer (1982) 455 U.S. 745, 753 [71 L.Ed.2d 599, 606, 102 S.Ct. 1388] [“When the State moves to destroy weakened familial bonds, it must provide the parents with fundamentally fair procedures.”]; Moore v. East Cleveland (1977) 431 U.S. 494, 502 [52 L.Ed.2d 531, 539, 97 S.Ct. 1932] [local ordinance which limited occupancy of a dwelling unit to members of a nuclear family violated due process clause]; Stanley v. Illinois (1972) 405 U.S. 645, 649 [31 L.Ed.2d 551, 557, 92 S.Ct. 1208] [“[A]s a matter of due process of law, Stanley was entitled to a hearing on his fitness as a parent before his children were taken from him. . . .”]; Meyer v. Nebraska (1923) 262 U.S. 390, 399-401 [67 L.Ed. 1042, 1045-1046, 43 S.Ct. 625, 29 A.L.R. 1446] [law against teaching foreign languages in elementary schools did not serve sufficiently compelling public purpose to justify infringement of due process rights of students to acquire knowledge and of parents to control their children’s education].) Substantive due process prohibits governmental interference with a person’s fundamental right to life, liberty or property by unreasonable or arbitrary legislation. (Moore v. East Cleveland, supra, 431 U.S. at pp. 501-502 [52 L.Ed.2d at pp. 538-539]; In re David B. (1979) 91 Cal.App.3d 184, 192-193 [154 Cal.Rptr. 63].) Legislation which interferes with the enjoyment of a fundamental right is unreasonable under the due process clause and must be set aside or limited unless such legislation serves a compelling public purpose and is necessary to the accomplishment of that purpose. In other words, such legislation would be subject to a strict scrutiny standard of review. (Moore v. East Cleveland, supra, 431 U.S. at p. 499 [52 L.Ed.2d at pp. 537-538]; Sherbert v. Verner (1963) 374 U.S. 398, 406 [10 L.Ed.2d 965, 971-972, 83 S.Ct. 1790]; Bates v. Little Rock (1960) 361 U.S. 516, 524 [4 L.Ed.2d 480, 486, 80 S.Ct. 412]; see also Poe v. Ullman (1961) 367 U.S. 497, 547 [6 L.Ed.2d 989, 1021-1022, 81 S.Ct. 1752] (dis. opn. of Harlan, J.)0

When discussing constitutional protections of family relationships, the courts have focused more often upon the rights of parents than those of children. The United States Supreme Court has declared that the interests “of a man in the children he has sired and raised . . . undeniably warrants deference” (Stanley v. Illinois, supra, 405 U.S. at p. 651 [31 L.Ed.2d at p. 558], italics added) and that parents’ interest in the “care, companionship, custody and management” of their children has “ ‘a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.’ [Citation.]” (Ibid., italics added; see also Santosky v. Kramer, supra, 455 U.S. at p. 753 [71 L.Ed.2d at p. 606]; Lassiter v. Department of Social Services (1981) 452 U.S. 18, 27 [68 L.Ed.2d 640, 649-650, 101 S.Ct. 2153].) The California Supreme Court has likewise declared a parent’s interest in the care, custody and management of his or her children to be “a compelling one, ranked among the most basic of civil rights.” (In re Marilyn H., supra, 5 Cal.4th at p. 306; see also Adoption of Kelsey S., supra, 1 Cal.4th at pp. 830-848; In re Angelia P. (1981) 28 Cal.3d 908, 916 [171 Cal.Rptr. 637, 623 P.2d 198].)

However, the courts have described the constitutional principles which govern familial rights in language which strongly suggests the Constitution protects the familial interests of children just as it protects those of parents. The federal high court has said that “. . . the relationship between parent and child is constitutionally protected” (Quilloin v. Walcott, supra, 434 U.S. at p. 255 [54 L.Ed.2d at p. 519], italics added) and also has “emphasized the paramount interest in the welfare of children and has noted that the rights of the parents are a counterpart of the responsibilities they have assumed.” (Lehr v. Robertson, supra, 463 U.S. at p. 257 [77 L.Ed.2d at p. 624].) Our own Supreme Court has stated that the right of parents to the care, custody and management of their children, although fundamental, is not absolute, and has stated that “[c]hildren, too, have fundamental rights— including the fundamental right to be protected from neglect and to ‘have a placement that is stable [and] permanent.’ ” (In re Jasmon O., supra, 8 Cal.4th 398, 419, quoting In re Marilyn H., supra, 5 Cal.4th at p. 306.) “Children are not simply chattels belonging to the parent, but have fundamental interests of their own that may diverge from the interests of the parent.” (In re Jasmon O., supra, 8 Cal.4th at p. 419, italics added.)

Moreover, as a matter of simple common sense, the rights of children in their family relationships are at least as fundamental and compelling as those of their parents. If anything, children’s familial rights are more compelling than adults’, because children’s interests in family relationships comprise more than the emotional and social interests which adults have in family life; children’s interests also include the elementary and wholly practical needs of the small and helpless to be protected from harm and to have stable and permanent homes in which each child’s mind and character can grow, unhampered by uncertainty and fear of what the next day or week or court appearance may bring. (See generally, In re Jasmon O., supra, 8 Cal.4th at p. 419.)

Cases which hold that deference is to be accorded to parental rights do so in part on the assumption that children’s needs generally are best met by helping parents achieve their interests. (Santosky v. Kramer, supra, 455 U.S. at pp. 759-761 [71 L.Ed.2d at pp. 610-612]; Stanley v. Illinois, supra, 405 U.S. at p. 649 [31 L.Ed.2d at pp. 557-558]; Cynthia D. v. Superior Court (1993) 5 Cal.4th 242, 253-254 [19 Cal.Rptr.2d 698, 851 P.2d 1307]; In re Angelia P., supra, 28 Cal.3d at pp. 916-917.) In some situations, however, children’s and parents’ rights conflict, and in these situations, the legal system traditionally protects the child. (Cynthia D. v. Superior Court, supra, 5 Cal.4th at p. 254; In re Angelia P., supra, 28 Cal.3d at p. 917.)

Circumstances in which a parent’s and child’s interests diverge, and the child’s interests are found more compelling, include circumstances where a child has been in out-of-home placement under the jurisdiction of a dependency court for 18 months, and the parent has failed to correct the problems which caused the child to be removed from the home. (In re Jasmon O., supra, 8 Cal.4th at pp. 419-422; Cynthia D. v. Superior Court, supra, 5 Cal.4th at pp. 254-256.) In cases of this kind, the California Supreme court has ruled that a showing of a substantial likelihood that the child will suffer serious trauma if separated from the foster family can establish sufficient detriment to overcome the parents’ right to the care, custody and companionship of the child. (In re Jasmon O., supra, 8 Cal.4th at pp. 418-419.) A child’s right to remain in a stable home is also found both to be adverse to and to outweigh a parent’s interests where a natural father failed to show a commitment to the child within a reasonable time of learning of the mother’s pregnancy, but later seeks to assert parental rights and disturb an adoptive placement or stepparent family in which the child is secure and thriving. (Lehr v. Robertson, supra, 463 U.S. at pp. 261-262 [77 L.Ed.2d at pp. 626-627]; Quilloin v. Walcott, supra, 434 U.S. at p. 255 [54 L.Ed.2d at pp. 519-520]; Adoption of Michael H. (1995) 10 Cal.4th 1043, 1054-1058 [43 Cal.Rptr.2d 445, 898 P.2d 891].) In such cases, the United States Supreme Court has ruled that the parental rights of the natural father are superseded by policies favoring preservation of the child’s existing family unit. (Quilloin v. Walcott, supra, 434 U.S. at p. 255 [54 L.Ed.2d at pp. 519-520].)

Both the California Supreme Court and the United States Supreme Court have also recognized that a person’s interests and rights respecting family relationships do not necessarily depend upon the existence of a biological relationship. (Lehr v. Robertson, supra, 463 U.S. at p. 261 [77 L.Ed.2d at p. 626]; Adoption of Michael H., supra, 10 Cal.4th 1043, 1057-1058.) The United States Supreme Court has stated that “[n]o one would seriously dispute” that familial interests and rights may attach to the emotional ties which grow between members of a de facto family. (Smith v. Organization of Foster Families (1977) 431 U.S. 816, 844 [53 L.Ed.2d 14, 35, 97 S.Ct. 2094].) Both high courts have recognized that such interests and rights may outweigh biological relationships under some circumstances. (Lehr v. Robertson, supra, 463 U.S. at p. 261 [77 L.Ed.2d at p. 626]; Quilloin v. Walcott, supra, 434 U.S. at p. 255 [54 L.Ed.2d at pp. 519-520]; Smith v. Organization of Foster Families, supra, 431 U.S. at pp. 843-844 [53 L.Ed.2d at pp. 34-35]; Adoption of Michael H., supra, 10 Cal.4th at pp. 1057-1058.)

Here, the biological parents have come before the court after having voluntarily relinquished their twin girls for adoption. The biological parents claim they are entitled to reestablish their relationship with the children, because their relinquishments of parental rights were not executed in accordance with ICWA. However, any claim which they may have under the statute does not necessarily establish a claim to that deference which parental rights are generally accorded under the Constitution. A biological parent’s constitutional rights, like other constitutional rights, may be waived, provided only that the waiver is knowingly and intelligently made (D.H. Overmyer Co. v. Frick Co. (1972) 405 U.S. 174, 185-186 [31 L.Ed.2d 124, 133-135, 92 S.Ct. 775]; Tyler v. Children's Home Society (1994) 29 Cal.App.4th 511, 545 [35 Cal.Rptr.2d 291]), and the counselling which is required by California law before a parent may relinquish a child for adoption has been held to be sufficient to assure that any waiver of parental rights is knowing and intelligent. (Tyler v. Children's Home Society, supra, 29 Cal.App.4th at pp. 546-547.)

Given the failure to comply with procedural requirements of ICWA, we cannot conclude that there has been a waiver of parental rights in this case. However, as we have observed, prior judicial decisions establish that, where a child has formed familial bonds with a de facto family with whom the child was placed owing to a biological parent’s unfitness (In re Jasmon O., supra, 8 Cal.4th at p. 418) or initial failure to establish a parent-child relationship (Lehr v. Roberston, supra, 463 U.S, at p. 261 [77 L.Ed.2d at p. 626]; Adoption of Michael H., supra, 10 Cal.4th at p. 1057), and where it is shown that the child would be harmed by any severance of those bonds, the child’s constitutionally protected interests outweigh those of the biological parents. (Lehr v. Robertson, supra, 463 U.S. at pp. 261-262 [77 L.Ed.2d at pp. 626-627]; Adoption of Michael H., supra, 10 Cal.4th at pp. 1057-1058; In re Jasmon O., supra, 8 Cal.4th at pp. 418-419.) The rule can logically be no different where children have become bonded to a family in which they were placed after a knowing, intelligent and express relinquishment of parental rights. Inasmuch as children have a liberty interest in the continuity and stability of their homes (In re Jasmon O., supra, 8 Cal.4th at p. 419; In re Marilyn H., supra, 5 Cal.4th at p. 306), where a child’s biological parents knowingly and intelligently relinquish the child to others for the express purpose of giving the child a loving and stable home, the biological parents’ voluntary act constitutes at the very least a voluntary subordination of their constitutional rights to those of the children. The biological parents thus must rely solely upon ICWA for any claim which they might have in this matter.

The interests of the Tribe in this dispute are likewise based solely upon ICWA. There neither is nor can be any claim that the Tribe’s interests are constitutionally protected. The R’s, as the prospective adoptive parents, similarly have no interests which have been found to enjoy constitutional protection. (Smith v. Organization of Foster Families, supra, 431 U.S. at pp. 838-847 [53 L.Ed.2d at pp. 31-37].)

However, the twins do have a presently existing fundamental and constitutionally protected interest in their relationship with the only family they have ever known. The children are thus the only parties before the court which have such interests. Therefore, if application of ICWA would interfere with those interests, such application must be subjected to a strict scrutiny standard to determine whether it serves a compelling government purpose and whether it is actually necessary and effective to the accomplishment of that purpose. If not, then ICWA, as so applied, would deprive the children of due process of law. (Moore v. East Cleveland, supra, 431 U.S. at p. 499 [52 L.Ed.2d at pp. 537-538]; Sherbert v. Verner, supra, 374 U.S. at p. 406 [10 L.Ed.2d at pp. 971-972]; Bates v. Little Rock, supra, 361 U.S. at p. 524 [4 L.Ed.2d at p. 486].)

The questions which we therefore must determine are (1) whether the tribal interests which ICWA protects are sufficiently compelling under substantive due process standards to justify the impact which ICWA’s requirements will have on the twins’ constitutionally protected familial rights, and, if so, (2) whether application of ICWA, under facts of the kind presented in this case, is necessary to further that interest.

We have no quarrel with the proposition that preserving American Indian culture is a legitimate, even compelling, governmental interest. At the same time, however, we agree with those courts which have held that this purpose will not be served by applying the provisions of ICWA which are at issue in this case to children whose biological parents do not have a significant social, cultural or political relationship with an Indian community. It is almost too obvious to require articulation that “the unique values of Indian culture” (25 U.S.C. § 1902) will not be preserved in the homes of parents who have become fully assimilated into non-Indian culture. This being so, it is questionable whether a rational basis, far less a compelling need, exists for applying the requirements of the Act where fully assimilated Indian parents seek to voluntarily relinquish children for adoption. The case for applying ICWA is even weaker where assimilated parents have previously concluded a reasoned and voluntary relinquishment of a child, which was valid and has become final under state law, and the child has become part of an adoptive or prospective adoptive family. In this circumstance, the invalidation of the relinquishment manifestly can serve no purpose which is sufficiently compelling to overcome the child’s fundamental right to remain in the home where he or she is loved and well cared for, with people to whom the child is daily becoming more attached by bonds of affection and among whom the child feels secure to learn and grow. ICWA cannot constitutionally be applied under such facts.

b. Equal Protection.

ICWA requires Indian children who cannot be cared for by their natural parents to be treated differently from non-Indian children in the same situation. As a result of this disparate treatment, the number and variety of adoptive homes that are potentially available to an Indian child are more limited than those available to non-Indian children, and an Indian child who has been placed in an adoptive or potential adoptive home has a greater risk than do non-Indian children of being taken from that home and placed with strangers. To the extent this disparate and sometimes disadvantageous treatment is based upon social, cultural or political relationships between Indian children and their tribes, it does not violate the equal protection requirements of the Fifth and Fourteenth Amendments. (United States v. Antelope (1977) 430 U.S. 641, 646 [51 L.Ed.2d 701, 707-708, 97 S.Ct. 1395]; Moe v. Salish & Kootenai Tribes (1976) 425 U.S. 463, 480-481 [48 L.Ed.2d 96, 110-111, 96 S.Ct. 1634]; Morton v. Mancari (1974) 417 U.S. 535, 554 [41 L.Ed.2d 290, 302-303, 94 S.Ct. 2474].) However, where such social, cultural or political relationships do not exist or are very attenuated, the only remaining basis for applying ICWA rather than state law in proceedings affecting an Indian child’s custody is the child’s genetic heritage—in other words, race.

Equal protection principles regard racial classifications of all kinds as “inherently suspect” (University of California Regents v. Bakke (1978) 438 U.S. 265, 289-290 [57 L.Ed.2d 750, 770-771, 98 S.Ct. 2733] (lead opn. of Powell, J.)), indeed, “odious to a free people.” (Hirabayashi v. United States (1943) 320 U.S. 81, 100 [87 L.Ed. 1774, 1785-1786, 63 S.Ct. 1375].) The United States Supreme Court has recently held that “all racial classifications, imposed by whatever federal, state, or local governmental actor, must be analyzed by a reviewing court under strict scrutiny. In other words, such classifications are constitutional only if they are narrowly tailored measures that further compelling governmental interests.” (Adarand Constructors, Inc. v. Pena (1995) 515 U.S. _ [132 L.Ed.2d 158, 182, 115 S.Ct. 2097] (hereafter Adaraná, lead opn. of O’Connor, J.); see also Miller v. Johnson (1995) 515 U.S. _, _ [132 L.Ed.2d 762, 771-772, 115 S.Ct. 2475, 2482].) The same principle applies whether the group targeted by a racial classification is burdened or benefited by the classification. (Adarand, supra, at p. _ [132 L.Ed.2d at p. 179].) The foregoing principles apply to federal legislation affecting Indian affairs. (Delaware Tribal Business Comm. v. Weeks (1974) 430 U.S. 73, 84 [51 L.Ed.2d 173, 183, 97 S.Ct. 911].)

The Tribe and the biological parents argue that ICWA does not create a race-based classification, because application of ICWA is triggered by the child’s membership in a tribe or eligibility for membership, and depends upon the child’s genetic heritage only if the child is merely eligible for tribal membership, in which case the child must be the biological child of a tribal member. This argument is superficially appealing. However, the Tribe and the parents also argue that, under ICWA guidelines, tribal determinations of their own membership should generally be deemed conclusive. If tribal determinations are indeed conclusive for purposes of applying ICWA, and if, as appears to be the case here, a particular tribe recognizes as members all persons who are biologically descended from historic tribal membérs, then children who are related by blood to such a tribe may be claimed by the tribe, and thus made subject to the provisions of ICWA, solely on the basis of their biological heritage. Only children who are racially Indians face this possibility.

For purposes of determining whether a particular application of ICWA creates a racially based classification, it makes no difference that not all tribes recognize as tribal members all blood descendants of tribal members. (See, e.g., Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 52-53 [56 L.Ed.2d 106, 111-112, 98 S.Ct. 1670] [tribe denied tribal membership to the children of female tribal members who married outside the tribe, but not to the children of similarly situated male tribal members].) As we have observed above, to the extent that tribal membership within the meáning of ICWA is based upon social, cultural or political tribal affiliations, it meets the requirements of equal protection. However, any application of ICWA which is triggered by an Indian child’s genetic heritage, without substantial social, cultural or political affiliations between the child’s family and a tribal community, is an application based solely, or at least predominantly, upon race and is subject to strict scrutiny under the equal protection clause. So scrutinized, and for the same reasons set forth in our discussion of the due process issue, it is clear that ICWA’s purpose is not served by an application of the Act to children who are of Indian descent, but whose parents have no significant relationship with an Indian community. If ICWA is applied to such children, such application deprives them of equal protection of the law.

c. The Indian Commerce Clause and the Tenth Amendment.

Congress’s authority to enact ICWA arises from clause 3 of section . 8 of article I of the Constitution, “The Congress shall have power ... to regulate Commerce . . . with the Indian tribes.’’ (25 U.S.C. § 1901(1); In re Wanomi P., supra, 216 Cal.App.3d at pp. 162-163.) This clause grants Congress plenary power over Indian affairs. (United States v. Wheeler (1978) 435 U.S. 313, 318 [55 L.Ed.2d 303, 309-310, 98 S.Ct. 1079]; Morton v. Mancari, supra, 417 U.S. at pp. 551-552 [41 L.Ed.2d at pp. 301-302]; Worcester v. State of Georgia (1831) 31 U.S. (6 Pet.) 515, 559 [8 L.Ed. 483, 500-501].) Indian tribes are deemed to be semisovereign nations under the protection of the federal government. Tribes retain attributes of sovereignty over both their members and their territories; such sovereignty is dependent on, and subordinate to, only the federal government, not the states. (California v. Cabazon Band of Mission Indians (1987) 480 U.S. 202, 207 [94 L.Ed.2d 244, 253-254, 107 S.Ct. 1083]; Washington v. Confederated Tribes (1980) 447 U.S. 134, 153-154 [65 L.Ed.2d 10, 28-30, 100 S.Ct. 2069].)

The principles of tribal self-government, grounded in notions of inherent sovereignty and in congressional policies, seek an accommodation between the interests of the tribes and the federal government on the one hand, and those of the states, on the other. (Washington v. Confederated Tribes, supra, 447 U.S. at pp. 156-157 [65 L.Ed.2d at pp. 30-32].) Thus, the United States Supreme Court has held nonreservation Indians are generally subject to nondiscriminatory and generally applicable state laws “[ajbsent express federal law to the contrary.” (Mescalero Apache Tribe v. Jones (1973) 411 U.S. 145, 148-149 [36 L.Ed.2d 114, 119, 93 S.Ct. 1267].) Even on Indian reservations, state laws generally may be applied insofar as they do not interfere with reservation self-government or essential internal tribal affairs, or impair a right reserved by federal law. (Id. at p. 148 [36 L.Ed.2d at p. 119].)

Jurisdiction over matters of family relations is traditionally reserved to the states. (Rose v. Rose (1987) 481 U.S. 619, 625 [95 L.Ed.2d 599, 607, 107 S.Ct. 2029]; Lehman v. Lycoming County Children's Services (1982) 458 U.S. 502, 511-512 [73 L.Ed.2d 928, 936-937, 102 S.Ct. 3231]; In re Burrus (1890) 136 U.S. 586, 593-594 [34 L.Ed. 500, 503, 10 S.Ct. 850].) Thus, where it is contended that a federal law must override state law on a matter relating to family relations, it must be shown that application of the state law in question would do “ ‘major damage’ to ‘clear and substantial federal interests.’ [Citations].” (Rose v. Rose, supra, 481 U.S. at p. 625 [95 L.Ed.2d at p. 607].)

Under these principles, ICWA should apply rather than state laws respecting family relations only where such application actually serves the specific purposes for which ICWA was enacted, “to promote the stability and security of Indian tribes and families” (25 U.S.C. § 1902), or the broader purposes which are served by all authorized exercises of congressional power under the Indian commerce clause, namely, the purposes of acting as a guardian to the Indian tribes, and in so doing, protecting Indian tribal self-government. (Morton v. Mancari, supra, 417 U.S. at pp. 553-554 [41 L.Ed.2d at pp. 302-303].)

The recent case of United States v. Lopez (1995) 514 U.S __ [131 L.Ed.2d 626, 115 S.Ct. 1624] is instructive, although that case concerned the powers of Congress under the interstate commerce clause, and the reach of the Indian commerce clause is not identical. In Lopez, the United States Supreme Court indicated that Congress’s power under the interstate commerce clause to legislate in areas otherwise reserved to the states will be confined to matters which substantially affect interstate commerce. (514 U.S. at p. __ [131 L.Ed.2d at pp. 637-638, 115 S.Ct. at p. 1630.) The reasoning of Lopez logically applies with respect to the Indian commerce clause, indeed, to any enumerated power of Congress. Congress exceeds its authority when, acting under any of its enumerated powers, Congress legislates in matters generally within the jurisdiction of the states, in the absence of an adequate nexus to the enumerated power under which the legislation is enacted. (Cf. 514 U.S. at p. __ [131 L.Ed.2d at pp. 638-643, 115 S.Ct. at pp. 1631-1634].)

No such nexus exists respecting application of ICWA to children whose families do not maintain significant relationships with an Indian tribe or community or with Indian culture. Once again, ICWA’s purpose simply is not furthered by an application of the Act to families who are of Indian descent, but who maintain no significant social, cultural or political relationships with Indian community life, and are in all respects indistinguishable from other residents of the state. Thus, if ICWA is applied to such children, that application impermissibly intrudes upon a power reserved to the states.

d. Conclusion.

We do not believe ICWA applies only to Indian children who are domiciled on reservations. Indeed, the Act’s express terms provide for application of most of its provisions to reservation-domiciled and nonreservation-domiciled Indians alike. (25 U.S.C. § 1911(b) & (c).) Only the provision for exclusive jurisdiction in the tribal court is restricted to reservation domicilaries. (§ 1911(a).) However, if the Act applies to children whose families have no significant relationship with Indian tribal culture, such application runs afoul of the Constitution in three ways: (1) it impermissibly intrudes upon a power ordinarily reserved to the states, (2) it improperly interferes with Indian children’s fundamental due process rights respecting family relationships; and (3) on the sole basis of race, it deprives them of equal opportunities to be adopted that are available to non-Indian children and exposes them, like the twin girls in this case, to having an existing non-Indian family tom apart through an after the fact assertion of tribal and Indian-parent rights under ICWA (which rights were, in this case, specifically and intentionally ignored by the biological parents now asserting them). All of this occurs in the absence of even a rational relationship to a permissible state purpose, much less a necessary connection with a compelling state purpose.

We conclude that principles of substantive due process, equal protection and federalism all carry the same implication regarding the proper scope of ICWA—it can properly apply only where it is necessary and actually effective to accomplish its stated, and plainly compelling, purpose of preserving Indian culture through the preservation of Indian families. We agree with those courts which have held that ICWA’s purpose is not served by an application of the Act where the child may be of Indian descent, but where neither the child nor either parent maintains any significant social, cultural or political relationships with Indian life.

4. The Trial Court Must Determine the Question of Whether There Was an “Existing Indian Family” Which Is the Factual Predicate to the Application of ICWA

The trial court in this case determined, as a matter of law, that the twins are Indian children, because they are enrolled members of the Tribe, are recognized by the Tribe as members and are the biological children of an enrolled and recognized tribal member. The trial court thus concluded that ICWA applies, and the biological parent’s relinquishment of the twins for adoption was invalid under section 1913 of the Act. However, more is required to justify an application of ICWA than a biological parents’ mere formal enrollment in a tribe, or a self-serving after-the-fact tribal recognition of such a parent’s membership. Such token attestations of cultural identity fall short of establishing the existence of those significant cultural traditions and affiliations which ICWA exists to preserve, and which are consequently necessary to invoke a constitutionally permissible application of the Act.

Because the trial court was persuaded that enrollment in the Tribe and tribal recognition of the twins’ tribal membership were enough to trigger the application of ICWA, the court had no occasion to make a further factual determination as to whether the biological parents maintain significant social, cultural or political relationships with the Tribe. The case must therefore be remanded so that such factual determination can be made.

The biological parents (and the Tribe), of course, will bear the burden of proof on this issue. It is they who seek to set aside the relinquishment of parental rights which were otherwise final and binding under California law. To do this they rely on the application of a federal statute. It is they who must prove that the necessary factual basis for the application of that statute is present. (Evid. Code, § 500.)

Moreover, that determination must focus upon the biological parents’ social, cultural and political relationship with the Tribe, although any re