(dissenting) — I respectfully dissent.
The majority opinion must be read in light of Congress's findings and declaration of policy in the Indian Child Welfare Act (ICWA). Among its findings, Congress stated:
(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children and that the United States has a direct interest, as trustee, in protecting Indian children who are members of or are eligible for membership in an Indian tribe;
(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.
25 U.S.C. § 1901.
Congress further declared that the policy of this Nation is
to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families[.]
25 U.S.C. § 1902.
The requirements of the ICWA have been integrated into Washington adoption law. See RCW 26.33. The State of Washington, as amicus curiae in this case, has aptly stated that federal and state policies on Indian child welfare protect not only those with strong Indian cultural identities, but also those, like Tammy Crews and her son, who may have lost their tribal ties due to past practices that inordinately separated Indian people from their tribal culture. Evidence presented at congressional hearings prior to the enactment of the ICWA showed that 25 to 35 percent of all Indian children had been separated from their families and *220placed in adoptive families, foster care, or institutions. Mississippi Band of Choctaw Indians v. Holy field, 490 U.S. 30, 104 L. Ed. 2d 29, 109 S. Ct. 1597, 1600 (1989) (citing Indian Child Welfare Program: Hearings Before the Subcomm. on Indian Affairs of the Senate Comm, on Interior and Insular Affairs, 93d Cong., 2d Sess. 15 (1974)). Amicus curiae the State of Washington goes on to state:
The promise of the ICWA and state Indian policies is that Indian people and their tribes will be given both the opportunity to maintain existing ties and to establish and nurture new relationships, thereby returning to the tribes a resource that Congress has deemed fundamental to their continued existence. 25 U.S.C. § 1901.
Brief of Amicus Curiae State, at 19.
The class of persons Congress intended to benefit under the ICWA includes not only children who are members of an Indian tribe, but also children who "are eligible for membership in an Indian tribe". (Italics mine.) 25 U.S.C. § 1901(3). The legislative history strongly reflects this concern:
This minor, perhaps infant, Indian [who is eligible for enrollment in a tribe] does not have the capacity to initiate the formal, mechanical procedure necessary to become enrolled in his tribe to take advantage of the very valuable cultural and property benefits flowing therefrom. Obviously, Congress has the power to act for their protection. The constitutional and plenary power of Congress over Indians and Indian tribes and affairs cannot be made to hinge upon the cranking into operation of a mechanical process established under tribal law, particularly with respect to Indian children who, because of their minority, cannot make a reasoned decision about their tribal and Indian identity.
H.R. Rep. No. 1386, 95th Cong., 2d Sess. 17 (1978), reprinted in 1978 U.S. Code Cong. & Ad. News 7530, 7539.
Congress declared that the "best interests" of Indian children are protected by the establishment of minimum federal standards for the removal of Indian children from their families. 25 U.S.C. § 1902. Those federal standards purposely inject uncertainty and lack of finality into the adoption of Indian children. For instance, the mother of an Indian child may revoke her consent to adoption for any *221reason at any time up to the final decree of adoption. 25 U.S.C. § 1913(c). On the other hand, under Washington law the mother of a non-Indian child may only revoke her consent to adoption within 48 hours after court approval and termination of her parental rights. RCW 26.33.160(2). The concept of "best interest" when it comes to an Indian child embraces not only the usual concerns of finality in the placement of children and stability in family relationships, but also the preservation and promotion of tribal ties. See 25 U.S.C. § 1902. As the majority here acknowledges, this is "the primary policy consideration when dealing with an Indian child". Majority, at 210.
Further evidence of the uncertainty purposely injected into Indian child adoptions is that a consent to adoption obtained through fraud or duress may be withdrawn until 2 years after the final decree of adoption, whereas in the case of a non-Indian child such consent may only be withdrawn within 1 year. 25 U.S.C. § 1913(d); RCW 26.33.160(3). Furthermore, the termination of parental rights underlying an Indian child adoption may be collaterally attacked even after the adoption decree is final, upon a showing that one of the procedural safeguards of the ICWA was not complied with. See 25 U.S.C. § 1914; In re Adoption of T.N.F., 781 P.2d 973, 978 (Alaska 1989), cert. denied sub nom. Jasso v. Finney, _U.S. _, 108 L. Ed. 2d 616, 110 S. Ct. 1480 (1990).
It is against this background of the purposes and intent of the ICWA that the majority opinion must be read. The majority holds:
The overriding concern of providing finality and stability in the adopted child's life dictates the result that his or her status as an Indian child or a non-Indian child must be determined with reference to the time of the court approval of the petition for relinquishment and the entry of the order terminating parental rights.
Majority opinion, at 212.
Instead of providing for greater stability in the lives of adopted Indian children, however, the majority opinion condones adoption practices which create instability and *222which flaunt the laws and regulations designed to protect the integrity of Indian communities. This case is a clear example of the disruption that can be caused by condoning such adoption practices.
It is not disputed by either Mary Struck, counselor for Hope Services, or by Charles Bertiaux, the natural father, who opposes Crews' action to seek return of her child, that Tammy Crews told Struck she did have Indian blood, but did not know how much. This statement should have raised an alarm for the adoption agency counselor. Instead, because Crews lacked knowledge of her tribal affiliation, Struck ended all inquiry and concluded, "it was clear to me that the [ICWA] did not apply".4
Struck lacked the necessary information and authority to make this determination. Given the information that Crews provided, Struck's duty was to investigate Crews' tribal affiliation and then request a determination of B.'s Indian status from his tribe or tribes. WAC 388-73-044(7) requires that an adoption agency compile a "family ancestry chart" when planning the adoptive placement of a nonenrolled Indian child. "Indian" for purposes of this regulation is defined to include persons who are not enrolled but are "eligible for enrollment in a recognized tribe." WAC 388-73-044(2). There is no dispute that B. at all times met this definition; therefore, Hope Services was obligated to compile a family ancestry chart.
Hope Services' inquiry would have had to go no further than Tammy Crews' own parents, both alive and residing at a known address in Seattle, to discover that her tribal heritage lay with the Umatilla and Choctaw tribes. Tammy's father shortly thereafter supplied information showing that *223he and Tammy were lineal descendants of Fannie Wolf, an original enrollee of the Choctaw Nation of Oklahoma.5
Hope Services' next obligation was to consult with the Local Indian Child Welfare Advisory Committee (LIC WAC) on case planning, development and service delivery, former WAC 388-73-044(11)(a), and to contact B.'s tribe or tribes and take appropriate steps to enroll him. WAC 388-73-044(7). The majority interprets the duty to take steps to enroll the child as not becoming operative until after parental rights have been terminated. On the contrary, the regulation imposes this duty in the planning stages, before an adoptive placement is made: "When . . . adoptive placement of a non-enrolled Indian child is planned, . . (Italics mine.) Placement with the prospective adoptive family typically occurs at the time parental rights are terminated, based on a temporary custody order. See RCW 26.33.090(1). The required investigation of Indian status and steps toward tribal enrollment must occur before pre-adoptive placement because, if the child's Indian status is confirmed, then certain preferences as to preadoptive placement must be observed.6
The majority states that an agency's enrollment of a child as a member of an Indian tribe prior to the termination of the biological parents' parental rights would invade *224the parents' due process rights to raise their children as they see fit. However, WAC 388-73-044(7) only requires that the agency "take appropriate steps to enroll eligible children" (italics mine); it does not require that enrollment be completed in every case. When the biological parents who still have legal custody of the child oppose enrollment, failure to complete the enrollment process may be justified. However, this question is not before us because Hope Services took no steps to enroll the child and the wishes of the biological parents in this regard were never ascertained. Moreover, initiating the process of enrollment would provide at least some, although not legally sufficient, notice to the appropriate tribe or tribes.
The majority also states that even if an investigation by Hope Services had yielded information that B. was eligible for enrollment in the Choctaw tribe, it would be speculative to conclude that Crews would have enrolled herself before her parental rights were terminated 2 days after B.'s birth.
The majority's reasoning is flawed. Had Hope Services complied with its obligations to investigate and taken steps to enroll B., then the order terminating Crews' parental rights would not have been entered when it was, on May 24, 1989. In order to comply with the ICWA and RCW 26.33, which require special treatment of Indian children in adoption proceedings, Hope Services would have been required to await confirmation of B.'s Indian status vel non from the tribe or the Bureau of Indian Affairs (BIA) before processing his adoption as a non-Indian one. If B. was found already to be a member, or was enrolled pursuant to WAC 388-73-044(7), then he would have been an "Indian child" under the ICWA regardless of whether his mother was a member. 25 U.S.C. § 1903(4). Pending an answer from the tribe, Hope Services could have processed the adoption by following two simple steps to ensure legal validity if B. were discovered to be an Indian child. Hope Services could have waited 10 days after B.'s birth before obtaining his parents' signed consents to adoption, and then brought them to appear personally in court to enter their consents on the *225record. RCW 26.33.090(1), (3). In addition, Hope Services should have observed the preferences for preadoptive placement set forth in 25 U.S.C. § 1915(b), quoted in footnote 6.
It is undisputed that at least by May 30, 1989, Crews had notified Hope Services that she wanted her baby back. This occurred 8 days after B.'s birth — less than the 10 days Hope Services should have waited before obtaining her signed consent. Thus, Crews' parental rights would not have been terminated by May 24, 1989, if Hope Services had complied with the administrative regulation, because Crews would have used the extra time accorded to parents of Indian children within which to change her mind. The preadoptive placement of B. and the subsequent struggle for his custody would never have occurred.
The trial court also had a duty of inquiry with regard to B. that it failed to perform. The BIA "Guidelines for State Courts: Indian Child Custody Proceedings", 44 Fed. Reg. 67,584-95 (1979) set forth circumstances that trigger an inquiry by the court regarding a child's Indian status under the ICWA. BIA guideline B.l provides, in pertinent part:
(a) When a state court has reason to believe a child involved in a child custody proceeding is an Indian, the court shall seek verification of the child's status from either the Bureau of Indian Affairs or the child's tribe.
(c) Circumstances under which a state court has reason to believe a child involved in a child custody proceeding is an Indian include but are not limited to the following:
(ii) Any public or state-licensed agency involved in child protection services or family support has discovered information which suggests that the child is an Indian child.
44 Fed. Reg. at 67,586.7 Thus, the court is charged with knowledge of a child's possible Indian status and must seek *226verification of that status from the child's tribe or the BIA if the adoption agency has discovered information which "suggests" that the child is an Indian child. "Suggests" is a very mild standard. Despite the majority's holding to the contrary, surely a mother's statement that she has Indian blood, but does not know how much, is a suggestion that her child might be Indian.
The majority holds that the BIA guidelines apply only to involuntary terminations of parental rights, not to voluntary terminations as in the present case. The guidelines themselves state to the contrary. Guideline B.l(a), quoted above in part, goes on to state:
In a voluntary placement proceeding where a consenting parent evidences a desire for anonymity, the court shall make its inquiry in a manner that will not cause the parent's identity to become publicly known.
(Italics mine.) 44 Fed. Reg. at 67,586. The commentary to that guideline also discusses voluntary proceedings extensively. That the court should have a duty of inquiry in voluntary as well as involuntary termination proceedings is appropriate, since the ICWA is equally applicable to both proceedings.
The majority states that Crews' statements to Struck "gave her no positive leads", majority opinion, at 214, and therefore no duty of inquiry arose on the part of Hope Services or the court. This holding condones Hope Services' violation of WAC 388-73-044(7) and the court's failure to follow the BIA guidelines. The state administrative regulation and the BIA guidelines are both designed to address the problem that Indian child status under the ICWA often cannot immediately be determined. They reflect the unfortunate reality that, due to abusive child removal and .adoption practices in the past, Indians are often ignorant of their family histories and tribal affiliations. See Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 104 L. Ed. 2d 29, 109 S. Ct. 1597, 1600, 1609 n.24 (1989).
*227For this reason, adoption agencies and courts are required to investigate the status of possible Indian children. Their failure to investigate, and the processing of these cases as non-Indian adoptions, only invites later challenges such as this one, which cause great disruption to the lives of the adoptive family as well as the natural family. The policies of finality in adoptions and stability in family relationships, cited by the majority, are better served by complying with Indian child welfare regulations than by ignoring them. As the Vermont Supreme Court recently stated:
To maintain stability in placements of children in juvenile proceedings, it is preferable to err on the side of giving notice and examining thoroughly whether the juvenile is an Indian child.
In re M.C.P., 153 Vt. 275, 289, 571 A.2d 627 (1989) (citing Hollinger, Beyond the Best Interests of the Tribe: The Indian Child Welfare Act and the Adoption of Indian Children, 66 U. Det. L. Rev. 451, 476-77 (1989)).
The majority concludes with the trial court that prior to September 19, 1989, B. was not an "Indian child" under the ICWA. This determination is not for the court to make. Rather, the tribe should have been notified of the proceedings,8 and if it chose to intervene, it would have had complete authority to determine whether the child was a member of the tribe. See In re Colnar, 52 Wn. App. 37, 39, 757 P.2d 534, review denied, 111 Wn.2d 1023 (1988); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 72 n.32, 56 L. Ed. 2d 106, 98 S. Ct. 1670, 1684 (1978).
*228B.'s tribe, the Choctaw Nation of Oklahoma, states that B. has been a member of the tribe since birth. The majority quotes the Chocktaw definition of membership, which amicus Choctaw Nation states comes from its highest law, the Constitution of the Choctaw Nation. The definition provides that the Nation shall consist of all Choctaw Indians whose names appear on the Nation's final rolls, and their lineal descendants. Majority, at 209. Tammy Crews and B. are lineal descendants of Fannie Wolf, whose name appears on the final rolls of the Choctaw Nation. Therefore, the tribe determines that Tammy and B. have been members since birth.
The tribe states that no formal enrollment process is required for membership. A Certificate of Degree of Indian Blood issued by the tribe is evidence of membership, not to be confused with membership itself. The BIA guidelines on determining Indian child status acknowledge that in some tribes, this is the case:
Enrollment is not always required in order to be a member of a tribe. Some tribes do not have written rolls. Others have rolls that list only persons that were members as of a certain date. Enrollment is the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative. United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir. 1979)[, cert. denied, 444 U.S. 859 (1979)].
BIA guideline B.l commentary, 44 Fed. Reg. 67,586 (1979).
The majority dismisses the possibility that membership can occur without formal enrollment, despite the BIA's clear statement that it can in some tribes. The majority states that this notion "would be a departure from the language contained in 25 U.S.C. § 1903, which distinguishes between a child who is a member, and a child who is eligible for membership." Majority opinion, at 210. On the contrary, the distinction in the federal statute is meaningful for those tribes that do require formal enrollment for membership, but it is inapplicable to the Choctaw tribe. The authority to determine what constitutes tribal membership lies completely with the tribe; neither the trial *229court nor this court has any authority to substitute its interpretation of membership for that of the tribe.
The majority cites the affidavit of Brenda Hampton, Director of Tribal Membership of the Choctaw Nation, which suggests a distinction between eligibility for membership and admission to membership based on processing the necessary paperwork. Majority opinion, at 210. Ms. Hampton's affidavit does not have the status of the highest law of the Choctaw Nation, its Constitution, which provides for membership based on being a lineal descendant of an original enrollee, not on enrollment by such lineal descendants. In any event, it was for the tribe to determine B.'s membership status upon receiving notice of relinquishment proceedings concerning B. The trial court's failure to require such notice, in violation of RCW 26.33.090(2), does not mean that an appellate court should now make the membership determination. Rather, the proper procedure would be to remand to the trial court with orders to give notice to the tribe. The tribe could then clarify its own position regarding B.'s membership status. This procedure was followed in In re Colnar, 52 Wn. App. at 41, In re M.C.P., 571 A.2d at 634, 642, In re H.D., 11 Kan. App. 2d 531, 729 P.2d 1234, 1239-41 (1986), and In re Junious M., 144 Cal. App. 3d 786,193 Cal. Rptr. 40, 47 (1983). However, since B. is now indisputably an "Indian child" under the ICWA, such a remand is unnecessary.
In summary, if Hope Services and the trial court had complied with their duties of investigation and had notified the tribe as required, the ICWA would have been recognized as applicable ab initio and this difficult chapter in B.'s life avoided. Instead, the majority condones the agency's and the court's ignoring of regulations designed to address the very problem presented here — that Indian status often cannot immediately be determined due to the lack of knowledge of many Indians about their family histories.
The majority compounds its error by imposing a deadline for determining a child's Indian status that is not found in *230the ICWA. The definition of "Indian child" in the ICWA states that the child must be either (a) a member of a tribe, or (b) eligible for membership and the biological child of a member. 25 U.S.C. § 1903(4). This definition does not go on to state, ". . . as of the date on which parental rights are terminated." Neither has any judicial decision cited by the majority created such a time cutoff.
The majority's holding in this regard violates three principles of construction of the ICWA recognized in cases interpreting that act. First, it creates an unwarranted judicial exception to the ICWA's coverage. As the court stated in In re Adoption of T.N.F., 781 P.2d 973, 977-78 (Alaska 1989), cert. denied sub nom. Jasso v. Finney,_U.S._, 108 L. Ed. 2d 616, 110 S. Ct. 1480 (1990):
State courts must be particularly hesitant in creating judicial exceptions to a federal act which was enacted to counter state courts' prejudicial treatment of Indian children and communities.
Second, the ICWA is a remedial statute designed to protect the rights of Indian people. It should be liberally construed, and any doubtful expressions must be resolved in favor of the rights the act was designed to protect. See Wilson v. Omaha Indian Tribe, 442 U.S. 653, 666, 61 L. Ed. 2d 153, 99 S. Ct. 2529, 2537 (1979); Bryan v. Itasca Cy., Minn., 426 U.S. 373, 392, 48 L. Ed. 2d 710, 96 S. Ct. 2102, 2112 (1976). The majority's interpretation of "Indian child" resolves a supposed ambiguity in the act against Indian rights by cutting off those rights at an artificially imposed early date.
Finally, the majority's interpretation violates the purpose of the ICWA, discussed above, to protect even those Indian children who have lost their roots and may not be tribal members, but are eligible for membership. See 25 U.S.C. § 1901(3), (4)- "The ICWA constitutes a scheme enacted by *231Congress to ensure that Indian tribal members are protected, regardless of the lack of present tribal contacts." In re Armell, _Ill. App. 3d_, 550 N.E.2d 1060, 1068, appeal denied,_Ill. 2d_, 555 N.E.2d 374, cert. denied, 111 S. Ct. 345 (1990). It is a violation of this congressional purpose to cut off the tribe's and the child's rights under the ICWA 2 days after the child's birth because of a lack of present tribal contacts.9
The majority imposes its cutoff for applicability of the act at the time parental rights are terminated in the name of providing finality and stability in the life of the adopted child. Majority opinion, at 212. However, the ICWA and Washington law permit the parents of an Indian child to withdraw their consent to adoption not merely until their parental rights are terminated, but until entry of the final decree of adoption.10 While the majority may believe it desirable to achieve finality in adoptive placements at an earlier point, Congress has reached a different conclusion which this court is bound to follow.
*232I respectfully dissent. I would reverse the granting of summary judgment for respondents and grant summary judgment for appellant.
Review granted at 116 Wn.2d 1023 (1991).
If Crews' version of the conversation is credited, then it seems that she and Struck conspired to avoid application of the ICWA because of the undesirable result of delaying the adoption pending investigation of Crews' tribal affiliation. The United States Supreme Court has made it clear that, because of the tribe's overriding interest in promoting ties with its members, the parent of an Indian child cannot by her actions avoid applicability of the act. See Mississippi Band of Choctaw Indians, 109 S. Ct. at 1608-10.
The fact that Crews mentioned Indian blood on her mother's side and not her father's side does not mean that compliance with the regulation would have been futile. The regulation requires compilation of a "family ancestry chart". It is not restricted to that branch of the family thought to he Indian. Further, it is undisputed that Crews' father knew of his Indian ancestry.
The ICWA, 25 U.S.C. § 1915(b), provides in pertinent part: "In any foster care or preadoptive placement, a preference shall be given, in the absence of good cause to the contrary, to a placement with—
" (i) a member of the Indian child's extended family;
" (ii) a foster home licensed, approved, or specified by the Indian child's tribe;
" (iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
" (iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs."
While the BIA guidelines are nonbinding, they were followed by Division Two of this court in In re Colnar, 52 Wn. App. 37, 39-40, 757 P.2d 534, review denied, 111 Wn.2d 1023 (1988), and have been similarly followed by other courts. See, e.g., Mississippi Band of Choctaw Indians, 109 S. Ct. at 1609 n.26; In re M.C.P., 153 Vt. 275, 286, 571 A.2d 627, 633 (1989); In re N.A.H., 418 N.W.2d 310, *226311 (S.D. 1988); In re H.D., 11 Kan. App. 2d 531, 729 P.2d 1234, 1236-38 (1986); In re Junious M., 144 Cal. App. 3d 786, 193 Cal. Rptr. 40, 43 n.7 (1983).
While federal law mandates notice to the tribe only in involuntary termination proceedings, 25 U.S.C. § 1912(a), Washington law mandates notice to the tribe in voluntary relinquishment proceedings as well. RCW 26.33.090, the statute on voluntary relinquishment proceedings, provides, in pertinent part:
(2) Notice of the hearing shall be served on any relinquishing parent or alleged father, and the department or agency in the manner prescribed by RCW 26.33.310. If the child is an Indian child, notice of the hearing shall also be served on the child's tribe in the manner prescribed by RCW 26.33-.310.
(Italics mine.)
The majority opinion fails to deal with the important question whether to apply the ICWA when the child actually is an "Indian child" at the date of the termination order, but such information was unknown at the time. This was the situation of B., according to amicus curiae the Choctaw Nation, which states that B. has been a member since birth. Furthermore, amicus curiae State of Washington stated at oral argument that this situation often arises when an absent father is an Indian, but the non-Indian mother has little or no information about his Indian status.
25 U.S.C. § 1913(c) provides:
"In any voluntary proceeding for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry óf a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent."
Likewise, RCW 26.33.160(4) (g) provides, in pertinent part:
"In the case of a consent to an adoption of an Indian child,. . . [cjonsent may be withdrawn for any reason at any time prior to the entry of the final decree of adoption."