dissenting.
The majority holds that a member of an Indian child’s extended family, such as petitioner, who becomes the foster parent of such a child through the operation of state law, does not qualify under the Indian Child Welfare Act of 1978, 25 USC §§ 1901-1963, as an “Indian custodian” so as to be entitled to the procedural protections provided by the ICWA for “Indian custodians” in cases in which the *555placement of an Indian child is at issue.1 “Indian custodian” is defined by 25 USC § 1903(6) as follows:
“ ‘Indian custodian’ means any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child; * * *.” (Emphasis added)
The majority concludes that Congress intended to use the phrase “legal custody” in its “legal sense”; therefore, the majority reasons, because CSD had legal custody of the child, petitioner could not have had such custody and, therefore, could not qualify as an “Indian custodian.” Because I do not believe that such a conclusion is compelled by the language of the ICWA and because, in my opinion, such a conclusion leads to results which are contrary to the stated purposes of the ICWA, I respectfully dissent.
The Indian Child Welfare Act of 1978 was enacted based upon certain findings by Congress. Among those are the following:
it* * :}c * *
“(3) that there is no resource that is more vital to the continued existence and integrity of Indian tribes than *556their 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 USC § 1901(3), (4), (5). (Emphasis added)
Furthermore, the ICWA contains the following declaration:
“* * * it is the policy of this Nation 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 and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, and by providing for assistance to Indian tribes in the operation of child and family service programs.” 25 USC § 1902. (Emphasis added)
Petitioner contends that Congress intended the term “legal custody” to be interpreted in a manner consistent with the stated purposes of the ICWA and that, consequently, a proper interpretation of the term includes any Indian who has actual lawful custody of an Indian child, however determined.2 Petitioner further contends that the federal standards established by the ICWA preempt state laws defining “legal custody.” In support of her construction of the term “legal custody,” petitioner sets out five *557“rules of judicial construction” which, she asserts, apply here. Of these, the principle that “statutes passed for the benefit of Indians are to be construed in favor of Indians,” citing Bryan v. Itasca County, 426 US 373, 392, 96 S Ct 2102, 48 LEd 2d 710 (1976), seems particularly appropriate in this case because the remedial character of the ICWA is not in dispute.3
The state contends that the ICWA requires an “Indian custodian” (other than one who obtained physical control from the parent) to have “legal custody” and that in this case “legal custody” was in CSD.4 In response to the preemption argument, the state asserts that because the federal statute refers to state law for a definition of “legal custody” and there is no federal definition of “legal custody,” there is no conflict to be resolved by resort to preemption.
*558The Court of Appeals agreed with the state, holding that:
“Petitioner’s argument that Congress intended a broad class of ‘Indian custodians’ and did not intend to refer only to persons who have legal custody as defined by state law reaches too far. Congress expressly provided that an ‘Indian custodian’ may be an Indian person to whom a parent temporarily transfers the care or physical custody of the child, thereby recognizing transfers to extended family members. While an informal transfer of care or physical custody gives rise to the procedural rights provided in the ICWA, where there is a formal, statutory foster placement, as here, involving CSD as legal custodian, a foster parent, not having legal custody, is not, by the terms of the statute, afforded the procedural safeguards of the ICWA.” 52 Or App at 850-51. (Emphasis added)
The majority opinion, although purporting to analyze the language of the ICWA in order to find Congressional intent in using the term “legal custody,” in essence, follows the same path as used by the Court of Appeals in reaching the result here. The majority states that:
“The literal language of this section [25 USC § 1903(6)] indicates a clear intent that ‘legal custody’ be used in its legal sense, i.e., as defined by state law or by tribal custom or law.” 292 Or at 550. (Emphasis added)
The premise of the argument becomes its conclusion. The question here is whether “legal custody” was intended in its “legal sense.” The majority answers the question by concluding, in effect, that the question does not exist. I am not convinced by the majority’s reasoning that Congress intended the term “legal custody” to be limited to mean the result of a state determination of status rather than a functional custody lawfully achieved through the operation of tribal or state legal processes. The ICWA on its face does not disclose an unequivocal choice for either position.
The definition of “legal custody” adopted by the majority means that in the future where, as here, CSD has “legal custody” of an Indian child and foster placement results in that child’s living with members of her extended family, those family members will not qualify as “Indian custodians.” This situation, given the remedial character of the statute, is indeed ironic; i.e., although the policy of the *559ICWA is served by allowing “Indian custodians” to intervene in child placement proceedings to insure placement in “foster * * * homes which will reflect the unique values of Indian culture * * 25 USC § 1902, the Indian member of the child’s extended family who becomes custodian because of such placement5 will not be able to intervene in any future decision to transfer placement, even though that proposed placement would be inconsistent with the express policy of the ICWA.6 Petitioner’s interpretation of the term “legal custody” is more consistent with the elimination of evils Congress sought to remedy, because both Congressional findings and petitioner’s interpretation focus on the conditions of actual custody rather than the abstract legal status of the Indian child.
*560It is possible that Congress did not intend for a person in the position of petitioner in this case to qualify as an “Indian custodian”; however, I am not convinced by the majority opinion that this is so. Because of the consequences of any decision in this matter, it is my opinion that this court should be more certain of its conclusions. As petitioner points out:
“The Indian Child Welfare Act is the result of a ten year Congressional investigation which found proof of serious problems in the handling of Indian child custody matters by non-Indian state and public agencies. The research disclosed that 25-35% of all Indian children are separated from their families and placed in foster or adoptive homes or institutions, and that 85% of all Indian children in foster care were living in non-Indian homes. House Report, supra, at 9. The evidence showed that in Oregon that 8.2 times as many Indian children as non-Indian children were in foster care relative to their percentage of the population; in Multnomah County the figure was 6.3 times as many. AMERICAN INDIAN POLICY REVIEW COMM’N, TASK FORCE FOUR: FEDERAL, STATE, AND TRIBAL JURISDICTION 224-30, 94th Cong., 1st Sess. (1976).”
“Since approximately 95% of all foster care placements in Oregon are made with the state retaining ‘legal custody’ of the child, exclusion of foster parents from coverage under the ICWA will exclude Indian extended family members who become foster parents from the protections of the Act. DEPT. OF HEALTH, EDUC. & WELF., OFFICE OF CIVIL RIGHTS, THE 1980 CHILDREN AND YOUTH REFERRAL SURVEY: PUBLIC WELFARE AND SOCIAL SERVICES (1980).”7 (Emphasis added)
*561With these considerations in mind and because the majority opinion adopts a definition of “legal custody” which reaches a result inconsistent with the remedial purposes of the Indian Child Welfare Act, I respectfully dissent.
25 USC § 1912(a) and (b) provide as follows:
“(a) In any involuntary proceeding in a State court, where the court knows or has reason to know that an Indian child is involved, the party seeking the foster care placement of, or termination of parental rights to, an Indian child shall notify the parent or Indian custodian and the Indian child’s tribe, by registered mail with return receipt requested, of the pending proceedings and of their right of intervention. If the identity or location of the parent or Indian custodian and the tribe cannot be determined, such notice shall be given to the Secretary in like manner, who shall have fifteen days after receipt to provide the requisite notice to the parent or Indian custodian and the tribe. No foster care placement or termination of parental rights proceeding shall be held until at least ten days after receipt of notice by the parent or Indian custodian and the tribe or the Secretary: Provided, That the parent or Indian custodian or the tribe shall, upon request, be granted up to twenty additional days to prepare for such proceeding.
“(b) In any case in which the court determines indigency, the parent or Indian custodian shall have the right to court-appointed counsel in any removal, placement, or termination proceeding. The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the child. Where State law makes no provision for appointment of counsel in such proceedings, the court shall promptly notify the Secretary upon appointment of counsel, and the Secretary, upon certification of the presiding judge, shall pay reasonable fees and expenses out of funds which may be appropriated pursuant to section 13 of this title.” (Emphasis added)
Although there are facts below which would support petitioner’s claim to “Indian custodian” status under the second part of 25 USC § 1903(6), “* * * [one] to whom temporary physical care, custody, and control has been transferred by the parent of such child,” petitioner’s argument on appeal is focused upon her being in “legal custody” of the child.
Petitioner further contends that because of the Congressional intent to promote the stability of Indian families, Congress did not intend to limit the class of “Indian custodians” only to those satisfying the state definition of “legal custody.” She points to a portion of the House committee report which refers to 25 USC § 1903(6), the definition of “Indian custodian”:
“ ‘Paragraph (6) defines “Indian custodian.” Where the custody of an Indian child is lodged with someone other than the parents under formal custom or law of the tribe or under State law, no problem arises. But, because of the extended family concept in the Indian community, parents often transfer physical custody of the Indian child to such extended family member on an informal basis, often for extended periods of time and at great distances from the parents. While such a custodian may not have rights under State law, they do have rights under Indian custom which this bill seeks to protect, including the right to protect the parental interests of the parents.’ ” H.R. Rep. No. 1386, 95th Cong., 2d Sess. 20 (1978), reprinted in 1978, U.S. Code Cong. & Ad. News 7530, 7543. (Emphasis added)
In its Response to the Petition for Review, the state argues that:
“An examination of the other portions of 25 USCA § 1903 shows that Congress understood the distinction between legal custody and other custodial or caretaking, relationships, and that it used the term ‘legal custody’ in its technical sense.”
and that because:
“Both the original bill and the final Act distinguished between ‘legal custody’ and mere ‘custody’ or ‘temporary physical care, custody, and control.’ Under fundamental principles of statutory construction this Court must presume that Congress had a purpose in mind for all of the language it used. * * * The most logical interpretation of the statute is that, in using the term ‘legal custody,’ Congress intended to denote a particular legal relationship not sufficiently defined by the term ‘custody.’” (Emphasis added)
25 USC § 1915(b) provides as follows:
“Any child accepted for foster care or preadoptive placement shall be placed in the least restrictive setting which most approximates a family and in which his special needs, if any, may be met. The child shall also be placed within reasonable proximity to his or her home, taking into account any special needs of the child. 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.”
Whether foster parents generally have procedural rights under Oregon law, as discussed by the majority is not determinative of the question whether this petitioner has such rights under federal law. As stated in the following passage from the legislative history of the ICWA:
“In Dice v. Akron, C.Y.Y. R.R. Co., 342 U.S. 359 (1952), the Court held:
“ ‘Congress * * * granted petitioner a right * * *. State laws are not controlling in determining what the incidents of this Federal right shall be.’
“Chief Justice Holmes, in Davis v. Wechsler, 263 U.S. 22 (1923), put it succinctly:
“ ‘Whatever springes the State may set for those who are endeavoring to assert rights that the State confers, the assertion of Federal rights, when plainly and reasonably made, is not to be defeated under the name of local practice.’
*560“We will quote merely two other cases to support the proposition that Congress may, constitutionally, impose certain procedural burdens upon State courts in order to protect the substantive rights of Indian children, Indian parents, and Indian tribes in State court proceedings for child custody [citing American Railway Express Co. v. Levee, 263 US 19, 44 S Ct 11, 68 LEd 140 (1923), and Second Employer’s Liability Cases, 223 US 1, 32 S Ct 169, 56 LEd 327 (1912)].” H.R. Rep. No. 1386, 95th Cong., 2d Sess. 18 (1978), reprinted in 1978 U.S. Code Cong. & Ad. News, 7530, 7540-41.
Upholding petitioner’s claim to “Indian custodian” status would not bar CSD from making foster care placements, but would have the effect of allowing those in petitioner’s position certain procedural protections when such placements are made. Such a result would be consistent with the requirements of 25 USC § 1915(b)(i), cited in note 5, supra.