(concurring) — I agree with the majority opinion that the Court of Appeals decision is correct and should be affirmed. I disagree, however, with the majority's conclusion that the Indian Child Welfare Act of 1978 (the Act) applies only in those cases in which a state court determines that the cultural awareness, tribal affiliation, or lifestyle of the birth family meets some judicially fashioned level of "Ihdian-ness".
*575I read the Act as applying in all relinquishment cases in which an "Indian child" (as defined by the Act) is involved, regardless of the child's previous exposure to tribal culture and traditions. This is because the Act itself clearly and explicitly defines "Indian child" as a minor who
is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe[.]
(Italics mine.) 25 U.S.C. § 1903(4).
If Infant B, with whom this case is concerned, had met this definition of the Act at the time the relinquishment order was entered, then to my view the court should have had no option but to apply the provisions of the Act. However, at that time, Infant B was not an "Indian child" as defined by the Act.
The Act does not apply to children who are merely of Indian descent or who have some Indian heritage. Rather, it is the child's membership in or relationship with a tribe — a political entity whose sovereignty is recognized by our federal government — that triggers application of the Act.
If Infant B was a member of the Choctaw Nation of Oklahoma at the time of the relinquishment hearing, or if he was eligible for membership and if his birth mother was a member of the tribe at the time of the relinquishment, then he was an "Indian child" and the Act should have been applied. I agree with the trial court and the Court of Appeals, that the child involved in this case was not an "Indian child" at the time of the relinquishment and, therefore, the Indian child welfare provisions of the Act and the state adoption statute did not apply to this proceeding.
The Choctaw Constitution states:
The Choctaw Nation of Oklahoma shall consist of all Choctaw Indians by blood whose names appear on the final rolls of the Choctaw Nation approved pursuant to Section 2 of the Act of April 26, 1906 (34 Stat. 136) and their lineal descendants.
At the trial court level the tribe, apparently interpreting this constitutional section, provided evidence that although Infant B was not a member of the tribe, he was eligible for *576membership at the time of the relinquishment hearing. "Eligibility" alone is simply not sufficient to meet the definition of "Indian child"; the child must be both eligible for membership and the biological child of a member of the tribe. Although the tribe's counsel argues on appeal that the Choctaw constitutional section quoted above means that the child was a member of the tribe since birth, that position is inconsistent with the interpretation given the provision by the tribe itself. For example, the Director of the Tribal Membership Department, who is responsible for overseeing and managing the membership rolls and who has custody of the membership rolls of the Choctaw Nation, stated in an affidavit presented to the trial court that the birth mother, Tammy Crews, was
admitted to tribal membership based upon her proof of direct blood lineage from an original enrollee of the Choctaw Nation. Her child [Infant B] will be admitted to membership upon the processing of necessary paperwork.
(Italics mine.) Clerk's Papers, at 16-17. The affidavit goes on to state that both Tammy Crews and Infant B were "eligible for membership in the Choctaw Nation" since birth. Clerk's Papers, at 17. A letter from the Choctaw Nation Child Welfare Program Director states that Infant B was "eligible for enrollment." Clerk's Papers, at 74. Another letter states that on September 19, 1989, the tribe issued a Certificate of Degree of Indian Blood card, showing that Tammy Crews is a member of the Choctaw Tribe. Ms. Crews has argued that she became a member of the tribe on September 19, 1989. It was on that date that Infant B was both eligible for membership and the biological child of a tribal member. Thus it was not until September 19, 1989, nearly 4 months after the legal relationship between Ms. Crews and the child came to an end, that Infant B for the first time met the statutory definition of "Indian child".
I would further hold that public policy requires the determination as to whether the Act applies to the relinquishment and adoption of a particular child to be made before or at the time the relinquishment order is entered. The *577mother's change of status after her parental rights are terminated should have no effect on the infant whom she had previously relinquished voluntarily. Thus I would also add to the majority opinion by holding that the revocation provision set forth in RCW 26.33.160(4)(g)1 (allowing the consent to adoption of an Indian child to be revoked at any time before the final decree of adoption) applies only in those cases where the child is an "Indian child" at the time the consent to adoption is approved.
It is for these reasons that I concur separately.
Brachtenbach and Durham, JJ., concur with Andersen, J.
Reconsideration denied May 1, 1992.
RCW 26.33.160 was amended by the Laws of 1991, ch. 136, § 2. The section referring to the consent to adoption of an Indian child was not changed but has been recodified and is now RCW 26.33.160(4)(h).