dissenting.
The majority errs when it holds that mother is entitled to reversal of the judgment of adoption because it misconstrues the Indian Child Welfare Act (ICWA) and improperly remands on de novo review. Based on the record before us, we should affirm.
The record establishes the following facts. On April 9, 1991, child was born. Mother, 14 years old at the time, initially contacted the Quinns in September or October of 1990 at the urging of mother’s parents. The Quinns retained an attorney to advise mother about the adoption process. Over the next few months, mother had several contacts with *588the Quinns. She and her parents received and reviewed adoption documents. On the day that child was born, she executed an “irrevocable” consent to the adoption in the presence of her attorney. The consent recites, “My child is not an ‘Indian child’ as defined in the Indian Child Welfare Act (25 USC 1901 et seq).” The Quinns obtained physical custody of child on the next day and he has remained in their custody since that time. A petition for adoption was filed the same day.
The potential implication of the ICWA had not gone unrecognized by the parties. The Quinns’ attorney (a different attorney than the one hired to represent mother) was notified in late 1990 that mother’s grandfather was in the process of registering as a member of the tribe. Quinns’ attorney contacted representatives of the Cherokee Nation of Oklahoma to inquire about mother’s status in December, 1990. Based on the name supplied to them by the attorney, the tribe declined to intervene. In support of the adoption, mother executed an affidavit that said in part:
“I am not a member of any Indian tribe nor, to my knowledge, am I eligible for enrollment in any tribe. We contacted the Cherokee Nation several times by telephone and by letter, because I believe my father’s grandmother was a member of the tribe. The Cherokee Nation advised that it is not empowered to intervene in this matter.
“7
“I know the Quinns and want them to adopt my baby. I feel this is in the best interests of the child.”
Mother sought to revoke her consent on April 22, 1991, and filed a motion to dismiss the adoption proceeding on May 14, 1991. These actions occurred after the maternal grandmother determined that an incorrect name had been supplied to the tribe in order to ascertain membership eligibility for mother and child.
A hearing on the motion to dismiss was held on July 24, 1991. Mother was represented by an attorney. In her opening statement, mother offered a purported stipulation that she had become a registered member of the Cherokee Nation of Oklahoma as of July 19,1991. Before this court, she argues that the parties stipulated in that opening statement that child was eligible for membership. The Quinns argue that they did not enter into any stipulation. The majority *589correctly points out that the purported stipulation makes no reference to child’s membership or eligibility for membership. See 117 Or App at 585 n 3. In order for mother to prevail on her motion, she must prove compliance with 25 USC § 1903(4). It provides that an Indian child is
“any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.”
At the hearing on the motion to dismiss the adoption petition, mother called four witnesses to testify. Before the first witness testified, mother’s counsel said:
“My first witness will be Maki Walters. I have had this marked as Exhibit 1, and supplied it to counsel, an exhibit from the Cherokee Indian Nation.
“THE COURT: Any objections?
“[QUINN’S COUNSEL]: Your honor, it is a hearsay statement to prove a matter asserted. I am not in a position to waive any objections.
“THE COURT: It’s received.”
Exhibit 1 is a notarized affidavit of an individual who says he is the Registrar of the Cherokee Nation of Oklahoma, that he has examined tribal records, and that any biological child of mother is eligible for membership. Mother offered no additional evidence about child’s eligibility and made no motion to continue the hearing so that other evidence of that fact could be procured.
On appeal, mother argues that the provisions of the ICWA entitles her to withdraw her consent at any time before the final decree of adoption is entered and that the court erred when it held to the contrary. The trial court held that the ICWA was inapplicable, because mother was not a member of an Indian tribe at the time her consent became irrevocable under Oregon law. See ORS 109.312(2)(a).
Faced with similar facts,1 the Washington Supreme Court held in the Matter of Adoption of Crews, 118 Wash 2d *590561, 825 P2d 305, 310 (1992),2 that
“[the] ICWA is not applicable when an Indian child is not being removed from an Indian cultural setting, the natural parents have no substantive ties to a specific tribe, and neither the parents nor their families have resided or plan to reside within a tribal reservation.”
In this case, there is no evidence in the record that mother has been part of an Indian cultural setting either on or off a reservation. At the time the petition for adoption was filed, neither of mother’s parents was a member of an Indian tribe. There is no evidence in the record that mother would raise her child in an Indian environment if granted custody. To the contrary, mother has not been the individual expressing interest in her heritage. Rather, it was mother’s grandfather that inquired about tribal membership, and did so only after mother had consented to the adoption.3 The holding in Crews, supra, is based, in part, on the fact that the Act was passed to counteract the large number of unwarranted removals of Indian children from their families and tribes.4 *591See also, Angus v. Joseph, 60 Or App 546, 556, 655 P2d 208 (1982), rev den 294 Or 569, cert den sub nom Woodruff v. Angus, 464 US 830 (1983). Other courts have held that the ICWA does not apply when children are not being removed from existing Indian cultural settings.5 Like the mother in Crews, allowing mother to revoke her consent in this case will not further the underlying policy of the ICWA.
Moreover, the definition of an Indian child in 25 USC § 1903(4) supports the proposition that Congress intended that the Act apply only if the child is being removed from an Indian cultural setting. The definition expressly requires that the child subject to adoption be a member of an Indian tribe or be the biological child of a member. Because members of Indian tribes are more likely to be actively pursuing their Indian heritage, the requirement that the child’s parent be a member is consistent with the express purpose of the Act to promote stability and security of Indian families and tribes. Here, after the petition for adoption was filed and her consent became irrevocable under state law, mother became a member in order to facilitate the desire of her parents to raise the child in a non-Indian setting. We should join with Washington and the other states who have held similarly and conclude that the ICWA is not applicable to the facts of this case. The majority’s fear that such a holding will defeat the protection afforded to tribes under the ICWA is unwarranted, because it would be limited to the facts before us.
On cross-assignment, the Quinns argue that the admission of exhibit 1 was error. In response, mother does not argue that the trial court correctly admitted exhibit 1. Rather, she argues that the Quinns stipulated as to the child’s eligibility, an argument not supported by the record. Second, she suggests that “Counsel for Petitioners never raised the issue at any point in the proceeding, and never argued that the ICWA did not apply because Defendant had failed to prove *592tribal membership and eligibility of the child for membership.” The majority mistakenly adopts that argument when it says, “The Quinns never challenged the sufficiency of the evidence regarding child’s Indian status.” 117 Or App at 585.
The majority ignores a memorandum submitted to the trial court in opposition to mother’s motion to dismiss in which the Quinns argue that child “is not a member of an Indian tribe. Since [mother] is not a member of an Indian tribe, the ICWA does not apply to the case at hand.” By disregarding challenges made by the Quinns before the conclusion of the hearing, the majority announces a new rule of appellate procedure which requires a party to assert an evidentiary objection in a closing argument in response to a motion to dismiss in order to preserve the objection. Moreover, mother was aware that proof of child’s eligibility was critical to her motion. In an affidavit in support of her motion, she said,
“The provisions of the Indian Child Welfare Act (25 USC. Section 1901 et seq) does [sic] apply to the minor child in that the child’s maternal great-grandfather is an enrolled and full-blooded member of the Cherokee Indian Tribe and I am now advised that I may also be an enrolled member of said tribe.”
If the phrase “de novo on the record” is to have any meaning, there must be a point in time when issues are determined based on the evidence presented. See Tanner v. P & C Tool Co., 9 Or App 463, 497 P2d 1230 (1972). We have reached that point in this case. Mother was represented by counsel, knew that she had to prove that child was a member or eligible for membership when she filed her motion to dismiss, and presumably knew that any appeal would be based on the record that she made in the trial court.
The majority believes that deciding the case on the cross-assignment works an unfairness because mother was entitled to rely on the trial court’s erroneous evidentiary ruling and, had she known that exhibit 1 was inadmissible, she would have offered other evidence of child’s eligibility. The latter supposition is speculation not supported by the record. There is not a hint anywhere in the record that mother had more evidence about child’s eligibility than the affidavit. If evidence was available, she would have offered it. *593Parties to litigation are on notice that every time a case is tried in the trial court and de novo review is available, an evidentiary decision in the trial court may be changed in the appellate court proceeding thereby affecting the record on review. Mother does not now argue that the trial court’s decision about exhibit 1 was correct. How can she “reasonably” rely on the erroneous admission of an exhibit, the admission of which she cannot justify?
The facts of this case illustrate why it is a rare occasion when we should remand when we have de novo review. 6 This case started in April of 1991 with the birth of a baby who was voluntarily given to adoptive parents who have cared and nurtured that child since that time. How unjust that, when the interests of the ICWA are not at stake, the law would undo those relationships and the bonding that must have occurred in order to allow mother to start over again.7 Justice without finality is no justice at all. Appellate courts often are accused of sitting in “ivy-covered towers” making idealistic decisions unrelated to “the real world.” Here, that accusation rings true. Based on the facts of this case, the majority’s desire to carry out the policy of the ICWA is misplaced. This case is not about retaining an “Indian child” in an Indian cultural setting. It is about affording certainty and finality to litigation involving a child’s future and about adoptive parents who have endeavored to “touch all the legal bases.” We should not remand to give mother a second chance to prove what she knew she was required to prove in July of 1991.
I dissent.
Deits, J., joins in this dissent.The mother in Crews was not a member of a tribe at the time she signed a consent to adoption form. She formally enrolled in the Choctaw tribe after her parental rights had been terminated. On the basis of her newly acquired membership, she sought to invoke the protections of the ICWA and revoke her consent. There was no evidence that the mother had ever lived on a reservation or that she had plans *590to relocate to one. The mother did not testify that if custody was returned to her that she would raise her child in an Indian environment and showed no interest in her Indian heritage.
The majority cites the Washington Court of Appeals’ holding in Matter of Adoption of Infant Boy Crews, 60 Wash App 202, 803 P2d 24 (1991), that the ICWA did not apply because the mother was not a member at the time her parental rights were formally terminated. The majority then distinguishes that holding on the basis that Washington’s adoption procedures differ from Oregon’s. That distinction is irrelevant because the Washington Supreme Court superseded the Court of Appeal’s decision when it held that the facts of the case did not place it within the contemplation of the Act. 118 Wash 2d 561, 825 P2d 305 (1992).
In a report to the court, the Children’s Services Division reported that
“the change of plans about the adoption have more to do with the intent of the maternal grandparents to raise this child than it does, indeed, with the wishes or desires of the biological mother to do so.”
Congress expressly found:
“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 such an alarmingly high percentage of sucb children are placed in non-Indian foster and adoptive homes and institutions.” 25 USC § 1901(4).
Based on these findings, Congress declared the policy of the ICWA was 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 USC § 1902.
See Mississippi Band of Choctaw Indians v. Holyfield, 490 US 30, 109 S Ct 1597, 104 L Ed 2d 29 (1989); In re Adoption of T.R.M., 525 NE2d 298 (Ind. 1988), cert. denied sub nom., J. Q. v. D.R.L., 490 US 1069, 109 S Ct 2072, 104 L Ed 2d 636 (1989); Claymore v. Serr, 405 NW2d 650 (S.D. 1987); In re S.A.M., 703 SW2d 603, 608 (Mo Ct App 1986); In re Adoption of Baby Boy D, 742 P2d 1059, 1063-64 (Okla 1985), cert. denied sub nom., Harjo v. Duello, 484 US 1072, 108 S Ct, 1042, 98 L Ed 2d 1005 (1988); In re Baby Boy L, 231 Kan 199, 643 P2d 168 (1982).
Remand on de novo review may be appropriate when there are insufficient facts in the record on which to base our decision. That’s not the case here.
The majority relies on a quote from Holy field, supra, to support its assertion that the passage of time is not a reason for affirmance. See 117 Or App at 586. In Holy field, the issue was whether a mother could move off the reservation in order to avoid the application of the ICWA. The integrity of the Act was at stake. Here, unlike in Holy field, the purposes of the ICWA are not furthered by mother’s invocation. In that light, we should be concerned about the bonded relationship that has been formed and the fact that mother has had her day in court.