STEWART, Judge, dissenting.

While I fully sympathize with the majority's desire to reach the result that it has reached, this is a classic case of the end not justifying the means. I am afraid that the Court has driven another nail in the coffin of the Indian Nation by departing from the clear wording of the ICWA and by concluding that the Act applies only in situations involving "the removal of children from an existing Indian family and Indian environment."

The provisions of 25 U.S.C. § 1913(c) state:

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for termination of parental rights to, or adoptive placement of, an Indian child, the consent of the parent may be withdrawn for any reason at any time prior to the entry of a final decree of termination or adoption, as the case may be, and the child shall be returned to the parent. (Emphasis added.)

The adoption proceeding herein is a "voluntary proceeding for . . . adoptive placement" by definition under the Act. See 25 U.S.C. § 1903(1). A.S.L. is "an Indian child" by definition under the Act. See 25 U.S.C. § 1903(4). J.L. is a "parent" by definition under the Act. See 25 U.S.C. § 1903(9). Nor is there any question that J.L.'s consent was "withdrawn . . . prior to the entry of a final decree of . . . adoption", as required by the Act. I find the wording of the Act both clear and clearly applicable in this case.

Under Louisiana law, when the wording of a statute is clear and free of ambiguity, the letter of it shall not be disregarded under the pretext of pursuing its spirit. LSA-R.S. 1:4. This virtually universal rule of statutory construction is found in federal law as well. As stated by the United States Supreme Court in Freytag v. C.I.R., 501 U.S. 868, 111 S.Ct. 2631, 115 L.Ed.2d 764 (1991):

When we find the terms of a statute unambiguous, judicial inquiry should be complete except in rare and exceptional circumstances. . . . We have stated that courts 'are not at liberty to create an exception where Congress has declined to do so.' (citation omitted). 501 U.S. at 873, 111 S.Ct. at 2636.

There is no exception in the ICWA for situations not involving "the removal of children from an existing Indian family and Indian environment." Instead, the "Indian family" exception is of judicial origin.

In Re Adoption of S.S., 252 Ill. App.3d 33, 190 Ill.Dec. 802, 622 N.E.2d 832 (2 Dist. 1993), the court held the ICWA applied to a petition for adoption of children of an Indian mother and deceased non-Indian father filed by the father's sister and her husband, even though the children resided with the father and a paternal aunt at the time of the father's death and thus were not part of an "Indian family." In reaching its holding, the court began by reviewing the language of the Act, and discussing the line of cases applying the "Indian family" exception. The court then noted that a number of decisions have questioned the soundness of the exception, particularly in light of the policy analysis undertaken by the United States Supreme Court in Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29. After discussing and considering the reasoning of the various decisions on application of the ICWA, the court concluded that the trial court erred in holding that the ICWA did not apply:

We are troubled in no small measure by an approach which departs from the clear language of the statute based upon a generalized policy analysis. The provisions at issue are unambiguous and the case at bar is undeniably within their scope. . . . Congress imposed no express requirement that children be part of an Indian family in order for these provisions to apply; this limitation on the scope of the ICWA is entirely a judicial creation with no basis in the language of the ICWA.

The court went on to hold that even if it were appropriate to look beyond the plain language of the statute, the court's decision would be no different:

As the Supreme Court's decision in Holyfield clearly demonstrates, and has been recognized by a number of courts, Congress enacted the ICWA not only to protect Indian children and parents, but also to protect the tribes themselves. Imposing an "existing Indian family" requirement under the circumstances of this case is "directly in conflict with the idea of tribal sovereignty and the policy of improving tribal ties reflected in ICWA." (citation omitted).

I believe that the analysis employed in Adoption of S.S. is correct in rejecting the "Indian family" exception because: (1) the exception runs counter to the plain language of the Act; and, (2) even when the policies underlying the Act are taken into account, application of the "Indian family" exception fails to give adequate consideration to the interest of the Indian tribes themselves.

The congressional findings underlying the Act, set forth at 25 U.S.C. § 1901, include the following:

(2) That Congress, through statutes, treaties, and the general course of dealing with Indian tribes, has assumed the responsibility for the protection and preservation of Indian tribes and their resources;

(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 non-tribal 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. (emphasis added).

While finding (4) above shows that Congress was indeed concerned with the breaking up of Indian families, findings (2), (3) and (5) show that Congress also was concerned with the protection, preservation and integrity of Indian tribes and the essential tribal relations of Indian people. This is a point that did not go unnoticed by the United States Supreme Court in Holyfield, supra.

In Holyfield, a petition was filed for adoption of twin illegitimate babies whose parents were enrolled members of the Choctaw Indian Tribe and were residents and domiciliaries of the tribal reservation in Mississippi. Although both parents executed a consent-to-adoption form in state court, and a final decree of adoption subsequently was rendered, the Tribe later moved to vacate the adoption decree on the ground that under the ICWA exclusive jurisdiction was vested in the tribal court. The Chancery Court overruled the tribe's motion, and the Mississippi Supreme Court affirmed. However, the United States Supreme Court reversed, holding in pertinent part that the children were domiciled on the reservation within the meaning of the ICWA's exclusive tribal jurisdiction provision, even though the children were never physically present on the reservation, and even though the children were voluntarily surrendered for adoption. In discussing the effect of the mother's "voluntary surrender" the court stated:

Nor can the result be any different simply because the twins were "voluntarily surrendered" by their mother. Tribal jurisdiction under § 1911(a) was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not only about the interest of Indian children and families, but also about the impact on the tribes themselves of the large numbers of Indian children adopted by non-Indians. See, 25 U.S.C. § 1901(3) ("[T]here is no resource that is more vital to the continued existence and integrity of Indian tribes than their children"), 1902 ("promote the stability and security of Indian tribes"). The numerous prerogatives accorded the Indian tribes through the ICWA's substantive provisions, e.g., §§ 1911(a) (exclusive jurisdiction over reservation domiciliaries), 1911(b) (presumptive jurisdiction over non-domiciliaries), 1911(c) (right of intervention), 1912(a) (notice), 1914 (right to petition for invalidation of state-court action), 1915(c) (right to alter presumptive placement priorities applicable to state-court actions), 1915(e) (right to records), 1919 (authority to conclude agreements with States), must, accordingly, be seen as a means of protecting not only the interests of individual Indian children and families, but also of the tribes themselves.

Among the above-listed prerogatives, notice to the Indian tribe under § 1912(a) is of particular importance in this case. That section provides in pertinent part:

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.

Without question this case involves an involuntary proceeding in a State court where the court knows that an Indian child is involved. Yet under the majority's view herein, it's unnecessary to notify the Indian tribe of an opportunity to intervene to protect its interest in a resource vital to its very existence.

In contrast to the notice required in involuntary proceeding, notice to the tribe is not required under the Act in voluntary proceedings. The obvious conclusion to be drawn from the contrast is that Congress on the one hand recognized the superior position of the parent's desires in a voluntary proceeding. On the other hand Congress must have recognized that an involuntary proceeding would not be brought unless the parent at least allegedly had abused, abandoned, or neglected the child to such an extent that the State could take the child from the parent. In this situation, the tribe's rights become a central focus because if the parent no longer should be allowed to shape the child's future, the tribe should have the opportunity to do so.

However, under the "Indian family" exception, the tribe's right to notice under § 1912(a) only would come into play when the parent is both a "good Indian" who is raising the child in an "Indian family environment" and exposing the child to Indian culture, and a "bad Indian" who is so lacking as a parent that parental rights are in jeopardy of being involuntarily terminated. The intersection of these two sets, if it contains any elements at all, is so small as to effectively allow the exception to swallow the rule.

Furthermore, if Congress only was concerned about removing Indian children from "an existing Indian family unit and the resultant breakup of the Indian family" ( Baby Boy L., supra), why did Congress give a "parent" the unequivocal right to revoke consent to adoption for any reason, while defining "parent" to specifically exclude "the unwed father where paternity has not been acknowledged or established"? I conclude, Congress was aware that an adoption most often involves a single parent who consents to adoption shortly after the child's birth, and not the breakup of an existing family unit.

The majority opinion would distinguish Holyfield, supra, because J.L. is not seeking to circumvent the ICWA or undermine the tribe's interest in keeping the child away from the reservation. The opinion then goes on to note that Holyfield, "may be construed narrowly" as dealing only with jurisdiction, and that even if its holding extends to this case, it supports the existing family requirement. To me the importance of Holyfield lies in its analysis of the policies underlying the Act and its emphasis on Congress' concern not only for Indian children and families, but also the tribes themselves. I conclude that this analysis strongly undermines, rather than supports, the "Indian family" exception. I also conclude that J.L.'s not seeking to circumvent the ICWA or undermine the tribe's interest should be viewed as points in her favor rather than reasons to exclude her from the Act's coverage.

The majority opinion also finds that its conclusion as to congressional intent is bolstered by a Senate committee's rejection in 1987 of proposed amendments to the ICWA. I consider this as a slender reed upon which to rest the weight of a decision to depart from the clear language of the Act. In Firestone Tire and Rubber Co. v. Bruch, 489 U.S. 101, 109 S.Ct. 948, 103 L.Ed.2d 80 (1989), Firestone contended that congressional action after the passage of ERISA indicated that Congress intended ERISA claims to be reviewed under the arbitrary and capricious standard. At a time when most federal courts had adopted this standard, a bill was introduced to amend the legislation by providing de novo review of decisions denying benefits. Because the bill was never enacted, Firestone asserted that the Supreme Court should conclude Congress was satisfied with the arbitrary and capricious standard. In finding a de novo standard applied, the Supreme Court gave little weight to Firestone's argument:

The bill's demise may have had nothing to do with Congress's view on the propriety of de novo review. Without more, we cannot ascribe to Congress any acquiescence in the arbitrary and capricious standard. '[T]he views of a subsequent Congress form a hazardous basis for inferring the intent of an earlier one.' U.S. v. Price, 361 U.S. 304, 313, 80 S.Ct. 326, 332, 4 L.Ed.2d 334 (1960).

Likewise, the demise of proposed amendments to the ICWA well may have had nothing to do with Congress's view on the propriety of the "Indian family" exception. Without more I cannot ascribe such an intent to Congress, especially where the proposed amendments apparently were never placed before the whole Congress, but only a committee.

Finally, and perhaps most troubling of all, is the perverse effect that can result when the plain wording of the Act is abandoned. I conclude that any mother of an Indian child who reads or otherwise is aware of the provisions of § 1913(c) easily could rely on the language to take a large first step toward termination of her parental rights, reasoning that she could change her mind for any reason at any time prior to the entry of a final decree. However, if she then seeks to revoke her consent, she might well discover that, according to the "Indian family" exception, the Act really does not; mean what it says, at least with regard to her. I find this trap particularly egregious because it effectively takes a legal provision intended as a shield for the mother and turns it into a sword that can be used to partially sever the legal rights of a parent to her child.

Before turning to what I conclude is the correct analysis, I would note the lack of any clear standards by which to apply the "Indian family" exception, and the resultant broad discretion that inevitably would tempt courts to impose their own views of justice and goodness upon others. As the "Indian family" line of cases shows, this temptation is all but irresistible.

In matter of adoption Crews, supra, case prominently discussed in the majority opinion, the court noted several factors in support of applying the exception: (1) neither Crews nor her family ever lived on a reservation and there were no plans to relocate the family; (2) the father had no ties to an Indian tribe and opposed the child's removal from the adoptive parents; (3) there was no allegation by Crews or the tribe that, if custody were returned to Crews, the child would grow up in an Indian environment; and (4) Crews had shown no substantive interest in her Indian heritage and had given no indication that this would change in the future.

The facts of Crews are ideally suited for attempting to support an exception. Still, they are not a basis for ignoring the tribe's interests or the Act's language, and the case-by-case approach encouraged by the analysis will offer no protection in another case where the facts likely will be different and weaker. For example, while neither Crews nor her family ever lived on a reservation, J.L. was born on a reservation; she and her family lived there for nine years. While Crews had no plans to go back to the reservation, J.L. testified that she planned to return to the reservation. The father in Crews opposed removal from the adoptive parents; the same is not true herein. Furthermore, there was no allegation in Crews that if custody was returned to the mother, the child would grow in an Indian environment. The opposite is true here. Similarly, where Crews had shown no substantive interest in her Indian heritage and gave no indication that this would change in the future, J.L. showed at least some interest by attending two pow-wows in the past year, and testified she planned to rear her child in the Indian way. Yet the majority had no trouble concluding J.L. had shown "little substantive interest" in her heritage, and dismissing her testimony has "a bare assertion". To me all of this shows how utterly impotent the protections intended by the ICWA would be if an "Indian family" exception is recognized. Accordingly, I must dissent from what I view as judicial legislation. Hard cases do indeed make bad law.

Because I would affirm the trial court's decision to apply the provisions of the ICWA and allow the mother to withdraw her consent to the adoption, I now turn to that portion of the trial court's judgment denying the mother's Writ of Habeas Corpus and awarding sole care, custody and control of the child to the Hamptons, subject to the mother's reasonable visitation.

The trial court relied upon the provisions of 25 U.S.C. § 1916 as necessitating a best interest determination before returning custody to the mother. The court refused to return custody to her after determining that, beyond a reasonable doubt, giving custody to the mother would result in serious emotional or physical damage to the child. Although I conclude that the trial court erred in relying on the provisions of § 1916 to refuse the return of custody to the mother, I further conclude not only that the trial court correctly determined giving custody to the mother at that time would result in serious emotional or physical damage to the child, but also that the trial court could validly order an emergency placement of the child pursuant to § 1922 of the ICWA.

Under the provisions of § 1916, whenever a final decree of adoption of an Indian child has been vacated or set aside, a biological parent may petition for return of custody, and the court shall grant such petition unless there is a showing, in a proceeding subject to the provisions of § 1912, that such a return of custody is not in the best interest of the child. This section has no application in the instant case because there was never a final decree of adoption. Once a final decree of adoption of an Indian child has been rendered, not only does the mother no longer have existing parental rights to the child, but the mother no longer has the very potent right afforded by § 1913 to withdraw consent to adoption for any reason at any time prior to the entry of a final decree. Thus, it is understandable that in such circumstances a return of custody to the mother could be subject to a best-interest-of-the-child test.

At the same time, even when the mother validly withdraws her consent pursuant to § 1913(c), the court is not without power to refuse a return of custody. The provisions of § 1922 state:

Nothing in this subchapter shall be construed to prevent the emergency removal of an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, from his parent of Indian custodian or the emergency placement of such child in a foster home or institution, under applicable State law, in order to prevent imminent physical damage or harm to the child. The State authority, official, or agency involved shall insure that emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of this subchapter, transfer the child to the jurisdiction of the appropriate Indian tribe, or restore the child to the parent or Indian custodian, as may be appropriate.

Although the above-quoted section by its terms applies only to an Indian child who is a resident of or is domiciled on a reservation, but temporarily located off the reservation, it is implicit that "emergency removal" authority extends to non-reservation Indian children; the legislative history bears this out. (H.B. 1386, 95 Cong., 2d Sess. 25). State ex rel Juvenile Department of Multnomah County v. Charles, 688 P.2d 1354, 70 Or. App. 10 (1984). The ICWA does not prevent the emergency removal of an Indian child under state law, and does not require notice in that situation to the parents and the tribe until a custody proceeding is initiated. State ex rel Juvenile Department of Clackamas County v. Charles, 810 P.2d 393, 106 Or. App. 637 (1991).

Under the peculiar circumstances of the instant case, where the mother initially gave the Hamptons physical custody voluntarily, and the court subsequently determined based on abundant, convincing evidence that giving custody to the mother would result in serious emotional or physical damage to the child, I conclude that under § 1922 the court's decision not to return custody to the mother involved an emergency placement of the child subject purely to the provisions of applicable Louisiana law.

Pertinent provisions of Louisiana law are found in the child-in-need-of-care provisions of Title VI of the Louisiana Children's Code. The Title, the purpose of which is to protect children whose physical or mental health and welfare are substantially at risk of harm, is to be administered and interpreted to avoid trauma to the child and unnecessary interference with family privacy, and yet, at the same time, authorize the protective and preventive intervention needed to safeguard and enhance the health and well-being of children. LSA Ch.C. Art. 601. Although the purposes of the child-in-need-of-care provisions plainly encompass the risk of harm presented herein, the highly unusual factual posture of this case requires interpretation of how this case falls under the procedures provided for the protection of a child.

Ordinarily, such procedures are initiated through child abuse reporting and investigation in situations where children are in the physical custody of a parent or parents. In the instant case, the child has not been in the physical custody of the mother since shortly after its birth, the initial removal of the child from the mother's custody was voluntary, and the factual information showing the need for protective and preventive intervention resulted from court proceedings arising out of the mother's withdrawal of consent to adoption. Nevertheless, after reviewing the provisions of articles 618 — 627 of the Children's Code, I conclude that the current procedural posture of this case closely approximates that resulting from a continued custody order under Children's Code Art. 627. Compare State In Interest of Davis, 379 So.2d 831 (La.App. 4th Cir. 1980) decided under the Code of Juvenile Procedure.

Such a continued custody order is temporary in nature, and if the district attorney intends to file a petition to commence child-in-need-of-care proceedings pursuant to Art. 631 of the Children's Code, then such a petition must be filed within 30 days of the hearing to determine continued custody. For good cause shown, the time for filing the petition may be extended by the court, but if no petition is filed within the applicable time period, the child shall be returned to the parent.

These Louisiana codal provisions dovetail with the requirements of § 1922 of the ICWA requiring that the state authority, official or agency involved shall insure that the emergency removal or placement terminates immediately when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child and shall expeditiously initiate a child custody proceeding subject to the provisions of the ICWA. Under the unique circumstances of this case, I would hold that the district attorney for the 26th Judicial District had 30 days from the date of this opinion in which to file a petition to commence child-in-need-of-care proceedings, if the district attorney determined that such action should be taken. In addition to following all the procedural requirements of Louisiana law, I would hold that all future court proceedings also would be subject to and must follow the requirements of 25 U.S.C. § 1912.

To avoid any possible confusion in the future, I would observe that a distinction must be made between the foster care placement referred to in § 1912(d), which must be preceded by active efforts to provide remedial services and rehabilitation programs, and the emergency placement of a child in a foster home under applicable state law, referred in the provisions of § 1922, which is designed to prevent imminent physical damage or harm to the child. Louisiana law also contains such a distinction.

Under the provisions of Children's Code Art. 626(B), a court considering the authorization of continued custody of a child prior to adjudication must determine whether the Department of Social Services has made reasonable efforts to prevent or eliminate the need for removal of a child from his home and, after removal, to make it possible for the child to return home. However, if the department's first contact with the family occurred during an emergency in which the child could not safely remain at home even with reasonable in-home services provided to the family, the Department is deemed to have made reasonable efforts, and the court may authorize the removal of the child even if the Department's efforts have not been reasonable. Children's Code Art. 622(C) and (D). These codal provisions are in pari materia with those of § 1922 of ICWA.

In contrast, once a child-in-need-of-care petition has been filed, the permanency planning provisions found in Chapter 13 of the Children's Code show that a case plan must be developed detailing the custodian's efforts toward achieving a permanent placement for the child, and that the case plan must include a plan which, in part, assures that services are provided to the parents, child and foster parents in order to improve the conditions in the parents' home, facilitate return of the child to his own home or the permanent placement of the child, and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan. See Children's Code Arts. 671-677. Furthermore, under the provisions of Children's Code Art. 682, a court shall not remove a child from the custody of his parents unless his welfare, in the opinion of the court, cannot be adequately safeguarded without such removal. In support of any disposition removing a child from the parental home, a court must determine whether the Department has made reasonable efforts to prevent or eliminate the need for removal of the child from his home, and, after removal, to make it possible for the child to return home. See also, Children's Code Art. 684. I conclude that the above discussed Children's Code provisions are in pari materia with requirements found in § 1912(d) of the ICWA.

An additional matter warranting discussion concerns the grounds for alleging that a child is in need of care under the provisions of LSA-Ch.C. Art. 606. As previously mentioned, the circumstances of this case easily fall within the scope of the purpose of the child-in-need-of-care legislation, set forth in Art. 601, which authorizes protective and preventive intervention when needed to safeguard and enhance the health and well-being of children. However, the Children's Code currently contemplates two alternative means of transfer of child custody: (1) involuntary transfer under child-in-need-of-care articles; and (2) voluntary transfer under Articles 1510, et seq.

Under Article 606, the law contemplates removal of custody from a parent where the child is a victim of abuse, neglect, etc., while under Article 1510, et seq., the law contemplates a voluntary transfer pursuant to the revocable consent of the parent, in order for a child to receive adequate care and treatment. Our law does not contemplate this unique situation arising under the ICWA in which a court can be faced with the prospect of returning custody of a child to a parent who has not yet had an opportunity to place the child at substantial risk of imminent harm, but whose custody, as shown by clear and convincing evidence received in proceedings spawned by the ICWA, would likely result in the child's suffering serious emotional or physical damage.

Because Louisiana law does not contemplate this unusual situation, the judiciary must interpret the law in accordance with the intent of the legislature. I observe that when return of custody is being considered following the parent's revocation of voluntary consent to a transfer under Louisiana law, the court must consider the best interest of the child, including such factors as the length of the parent/child separation, and the current fitness of the parent. LSA-Ch.C. Art. 1523. Thus, I conclude that the intent of the legislature could not be a return of custody without any regard for the child's interests.

Considering the importance of a parent's custody rights, the involuntary nature of the current proceedings, and the intent of both the ICWA and Louisiana law, I conclude that the question of return of custody is not subject simply to a best interest determination under Article 1523, but that the grounds of Article 606 should be applied herein even though the child has not yet suffered abuse, neglect, etc. I hasten to emphasize the limited nature of my conclusion applicable to the unique facts of this case. Moreover, I conclude that in order to harmonize the provisions of LSA-Ch.C. Art. 606 with those of 25 U.S.C. § 1912(e), the trial court would have to find by clear and convincing evidence that one of the grounds listed in Article 606 is likely to result if custody is returned to the mother.

Conclusion

In this case the trial court judgment allowed J.L. to withdraw her consent to adoption under the provisions of ICWA, but denied her writ of habeas corpus. For the foregoing reasons, I would affirm this portion of the trial court's judgment. The trial court also awarded sole care, custody and control of A.S.L. to the Hamptons, subject to the mother's reasonable visitation. An appeal lies from the judgment itself and not the reasons for judgment. White v. McCoy, 552 So.2d 649 (La.App. 2d Cir. 1989). I find no error in this portion of the trial court's judgment, except to the extent that such custody is of indeterminate duration. Accordingly, I would amend the trial court's judgment in this respect, and, as previously discussed, I would send a copy of this opinion to the district attorney for the 26th Judicial District giving him 30 days from the date of this opinion in which to file a petition commencing child-in-need-of-care proceedings. My opinion should not read as requiring the filing of such a petition, or as eliminating the possibility of informal adjustment procedures under the Children's Code. If child-in-need-of-care proceedings were initiated by the district attorney, then such proceedings would be subject not only to the provisions of Louisiana law, but also to the provisions of § 1912 of the ICWA, including notice to the tribe.

The provisions of 25 U.S.C. § 1902 state:

The Congress hereby declares that 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. (Emphasis added.)

The majority opinion ignores this policy and reverts to the antiquated frontier mentality of "excepting" away the greater rights of Indians to supposedly protect the lesser rights of others. Although unintentional, the condescending "Indian family" exception will only serve to further decimate what little stability is left for the Indian nation. James and Jan Hampton understood that they were attempting to adopt an Indian child. They also knew that the child and his mother had a special status. It is wrong to attempt to ignore this now. The majority opinion, which uses "whatever means necessary," to protect the Hamptons is also wrong. Since "two wrongs do not make a right," I respectfully dissent.

STEWART, J., dissents with written reasons.

WILLIAMS, J., dissents for the reasons assigned by STEWART, J.