ICWA and the states with Existing Indian Family Exception

Trace L Hentz (editor)


As Louis La Rose (Winnebago Tribe of Nebraska) testified:

“I think the cruelest trick that the white man has ever done to Indian children is to take them into adoption court, erase all of their records and send them off to some nebulous family … residing in a white community and he goes back to the reservation and he has absolutely no idea who his relatives are, and they effectively make him a non-person and I think … they destroy him.”

One quarter of all Indian children were removed from their families and placed in non-Indian adoptive and foster homes or orphanages, as part of the Indian Adoption Projects… One study found that in sixteen states in 1969, 85 percent of the Indian children were placed in non-Indian homes.  Where are these children now? —Trace DeMeyer, quote from Two Worlds (Book 1)

The Indian Child Welfare Act (ICWA) was enacted into federal law in 1978 because of the high removal rate of Indian children from their traditional homes and essentially from Indian culture as a whole.  Removals devastated some tribes to near extinction levels of populations.  For example, the Bureau of Indian Affairs paid the states to remove Indian children and to place them with non-Indian families and religious groups.  The Church of Jesus Christ of Latter-day Saints (LDS Church) had an Indian Placement Program that removed Indian children from their tribes and into church members homes.  By the 1970s, approximately 5,000 Indian children were living in Mormon homes.

The lack of knowledge of most social workers (and racism) also played into the high removal rates.

During congressional consideration, at the request of Native American advocacy groups, huge opposition was raised by several states, the Child Welfare League of America, the LDS Church, the Catholic Church, and several social welfare groups.

Despite their protests, the ICWA bill was pushed through by Representative Morris Udall of Arizona, who lobbied President Jimmy Carter to sign this historic law.

ICWA reversed this removal policy.  By defining children as collective resources, essential to tribal survival, it stands as a significant exception to the rule of individualism in American law, where children’s best interests are invariably assessed case by case.  ICWA made the adoption of Native American children by non-native people extremely difficult by erecting significant barriers to their adoption by anyone without tribal affiliation.*

It remains a source of ongoing controversy among civil rights and children’s advocates.

How the”Existing Indian Family” Exception bypasses and dismantles ICWA

In 1982, the Kansas Supreme Court held that the ICWA “was not to dictate that an illegitimate infant who has never been a member of an Indian home or culture, and probably never would be, should be removed from its primary cultural heritage and placed in an Indian environment over the express objections of its non-Indian mother.”

Under the facts of the case, the court stated that the ICWA did not apply unless the child was part of an “existing Indian family unit.”

The court denied the Kiowa Tribe of Oklahoma the right to intervene in the case, stating that the ICWA did not apply.  The court also held that even if the ICWA did apply, the trial court committed no reversible error because the non-Indian mother would have objected to the transfer of the case to a tribal court and, thus, defeated the transfer.  From the Kansas Supreme Court case sprang a body of jurisprudence around the “existing Indian family” exception to ICWA.

In the years following the Kansas Baby Boy L. case, approximately half of the states adopted or expanded upon this “existing Indian family” exception, despite the fact that the language appeared no where in the text of the ICWA.

Subsequent to the Kansas Baby Boy L. case, in 1989, the United States Supreme Court heard the only ICWA case that it has issued an opinion on to date in Mississippi Band of Choctaw Indians v. Holyfield. 490 U.S. 30 (1989)

Like the Baby Boy L. case, both parents in Holyfield consented to the voluntary termination of their parental rights and adoption of their infant by a non-Indian family.  Unlike the parents in Baby Boy L., the mother in this case lived on the reservation both before and after the birth of the child off-reservation.  The Supreme Court found that the child was “domiciled” on the reservation because its biological mother was domiciled on the reservation.  Therefore, the exclusive jurisdiction of the tribal court under ICWA should have been invoked.  The case was remanded to the tribal court for a custody determination three years after the child had been placed with non-Indian adoptive parents.  Noting the potential disruption in the child’s life, the Supreme Court noted that any potential harm could have been avoided if the parents and state court had not wrongfully denied the tribe its rights under ICWA.

While the Supreme Court did not consider the “existing Indian family” exception, some sources cite Holyfield as an implicit rejection of the exception.

Other sources have noted that the Holyfield case is relied upon as support for both sides of the debate over the “existing Indian family” exception:

“Surprisingly, Holyfield has been relied upon by courts and parties both to support and reject the existing Indian family exception, which has been invoked in proceedings involving Indian children and families who are living off the reservation and who are, therefore, subject to state court jurisdiction concurrent with that of the tribal court.”

As of 2010, Alabama, Indiana, Kentucky, Louisiana, Missouri, and Tennessee still use the “existing Indian family” exception. Alabama and Indiana have limited its application by further court decisions. Nineteen states have rejected the doctrine, either by court decision or statute, including Kansas, where the Kansas Supreme Court expressly overturned the Baby L. decision in In re A.J.S., stating:

“Given all of the foregoing, we hereby overrule Baby Boy L., (citation omitted), and abandon its existing Indian family doctrine. Indian heritage and the treatment of it has a unique history in United States law. A.J.S. has both Indian and non-Indian heritage, and courts are right to resist essentializing any ethnic or racial group.  However, ICWA’s overall design, including its “good cause” threshold in 25 U.S.C. 1915, ensures that all interests—those of both natural parents, the tribe, the child, and the prospective adoptive parents—are appropriately considered and safeguarded.  ICWA applies to this state court child custody proceeding involving A.J.S., and the Cherokee Nation must be permitted to intervene.”


Some critics have complained that the existing Indian family exception requires the state court to determine what it means to be an Indian child or an Indian family, by applying tests to determine the “Indian-ness” of the child.  One such test involved evaluating if the child lived “in an actual Indian dwelling,” apparently thinking of a teepee, hogan, or pueblo.”  Another work notes that “state courts have taken it upon themselves to determine individuals’ relationship with their tribes by examining such contacts as subscription to a tribal newsletter.” [Source: Wikipedia]

In her 1997 testimony before the Joint Hearing of the House Resources Committee and the Senate Committee on Indian Affairs, Assistant Secretary of the Interior Ada Deer (Menominee Indian Tribe of Wisconsin) stated:

“…we want to express our grave concern that the objectives of the ICWA continue to be frustrated by State court created judicial exceptions to the ICWA.  We are concerned that State court judges who have created the “existing Indian family exception” are delving into the sensitive and complicated areas of Indian cultural values, customs and practices which under existing law have been left exclusively to the judgment of Indian tribes…  We oppose any legislative recognition of the concept.”

Editor’s Note: 566 tribes are federally recognized by the BIA in 2016. These numerous state courts in the USA do not understand that 80 percent of Native Americans do NOT live on reservations, primarily because of few jobs or a stable economy. Racism and ignorance is apparent with these existing Indian Family exceptions.  In 2008, a total of 62 Native American tribes had been recognized by states, not the BIA.  It’s been said over 200 tribes are petitioning the BIA for federal recognition and some have been waiting over 30 years. Native Americans do intermarry and despite having a non-Indian mother or father, their child is still considered a tribal member and sovereign under the ICWA.


Help the Lakota Law Project investigate South Dakota’s foster care system! SIGN THE ‪PETITION: lakota.cc/16I9p4D

*In the United States, persons of Native American descent occupy a unique legal position.  On the one hand, they are U.S. citizens and are entitled to the same legal rights and protections under the Constitution that all other U.S. citizens enjoy.  On the other hand, they are members of self-governing tribes whose existence far predates the arrival of Europeans on American shores.  They are the descendants of peoples who had their own inherent rights—rights that required no validation or legitimation from the newcomers who found their way onto their soil.  [West’s Encyclopedia of American Law, edition 2. Copyright 2008 The Gale Group, Inc. All rights reserved.]


Stolen Generations Copyright © 2016 by Trace L Hentz (editor). All Rights Reserved.

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