Written by Tana Fye
Part 2 of my paper on the existing Indian family exception to ICWA.
Application of the Existing Indian Family Doctrine prior to Holyfield
Prior to the United States Supreme Court’s decision in Mississippi Band of Choctaw Indians v. Holyfield, many state courts adopted the existing Indian family doctrine and interpreted it as an exception to the application of ICWA’s requirements. Those states are Indiana, Kansas, Missouri, Oklahoma, and South Dakota. However, only one state, New Jersey, interpreted the existing Indian family exception as a distortion of ICWA and declined to adopt the exception.[1]
Indiana adopted the existing Indian family doctrine in the 1988 case of In the Matter of Adoption of T.R.M.[2] The child, T.R.M., was born in Hot Springs, South Dakota to a mother who was a member of the Oglala Sioux Indian Tribe.[3] The paternity of the child was not established.[4] The mother met the adoptive parents when the adoptive parents were travelling on the Pine Ridge Indian Reservation; and they subsequently became friends.[5] On multiple occasions prior to the birth of T.R.M. the birth mother and the adoptive parents discussed their plans for the adoption of T.R.M.[6] The child was born in June of 1981, off the reservation, and the adoptive mother returned at that time to take T.R.M. from the birth mother.[7] At T.R.M’s birth, the birth mother signed a form consenting to the adoption of T.R.M. by the couple.[8] The adoptive parents filed a petition for adoption of the child in September of 1982.[9] The trial court granted the adoption; but the decision was reversed by the Court of Appeals, who stated that exclusive jurisdiction had vested in tribal court.[10] The Indiana Supreme Court reversed, stating that “the central thrust and concern of the ICWA is…the establishment of minimum federal standards for the removal of Indian children from their families.”[11] The court admitted that T.R.M.’s biological ancestry was Indian, but stated that,
From the unique facts of this case, where the child was abandoned to the adoptive mother essentially at the earliest practical moment after childbirth and initial hospital care, we cannot discern how the subsequent adoption proceedings constituted a “breakup of the Indian family. We therefore hold that…the ICWA should not be applied to the present case in which the purpose and intent of Congress cannot be achieved thereby.[12]
Kansas adopted the existing Indian family exception in 1982 in Matter of Adoption of Baby Boy L.[13] Baby Boy L. was born out of wedlock to a non-Indian mother and the putative father, a member of the Kiowa Tribe.[14] On the day of the child’s birth, his mother executed a form consenting to the adoption of the child by the adoptive parents; and they filed a petition for adoption on the same day.[15] The birth father was given notice of the adoption proceedings as well as notice of a petition for termination of his parental rights.[16] When it was brought to the court’s attention that the birth father was a member of the Kiowa Tribe, the case was continued to provide notice of the proceedings to the tribe.[17] The child was even enrolled as a member of the Kiowa Tribe during the pendency of the proceedings.[18] The trial court subsequently held a hearing and determined that ICWA was inapplicable to the situation.[19] On appeal, the Kansas Supreme Court cited the legislative history and express language of ICWA as support for application of the existing Indian family exception to ICWA’s mandates.[20] The court stated,
A careful study of the legislative history behind the Act and the Act itself discloses that the overriding concern of Congress and the proponents of the Act was the maintenance of the family and tribal relationships existing in Indian homes and to set minimum standards for the removal of Indian children from their existing Indian environment. It 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…Numerous provisions of the Act support our conclusion that it was never the intent of Congress that the Act would apply to a factual situation as is before the court.[21]
Missouri adopted the existing Indian family doctrine in 1986 in the case of In Interest of S.A.M.[22] The child involved in the dispute was an illegitimate child born to a non-Indian mother and an Indian father who was an enrolled member of the Kickapoo Tribe.[23] The father appealed the termination of his parental rights arguing that the trial court erred by not applying ICWA to the proceedings.[24] The appellate court reproduced § 1912(f) of ICWA in its opinion, which states that in order for parental rights to an Indian child to be terminated, a determination “that the continued custody of the child by the parent…is likely to result in serious emotional or physical damage to the child.”[25] The court concluded that because the father had never had custody of S.A.M., it would be impossible for his custody of the child to “continue.”[26] Thus there would be no breakup of an existing Indian family by termination of his parental rights; and ICWA should not apply to the case.[27]
Oklahoma adopted the existing Indian family doctrine in two cases in 1985. Those cases were Matter of Adoption of Baby Boy D[28] and Matter of Adoption of D.M.J.[29] In Baby Boy D, the father was a member of the Seminole Nation of Oklahoma and the mother was a non-Indian.[30] The mother consented to adoption of Baby Boy D and the child was adopted without notice to the father and without his consent.[31] After learning that the child had been adopted, the father filed a petition seeking to vacate the adoption on grounds that the child was an Indian child and that the adoption proceedings were thus subject to ICWA.[32] The trial court denied the father’s petition.[33] On appeal, the Oklahoma Supreme Court stated that “Congress seeks to protect the Indian child by setting minimum federal standards for the removal of that Indian child from an existing Indian family unit. Here we have a child who has never resided in an Indian family, and who has a non-Indian mother” and because the child was not a member of an existing Indian family, the father lacked standing to ask the court to apply ICWA.[34] The case of Baby Boy D has a dissenting opinion in which the dissenting justice states that the majority has misconstrued ICWA in holding that ICWA may be disregarded if the child has not been living in an Indian familial setting.[35]
In Matter of Adoption of D.M.J., custody of D.M.J. was awarded to her non-Indian mother after a divorce between the mother and D.M.J.’s father, a member of the Cherokee Nation of Oklahoma.[36] Six years after the divorce, the birth mother arranged for an adoption of D.M.J. by a non-Indian married couple.[37] Adoption proceedings began; and the birth father and the Cherokee Nation of Oklahoma appeared at the hearing to oppose the adoption.[38] The trial court terminated the birth father’s parental rights for nonsupport of D.M.J.; and D.M.J. was adopted by the married couple.[39] The father appealed the termination of his parental rights because of the failure of the trial court to comply with ICWA.[40] On appeal, the Oklahoma Supreme Court adopted the position that the Indian family had been broken up since the divorce of the birth parents, so remedial services and rehabilitative programs, as required by ICWA, were unnecessary and could not repair the relationship or prevent the breakup of the family.[41] In support of its position that no existing Indian family existed and thus ICWA need not apply, the court stated,
Congress appreciated, as do we, the culture-shock and underlying trauma in yanking a child from an Indian environment and placing the child in a non-Indian one. In like manner, it provided no mandate that a child such as D.M.[J.] be uprooted from a non-Indian environment and placed in an Indian one.[42]
The Oklahoma Supreme Court concluded that ICWA only applies when Indian children are removed from existing Indian family environments.[43]
South Dakota adopted the existing Indian family exception in 1987 in Claymore v. Serr.[44] The child involved in that case, Danette, was born out of wedlock to a non-Indian mother and a father who was a member of the Cheyenne River Sioux Tribe.[45] The mother was the sole caregiver and provider for Danette for her early life; and the father paid no child support and very few of Danette’s expenses.[46] When Danette was about five years old, the mother met and married a man named Greg Serr; and about two years later, they commenced proceedings for Serr to adopt Danette.[47] When the birth father learned of these adoption proceedings, he filed an action in circuit court to restrain further adoption efforts.[48] The Cheyenne River Sioux Tribe was notified of the petition for adoption pursuant to ICWA and it requested transfer of the proceedings to tribal court.[49] The mother and her husband objected to transfer; and the tribe then made a motion to intervene in the proceedings.[50] That motion was denied and the circuit court made the determination that the tribal court was not entitled to either exclusive or concurrent jurisdiction over the case.[51] The birth father’s parental rights were terminated and the adoption of Danette by the mother’s husband was approved.[52] The birth father appealed to the South Dakota Supreme Court, raising two issues:
(1) whether the Indian Child Welfare Act mandated dismissal of the circuit court action due to lack of jurisdiction; and, (2) whether the trial court erred in terminating the [birth father’s] parental rights to his minor child.[53]
The South Dakota Supreme Court acknowledged that the case involved both and Indian child and a child custody proceeding, but declined to apply ICWA because “there was no existing ‘Indian family’ losing an Indian child.”[54] The court cited to the Kansas case of Matter of Adoption of Baby Boy L. in support of its position, but strangely enough, recognized that ICWA did not set forth the requirements of an existing Indian family in outlining the jurisdictional requirements of ICWA.[55] The court said that even though the existing Indian family doctrine was not included in ICWA, it “is implied throughout the Act” and held that because Danette had not been a part of or been removed from an existing Indian family, ICWA’s mandates did not apply to her.[56]
In contrast, however, New Jersey declined to adopt the existing Indian family exception in 1988 in Matter of Adoption of a Child of Indian Heritage.[57] In that case, the putative father of a child who may have been eligible for membership in the Rosebud Sioux Tribe moved to vacate the adoption of the child on grounds that he was not provided notice of the proceeding in accordance with ICWA’s mandates.[58] Both the putative father and the birth mother of the child were members of the Tribe; but neither resided on the reservation.[59] Prior to the birth, the child’s mother made plans to place the child for adoption in New York.[60] Six days after the child’s birth, the mother traveled to New York, executed her consent to the adoption and termination of her parental rights, met the adoptive parents[61], and turned the child over to them.[62] In overturning the adoption proceedings, the New Jersey Supreme Court stated that the primary purpose of ICWA is “preserving the continued existence and integrity of Indian tribes by preventing the unwarranted removal of Indian children from their families by nontribal public and private agencies.”[63] The court rejected the existing Indian family exception because, as it stated, the doctrine makes the voluntariness of the mother’s termination of parental rights the determinative jurisdictional and because the language of ICWA does not include it as a factor of jurisdiction.[64]
[1] It does not appear that the remaining states addressed the issue in case law.
[2] 525 N.E.2d 298 (Ind. 1988).
[3] Id. at 301.
[4] Id.
[5] Id.
[6] Id. at 301-02.
[7] Id. at 302. The former husband of the birth mother was not present at the time of the transfer of T.R.M. and did not object to the transfer. Id. Additionally, it is not clear that the former husband of the birth mother was ever established as the father of T.R.M. Id.
[8] Id.
[9] Id.
[10] Id.
[11] Id. at 302-03 (emphasis added; internal quotation omitted).
[12] Id. at 303
[13] 643 P.2d 168 (Kan. 1982).
[14] Id. at 172.
[15] Id.
[16] Id. at 172-73.
[17] Id.
[18] Id.
[19] Id.
[20] Id. at 175.
[21] Id.
[22] 703 S.W.2d 603 (Mo. App. 1986).
[23] Id. at 603-04.
[24] Id. at 604.
[25] Id. at 607 (emphasis in original opinion but not in statute; citing 25 U.S.C. § 1912(f)).
[26] Id. at 607.
[27] Id. at 609.
[28] 742 P.2d 1059 (Okla. 1985).
[29] 741 P.2d 1386 (Okla. 1985).
[30] 742 P.2d 1059, 1060.
[31] Id.
[32] Id. The father also claimed that the adoption should be vacated because he had been denied due process and because of the fraud practiced on the part of the birth mother. Id.
[33] Id. at 1061.
[34] Id. at 1064.
[35] Id. at 1074.
[36] 741 P.2d. 1386, 1387.
[37] Id.
[38] Id.
[39] Id.
[40] Id. The Cherokee Nation also complained of lack of notice to the tribe. Id.
[41] Id. at 1388-89
[42] Id. at 1389.
[43] Id. As with Baby Boy D, D.M.J. included a dissenting opinion which stated that the existing Indian family doctrine was inapplicable and ICWA should have been applied. Id. at 1389-90.
[44] 405 N.W.2d 650 (S.D. 1987).
[45] Id. at 651.
[46] Id. at 652.
[47] Id.
[48] Id. The action also included a request for a declaratory judgment concerning his paternity, entry of an order requiring payment of child support, and scheduled visitation rights. Id.
[49] Id.
[50] Id.
[51] Id. at 653.
[52] Id.
[53] Id. (internal citation omitted).
[54] Id.
[55] Id. (citing 643 P.2d 168 (Kan. 1982)).
[56] Id. at 653-54.
[57] 543 A.2d 925 (N.J. 1988).
[58] Id. at 928.
[59] Id.
[60] Id.
[61] The adoptive parents are New Jersey residents. Id.
[62] Id.
[63] Id. at 930 (internal citations omitted).
[64] Id.
An updated version of this article was published in the Family Law Reporter. The article can be accessed through my JDSupra profile: http://www.jdsupra.com/post/documentViewer.aspx?fid=ea8fb56c-2988-48cd-a0b9-083c3482730d