The Existing Indian Family Doctrine

There are obviously strong feelings in a difficult case, like the one I posted about, where a child who spent 2 years with adoptive parents is returned to birth parents.  I wanted to address one issue raised in the comments by various commenters, touching on the Indian Child Welfare Act aspect of the case:

"the indian law being used here is silly. he is not an active part of the indian community."
"Apparently he does not live within the tribe, so it's doubtful this child will grow up knowing her 'tribe' or any of it's true purposes."
"just because someone is an enrolled member of the tribe, as this dad is, doesn't necessarily mean grew up with the tribe, that he lives with the tribe now, or that he participates in the affairs the tribe in any meaningful way."

I think the commenters are alluding to something called the "existing Indian family" doctrine, that some state courts have adopted in applying ICWA.  That phrase does not exist in the statute, having been invented 4 years after the adoption of ICWA by a Kansas court seeking not to apply the federal statute to an adoption case.  As we say in law, hard facts make bad law. And these days, only 6 states are still following that doctrine.

Under the existing Indian family doctrine, courts would take one of two approaches. In a case of newborn adoption, the court would say, "The child was never part of an existing Indian family,"  emphasizing that the child hadn't lived with the birth parents as a family. Right, because the child was never ALLOWED to be part of an existing Indian family!  I especially like that argument in cases where the Native American parent, usually the birth father, was never told about the existence of the child or given notice of the adoption, much less the opportunity to bring the child into an existing Indian family. 

And as I mentioned, there's nothing in ICWA that requires an existing Indian family -- only that it be a child custody case involving an Indian child as defined in the act. An Indian child is "any unmarried person who is under age eighteen and 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."

There's a pretty clear reason why ICWA doesn't include the phrase "existing Indian family" -- the intent of ICWA is not simply to protect Indian families, but to protect the sovereignty of Indian tribes and to protect Indian children, separate and apart from whether their families are existing Indian families.  The creation of the "existing Indian family" is some of that judicial activism that it's so popular to rail against these days.

The second way courts have used the "existing Indian family" doctrine is to  focus on the Indian part, and deny application of ICWA if the court feels the birth parent isn't "Indian" enough.  Like in a California case where the court noted that the birth parents didn't live on the reservation, didn't participate in tribal events, did not have Indian artifacts in their homes, and did not follow Indian traditions and holidays at home.

I find this particular use of "existing Indian family" doctrine particularly troubling.  Here we have white courts making judgments about what it means to be Native American.  With little knowlege of what it actually means to be Native American, courts focus on outward trappings, and tend to do so with stereotypical notions of Indianness.  Does he wear braids?  Do they have a dream catcher over the crib?  Do they have a peace pipe at home?  Yikes, how offensive is that! And the whole point of ICWA was to avoid this kind of prejudiced thinking by non-Indian courts.

Can you imagine doing that with any other racial or ethnic group?  "You're African-American, but you shouldn't be allowed to adopt an African-American child, because you don't live in the inner city, you don't speak Ebonics, you don't listen to rap. You don't qualify as an existing African-American family." China gives a preference in adoption to ethnically-Chinese parents -- what if they said, "What?  You don't celebrate Grave Sweeping Day? You can't use chopsticks? You didn't hang Spring Couplets above your door last Lunar New Year?  You don't qualify as an existing Chinese family!" Would we be ok with that?

ICWA is designed to prevent outsiders from deciding who is Indian -- the act gives the responsibility to the tribes themselves to decide who is a tribal member, and then hinges all of ICWA's protection from that definition.  The existing Indian family doctrine is completely contrary to ICWA.

And courts have come to recognize that. Kansas, the state that invented the existing Indian family exception to ICWA, has now rejected it. And Kansas isn't alone -- 13 of the 19 states that once followed the doctrine have since rejected it as contrary to the language of the statute.  That leaves only 6 states that still follow it, and two of those states have limited the existing Indian family doctrine considerably.

The pendulum is swinging back so that the actual language of ICWA will prevail, not the judicially invented "existing Indian family" doctrine.  If folks think the existing Indian family doctrine should prevail, they first have to change the statute. Without that, courts are not mis-applying the law in cases like this one.