Wednesday, January 12, 2011

The Existing Indian Family Exception to ICWA

I have previously written a paper on the topic of the existing Indian family exception to the Indian Child Welfare Act.  This paper will be presented on this blog in several parts, due to the length of the paper.  This entry constitutes the first part.  I think the topic is certainly an interesting one, and hope that you may find the article useful.

     The Indian Child Welfare Act (ICWA) defines an “Indian” as “any person who is a member of an Indian tribe, or who is an Alaska Native and a member of a Regional Corporation as defined in 1606 of title 43.”[1]  ICWA further defines “Indian child” as “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.”[2]  In order to assist courts in determining exactly who is an Indian or an Indian child, the Bureau of Indian Affair (BIA) Guidelines state that
…the best source of information on whether a particular child is Indian is the tribe itself…Because of the Bureau of Indian Affairs’ long experience in determining who is an Indian for a variety of purposes, its determinations are also entitled to great deference.[3] 

The Guidelines further state that “[t]he determination by a tribe that a child is or is not a member of that tribe, is or is not eligible for membership in that tribe, or that the biological parent is or is not a member of that tribe is conclusive.”[4]  The text of the Indian Child Welfare Act gives no exceptions to application of ICWA’s requirements in the case of Indians who do not live on the reservation or do not have ties to the tribe or its cultural practices.  The Bureau of Indian Affairs similarly gives no exceptions to the application of ICWA’s requirements for Indians who do not have ties to the reservation, tribe, or tribal cultural practices. 
It seems reasonable, based upon this lack of express language, to think that Congress did not intend for such an exception to exist.  As B.J. Jones, Chief Judge of the Turtle Mountain Tribal Court of Appeals, stated,
The existing Indian family exception allows state courts to make the very value judgments pertaining to which Indians have sufficient contacts with their cultural and traditional antecedents that Congress felt the state courts were incapable of making.[5] 

If Congress intended for this type of an exception, called the existing Indian family exception, to be included as an ingredient for jurisdiction, it likely would have included it in the express language of the statute. 
Many state courts, however, have come to exactly the opposite conclusion.  These states interpret a lack of express language to the contrary as permission to create an exception to ICWA’s application.  Based on this premise, the existing Indian family doctrine was judicially-created to limit ICWA’s application from applying to Indian children whose family units lack ties to reservations or tribal culture.[6]  However, this judicially-created doctrine fails to recognize the interests of the Indian child’s tribe.  It also fails to recognize that the interest of the tribe is a discrete interest which is separate from the interests of the parents or Indian custodians;[7] and that the ultimate goal of ICWA is to preserve the distinct cultures of the tribes by protecting the children of those cultures.[8]  Courts, in states using the existing Indian family doctrine, refuse to apply ICWA “to situations where an Indian child is not being removed from an existing Indian family,” arguing that in those situations “the underlying policies [of ICWA] are not furthered.”[9] 

[1] 25 U.S.C. § 1903(3) (2006). 
[2] Id. at § 1903(4). 
[3] Department of Interior, Bureau of Indian Affairs Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed. Reg. 67584 at B.1 Commentary (Nov. 26, 1979) (internal citations omitted). 
[4] Id. at B.1. 
[5] D.H. Getches, C.F. Wilkinson, R.A. Williams, Jr. Cases and Materials on Federal Indian Law, 673 (Fifth Edition, 2005) (citing B.J. Jones The Indian Child Welfare Act: In Search of a Federal Forum to Vindicate the Rights of Indian Tribes and Children Against the Vagaries of State Courts, 73 N.D. L. Rev. 397, N.15). 
[6] The existing Indian family exception has even been called “judicial distortion of ICWA.”  B.J. Jones, Power Point Presentation and ICWA Training, Indian Child Welfare Act (South Dakota State Wide Education Services-SWES), July 19, 2007) (copy of Power Point available from B.J. Jones who may be contacted at 
[7] B.J. Jones, The Indian Child Welfare Act Handbook, chapter 4 (American Bar Association, Section of Family Law 1995). 
[8] Id. at chapter 8. 
[9] D.H. Getches, C.F. Wilkinson, R.A. Williams, Jr. Cases and Materials on Federal Indian Law at 673.  

1 comment:

  1. An updated version of this article was published in the Family Law Reporter. The article can be accessed through my JDSupra profile: