In re A.J.S.
2009 Kan. LEXIS 57, 288 Kan. 429, 204 P.3d 543 (2009)
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Rule of Law:
The Indian Child Welfare Act (ICWA) applies to all state child custody proceedings involving an Indian child, as defined by the statute. The judicially-created 'existing Indian family' doctrine is not a valid exception to the application of ICWA, as the Act's protections extend to the tribe's interest in the child, independent of the parents' cultural affiliation.
Facts:
- An unmarried Mother and Father had a child, A.J.S.
- Father is an enrolled member of the Cherokee Nation, while Mother is non-Indian and has no connection to tribal life.
- The day after A.J.S. was born, Mother consented to the child's adoption by members of her own non-Indian family.
- Father had never had contact with or provided support for A.J.S.
- On a social media page, Father had previously listed his heritage as white/Caucasian.
- Mother testified that if the proposed adoption by her family failed, she would revoke her consent and raise A.J.S. herself to prevent the child being raised by Father or the tribe.
- The parties stipulated that A.J.S. meets the statutory definition of an 'Indian child' under ICWA.
Procedural Posture:
- Mother filed a petition in Sedgwick County district court, a state trial court, to terminate Father's parental rights.
- The court entered a temporary order placing A.J.S. in the custody of the intended adoptive parents.
- Father filed an answer invoking ICWA and requesting transfer of the case to tribal court.
- The Cherokee Nation filed a motion to intervene in the state court proceeding.
- Relying on the 'existing Indian family doctrine,' the district judge ruled that ICWA was inapplicable to the proceeding.
- The district judge subsequently denied the Cherokee Nation's motion to intervene and refused to transfer the case.
- The district judge granted the parties permission to file an interlocutory appeal of these rulings to the Kansas Supreme Court.
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Issue:
Does the judicially-created 'existing Indian family' doctrine create a valid exception to the application of the Indian Child Welfare Act (ICWA) in a state child custody proceeding involving a child who statutorily qualifies as an 'Indian child'?
Opinions:
Majority - Beier, J.
No. The judicially-created 'existing Indian family' doctrine is not a valid exception to the Indian Child Welfare Act (ICWA) and is hereby overruled. The court's reasoning is that the doctrine contradicts the plain language of ICWA, which provides no such exception for its application. The Supreme Court's decision in Mississippi Band of Choctaw Indians v. Holyfield established that ICWA protects the tribe's distinct interest in its children, which cannot be unilaterally defeated by a parent's lack of cultural connection or desire to place the child in a non-Indian home. The doctrine also improperly requires state courts to make subjective inquiries into a family's 'Indianness,' the very practice Congress sought to prevent. The overwhelming majority of other jurisdictions have rejected the doctrine, and aligning with them is the wisest course.
Analysis:
This decision marks a significant shift in Kansas law, aligning it with the majority of state and federal interpretations of the Indian Child Welfare Act. By explicitly overruling In re Adoption of Baby Boy L. and abandoning the 'existing Indian family' doctrine, the court strengthens tribal sovereignty and ensures that a tribe’s distinct interest in its children is protected in custody proceedings. The ruling eliminates a major loophole that allowed state courts to bypass ICWA's requirements, meaning future cases involving any child who meets the statutory definition of an 'Indian child' must afford the tribe notice and the right to intervene, regardless of the parents' or child's cultural ties.
