By Cassandra Erler


When Congress passed the Indian Child Welfare Act in 1978, Native American children were eight times more likely to be placed in foster care than non-Native American children, with over 90% of Native American foster youth being placed in non-tribal homes.[1]  Despite the ICWA’s existence, many states continue to remove Native American children from their tribes at alarming rates decades later.  In South Dakota, a 2011 study showed that Indian children made up over half the foster care children in the state, even though these children made up less than 15% of the state’s child population.[2]  South Dakota’s foster care officials placed 90% of Indian children in non-Indian homes or group care.[3]  These high numbers indicate that tribal values and culture are not being considered the way Congress intended when it created the Indian Child Welfare Act specifically to strengthen tribal communities and keep courts from removing children from their tribes without tribal input.  Rather than honoring this intent, courts deny tribes jurisdiction in custody proceedings that would clearly fall under the ICWA, if not for a court-made exception.

In 1982, the Kansas Supreme Court created the “existing Indian family” exception, which prevents the ICWA from applying to children who are not part of an existing Indian family unit. The court determined that such a unit only existed if the child or its family had adequate ties to the tribe that was seeking jurisdiction, while it did not exist if the child’s family was not connected to the tribe in some way beyond simple blood relation.[4] Even the name of the exception, “existing Indian family,” disregards a tribe’s right to be heard in child custody proceedings dealing with their tribal members or potential members because it ignores the importance of the extended family and community within tribal cultures.[5]  Young tribe members are an Indian community’s only hope for survival, and the means by which the community passes on its traditions and values.[6]  When enacting the ICWA, Congress explicitly stated that the ICWA was meant to protect the best interests of Indian children by establishing minimum federal standards for the removal of these children from their families, and it emphasized placement in foster or adoptive homes that would reflect the unique values of Indian culture.[7]  Tribal sovereignty includes the right to raise and care for its youngest members, and tribes traditionally raise their children in an extended family model that extends beyond the child’s mother and father. The ICWA acknowledges a tribe’s shared interest in raising these children, while the existing Indian family exception fails to recognize the impact that removing a native child from the tribe has on the entire tribal community.[8]  Removing Native American children from the tribe also separates that child from the tribe’s spiritual bonds, which are completely unique to its culture and not fully understood by outside communities.  These spiritual bonds acknowledge that a child does not belong to its parents alone, but is a part of something bigger – the tribe.[9]  It is this emphasis on the tribe as a whole that is essential – while a native child’s parents may choose to live outside of the tribe, the tribe itself has blood ties to that child, and thus a legal right under the ICWA to help determine where that child shall live.

The existing Indian family exception undermines the ICWA’s intent and purpose by taking the determination of who is an “Indian Child” out of the tribe’s hands and placing it with judges who do not understand a tribe’s cultural customs and needs.[10]  This situation does not simply involve taking a child’s welfare out of the hands of a parent – it is taking the child’s welfare out of the hands of an entire community, which is particularly well-versed in that child’s social and spiritual needs.  Additionally, this practice blatantly disregards the tribal jurisdiction grant by the ICWA – a jurisdiction that must legally preempt any state law since it was granted by a federal statute.  This exception also ignores the fact that the ICWA already clearly defines an “Indian Child” as a member of a tribe or the biological child of a member and eligible for membership.[11]   Under ICWA, there is no further “test” to see if a child is “Indian enough” to qualify, and yet state courts have elected to use the existing Indian family exception to create culturally insensitive and ignorant tests that deny tribes jurisdiction in cases in which they would otherwise be granted exclusive jurisdiction over the child custody proceedings for one of their potential young members.[12]Even the Kansas Supreme Court, the original creators of the exception, have since renounced the exception on the grounds that it frustrated the purpose of the ICWA, which was passed to curtail state authorities from making child custody determinations based on misconceptions of Indian family life.[13]

It is impossible for Indian children’s best interests to be fully considered and understood in a court that does not acknowledge their unique social and cultural needs.[14]  The actions of the parents alone in these situations were not meant to defeat tribal jurisdiction, a stance shared by the Supreme Court in the Holyfieldcase.[15]  In this case, the Court declared, “Tribal jurisdiction . . . was not meant to be defeated by the actions of individual members of the tribe, for Congress was concerned not solely about the interests of Indian children and families, but also about the impact on the tribes themselves.”[16]  Instead of acknowledging the right of tribes to be involved in these proceedings, state courts use the existing Indian family exception as a tool to resist tribal participation in the proceedings, as well as a means of avoiding application of the ICWA that would otherwise dictate the appropriate jurisdiction.[17]

So long as the existing Indian family exception may be applied, as it still is in Alabama, Indiana, Kentucky, Louisiana, Missouri, and Tennessee,[18]Indian children will continue to be deprived of their cultural roots, while tribes will be deprived of the young members that ensure the survival of their cultures and communities.


[1]Will Houston, Report States Tribal Child Custody Laws Neglected on Statewide Level,Times Standard(June 27, 2016, 9:36 PM), *10,

[2]See Kathleena Kruck, The Indian Child Welfare Act’s Waning Power AfterAdoptive Couple v. Baby Girl, 109 Nw. U.L. Rev. 445, 453 (2015) (noting that these numbers reflect Congress’ own investigation in 1976).

[3]See id. (adding that less than 12% of Indian children are removed for physical abuse).

[4]See In re Baby Boy L., 643 P.2d 168, 206 (Kan. 1982) (holding 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”).

[5]See Cheyanna L. Jaffke, The “Existing Indian Family” Exception to the Indian Child Welfare Act: The States’ Attempt to Slaughter Tribal Interests in Indian Children, 66 La. L. Rev.733, 742 (2006)  (noting that under the exception, what qualifies as an “Indian family” differs from court to court, and that the ICWA might not be applied in situations in which the child has never lived in an Indian family and has no association with the Indian culture, even if the child’s biological parent has such associations).

[6]25 C.F.R. § 23.3.

[7]See Jaffke, supra note 4, at 736 (adding that this policy requires courts to consider American Indian culture when determining what is in the best interest of an Indian child).

[8]See id. at 747 (emphasizing the role of the extended family in American Indian culture).

[9]See id. (adding that Congress created the ICWA specifically because states were unfamiliar with Indian spiritual bonds and had a long-standing history of depriving Indian tribes of their children).

[10]See id. at 748 (emphasizing that the exception ignores Congress’ goal of tribal self-determination).

[11]25 C.F.R. § 23.2.

[12]See In re Adoption of Crews, 825 P.2d 305, 310 (Wash. 1992) (en banc) (holding that the ICWA does not apply when an “Indian child is not being removed from an Indian cultural setting”); see also Cheyanna L. Jaffke, Judicial Indifference: Why Does the Existing Indian Family Exception to the Indian Child Welfare Act Continue to Endure?, 38 W. St. L. Rev.127, 143 (2011) (noting that non-Indian judges only have Hollywood’s Native American stereotypes to judge the “Indianness” of a child or family: brown-skinned persons with black hair worn in braids and adorned with feathers who live in a teepee on a reservation, and further noting that other tests include whether an individual privately identifies as an Indian, private observance of tribal customs, participation in tribal community affairs, voting in tribal elections, contributing to tribal charities, subscribing to tribal newsletters, and maintaining social contacts with other members of the tribe).

[13]See In re A.J.S., 288 Kan. 429, 441 (2009) (overruling Baby Boy L.and abandoning the existing Indian family exception, while finding that the ICWA’s overall design ensures that the interests of all parties are appropriately considered and safeguarded).

[14]See Jaffke, supra note 4, at 748-49 (noting that the exception fails to consider that children could be exposed to their cultures later in life and denies tribes the right to establish or renew ties with children born to tribal members).

[15]Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49 (1989).


[17]See Jaffke, supranote 4, at 741 (adding that by applying the exception, state courts get to decide who a “real” American Indian child is, despite the fact that the ICWA provides a clear definition of “Indian child” already).

[18]S.A. v. E.J.P., 571 So. 2d 1187 (Ala. Civ. App. 1990); In re Adoption of T.R.M., 525 N.E.2d 298 (Ind. 1988); Rye v. Weasel, 934 S.W. 2d 257 (Ky. 1996); Hampton v. J.A.L., 658 So. 2d 331 (La. Ct. App. 1995); C.E.H. v. L.M.W., 837 S.W. 2d 947 (Mo. Ct. App. 1992); In re Morgan, 1997 Tenn. App. LEXIS 818 (Tenn. Ct. App. 1997).

Posted in

Share this post