March 27th. The Kansas Supreme Court has issued its decision In the matter of A.J.S. (No. 99,130) an adoption proceeding from Sedgwick County. In a unanimous decision, authored by Justice Beier, the court overturned one of its own precedents dating from 1982 and reversed a District Court decision which had held that the Indian Child Welfare Act (ICWA) did not apply to the circumstances of this adoption, where the baby’s unmarried father and his tribe sought to block the adoption of the child by the mother’s family. The decision had been stayed for some time, due to a paternity test.
The child’s father is an Indian, a member of the Cherokee Nation. His mother is not an Indian. [It should also be noted that the father maintains that the mother is an Indian, while the mother maintains that the father claimed not to have been]. The child was conceived after the two had been dating for one month. After the child was born the mother initiated proceedings to terminate the father’s parental rights and have the baby adopted by members of her family. The father asserted that the ICWA should apply to the proceedings. The Cherokee Nation sought to intervene in the case, also citing ICWA which gives tribes standing to intervene separately from the parents in child custody cases involving Indian children. The District Court ruled that ICWA does not apply since the child had never been part of an Indian family. The District Judge’s ruling stems from a 1982 Kansas Supreme Court decision (In Re Baby Boy L.), that has become known as the ‘existing Indian Family exception’.
In that case the Kansas Supreme Court had held that Congress had created the ICWA in response to cases where Indian families had been broken up by State Welfare Agencies and their children adopted by non-Indians. It was not intended to apply in a situation where an unmarried non-Indian mother of a child that had never been a member of an Indian home wanted her baby adopted by non-Indians.
Since that time some other states have followed this doctrine taking their lead from Kansas, but most have not. In some of those states, the legislatures have amended the laws to end the exception. At the same time, the United States Supreme Court has not stepped into the matter, save for one case which was decided on different grounds but which emphasized the tribe’s distinct right to intervene even in an adoption proceeding which both parents supported.
The Kansas Supreme Court decision draws heavily on this U.S. Supreme Court case (Mississippi Band of Choctaw Indians v. Holyfield, 1989), noting its reliance on Congressional record to show that a major motivating factor in the passage of ICWA in 1978 was to protect the interests of the tribes. The decision today also refers to several law review articles covering the ‘existing Indian Family exception’ whose titles make clear their overall position on the subject (e.g. “…The States’ Attempt to Slaughter Tribal Interests…”, “…Rerouting the Trail of Tears?”).
The opinion of the Court describes the above in much more detail and indicates the controversy surrounding it, and then rules that henceforth the “existing Indian Family exception” does not apply in Kansas and In re Baby Boy L. is overturned. As a result the adoption proceedings must continue with ICWA applying.
While this case has been proceeding the child in question has been living with its intended adoptive parents. Justice Beier’s opinion gives no clue as to the age of the child or the timeframes involved. It is important to note that this appeal is an interlocutory one – i.e. has happened relatively quickly and early on in the case. The District Court decision which was appealed concerned the applicability of ICWA. The District Court had not yet ruled on the termination of the father’s parental rights or finalized the adoption.