Wednesday, 9 May 2012

Turning Its Back on the Existing Indian Family Doctrine: Decision from Kansas Supreme Court

On May 4, 2012, the Kansas (USA) Supreme Court issued a decision that upholds the importance of compliance with the Indian Child Welfare Act. The decisions coming from Kansas, since its repudiation of the Existing Indian Family doctrine in 2009 have been very clear that it will be intolerant of noncompliance with ICWA. The Kansas cases attract attention, in no small part because of their symbolic, if not binding value, since it was the Kansas courts that came up with the Existing Indian Family doctrine in the first place. Other courts began to use this doctrine as a way to evade the application of the Indian Child Welfare Act. In short, if a judge –using his or own criteria—decided if a child was not “Indian enough”, that was used with the application of the doctrine to avoid the requirements of ICWA.

(See earlier blog posts on the Indian Child Welfare Act and the Existing Indian Family Doctrine here and here, for commentary on the pending South Carolina case at this link )

The kinds of cases that attract the application of the Existing Indian Family doctrine are often where there is an indigenous father and non-indigenous mother, and the mother wishes to put the child up for adoption, and a non-indigenous family has been selected as the prospective adoptive placement. These are the facts of the case decided by the Kansas Supreme Court, and similar to the facts of the case awaiting a decision from the South Carolina Supreme Court.

The Kansas decision turned on, among other issues, whether the order of placement preferences under ICWA had been followed. The statutory preferences are to be adhered to, unless the child’s tribe has set out a different order of preference. There was no indication in the decision that the tribe had a differing order of preference. Thus, the statutory preferences had to be followed, unless good cause was shown as to why they should not be. The statutory order of preference is
1) The child’s extended family
2) Other members of the child’s tribe
3) Other Indian families
(Sec 1915 of ICWA)

It is important to note as well the role played by the Cherokee Nation in this case. Under the provisions of the Indian Child Welfare Act, the child’s tribe can become involved in the case, and this is exactly what happened here. The Cherokee Nation filed as the Appellant with the Kansas Supreme Court. ICWA recognises the importance that a “tribe” has in and for indigenous families and children.

Kansas courts are now headed in the right direction in their interpretation and application of the Indian Child Welfare Act. Kansas has firmly turned its back on the usage of the Existing Indian Family Doctrine: it is hoped that the few other states that continue to use this doctrine will follow suit.

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