The "Existing Indian Family Doctrine" Again: South Carolina Supreme Court case

The largely discredited “Existing Indian Family Doctrine” features in an adoption case that is being heard by the South Carolina (USA) Supreme Court.
according to ABC News.

The child’s father is a member of the Cherokee Nation, and argues that the adoption was not done in accordance with the requirements of the Indian Child Welfare Act.

The Indian Child Welfare Act was passed to stop decades of governmental forced removal of indigenous children in the belief that to separate them from their families and communities to assimilate into white society was somehow beneficial to the child. (For more information on these practices, see the Child Welfare League of America apology for its participation).

Oourts were and remain resistant to the ideas of self-determination and autonomy in the Indian Child Welfare Act.(See this blog post for more information about the Existing Indian Family Doctrine.) The “Existing Indian Family Doctrine” is a judicially created doctrine that tries to end-run the provisions of the Act. Under this doctrine, which is in conflict with the plain language of the Act, a judge can decide a child is not “Indian enough” for the Act to apply; notwithstanding the jurisdictional provisions of the Act. The doctrine was created by the state of Kansas and was notably disavowed in 2009 in the Kansas Supreme Court decision, In the Matter of AJS.
Few states continue to use this doctrine. But it remains in usage, as the South Carolina case demonstrates.

This news story indicates that a decision from the South Carolina Supreme Court is expected “within 30 days” of hearings that were held on April 17, 2012.

This case has generated a lot of discussion, as can be seen on this adoption blog page. The Indian Child Welfare Act and the basis for it being used in this case receives a lot of comment, but it would be fair to say that neither the Act, its purpose and application, or the way in which the Existing Indian Family Doctrine comes into direct conflict with the plain language of the Act are well understood. Ironically, the Act is seen as somehow robbing parents of a child-- the very thing the Act was enacted to prevent. The question of course, is which parents--the indigenous parents or the prospective and non-indigenous adoptive parents ---excite the most sympathy.

CNN has also run an article about the case, from which it appears that the purpose of ICWA is as little understood as ever.

Non-compliance with the Act, whether through willfullness or ignorance, remains a large problem in realising the protections provided in the Act to indigenous children, families and peoples.

Whether South Carolina will join the states that have denounced the Existing Indian Family doctrine, or remain one of a handful of states that clings onto this doctrine is something that bears close watching.