are self-governing communities. 10 Also impacted are Indian children’s interests to be raised, to
participate, and to benefit from their parents’ and tribes’ culture and community. 11 This Article
argues that “continued custody” should not be limited to physical custody. Rather, “continued
custody” should also include efforts to meaningfully accept the role of parenthood so that unwed
Indian fathers without physical custody are not automatically excluded from the ICWA’s
protections. 12 This would ensure that courts consider tribal interests in Indian children, Indian
fathers’ interests, and Indian children’s interest in relation to their tribes and families.
States’ application of the ICWA has varied since its enactment in 1978.13 Prior to
Holyfield, state courts limited the ICWA’s application to instances where there was an existing
Indian family. 14 In overturning the existing Indian family doctrine, state courts employed
Holyfield to determine that the ICWA applied in any child custody proceeding involving an
Indian child. 15 By positioning the pre-existing custody requirement between the stringent existing
Indian family doctrine and the ICWA’s broader application under Holyfield, state courts
safeguard tribes’ unique interests in Indian children in line with congressional intent. 16
Part II of this Article will provide the historical background to the ICWA, including
Congress’s enactment of the ICWA, a brief history of the existing Indian family doctrine and
many state court rejections of the doctrine under Holyfield, and the Supreme Court’s recent
decision in Adoptive Couple. 17 Part III will demonstrate that the extreme nature of Adoptive
Couple, where there was no meaningful parent-child relationship, does not mean that when an
Indian father without physical custody demonstrates efforts to assume parenthood and establish a
parent-child relationship, there has been no pre-existing custody. 18 Part IV will argue that state
court precedent that evaluated efforts by unwed fathers and state legislation provide bases for
state courts to continue with a broad application of the ICWA without undermining “continued
custody.” This Article urges state courts to implement a flexible standard that evaluates efforts by
the unwed father to assume parenthood in determining whether the ICWA’s pre-existing custody
requirement has been met. Finally, Part V concludes that the ICWA’s pre-existing custody
requirement should carry a low burden of proof to ensure that the unique interests of Indian
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10 See Holyfield, 490 U.S. at 34.
11 See id.
12 See Adoptive Couple, 133 S. Ct. at 2558. The Court found that the biological father in Adoptive Couple “made no meaningful
attempts to assume his responsibility of parenthood” because the biological father provided no financial support to the birth mother
during her pregnancy or to the baby girl after her birth, the biological father sent a text message to the birth mother indicating he
relinquished his parental rights, and the biological father had no contact with the baby girl until she was twenty-seven months old
when the South Carolina Family Court awarded the biological father custody of the baby girl. Id. at 2558–59 (internal quotation marks
omitted). The facts that the Court relied on to find the father made no attempts to assume parenthood suggests that where an unwed
non-physical custodial Indian father makes such efforts, such as providing financial assistance and visiting his child, demonstrate the
father has made meaningful steps to accept the responsibility of parenthood. See id.; see id. at 2578–79 (Sotomayor, J., dissenting).
Justice Sotomayor suggests that based on the majority’s interpretation of the ICWA, a biological Indian father “who, though he has
never had custody of his biological child, visits her and pays all of his support obligations” would not be protected by the ICWA
because he is a non-physical custodial parent. Id. Thus, it follows that a father who visits his child and pays his support obligations
should receive the ICWA’s protections. See id.
13 See Dan Lewerenz & Padraic McCoy, The End of the “Existing Indian Family” Jurisprudence: Holyfield at 20, in the Matter of
A.J.S. and the Last Gasps of a Dying Doctrine, 36 WM. MITCHELL L. REV. 684, 695–96, 701 (2010).
14 See, e.g., In re Adoption of Baby Boy L., 643, P.2d 168, 175 (Kan. 1982), overruled by In re A.J.S., 204 P.3d 542 (Kan. 2009).
15 See, e.g., Jared P. v. Glade T., 209 P.3d 157, 160 (Ariz. Ct. App. 2009).
16 See, e.g., Bruce L. v. W.E., 247 P.3d 966, 974 (Alaska 2011) (“ICWA applies to any proceeding that might result in the termination
of a parent-child relationship involving an Indian child.”); 124 CONG. REC. 38,101–03 (1978).
17 See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30 (1989); see Adoptive Couple, 133 S. Ct. 2552; see also Jared P., 209
P.3d at 160 (interpreting Holyfield to reject the existing Indian family doctrine).
18 See Adoptive Couple, 133 S. Ct. at 2572–73, 2576, 2578 (Sotomayor, J. dissenting) (noting that the majority’s decision, which was
based on highly-contested facts, makes the ICWA’s protections inapplicable to any Indian parent who never had custody even if the
parent made efforts to have a parent-child relationship); but cf. id. at 2558–62 (majority opinion) (noting that the unwed father made
no effort toward accepting parenthood so there was no pre-existing custody).