to protect.136 Thus, when analyzing whether an unwed father has established custody sufficient to
evaluate “continued custody,”137 so that the ICWA’s heightened protections regarding termination
of parental rights apply, state courts should consider such factors as the unwed father’s
knowledge of the child’s existence and thus whether the unwed father had a reasonable
opportunity to take on parenthood.138 A non-physical custodial Indian father should not be
automatically excluded from the ICWA’s protections.139
B. In re Adoption of Baade
Prior to 2013 and after Holyfield, the majority of state courts applied the ICWA’s
heightened protections to any custody proceeding involving an Indian child.140 One example is In
re Adoption of Baade.141 There, the Supreme Court of South Dakota established the standard that
the “ICWA’s application to a case is only contingent upon whether an ‘Indian child’ is the subject
of a ‘child custody proceeding.’”142 Earlier, the Supreme Court of South Dakota had established
the existing Indian family doctrine in Claymore v. Serr,143 which held that the ICWA’s
application was dependent upon the Indian child being a part of an existing Indian family.144 The
court’s decision in In re Baade is noteworthy because it overturns the existing Indian family
doctrine by applying Holyfield.145 The court reasoned that Holyfield’s finding that the ICWA was
also intended to “protect . . . the rights of the Indian community and tribe in retaining its children
in its society”146 required state courts to look beyond the interests of an existing Indian family in
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136 See In re Baby Girl B., 67 P.3d at 365–66; see Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 34–37 (1989).
137 25 U.S.C. § 1912(f) (2012); see also id. § 1912(d) (requiring that “active efforts” must have been made “to prevent the breakup of
the Indian family”). The Court concluded that like “continued custody,” “breakup of the Indian family” indicates that there must be a
relationship between the unwed Indian father and the child for the court to evaluate. Adoptive Couple, 133 S. Ct. at 2560 (majority
138 See In re Baby Girl B., 67 P.3d at 365–66; Adoptive Couple, 133 S. Ct. at 2571 (Breyer, J., concurring).
139 See In re Baby Girl B., 67 P.3d at 366; Adoptive Couple, 133 S. Ct. at 2571 (Breyer, J., concurring); id. at 2578 n. 8 (Sotomayor, J.,
dissenting); cf. id. at 2558–59 (majority opinion) (relying on the father’s indication that he relinquished his parental rights among
other facts to conclude that the father did not have pre-existing custody, which suggests that where a father does not take such an
affirmative step, pre-existing custody may exist and the ICWA may apply).
140 See, e.g., In re Adoption of Baade, 462 N. W.2d 485, 490 (S.D. 1990).
142 Id. (referring to the terms in the ICWA). Section 1903( 4) of the ICWA defines an “Indian child” as “any unmarried person who is
under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the
biological child of a member of an Indian tribe.” 25 U.S.C. § 1903( 4) (2012). Section 1903( 1) further provides that a custody
proceeding includes: foster care placements, termination of parental rights, preadoptive placements, and adoptive placements. 25
U.S.C. § 1903( 1) (defining further foster care placement, termination of parental rights, preadoptive placement, and adoptive
placement as individual terms).
143 Claymore v. Serr, 405 N. W.2d 650, 654 (S.D. 1987).
144 Id. at 653–54. In defining family, the South Dakota Supreme Court applied a narrow definition of family. The court held that
family within the context of the ICWA, was restricted to the nuclear family. Id. at 653. This reasoning fails to recognize the emphasis
Congress placed on tribal culture, where an Indian child may have a close relationship with extended family members, who could
provide care to the child while maintaining the child’s relationship with the tribal community. By considering testimony regarding the
support extended families in tribes provide to raise children, Congress sought to acknowledge tribes’ interests in their children and
preserve tribes’ existence as self-governing communities. See 1977 Hearings, supra note 31, at 316 (“For example, Indian extended
families are far larger than non-Indian nuclear families. An Indian child may have scores of, perhaps more than a hundred, relatives
who are counted as close, responsible members of the family.”); see also Amici Curiae Brief, supra note 20, at 10–11 (arguing the
legislative history of the ICWA demonstrates Congress’s concern for familial relationships within tribes and that Congress intended to
protect Indian children’s relationships with their tribes through the ICWA).
145 In re Baade, 462 N. W.2d at 489–90; see Lewerenz & McCoy, supra note 13 at 717–22 (providing a more-thorough explanation of
several state courts’ applications of Holyfield to reject the existing Indian family doctrine in favor of a more broad application of the
ICWA); see Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 34–37. In Holyfield, the Supreme Court concluded that “the
protection of th[e] tribal interest is at the core of the ICWA, which recognizes that the tribe has an interest in the child which is distinct
from but on a parity with the interest of the parents.” Holyfield, 490 U.S. at 52. In reaching its conclusion, the Court relied upon
hearings and evidence before Congress that emphasized the impact the removal of Indian children had on tribes in their ability to
continue as self-governing entities. The Court reasoned that through the ICWA, Congress intended to protect tribal interests in their
children alongside those of the Indian family and child. See id. at 32–37.