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ICWA in cases involving children whose only connection to a tribe is biological. In doing so,
they have fashioned an exception to ICWA known as the Existing Indian Family Doctrine.389
The Doctrine, however, has been heavily criticized, and the current trend is to abandon it.
The Doctrine was first employed by the Kansas Supreme Court in In re Baby Boy L.,390
which involved a child born to an unmarried non-Indian mother and a father who was a member
of the Kiowa tribe and was incarcerated when the child was born. The mother consented to
having him adopted.391 But after he was born, the father asserted rights under ICWA, and—over
the mother’s objection—the child was enrolled in the tribe.392 The trial court found that ICWA
did not apply, and the state Supreme Court agreed. ICWA was intended to maintain “the family
and tribal relationships existing in Indian homes,” the Court held, “not to dictate that an
illegitimate infant who has never been a member of an Indian home or culture, and probably
never would be, should be removed from its primary cultural heritage and placed in an Indian
environment over the express objections of its non-Indian mother.”393 To apply ICWA in such a
case “would be to violate the policy and intent of Congress rather than uphold them.”394
After Baby Boy L., several other state courts adopted the Existing Indian Family
Doctrine, holding that ICWA simply did not apply to cases in which the child’s only connection
to a tribe was biological.395 Among the most prominent decisions applying the Doctrine were In
389 See generally Toni Hahn Davis, The Existing Indian Family Exception to the Indian Child Welfare Act, 69 N.D.
L. REV. 465 (1993).
390 643 P.2d 168 (Kan. 1982).
391 Id. at 173.
393 Id. at 175.
395 See, e.g., In re Santos Y., 92 Cal. App. 4th 1274 (2001); Rye v. Weasel, 934 S.W.2d 257, 263 (Ky. 1996); In re