The California Legislature responded to Bridget R. by amending state law to define the
term “Indian child.”405 But while the new statutory language evidently disapproved of the
Bridget R. decision, that language was identical to the language in ICWA itself—language the
Bridget R. court was interpreting. This meant that when the court was called upon to address the
subject again in Santos Y., it reiterated its holding in support of the Existing Indian Family
Doctrine.406 Today, the status of the Doctrine in California remains unsettled. Some Courts of
Appeal have rejected it,407 and the state Supreme Court has not resolved the conflict.408 Many
other state courts have now abandoned the Doctrine, however, including the Kansas Supreme
Yet in the long run, debate over the Doctrine misses the essential point. The Doctrine is
not an assault on ICWA. It is a saving construction designed to preserve a statute that would
otherwise run afoul of the Constitution’s ban on racial discrimination.410 To abandon the
Doctrine would only force courts to confront that prohibition directly, and that would involve
further conflict in high profile cases involving children whose sole connection to tribes is
biological. ICWA cannot survive that confrontation. The Constitution simply cannot abide a
405 CAL. WELF. & INST. CODE § 360.6. This provision was later re-codified in CAL. FAM. CODE § 170.
406 In re Santos Y., 92 Cal. App. 4th 1274, 1316–17 (2001).
407 In re Alexandria P., 228 Cal. App. 4th 1322, 1344 (2014); In re Vincent M., 150 Cal. App. 4th 1247, 1264
(2007); In re Adoption of Hannah S., 142 Cal. App. 4th 988, 995 (2006); In re Alicia S., 65 Cal. App. 4th 79, 88
408 In 2006, the California Legislature adopted CAL. WELF. & INST. CODE § 224, again purporting to negate the
Doctrine. That statute, however, declares only that “[ i]t is in the interest of an Indian child that the child’s
membership in the child’s Indian tribe and connection to the tribal community be encouraged and protected,
regardless of whether the child is in the physical custody of an Indian parent or Indian custodian at the
commencement of a child custody proceeding. . . .” One Court of Appeal has declared that “there is no question”
that this put an end to the Doctrine in California, In re Autumn K., 221 Cal. App. 4th 674, 716 (2013), but the
California Supreme Court has not addressed the question.
409 In re A.J.S., 204 P.3d 543, 549–50 (Kan. 2009). See also In re Baby Boy L., 103 P.3d 1099, 1103–06 (Okl.
2004); Thompson v. Fairfax Cty Dep’t of Family Servs., 747 S.E.2d 838, 846–48 (Va. Ct. App. 2013); In re
Adoption of T.N.F., 781 P.2d 973, 977 (Alaska 1989).
410 See, e.g., In re Bridget R., 41 Cal. App. 4th 1483, 1492 (1996) (“[T]he existing Indian family doctrine is
necessary in a case such as this in order to preserve ICWA’s constitutionality.”)