The Real Impact of Adoptive Couple v. Baby Girl: The Existing Indian Family Doctrine Is Not Affirmed, but the Future of the ICWA's Placement Preferences Is Jeopardized

AuthorMarcia A. Zug
On July 3, 2013, Dusten Brown, his wife—Robin—and Brown’s
parents—Tommy and Alice Brown—filed actions to adopt “Baby
Veronica,”1 the four-year-old girl at the heart of the United States Supreme
Court’s recent decision in Adoptive Couple v. Baby Girl.2 The Browns
based their adoption petitions on the Indian preference provisions of the
Indian Child Welfare Act3 (ICWA or Act) and the assumption that the
Baby Girl Court did not affirm the existing Indian family (EIF) doctrine,4 a
doctrine that limits application of the ICWA solely to children previously
in the care or custody of an Indian relative.5 Because the Browns believed
the Court did not affirm the EIF doctrine, they believed the ICWA’s
placement preferences, which give priority to Indian relatives in Indian
Copyright © 2014, Marcia A. Zug.
* Associate Professor of Law, University of South Carolina School of Law. Professor
Zug earned her Juris Doctor at Yale Law School before clerking for the Honorable Dolores
Sloviter, former Chief Judge of the Third Circuit Court of Appeals. Professor Zug writes
frequently on the intersection of Indian law and family law.
1 Andrew Knapp, Father Files to Adopt Veronica. Move Heats up Custody Dispute,
POST & COURIER, July 9, 2013, at A1; see Adoptive Couple v. Baby Girl, 746 S.E.2d 51,
51–52 (S.C. 2013); Michael Muskal, Girl, 4, Returned to Her Adoptive Parents, L.A.
TIMES, Sept. 25, 2013, at A12.
2 Adoptive Couple v. Baby Girl, 133 S. Ct. 2552 (2013).
3 Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901–1963 (2012).
4 This Article uses EIF doctrine when discussing this concept generally, but refers to the
EIF exception when specifically referring to the excep tion created by the doctrine.
5 See Cheyañna L. Jaffke, The “Existing Indian Family” Exception to the Indian Child
Welfare Act: The States’ Attempt to Slaughter Tribal Interests in Indian Children, 66 LA. L.
REV. 733, 741 (2006) (“The [EIF] exception is an entirely judge-made doctrine that bars
application of the ICWA when either the child or the child’s parents have not maintained a
significant social, cultural, or political relationship with his tribe.”).
child adoption cases,6 continued to apply to their case and required
Veronica’s placement with an Indian relative.7 A close reading of the Baby
Girl opinion supports the Browns’ position. Nevertheless, on July 17,
2013, the South Carolina Supreme Court issued a remand to the South
Carolina Family Court to finalize Veronica’s non-Indian adoption.8
According to the South Carolina Supreme Court, the ICWA placement
preferences were inapplicable because neither Brown nor his parents filed
adoption petitions at the time of the original hearing.9
The South Carolina Supreme Court’s ruling misinterprets the U.S.
Supreme Court’s decision on the applicability of the ICWA’s placement
preferences to Veronica’s adoption. Unfortunately, the South Carolina
Supreme Court’s decision will likely be the first of many decisions in
which judges interpret Baby Girl to limit the applicability of the ICWA’s
placement preferences. This Article examines the Court’s decision in Baby
Girl and concludes that it did not affirm the EIF doctrine, but that it did
significantly curtail the applicability of the placement preferences in many
future ICWA cases.
Part II of this Article discusses the EIF doctrine and shows how courts
have found that the EIF doctrine prevents the application of all ICWA
provisions, including the placement preferences of § 1915(a), to Indian
children not deemed part of an “existing Indian family.”10 Part III analyzes
the Supreme Court’s decision in Adoptive Couple v. Baby Girl and argues
that this ruling was limited to ICWA § 1912(d) and (f) and, thus, was not a
confirmation of the EIF doctrine.11 Part IV examines the Baby Girl
Court’s discussion of § 1915(a) and why the South Carolina Supreme
Court was wrong to find the ICWA’s placement provisions did not apply.12
Finally, Part V shows how the U.S. Supreme Court’s decision, which
limited § 1915(a) to parties that have formally filed for custody, will
6 25 U.S.C. § 1915(a) (“In any adoptive placement of an Indian child under [s]tat e law,
a preference shall be given . . . to a placement with (1) a member of the child’s extended
family; (2) other members of the Indian child’s tribe; or (3) other Indian families.”).
7 See Adoptive Couple v. Baby Girl, 746 S.E.2d 51, 52 (S.C. 2013) (noting Birth
Father’s argument that the ICWA placement preferences preclud ed Adoptive Couple from
adopting Baby Veronica).
8 Id. at 54.
9 Id. at 52–53 (quoting Adoptive Couple v. Baby Girl, 133 S. Ct. 2552, 2557, 2564
10 See infra Part II.
11 See infra Part III.
12 See infra Part IV.
dramatically reduce this provision’s applicability and importance in future
ICWA cases.13
Long before the Baby Veronica story became national news, courts
routinely grappled with the question of whether the ICWA applied to
Indian children who had never been part of an Indian family.14 Many
judges were uneasy with the idea of applying the ICWA to children who
met the Act’s definition of an “Indian child,” but had little or no contact
with their Indian relatives.15 In 1982, this uneasiness led the Kansas
Supreme Court to create the EIF exception in In re Adoption of Baby
Boy L.
A. Baby Boy L. and Its Aftermath
In Baby Boy L., the Kansas Supreme Court was asked to decide
whether the ICWA applied to the adoption of an Indian child who had
never been in the care or custody of his Indian father.16 The child’s father
was an enrolled member of the Kiowa tribe and, pursuant to § 1911 of the
ICWA, the tribe sought to intervene, to transfer the case to tribal court, and
to change temp orary custody. 17 The trial court denied these motions18 and
the Kansas Supreme Court affirmed.19 Although the ICWA gives tribes
the right to “intervene at any point” in a “state court proceeding for the
foster care placement of, or termination of parental rights to an Indian
child,”20 the Baby Boy L. court found the Act did not apply because the
child had never been in the care or custody of his Indian father or any other
Indian relatives. The court then used this fact as the basis for creating the
13 See infra Part V.
14 See In re Adoption of Baby Boy L., 643 P.2d 168 (Kan. 1982) (holding the ICWA
does not apply to a proceedin g that involves a non-Indian mother’s illegitimate child who
was never in the custody and care of the father); see also In re Adoption of Baby Boy D,
742 P.2d 1059 (Okla. 1985) (holding that father did not have standing under the ICWA),
overruled by In re A.J.S., 204 P.3d 543 (Kan. 2009).
15 See infra notes 18–40 and accompanying text.
16 See Baby Boy L., 643 P.2d at 171–72.
17 Id. at 173.
18 Id.
19 Id. at 176.
20 Id. at 176–77 (citing 25 U.S.C. § 1911(c) (2012)).

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