Indian Child Welfare history and the "Existing Indian Family" exception

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ICWA History

The Indian Child Welfare Act (ICWA) was enacted in 1978 because of the high removal rate of Indian children from their traditional homes and essentially from Indian culture as a whole. Before enactment, as many as 25 to 35 percent of all Indian children were being removed from their Indian homes and placed in non-Indian homes, with presumably the absence of Indian culture. In some cases, the Bureau of Indian Affairs (BIA) paid the states to remove Indian children and to place them with non-Indian families and religious groups.
Testimony in the House Committee for Interior and Insular Affairs showed that in some cases, the per capita rate of Indian children in foster care was nearly 16 times higher than the rate for non-Indians. If Indian children had continued to be removed from Indian homes at this rate, tribal survival would be threatened. Congress recognized this, and stated that the interests of tribal stability were as important as that of the best interests of the child. One of the factors in this judgment was that, because of the differences in culture, what was in the best interest of a non-Indian child were not necessarily what was in the best interest of an Indian child, especially due to extended families and tribal relationships.
As Louis La Rose (Winnebago Tribe of Nebraska) testified:

"I think the cruelest trick that the white man has ever done to Indian children is to take them into adoption court, erase all of their records and send them off to some nebulous family ... residing in a white community and he goes back to the reservation and he has absolutely no idea who his relatives are, and they effectively make him a non-person and I think ... they destroy him."

Various other groups also played a factor. The Church of Jesus Christ of Latter-day Saints (LDS Church) had an Indian Placement Program that removed Indian children from their tribes and into church members homes.  By the 1970s, approximately 5,000 Indian children were living in Mormon homes. The lack of knowledge of most social workers also played into the high removal rates. Most social workers are conditioned by the "best interest of the child" as outlined by Beyond the Best Interests of the Child (Second Edition), which advocates bonding with at least one adult as a parent figure rather than taking into consideration the tribal culture of the extended tribal family. The common Indian practice of leaving a child with an extended relative was viewed as abandonment by these well-intentioned social workers, but was viewed as perfectly normal by tribal members.
During congressional consideration, at the request of Native American advocacy groups, opposition was raised by several states, the LDS Church, and several social welfare groups. The bill was pushed through by Representative Morris Udall of Arizona, who lobbied President Jimmy Carter to sign the bill.
Congress’s overriding purpose in passing the ICWA was to protect Indian culture and tribal integrity from the unnecessary removal of Indian children by state and federal agencies. Awareness of the issues facing American Indian children came about from the advocacy and research by the Association on American Indian Affairs. Congress reasoned that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.”

"Existing Indian Family" Exception

History of the Exception
In 1982, the Kansas Supreme Court held that the ICWA "was 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."
Under the facts of the case, the court stated that the ICWA did not apply unless the child was part of an "existing Indian family unit." The court denied the Kiowa Tribe of Oklahoma the right to intervene in the case, stating that the ICWA did not apply. The court also held that even if the ICWA did apply, the trial court committed no reversible error because the non-Indian mother would have objected to the transfer of the case to a tribal court and, thus, defeated the transfer.
From the Kansas Supreme Court case sprang a body of jurisprudence around the "existing Indian family" exception to ICWA. In the years following the Kansas Baby Boy L. case, approximately half of the states adopted or expanded upon this "existing Indian family" exception, despite the fact that the language appeared no where the text of the ICWA.
Subsequent to the Kansas Baby Boy L. case, in 1989, the United States Supreme Court heard the only ICWA case that it has issued an opinion on to date in Mississippi Band of Choctaw Indians v. Holyfield. 490 U.S. 30 (1989)
Like the Baby Boy L. case, both parents in Holyfield consented to the voluntary termination of their parental rights and adoption of their infant by a non-Indian family. Unlike the parents in Baby Boy L., the mother in this case lived on the reservation both before and after the birth of the child off-reservation. The Supreme Court found that the child was "domiciled" on the reservation because its biological mother was domiciled on the reservation. Therefore, the exclusive jurisdiction of the tribal court under ICWA should have been invoked. The case was remanded to the tribal court for a custody determination three years after the child had been placed with non-Indian adoptive parents. Noting the potential disruption in the child's life, the Supreme Court noted that any potential harm could have been avoided if the parents and state court had not wrongfully denied the tribe its rights under ICWA.
While the Supreme Court did not consider the "existing Indian family" exception, some sources cite Holyfield as an implicit rejection of the exception. Other sources have noted that the Holyfield case is relied upon as support for both sides of the debate over the "existing Indian family" exception:

"Surprisingly, Holyfield has been relied upon by courts and parties both to support and reject the existing Indian family exception, which has been invoked in proceedings involving Indian children and families who are living off the reservation and who are, therefore, subject to state court jurisdiction concurrent with that of the tribal court."

As of 2010, Alabama, Indiana, Kentucky, Louisiana, Missouri, and Tennessee still use the "existing Indian family" exception. Alabama and Indiana have limited its application by further court decisions. Nineteen states have rejected the doctrine, either by court decision or statute, including Kansas, where the Kansas Supreme Court expressly overturned the Baby L. decision in In re A.J.S., stating:

"Given all of the foregoing, we hereby overrule Baby Boy L., (citation omitted), and abandon its existing Indian family doctrine. Indian heritage and the treatment of it has a unique history in United States law. A.J.S. has both Indian and non-Indian heritage, and courts are right to resist essentializing any ethnic or racial group. However, ICWA's overall design, including its "good cause" threshold in 25 U.S.C. 1915, ensures that all interests--those of both natural parents, the tribe, the child, and the prospective adoptive parents -- are appropriately considered and safeguarded. ICWA applies to this state court child custody proceeding involving A.J.S., and the Cherokee Nation must be permitted to intervene."

Criticisms

Some critics have complained that the existing Indian family exception requires the state court to determine what it means to be an Indian child or an Indian family, by applying tests to determine the "Indian-ness" of the child. One such test involved evaluating if the child lived "in an "actual Indian dwelling," apparently thinking of a teepee, hogan, or pueblo."[43] Another work notes that "state courts have taken it upon themselves to determine individuals' relationship with their tribes by examining such contacts as subscription to a tribal newsletter."[44]
In her 1997 testimony before the Joint Hearing of the House Resources Committee and the Senate Committee on Indian Affairs, Assistant Secretary of the Interior Ada Deer (Menominee Indian Tribe of Wisconsin) stated:

"...we want to express our grave concern that the objectives of the ICWA continue to be frustrated by State court created judicial exceptions to the ICWA. We are concerned that State court judges who have created the "existing Indian family exception" are delving into the sensitive and complicated areas of Indian cultural values, customs and practices which under existing law have been left exclusively to the judgment of Indian tribes... We oppose any legislative recognition of the concept."
     (all footnotes removed) Source: Wikipedia