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The ICWA is applicable to the adoption of a Native American child even if the child’s Native American parents do not participate in tribal life. In re Baby Boy C., 805 N.Y.S.2d 313 (2005)


The Indian Child Welfare Act of 1978 (ICWA) was enacted in response to practices that separated large numbers of Native American children from their families and tribe. See 25 USC § 1901 et seq. It is common for representatives from the relevant Indian tribe to intervene in child custody proceedings involving Indian children. The ICWA established certain placement preferences for Indian children who, as in the case of In re Baby Boy C., are no longer in their parents’ custody.

Defendant Rita C., a Native American member of the Tohono O’odham Nation tribe (Tribe), gave birth to Baby Boy C. in March 2004. The father, Justin W., was not Native American. Rita grew up in a tribal community but eventually left it and no longer participated in its political, social, and religious affairs. Her other children were not being raised in a tribal community.

In April 2004, Rita and Justin entered consents in an Arizona court to the child’s adoption by a non–Native American couple, Plaintiffs Jeffrey A. and Joshua A., who lived in New York. Rita’s consent noted her heritage and the possibility that the child was an “Indian child” pursuant to the ICWA, which established certain placement preferences for Indian children no longer in their parents’ custody. The Tribe was notified of the proceeding but did not appear.

The Family Court accepted Rita’s waiver of preferences for the baby’s placement and her request that good cause be found to place the baby with Jeffrey A. and Joshua A. The prospective adoptive parents petitioned to adopt the child in a New York court. The Tribe intervened.

The Tribe argued that Rita’s relinquishment of her parental rights implicated the Tribe’s right under ICWA to protect its relationship with its children. In opposition, petitioners argued that ICWA was not applicable here since, under the EIF exception, ICWA’s purpose of preserving Indian families and tribal culture was not served where the Indian child and parents have not maintained a significant relationship with the Tribe.

Family Court denied intervention under ICWA, instead adopting the judicially created “existing Indian family” (EIF) exception, which avoids the application of ICWA in circumstances where the court determines that the child is not part of an existing Indian family.  It therefore allowed the adoption to proceed. The Tribe appealed.

The ICWA was enacted in response to practices that separated large numbers of Native American children from their families and tribe. The act protects not only Native American parents and children but also the tribes themselves, whose culture is deemed to suffer when Native American children reside outside of the tribal community.

The Appellate Division noted that the EIF exception to ICWA is a matter of first impression in the appellate courts of New York and its validity has been the subject of conflicting decisions from other jurisdictions’ courts.

Based on its review of these authorities and the submissions of the parties, the law guardian and amici, the court concluded that the EIF exception directly conflicts with the express language and purpose of ICWA, as well as the rationale of the United States Supreme Court’s decision in Mississippi Band of Choctaw Indians v Holyfield, 490 US 30 (1989).

In addition, the EIF exception is largely unnecessary because the ICWA allows courts to deviate from the act’s preferences for placement where good cause is shown. Because the ICWA protects the interests of tribes and not merely their members, the fact that a parent has rejected tribal life is insufficient to prevent operation of the ICWA. Nor does the ICWA violate equal protection. Courts have held that laws that treat Native Americans differently than other groups are based not on race but on political class. Accordingly, such laws are subject to rational-basis review. The ICWA reasonably relates to its purpose of protecting Native American tribes. In the case at hand, the act is applicable because the adoption of an Indian child is at issue.

Thus, the trial court was wrong to disregard the operation of the act. Its decision is reversed and remanded for consideration of the ICWA’s application.




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