In re A.J.S.

The father (defendant) of AJS was a member of the Cherokee Nation Indian tribe (the tribe). The mother (plaintiff), a non-Indian, consented to the adoption of AJS by her family members and sought to terminate the father’s parental rights in a Kansas state court. The father sought to transfer the matter to tribal court. Furthermore, the tribe sought to intervene, arguing that the tribe had an interest in the proceedings pursuant to the Indian Child Welfare Act (ICWA), which favors custodial decisions that keep Indian children within tribal environments. The ICWA does not include any explicit exceptions under which children with Indian ancestry are not considered Indian children for purposes of the ICWA. However, the mother objected to the transfer and intervention and sought a declaration that the ICWA was inapplicable pursuant to the existing Indian family doctrine, a common-law principle established in In re Adoption of Baby Boy L., 643 P.2d 168 (Kan. 1982), that asserts that children with Indian ancestry who were never sufficiently affiliated with an Indian parent or tribe are not considered Indian children for purposes of the ICWA. The mother also testified that—like the mother in Baby Boy L.—she would never consent to AJS’s placement with the father. Although the parties ultimately stipulated that AJS was an Indian child under the ICWA, the district court rejected the transfer and refused to let the tribe intervene, finding that the ICWA was inapplicable based on the holding in Baby Boy L. and the existing Indian family doctrine because AJS had never been part of an Indian family and never would be without the mother’s consent. The father and tribe filed an interlocutory appeal in the Kansas Supreme Court.