                      IN THE COURT OF APPEALS OF TENNESSEE
                          WESTERN SECTION AT JACKSON

                                                                       FILED
                                                                       November 19, 1997
IN RE: JEFFREY THOMAS MORGAN )
                             )                                         Cecil Crowson, Jr.
                             )            Shelby Chancery No. 106077   Appellate C ourt Clerk
                             )
                             )             Appeal No. 02A01-9608-CH-00206
                             )




             APPEAL FROM THE CHANCERY COURT OF SHELBY COUNTY
                           AT MEMPHIS, TENNESSEE



                 THE HONORABLE D. J. ALISSANDRATOS, CHANCELLOR


For the Appellee, United Methodist        For the Appellees,
Adoption Services:                        Adopting Couple:

Diana L. Schmied                          Kevin W. Weaver
Bartlett, Tennessee                       Cordova, Tennessee

For the Appellant, The Tohono             For Jeffrey Thomas Morgan By His
O’odham Nation:                           Court-Appointed Attorney Ad Litem:

Mark E. Curry                             Kay F. Turner
Sells, Arizona                            Attorney Ad Litem
                                          Memphis, Tennessee
Russell C. Winston
Memphis, Tennessee




                                     AFFIRMED




                                     HOLLY KIRBY LILLARD, J.



CONCUR:


W. FRANK CRAWFORD, P.J., W.S.


DAVID R. FARMER, J.
                                              OPINION

       This is an adoption case in which the Tohono O’odham Indian Nation seeks to intervene

pursuant to the federal Indian Child Welfare Act. The trial court denied the motion to intervene,

finding the Act inapplicable under the “existing Indian family doctrine.” In a case of first impression

in Tennessee, we affirm the decision of the trial court.

       Jeffrey Thomas Morgan (“Jeffrey”), was born on July 13, 1994 to Gloria Saraficio Morgan,

(“Mother”). Jeffrey was Mother’s fourth child. Both Jeffrey and Mother are non-domiciliary

members of the Tohono O’odham Indian Nation (“Nation”), a federally recognized American Indian

tribe. Mother has lived away from reservation lands for the past 15 years, and has lived in

Dyersburg, Tennessee for the past twelve years. Mother was unmarried at the time of Jeffrey’s birth,

but identified Jeffrey Manners, a Caucasian, as the father. No father, however, was named on the

birth certificate or on the response to the Putative Father Registry request, and no one has claimed

paternity or attempted to legitimate or acknowledge the child.

       After Jeffrey’s birth, Mother met with officials from United Methodist Adoption Services

(“Agency”) to develop an adoption plan for Jeffrey. Jeffrey was placed in foster care immediately

following his birth. The Agency sent a letter to the Nation on July 23, 1994, informing them of

Mother’s intention to put Jeffrey up for adoption, and also requesting information concerning the

Nation’s adoption policies. The Nation did not respond to this letter. The Agency’s attorney then

sent a certified letter to the Nation, received on September 6, 1994. The certified letter set forth the

Agency’s plan to terminate the putative father’s rights and again informed the Nation of the intended

adoption plan. The letter requested that the Nation contact the Agency with any objections to the

plan. The Nation did not respond to this letter.

        In October 1994, the Juvenile Court of Shelby County entered a default judgment terminating

the parental rights of the putative father. The putative father did not contest the termination of his

parental rights. On October 18, 1994, Mother voluntarily surrendered her parental rights to the

Agency. The Agency then placed the child with the proposed adoptive parents. The adoptive

parents filed their petition to adopt Jeffrey. Subsequently, on April 17, 1995, the Agency’s attorney

sent another certified letter to the Nation, stating that the placement had been made and that the

adoption was pending. The Nation received this letter on April 25, 1995. On April 26, 1995, the

Nation contacted the Agency’s attorney by telephone to request information.

        On July 21, 1995, the Nation filed motions in the Shelby County Juvenile Court for leave to
intervene and to invalidate the Juvenile Court’s order terminating the putative father’s parental

rights. The Nation also filed a motion to intervene in the adoption proceedings in Shelby County

Chancery Court, and a motion to stay those proceedings.

       The Juvenile Court determined that it did not have jurisdiction to consider the Nation’s

motions in light of the adoption petition pending in Chancery Court. It deferred to the Chancery

Court, pursuant to Tennessee Code Annotated § 36-1-106(d) (1996), to determine the issues raised

in the Nation’s motions. The Chancery Court appointed a guardian ad litem and an attorney ad litem

for the minor child and ordered the prospective adoptive couple and the Nation to deposit two

thousand dollars each with the Chancery Court for payment of fees and expenses incurred by the

guardian ad litem and the attorney ad litem.

       On August 18, 1995, the Nation filed additional motions in Chancery Court, pursuant to the

federal Indian Child Welfare Act (“ICWA”). The Nation filed a Motion to Transfer Jurisdiction

Pursuant to the ICWA, a Motion to Invalidate the Order Terminating Parental Rights of the Natural

Father and Request to Open Proceedings, and a Request for Leave to Conduct an Evaluation of the

Minor. The Nation noted that Mother’s first child, John Vincent Morgan, was removed from

Mother’s custody by Texas authorities. He was placed with his maternal grandmother, who lives

on the Tohono O’odham reservation. They continue to live on the reservation.

       Subsequently, the attorney ad litem filed a Motion to Determine the Applicability of the

ICWA and urged the trial court to find the Act not applicable based on the “existing Indian family

exception” to the Act, discussed below. The attorney ad litem argued that the trial court should deny

all of the Nation’s pending motions. The Nation’s motions were also opposed by the adoptive

parents and the Agency.

       The Chancery Court held a hearing on all of the parties’ pending motions. The Chancery

Court found that the facts warranted application of the existing Indian family doctrine and that,

consequently, the ICWA did not apply. Therefore, the Nation’s motion to intervene was denied.

Because it found the ICWA not applicable to this case, the trial court found all remaining pending

motions brought by the Nation moot. The trial court granted the Nation the right to an interlocutory

appeal of its ruling. The Nation then filed this appeal.

       Subsequently, the prospective adoptive couple filed a motion to modify the record on appeal

to delete the parties’ legal memoranda and the records of the Shelby Court Juvenile Court from the


                                                 2
record. This motion was granted.

       On appeal, the Nation asserts that the trial court erred in denying its motion to intervene, and

maintains that the ICWA is applicable and requires the court to permit the Nation’s intervention in

this proceeding. The Nation also appeals the trial court’s modification of the record on appeal to

delete the legal memoranda and the juvenile court records. Additionally, the Nation contends on

appeal that the trial court erroneously refused to consider its motion to invalidate the termination of

the putative father’s parental rights. Finally, the Nation appeals the trial court’s order requiring it

to pay part of the fees and expenses incurred by the guardian ad litem and attorney ad litem.

       We will first consider the Nation’s argument that the trial court erred in denying its motion

to intervene. The trial court’s decision was based on the adoption of the existing Indian family

doctrine, a judicial exception to the applicability of the terms of the ICWA. This is a policy

determination which is an issue of first impression in Tennessee. Before addressing such an issue,

we will determine whether the ICWA, without consideration of the doctrine, is applicable in this

case. If the ICWA is otherwise applicable, we will then consider whether the existing Indian family

doctrine should be adopted in Tennessee. The remaining issues will then be addressed.



                                   OVERVIEW OF THE ICWA

       The Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901-1963 (1983) (“ICWA”), is a

comprehensive federal statute which gives federally recognized American Indian tribes certain rights

with regard to children of Indian heritage. In some instances, the tribal courts are given exclusive

jurisdiction over custody proceedings involving such children; in other instances, the tribe is given

the right to intervene in state court proceedings and assert the provisions of the ICWA which affect

such custody proceedings. For example, 25 U.S.C. § 1915(a) states that in the adoptive placement

of an Indian child, preference is given to placement with a member of the child’s extended family,

other members of the child’s tribe, or other Indian families.

       The federal standards set forth in the ICWA preempt state law which provides a lower

standard of protection for the rights of the parent or the Indian custodian of an Indian child. 25

U.S.C. § 1921 (1983). See also In re Dependency & Neglect of N.S., 474 N.W.2d 96, 100 (S.D.

1991) (Sabus, J., concurring specially) (“The Indian Child Welfare Act . . . is a preemptive federal

law which governs all custody proceedings involving Indian children except those incident to

                                                  3
divorce or to criminal acts committed by the child.”).

        In Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S. Ct. 1597, 104 L.

Ed. 2d 29 (1989) the United States Supreme Court first considered the ICWA in a case involving

whether an Indian tribe should be permitted to remove a proceeding on the adoption of two Indian

children from a state trial court to a tribal court. The Court gave the following background on the

ICWA:

                 The Indian Child Welfare Act of 1978 (ICWA), 92 Stat. 3069, 25 U.S.C. §§
        1901-1963, was the product of rising concern in the mid-1970's over the
        consequences to Indian children, Indian families, and Indian tribes of abusive child
        welfare practices that resulted in the separation of large numbers of Indian children
        from their families and tribes through adoption or foster care placement, usually in
        non-Indian homes. Senate oversight hearings in 1974 yielded numerous examples,
        statistical data, and expert testimony documenting what one witness called “[t]he
        wholesale removal of Indian children from their homes, . . . the most tragic aspect of
        Indian life today.” Indian Child Welfare Program, Hearings before the
        Subcommittee on Indian Affairs of the Senate Committee on Interior and Insular
        Affairs, 93d Cong., 2d Sess., 3 (statement of William Byler) (hereinafter 1974
        Hearings).

        Further hearings, covering much the same ground, were held during 1977 and 1978
        on the bill that became the ICWA. While much of the testimony again focused on
        the harm to Indian parents and their children who were involuntarily separated by
        decisions of local welfare authorities, there was also considerable emphasis on the
        impact on the tribes themselves of the massive removal of their children. For
        example, Mr. Calvin Isaac, Tribal Chief of the Mississippi Band of Choctaw Indians
        and representative of the National Tribal Chairmen’s Association, testified as
        follows:

               “Culturally, the chances of Indian survival are significantly reduced
               if our children, the only real means for the transmission of the tribal
               heritage, are to be raised in non-Indian homes and denied exposure to
               the ways of their People. Furthermore, these practices seriously
               undercut the tribes’ ability to continue as self-governing
               communities. Probably in no area is it more important that tribal
               sovereignty be respected than in an area as socially and culturally
               determinative as family relationships.” 1978 Hearings, at 193.

        See also id., at 62. Chief Isaac also summarized succinctly what numerous witnesses
        saw as the principal reason for the high rates of removal of Indian children:

               “One of the most serious failings of the present system is that Indian
               children are removed from the custody of their natural parents by
               nontribal government authorities who have no basis for intelligently
               evaluating the cultural and social premises underlying Indian home
               life and childrearing. Many of the individuals who decide the fate of
               our children are at best ignorant of our cultural values, and at worst
               contemptful of the Indian way and convinced that removal, usually
               to a non-Indian household or institution, can only benefit an Indian
               child.” Id., at 191-192.

        The congressional findings that were incorporated into the ICWA reflect these
        sentiments. The Congress found:



                                                  4
                        “(3) that there is no resource that is more vital to the
                 continued existence and integrity of Indian tribes than their children
                 . . .;

                        “(4) that an alarmingly high percentage of Indian families are
                 broken up by the removal, often unwarranted, of their children from
                 them by nontribal public and private agencies and that an alarmingly
                 high percentage of such children are placed in non-Indian foster and
                 adoptive homes and institutions; and

                         “(5) that the States, exercising their recognized jurisdiction
                 over Indian child custody proceedings through administrative and
                 judicial bodies, have often failed to recognize the essential tribal
                 relations of Indian people and the cultural and social standards
                 prevailing in Indian communities and families.” 25 U.S.C. § 1901.

                  The ICWA thus, in the words of the House Report accompanying it, “seeks
          to protect the rights of the Indian child as an Indian and the rights of the Indian
          community and tribe in retaining its children in its society.” House Report, at 23,
          U.S.Code Cong. & Admin.News 1978, at 7546. It does so by establishing “a Federal
          policy that, where possible, an Indian child should remain in the Indian community,”
          ibid., and by making sure that Indian child welfare determinations are not based on
          “a white, middle-class standard which, in many cases, forecloses placement with [an]
          Indian family.” Id., at 24, U.S.Code Cong. & Admin.News 1978, at 7546.

Id. at 1599-1602.

          To accomplish its objectives, the ICWA permits the intervening tribe, under some

circumstances, to obtain invalidation of the parent’s voluntary consent to adoption of an Indian child

or invalidation of the State’s termination of parental rights. This sometimes resulted in disruption

to an Indian child who had already been placed in a situation not conforming to the requirements of

the ICWA.

          This led to the adoption in some states of the “existing Indian family” doctrine, relied upon

by the trial court in this case. The “existing Indian family” doctrine was first established in 1982 by

the Kansas Supreme Court in In re Adoption of Baby Boy L., 643 P.2d 168, 176 (Kan. 1982). In

Baby Boy L., the Court determined that the ICWA did not apply to an adoption proceeding involving

a non-Indian mother’s illegitimate child, who had never been in the care or custody of the Indian

father:

          A careful study of the legislative history behind the Act and the Act itself discloses
          that the overriding concern of Congress and the proponents of the Act was the
          maintenance of the family and tribal relationships existing in Indian homes and to set
          minimum standards for the removal of Indian children from their existing Indian
          environment. It 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.

Id. at 175.


                                                    5
       Since Baby Boy L., some states have adopted the existing Indian family doctrine, while

others have rejected it. States rejecting it have relied in part on the United States Supreme Court’s

decision in Holyfield, cited above.

       In this case, we will first determine whether the provisions of the ICWA are applicable. If

so, we will then discuss whether the existing Indian family doctrine is applicable to this case and

whether it should be adopted in Tennessee, in order to determine whether the trial court erred in

denying the Nation’s motion to intervene. After that, we will consider the Nation’s other issues on

appeal, whether the trial court erred in modifying the record on appeal, in failing to consider the

Nation’s remaining motions, and in ordering the Nation to pay a portion of the fees of the attorney

ad litem and the guardian ad litem.



                                APPLICABILITY OF THE ICWA

       In 25 U.S.C. § 1901, Congress sets forth the reason for the broad statutory scheme in the

ICWA. It notes Congress’ interest in the “integrity of Indian tribes,” and observes that an

“alarmingly high percentage” of Indian children are removed from their Indian families and “placed

in non-Indian foster and adoptive homes . . . .” Id. § 1901(3) and (4). It also recognizes that the

States, in exercising jurisdiction over Indian child custody proceedings, had “often failed to

recognize the essential tribal relations of Indian people” and their “cultural and social standards. .

. .” Id. § 1901(5). In enacting the ICWA, Congress sought to establish:

       . . . minimum Federal standards for the removal of Indian children from their families
       and the placement of such children in foster or adoptive homes which will reflect the
       unique values of Indian culture. . .

Id. § 1902.

       It is undisputed in this case that Jeffrey is an “Indian child” within the meaning of ICWA.

See 25 U.S.C. § 1903(4) (1983) (“the biological child of a member of an Indian tribe”). The ICWA




                                                  6
may apply to a “child custody proceeding,” defined in the Act to include adoptive placement as well

as the termination of parental rights. Id. § 1903(1)(ii) and (iv).

        The Nation in this case does not argue that the tribal court has exclusive jurisdiction over the

proceedings involving Jeffrey. The tribal court has exclusive jurisdiction over proceedings involving

an Indian child “who resides or is domiciled within the reservation of such tribe. . . .” Id. § 1911(a).

It is undisputed that Jeffrey has never resided on the reservation. Transfer of the proceedings to the

tribal court may be mandated, in the absence of good cause to the contrary, provided neither parent

objects. Id. § 1911(b). In this case, it is undisputed that Jeffrey’s mother objects to the Nation’s

intervention and assertion of jurisdiction over Jeffrey. Consequently, transfer of this proceeding to

the Nation’s tribal court is not at issue.

        Section 1911(c) addresses the Nation’s right to intervene in these proceedings. It states:

        In any State court proceeding for the foster care placement of, or termination of
        parental rights to, an Indian child, . . . the Indian child’s tribe shall have a right to
        intervene at any point in the proceeding.

25 U.S.C. § 1911(c) (1983). In this case, the Nation sought to intervene in the Juvenile Court

proceeding in which the putative father’s rights were terminated and the Chancery Court proceedings

for Jeffrey’s permanent adoptive placement. There is no indication in the record that the Nation

sought to invalidate the Mother’s voluntary relinquishment of her parental rights and consent to

Jeffrey’s adoption.

        To determine whether Section 1911(c) affords the Nation the right to intervene in the

Juvenile Court proceeding in which the putative father’s rights were terminated, we must look at the

meaning of “termination of parental rights” under the ICWA. Section 1903(1)(ii) defines the phrase

as “any action resulting in the termination of the parent-child relationship.” The term “parent”

means the “biological parent” of an Indian child, but specifies that it “does not include the unwed

father where paternity has not been acknowledged or established.” Id. § 1903(9). In this case, the

putative father did not respond to the Attorney General’s petition to terminate his parental rights, and

a default judgment was entered doing so. The putative father’s paternity was neither acknowledged

nor established; the proceeding merely terminated whatever parental rights he may have had.




                                                   7
        In In re Adoption of Baby Boy D, 742 P.2d 1059, 1064 (Okla. 1985), the Oklahoma Supreme

Court held as follows:

        Until such time as a father has acknowledged or established paternity, the ICWA is
        not applicable. Congress has by this language evidenced its intent not to extend the
        ICWA to the child born out of wedlock as in the instant case, whose father has never
        had custody and has not acknowledged or established paternity. We take this to
        mean acknowledged or established through the procedures available through the
        tribal courts, consistent with tribal customs, or through procedures established by
        state law.

Therefore, termination of the putative father’s parental rights is not a “termination of parental rights”

within the meaning of the ICWA, and Section 1911(c) does not give the Nation the right to intervene

in the Juvenile Court proceeding. See id.; In re Appeal in Maricopa County Juvenile Action No.

A-25525, 667 P.2d 228, 233 (Ariz. App. 1983) (“According to the Act . . . there must be more than

mere speculation of paternity.”); In re Adoption of a Child of Indian Heritage, 543 A.2d 925, 933

(N.J. 1988).

        Section 1911(c) mentions only proceedings for “the foster placement” of an Indian child or

“the termination of parental rights to” an Indian child. 25 U.S.C. § 1911(c) (1983). It does not refer

to a proceeding for the permanent adoptive placement of an Indian child. In re J.R.S., 690 P.2d 10,

15 (Alaska 1984) (“In short, we think Congress recognized that terminations and adoptions might

be handled in separate actions.”). Therefore, Section 1911(c) does not give the Nation the right to

intervene in the Chancery Court proceeding for Jeffrey’s permanent adoptive placement.

        The Nation asserts that the Agency failed to provide the required notice under Section

1912(a), which states in part:

                In any involuntary proceeding in a State court, where the court knows or has
        reason to know that an Indian child is involved, the party seeking the foster care
        placement of, or termination of parental rights to, an Indian child shall notify the
        parent or Indian custodian and the Indian child’s tribe, by registered mail with return
        receipt requested, of the pending proceedings and of their right of intervention.

25 U.S.C. § 1912(a) (1983). In this case, the only “involuntary” proceeding was the termination of

the parental rights of the putative father, by default. However, as noted above, the term “parent”

specifically excludes “the unwed father where paternity has not been acknowledged or established,”

and this would exclude the putative father in this case. Id. § 1903(9). Consequently, Section

1912(a) did not mandate that notice to the Nation be given of the involuntary proceeding to terminate

the putative father’s parental rights. See In re S.A.M., 703 S.W.2d 603, 607 (Mo. App. 1986); In

re Child of Indian Heritage, 543 A.2d at 933 (“The significance of this statutory definition (of


                                                   8
‘parent’) is that unless (the putative father’s) paternity had been acknowledged or established prior

to the final entry of judgment of adoption and termination of parental rights, he was not a parent

entitled to notice pursuant to the provisions of § 1912(a).”).

          Section 1912(d) requires any party seeking the termination of parental rights to an Indian

child make “active efforts. . . to provide remedial services . . . designed to prevent the breakup of the

Indian family” and show that the efforts were “unsuccessful.” 25 U.S.C. § 1912(d) (1983). No

specific showing was made by the Nation in this regard. Moreover, as noted above, the record does

not indicate that the Nation sought to invalidate the Mother’s voluntary relinquishment of her

parental rights.

          Section 1912(f) prohibits an order of termination of parental rights:

          . . . in the absence of a determination, supported by evidence beyond a reasonable
          doubt, including testimony of qualified expert witnesses, that the continued custody
          of the child by the parent or Indian custodian is likely to result in serious emotional
          or physical damage to the child.

25 U.S.C. §1912(f) (1983). It is undisputed that no such determination was made in this case.

However, application of this section to the facts of this case seems inappropriate where neither the

Mother nor the putative father ever had custody of the child, so that “continued custody of the child

by the parent . . . is likely to result in serious emotional or physical damage to the child.” Id.

          Section 1913 sets forth measures designed to ensure that a parent who voluntarily

relinquishes parental rights to an Indian child fully understands the consequences of such an action.

However, as noted above, there is no allegation in this case that the Mother did not understand her

actions or that her consent was invalid.

          Section 1914 also addresses the Nation’s right to intervene in the state court proceeding. It

states:

             Any Indian child who is the subject of any action for foster care placement or
          termination of parental rights under State law, any parent or Indian custodian from
          whose custody such child was removed, and the Indian child’s tribe may petition any
          court of competent jurisdiction to invalidate such action upon a showing that such
          action violated any provision of sections 1911, 1912, and 1913 of this title.

25 U.S.C. § 1914 (1983). This statute gives the Nation the right to seek invalidation of a foster care

placement or a termination of parental rights if the Nation makes a showing that there was a violation

of Sections 1911, 1912 or 1913. As set forth above, there has been no showing of a violation of

Sections 1911, 1912, or 1913. Therefore, the Nation has no right to intervene pursuant to Section



                                                    9
1914. See, e.g., In re Baby Boy D, 742 P.2d at 1064.

       The Nation also asserts the applicability of the adoptive preferences set forth in 25 U.S.C.

§ 1915(a). This section states:

          In any adoptive placement of an Indian child under State law, a preference shall
       be given, in the absence of good cause to the contrary, 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.

25 U.S.C. § 1915(a) (1983). Section 1915(c) also states that the preference of the parent may be

considered. 25 U.S.C. § 1915(c) (1983). “Although the Act explicitly provides a tribe with the right

to intervene in foster care and termination proceedings . . . it does not preclude a trial court from

exercising its discretion in allowing intervention by a tribe in an adoption proceeding.” In re

Maricopa County, 667 P.2d at 233.

       The Nation argues that it has the right to intervene to assert these adoptive preferences

pursuant to Rule 24 of the Tennessee Rules of Civil Procedure. Rule 24.01 sets forth the standards

for intervention as a matter of right:

          Upon timely application anyone shall be permitted to intervene in an action: (1)
       when a statute confers an unconditional right to intervene; or (2) when the applicant
       claims an interest relating to the property or transaction which is the subject of the
       action and the applicant is so situated that the disposition of the action may as a
       practical matter impair or impede the applicant’s ability to protect that interest, unless
       the applicant’s interest is adequately represented by existing parties; or (3) by
       stipulation of all the parties.

Under Rule 24.01(2), the Nation certainly “claims an interest” relating to the subject of this action,

its interest in asserting the adoptive preferences set forth in 25 U.S.C. § 1915(a). The disposition

of this action, making Jeffrey’s adoption by the adoptive couple final, would “impede” the Nation’s

ability to protect that interest. Tenn. R. Civ. P. 24.01. As demonstrated by the strenuous objections

of the adoptive agency, the adoptive couple and the attorney ad litem to the Nation’s intervention,

the Nation’s interest is not adequately represented by any of the existing parties. Therefore, if the

ICWA is applicable in this cause, Rule 24.01 of the Tennessee Rules of Civil Procedure appears to

give the Nation the right to intervene to assert the adoptive preferences set forth in 25 U.S.C. § 1915.

        Consequently, it is necessary to consider whether the “existing Indian family” doctrine

should be adopted in Tennessee, in order to determine whether the trial court erred in denying the

Nation’s motion to intervene in this cause.




                                                  10
     PRE-HOLYFIELD DECISIONS ON THE EXISTING INDIAN FAMILY DOCTRINE

       Prior to the United States Supreme Court’s decision on Holyfield, a number of states adopted

what has become known as the “existing Indian family doctrine” or the “existing Indian family

exception” to the ICWA. As discussed above, it was initially set forth in In re Adoption of Baby

Boy L., 643 P.2d 168, 176 (Kan. 1982). In Baby Boy L., the mother of the illegitimate child was a

non-Indian, who had consented to the child’s adoption by a non-Indian couple. The father, of Indian

heritage, was served notice of the adoption proceedings while in prison. He sought to block the

adoption and to obtain custody of the child. The father’s Indian tribe also sought to intervene to

assert the provisions of the ICWA.

       The court in Baby Boy L. found that the Congress’ overriding concern in enacting the ICWA

was to maintain Indian family and tribal relationships. Id. at 175. It found that Congress’ intent

“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.” Id. Rather,

it found that “the underlying thread” throughout the ICWA was concern “with the removal of Indian

children from an existing Indian family unit and the resultant breakup of the Indian family.” Id.

Therefore, the Court concluded that “the ICWA, by its own terms, does not apply to these

proceedings. . . .” Id. at 176.

        Other courts utilized this reasoning in interpreting the applicability of the ICWA. See, e.g.,

In re Adoption of D.M.J., 741 P.2d 1386, 1389 (Okla. 1985); In re Adoption of T.R.M., 525 N.E.2d

298, 303 (Ind. 1988). This doctrine came to be known as the “existing Indian family doctrine” or

the “existing Indian family exception” to the ICWA. In re Adoption of T.N.F., 781 P.2d 973, 977

(Alaska 1989).

       Other courts, prior to Holyfield, declined to adopt the doctrine. For example, in In re

Adoption of a Child of Indian Heritage, 543 A.2d 925 (N.J. 1988), the Supreme Court of New

Jersey held that the fact that a mother had voluntarily placed her child up for adoption did not

preclude the applicability of the ICWA even though the child had never been exposed to an Indian

environment. Criticizing the existing Indian family doctrine, the court reasoned:

          We disagree with this interpretation of the Act because it posits as a determinative
        jurisdictional test the voluntariness of the conduct of the mother. The Act itself does
        not suggest this factor as a jurisdictional test of the Act’s coverage, although it is


                                                  11
       unquestionably relevant in the Act’s application. . . . The effect on both the tribe and
       the Indian child of the placement of the child in a non-Indian setting is the same
       whether or not the placement was voluntary.

Id. at 932. See also In re J.R.S., 690 P.2d 10, 16 (Alaska 1984) (holding that the ICWA “does not

limit a state court’s power to allow intervention in child custody proceedings”).



                                            HOLYFIELD

       Although the decision of the United States Supreme Court in Mississippi Band of Choctaw

Indians v. Holyfield, 490 U.S. 30, 104 L.Ed.2d 29, 109 S.Ct. 1597 (1989), does not address the

existing Indian family doctrine, it construes the ICWA provisions for exclusive tribal jurisdiction

over child custody proceedings.

       Holyfield involved two unwed Indian parents who resided on the reservation. They traveled

away from the reservation for the birth of their twins and made plans for the children to be adopted

by a non-Indian couple, the Holyfields. Both parents relinquished their parental rights and consented

to the adoption.

       Subsequently, the parents’ tribe moved to vacate the adoption, asserting that the ICWA gave

the tribal court exclusive jurisdiction. The trial court noted that the natural parents “went to some

efforts to see that [the twins] were born outside the . . . Reservation” and to arrange for their

adoption by the Holyfields. Id., 109 S.Ct. at 1603. It also noted that the twins had never resided on

the reservation. Consequently, it denied the tribe’s motion to vacate the adoption. This was

affirmed by the state supreme court, and the tribe appealed. Id.

       The United States Supreme Court first found that state law should not be applied in defining

“domicile” because Congress “intended a uniform federal law of domicile for the ICWA.” Id. at

1607. It then noted that the domicile of an illegitimate child is generally the domicile of the mother.

It observed that the mother had remained domiciled on the reservation, and that the twins’ domicile

was therefore the reservation “even though they themselves had never been there.” Id. at 1608.

       The Court stated that the mother’s voluntary surrender of the twins did not change the result.

Id. It maintained that Congress did not intend for the parents of an Indian child to be able to defeat

the application of the ICWA simply by giving birth to their children off the reservation, while the

parents remained domiciled on the reservation. Id. at 1608-1611. The Court recognized that the

ICWA protects the interests of the tribe, as well as the interests of individual Indian children and

                                                  12
families. Id. at 1609. It quoted with approval a Utah decision which stated that, under the ICWA,

“the tribe has an interest in the child which is distinct from but on a parity with the interest of the

parents.” Id. at 1610 (quoting In re Adoption of Halloway, 732 P.2d 962, 969-70 (Utah 1986)).

        The Court also cited with approval In re Adoption of a Child of Indian Heritage, for the

proposition that “congressional objectives make clear that a rule of domicile that would permit

individual Indian parents to defeat the ICWA’s jurisdictional scheme is inconsistent with what

Congress intended.” Id. at 1609 (citing In re Adoption of a Child of Indian Heritage, 543 A.2d

925, 931-33 (N.J. 1988)). Therefore, the Court concluded that the state court lacked jurisdiction to

enter a decree of adoption, and that the tribal court had exclusive jurisdiction over the proceedings.

Id. at 1611.

        State courts have split in their application of the Holyfield decision to the issue of the

existing Indian family doctrine. Some courts have rejected the doctrine, relying on Holyfield in their

reasoning. Others have adopted the existing Indian family doctrine, noting that Holyfield does not

address it. The difference in reasoning by these courts has been succinctly described by the Utah

appellate court:

        The fundamental difference between the jurisdictions is that those in favor of the
        doctrine see it as a policy prerequisite to application of ICWA, while those in
        opposition to the doctrine consider it an impermissible, judicially-created exception
        contrary to ICWA’s plain-language.

State of Utah, in re D.A.C., 933 P.2d 993, 998 (Utah App. 1997). We will first discuss the cases

that reject the existing Indian family doctrine, then those that adopt it.



          DECISIONS REJECTING THE EXISTING INDIAN FAMILY DOCTRINE

       Since Holyfield, state courts that decide not to adopt the existing Indian family doctrine have

almost inevitably cited Holyfield in support of this position. In one of the first state court decisions

on this issue after Holyfield, the Supreme Court of Alaska rejected the doctrine. See In re Adoption

of T.N.F., 781 P.2d 973 (Alaska 1989). Citing Holyfield, it emphasized that, in enacting the ICWA,

Congress sought to protect the interests of the Indian tribes, as well as the interests of the Indian




                                                  13
children and their parents. Id. at 977. The Alaska court commented:

        State courts must be particularly hesitant in creating judicial exceptions to a federal
        act which was enacted to counter state courts’ prejudicial treatment of Indian children
        and communities. . . . [T]o utilize a judicially-created “Indian family” exception
        would be to enter onto a slippery slope which threatens to exclude the very type of
        cases Congress had in mind when it adopted the Act.

Id. at 977-978. The Idaho Supreme Court also rejected the doctrine, citing Holyfield:

        Although an Indian family requirement has been applied by the courts of other states,
        we believe that the United States Supreme Court has effectively undermined the
        imposition of this requirement. . . . [Holyfield] indicates that the jurisdictional
        provisions of ICWA apply to child custody proceedings involving Indian children
        regardless of where the children are born or where they are proposed for adoption.
        This application of ICWA is based on the interest the tribe has in its children.
                                                   ****
        We also reject application of an Indian family requirement because the provisions
        of ICWA do not contain any limitation based on where the child is located. Limiting
        ICWA to situations in which an Indian child is being removed from an existing
        Indian family is, therefore, a judicially created exception to ICWA. Congress passed
        ICWA to limit state court power by creating mandatory protective procedures and
        minimum evidentiary standards that must be applied in child custody proceedings
        concerning Indian children. In light of the structure and nature of ICWA, it is
        inappropriate to use a judicially created exception to circumvent the mandates of
        ICWA.

In re Baby Boy Doe, 849 P.2d 925, 931-32 (Idaho 1993); see also In re N.S., 474 N.W.2d at 100-

101 (Sabers, J. concurring specially) (“. . . Holyfield . . . authoritatively established the principle that

the provisions of ICWA are to be strictly construed and applied.”); In re D.A.C., 933 P.2d at 999

(“The policies of the Act . . . are frustrated by the adoption of the existing Indian family exception.”);

In re Adoption of Quinn, 845 P.2d 206, 209 (Ore. App. 1993); In re Elliott, 554 N.W.2d 32, 35-36

(Mich. App. 1996); In re Crystal K., 276 Cal. Rptr. 619, 624-25 (Cal. App. 1990); In re Adoption

of Baade, 462 N.W.2d 485, 489-90 (S.D. 1990).

        Therefore, courts that reject the existing Indian family doctrine generally consider it a

judicially-created exception, contrary to the plain language of the ICWA and cite Holyfield as

supporting a strict construction of the Act. As discussed below, however, other courts have

determined that Holyfield does not preclude adoption of the existing Indian family doctrine.



           DECISIONS ADOPTING THE EXISTING INDIAN FAMILY DOCTRINE

        Notwithstanding Holyfield, some states have adopted the existing Indian family doctrine,

demonstrating an unwillingness to apply the ICWA in situations in which the Indian children had

little or no exposure to an Indian environment prior to their removal to non-Indian families.



                                                    14
       Prior to Holyfield, Oklahoma had adopted the existing Indian family doctrine. See Baby Boy

D., supra; In re D.M.J., supra. This holding was reaffirmed by the Oklahoma Supreme Court after

Holyfield, in In re S.C., 833 P.2d 1249, 1254-56 (Okla. 1992). In In re S.C., the Indian father of

a five-year-old Indian child and a six-year-old Indian child sought to invalidate the foster placement

of the children, pursuant to the ICWA, after having had no contact with the children prior to the

initiation of court proceedings. The Oklahoma court reaffirmed its adoption of the existing Indian

family doctrine, and found the Act inapplicable because “there was no existing Indian family being

broken up as contemplated by the ICWA.” Id. at 1253. The Indian father argued that Holyfield

implicitly overruled earlier cases adopting the doctrine. The In re S.C. court stated:

          As for the far-reaching interpretation suggested by Father, we decline to extend
       the case to the facts at bar. Holyfield stands for two propositions: (1) that federal law
       pre-empts state law as to the definition of domicile, and (2) the domicile of an Indian
       child is that of the mother if the child is born out of wedlock. Other courts have
       construed this case similarly, confining it to the issues presented and the holding
       reached. . . . We do not believe that Holyfield invalidates either Baby Boy D. or In
       re: D.M.J..

Id. at 1254 (citations omitted). The Oklahoma court also addressed the argument that the existing

Indian family doctrine is a judicially-created exception to the ICWA, not contemplated by Congress:

       D.M.J. does not create an exception not contemplated by the legislature. Rather, the
       preservation of the existing Indian family was an integral purpose of the ICWA from
       its inception. The ICWA was never meant to apply in those cases such as D.M.J.,
       where the daughter had lived with her non-Indian mother some seven years since the
       divorce from the Indian father. Nor was it meant to apply in this case, where five and
       six years had gone by without the father’s being involved. As stated in In re
       Adoption of Baby Boy L, 231 Kan. 199, 643 P.2d 168 (1982):

               “the underlying thread that runs throughout the entire Act [is] to the
               effect that the Act is concerned with the removal of Indian children
               from an existing Indian family unit and the resultant breakup of the
               Indian family.”

       Our interpretation is supported by recent events in the Congress. In 1987
       amendments were presented by the Senate Committee on Indian affairs. These
       proposed amendments were occasioned by the courts’ refusing to apply the ICWA
       to situations like this one. The amendments, if enacted, would have made application
       of the ICWA mandatory regardless of whether the child had “previously lived in
       Indian country, in an Indian cultural environment or with an Indian parent.” See
       S.1976, 100th Cong., 1st Sess., 133 Cong. Rec. S18532, S18533 (daily ed. Dec.19,
       1987) (proposed amendment to Section 1903(1)). However, the amendments never
       came out of the Senate Committee, and at the time of this writing, have not been
       presented again. Congress, being aware of this Court’s decision in In re D.M.J., as
       well as decisions from other states using similar reasoning, has refused to change the
       statutory language to do away with this interpretation.

Id. at 1255.

       This reasoning was relied upon by the Kentucky Supreme Court in Rye v. Weasel, 934

                                                  15
S.W.2d 257, 261 (Ky. 1996). In Rye, an Indian child was removed from her Indian mother at birth

and placed with foster parents. The foster father was Indian, the foster mother was not. The child’s

biological father was unidentified. Id. at 259. Years later, the foster parents divorced, and the non-

Indian foster mother was awarded custody of the Indian child. Id. at 260. The Kentucky Supreme

Court affirmed, finding that the ICWA was not applicable because of the existing Indian family

doctrine. Id. at 264. The Rye court found that Holyfield did not address the existing Indian family

doctrine and was not contrary to it. Id. at 262-63. It stated that Congress did not intend the ICWA

to apply to situations involving children of Indian heritage who had never lived in an Indian family.

Id. at 264. The Kentucky court cited favorably the Oklahoma decision in In re S.C., observing:

“Oklahoma, which contains a large Indian population and consequently [is] one of the states most

often presented with this vexing problem, has been one of the leading states in developing [the

existing Indian family] doctrine.” Id. at 261.

       In adopting the existing Indian family doctrine, some courts have looked not only at whether

the Indian child was being removed from an existing Indian family, but also at whether the child

would be placed into an Indian environment if the ICWA were applied. In In re Adoption of Crews,

825 P.2d 305, 310 (Wash. 1992), the mother of the child at issue was of Indian ancestry, although

at the time the child was born she was uncertain how much “Indian blood” she had. The father was

non-Indian. The biological parents selected an adoptive couple and voluntarily relinquished their

parental rights. After the baby was born, the mother signed a consent to adoption and the child was

placed in the temporary custody of the potential adoptive parents. Within days, the mother began

seeking the return of the baby and a reinstatement of her parental rights. Id. at 306-07.

       When the baby was approximately three months old, the mother filed a petition pursuant to

the ICWA, seeking an order vacating the termination of her parental rights. The record indicated

that the mother researched her Indian heritage in order to reinstate her parental rights and had had

no previous contact with her tribe. The trial court found the ICWA inapplicable and denied the

mother’s petition to reinstate her parental rights. The mother’s tribe was later permitted to intervene

on appeal to argue the applicability of the ICWA. Id. at 307-08.




                                                  16
       The Washington court cited the statement in Baby Boy L., supra, that the ICWA concerns

“the removal of Indian children from an existing Indian family unit and the resultant breakup of the

Indian family.” Id. (quoting Baby Boy L., 643 P.2d at 175). It noted that the Indian mother had

never been part of an Indian family unit and had no plans to move to the reservation if her parental

rights were reinstated. Crews, 825 P.2d at 310. It cited cases from other jurisdictions holding the

ICWA inapplicable where the Indian child was not being removed from an Indian environment, and

found that Holyfield did not preclude such a holding. Id. The Crews court stated:

       Holyfield supports our conviction that ICWA is not applicable when an Indian child
       is not being removed from an Indian cultural setting, the natural parents have no
       substantive ties to a specific tribe, and neither the parents nor their families have
       resided or plan to reside within a tribal reservation. In such a situation, whether or
       when a child meets the definition of “Indian child” under ICWA is not controlling.

          We are not unmindful that prior abusive child welfare practices may have cut off
       large numbers of persons from their Indian heritage. Furthermore, there may be
       instances where the application of ICWA would result in the placement of an Indian
       child back into an Indian environment. This is not the case before us. It is within the
       narrow circumstances presented by the specific facts of this case that we find ICWA
       not applicable.

Id. at 310-11 (citation omitted). Thus, the Crews court looked not only at whether the Indian child

was being removed from an existing Indian family, but also at whether application of the ICWA

would result in the child being returned to an Indian environment. See also In re Bridget R., 49 Cal.

Rptr. 2d 507, 522 (Cal. App. 1996) (“[I]t does not follow from Holyfield that ICWA should apply

when neither the child nor either natural parent has ever resided or been domiciled on a reservation

or maintained any significant social, cultural or political relationship with an Indian tribe.”); In re

Adoption of S.S., 657 N.E.2d 935, 944-45 (Ill. 1995) (Heiple, J., concurring) (asserting that “[t]he

Holyfield Court . . . never refers to the existing Indian family exception,” and that the exception is

still valid); In re T.S., 801 P.2d 77, 82 (Mont. 1990); In re C.E.H., 837 S.W.2d 947, 952 (Mo. App.

1992); In re Hampton, 658 So. 2d 331, 336-37 (La. App. 1995); In re Alexandria Y., 53 Cal. Rptr.

2d 679, 684-86 (Cal. App. 1996);

       Some courts have suggested that the ICWA would not be constitutional in the event that the

existing Indian family doctrine is not recognized. This is premised on a possible infringement of the

Fifth, Fourteenth, and Tenth Amendments.1


       1
       A California court first noted this possible infirmity in In re Bridget R., 49 Cal. Rptr. 2d
507 (Cal. App. 1996):


                                                  17
                   ANALYSIS OF EXISTING INDIAN FAMILY DOCTRINE

        In this case, Mother is of Indian heritage but does not live on the reservation and has had

little or no contact with the Nation for over fifteen years. The putative father is non-Indian. The

child was voluntarily relinquished at birth and has lived with the prospective adoptive parents

throughout these proceedings. When Jeffrey was one year old, after several communications from

the Agency, the Nation sought to intervene to assert the provisions of the ICWA. In its pleadings,

the Nation implies that Jeffrey could be placed with Mother’s extended family on the reservation.

Mother objects to the Nation’s intervention in this case.

        If the ICWA is applicable, then the Nation would be permitted to intervene to assert the

adoptive preferences set forth in 25 U.S.C. § 1915.2 We must therefore determine if the ICWA is

intended to apply to circumstances such as these, that is, whether Tennessee should adopt the

existing Indian family doctrine.




        [I]n our view, there are significant constitutional impediments to applying ICWA,
        rather than state law, in proceedings affecting the family relationships of persons who
        are not residents or domiciliaries of an Indian reservation, are not socially or
        culturally connected with an Indian community, and, in all respects except genetic
        heritage, are indistinguishable from other residents of the state. These impediments
        arise from the due process and equal protection guarantees of the Fifth and
        Fourteenth Amendments and from the Tenth Amendment’s reservation to the states
        of all powers not delegated to the federal government. We must, of course, construe
        the statute to uphold its constitutionality.

Id. at 522. This was also noted in In re Alexandria Y., 53 Cal. Rptr. 2d 679, 686 (Cal. App. 1996)
(“recognition of the existing Indian family doctrine [is] necessary to preserve the ICWA’s
constitutionality.”). The Alexandria court recognized three possible constitutional violations:

        (1) impermissibly intruding upon a power ordinarily reserved to the states; (2)
        interfering with Indian children’s fundamental due process rights respecting family
        relationships; and (3) depriving Indian children of equal opportunities to be adopted
        and exposing them to an unequal chance of having non-Indian families torn apart
        based solely on race, in the absence of a compelling state purpose.

Id. But see In re Adoption of Riffle, 922 P.2d 510, 514 (Mont. 1996) (“[W]e hold that the
application of the ICWA does not deny (the child) her constitutional rights and we decline to adopt
the California Court’s approach in In re Bridget R.”).
        2
          It should be noted that Section 1915 provides for application of the adoptive preferences
“in the absence of good cause to the contrary. . . .” The considerable delay by the Nation in asserting
the provisions of the ICWA must be taken into account in such a determination. The Nation failed
to respond to several letters from the Agency, the first sent to The Nation shortly after Jeffrey’s birth.
 During the period of delay, Jeffrey lived with the adoptive parents over a year, long enough to view
them as his mother and father. The emotional trauma to the child of removal, in the face of such
unwarranted delay, must be considered.

                                                   18
         We are wary of an exception to a federal statute created by state courts. See In re Adoption

of T.N.F., supra; and Matter of Baby Boy Doe, supra. However, in interpreting any statute, federal

or state, we must be mindful of the purpose for which the statute was enacted. Sharp v. Richardson,

937 S.W.2d 846, 850 (Tenn. 1996) (“The role of the Court in construing statutes is to ascertain and

give effect to the legislative intent.”). We are persuaded that the ICWA was intended to remedy “the

removal of Indian children from an existing Indian family unit and the resultant breakup of the

Indian family.” Baby Boy L., 643 P.2d at 175; see also 25 U.S.C. § 1901 (1983); Holyfield, 109 S.

Ct. at 1599-1602. The ICWA, by its terms and the Congressional statement of its purpose, does not

reflect an intent to apply to circumstances such as these, in which the putative father is a non-Indian,

and the Indian mother years ago left the reservation. By all indications, even if Jeffrey had remained

with Mother, he would not be raised in an Indian environment. Rather than preserving an existing

Indian family, application of the ICWA under these circumstances would disrupt the adoptive family

unit to place in an Indian environment a child who has had no contact with the reservation. We

agree with courts finding that the ICWA was not meant to apply to such situations. See In re S.C.,

supra; Rye v. Weasel, supra; Crews, supra; Bridget R., supra; Adoption of S.S., supra (Heiple, J.,

concurring); In re T.S., supra; In re C.E.H., supra; Hampton v. J.A.L., supra; Alexandria Y.,

supra.

         We must note that at least one court has also appeared to require, in order to apply the

existing Indian family doctrine, a showing that the Indian child would not be placed in an Indian

environment if the ICWA were applied. See Crews, supra; In re Adoption of M., 832 P.2d 518, 522

(Wash. App. 1992). We decline to adopt such a requirement, because we find that the terms and

stated purpose of the ICWA indicate that it was intended to prevent the breakup of existing Indian

families.

         Therefore, we find the provisions of the ICWA inapplicable to the facts of this case, based

on the existing Indian family doctrine. The trial court’s denial of the Nation’s motion to intervene

is affirmed on this basis.

         The Nation also appeals the trial court’s order requiring it to pay part of the fees and expenses

incurred by the guardian ad litem and the attorney ad litem. We find no abuse of discretion by the

trial court in requiring such payment. The remaining issues raised by the Nation on appeal are

pretermitted by our affirmance of the trial court’s denial of the Nation’s motion to intervene based

                                                    19
on the inapplicability of the ICWA.

       The decision of the trial court is affirmed. Costs are taxed to the Appellant, for which

execution may issue if necessary.




                                      HOLLY KIRBY LILLARD, J.

CONCUR:



W. FRANK CRAWFORD, P. J., W.S.



DAVID R. FARMER, J.




                                              20
