The rise and decline of the Existing Indian Family exception, the EIF. The EIF was created by state courts starting in 1982, as a means to circumvent the Indian Child Welfare Act in cases where the child has an allegedly attenuated relationship with the tribe.

Sam Daughety is a member of Dentons’ Public Policy and Regulation practice and Native American Law and Policy practice. Sam has substantial experience advising clients on complex Indian lands and Indian gaming issues, including tribal-state compacts and related agreements, the fee-to-trust process, leasing, regulatory compliance, and tribal governmental and administrative matters. He regularly assists clients in developing viable strategic solutions in the face of legislative and regulatory challenges.

In this CLE class video clip, Sam discusses the Indian Child Welfare Act of 1978.

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The first time we see this is in a case called Baby Boy L out of Kansas in 1982. This was a case involving a child whose parents, according to the court, had become assimilated into the non-Indian culture and had no intention of raising their child in the Indian culture. The court expressed its understanding that in certain circumstances, if they were going to follow the Indian Child Welfare Act, and place this child with a particular family within the Indian culture.

As time went on, in 2009, the courts came full circle and Kansas was the first state court to adopt the existing Indian family exception. Now more states consider each case uniquely as to whether or not to initiate the Indian Child Welfare Act, or use the Indian family exception.