## Facts

- A.J.S. was the minor child of an unmarried non-Indian mother and an unmarried father who was an enrolled member of the Cherokee Nation.
- The mother petitioned in Kansas district court to terminate the father’s parental rights and sought adoption placement with her non-Indian relatives.
- The father sought protections under the Indian Child Welfare Act (ICWA), including transfer of the case to Cherokee Nation tribal court.
- The Cherokee Nation moved to intervene in the state proceeding.
- The parties stipulated that A.J.S. met ICWA’s definition of an “Indian child.”
- The district court nevertheless concluded ICWA did not apply, relying on Kansas’s “existing Indian family” doctrine, reasoning the child had never been part of an Indian family and would not be.
- Based on that reasoning, the district court denied both the motion to transfer to tribal court and the tribe’s motion to intervene.
- The father and the Cherokee Nation pursued an interlocutory appeal to the Kansas Supreme Court.

## Issues

1. Whether a state court may treat ICWA as inapplicable to a child custody proceeding involving an “Indian child” by applying the “existing Indian family” doctrine.
2. Whether, once ICWA applies, the tribe has a statutory right to intervene and the transfer request must be decided under ICWA’s transfer framework, including the “good cause” inquiry.

## Decision

- The Kansas Supreme Court reversed the district court’s denial of intervention and denial of transfer consideration under ICWA and remanded.
- The court repudiated the “existing Indian family” doctrine as inconsistent with ICWA’s text and purpose and disapproved prior Kansas precedent applying that doctrine.
- Because A.J.S. was an “Indian child” and the case was a covered “child custody proceeding,” ICWA applied to the termination and adoption-related proceedings.
- The Cherokee Nation was entitled to intervene as of right under 25 U.S.C. § 1911(c).
- The state court was required to address the transfer motion under 25 U.S.C. § 1911(b), including the statutory “good cause” standard, rather than excluding ICWA based on a judge-made exception.
- The Supreme Court did not itself order transfer, but directed the district court to apply ICWA’s standards on remand.

## Legal Principles

- ICWA applies in a child custody proceeding whenever the child meets ICWA’s statutory definition of “Indian child”; courts may not add an extra-statutory “existing Indian family” requirement.
- The “existing Indian family” doctrine is incompatible with ICWA’s language and congressional policy of protecting Indian children’s interests and tribal stability and security.
- An Indian child’s tribe has the right to intervene in a state-court child custody proceeding “at any point” under 25 U.S.C. § 1911(c).
- In off-reservation cases covered by ICWA, a request to transfer to tribal court must be evaluated under 25 U.S.C. § 1911(b), including whether “good cause” exists to deny transfer, and cannot be rejected based on a categorical judge-made exception.

## Conclusion

The Kansas Supreme Court held that ICWA governed the proceeding because A.J.S. was an “Indian child,” rejected the existing Indian family doctrine, and required that the Cherokee Nation be allowed to intervene and that any transfer request be analyzed under ICWA’s statutory framework on remand.


In re A.J.S., 204 P.3d 543 (Kan. 2009)