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By the end of the nineteenth century Indian children were being removed from their families, extended families and tribal life and placed in boarding schools or adoptive non-Indian homes at such an alarming rate that Congress attempted to halt such removal by making it illegal to obtain parental consent of the removal of their children in a compulsory or fraudulent manner.

The wholesale adoption of Indian children continued uninterrupted well into the twentieth century, until the enactment of the Indian Child Welfare Act (ICWA) of 1978.

Senate hearings held prior to enactment of ICWA in 1978 showed that 25 to 35 percent of all Indian children had been separated from their families and placed in foster care, adoptive homes or institutions. In Holyfield, the only ICWA case to be heard before the United States Supreme Court, the Court noted that "in the state of Minnesota, for example, one in eight Indian children under the age of 18 was in an adoptive home, and during the year 1971-1972 nearly one in every four infants under one year of age was placed for adoption. The adoption rate of Indian children was eight times that of non-Indian children." Between 1967 and 1978 forty-percent of all adoptions in South Dakota were of Indian children, yet Indian children comprised only seven-percent of the population under the age of eighteen.

However, the protection of Indian children under the ICWA is now threatened by a judicial exception to ICWA, which has been adopted by an increasing number of states. In these states the courts have concluded that ICWA does not apply if the Indian child is illegitimate and the mother is non-Indian or the mother is Indian and is a member of a tribe, but lives off the reservation.

State courts are refusing to return Indian children placed in adoptive homes when required to by ICWA or apply the ICWA preferences for adoptive placement of Indian children, with either the child's extended Indian family or another member of the same tribe, under the following circumstances: (1) the child is illegitimate and the Indian mother (residing off-reservation) initiated an adoption proceeding with a non-tribal public or private adoption agency, but later revoked consent prior to issuance of a final adoption decree; (2) the child is illegitimate with an Indian father and the mother is non-Indian; and (3) the illegitimate child's extended Indian family wishes to adopt the child, but the non-Indian mother or Indian mother (residing off-reservation) has requested that her child be placed in a non-Indian adoptive home.

In the above situations state courts have concocted an "existing Indian family" exception to ICWA which is invoked if the home that the child was removed from was not an Indian family. In other words some courts have ruled ICWA does not apply whenever an illegitimate Indian child, prior to placement in the non-Indian adoptive home were raised exclusively in a non-Indian home, and thus did not reside in an existing Indian family. A Kansas state court applying the existing Indian family rationalized that Congress could not have possibly passed the ICWA "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 the non-Indian mother." This court proceeded to discuss the child's less than full degree of Indian blood, even though the child was eligible for membership in a federally recognized Indian tribe.

Currently, the rights of a biological Indian mother, whose parental rights are improperly terminated under ICWA or has revoked consent before the adoption is final, and extended Indian families seeking custody are threatened by courts and adoption attorneys, who allege that such parent or extended family is not sufficiently Indian enough to qualify as an "existing Indian family."

It is this latest use of the preposterous test for Indian-ness, applied to an Indian mother (who withdraws consent) or to Indian members of the child's extended family, that may well lead to a complete rejection of the existing Indian family exception by the US Supreme Court. Presently, courts and attorneys for private adoption agencies are convinced that single Indian parents and extended family should pass their contrived Indian-ness test.

Other state courts (e.g., Alaska, Idaho, New Jersey and South Dakota) have rejected the existing Indian family limitation because the statutory language of ICWA plainly states that it applies to any proceeding for termination of parental rights or adoptive placement of an Indian child who is under the age of eighteen, unmarried and is either "(a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." ICWA does not apply if the mother is non-Indian, and the Indian father has not acknowledged or established paternity, which is included in the Act as an exception because the US Supreme Court has ruled that parental rights of biological parents are not protected, unless paternity is acknowledged or established.

In those states adopting the existing Indian child exception attorneys have argued, to no avail, that once it is established that the child is Indian and is the biological child of a member of a tribe, the plain language of the ICWA unequivocally commands that in any proceeding for adoption the Indian child shall be returned to the biological parent if consent is withdrawn before entry of a final decree of adoption. Under ICWA the parental rights may not be terminated, unless custody would result in "serious emotional of physical damage to the child." There is no statutory language in ICWA which states that parental rights can be terminated if the Indian father or mother seeking the return of the child are not "real Indians." The ICWA only requires that an Indian mother or father be an official member of a tribe in order to be protected under ICWA.

In response to a claim that a young Indian mother and her parents are not real Indians for purposes of ICWA, Mark Fiddler, attorney for the Indian Child Welfare Law Center, and Faegre & Benson a law firm in Minneapolis have filed suit in federal district court in Georgia on behalf of the Leech Lake Band of Chippewa to terminate the adoption of an Indian child the Tribe claims was secured by the Open Door Adoption Agency in flagrant violation of the ICWA. In this case both parents (unmarried) are Indian and their baby boy was born on May 3, 1995 and placed in a non-Indian adoptive home. The mother currently resides with her parents in Georgia, where the family is stationed by the military. The mother is a member of the White Earth Band of Chippewa and grew up in Cass Lake, Minnesota. The father is eligible and has applied for enrollment with the Leech Lake Band of Chippewa.

On May 4, 1995 the Open Door Adoption Agency in Georgia obtained the signature of the Indian mother on a document which consented to the termination of parental rights to her child. Subsequently, a petition to terminate the Indian mother's parental rights was granted by a Georgia state court. However, the consent was obtained merely one day after the birth in clear violation of the ICWA, which provides: "Any consent given prior to, or within ten days after, birth of the Indian child shall not be valid." Furthermore, if the child is Indian ICWA requires that before consent to terminate parental rights may be given, the tribe (in which the child is eligible for membership) must be notified and given an opportunity to intervene, and the presiding judge in such proceeding must explain in detail to the parent(s) the consequences and terms of the consent.

Although the Open Door Adoption Agency admitted that the consent of the Indian mother was obtained in violation of ICWA, the Agency now argues that, regardless of how the consent was obtained, the ICWA is not applicable to the adoption of this Indian baby boy because they claim that the mother and her extended family do not have strong enough connections to Indian culture or their reservations, and thus the adoption was legal under state law. The Georgia state courts and the attorneys for the adoption agency interpret the primary goal of ICWA as preventing the breakup of Indian families, and thus reason that because the Indian family is not a real Indian family anyway, then returning the child to them serves no purpose. Needless to say, the State of Georgia has not acted so irrational since the late eighteenth century when it decided that it would no longer respect the laws of the Great Cherokee Nation and was promptly told by Justice Marshall of the US Supreme Court in the first Indian law case that it didn't know a thing about federal Indian law.

The battle in the courts is representative of the general lack of support on the part of non-Indians about the exact nature of the interests that ICWA serves to protect. Many non-Indians view ICWA as offensively anti-American, because they view ICWA and other preferential laws applicable to Indian people and tribes as promoting racial discrimination, and therefore unconstitutional. The ICWA states, "there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children." The Act was intended not only to stop the unwarranted removal of Indian children from either their parents or extended family, it was meant to give tribes a meaningful opportunity to provide Indian children who do not have an existing Indian family with an adoptive Indian home.