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     Module 2      Initial Inquiry

Child Need Not Have Existing Indian Ties

California legislation clearly requires that the guarantees of ICWA apply even for an Indian child with no existing tribal or Indian family connections at the commencement of the proceeding. (Welf & I C §224(a)(2).) Historically this issue has been a source of appellate and legislative conflict, however.

Some courts have applied an “existing Indian family doctrine,” which denies the application of ICWA when the child lacks an experience of Indian family—that is, when neither the child nor the child’s parents have significant social, cultural, or political relationships with Indian life. (See, e.g., In re Alexandria Y. (1996) 45 CA4th 1483, 1488.)

But the California Legislature has repeatedly expressed a strong intent to abolish reliance on this doctrine. The case In re Vincent M. (2007) 150 CA4th 1247 held that Senate Bill 678 and particularly Welf & I C §224(a)(2) clearly mean that the doctrine no longer applies in California.

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