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Selected Opinion Summary
In the Matter of A.J.S.
Docket No. 99,130
March 27, 2009

Summaries and press releases are prepared by Ron Keefover, Office of Judicial Administration, Kansas Judicial Center, 301 West 10th, Topeka, KS 66612-1507 (785-296-2256), e-mail: keefoverr@kscourts.org.

RE: Appeal No. 99,130: In the Matter of A.J.S.

Contested adoptions of children with Native American heritage should be decided under the federal Indian Child Welfare Act, the Kansas Supreme Court ruled today.

Today’s decision abandons an exception to the federal law that has been recognized in Kansas since 1982.  The ruling arose from an adoption proceeding in the Sedgwick County District Court in which the child’s unmarried non-Indian mother sought to have the baby adopted by her family and the parental rights of the unmarried father severed.

The father, an enrolled member of the Cherokee Nation, had sought to transfer the adoption proceeding to tribal court.  The tribe’s motion to intervene also has been rejected by the district court.

Justice Carol A. Beier, writing for the Court, said if the Indian Child Welfare Act applies, “a father’s fitness to parent and the child’s placement will not be governed solely by the mother’s expressed desires.  The father and the tribe also will be heard, and ICWA’s preferences will apply in the absence of ‘good cause to the contrary.’ Although the result reached may be the same as dictated by the existing Indian family doctrine, it may not be.”

The decision added that “tribal interests in preservation of their most precious resource, their children, drove passage of ICWA.”

Quoting the federal enactment, the Court said ICWA’s expressly declared policy is: “to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by the establishment of 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.“As counsel for the Cherokee Nation emphasized at oral argument, a child removed now from the tribe cannot later be a voice for the tribe,” the Court concluded. The adoption case will now return to the District Court.