dissenting.
[¶ 25] I respectfully dissent. The issue is not, as the majority opinion suggests, a challenge to a specific placement order. The issue is what law applies to the underlying juvenile eourt proceedings. This is an important question that is appealable, justiciable, and cannot possibly become moot because the answer to the question affects almost every aspect of the juvenile court proceeding.
[¶ 26] The specific issue is whether the ICWA applies to this case. The ICWA is not something of limited application. The ICWA provides a myriad of substantive and procedural safeguards that must be met in addition to state law standards. Orders that do not comply with the requirements of the ICWA face the possibility of being declared void. 25 U.S.C. § 1914. Because the dictates of the ICWA potentially affect the very nature and course of proceedings, the determination of its application can never be considered moot.1
[T27] Because of the mandatory requirements of the ICWA, it is critical to determine as early as possible whether the ICWA applies to a proceeding. In this case, it is an easy determination to make. The child who is the subject of this proceeding is an enrolled member of the Northern Arapaho Tribe. She is subject to involuntary foster care. The ICWA applies 25 U.S.C. § 19083(1)G); 25 U.S.C. § 1912.
[T28] While it may not have been as clearly presented as this Court might have hoped, there is only one possible reason the trial court could have determined that the ICWA did not apply. It was argued that the ICWA did not apply because of the "existing Indian family" exception that has been judicially created in some states. The "existing Indian family" doctrine, which has not been addressed or adopted by the Wyoming courts, precludes application of the ICWA when the Indian child's parent or parents have not maintained a significant social, cultural, or political relationship with his or her tribe. See State in Interest of D.A.C., 933 P.2d 993 (Utah App.1997); In re Bridget R., 41 Cal.App.4th 1483, 49 Cal.Rptr.2d 507 (Cal.App.1996). Since this judicially created exception was first introduced in the case of In re Adoption of Baby Boy L., 231 Kan. 199, 643 P.2d 168 (1982), it has been widely criticized. See State in Interest of D.A.C., 933 P.2d 993 (Utah App.1997) (collecting cases). There is currently pending in the United States House of Representatives a bill, H.R. 2750, that would clarify that the ICWA applies to all Indian children, regardless of whether an Indian child has been part of an Indian family or has maintained a social or cultural relationship with an Indian tribe.
[¶ 29] I would hold that, as a matter of law, the "existing Indian family" exception defies that clear language and intent of the ICWA, which includes promoting the stability and security of Indian tribes and protecting the unique Indian eulture. 25 U.S.C.
*1040. § 1902. Wyoming should not recognize the judicially created "existing Indian family" exception. Because, as a matter of law, the "existing Indian family" exception is not recognized in Wyoming, no factual question exists as to whether the exception applies in this specific case. SNK is an Indian child as defined by the ICWA and the ICWA applies to this case. I would remand this case to the juvenile court for further proceedings consistent with the mandates of ICWA. This would include conducting a new placement hearing, taking into account the factors required by the ICWA. 25 U.S.C. § 1915.
. I strongly disagree with the assumption made in the majority opinion that, since the juvenile court gave the Tribe the opportunity to remain in the case as a party, the juvenile court must have changed its mind and decided the ICWA applies. A party is defined in the Juvenile Protection Act as "any ... person made a party by an order to appear, or named by the juvenile court." Wyo. Stat. Ann. § 14-3-402(a)(xiv) (LexisNexis 2003). The juvenile court could allow the Tribe to remain a party for any reason. The juvenile court did not express any change in its decision that ICWA does not apply to the proceedings.