Pro Tern, (following retirement on February 1, 1993), dissenting:
I believe we should follow the decisions of the Supreme Court of Washington, Kansas and New Jersey in determining whether the Indian Child Welfare Act applies to this case. The decision of the United States Supreme Court in Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989), relied on by this Court in this case, is not dispositive. The facts of the Holyfield case were very different. In Holyfield both the parents were Indians and both were domiciled on the reservation. The Supreme Court in Holyfield held that the policy of the ICWA could not be defeated by “individual reservation-domiciled tribal members” intentionally leaving the reservation to have the child and put it up for adoption so that the child’s domicile would not be on the reservation. Mississippi Band of Choctaw Indians v. Holyfield at 53, 109 S.Ct. at 1610.
The facts of this case are significantly different. The trial court’s findings of fact, which are supported by the evidence in the record, conclude that the only contacts between the reputed Indian father and the non-Indian mother were away from the reservation; the non-Indian mother never lived with the reputed Indian father; and neither lived on the Indian reservation. Once the reputed Indian father learned that the non-Indian mother was pregnant he stopped all contact with her and has never claimed paternity of the child. No Indian family or reservation domicile is involved in this case. All that is involved is a non-Indian woman, with no contacts with an Indian tribe or reservation, who became impregnated, allegedly by a man who reputedly is an enrolled member of an Indian tribe.
In contrast, both parents in the Holyfield case were of Indian heritage, both were domiciled on the reservation, and both parents were involved in the adoption process.
In the recent case of the Matter of Adoption of Crews, 118 Wash.2d 561, 825 P.2d 305 (1992), the Washington Supreme Court quoted from the hearings of Congress to the effect that the purpose of the Act was to stop the breakup of Indian families by the “removal of Indian children from their families and the placement of such children in foster or adoptive [Indian] homes which will reflect the unique values of Indian culture ...” 25 U.S.C. § 1901(4)-(5). In quoting from In re Adoption of Baby Boy *473L., 231 Kan. 199, 643 P.2d 168 (1982), the Court in Crews agreed that:
the underlying thread that runs throughout the entire Act [is] to the effect that the Act is concerned with the removal of Indian children from an existing Indian family unit and the resultant breakup of the Indian family.
Matter of Adoption of Crews, 825 P.2d at 309.
For the breakup of an Indian family to occur it is necessary for an “Indian family” to exist. Recently the Oklahoma Supreme Court, in Matter of S. C., 833 P.2d 1249 (Okl.1992), similarly expressed the intent of the ICWA to be to prevent the “removal of Indian children from an existing Indian Family unit and the resultant breakup of the Indian family.” Matter of S.C., 833 P.2d at 1255 (emphasis added); see also Matter of Adoption of a Child of Indian Heritage, 111 N.J. 155, 543 A.2d 925 (1988). While a child of Indian heritage must be involved in an adoption or foster placement for the ICWA to be applicable, the Act can also be reasonably interpreted to require that the placement of the child not breakup an “Indian family” unit. Where no Indian family unit has ever existed, no breakup of an Indian family unit can take place.
The rationale of these state cases, which hold that an Indian family unit must be present before the ICWA is applicable, is supported by more recent events in Congress. A 1987 amendment to the ICWA presented to the Senate by the Committee on Indian Affairs would have made application of the ICWA mandatory regardless of whether the child had “previously lived in Indian Country, in an Indian cultural environment or with an Indian parent.” See S.1976,100 Cong., 1st Sess., 133 Cong.Rec. S18532, S18533 (daily ed. Dec. 19, 1987). The amendment never made it to the floor of the Senate and has not been presented since. Congress was well aware of the decisions employing the “existing Indian family” doctrine and apparently chose not to change the statutory language of the ICWA to modify that interpretation, as the Oklahoma Supreme Court has observed. Matter ofS.C., 833 P.2d at 1255. The child involved in this case has never been part of an “Indian family,” and accordingly, the ICWA does not apply to the facts of this case.