dissenting:
I respectfully dissent. I would affirm the decision of the trial court on the application of the Indian Child Welfare Act of 1978 (ICWA or Act) (25 U.S.C. §1911 (1989)), but I would apply different reasoning. The trial court’s order states that “the children are not, and never have been domiciled on an Indian reservation.” The court apparently concluded on this basis that the ICWA did not apply to these proceedings. I believe that the facts in this case lend themselves to an application of the “existing Indian family doctrine,” which renders the ICWA inapplicable to the case at hand. This is a question of first impression in Hlinois which deserves careful consideration not only of proper application of the ICWA, but the welfare of the children involved.
Congress adopted the ICWA with the express purpose:
“[T]o 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 ***.” 25 U.S.C. §1902 (1989).
Legislative history cited in previous similar cases indicates that the overriding concern of Congress and other proponents of the ICWA was to maintain the family and tribal relationships in existing Indian homes and to set minimum standards for the removal of Indian children from their existing Indian environment. (See In re Adoption of Baby Boy L. (1982), 231 Kan. 199, 206, 643 P.2d 168, 175.) The ICWA was intended to counteract the large scale separation of Indian children from their family, tribe, and culture due to adoption or foster care placement in non-Indian homes. (Mississippi Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 49, 104 L. Ed. 2d 29, 47, 109 S. Ct. 1597, 1608-09.) The ICWA states that Congress specifically found:
“(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions; and
(5) that the States, exercising their recognized jurisdiction over Indian child custody proceedings through administrative and judicial bodies, have often failed to recognize the essential tribal relations of Indian people and the cultural and social standards prevailing in Indian communities and families.” 25 U.S.C. §§1901 (4), (5) (1989).
I do not conclude that Congress intended the ICWA to dictate that the fate of children such as S.S. and R.S., who have had little contact with an Indian home or culture and have resided primarily with their father in another State, should be determined by the Indian tribe. Rather, I believe the ICWA is meant to be applied when Indian children are being removed from an existing Indian environment.
These proceedings concern S.S., age 5 years, and R.S., age 9 years. It is apparently undisputed that Ironbear and the children are all enrolled members of the Fort Peck Assiniboine and Sioux Tribes. Ironbear briefly resided with the children and their father in the past, although she and the father never married. Ironbear had been awarded physical care of the children for two months out of the year under a 1990 joint parenting agreement. 'The children resided with their father in Illinois during the rest of the year. However, Iron-bear’s physical care was terminated on April 20, 1992. The children continuously resided with their father thereafter until his death on November 19, 1992. The Tubridys, the children’s paternal aunt and uncle, took the children into their home after the father’s death and immediately filed a petition for adoption.
The facts indicate that the children lived the predominant part of their lives with their non-Indian father in Illinois. Their history does not present the type of situation where the ICWA was meant to be applied since the children were not separated from an existing Indian family, tribe, or culture. Rather, the facts are sufficient to apply an existing Indian family exception since the appropriate tribunal would be determining whether the children would be removed, not from a reservation, tribe, or Indian family, but rather from the family members with whom they have resided and an environment which they now consider to be home.
I appreciate the concern that our decision should be based only on the application of the ICWA, not on the fear that the tribal court would conclude that the children should reside on the reservation. I cannot speculate on the outcome of any proceeding in the tribal court nor by this dissent do I suggest a lack of confidence in the tribal court.
I do not believe that the existing Indian family doctrine departs from the clear language of the statute and is a judicial creation with no basis in the language of the ICWA. (See 252 Ill. App. 3d at 42-43.) The justification for applying the existing Indian family doctrine comes from the stated purpose of the statute itself (see 25 U.S.C. §1902 (1989)), not from contrived derivations of the legislative findings or policy statements.
Several cases have determined that the ICWA was inapplicable because the adoption did not break up an existing Indian family. (In re Adoption of T.R.M. (Ind. 1988), 525 N.E.2d 298; In re Baby Boy L., 643 P.2d at 175; In re S.A.M. (Mo. Ct. App. 1986), 703 S.W.2d 603; In re S.C. (Okla. 1992), 833 P.2d 1249.) The Oklahoma Supreme Court recently endorsed the existing Indian family doctrine, stating that it is not a judicially created exception to the application of the ICWA; rather, it is simply outside the scope of the ICWA. {S.C., 833 P.2d at 1256.) The court concluded that the United States Supreme Court’s decision in Holyfield should be confined to the domiciliary issues presented and did not overrule the existing Indian family doctrine, since “[extending Holyfield to control placements occurring years after the child has already been away from its Indian family would not be consistent with the stated purposes of the ICWA.” S.C., 833 P.2d at 1255.
The court in S.C. also noted that, in 1987, amendments were presented by the Senate Committee on Indian Affairs which, if enacted, “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.’ ” (S.C., 833 P.2d at 1255, quoting S. 1976, 100th Cong., 1st Sess. (1987), 133 Cong. Rec. S18532, S18533 (daily ed. Dec. 19, 1987) (proposed amendment to section 1903(1)).) The amendment failed, and the court in S.C. stated that Congress, being aware of the existing Indian family doctrine, refused to change the statutory language to eradicate this interpretation. (See S.C., 833 P.2d at 1255.) Restricting the application of the ICWA to an existing Indian family does, therefore, have support from previous case law, the language of the ICWA itself, and Congress’ refusal to amend the ICWA.
The majority quotes In re Dependency & Neglect of N.S. for the argument that the statute does not require that the children were bom into an Indian home or community in order to come within the provisions of the ICWA. Conversely, the policy statements and other relevant statutory language also do not provide that children residing in non-Indian homes who have had minimal contact with the reservation or Indian culture necessarily come within the purview of the ICWA. The facts in this case are different from the types of problems which were the catalyst for the ICWA since the children here would be adopted into the family with whom they currently reside, and such adoption would not involve the breakup of an existing Indian family.
I conclude that the ICWA does not apply to the case at bar; thus, I would affirm the trial court. It should be noted that the trial court’s order appears to base its decision on the fact that it found the children were not residing or domiciled on the reservation. In fact, if the ICWA did apply, I agree with the majority that domicile of the children would be established on the reservation under the language of Holyfield. (See 252 Ill. App. 3d at 48.) However, since I believe the ICWA should not apply in the case at hand, the issue of domicile need not be determined for the disposition of this case.