Indian Child Custody Law In California

The Indian Child Welfare Act of 1978 (ICWA) protects the interests of Indian children and promotes the stability and security of Indian tribes and families. Minimum federal standards, both substantive and procedural, effectuating these policies are set forth in the ICWA. (In re Kahlen W. (1991) 233 Cal. App. 3d 1414, 1421 285 Cal. Rptr. 507.) To these ends, if an Indian child resides or is domiciled within an Indian reservation, the tribe shall have exclusive jurisdiction over any child custody proceeding. (25 U.S.C. 1911(a).) If the child does not reside upon or is not domiciled within a reservation, the state court shall transfer jurisdiction of the proceeding to the tribe unless either parent objects. (Id., 1911(b).) The ICWA presumes it is in the best interests of the child to retain tribal ties and cultural heritage and in the interest of the tribe to preserve its future generations, a most important resource. (In re Crystal K. (1990) 226 Cal. App. 3d 655, 661 276 Cal. Rptr. 619.) Congress has concluded the state courts have not protected these interests and drafted a statutory scheme intended to afford needed protection. (25 U.S.C. 1902.) The courts of this state must yield to governing federal law. To ensure a tribe's right to intervene, the ICWA requires "where the court knows or has reason to know that an Indian child is involved," the party seeking termination of parental rights must, in relevant part, notify the Indian child's tribe of the pending proceedings and its right to intervene. (25 U.S.C. 1912(a); see also Adoption of Lindsay C. (1991) 229 Cal. App. 3d 404, 408 280 Cal. Rptr. 194.) Indeed, if the identity or location of the tribe cannot be determined, the notice shall be given to the Secretary of the Interior (Secretary). (25 U.S.C. 1912(a).) The burden of identifying and providing notice to the proper tribe then shifts to the Secretary who presumably has more resources and skill with which to ferret out the necessary information. (In re Kahlen W., supra, 233 Cal. App. 3d at p. 1422.) Once the Secretary receives the statutory notice, the Secretary has 15 days within which to provide notice to the tribe or notify the court that it needs additional time to do so. (Id. at p. 1423.) This court has characterized notice as a "key component of the congressional goal to protect and preserve Indian tribes and Indian families." (In re Kahlen W., supra, 233 Cal. App. 3d at p. 1421.) We also have observed: "the statute and all cases applying the Act unequivocally require actual notice to the tribe or the Secretary" of both the proceedings and of the right to intervene. (Id. at p. 1422.) The requisite notice to the tribe serves a twofold purpose: (1) it enables the tribe to investigate and determine whether the minor is an Indian child; (2) it advises the tribe of the pending proceedings and its right to intervene or assume tribal jurisdiction. (In re Pedro N. (1995) 35 Cal. App. 4th 183, 186-187 41 Cal. Rptr. 2d 819.)