The Indian Child Welfare Act Notice Provisions
In Kahlen W., supra, a social services employee spoke with three different groups of Miwok Indians, attempting to determine the minor's status.
In granting the writ sought by the mother of the minor, the appellate court held the department had failed to notify the tribe of its right to intervene in the proceedings, as required by the Indian Child Welfare Act. (233 Cal. App. 3d at pp. 1418, 1420, 1424, 1426.)
The court rejected the department's contention that the record showed substantial compliance with the notice provisions of the Indian Child Welfare Act.
It noted that all pertinent authority plainly required "actual notice to the tribe of both the proceedings and of the right to intervene." (In re Kahlen W., supra, 233 Cal. App. 3d at pp. 1421, 1422, some original italics omitted.) Mere " 'awareness' " of the proceedings is not sufficient under the Indian Child Welfare Act. (Id. at p. 1422.)
Kahlen W., supra, emphasized notice is mandatory, and that ordinarily failure in the juvenile court to secure compliance with the Act's notice provisions is prejudicial error.
The only exceptions lie in situations where "the tribe has participated in the proceedings or expressly indicated [it has] no interest in the proceedings." (233 Cal. App. 3d at p. 1424; but see In re Junious M. (1983) 144 Cal. App. 3d 786, 794, fn. 8 [193 Cal. Rptr. 40].)
The Kahlen W. court rejected a suggestion by the department that its noncompliance with the notice provisions of the Indian Child Welfare Act was a result of the mother's failure to cooperate by not providing the department with the roll number and by not timely communicating her ancestry. ( In re Kahlen W., supra, 233 Cal. App. 3d at p. 1424.)
As the court pointed out, the Indian Child Welfare Act is intended to protect the interests of the tribe as well as those of the minor's parents. ( Id. at p. 1425.)
Moreover, the minor is entitled to the protection of the Indian Child Welfare Act irrespective of the actions of the parents. (Ibid.) Finally, the court rejected the claim that by her silence the mother waived her rights under the Act. (Ibid.)
California Rules of Court, rule 1439(f) (further references to rules are to the California Rules of Court) provides in part:
"(3) Notice shall be sent to all tribes of which the child may be a member or eligible for membership. (4) If the identity or location of the parent or Indian custodian or the tribe cannot be determined, notice shall be sent to the specified office of the Secretary of the Interior, which has 15 days to provide notice as required. (5) Notice shall be sent whenever there is reason to believe the child may be an Indian child, and for every hearing thereafter unless and until it is determined that the child is not an Indian child."
Rule 1439(g) provides in part: "Determination of tribal membership or eligibility for membership is made exclusively by the tribe. a tribe's determination that the child is or is not a member of or eligible for membership in the tribe is conclusive."