as: 229 Cal.App.3d 404)
of LINDSAY C., a Minor. DENNIS H., Plaintiff and Respondent,
S., Defendant and Appellant.
of Appeal, First District, Division 3, California.
The stepfather of a child, born out of wedlock to
a non-Indian mother and an Indian father, filed a petition
to adopt the child, and the child's mother filed a
voluntary consent form formally indicating her consent to the adoption.
Included in the petition were allegations that the child's natural
father, a member of the Little Lake Tribe, willfully failed
to communicate with the child and to pay for her
care and support although able to do so-allegations which, if
proven, would allow the adoption to proceed without the natural
father's consent (Civ. Code, § 224).
Notice of the petition and a hearing to determine the
truth of the allegations was served upon the natural father,
but no notice was given to the Little Lake Tribe.
The natural father appeared at the hearing and indicated his
refusal to consent to the adoption and his intention
to seek custody of the minor. He also argued the
application of the Indian Child Welfare Act (25 U.S.C. §§ 1901-1963),
which generally requires in custody proceedings involving Indian children, notification
of the child's tribe regarding the proceedings and an opportunity
for the tribe to intervene. Finding the allegations of the
petition to be true, the trial court ruled that the
adoption could proceed without the natural father's consent, and also
issued a determination that the act had no application to
the facts of the case. Accordingly, the trial court ordered
termination of the natural father's parental rights and directed that
the adoption proceedings go forward without the natural father's consent.
(Superior Court of Humboldt County, No. 3525, J. Michael Brown,
The Court of Appeal reversed the judgment terminating the natural
father's parental rights and remanded with directions, holding that the
Indian Child Welfare Act by its express terms was applicable.
The court held that the adoption proceeding constituted a "child
custody proceeding" for purposes of the act as it resulted
in the termination of the parent-child relationship, the child involved
was an Indian child within the meaning of the act,
the Little Lake Tribe was a tribe recognized under the
act, and the *405
child was currently eligible for membership therein. Accordingly, the court
held that the trial court was required to give the
Little Lake Tribe notice of the adoption proceedings and of
its right to intervene. (Opinion by Merrill, J., with White,
J., and Strankman, J., concurring.)
to California Digest of Official Reports
Parent and Child § 14--Parentage
of Children--Custody and Control-- Proceeding by Non-Indian Parent to Terminate
Parental Rights of Indian Parent-- Applicability of Indian Child Welfare
In an adoption proceeding by the stepfather of a minor
born out of wedlock to a non-Indian mother and an
Indian father, seeking termination of the parental rights of the
natural father, the trial court erred in failing to apply
the provisions of the Indian Child Welfare Act (25 U.S.C.
1963), which requires notification of the child's tribe regarding custody
proceedings and an opportunity for the tribe to intervene. By
its express terms, the act was applicable, since it was
uncontroverted that the child was an Indian child within the
meaning of the act, that the tribe of which the
natural father was a member was a tribe recognized under
the act, and that the child was currently eligible for
membership therein. The adoption proceeding was a "child custody proceeding"
for purposes of the act, in that it resulted in
the termination of the parent-child relationship. Further, application of the
act to the case advanced the stated purposes of the
legislation-to protect the best interests of
Indian children and to promote the stability and security of
Indian tribes and families, giving consideration not only to the
wishes of the parents, but the well-being and interests of
the child and the tribe.
Family Law, § 204
et seq.; 10 Witkin,
Summary of Cal. Law (9th ed. 1989) Parent & Child,
David J. Simon for Defendant and Appellant.
Rita L. Swenor for Plaintiff and Respondent. *406
Michael S. is a full-blooded Native American Indian and the
natural father of seven-year-old Lindsay C. who is the subject
of these proceedings. Michael appeals from a judgment terminating his
parental rights regarding the minor. As part of that judgment,
the trial court found that Michael was not the "presumed
father" within the meaning of Civil Code section 7004 and
that the Indian Child Welfare Act of 1978 had no
application to the facts of the case. We reverse.
Lindsay C. was born out of wedlock on September 3,
1983. Her biological mother and father, Linda and Michael, were
not married. Nor had they ever lived together.
They had sexual relations but no other kind of relationship.
Michael was not present at Lindsay's birth. Michael is enrolled
in the Little Lake Tribe in Covelo. Linda is non-Indian.
Following the minor's birth, Linda retained custody of the child.
On occasion, she would take the child to Michael's mother's
home for a visit. Michael was present during some of
these visits. However, the record indicates that Michael never held
the minor or called her his daughter. By the time
Lindsay was 16 months old, Linda had stopped making these
visits and it appears that there was no further contact
of any kind between Michael and Lindsay.
In April 1985, the District Attorney of Humboldt County filed
a paternity action against Michael. In response to the action,
Michael insisted on certain blood tests being performed. After receiving
the results of these tests, Michael stipulated to the fact
that he was the child's natural father.
It is the mother's testimony that up to the present
time, Michael has never initiated any contact with the minor.
Michael testified, on the other hand, that when the child
was around two or two and one-half years old, he
telephoned Linda seeking permission to see Lindsay, but Linda refused.
It is an uncontroverted fact that Michael has never provided
any kind of support for the child, financial or otherwise.
He has been unemployed for the past seven years.
In September 1986, Linda married Lindsay's stepfather, Dennis. Two years
the marriage, Dennis filed the instant petition to adopt the
minor. Linda filed a voluntary consent form with the court
formally indicating her consent to the adoption and, at the
same time, reserving her rights as the minor's natural mother.
Included as part of the petition are *407
allegations that Michael has wilfully failed to communicate with the
child and to pay for her care and support although
able to do so. Such allegations, if proven true, provide
the court with a basis for granting the petition without
Michael's consent under Civil Code section 224. The county probation
department filed a "stepparent adoption report" recommending that the petition
Notice of the petition and a hearing to determine the
truth of the allegations was served upon Michael. However, no
notice was given to the Little Lake Tribe in Covelo.
Michael appeared at the hearing and testified. He indicated his
refusal to consent to the adoption and his intention to
seek the custody of the minor. Michael stated that he
lives in a house with his wife and their two
children. He has enrolled these children as members of the
Little Lake Tribe. Michael admitted that although Lindsay C. was
eligible for enrollment, he had never attempted to enroll her.
In addition to Michael's testimony, Michael's counsel filed a memorandum
of points and authorities arguing the application of the Indian
Child Welfare Act of 1978 (the Act) which generally requires
proceedings involving Indian children, notification of the child's tribe regarding
the proceedings and an opportunity for the tribe to intervene.
This memorandum was prepared by an attorney representing the Indian
Child Welfare Act Project who was present at the hearing.
Following the hearing, the trial court found that Michael was
not the "presumed father" of Lindsay C. within the meaning
of Civil Code section 7004, subdivision (a); that he wilfully
failed to communicate with the minor for a period in
excess of one year; that he never paid any support
for the child; and that, accordingly, the adoption could proceed
without Michael's consent pursuant to Civil Code section 224. The
court then provided petitioner with time to file briefing on
the question of the applicability of the Act and took
that issue under submission. Thereafter, by separate ruling, the court
issued its determination that the Act had no application to
the facts of the case. It then entered judgment finding
that it would be in the best interest of the
minor that Michael's parental rights be terminated. It ordered the
termination of Michael's parental rights regarding Lindsay and directed that
the adoption proceedings go forward without Michael's consent. Michael appeals.
Michael claims reversible error based on the trial court's ruling
Act is inapplicable to the facts of this case. We
find his position meritorious. *408
The Act (25 U.S.C. §§ 1901-1963)
was enacted "... to 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.)
The legislation was a response by Congress to its findings
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 ...." (25 U.S.C. § 1901(4).)
Operation of the Act is triggered by a child custody
proceeding, the subject of which is an Indian child. "
'[C]hild custody proceeding,' " as that term is used in
the Act, refers to proceedings for foster care placement, termination
of parental rights, preadoptive placement, and adoptive placement. (25 U.S.C.
" 'Indian child' " is defined as "any unmarried person
who is under age eighteen and is either (a) a
member of an Indian tribe or (b) is eligible for
membership in an Indian tribe and is the biological child
of a member
of an Indian tribe[.]" (25 U.S.C. § 1903(4).)
" 'Indian child's tribe' " refers to "(a) the Indian
tribe in which an Indian child is a member or
eligible for membership or (b), in the case of an
Indian child who is a member of or eligible for
membership in more than one tribe, the Indian tribe with
which the Indian child has the more significant contacts[.]" (25
U.S.C. § 1903(5).)
Finally, " 'Indian tribe' means any Indian tribe, band, nation,
or other organized group or community of Indians recognized as
eligible for the services provided to Indians by the Secretary
because of their status as Indians ...." (25 U.S.C. § 1903(8.))
The language of the Act makes but two exceptions: it
does not apply to the custody provisions of a divorce
decree or to delinquency proceedings. (25 U.S.C. § 1903(1).)
Regarding those proceedings which do come under the Act, the
statute provides an Indian tribe with exclusive jurisdiction when the
child resides or is domiciled within its reservation. Even where
the child is not so domiciled, and a proceeding is
initiated in a state court, the court must transfer the
proceeding to the jurisdiction of the tribe under certain circumstances.
(25 U.S.C. § 1911(b).)
In cases which are not transferred, the tribe has the
right to intervene in the state court proceedings. (25 U.S.C.
"Of course, the tribe's right to assert jurisdiction over the
proceeding or to intervene
in it is meaningless if the tribe has no notice
that the action is pending. [Citation.]" (In
re Junious M.
(1983) 144 Cal.App.3d 786, 790- 791 *409
[193 Cal.Rptr. 40].) Section 1912 therefore provides: "In any involuntary
proceeding in a State court, where the court knows or
has reason to know that an Indian child is involved,
the party seeking the foster care placement of, or termination
of parental rights to, an Indian child shall notify the
parent or Indian custodian and the Indian child's tribe, by
registered mail with return receipt requested, of the pending proceedings
and of their right of intervention. ... No foster care
placement or termination of parental rights proceeding shall be held
until at least ten days after receipt of notice by
the parent or Indian custodian and the tribe ...: Provided,
That the parent or Indian custodian or the tribe shall,
upon request, be granted up to twenty additional days to
prepare for such proceeding." (25 U.S.C. § 1912(a).)
Violation of the notice provisions may be cause for invalidation
of the proceedings. (25 U.S.C. § 1914.)
In the case at bar, it is uncontroverted that Lindsay
C. is an Indian child within the meaning of the
Act. It is also undisputed that the tribe of which
Michael is a member is a tribe recognized under the
Act and that Lindsay is eligible for membership therein. As
noted, a "child custody proceeding" for purposes
of the Act includes an action resulting in the termination
of the parent-child relationship. Accordingly, by its own express terms,
the Act is applicable to the facts before us.
Nevertheless, the trial court held the Act inapplicable. In so
holding, the court said it was persuaded by the Kansas
State Supreme Court's rationale in Matter
of Adoption of Baby Boy L.
(1982) 231 Kan. 199 [643 P.2d 168].
As in the case at bar, Baby
arose out of adoption proceedings involving an illegitimate Indian child.
The infant's biological father was five-eighths blood Indian and an
enrolled member of the Kiowa Tribe. His biological mother was
a non-Indian, who on the date of the birth, executed
a voluntary consent to the baby's adoption expressly limited to
one couple. The couple immediately filed a petition for adoption
in the state court and was given temporary custody of
the child. The child's biological father, who was incarcerated in
a state penal institution at the time of the infant's
birth, never saw the child before the couple took custody.
He was notified of the adoption proceedings, however, and was
represented by counsel therein. During the course of the proceedings
the court became aware of the possibility that the Act
might apply. It recessed the hearings so that the Kiowa
Tribe could be notified. The tribe filed a motion to
intervene. It also enrolled the child as a member of
the tribe over the objection of the biological mother. After
briefs filed by the tribe and the petitioners, the court
held that the Act did not apply and denied the
tribe's motion to intervene on that basis. The court then
found the child's biological father to *410
be an unfit parent and severed his parental rights. It
granted the petition for adoption.
Thereafter, the tribe appealed the denial of its motion to
intervene to the Kansas Supreme Court. That court upheld the
lower court's decision finding that the Act, by its terms,
was inapplicable to the case. The court said, "A careful
study of the legislative history behind the Act and the
Act itself discloses that the overriding concern of Congress and
the proponents of the Act was the maintenance of the
family and tribal relationships existing in Indian homes and to
set minimum standards for the removal of Indian children from
their existing Indian environment. It was not to dictate that
an illegitimate infant who has never been a member of
an Indian home or culture, and probably never would be,
should be removed from its primary cultural heritage and placed
in an Indian environment over the express objections of its
non-Indian mother. Section 1902 of the Act makes it clear
that it is the declared policy of Congress that the
Act is to adopt minimum federal standards 'for the removal
of Indian children from their [Indian] families.' Numerous provisions of
the Act support our conclusion that it was never the
intent of Congress that the Act would apply to a
factual situation such as is before the court." (Matter
of Baby Boy L., supra,
643 P.2d at p. 175.)
The Kansas Supreme Court next identified a number of provisions
within the Act which it said "reflect the underlying thread
that runs throughout the entire [statute] 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 Baby Boy L., supra,
643 P.2d at p. 175.) It then concluded, "In this
case Baby Boy L. is only 5/16ths Kiowa Indian, has
never been removed from an Indian family and so long
as the mother is alive to object, would probably never
become a part of the [father's] or any other Indian
family. While it is true that this Act could have
been more clearly and precisely drawn, we are of the
opinion that to apply the Act to a factual situation
such as the one before us would be to violate
the policy and intent of Congress rather than uphold them."
Decided in 1982, Baby
was one of the first cases nationally to interpret the
Act and to determine the scope of its provisions. It
became the lead case in a growing number of decisions
seeking to carve out a judicial exception to their reach.
Generally speaking, these cases hold the Act inapplicable in adoption
proceedings involving an illegitimate Indian child who has never been
a member of an Indian home or Indian culture, and
who is being given up by his or her non-Indian
mother. (See, e.g., Matter
of Adoption of T.R.M.
(Ind. 1988) 525 N.E.2d 298: In
Interest of S.A.M.
(Mo.Ct.App. 1986) 703 S.W.2d 603; Matter
of Adoption of Baby Boy D
(Okla. 1985) 742 P.2d 1059; and Matter
of Appeal in Maricopa County
(1983) 136 Ariz. 528 [667 P.2d 228].)
However, not all courts have adopted this view. Its soundness
has, in fact, been called into question more than once.
of Adoption of a Child of Indian Heritage
(1988) 111 N.J. 155 [543 A.2d 925]; and In
re Custody of S.B.R.
(1986) 43 Wn.App. 622 [719 P.2d 154].) One event serving
to accelerate this scrutiny is the United States Supreme Court
Choctaw Indian Band v. Holyfield
(1989) 490 U.S. 30 [104 L.Ed.2d 29, 109 S.Ct. 1597].
represents the high court's first opportunity to examine the Act
and its legislative history.
concerned the status of twin illegitimate babies, whose parents were
enrolled members of the Choctaw Tribe and residents and domiciliaries
of the Choctaw Reservation in Mississippi. The twins were born
off the reservation in a town some 200 miles away.
Following the twins' births, both parents executed consent-to-adoption forms on
behalf of a non- Indian couple, the Holyfields. An adoption
decree was entered by a county court. Subsequently, the Choctaw
Tribe filed a motion with the court to vacate the
adoption decree on the grounds that exclusive jurisdiction over the
matter was vested in that tribe's
tribal court under the Act. The county court denied the
motion. The Mississippi Supreme Court affirmed, holding that the twins
were not "domiciled" on the reservation under state law. In
reaching its decision, the state court placed particular emphasis on
the fact that the twins had never been physically present
on the reservation and that they had been "voluntarily surrendered"
by their parents who went to some efforts to see
that they were born off the reservation and promptly arranged
for their adoption.
The United States Supreme Court reversed. The high court held
that although the Act does not define "domicile," Congress clearly
intended a uniform federal law of domicile to apply and
did not intend for the definition of the word to
be a matter of state law. It said the Act's
purpose was, in part, to make clear that in certain
situations the state courts did not have jurisdiction over child
custody proceedings. "Indeed, the congressional findings that are a part
of the statute demonstrate that Congress perceived the States and
their courts as partly responsible for the problem it intended
to correct." (Mississippi
Choctaw Indian Band v. Holyfield, supra,
490 U.S. at p. 45 [104 L.Ed.2d at p. 44].)
Pointing to well-established common law principles of domicile, the Holyfield
court found that the twins assumed the domicile of their
And since the mother was indisputably domiciled on the reservation,
they. (490 U.S at pp. 48-49 [104 L.Ed.2d at pp.
46-47].) The court added, "Nor can the result be any
different simply because the twins were ' voluntarily surrendered' by
their mother. Tribal jurisdiction under [the Act] was not meant
to be defeated by the actions of individual members of
the tribe, for Congress was concerned not solely about the
interests of Indian children and families, but also about the
impact on the tribes themselves of the large numbers of
Indian children adopted by non-Indians." (Id.,
at p. 49 [104 L.Ed.2d at p. 47].)
Citing the "substantive" provisions of the Act which accord the
tribes "numerous prerogatives," the Holyfield
court said that these provisions must "be seen as a
means of protecting not only the interests of individual Indian
children and families, but also of the tribes themselves." (490
U.S., at p. 49 [104 L.Ed.2d at p. 47].) It
said, "In addition, it is clear that Congress' concern over
the placement of Indian children in non-Indian homes was based
in part on evidence of the detrimental impact on the
children themselves of such placements outside their culture. Congress determined
to subject such placements to [the Act's] jurisdictional and other
provisions, even in cases where the parents consented to an
adoption, because of concerns going beyond the wishes of individual
parents. ... [¶]
These congressional objectives make clear that a rule of domicile
that would permit individual Indian parents to defeat
[the Act's] jurisdictional scheme is inconsistent with what Congress intended."
at pp. 49-51 [104 L.Ed.2d at pp. 47-48] fns. omitted.)
In conclusion, the Holyfield
court, quoting from the Utah Supreme Court's decision in In
re Adoption of Halloway
(1986) 732 P.2d 962, said, " '... [State] abandonment law
cannot be used to frustrate the federal legislative judgment expressed
in [the Act] that the interests of the tribe in
custodial decisions made with respect to Indian children are as
entitled to respect as the interests of the parents.' [Citation.]"
(490 U.S., at p. 53 [104 L.Ed.2d at p. 49].)
As noted, Holyfield
has raised new questions regarding the continuing viability of Baby
and its progeny. As stated by one legal scholar, "After
the decision in Holyfield,
it appears that the Kansas court in Baby
may have given inappropriate weight to the wishes of the
family. The United States Supreme Court seems unlikely to protect
right of the non-Indian mother to entirely exclude the applicability
of the Act which explicitly
protects the right of a tribe to intervene in any
child custody proceeding involving an Indian child." (Tellinghuisen, The
Indian Child *413
Welfare Act of 1978: A Practical Guide with
(1989) 34 S.D.L.Rev. 660, 671.)
In the wake of Holyfield,
the South Dakota Supreme Court which previously followed
the reasoning of Baby
appears to have diverged from that line of thinking. In
(S.D. 1987) 405 N.W.2d 650, 653, that court had held
the Act inapplicable in the case of an illegitimate child
who had never been a member of an Indian home
or culture and who was the subject of a child
custody proceeding. However, more recently, in Matter
of Adoption of Baade
(S.D. 1990) 462 N.W.2d 485, 490, the same court held
that the applicability of the Act is contingent only upon
whether an "Indian child" is the subject of a "child
custody proceeding" as those terms are defined by the Act.
And in California, the Court of Appeal, Third Appellate District,
re Crystal K.
(1990) 226 Cal.App.3d 655 [276 Cal.Rptr. 619] (review den. Mar.
14, 1991) differentiated the facts of that case from Baby
as well. Crystal
concerns a child who was born in Anchorage, Alaska, in
1981. The child's biological mother was non-Indian, her biological father
Indian. In 1982, the mother and father separated. Thereafter, the
mother took the child to California where she obtained a
dissolution of marriage in 1983. In 1985, the mother remarried.
Two years later, the mother petitioned the court to have
the child declared free from the biological father's parental custody
and control. The mother alleged that the father had not
provided any support for the minor since April of 1983,
and had had virtually no contact with her.
The Native Village of Chanoga Tribe, of which the minor
was a member, moved to intervene in the case and
the motion was granted. The tribe moved for judgment on
the pleadings on the grounds that the mother's petition failed
to state facts sufficient to constitute a cause of action
in that the petition did not show compliance with minimum
federal standards for termination of parental rights as required by
the Act. The court granted the motion with leave to
In her amended petition, the mother alleged that the biological
father drank to excess, was abusive to her, and that
the two had separated only after all remedial and rehabilitative
efforts failed. She further alleged that the child did not
know her biological father, had not lived with him since
she was one year old, and considered her stepfather to
be her actual father. The mother claimed that continuation of
the biological father's custodial rights would likely result in serious
emotional or physical injury to the minor. *414
At trial, the parties stipulated that the termination of the
parent and child relationship would result in the minor's loss
of membership in the tribe and all benefits of such
membership including higher education benefits. [FN1]
For purposes of the record, we note that it is
unclear in the case at bench whether termination of appellant's
parental rights would have such ramifications.
Following a hearing at which all of the respective parties
testified, the trial court granted the petition finding that the
father had abandoned the minor and that it would be
detrimental for the child within the meaning of California law
to not grant the petition. The court held the Act
The Court of Appeal reversed. First, the appellate court rejected
the basis of the trial court's action which was to
analogize the case to a divorce proceeding which, under the
terms of the Act, is specifically exempted from the statute's
coverage. The appellate court said, "This view was grounded in
the belief that the Act applies only to custody proceedings
involving the removal of Indian children from their homes by
nonfamily entities. In short, the view is that the Act
does not apply to intrafamily custody disputes." (In
re Crystal K., supra,
226 Cal.App.3d at p. 664.) In rejecting such an analogy,
the court said, "This view is simply incorrect and ignores
the plain language of the [statute]. A 'child custody proceeding'
for purposes of the Act includes ' any action resulting
in the termination of the parent- child relationship.' [Citation.] The
excluding language, i.e., 'a placement
based ... upon an award, in a divorce proceeding, of
custody to one of the parents' (italics added), on its
face means a custody dispute involving a placement in a
divorce proceeding. Congress
delineated the only exclusions and judicially created exclusions cannot be
added. [Citations.]" (In
re Crystal K., supra,
226 Cal.App.3d at pp. 663-664.)
The court went on to state, "We think the purpose
of the [Act] set forth in sections 1901 and 1902-to
govern the removal of Indian children from their families through
the application of standards that recognize the distinct Indian culture-is
broad enough to encompass the parental termination proceeding before us.
. . . . . . . . . .
"Limiting the Act's applicability solely to situations where nonfamily entities
physically remove Indian children from actual Indian dwellings deprecates the
very links-parental, tribal and cultural-the Act is designed to preserve."
re Crystal K., supra,
226 Cal.App.3d at pp. 665- 666.) *415
is the only California case we have found regarding the
applicability of the Act following Holyfield.
Prior to Holyfield,
this court itself had an occasion to address the subject.
re Junious M., supra,
144 Cal.App.3d 786, we found the Act applicable to a
Civil Code section 232 proceeding filed by the county to
terminate the parental rights of a
mother regarding a child who, it was contended, was Indian.
The trial court had found the Act inapplicable in part
because the child had developed no Indian identification. Commenting on
the reasoning of the trial court we said, "The language
of the Act contains no such exception to its applicability,
and we do not deem it appropriate to create one
judicially. [Citation.]" (144 Cal.App.3d, at p. 796.)
Turning now to the case before us, we consider the
applicability of the Act to the instant set of facts.
In holding the Act inapplicable in reliance on Baby
the trial court stated: "The Court finds that the Indian
Child Welfare Act has no application to the factual situation
here. This stepparent adoption petition concerns the illegitimate child of
a non- Indian mother. The child has always resided with
the non-Indian mother, and has resided for the past three
years in the home of the non-Indian mother and her
present husband. The child has never been in the care
or custody of the natural father, nor had any connection
with the Indian culture. The issue of the preservation of
the Indian family is not involved, as the child has
never been a part of any Indian family relationship."
Our review of the pertinent authorities convinces us that the
trial court erred in its ruling. First, by its own
express terms the Act is applicable to the
case. It is uncontroverted that Lindsay is an Indian child
within the meaning of the Act; that the Little Lake
Tribe in Covelo of which Michael is a member is
a tribe recognized under the Act; and that Lindsay is
currently eligible for membership therein. (25 U.S.C. § 1903(4),
(5) and (8).) Finally, a "child custody proceeding" for purposes
of the Act includes an action resulting in the termination
of the parent-child relationship. (25 U.S.C. § 1903(1).)
This case does not fall within one of the two
specific exclusions under the Act (i.e., divorce or delinquency proceedings
(25 U.S.C. § 1903(1)).
Nor does there appear to be any other basis for
Furthermore, applying the Act to the instant case, we find,
advances the stated purposes of the legislation-i.e., "to 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 ...." (25 U.S.C. § 1902.)
Additionally, it is in keeping with the tenor of Holyfield
which stresses consideration of not only the wishes of the
parents, but the well-being and interests of the child and
Under the Act, notice of the instant proceedings must be
given to the Little Lake Tribe in Covelo. Once notified,
the tribe will have the opportunity to determine
whether it wishes to intervene. Nothing which has been said
in this opinion is meant to suggest that the tribe
should intervene or, if it does, that it will necessarily
prevail on the positions it takes.
The judgment terminating Michael's parental rights is reversed. Upon remand,
the trial court is directed to give the Little Lake
Tribe in Covelo notice of the adoption proceedings and of
its right to intervene.
Michael shall be awarded his costs on appeal.
White, P. J., and Strankman, J., concurred.
Respondent's petition for review by the Supreme Court was denied
July 11, 1991. Mosk, J., and Kennard, J., were of
the opinion that the petition should be granted. *417