In Re Junious M., 144 Cal. App. 3d 786 (Cal. Ct. App. 1983). · Go Syfert
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In Re Junious M., 144 Cal. App. 3d 786 (Cal. Ct. App. 1983). Cases Citing This Book View Copy Cite
366 citation events (191 in the last 25 years) across 19 distinct courts.
Strongest positive: Los Angeles County Department of Children & Family Services v. Ashlee R. (cal, 2016-07-07) · Strongest negative: Yolo County Department of Social Services v. Tyrone J. (calctapp, 2001-07-12)
Treatment trajectory · 1983 → 2026 · click a year to view as-of
1983 2004 2026
Top citers, strongest first. 50 distinct citers. How cited ↗
discussed Cited "but see" Yolo County Department of Social Services v. Tyrone J. (2×)
Cal. Ct. App. · 2001 · signal: but see · confidence high
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 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. ( 233 Cal.App.3d at p. 1424 .) As the court pointed …
discussed Cited "but see" In Re Marinna J. (2×)
Cal. Ct. App. · 2001 · signal: but see · confidence high
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 , 285 Cal.Rptr. 507 ; 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 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. ( 233 Cal.App.3d at p. 1424 , 285 Cal.…
discussed Cited "but see" Butte County Children's Services Division v. Robin W. (2×)
Cal. Ct. App. · 2000 · signal: but see · confidence high
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 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.
discussed Cited "but see" In Re Levi U. (2×)
Cal. Ct. App. · 2000 · signal: but see · confidence high
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 , 285 Cal.Rptr. 507 ; 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 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.3…
discussed Cited as authority (rule) Los Angeles County Department of Children & Family Services v. Ashlee R.
Cal. · 2016 · confidence medium
(See In re Pedro N., supra, 35 Cal.App.4th at p. 190 .) As other authorities have observed, however, ‘“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.” (In re Junious M. (1983) 144 Cal.App.3d 786, 790-791 [ 193 Cal.Rptr. 40 ]; see Samuel P., supra, 99 Cal.App.4th at p. 1267 [‘“If a tribe which may have an interest in a proceeding does not have notice of that proceeding, the tribe will be unable to assert its rights under the ICWA.”]; Marinna supra, 90 Cal.App.4th at p. 739 [�…
discussed Cited as authority (rule) Ventura County Human Services Agency v. B.G.
Cal. Ct. App. · 2015 · confidence medium
Code, § 224, subd. (a).) ICWA defines “Indian child” as a child who is either a member of an Indian tribe or eligible for membership in an Indian tribe and the biological child of a member of an Indian tribe. ( 25 U.S.C. § 1903 (4); In re Junious M. (1983) 144 Cal.App.3d 786, 796 [ 193 Cal.Rptr. 40 ]; see Welf. & Inst.
discussed Cited as authority (rule) Guardianship of D.W.
Cal. Ct. App. · 2013 · confidence medium
(In re Junious M. (1983) 144 Cal.App.3d 786, 792, 794 [ 193 Cal.Rptr. 40 ].) “ ‘A tribe’s determination that the child is or is not a member of or eligible for membership in the tribe is conclusive.’ [Citation.]” (Dwayne P. v. Superior Court (2002) 103 Cal.App.4th 247, 255 [ 126 Cal.Rptr.2d 639 ] (Dwayne P.).) 5 On July 8, 2013, respondent filed a motion to dismiss this appeal advancing the identical argument.
discussed Cited as authority (rule) San Diego County Health & Human Services Agency v. J.C.
Cal. Ct. App. · 2011 · confidence medium
(In re Brandon T. (2008) 164 Cal.App.4th 1400, 1412 [ 80 Cal.Rptr.3d 287 ]; In re Junious M. (1983) 144 Cal.App.3d 786, 792, fn. 7 [ 193 Cal.Rptr. 40 ].) Article n, section 1, subdivision (c) of the Revised Constitution and Bylaws of the Minnesota Chippewa Tribe, Minnesota, provides the membership of the Minnesota Chippewa Tribe includes “[a]ll children of at least one quarter degree (1/4 degree) Minnesota Chippewa Indian blood bom after July 3, 1961, to a member, provided that an application for enrollment was or is filed with the [tribal authority] within one year after the date of birth o…
cited Cited as authority (rule) In Re Skyler H.
Cal. Ct. App. · 2010 · confidence medium
(Guidelines, supra, § B.1, at pp. 67584, 67586; In re Junious M. (1983) 144 Cal.App.3d 786, 788 [ 193 Cal.Rptr. 40 ].) This language has been followed by other appellate courts.
discussed Cited as authority (rule) In Re IW (2×)
Cal. Ct. App. · 2009 · confidence medium
Without notice, these important rights granted by [the ICWA] would become meaningless." ( In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421 [ 285 Cal.Rptr. 507 ].) But not every faulty notice is prejudicial. ( In re Junious M. (1983) 144 Cal.App.3d 786, 794, fn. 8 [ 193 Cal.Rptr. 40 ].) In response to the notice requirements, the state Judicial Council has generated the notice forms used by the social worker here: ICWA-030, entitled "Notice of Child Custody Proceeding for Indian Child." (13) The juvenile court must determine whether proper notice was given under the ICWA and whether the ICWA ap…
discussed Cited as authority (rule) Santa Clara County Department of Family & Children's Services v. D.W. (2×)
Cal. Ct. App. · 2009 · confidence medium
(In re Junious M. (1983) 144 Cal.App.3d 786, 794, fn. 8 [ 193 Cal.Rptr. 40 ].) In response to the notice requirements, the state Judicial Council has generated the notice forms used by the social worker here: ICWA-030, entitled “Notice of Child Custody Proceeding for Indian Child.” The juvenile court must determine whether proper notice was given under the ICWA and whether the ICWA applies to the proceedings.
discussed Cited as authority (rule) San Diego County Health & Human Services Agency v. D.C.
Cal. Ct. App. · 2009 · confidence medium
(In re Junious M. (1983) 144 Cal.App.3d 786, 790-791 [ 193 Cal.Rptr. 40 ].) ICWA provides “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.” ( 25 U.S.C. § 1912 (a).) Effective January 1, 2007, the California Legislature codified ICWA notice requirements in a comprehensive r…
discussed Cited as authority (rule) In Re Damian C.
Cal. Ct. App. · 2009 · confidence medium
She argues this court must vacate the orders and remand the case to comply with ICWA inquiry and notice requirements. (1) Congress enacted ICWA in 1978 "to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families ...." ( 25 U.S.C. § 1902 .) "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 Desiree F. (2000) 83 Cal.App.4th 460, 469 [ 99 Cal.Rptr.2d 688 ].) Section 1911 of ICWA …
examined Cited as authority (rule) In Re RR, Jr. (12×) also: Cited "see", Cited "see, e.g."
Tex. App. · 2009 · confidence medium
See, e.g., 25 U.S.C.A. § 1914 (authorizing "any Indian child who is the subject of any action for . . . termination of parental rights under State law, any parent. . . from whose custody such child was removed, and the Indian child's tribe [to] petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title"); Junious M., 144 Cal.App.3d at 791 , 193 Cal.Rptr. at 42 (explaining that violation of the ICWA's notice provisions may be cause for invalidation of the proceedings).
examined Cited as authority (rule) in the Interest of R.R., Jr. and V.R., Children (11×) also: Cited "see", Cited "see, e.g."
Tex. App. · 2009 · confidence medium
See, e.g. , 25 U.S.C.A. § 1914 (authorizing “any Indian child who is the subject of any action for . . . termination of parental rights under State law, any parent . . . from whose custody such child was removed, and the Indian child’s tribe [to] petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title”); Junious M ., 144 Cal. App. 3d at 791 , 193 Cal. Rptr. at 42 (explaining that violation of the ICWA’s notice provisions may be cause for invalidation of the proceedings)…
examined Cited as authority (rule) In the Matter of Adoption of Cd (3×)
N.D. · 2008 · confidence medium
E.g., In re Junious M., 193 Cal.Rptr. 40, 44 (Cal. Ct. App. 1983); In re S.N.R., 617 N.W.2d 77, 84 (Minn. Ct. App. 2000); In re Phillip A.C., 149 P.3d 51, 56 (Nev. 2006); In re A.L.W., 32 P.3d 297, 301 (Wash. Ct. App. 2001); 41 Am.Jur.2d Indians; Native Americans § 119 (2005); 42 C.J.S.
discussed Cited as authority (rule) State v. Schmeets (2×)
N.D. · 2008 · confidence medium
E.g. , In re Junious M. , 193 Cal.Rptr. 40, 44 (Cal. Ct. App. 1983); In re S.N.R. , 617 N.W.2d 77, 84 (Minn. Ct. App. 2000); In re Phillip A.C. , 149 P.3d 51, 56 (Nev. 2006); In re A.L.W. , 32 P.3d 297, 301 (Wash. Ct. App. 2001); 41 Am.Jur.2d Indians; Native Americans § 119 (2005); 42 C.J.S.
discussed Cited as authority (rule) In Re Brandon T.
Cal. Ct. App. · 2008 · confidence medium
(Guidelines for State Courts; Indian Child Custody Proceedings 44 Fed.Reg. 67584 (Nov. 26, 1979) (Guidelines).) The Guidelines contain a provision stating that termination of parental rights requires "testimony of one or more qualified expert *1412 witnesses." ( Id. at p. 67592 , D.3(b), italics added.) Although the Guidelines represent the BIA's interpretation of the ICWA and are not binding ( id. at p. 67584 ), "the construction of a statute by the executive department charged with its administration is entitled to great weight." ( In re Junious M. (1983) 144 Cal.App.3d 786, 792, fn. 7 [ 193…
discussed Cited as authority (rule) Sacramento County Department of Health & Human Services v. Carmella M.
Cal. Ct. App. · 2008 · confidence medium
(Guidelines for State Courts; Indian Child Custody Proceedings 44 Fed.Reg. 67584 (Nov. 26, 1979) (Guidelines).) The Guidelines contain a provision stating that termination of parental rights requires “testimony of one or more qualified expert witnesses.” (Id. at p. 67592, D.3(b), italics added.) Although the Guidelines represent the BIA’s interpretation of the ICWA and are not binding (id. at p. 67584), “the construction of a statute by the executive department charged with its administration is entitled to great weight.” (In re Junious M. (1983) 144 Cal.App.3d 786, 792, fn. 7 [ 193 …
discussed Cited as authority (rule) In Re Cheyanne F.
Cal. Ct. App. · 2008 · confidence medium
Rather, where notice has been received by the tribe, as it undisputedly was in this case, errors or omissions in the notice are reviewed under the harmless error standard. ( Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784 [ 53 Cal.Rptr.3d 251 ]; In re Junious M. (1983) 144 Cal.App.3d 786, 794 [ 193 Cal.Rptr. 40 ].) We conclude that the omission in this case was harmless.
discussed Cited as authority (rule) Riverside County Department of Public Social Services v. Patricia K.
Cal. Ct. App. · 2008 · confidence medium
(Nicole K. v. Superior Court (2007) 146 Cal.App.4th 779, 784 [ 53 Cal.Rptr.3d 251 ]; In re Junious M. (1983) 144 Cal.App.3d 786, 794 [ 193 Cal.Rptr. 40 ].) We conclude that the omission in this case was harmless.
discussed Cited as authority (rule) Kern County Department of Human Services v. Michael P.
Cal. Ct. App. · 2006 · confidence medium
(See, e.g., In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1421 [ 285 Cal.Rptr. 507 ]; In re Junious M. (1983) 144 Cal.App.3d 786, 792 [ 193 Cal.Rptr. 40 ].) Respondent counters that given the prior notice to the BIA, along with appellant’s inconsistent statements about possible tribal membership, the trial court properly could conclude the original notice to the BIA sufficed and the ICWA required no further notice.
discussed Cited as authority (rule) In the Interest of R.E.K.F.
Iowa · 2005 · confidence medium
See, e.g., In re Kahlen W., 233 Cal.App.3d 1414 , 285 Cal.Rptr. 507, 514 (1991); In re Junious M., 144 Cal.App.3d 786 , 193 Cal.Rptr. 40, 47 (1983); In re D.S., 577 N.E.2d 572, 575 (Ind.1991); In re I.E.M., 233 Mich.App. 438 , 592 N.W.2d 751, 757-58 (1999); J.L.M., 451 N.W.2d at 386-87; In re C.H., 510 N.W.2d 119 , 124 (S.D.1993); M.C.P., 571 A.2d at 635 ; In re M.S.S., 86 Wash. App. 127 , 936 P.2d 36, 41-42 (1997); see also In re Arianna R.G., 259 Wis.2d 563 , 657 N.W.2d 363, 374 (2003) (Abrahamson, C.J., dissenting); accord In re Elizabeth W., 120 Cal.App.4th 900 , 16 Cal.Rptr.3d 514, 520 (2…
discussed Cited as authority (rule) In Re REKF
Iowa · 2005 · confidence medium
See, e.g., In re Kahlen W., 233 Cal.App.3d 1414 , 285 Cal.Rptr. 507, 514 (1991); In re Junious M., 144 Cal.App.3d 786 , 193 Cal.Rptr. 40, 47 (1983); In re D.S., 577 N.E.2d 572, 575 (Ind.1991); In re I.E.M., 233 Mich. App. 438 , 592 N.W.2d 751, 757-58 (1999); J.L.M., 451 N.W.2d at 386-87 ; In re C.H., 510 N.W.2d 119 , 124 (S.D.1993); M.C.P., 571 A.2d at 635 ; In re M.S.S., 86 Wash. App. 127 , 936 P.2d 36, 41-42 (1997); see *151 also In re Arianna R.G., 259 Wis.2d 563 , 657 N.W.2d 363, 374 (2003) (Abrahamson, C.J., dissenting); accord In re Elizabeth W., 120 Cal.App.4th 900 , 16 Cal.Rptr.3d 514,…
discussed Cited as authority (rule) Fresno County Department of Children & Family Services v. Gerardo A.
Cal. Ct. App. · 2004 · confidence medium
(In re Kahlen W., supra, 233 Cal.App.3d at p. 1422 .) The requisite notice enables the tribe and/or BIA, in part, to investigate and determine whether the minor is an “Indian child.” (In re Junious M. (1983) 144 Cal.App.3d 786, 796 [ 193 Cal.Rptr. 40 ].) To ensure compliance with ICWA notice requirements, this court held in In re H.A., supra, 103 Cal.App.4th at p. 1214 that a department which seeks the foster care placement of or the termination of parental rights to a child who may be eligible for Indian child status must do the following or face the strong likelihood of reversal on appea…
discussed Cited as authority (rule) San Diego County Health & Human Services Agency v. Karl C.
Cal. Ct. App. · 2003 · confidence medium
(Guidelines, 44 Fed.Reg., at p. 67588 (Nov. 26, 1979).) The commentary for the Guidelines explains notices must be filed “so there will be a complete record of efforts to comply with the [ICWA].” (Id. at p. 67589.) “The Guidelines are not binding on state courts. [Citation.] However, ‘cases that have resolved notice questions have followed the Guidelines in giving a broad reading to the obligation to give notice and redressing notice violations. . . .’ [Citations.]” (Dwayne P., supra, 103 Cal.App.4th at p. 255 .) The “construction of a statute by the executive department charged …
discussed Cited as authority (rule) In Re Karla C.
Cal. Ct. App. · 2003 · confidence medium
(Guidelines, 44 Fed.Reg., at p. 67588 (Nov. 26, 1979).) The commentary for the Guidelines explains notices must be filed "so there will be a complete *210 record of efforts to comply with the [ICWA]." ( Id., at p. 67589.) "The Guidelines are not binding on state courts. [Citation.] However, `cases that have resolved notice questions have followed the Guidelines in giving a broad reading to the obligation to give notice and redressing notice violations....' [Citations.]" ( Dwayne P., supra, 103 Cal.App.4th at p. 255 , 126 Cal.Rptr.2d 639 .) The "construction of a statute by the executive depart…
discussed Cited as authority (rule) Los Angeles County Department of Children & Family Services v. Eric D.
Cal. Ct. App. · 2003 · confidence medium
In re Dwayne P. (2002) 103 Cal.App.4th 247, 255 [ 126 Cal.Rptr.2d 639 ], quoting In re Junious M. (1983) 144 Cal.App.3d 786, 792 [ 193 Cal.Rptr. 40 ], 25 Code of Federal Regulations part 23.11(a) and (d) (2003) (italics added).
discussed Cited as authority (rule) In Re Antoinette S.
Cal. Ct. App. · 2002 · confidence medium
Deficient notice under the ICWA is usually prejudicial (see, e.g., In re Kahlen, supra, 233 Cal. App.3d at p. 1424 , 285 Cal.Rptr. 507 ) but not invariably so. ( In re Junious M. (1983) 144 Cal.App.3d 786, 794 , 193 Cal. Rptr. 40, fn. 8 ["Lack of notice is not necessarily prejudicial to the tribe, even where it is required," citing Matter of S.Z.
discussed Cited as authority (rule) Romelia W. v. Edward L.
Cal. Ct. App. · 2002 · confidence medium
(In re Alicia S. (1998) 65 Cal.App.4th 79, 83-92 [ 76 Cal.Rptr.2d 121 ] [Fifth Dist.]; In re Junious M. (1983) 144 Cal.App.3d 786, 796 [ 193 Cal.Rptr. 40 ] [First Dist., Div. Three]; see also Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 409-416 [ 280 Cal.Rptr. 194 ] [First Dist., Div. Three].) Recent California decisions, however, have reformulated the existing Indian family doctrine as a federal constitutional limitation on the ICWA.
discussed Cited as authority (rule) Dwayne P. v. Superior Court
Cal. Ct. App. · 2002 · confidence medium
We have also granted the application of California Indian Legal Services and Pauma-Yuima Band of Mission Indians, a federally recognized Indian tribe, to file an amicus curiae brief in support of Dwayne’s petition. *253 Discussion I Applicability of the ICWA Notice Requirement A In 1978 Congress enacted the ICWA to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families.” ( 25 U.S.C. § 1902 .) The ICWA recognizes that “ ‘the tribe has an interest in the child which is distinct from but on a parity with the interest of th…
discussed Cited as authority (rule) Stanislaus County Community Services Agency v. Cynthia E.
Cal. Ct. App. · 2002 · confidence medium
(In re Marinna J. (2001) 90 Cal.App.4th 731, 739-740 [ 109 Cal.Rptr.2d 267 ]; In re Desiree F. (2000) 83 Cal.App.4th 460, 475-476 [ 99 Cal.Rptr.2d 688 ]; In re Junious M. (1983) 144 Cal.App.3d 786, 796 [ 193 Cal.Rptr. 40 ].) To put a point on these cases, none of them held it was prejudical error for an agency to serve notice on the Bureau and some, but not all, of the tribes in which a child may at least be eligible for membership.
discussed Cited as authority (rule) In Re Dependency of ALW
Wash. Ct. App. · 2001 · confidence medium
See also Cass County, Minn. v. Leech Lake Band of Chippewa Indians, 524 U.S. 103, 106 , 118 S.Ct. 1904 , 141 L.Ed.2d 90 (1998) (Although this case concerned taxation of former tribal land repurchased by the tribe and not the applicability of the ICWA, the court stated in the opinion: "The Leech Lake Band of Chippewa Indians is a federally recognized Indian tribe."). [8] In re S.N.R., 617 N.W.2d at 81 (citations omitted); see also In re E.S., 92 Wash.App. at 770 , 964 P.2d 404 ; In re Dependency of Colnar, 52 Wash.App. 37, 39-40 , 757 P.2d 534 (1988); In re Dependency of Smith, 46 Wash.App. 647…
discussed Cited as authority (rule) Desiree F. v. Daniel F.
Cal. Ct. App. · 2000 · confidence medium
(In re Kahlen W., supra, 233 Cal.App.3d at p. 1422 .) Because the question of membership rests with each Indian tribe, when the juvenile court knows or has reason to believe the child may be an Indian child, notice must be given to the particular tribe in question or the Secretary. ( 25 U.S.C. § 1912 (a); In re Kahlen W., supra, at pp. 1421-1422; In re Junious M. (1983) 144 Cal.App.3d 786, 793 [ 193 Cal.Rptr. 40 ].) The dependency petition filed on behalf of Desiree noted that the ICWA possibly applied.
discussed Cited as authority (rule) In Re Guardianship of JO
N.J. Super. Ct. App. Div. · 2000 · confidence medium
See, e.g., In re Pedro N., 35 Cal.App. 4th 183 , 41 Cal.Rptr. 2d 819, 821 (1995) ("The Indian status of the child need not be certain."); In re Kahlen W., 233 Cal. *347 App. 3d 1414, 285 Cal.Rptr. 507, 511 (1991) (The child's status as an Indian need not be conclusive.); In re Junious M., 144 Cal.App. 3d 786 , 193 Cal.Rptr. at 43 (whether minor is in fact an Indian child is an issue for the tribe or, alternatively, the Bureau); In re I.E.M., 233 Mich.App. 438 , 592 N.W. 2d 751, 756 (1999) (father's statement to psychologist included in report given to court provided sufficient notice); In re M…
discussed Cited as authority (rule) D.J.C. v. P.D.C.
Utah Ct. App. · 1997 · confidence medium
See A.B.M. v. M.H., 651 P.2d 1170, 1173 (Alaska 1982); In re Junious M., 144 Cal.App.3d 786 , 193 Cal.Rptr. 40, 46 (1983); In re Baby Boy Doe, 123 Idaho 464 , 849 P.2d 925, 931 (1993); In re Elliott, 218 Mich.App. 196 , 554 N.W.2d 32, 35-36 (1996); In re Adoption of Quinn, 117 Or.App. 579 , 845 P.2d 206 , 209 & n. 2 (1993). .
discussed Cited as authority (rule) State, in Interest of Dac
Utah Ct. App. · 1997 · confidence medium
See A.B.M. v. M.H., 651 P.2d 1170, 1173 (Alaska 1982); In re Junious M., 144 Cal.App.3d 786 , 193 Cal.Rptr. 40, 46 (1983); In re Baby Boy Doe, 123 Idaho 464 , 849 P.2d 925, 931 (1993); In re Elliott, 218 Mich.App. 196 , 554 N.W.2d 32, 35-36 (1996); In re Adoption of Quinn, 117 Or.App. 579 , 845 P.2d 206 , 209 & n. 2 (1993). [7] ICWA provides: "Congress hereby declares that it is the policy of this Nation 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 In…
discussed Cited as authority (rule) In Re JT (2×)
Vt. · 1997 · confidence medium
Id. at 42-43.
discussed Cited as authority (rule) In re J.T. (2×)
Vt. · 1997 · confidence medium
Id. at 42-43.
discussed Cited as authority (rule) In Re Larissa G.
Cal. Ct. App. · 1996 · confidence medium
"Since the Act gives the parents and the tribal court of the Indian child's tribe an absolute veto over transfers, there is no need for any adversary proceedings if the parents or the tribal court opposes transfer." (Guidelines for State Courts, Indian Child Custody Proceedings, 44 Fed.Reg. 67584, 67590-67591 (Nov. 26, 1979).) While these guidelines were not intended to have binding legislative effect, their construction of the ICWA is entitled to great weight. ( Id. at p. 67584 ; In re Junious M. (1983) 144 Cal. App.3d 786, 792, fn. 7 [ 193 Cal. Rptr. 40 ].) *511 Cases from other jurisdiction…
discussed Cited as authority (rule) San Diego County Department of Social Services v. Gina L.
Cal. Ct. App. · 1996 · confidence medium
(Id. at p. 67584; In re Junious M. (1983) 144 Cal.App.3d 786, 792, fn. 7 [ 193 Cal.Rptr. 40 ].) Cases from other jurisdictions interpret section 1911(b) to confer on the parent veto power over transfer of jurisdiction.
discussed Cited as authority (rule) Fresno County Department of Social Services v. Nadine S.
Cal. Ct. App. · 1995 · confidence medium
(In re Junious M. (1983) 144 Cal.App.3d 786, 792, 794 [ 193 Cal.Rptr. 40 ].) According to the ICWA, if a party seeks foster care placement or termination of parental rights regarding a child believed to be Indian, that party shall notify the parent or Indian custodian and the child’s tribe “by registered mail with return receipt requested, of the pending proceedings and of their right of intervention.” ( 25 U.S.C. § 1912 (a).) 2 If the identity or location of the tribe cannot be determined, the same notice shall be given to the BIA. ( 25 U.S.C. § 1912 (a); 25 C.F.R. § 23.11 (b)(12) (1…
discussed Cited as authority (rule) Santa Clara County Department of Family & Children's Services v. Brenda B.
Cal. Ct. App. · 1994 · confidence medium
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 or the Secretary: 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.” “In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child’s tribe shall have a right to intervene at any point in the proceedi…
discussed Cited as authority (rule) In Re Krystle D.
Cal. Ct. App. · 1994 · confidence medium
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 or the Secretary: 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." [6] "In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding…
cited Cited as authority (rule) People ex rel. South Dakota Department of Social Services
S.D. · 1993 · confidence medium
In re Junious M, 144 Cal. App.3d 786, 790 , 193 Cal.Rptr. 40, 42 (1983); Russel Barsh, The Indian Child Welfare Act of 1978: A Critical Analysis, 31 Hastings L.J. 1287 , 1313 (1980).
cited Cited as authority (rule) People Ex Rel. Dss in Interest of Ch
S.D. · 1993 · confidence medium
In re Junious M., 144 Cal. App.3d 786, 790 , 193 Cal.Rptr. 40, 42 (1983); Russel Barsh, The Indian Child Welfare Act of 1978: A Critical Analysis, 31 Hastings L.J. 1287 , 1313 (1980).
examined Cited as authority (rule) In Re Kahlen W. (3×)
Cal. Ct. App. · 1991 · confidence medium
The second, to promote the stability and security of Indian tribes and families. ( In re Crystal K. (1990) 226 Cal. App.3d 655, 661 [ 276 Cal. Rptr. 619 ]; In re Junious M. (1983) 144 Cal. App.3d 786, 789 [ 193 Cal. Rptr. 40 ]; see also Matter of Appeal in Pima County, etc. (1981) 130 Ariz. 202 [635P.2d 187, 188].) The Act sets forth minimum federal standards, both substantive and procedural, for protecting these identified policies. ( Matter of Appeal in Pima County, etc., supra, at p. 188.) Section 1912(a) of the Act requires notice to the parents, Indian custodian, and tribe by registered m…
examined Cited as authority (rule) Stanislaus County Department of Social Services v. Kathleen D. (3×)
Cal. Ct. App. · 1991 · confidence medium
(In re Crystal K. (1990) 226 Cal.App.3d 655, 661 [ 276 Cal.Rptr. 619 ]; In re Junious M. (1983) 144 Cal.App.3d 786, 789 [ 193 Cal.Rptr. 40 ]; see also Matter of Appeal in Pima County, etc. (1981) 130 Ariz. 202 [635P. 2d 187, 188].) The Act sets forth minimum federal standards, both substantive and procedural, for protecting these identified policies.
discussed Cited as authority (rule) In Re the Guardianship of Q.G.M. (2×)
Okla. · 1991 · confidence medium
For other cases in which Bertleson has met with opposition, see In re Adoption of T.N.F., 781 P.2d 973, 977 (Alaska 1989), cert. denied, — U.S. -, 110 S.Ct. 1480 , 108 L.Ed.2d 616 (1990) and In re Junious M., 144 Cal.App.3d 786 , 193 Cal. Rptr. 40, 46 (1983). .
discussed Cited as authority (rule) In the Matter of Adoption of Crews (2×)
Wash. Ct. App. · 1991 · confidence medium
App.2d 531 , 729 P.2d 1234, 1239-41 (1986), and In re Junious M., 144 Cal. App.3d 786 , 193 Cal. Rptr. 40, 47 (1983).
Retrieving the full opinion text from the archive…
In re JUNIOUS M., a Minor. DEPARTMENT OF SOCIAL SERVICES OF THE CITY AND COUNTY OF SAN FRANCISCO, Petitioner and Respondent,
v.
DIANA L., Objector and Appellant.
AO16428.
California Court of Appeal.
Jul 11, 1983.
144 Cal. App. 3d 786
Cited by 112 opinions  |  Published

[*787] COUNSEL

John F. Prentice, under appointment by the Court of Appeal, for Objector and Appellant.

[*788] George Agnost, City Attorneys, Thomas J. Owen, Craig M. McCabe and Robert H. Aaronson, Deputy City Attorneys, for Petitioner and Respondent.

[Certified for partial publication.[*]]

OPINION

BARRY-DEAL, J. —

I. SUMMARY

We hold that in a child custody proceeding, if it appears that the minor may be an Indian child, the court must notify the tribe in question and must seek its determination of the child's Indian status, which determination is conclusive for the purpose of deciding whether the Indian Child Welfare Act of 1978 applies.

II. STATEMENT OF THE CASE AND OF THE FACTS

The minor's natural mother (appellant) appeals from a judgment entered after the trial court issued its order declaring Junious M. (the minor) free from parental custody and control. The minor's father did not participate in the proceedings and has not appealed. Appellant contends that the trial court erred in determining that the Indian Child Welfare Act of 1978 (the Act) did not apply to these proceedings. We conclude that the trial court erred in failing to notify the Nooksack Indian Tribe of the pending proceedings and that under the circumstances the error requires a qualified reversal of the judgment.

A detailed statement of the history of this case is not necessary to resolution of this appeal. We therefore offer this synopsis.

The minor was born on December 15, 1974, in San Francisco and declared to be a dependent child of the juvenile court on December 2, 1976. Appellant cared for him for about a year and a half or two years after his birth, and he was then placed with his maternal grandmother. He was placed with his foster mother in August 1978 and has remained with her to the present time. These placements were necessary because appellant was in and out of county jails and from about mid-1979 to December 1980 was incarcerated in state prison.

During the period of appellant's incarcerations, the Department of Social Services of the City and County of San Francisco (department) supervised three visits between her and the minor. Frequent visits were arranged after[*789] she was released, some as a part of a reunification plan. These were not successful; the minor developed adverse physical symptoms as a result of nervous tension engendered by the visits. On several occasions he terminated the visits after a minute or two in his natural mother's presence.

Attempts by the department to work out a service agreement with appellant were unsuccessful because of appellant's lack of cooperation.

On August 25, 1981,[1] the department filed its petition to have the minor declared free from parental custody and control, pursuant to Civil Code section 232, subdivisions (a)(1) and (a)(7). On September 11, the petition was set for hearing on October 15, and counsel was appointed for the minor on September 28.

The Civil Code section 232 hearing took three days, beginning on Thursday, October 15. After the weekend recess, counsel for appellant raised for the first time the issue of applicability of the Act. Ultimately the trial court ruled that the Act was inapplicable to these proceedings.

On December 29, the court filed its order declaring the minor to be free from the custody and control of his natural parents. Judgment was entered on December 30. This appeal followed.

III. DENIAL OF APPELLANT'S CODE OF CIVIL PROCEDURE SECTION 170 MOTION[*]

IV. APPLICABILITY OF THE ACT

(1a) Appellant contends that the trial court erred in determining that the notice provisions of the Act did not apply, that this error violated the minor's due process rights, and that therefore the judgment of the trial court must be reversed and the cause remanded for further proceedings consistent with the Act. We conclude that notice to the tribe was required.

A. Purposes and Scope of the Act

The Act (25 U.S.C.A. ch. 21, §§ 1901-1963[3]) 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[*790] 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, ..." (§ 1902.) The legislation was Congress' response 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; ..." (§ 1901, subd. (4); see generally, Barsh, The Indian Child Welfare Act of 1978: A Critical Analysis (1980) 31 Hastings L.J. 1287 (hereafter cited as Barsh); Note, The Indian Child Welfare Act of 1978: Provisions and Policy (1980) 25 San Diego L.Rev. 98.)

Subchapter I of the Act, with which we are concerned, deals with custody proceedings involving Indian children. "`[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. (§ 1903, subd. (1).) An Indian tribe has exclusive jurisdiction over any such proceeding involving an Indian child who resides or is domiciled within its reservation. (§ 1911, subd. (a).)[4] 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. (§ 1911, subd. (b).) In cases which are not transferred, the tribe has the right to intervene in the state court proceedings. (§ 1911, subd. (c).)

B. Notice Provisions of the Act

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[*791] pending. (Barsh, supra, at p. 1313.) 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[[5]] 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." (§ 1912, subd. (a).)

Violation of the notice provisions may be cause for invalidation of the proceedings. (§ 1914.)

C. Presentation of the Issue to the Trial Court

On October 19, the third day of the Civil Code section 232 hearing, the issue of applicability of the Act was raised to the court for the first time. Child welfare worker Robert Fogal testified that he had investigated the question of the minor's possible Indian child status beginning in November 1980, but that, based upon information received from previous workers, the federal government, appellant, and appellant's mother, he concluded that the Nooksack Tribe was Canadian and that therefore the Act did not apply.

Appellant testified that she is Filipino/Canadian Indian, that the Nooksack is her maternal grandfather's tribe, that her mother grew up on the reservation, which she (her mother) said was in Canada, and that to become a member of the tribe, appellant would have to go to Canada and register as an Indian.[6]

After the parties had rested, appellant's attorney argued, inter alia, that the Act might apply if the Nooksack Tribe was affiliated with tribes within the United States and that the court should obtain an opinion from the Secretary of the Interior on the point. The minor's attorney stated that she had not had time to explore the issue but would prepare a memorandum on the point. The court took the matter, including the issue of applicability of the Act, under submission.

[*792] After the hearing, the parties submitted additional documentary evidence and arguments to the court. On October 21, counsel for appellant informed the court that he had been in communication with the Department of the Interior and had been informed that the Nooksack Tribe is an American (i.e., United States) tribe. Appellant's confusion on the point appears to have been explained by the fact that the tribe was considered Canadian until 1973. Counsel also sent the court various documentary evidence in support of his position that the Act applied to these proceedings. Counsel for the foster mother and for the department submitted arguments against application of the Act, to which appellant's counsel responded.

Based upon this evidence and these arguments, the court held that the Act was inapplicable because the minor was not an "`Indian child.'" Additional arguments were presented in conjunction with appellant's motion for new trial, which the court denied.

D. Notice Was Required

As we have just explained, when the issue of applicability of the Act was raised, the trial court heard and considered testimony and documentary evidence upon which it based its conclusion that the minor was not an Indian child and that therefore the Act did not apply. The court erred in approaching resolution of the issue in this manner, since the question of whether the minor was an Indian child was one for the tribe to determine.

A major purpose of the Act is to protect "... Indian children who are members of or are eligible for membership in an Indian tribe; ..." (§ 1901, subd. (3).) For purposes of the Act, "`Indian child' means 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; ..." (§ 1903, subd. (4).) The Act requires that in any involuntary child custody proceeding, the court must notify the child's tribe where it "... knows or has reason to know that an Indian child is involved, ..." (§ 1912, subd. (a).)

(2) (See fn. 7.) On November 16, 1979, the Bureau of Indian Affairs of the Department of the Interior promulgated Guidelines for State Courts; Indian Child Custody Proceedings (44 Fed.Reg. 67584-67595 (Nov. 26, 1979) (hereafter Guidelines)).[7] These Guidelines begin with a statement of[*793] the policy of the Act — that there is a preference for keeping Indian children with their families or with other Indian families and for deferring to tribal judgment on matters concerning custody of tribal children. (Guidelines, supra, at p. 67585.) "Proceedings in state courts involving the custody of Indian children shall follow strict procedures and meet stringent requirements to justify any result in an individual case contrary to these preferences." (Guidelines, supra, at p. 67586, italics added.) The Act and all regulations, guidelines, and state statutes relating to it "... shall be liberally construed in favor of a result that is consistent with these preferences. Any ambiguities in any of such statues, regulations, rules or guidelines shall be resolved in favor of the result that is most consistent with these preferences." (Guidelines, supra, at p. 67586, italics added.)

As to determining the status of a child as an Indian child, the Guidelines provide: "When a state court has reason to believe a child involved in a child custody proceeding is an Indian, the court shall seek verification of the child's status from either the Bureau of Indian Affairs or the child's tribe.... [¶] ... The determination by a tribe that a child is or is not a member of that tribe, is or is not eligible for membership in that tribe, or that the biological parent is or is not a member of that tribe is conclusive. ... [¶] ... Circumstances under which a state court has reason to believe a child involved in a child custody proceeding is an Indian include.... [¶] ... Any party to the case ... informs the court that the child is an Indian child." (Guidelines, supra, at p. 67586, italics added.)

The commentary to this portion of the Guidelines states, "This guideline makes clear that the best source of information on whether a particular child is Indian is the tribe itself. It is the tribe's prerogative to determine membership criteria and to decide who meets those criteria. Cohen, Handbook of Federal Indian Law 133 (1942)." (Guidelines, supra, at p. 67586; Barsh, supra, at p. 1325; see Santa Clara Pueblo v. Martinez (1978) 436 U.S. 49, 62-66 [56 L.Ed.2d 106, 117-120, 98 S.Ct. 1670].)

The Guidelines further provide: "In any involuntary child custody proceeding, the state court shall make inquiries to determine if the child involved is a member of an Indian tribe or if a parent of the child is a member of an Indian tribe and the child is eligible for membership in an Indian tribe." (Guidelines, supra, at p. 67588.) The commentary explains, "This section recommends that state courts routinely inquire of participants in child custody proceedings whether the child is an Indian. If anyone asserts that the child is an Indian or that there is reason to believe the child may be an Indian, then the court shall contact the tribe or the Bureau of Indian Affairs for verification." (Guidelines, supra, at p. 67589.)

[*794] Although the Guidelines provide that a determination of tribal membership vel non should be sought from the tribe, that question may also be presented to the Bureau of Indian Affairs. The Guidelines state, "Absent a contrary determination by the tribe that is alleged to be the Indian child's tribe, a determination by the Bureau of Indian Affairs that a child is or is not an Indian child is conclusive." (Guidelines, supra, at p. 67586.) The commentary explains, "Because of the Bureau of Indian Affairs' long experience in determining who is an Indian for a variety of purposes, its determinations are also entitled to great deference. [Citation.]"

We conclude that error occurred when the trial court failed to notify the Nooksack Tribe of the pending proceedings so that it could make the determination whether the minor was an Indian child within the meaning of the Act.

E. Evidence Before the Trial Court

(3) (See fn. 8.) We examine the evidence before the trial court to determine whether the error was prejudicial.[8]

It will be recalled that "`Indian child' means 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; ..." (§ 1903, subd. (4).) There is no question that the minor is unmarried and under age 18. Thus, he is an Indian child if he is (a) a member of the tribe or (b) is eligible for membership and his mother is a member.

The Constitution and Bylaws of the Nooksack Indian Tribe of Washington provide as follows:

"ARTICLE II — MEMBERSHIP

"Section 1. The membership of the Nooksack Indian Tribe shall consist of:

"(a) All original Nooksack Public Domain allottees, and their descendants living on January 1, 1942.

"(b) All persons of Indian blood whose names appear on the official census roll of the tribe dated January 1, 1942, provided that the January 1,[*795] 1942, roll may be corrected by the tribe with the approval of the Secretary of the Interior.

"(c) All persons born to any enrolled member of the Nooksack Indian Tribe subsequent to January 1, 1942, provided such persons possess at least one-fourth (1/4) degree Indian blood.

"(d) No person shall be accepted for Nooksack membership who is enrolled as a member of any other organized tribe, band, or Indian community which is officially recognized by the Secretary of the Interior.

"(e) Official membership rolls of the tribe shall be approved by the governing body of the tribe and by the Secretary of the Interior or his authorized representative.

"Sec. 2. The governing body shall have the power to pass ordinances, subject to the approval of the Secretary of the Interior, governing future membership including adoptions and loss of membership."

It was undisputed that appellant's mother, Mrs. Ruth L., was born in 1933, appeared on the census roll of the tribe dated January 1, 1942, and was an enrolled member of the tribe. It was also undisputed that appellant was born in 1954 and has one-half degree Indian blood. Here agreement ended.

Appellant argued that she was a member of the tribe under article II, section 1, subdivision (c), since she was born to an enrolled member after 1942 and has one-half degree Indian blood. This conclusion would be irrefutable if one did not read past subdivision (c). However, the department argued that when article II is considered in its entirety, it is apparent that subdivisions (a) through (c) define who is eligible for membership, and that membership does not automatically follow from eligibility. In other words, appellant might qualify for membership under subdivision (c), but she could not be accepted as a member if she was enrolled in another tribe (subd. (d)) or if her enrollment was not approved by the governing body of the tribe and by the Secretary of the Interior (subd. (e)). Also, section 2 of article II might be invoked to deprive appellant of tribal membership.

The department's reading of article II apparently comports with that of the Bureau of Indian Affairs, which informed appellant's counsel that appellant was "eligible to make application for tribe membership...."

The trial court agreed with the department's position and found that the Act was inapplicable, in that the minor was not an "`Indian child'" because neither he nor appellant was an enrolled member of the tribe.

[*796] The statutory definition of Indian child, taken together with the Nooksack constitutional provisions, resulted in an ambiguity which was not easily resolved. (See Barsh, supra, at pp. 1307-1310.) This difficulty was compounded by the parties' and the trial court's focus on whether appellant (and the minor) were "enrolled."

"Enrollment is not always required in order to be a member of a tribe. Some tribes do not have written rolls. Others have rolls that list only persons that were members as of a certain date. Enrollment is the common evidentiary means of establishing Indian status, but it is not the only means nor is it necessarily determinative. United States v. Broncheau, 597 F.2d 1260, 1263 (9th Cir.1979)." (Guidelines, supra, at p. 67586.)

Although it is apparent from the provisions of article II that the Nooksack Tribe uses an enrollment procedure, it is not clear whether the tribe would have found appellant to be a member had it been given the opportunity to rule on the question.

(1b) Since we cannot say as a matter of law that the minor is not an "`Indian child'" within the meaning of the Act, the trial court's error in failing to inform the tribe of the proceedings cannot be deemed nonprejudicial error, and the judgment must be reversed.

We note that the trial court predicated its decision not to apply the Act in part on its determination that the minor had developed no identification as an Indian. The language of the Act contains no such exception to its applicability, and we do not deem it appropriate to create one judicially. (See A.B.M. v. M.H. (Alaska 1982) 651 P.2d 1170, 1173.)

Even if judicial creation of exceptions to the Act were permissible, creation of one where the child has been deprived of development of an Indian identity would not be appropriate. Congress has found that it has a responsibility to protect and preserve the Indian tribes and their resources and "that there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children...." (§ 1901, subds. (2), (3).) It has therefore established a policy of attempting to place Indian children in "... homes which will reflect the unique values of Indian culture, ..." (§ 1902.) Thus a major purpose of the Act would be undermined by such an exception.

V. POSTJUDGMENT CIRCUMSTANCES

After briefing was completed in this appeal, we received communication from the department's counsel and from the Nooksack Indian Tribe tending[*797] to indicate that resolution of the minor's situation might be reached by settlement and that reversal for further proceedings might be avoided. In light of the undisputed evidence in the record before us that the minor already has suffered physical and psychological ill effects as a result of his unsettled status, we deemed it appropriate that we take subsequent developments into account. (In re Elise K. (1982) 33 Cal.3d 138, 139-151 [187 Cal. Rptr. 483, 654 p. 2d 253] (conc. opn. of Bird, C.J.).)[9]

In a letter dated January 12, 1983, Jennifer Clarke, Nooksack mental health and child welfare specialist, informed the department's counsel that, in light of certain facts, it appeared to the tribe that the minor's best interests would be served if he remained permanently with his foster mother. Accordingly, the tribe had decided not to intervene in the case. Counsel forwarded the letter to us and stated that although the department still believed that notice to the tribe was not required, "It would be wrong to elevate form over substance in this instance, to the detriment of the child's welfare."

We informed appellant's attorney of this development and suggested to him and to the city attorney that possibly the appeal was moot or that settlement could be reached. Counsel could not agree to terms, however.

On May 6, 1983, we received another letter from Ms. Clarke, clarifying the tribe's position. The tribe's stance, based upon a clearer understanding of the facts, now is that its nonintervention is conditioned on the parties attempting to reach a settlement by which appellant is assured visitation with the minor even after adoption by his foster mother. "... [I]f a voluntary settlement of this dispute cannot be reached, the Tribe may still find it necessary to intervene in order to protect this child's tribal and family connections."

In light of these developments, it now appears that resolution outside the normal course of events of the judicial process is not possible.

VI. CONCLUSION

The trial court erred in failing to inform the Nooksack Indian Tribe of the pending action. Upon remand, the court shall refer to the tribe the questions whether, on or before December 30, 1981, under the laws of the[*798] tribe, (1) appellant was a member of the tribe, and (2) the minor was a member of the tribe or was eligible for membership. If the tribe informs the court, on or before 90 days after our decision becomes final, that on or before December 30, 1981, either (1) the minor was a member of the tribe, or (2) the minor was eligible for membership and appellant was a member, the court shall rule that the minor is an Indian child and that the Act is applicable to the action. The court shall then proceed in accordance with the Act's provisions, including the requirement of application of the standard of proof beyond a reasonable doubt. (§ 1912, subd. (f);[10] Barsh, supra, at p. 1319.) If the tribe informs the trial court, on or before 90 days after our decision becomes final, that on or before December 30, 1981, (1) the minor was not a member of the tribe and (2) the minor was not eligible for membership or appellant was not a member of the tribe, or if the tribe does not respond to the court's inquiry on or before 90 days after our decision becomes final, the court shall rule that the minor is not an Indian child and shall order that the judgment entered on December 30, 1981, is in full force and effect.

The judgment is reversed, and the cause is remanded for further proceedings in accordance with the views expressed herein.

Scott, Acting P.J., and Feinberg, J., concurred.

Respondent's petition for a hearing by the Supreme Court was denied October 27, 1983. Mosk, J., and Kaus, J., were of the opinion that the petition should be granted.

[*] Certified for publication except as to part III. (Cal. Rules of Court, rules 976(b) and 976.1.)

1 All relevant dates are in the year 1981, unless otherwise indicated.

[*] Part III of this opinion is not certified for publication. (See fn.[*], ante, at p. 786.)

3 Unless otherwise indicated, all further statutory citations are to title 25, United States Code Annotated.
4 Section 1911 provides as follows: "(a) Exclusive jurisdiction [¶] An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child. [¶] (b) Transfer of proceedings; declination by tribal court [¶] In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe. [¶] (c) State court proceedings; intervention [¶] In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding. [¶] (d) Full faith and credit to public acts, records, and judicial proceedings of Indian tribes [¶] The United States, every State, every territory or possession of the United States, and every Indian tribe shall give full faith and credit to the public acts, records, and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the same extent that such entities give full faith and credit to the public acts, records and judicial proceedings of any other entity."
5 "`Indian custodian' means any Indian person who has legal custody of an Indian child under tribal law or custom or under State law or to whom temporary physical care, custody, and control has been transferred by the parent of such child; ..." (§ 1903, subd. (6).)
6 Appellant also testified that the minor's paternal grandfather had told her that the minor's father was "Indian and black." An objection to this testimony was sustained.
7 The Guidelines represent the Department of the Interior's interpretation of certain provisions of the Act; they were not intended to have binding legislative effect. (Guidelines, supra, at p. 67584.) However, the construction of a statute by the executive department charged with its administration is entitled to great weight. (See, e.g., Worthington v. Unemployment Ins. Appeals Bd. (1976) 64 Cal. App.3d 384, 389; see generally, 5 Witkin, Summary of Cal. Law (8th ed. 1974) Constitutional Law, § 70, pp. 3309-3310.) We have analyzed the Guidelines pertinent to the issue before us and are persuaded that they represent a correct interpretation of the Act. (Cf. Sanchez v. Unemployment Ins. Appeals Bd. (1977) 20 Cal.3d 55, 66 [141 Cal. Rptr. 146, 569 P.2d 140].)
8 Lack of notice is not necessarily prejudicial to the tribe, even where it is required. (Matter of S.Z. (S.D. 1982) 325 N.W.2d 53, 55.)
9 The minor's trial counsel, Legal Services for Children, Inc., took us to task, stating that we should not receive or consider the tribe's suggestions until the legal issue on appeal was resolved. We appreciate the legal niceties of their position but suggest that anyone concerned with the welfare and legal rights of children would be well-advised to read and assimilate Chief Justice Bird's concurring opinion in Elise K., supra, 33 Cal.3d at pages 139-151.
10 Section 1912, subdivision (f), provides: "(f) Parental rights termination orders; evidence; determination of damage to child [¶] No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child."