My response:
Indian tribe's preemptive jurisdiction in certain custody cases involving Indian children: The Indian Child Welfare Act of 1978 (ICWA, 25 USCA § 1901 et seq.) confers on federally-recognized Indian tribes exclusive jurisdiction over foster care placement, termination of parental rights and adoption proceedings involving an Indian child residing or domiciled within their reservations. [25 USCA § 1911(a); and see 25 USCA § 1903(1), defining "child custody proceeding" under ICWA]
The purpose of the ICWA is to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by establishing minimum federal standards (recognizing distinct Indian culture) for the removal of Indian children from their families. [See generally, In re Brandon M. (1997) 54 Cal.App.4th 1387, 1395, 63 Cal.Rptr.2d 671, 676; In re Alicia S. (1998) 65 Cal.App.4th 79, 81-82, 76 Cal.Rptr.2d 121, 122-123]
Thus, custody adjudications governed by the ICWA must meet the Act's specific standards. [In re Pedro N. (1995) 35 Cal.App.4th 183, 186, 41 Cal.Rptr.2d 819, 821; see also Ca Fam § 7810 (added Stats. 1999, Ch. 275)--legislative findings re importance of protecting stability and security of Indian tribes and families and directing Calif. courts to comply with ICWA in all "Indian child custody proceedings"]
When the ICWA applies, a state court custody adjudication that fails to make the requisite ICWA findings is reversible error. [See In re Crystal K. (1990) 226 Cal.App.3d 655, 666-668, 276 Cal.Rptr. 619, 625-627 (state court termination of Indian father's parental rights)]
Domicile determination: If the child lives off the reservation, exclusive jurisdiction rests with the tribe only if the child is "domiciled" within the reservation. The domicile question is not left to individual state court determinations but, rather, must be decided by uniform common law principles. Specifically, the domicile of minors is determined by that of their parents; and a child conceived out of wedlock takes the domicile of its mother. Under these principles, an Indian tribe may have exclusive custody jurisdiction even though the child was born off and never lived on the reservation. [See Mississippi Band of Choctaw Indians v. Holyfield (1989) 490 U.S. 30, 48, 109 S.Ct. 1597, 1608--state court had no jurisdiction to entertain adoption proceedings involving children of mother domiciled on reservation even though they were born off reservation and relinquished immediately to non-Indian adoptive parents]
ICWA jurisdictional issue must be timely raised: An attempt to defeat state court jurisdiction by seeking refuge under the ICWA must be made in a timely manner. Although there is no definitive rule regarding the exact stage at which ICWA rights must be asserted, it is clearly too late to raise the issue for the first time by postjudgment writ or appeal. [See In re Derek W. (1999) 73 Cal.App.4th 828, 833-834, 86 Cal.Rptr.2d 742, 746--Indian father's assertion of ICWA rights for first time by postjudgment petition for writ of error coram vobis, nearly a decade after inception of dependency case, untimely as a matter of law]
Compare--proceedings involving nondomiciliary/nonresident Indian children: Tribal courts do not have "exclusive" jurisdiction over custody proceedings otherwise within the purview of the ICWA when the child is not domiciled or residing within the reservation. But if the child is an "Indian" within the meaning of the Act (see 25 USCA § 1903(4)--unmarried minor who is a member of an Indian tribe or who is eligible for Indian tribe membership and is the biological child of a member of an Indian tribe), state court jurisdiction may be limited, as discussed below. [See In re Alicia S. (1998) 65 Cal.App.4th 79, 82-83, 76 Cal.Rptr.2d 121, 123]
Transfer to tribal court: In these cases, the Indian child's tribe is the "preferred" jurisdictional situs. Absent "good cause," a state court generally is required to transfer the proceeding to the tribe (subject to the tribe's right to decline jurisdiction). [25 USCA § 1911(b); 44 Fed.Reg. § 67584 et seq. (setting forth applicable "good cause" guidelines); In re Alicia S., supra, 65 Cal.App.4th at 82, 76 Cal.Rptr.2d at 123; see In re Robert T. (1988) 200 Cal.App.3d 657, 663-667, 246 Cal.Rptr. 168, 172-175--state court's "good cause" refusal to transfer proceeding to terminate parental rights over child born off reservation affirmed]
(The proper transferee court lies with the "Indian child's tribe"--i.e., the tribe in which the child is a member or eligible for membership; or, if the child is a member of or eligible for membership in more than one tribe, the tribe within which the child has "the more significant contacts." See 25 USCA § 1903(5).)
Parents' power to veto transfer: As to nonreservation children, the ICWA essentially recognizes the parents' right to choose the forum (as between the tribe and state court) for adjudication of the ICWA custody dispute. Section 1911(b) gives the parents of nonreservation children the power to veto any decision to transfer a foster care placement or termination of parental rights case to the tribe's jurisdiction (although the parents cannot prevent application of the ICWA in a state court proceeding). [In re Larissa G. (1996) 43 Cal.App.4th 505, 515, 51 Cal.Rptr.2d 16, 22]
Notice and opportunity to intervene: In any event, the Indian child's tribe must be given statutorily-prescribed notice of the state court proceeding and an opportunity to intervene. If the tribe cannot be determined, notice must be given to the Secretary of the Bureau of Indian Affairs. [25 USCA §§ 1911(c), 1912(a)--notice to parents, Indian custodian and tribe by registered mail, return receipt requested; In re Alicia S., supra, 65 Cal.App.4th at 82, 76 Cal.Rptr.2d at 123]
The tribe's mere "awareness" of the proceeding is not sufficient. Failure to give the requisite statutory notice or otherwise to protect the tribe's right to intervene in custody proceedings within the purview of the Act is per se reversible error (unless the tribe has in fact participated or expressly indicated a lack of interest in doing so). [25 USCA § 1914; Adoption of Lindsay C. (1991) 229 Cal.App.3d 404, 408-409, 280 Cal.Rptr. 194, 196-197; In re Kahlen W. (1991) 233 Cal.App.3d 1414, 1424, 285 Cal.Rptr. 507, 513; see In re Pedro N. (1995) 35 Cal.App.4th 183, 185-186, 41 Cal.Rptr.2d 819, 820-821--notice required whenever state court "knows or has reason to know" Indian child is involved (but mother's claim of inadequate notice waived by failure to timely raise issue in juvenile court proceeding)]
Permissive intervention in "voluntary" adoptions: A tribe's right to intervene under the ICWA is limited to state court proceedings for the foster care placement of, or termination of parental rights to, an Indian child; tribes have no "automatic" right to intervene in "voluntary" adoption proceedings. [See 25 USCA § 1911(c)] By the same token, the ICWA does not expressly preclude the tribe's intervention. "[T]he interests of the tribe under the Act are sufficiently important to support allowing it to join" in such a proceeding. [In re Baby Girl A. (1991) 230 Cal.App.3d 1611, 1619, 282 Cal.Rptr. 105, 109 (emphasis added) (relying in part on Ca Civ Pro § 387(a)--upon timely application, any person having an interest in the litigation may intervene)]
Exception to application of ICWA under "existing Indian family doctrine"? Notwithstanding the above, one line of cases follows a "judge-made" doctrine under which courts may refuse to apply the ICWA as to nondomiciliary/nonresident Indian children where neither the child nor at least one of the parents has a "significant social, cultural or political relationship with Indian life." These courts reason that, unless the child is being removed from an "existing Indian family" (i.e., a family with a significant connection to the Indian community), application of the ICWA would do nothing to further the Act's underlying purpose of preserving Indian culture; and recognitio
