VICTORY FOR TRIBAL RIGHTS UNDER ICWA
November 8, 2002

Thanks in part to CILS’ strong advocacy, tribal rights under the Indian Child Welfare Act (ICWA) scored an important victory on October 30, 2002. ICWA and the California Rules of Court require courts to notify tribes when a child who may be a tribal member or eligible for tribal membership is involved in a dependency proceeding. This notice requirement is essential because it allows tribes to participate in proceedings involving their children and make their wishes regarding placement known. In the case of In re Dwayne P., the court reaffirmed that when parents assert Indian heritage, the court has a duty to ensure that notice of the proceeding is given to the appropriate tribe(s). In making this ruling, the court rejected the argument that the parents had to provide enough evidence to show that their children were tribal members or eligible for tribal membership before ICWA and its notice provisions would apply to the case. In light of several recent anti-ICWA decisions, this reaffirmation is especially important because it promotes the goals and policy behind ICWA.

The Dwayne P. decision is equally important because the court disagreed with an earlier court which said that if the tribe is not given notice of a proceeding, the parents need to appeal this issue at the first opportunity or forever lose their right to raise it. The Dwayne P. ruling recognizes that the court’s duty to ensure tribes receive notice is an ongoing responsibility, and so allows the parties to appeal the lack of notice at any point during the proceeding.

CILS wrote an amicus brief on behalf of the Pauma-Yuima Band of Mission Indians, explaining to the court both the importance of ICWA and its notice requirements. CILS’ persuasive arguments led the court to recognize that the tribal notice requirement protects the interests of both the Indian child and his/her tribe. In contrast to some recent California cases that limit ICWA and undermine tribal rights, the court’s decision in Dwayne P. is a welcome victory for California Indian communities.

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