Commentary on Two Different (Unpublished) Notice Cases from California

On average we receive around a case a day out of California that mentions ICWA, and usually in the notice context. We don’t post all of them, and the vast majority of them are unpublished. But over the last couple of days, we’ve received two that demonstrate the large inconsistencies across the state when it comes to determining if the child is an Indian child, and notice procedures. Neither of these cases are outliers from the hundreds that go up each year, other than the difference in treatment caught our eye. This also demonstrates the difficulty in identifying exactly where additional resources need to be dedicated to ICWA enforcement–it’s not on a fifty state level, it’s on a county-by-county level.

In the first, out of the First Appellate District (Del Norte County) mother says her grandma told her their family may be from the “Comanche Nation.” Notice went out to Comanche, and the Nation said the child was not eligible for enrollment. However, on appeal, the court found

As noted, the only information the Department provided for the maternal grandmother—Nina’s mother—was her name and an incomplete address (“Grant’s Pass,Oregon”). The record contains evidence,however, suggesting that with a minimal amount of inquiry, the Department would have been able to obtain additional information regarding the grandmother. First, the family was involved in a dependency proceeding when Nina was a minor. By its own admission, the Department reviewed that file as part of the instant proceeding and, at a very minimum, would have been able to glean the grandmother’s date of birth, which was unquestionably in the file. This directly refutes the Department’s claim that “there is no indication that the social worker left out any available information.”

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It was incumbent upon the Department to interview her extended family members to obtain whatever further details it could about the family’s Native American heritage.

In the second case, out of the Fourth Appellate District (San Diego County), mother said her family was affiliated with the “Winnebago Sioux tribe in Decorah, Iowa.” The social worker talked to mother and grandmother about it, and found “no one in the family ever lived on a reservation, attended an Indian school, participated in Indian ceremonies or received services from an Indian health clinic.” The court found

We conclude that proper inquiry was conducted to determine whether K.P. was a Native American child within the meaning for ICWA. The court questioned mother and her mother concerning the family’s Native American heritage. According to these relatives, no family members had ever been registered or eligible for enrollment with a tribe and the court was not required to give notice.

In both cases, the claims were attenuated. But regardless, the claims received very different treatment between the two trial courts–in the first, where the Department did not do enough inquiry, notice at least went out to the Comanche Nation. In the second, no one notified Winnebago (nor Ho-Chunk, for that matter), nor allowed either Nation to determine whether this family might be related. And then on appeal, both received very different treatment from the appellate courts. In the first, the court had to do better notice. In the second, the court didn’t have to do any notice.