as: 698 N.W.2d 147)
Court of Iowa.
the Interest of R.E.K.F., Minor Child,
F., Father, Appellant.
Irene A. Schrunk, Sioux City, for appellant father of R.E.K.F.
J. Miller, Attorney General, Kathrine S. Miller-Todd and Tabitha Gardner,
Assistant Attorneys General, Thomas S. Mullin, County Attorney, and Dewey
Sloan, Assistant County Attorney, for resister State of Iowa.
Denker of the Juvenile Law Center, Sioux City, guardian ad
litem for minor children.
father appeals the termination of his parental rights to his
He contends the State did not comply with the tribal
notice provisions of the Iowa Indian Child Welfare Act. Because
the State notified the wrong Indian tribe, we remand for
and Prior Proceedings
is the putative father of Ruby, who was born in
July 2003. Four months after her birth, Ruby was adjudicated
In March 2004, the State filed a petition to terminate
Garrett's parental rights.
July 2004, Garrett informed the juvenile court he had “Native
American heritage through the Seneca tribe, which is out in
the eastern United States, and ...
maybe in Canada.”
Garrett asked the court to continue the trial so that
notice of the termination proceedings could be given to this
tribe, pursuant to the requirements of the Iowa Indian Child
Welfare Act (Iowa ICWA).
Iowa Code §
The juvenile court denied the motion.
deciding whether to terminate Garrett's parental rights, however, in November
2004 the juvenile court reconsidered its earlier ruling and ordered
the State to notify “the
of the proceedings.
The juvenile court decreed that if “the
did not request to intervene before the end of the
year, the court would close the record and issue its
decision on the termination.
State promptly sent notice of the termination proceedings to the
Seneca-Cayuga Tribe in Miami, Oklahoma.
In December 2004, the Peoria Tribe of Indians of Oklahoma
notified the State that Ruby was not a member of
the Seneca-Cayuga Tribe of Oklahoma.
In February 2005, the juvenile court determined the Iowa ICWA
statute did not apply and terminated Garrett's rights.
Iowa Code §
He argued, among other things, that the State did not
comply with the tribal notice requirements of the Iowa ICWA,
there was insufficient evidence to support the termination, and the
termination was not in Ruby's best interests.
The court of appeals affirmed in an unpublished opinion.FN1
the same unpublished opinion, the court of appeals resolved another
appeal involving the parental rights of Ruby's mother to Ruby
and another child.
That appeal is not before us.
sought further review, which we granted.
Although we retain the discretion to reexamine all issues raised
in the initial appeal, in this case we only consider
Garrett's Iowa ICWA tribal notice claim.FN2
474 N.W.2d 553, 557 (Iowa 1991) (remarking that supreme court
review any or all of the issues initially raised on
We affirm the decision of the court of appeals in
all other respects.
does not distinguish the tribal notice provisions of the Iowa
ICWA and the federal ICWA;
appears to assume that for the purposes of this appeal
they are the same.
Likewise, the court of appeals only applied the statutory language
of the Iowa ICWA to the facts of this case.
For these reasons, we only rule upon tribal notice provisions
of the Iowa ICWA in this appeal.
review of termination cases is ordinarily de novo.
611 N.W.2d 489, 492 (Iowa 2000).
To the extent Garrett's claim of error rests upon statutory
interpretation, however, our review is for correction of errors of
re E.H. III,
578 N.W.2d 243, 245 (Iowa 1998).
The provisions of the Iowa ICWA are to be strictly
construed and applied.
498 N.W.2d 417, 421 (Iowa Ct.App.1993).
attending to the merits of Garrett's appeal, we must resolve
a pending motion.
In his further review brief, Garrett attached several exhibits which
were not part of the record before the juvenile court.
The State moved to strike this additional information.
We grant the State's motion to strike.
483 N.W.2d 812, 815 (Iowa 1992) (holding appeal of termination
is limited to information that is part of the record);
552 N.W.2d 135, 138 (Iowa 1996) (similar).
issue in this appeal are the tribal notice provisions of
the Iowa ICWA. Those provisions require the juvenile court to
notify the proper Indian tribe whenever it has reason to
know that an Indian child may be involved in an
In particular, Iowa ICWA states:
court shall establish in the record that the party seeking
termination of parental rights over ...
an Indian child has sent notice by registered mail, return
receipt requested, to ...
[a]ny tribe in which the child may be a member
or eligible for membership.
Notice must be given even if doubts remain about whether
the child is an Indian child, because elsewhere the Iowa
ICWA statesthe court or any party to the proceeding shall
be deemed to know or have reason to know that
an Indian child is involved whenever ...
the court or a party has been informed by any
interested person ...
that the child is or may be an Indian child.
Whether or not a child is an Indian child is,
after all, a question for the tribe to answer in
the first instance.
498 N.W.2d at 422 (“The
tribes are the arbitrators of their own membership.”);
234 Neb. 381, 451 N.W.2d 377, 387 (1990) (“Formal
membership requirements differ from tribe to tribe....”).
if the Indian tribe does not provide evidence of the
child's status as an Indian child may the juvenile court
determine the matter itself.
Iowa Code §
Taken together, the foregoing provisions of the Iowa ICWA, as
do those of similar statutes in other jurisdictions, recognize that
it is better to err on the side of giving
notice to the tribe and examining thoroughly whether the child
is an Indian child.
153 Vt. 275, 571 A.2d 627, 635 (1989).
This determination “must
be made as soon as practicable in order to serve
the best interest of the child and to ensure compliance
with the notice provisions of [the Iowa ICWA].”
Iowa Code §
this case, Garrett's statement to the juvenile court regarding his
heritage was *150
specific enough to require the State to provide notice of
the proceedings to the Seneca Nation of New York. It
had reason to know Ruby may be an Indian child.
577 N.W.2d 874, 876 (Iowa Ct.App.1998) (noting the mere fact
a child was named “Phoenix
put the juvenile court on notice that the child might
be an Indian child).
The district court erred when it did not order the
State to notify the tribe as soon as it was
When the court attempted to rectify its error and later
ordered the State to comply with the tribal notice provisions
of the Iowa ICWA, however, it only vaguely ordered the
State provide notice to “the
Perhaps because of the delay, the State apparently interpreted “the
to mean “the
Seneca-Cayuga Tribe of Oklahoma.”
This was error.
According to the Iowa ICWA, an “Indian
Indian tribe, band, nation, or other organized Indian group, or
a community of Indians ...
recognized as eligible for services provided to Indians by the
United States secretary of the interior because of the community
members' status as Indians.
The relevant federal regulations list the “Seneca
Nation of New York”
as one such tribe.FN3
Fed.Reg. 68180, 68182 (Dec. 5, 2003).
The Seneca Nation of New York is to be contrasted
with another listed tribe, the “Seneca-Cayuga
Tribe of Oklahoma.”
We cannot say, as did the court of appeals, that
the State adequately complied with the Iowa ICWA by sending
notice to the Seneca-Cayuga Tribe of Oklahoma.
Garrett stated his heritage lay with “the
Seneca tribe ...
out in the eastern United States....”
The State notified the wrong tribe, and therefore the court
did not ensure compliance with the Iowa ICWA.FN4
regulations provide the following contact information for the tribe:
Nation of New York, Clerk, Genevieve Plummer Building, Box 231,
Salamanca, N.Y. 14779, Tel.:
Fed.Reg. 68408, 68415 (Dec. 8, 2003).
is true the State also sent notice to the secretary
of the interior, in the hope that the secretary would
notify the proper tribe.
This is not sufficient notice to the Seneca Nation of
New York on the facts presented in this case.
The Iowa ICWA authorizes notice via the secretary, but only
when the identity or location of the tribe cannot be
Iowa Code §
Here Garrett's statement was sufficiently specific that this section of
the act is not applicable.
parties appear to assume that if the tribal notification requirements
of the Iowa ICWA were not met, then we must
reverse the termination of Garrett's parental rights.
This is not so, because there is still no assurance
that Ruby is an Indian child.
A great number of courts considering similar statutes have held
that when an appellate court finds a violation of ICWA
notice provisions, reversal is not necessarily warranted.
Rather, the proper procedure, at least when there is no
other evidence the child is an Indian child, is to
affirm the termination on the condition that the proper notification
Only if it turns out the child is an Indian
child and the tribe wants to intervene must the termination
Otherwise the termination stands.
re Kahlen W.,
233 Cal.App.3d 1414, 285 Cal.Rptr. 507, 514 (1991);
re Junious M.,
144 Cal.App.3d 786, 193 Cal.Rptr. 40, 47 (1983);
577 N.E.2d 572, 575 (Ind.1991);
233 Mich.App. 438, 592 N.W.2d 751, 757-58 (1999);
451 N.W.2d at 386-87;
510 N.W.2d 119, 124 (S.D.1993);
571 A.2d at 635;
86 Wash.App. 127, 936 P.2d 36, 41-42 (1997);
re Arianna R.G.,
259 Wis.2d 563, 657 N.W.2d 363, 374 (2003) (Abrahamson, C.J.,
re Elizabeth W.,
120 Cal.App.4th 900, 16 Cal.Rptr.3d 514, 520 (2004) ( “conditional
We affirm on this condition and remand.
684 N.W.2d 235, 242 (Iowa 2004) (affirming on condition and
512 N.W.2d 267, 275 (Iowa 1994) (same).
solution is consistent with the mandate of the Iowa ICWA.
The provisions of the Iowa ICWA do not apply until
the court determines the children are “Indian”
as defined in the Iowa ICWA. Therefore there can be
no violation of the Iowa ICWA until the court determines
it applies to the proceedings.
584 N.W.2d 577, 581-82 (Iowa Ct.App.1998).
Reversal is not yet, if ever, a proper remedy in
an aside, we also point out that this solution is
clearly in the best interests of the child.
It would be wrong to delay matters further by undoing
a termination for notice only to later find out the
substantive provisions of the Iowa ICWA never applied in the
Ruby's limbo must end sooner rather than later.
we share the State's concern that a party might wrongly
attempt to use the tribal notice provisions of the Iowa
ICWA as a delay tactic and recognize that Garrett's statement
came late in the proceedings, we cannot ignore the plain
mandate of the Iowa ICWA which is not limited in
285 Cal.Rptr. at 513 (under ICWA, “[n]otice
is mandatory, regardless of how late in the proceedings a
child's possible Indian heritage is uncovered”);
245 Mich.App. 181, 628 N.W.2d 570, 573 (2001) (same).FN6
can we, as the State suggests, decide not to apply
the Iowa ICWA to this child because there is no
evidence she has been raised in an Indian culture.
The Iowa ICWA expressly states:
do point out, however, that the determination of a child's
Indian status must only be made “as
soon as practicable.”
What is practicable will depend upon the circumstances.
state court does not have discretion to determine the applicability
this chapter to a child custody proceeding based upon whether
an Indian child is part of an existing Indian family.
matter is remanded to the juvenile court, which shall give
notice of the termination proceedings to the Seneca Nation of
New York. If the Seneca Nation fails to respond within
the appropriate timeframe or replies and determines Ruby is not
eligible for tribal membership, the juvenile court's original order of
termination will stand.
If the Seneca Nation of New York responds and intervenes,
reversal of the termination and further proceedings consistent with the
requirements of the Iowa ICWA will be necessary.
We affirm the district court and court of appeals on
We do not retain jurisdiction.
Costs are assessed against the State.
ON CONDITION AND REMANDED.