| (Cite
as: 418 N.W.2d 310)
Supreme
Court of South Dakota.
In
the Matter of the Dependency and Neglect of N.A.H. and
K.A.H., and
Concerning
Their Parents M.A.H. and R.W.
No.
15750.
Considered
on Briefs Sept. 4, 1987.
Decided
Jan. 20, 1988.
*310
Mark F. Marshall of Bangs, McCullen, Butler, Foye & Simmons,
Rapid City, for M.A.H.
Portia K. Brown of Morrill & Brown, Rapid City, for
N.A.H. and K.A.H.
Roger A. Tellinghuisen, Atty. Gen., and Janice Godtland, Asst. Atty.
Gen., Pierre, for appellee, State of S.D.
PER CURIAM.
M.A.H. (Mother) appeals from a dispositional order which terminated her
parental rights and those of R.W. (Father) to their *311
daughters, N.A.H. and K.A.H. Father has not appealed.
We reverse.
Mother is an enrolled member of the Oglala Sioux Tribe
and Father is apparently affiliated with the Crow Tribe of
Montana. N.A.H. and K.A.H. are Indian children entitled
to the benefits and protections of the Indian Child Welfare
Act. (ICWA) 25 U.S.C. §§
1901-1963. On appeal, Mother argues that
the state failed to prove its case beyond a reasonable
doubt, as required by ICWA. However, we need
not address Mother's issue, since the trial court did not
have jurisdiction to terminate her parental rights.
The ICWA requires that in any involuntary proceedings in a
state court, "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 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). We have consistently ruled that the provisions of the
ICWA must be complied with in Indian child custody proceedings.
Matter
of K.A.B.E.,
325 N.W.2d 840 (S.D.1982); People
in Interest of C.R.M.,
307 N.W.2d 131 (S.D.1981).
Here, neither the Oglala Sioux Tribe nor the Crow Tribe
received proper notice of the dispositional hearing. Although
the notice sent to the Oglala Tribe indicated that Mother's
parental rights could be terminated, it did not inform the
tribe of its right to intervene in the case.
The record is also devoid of any evidence showing
that notice to the Oglala Tribe of the dispositional hearing
was sent by registered mail with return receipt requested.
The Crow Tribe did not receive any notice of
the dispositional hearing in this case.
The ICWA is primarily a jurisdictional statute, 1978 U.S.Code Cong.
& Admin.News 7530, 7541; J. McCahey, Child
Custody & Visitation Law and Practice,
§
29.03[4] (1987); and this court must examine jurisdictional questions
whether presented by the parties or not. Lehr
v. Dept. of Labor,
391 N.W.2d 205 (S.D.1986); Long
v. Knight Const. Co.,
262 N.W.2d 207 (S.D.1978). Therefore, even though Mother
did not raise the notice question on appeal, we conclude
that inadequate notice to the tribes divests the trial court
of jurisdiction to terminate parental rights to these Indian children;
consequently, this court has no jurisdiction to address the merits
of the case. We reverse the order terminating
parental rights and remand for a new hearing after proper
notice is given to all parties. See
Matter of L.A.M.,
727 P.2d 1057 (Alaska 1986). At a minimum,
notice must conform to the standards found in 25 U.S.C.
§
1912(a). Better practice would be to follow the
Bureau of Indian Affairs guidelines set forth at 44 Fed.Reg.
67588 (1979). Matter
of S.Z.,
325 N.W.2d 53 (S.D.1982) (footnote 1).
Reversed and remanded.
418 N.W.2d 310
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