SUMMERS, Justice.
D.M.J. is a ten year old, half-Indian girl whose custody was awarded to her non-Indian mother in the 1976 divorce of her parents. In 1982 with the consent of the natural mother, an adoption was arranged with a married couple, appellees, who also happened to be non-Indian.1 With the Petition for Adoption was filed an Application For Adoption Without Consent of Natural Father. Appellant/natural father/full blood Cherokee Indian appeared in opposition at the hearing, as did the Cherokee Nation of Oklahoma, intervenor. The trial court on February 24,1983 determined that appellant, who had not had custody since the 1976 divorce, had wilfully failed to support his daughter for more than one year preceding commencement of the adoption, that his consent was therefore not required under 10 O.S. 1981 § 60.7, and that his parental rights should be terminated.
Although the adoption proceeded in due course with a final Decree of Adoption on July 11,1983, it is from the order of February 24, 1983 that the father appeals. He is joined on appeal by Intervenor/Cherokee Nation and by the Oklahoma Indian Child Welfare Association, amicus curiae. We are asked to invalidate the proceedings of February 24 for the alleged failure of the trial court to comply with the Indian Child Welfare Act2 (I.C.W.A. or Act) and the Oklahoma Indian Child Welfare Act3 in this proceeding. Further, the Cherokee Nation complains of lack of notice to the tribe.
It is urged in behalf of appellant that the evidence offered in support of termination fell short of what is required under the 1.C.W.A. Appellees contend that the I.C. W.A. simply doesn’t apply to the placement (or adoption) of the child in this case. To resolve the question we must examine the Act in order to determine the purpose for its enactment.
PURPOSE OF THE INDIAN CHILD WELFARE ACT AND OKLAHOMA INDIAN CHILD WELFARE ACT
The Indian Child Welfare Act and Oklahoma Indian Child Welfare Act are structured around the concern “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies” and placed in non-Indian homes and institu[1388]*1388tions.4 Congress has declared the policy of this Nation in passing the ICWA as follows:
"... [T]o protect the best interest of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture....”5
In adoption cases, the Act, where applicable, gives preferences for placement of the child with (1) a member of the child’s extended family, (2) other members of the Tribe, or (3) other Indian families.6 The central thrust and concern of the ICWA is, therefore, “the establishment of minimum federal standards for the removal of Indian children from their families”.
Numerous provisions of the Act support this conclusion.
Section 1912 addresses pending court proceedings. Subsection (d) requires:
“Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” (emphasis added).
Subsection (e) declares:
“No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (emphasis added).
Subsection (f) states:
“No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (emphasis added).
The Indian Child Welfare Act comes into play therefore, when we are confronted with the removal of Indian children from Indian families. The purpose of the Act is to promote the best interest of Indian children through promoting the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families.
Oklahoma also has an Indian Child Welfare Act (OICWA).7 The stated purpose of its Act is the “clarification of state policies and procedures regarding the implementation by the State of Oklahoma of the Federal Indian Child Welfare Act” and to “cooperate fully with Indian tribes in Oklahoma in order to insure that the intent and provisions of the Federal Indian Child Welfare Act are enforced”.8 The Oklahoma Indian Child Welfare Act applies when the ICWA is applicable.9
Appellant correctly points out that at the hearing there was no evidence of “remedial services and rehabilitative programs designed to prevent the breakup of the Indian family” as required by § 1912(d), nor was there testimony of “qualified expert witnesses that the continued custody of the ... Indian custodian” would be detrimental, as required by § 1912(f).
But appellees counter that as far as D.M. is concerned, the family has been broken up since 1976. Once the family breakup [1389]*1389has occurred, preventive measures are logically impossible and “remedial services” cannot repair a relationship after seven years of divorce. They agree that expert testimony is required where “continued custody” of the Indian parent is at issue, but urge that the statute has no application when the child is and has been in the custody of a non-Indian parent, such as in this case.
We must agree with the appel-lees/adoptive parents. The ICWA by its terms does not apply to “an award, in a divorce proceeding, of custody to one of the parents.”10 Neither does the Act anywhere suggest that it applies to a post-divorce situation, as here, in the absence of an attempt to “break-up the Indian family” or interrupt the “continued custody” of the child by the Indian parent. The Congress appreciated, as do we, the culture-shock and underlying trauma in yanking a child from an Indian environment and placing the child in a non-Indian one. In like manner, it provided no mandate that a child such as D.M. be uprooted from a non-Indian environment and placed in an Indian one. Thus there is no expression of intent in the ICWA to find her an Indian home. The Act not being applicable the trial court committed no error in terminating appellant’s parental rights.
NOTICE TO THE CHEROKEE NATION
The Cherokee Nation complains that the tribe received insufficient notice of the hearing.11
Free access — add to your briefcase to read the full text and ask questions with AI
SUMMERS, Justice.
D.M.J. is a ten year old, half-Indian girl whose custody was awarded to her non-Indian mother in the 1976 divorce of her parents. In 1982 with the consent of the natural mother, an adoption was arranged with a married couple, appellees, who also happened to be non-Indian.1 With the Petition for Adoption was filed an Application For Adoption Without Consent of Natural Father. Appellant/natural father/full blood Cherokee Indian appeared in opposition at the hearing, as did the Cherokee Nation of Oklahoma, intervenor. The trial court on February 24,1983 determined that appellant, who had not had custody since the 1976 divorce, had wilfully failed to support his daughter for more than one year preceding commencement of the adoption, that his consent was therefore not required under 10 O.S. 1981 § 60.7, and that his parental rights should be terminated.
Although the adoption proceeded in due course with a final Decree of Adoption on July 11,1983, it is from the order of February 24, 1983 that the father appeals. He is joined on appeal by Intervenor/Cherokee Nation and by the Oklahoma Indian Child Welfare Association, amicus curiae. We are asked to invalidate the proceedings of February 24 for the alleged failure of the trial court to comply with the Indian Child Welfare Act2 (I.C.W.A. or Act) and the Oklahoma Indian Child Welfare Act3 in this proceeding. Further, the Cherokee Nation complains of lack of notice to the tribe.
It is urged in behalf of appellant that the evidence offered in support of termination fell short of what is required under the 1.C.W.A. Appellees contend that the I.C. W.A. simply doesn’t apply to the placement (or adoption) of the child in this case. To resolve the question we must examine the Act in order to determine the purpose for its enactment.
PURPOSE OF THE INDIAN CHILD WELFARE ACT AND OKLAHOMA INDIAN CHILD WELFARE ACT
The Indian Child Welfare Act and Oklahoma Indian Child Welfare Act are structured around the concern “that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies” and placed in non-Indian homes and institu[1388]*1388tions.4 Congress has declared the policy of this Nation in passing the ICWA as follows:
"... [T]o protect the best interest of Indian children and to promote the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture....”5
In adoption cases, the Act, where applicable, gives preferences for placement of the child with (1) a member of the child’s extended family, (2) other members of the Tribe, or (3) other Indian families.6 The central thrust and concern of the ICWA is, therefore, “the establishment of minimum federal standards for the removal of Indian children from their families”.
Numerous provisions of the Act support this conclusion.
Section 1912 addresses pending court proceedings. Subsection (d) requires:
“Any party seeking to effect a foster care placement of, or termination of parental rights to, an Indian child under State law shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful.” (emphasis added).
Subsection (e) declares:
“No foster care placement may be ordered in such proceeding in the absence of a determination, supported by clear and convincing evidence, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (emphasis added).
Subsection (f) states:
“No termination of parental rights may be ordered in such proceeding in the absence of a determination, supported by evidence beyond a reasonable doubt, including testimony of qualified expert witnesses, that the continued custody of the child by the parent or Indian custodian is likely to result in serious emotional or physical damage to the child.” (emphasis added).
The Indian Child Welfare Act comes into play therefore, when we are confronted with the removal of Indian children from Indian families. The purpose of the Act is to promote the best interest of Indian children through promoting the stability and security of Indian tribes and families by the establishment of minimum federal standards for the removal of Indian children from their families.
Oklahoma also has an Indian Child Welfare Act (OICWA).7 The stated purpose of its Act is the “clarification of state policies and procedures regarding the implementation by the State of Oklahoma of the Federal Indian Child Welfare Act” and to “cooperate fully with Indian tribes in Oklahoma in order to insure that the intent and provisions of the Federal Indian Child Welfare Act are enforced”.8 The Oklahoma Indian Child Welfare Act applies when the ICWA is applicable.9
Appellant correctly points out that at the hearing there was no evidence of “remedial services and rehabilitative programs designed to prevent the breakup of the Indian family” as required by § 1912(d), nor was there testimony of “qualified expert witnesses that the continued custody of the ... Indian custodian” would be detrimental, as required by § 1912(f).
But appellees counter that as far as D.M. is concerned, the family has been broken up since 1976. Once the family breakup [1389]*1389has occurred, preventive measures are logically impossible and “remedial services” cannot repair a relationship after seven years of divorce. They agree that expert testimony is required where “continued custody” of the Indian parent is at issue, but urge that the statute has no application when the child is and has been in the custody of a non-Indian parent, such as in this case.
We must agree with the appel-lees/adoptive parents. The ICWA by its terms does not apply to “an award, in a divorce proceeding, of custody to one of the parents.”10 Neither does the Act anywhere suggest that it applies to a post-divorce situation, as here, in the absence of an attempt to “break-up the Indian family” or interrupt the “continued custody” of the child by the Indian parent. The Congress appreciated, as do we, the culture-shock and underlying trauma in yanking a child from an Indian environment and placing the child in a non-Indian one. In like manner, it provided no mandate that a child such as D.M. be uprooted from a non-Indian environment and placed in an Indian one. Thus there is no expression of intent in the ICWA to find her an Indian home. The Act not being applicable the trial court committed no error in terminating appellant’s parental rights.
NOTICE TO THE CHEROKEE NATION
The Cherokee Nation complains that the tribe received insufficient notice of the hearing.11 The Act requires notice by registered mail with return receipt. It must identify the pending proceedings and advise of the tribe’s right to intervene. Assuming, but without so deciding, that the Nation was entitled to receive notice in this case, such notice was clearly sufficient. The notice to the Principal Chief of the Cherokee Nation satisfied all statutory requirements except one: it was sent by first class mail. The tribe did in fact intervene. It appeared at the hearing by counsel and participated fully. No objection to the notice was made to the trial court. No prejudice has been suggested by its having been served by first class mail. A party who appears and participates in a hearing will not be heard on appeal to complain for the first time regarding the sufficiency of notice.12
CONCLUSION
The underlying purpose that is evident throughout the Indian Child Welfare Act is the Act’s concern with the removal of Indian children from an existing Indian family situation and the resultant breakup of the Indian family.
We therefore conclude that the ICWA applies only in those situations where Indian children are being removed from existing Indian family environments. Under the facts of this case where the Indian child since 1976 has been in the custody of her non-Indian mother, where the child is not being removed from the custody of an Indian parent, and is not being removed from an Indian environment, the ICWA does not apply.
We further conclude that the Cherokee Nation by appearing and participating in the hearing waived the statutory requirement of notice by certified mail.
ORDER OF TRIAL COURT AFFIRMED.
SIMMS, C.J., DOOLIN, Y.C.J., and HARGRAVE and ALMA WILSON, JJ., concur.
HODGES, LAVENDER, OPALA and KAUGER, JJ., dissent.