Sheboygan County Department of Human Services v. Neal J.G. , 259 Wis. 2d 563 ( 2003 )

SHIRLEY S. ABRAHAMSON, CHIEF JUSTICE

¶ 40. (dissenting). I disagree with the majority opinion's conclusion that the information before the circuit court was insufficient to trigger the notice requirements of the Indian Child Welfare Act (ICWA). I conclude, as did the circuit court, that the limited information at the circuit court's disposal gave it reason to know that an Indian child might be involved and that notice was therefore required under the ICWA.

¶ 41. I join the majority opinion in urging circuit courts "to proceed with caution and to initiate further inquiry when confronted with vague assertions of Indian heritage."¹ I write because I believe the majority opinion undermines this caution and the objectives of the ICWA by concluding that the vague assertions in the present case did not trigger the ICWA.

¶ 42. The statutorily required notice is designed to enable a tribe to determine whether the child involved in the proceeding is an "Indian child" and whether the tribe should intervene in the proceedings. Without notice, a tribe has no opportunity to intervene. The consequences of lack of notice are serious: the proceedings may be invalid.²

¶ 43. In the present case the circuit court should be commended for its efforts. The circuit court properly concluded that there was reason to know that an Indian child might be involved in the proceeding and that notice was required. The harder question is whether reasonable effort was made to identify and notify the appropriate tribe. I am reluctant to second-guess the circuit court that acted so responsibly in the present case. I am nevertheless convinced, in light of the purpose of the ICWA, that a reasonable effort in the present case should have included notice to the list of Chippewa bands provided by the Bureau of Indian Affairs.

¶ 44. I would therefore remand the cause to the circuit court for furnishing additional notice. If after additional notice is given the circuit court determines that the ICWA does not apply, the original circuit court order terminating parental rights would stand.³

¶ 45. For the reasons set forth, I dissent.

1 Majority op., ¶ 38.

2 25 U.S.C. § 1914 (2001).

3 For courts providing such a remedy, see, e.g., In re J.T., 693 A.2d 283, 289 (Vt. 1997), and In re C.H., 510 N.W.2d 119, 124 (S.D. 1993).