Opinion
NOT TO BE PUBLISHED
Superior Court County No. JV38378 of San Luis Obispo Ginger E. Garrett, Judge
Anna L. Ollinger, under appointment by the Court of Appeal, for C. T., Appellant.
Catherine C. Czar, under appointment by the Court of Appeal, for E. T., Appellant.
Warren R. Jensen, County Counsel, County of San Luis Obispo, Leslie H, Kraut, Deputy County Counsel, for Respondent. G1
YEGAN, J.
C.T. (Mother) and Edward T. (Father) are the parents of A.T., now aged 15, and Edward T., Jr., now aged 14 (the children). Mother and Father appeal from a judgment terminating their parental rights to the children and selecting adoption as the permanent plan. (Welf. & Inst. Code, § 366.26.) Appellants contend that the juvenile court and the San Luis Obispo Department of Social Services (Department) failed to comply with the notice requirements of the Indian Child Welfare Act (ICWA). (25 U.S.C. § 1901 et seq.; § 224 et seq.; Cal. Rules of Court, rule 5.480 et seq.) We affirm.
All statutory references are to the Welfare and Institutions Code unless otherwise stated.
Facts
On September 11, 2001, a detention hearing was conducted for the children as well as Mother's two older children, Sarah C. and Dustin N. The juvenile court asked Mother, "[D]o you have any American Indian ancestry to your knowledge?" Mother replied, "I do, but I haven't been able to obtain proof of that yet." Mother said she was claiming Indian ancestry through the maternal grandfather, who "has a card from the Cherokee Shatahaw Nation in Texas." Mother believed that the tribe was based in Dallas.
Two social workers apparently misconstrued Mother's reference to the Cherokee Shatahaw Nation in Texas as a reference to the Cherokee Nation of Oklahoma, a federally recognized tribe. In a jurisdiction report for the children dated September 26, 2001, the social workers wrote that, "via their maternal grandfather, " the children "may have connections with the Cherokee Nation."
A disposition report for the children filed on January 3, 2002, states that the Department "sent letters of inquiry to the Cherokee Indian tribes" concerning the children's Indian ancestry. These letters are not included in the record. The report further states that the Department received a response from the "Cherokee Center for Family Services" declaring that the children have no affiliation with the "Eastern Band of Cherokee Indians." This response is also not included in the record.
A detention report for Sarah C. filed on June 30, 2004, states that the maternal grandfather telephoned a social worker and "advised that he is 50% Cherokee." A jurisdiction/disposition report for Sarah C. filed on August 3, 2004, states: "On June 23, 2004, the maternal grandfather, Talks with White Buffalo, called the Department... stating that [Mother] was registered with the Cherokee Teja and that he would fax a copy of that document." (5CT 1340) Attached to the jurisdiction/disposition report is a letter faxed by the maternal grandfather to the Department. The letter, dated July 1, 2004, is from "Chief Bear Who Walks Softly, " the "Chief Justice" of the "Sovereign Cherokee Nation Tejas." The Chief Justice's address is a post office box in Fate, Texas. The letter is addressed to "Adawehi Talks with White Buffalo." According to the letter, Mother and the children are enrolled members of the Sovereign Cherokee Nation Tejas. The tribe's seal is imprinted on the letter. The seal states that the tribe was "created by an act of God." The jurisdiction/disposition report declares: "It was again confirmed that this specific tribe does not come under the ICWA."
A jurisdiction/disposition report for the children filed on March 22, 2005, declares that Mother and Father "stated to the Department that they are registered with the Cherokee, Teja Nation." The Department conducted an investigation and "found that this tribe is not registered at a Federal level."
A status review report for the children filed on February 28, 2007, states: "The Indian Child Welfare Act does not apply. A letter dated August 20, 2004 was received by the Department... from attorney Frank P. Hernandez stating in part that [the children] are enrolled members of the Sovereign Cherokee Nation of Texas. This Cherokee Indian Tribe is not a federally recognized Indian Tribe, thus does not come under the Indian Child Welfare Act."
The section 366.26 report filed on July 22, 2009, states that the ICWA does not apply because the children "are enrolled members of the Sovereign Cherokee Nation of Texas, " which "is not a federally recognized Indian Tribe."
Discussion
Pursuant to the ICWA, the Department was required to give written notice to all federally recognized tribes of which the children may be members or eligible for membership. (In re J.T. (2007) 154 Cal.App.4th 986, 992-994.) The notice must "be sent by registered or certified mail with return receipt requested" to the "tribal chairperson, unless the tribe has designated another agent for service." (§ 224.2, subds. (a)(1) & (a)(2).) If the children's tribal affiliation was not known, notice was required to be sent to the Bureau of Indian Affairs (BIA). (In re K.P. (2009) 175 Cal.App.4th 1, 5.) "[T]he ICWA notice, return receipts, and responses of the BIA and the tribes must be filed in the juvenile court. [Citations.]" (In re Louis S. (2004) 117 Cal.App.4th 622, 629.)
Pursuant to Evidence Code sections 459 and 452, subdivision (h), we take judicial notice that there are three federally recognized Cherokee tribes: the Cherokee Nation of Oklahoma, the United Keetoowah Band of Cherokee Indians in Oklahoma; and the Eastern Band of Cherokee Indians of North Carolina. Appellants contend that the juvenile court and the Department were required to give notice to the three federally recognized Cherokee tribes and the BIA. Father states: "[I]t was determined... that the Cherokee Teja or Texas Nation was involved and that it was not a federally recognized tribe.... This... determination does not mean another Cherokee tribe could not also be involved."
A list of federally recognized tribal entities is published at 74 Federal Register. 40218-40223 (Aug. 11, 2009). The list is available at the following website: http://www.loc.gov/catdir/cpso/biaind.pdf. See also In re Marinna J. (2001) 90 Cal.App.4th 731, 737, naming the "three Cherokee entities."
Although Father does not claim Indian ancestry in this appeal, he has standing to assert an ICWA notice violation based on Mother's claimed Indian ancestry. (In re Jonathon S. (2005) 129 Cal.App.4th 334, 339.)
Neither the juvenile court nor the Department was required to give notice to the three federally recognized Cherokee tribes. The tribes designated by Mother, Father, the maternal grandfather, and attorney Frank P. Hernandez were the Cherokee Shatahaw Nation in Texas, the Cherokee Teja, the Cherokee Teja Nation, the Sovereign Cherokee Nation Tejas, and the Sovereign Cherokee Nation of Texas. None of these tribes is federally recognized. "The notice provisions of the [ICWA] are triggered 'where the [juvenile] court knows or has reason to know that an Indian child is involved.' [Citation.] Here, the juvenile court had no reason to know the tribal affiliation of the [children] was with any tribe other than [the tribes designated by Mother, Father, the maternal grandfather, and Hernandez]." (In re K.P., supra, 175 Cal.App.4th at p. 5.) Since these tribes are not federally recognized, notice to them was not required. "We decline to extend the ICWA to cover an allegation of membership in a tribe not recognized by the federal government." (Id., at p. 6.) Because the identity of the children's tribal affiliations was known, notice was not required to be sent to the BIA. (Id., at p. 5.)
In re Louis S., supra, 117 Cal.App.4th 622, is distinguishable. In Louis S. a social worker was informed that the child "was eligible for membership in the Chiricahua Tribe, a branch of the Apache Tribe...." (Id., at p. 627.) "There are eight [federally] recognized Apache Tribes, but the Chiricahua Tribe is not one of them. [Citation.]" (Id., at p. 632.) The social worker "learned [that] members of the Chiricahua Tribe had blended with the San Carlos Apache Tribe, " a federally recognized tribe. (Ibid.) The appellate court concluded that the social worker should determine whether other federally recognized Apache tribes had also absorbed members of the Chiricahua Tribe. "Once the social worker learns which tribe or tribes absorbed the Chiricahua, she need notice only those tribes. [Citations.] If the social worker cannot determine which tribes absorbed the Chiricahua, she should give notice to the BIA and the tribes she knows absorbed members of the Chiricahua Tribe. [Citations.]" (Id., at pp. 632-633.) Here, unlike Louis S., there is no evidence that any of the three federally recognized Cherokee tribes absorbed members of the tribes designated by Mother, Father, the maternal grandfather, and Hernandez. Where, as here, there is no showing of "absorption" by appellants, and the social worker has not been made aware of any "absorption, " error may be predicated on "absorption."
Disposition
The judgment is affirmed.
We concur: GILBERT, P.J., COFFEE, J.