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Name: In re Abbigail A.
Case #: S220187
Court: CA Court of Appeal
District CalSup
Opinion Date: 07/14/2016

The California Rule of Court expanding the definition of an Indian child beyond the definition provided by ICWA is invalid under state law. In a dependency proceeding, the father of the two minors determined that he and the minors were eligible for membership in the Cherokee Nation. Accordingly, the trial court proceeded as if ICWA applied, pursuant to California Rules of Court, rule 5.482(c). The Department objected to the application of ICWA, contending that the minors did not meet the definition of Indian children as neither of their biological parents were yet tribal members, and so rule 5.482(c) did not apply. The trial court proceeded under ICWA, removed the minors, and placed them with their maternal grandmother. On appeal, the Department contended that rule 5.482(c) and related rule 5.484(c)(2) were invalid, and that the juvenile court erred by proceeding as if ICWA applied, and by directing the Department to make efforts to secure tribal membership. The appellate court reversed, ordering the juvenile court to enter a new judgment that did not apply ICWA provisions to the minors until such time as they qualified as Indian children. The California Supreme Court granted father’s petition for review to consider whether the two rules adopted to implement ICWA are valid. The court concluded that rule 5.482(c) is invalid because it conflicts with the Legislature’s intent to enforce ICWA by codifying its provisions, including the definition of an Indian child. Rule 5.484(c)(2), on the other hand, is consistent with state law and therefore valid, as it only directs the juvenile court to pursue tribal membership for a child who is already an Indian child as defined in ICWA. The case was remanded.