dissenting.
The dispositive issue on appeal revolves around the Indian Child Welfare Act, 25 *1390U.S.C. § 1901 et seq. (I.C.W.A. or federal act) and the Oklahoma Indian Child Welfare Act, 10 O.S.Supp.1984 § 40 et seq. (O.I.C.W.A. or state Act) (collectively Acts). The issue is: Should the Acts apply to the hearing on the eligibility of D.M.J., an alleged Indian child, for adoption without the consent of appellant Parker Jr. Johnson, a divorced, noncustodial, Indian natural father. The majority’s decision places the adoption hearing outside the coverage of the Acts. I cannot accept the Court’s conclusion that the Acts do not apply. Accordingly, I dissent.
Two threshold determinations are required to invoke the provisions of the Acts. First, the proceeding in question must be a “child custody proceeding” as defined by the federal Act. Second, it must be determined that the child is an “Indian child.” Matter of Appeal in Maricopa County, 136 Ariz. 528, 667 P.2d 228, 231 (Ct.App. 1983).
There is no question that D.M.J. is an “Indian child” within the meaning of the Acts. Her father is a full blood Cherokee Indian and a member of the Cherokee Nation. Also, the Acts specifically define adoption cases as a “child custody proceeding.” See 25 U.S.C. § 1903(l)(iv).
The majority holds the Acts do not apply in this case because the Indian child is in the custody of a non-Indian; therefore, there is no removal from an existing Indian family environment nor a resultant breakup of an Indian family. This interpretation completely thwarts the intent of the Acts.
The congressional policy of the I.C.W.A. as set forth in 25 U.S.C. § 1902 is to protect the best interests of Indian children; to promote stability and security of Indian tribes and families; to establish minimum federal standards for the removal and placement of Indian children; and to provide assistance to tribes in the operation of child and family services. The I.C.W.A. was enacted as a result of evidentiary findings that Indian children were being removed from their families much more so than non-Indian children. It was determined that such high percentage of removal was due to absence of involvement of Indian tribes in the welfare and judicial system and the absence of understanding of Indian family life and culture by those persons administering that system.
The Acts expressly except the application of their protective provisions in custody disputes arising in divorce proceedings under 25 U.S.C. 1903(1) and 10 O.S.Supp.1984 § 40.3(A). In my opinion the specific exceptions to the Acts’ applicability are unambiguous and include only divorce and delinquency proceedings. The majority, in essence, creates a judicial exception with regard to the applicability of the Acts. The creation of a judicial exception such as the one urged by appellees and created by the majority is inappropriate where the Acts are clear and unambiguous. I firmly believe the very language of the Acts dictates a finding that they unquestionably apply to this nonconsentual adoption hearing.
It is apparent from the express language and the legislative history of the I.C.W.A. the concept of an Indian family also includes extended family members — aunts, uncles, grandparents, nieces, nephews, sisters or brothers-in-law, stepparents and first or second cousins. 25 U.S.C. § 1903(2); H.R.Rep. No. 1386, 95th Cong., 2d Sess. 20 (1977). Hence, D.’s Indian family consists of other persons than her nuclear family which includes her natural mother and father. The record reflects that D. lived for a period of time with her natural father and her paternal, Indian grandparents after the divorce. The termination of appellant’s parental rights effectually severs D.’s relationship with her extended family as well as her biological father. The overall intent of the I.C. W.A. is to protect Indian families, which I believe includes the protection of extended family members in the coverage of the Acts.
Even if I were to find the application of the Acts were ambiguous, I still would disagree with the Court’s disposition, because the primary rule of construction of *1391Indian law is ambiguous provisions are to be interpreted for the benefit of Indians. Ahboah v. Housing Authority of the Kiowa Tribe, 660 P.2d 625, 631 (Okla.1983). Accordingly, Congressional intent “to prevent the separation of Indian children from family and tribal heritage” is not to be lightly observed. Matter of Appeal in Pima County, 130 Ariz. 202, 635 P.2d 187, 188 (Ct.App.1981). Today’s ruling creating a judicial exception only serves to militate against the minimum federal standards designed to protect the Indian child, family and tribe in involuntary proceedings where the appellant Indian father’s parental rights are terminated.
I would find the hearing determining De-wana eligible for adoption without appellant’s consent is clearly within the ambit of the statutory definition of a child custody proceeding.
I am authorized to Justices LAVENDER, KAUGER join me in opinion. state that OPALA and this dissenting