with whom DOOLIN, Chief Justice, and KAUGER, Justice, join, concurring in part and dissenting in part.
Today the court reverses the trial court’s orders declaring N.L. to stand in a deprived child’s status and determining his custodial *871placement. Its decision is grounded on error [1] in not meeting the Indian Child Welfare Act’s [ICWA or Act]1 requirement for expert testimony in support of deprived-status declaration and [2] in not following the Act’s preferences for the child’s placement. The court affirms the trial court’s rulings that deny the mother’s requests to [1] transfer the proceedings to the tribal court and [2] continue the disposi-tional hearing. The court dismisses other arguments advanced by the mother because she did not raise them as error in the trial court. These are: (a) the trial court failed to follow certain required statutory procedures at the preadjudicative stage of the deprived-status proceedings and (b) no statutorily mandated placement plan was on file below.
I concur in today’s reversal of the adjudicative and dispositional orders and in the court’s holding that the trial court correctly refused to transfer jurisdiction of the deprived-status proceedings to the tribal court.
I would go further and also reverse the preadjudicative decision which directed N.L.’s emergency removal because the court’s order, rendered in 1986, lacked the fundamental ingredient of notice adequate to inform the mother of that offending conduct which the State relied on for the child’s removal; I would reverse the deprived-status adjudication because it stands unsupported by expert testimony mandated by the ICWA; I would set aside the dispo-sitional order because, once the deprived-status adjudication is vacated, that order no longer has any legal foundation upon which it may be rested; finally, I would remand the cause with directions that the trial court (a) forthwith issue a preadjudica-tive order with the affidavit attached as required by law and (b) then conduct a hearing on the issue of the child’s preadju-dicative placement.
I THE ANATOMY OF LITIGATION
Born to Jenny Kay Carney on February 27, 1984, N.L. was eligible through his mother for membership in both the Kaw and Creek Indian Tribes. On May 2, 1984 his temporary custody was placed in his maternal grandmother. A petition filed shortly thereafter alleged that N.L. was a deprived child. On June 25,1984 N.L. was adjudged to stand in that status. His temporary custody remained in the maternal grandmother. The mother was not present at the hearing. Her whereabouts were then unknown. The Creek and Kaw Tribes were notified of the hearing but did not intervene in the proceeding.2 On June 17, 1985 N.L.’s temporary custody was changed from his maternal grandmother to a nontribal family, the Huddlestons. The mother appeared at this hearing.
On February 12, 1986 the district court set aside its June 25, 1984 adjudication for lack of sufficient notice to the mother. Two days later, the court granted an emergency order which continued N.L.’s custody in the Huddlestons. On May 9,1986 the court denied the mother’s petition to transfer the case to the Court of Indian Offenses. On the same day it declared once again that N.L. was a deprived child and allowed the Huddlestons to retain his temporary custody.
II THE REVIEWABILITY OF THE MOTHER’S JURISDICTIONAL CHALLENGE TO THE TRIAL COURT’S ASSUMPTION OF COGNIZANCE OVER THE CHILD’S PRE-ADJUDICATIVE CUSTODY
The mother asserts the trial court’s failure to follow certain statutory process during the preadjudicative stages is violative of her due process rights. She directs us to two instances in which the trial court disregarded the minimum standard of mandated procedure: [1] a show cause hearing required by § 1104.1(C) of the Juvenile *872Code 3 was not held within 48 hours either of the 1984 or of the 1986 order, both of which authorized N.L.’s emergency removal and [2] contrary to § 40.5(A) of the state ICWA, no statutorily mandated affidavit was attached to either of these orders.4
The record reveals the mother’s brief to the trial court — in support of her oral motion to dismiss the 1984 proceedings — clearly challenged the trial court’s failure to afford her a § 1104.1(C) hearing following the child’s emergency removal. This challenge had a jurisdictional dimension. It questioned the court’s power to decide the preadjudicative placement issue. The infirmity asserted in the mother’s motion was not subsequently cured by the 1986 pread-judicative process. The latter was equally fatal.5
A
The statutory requirements and their due process implications
The terms of § 40.5(A) of the state ICWA provide that when a court authorizes the emergency removal of an Indian child from its parent or Indian custodian in accordance with § 1922 of the federal ICWA, the order shall be accompanied by an affidavit containing information about the parents’ offending conduct that has resulted in the child’s removal.6
The Juvenile Code, § 1104.1(C), provides in part that whenever a child is taken into custody as a deprived child, its parents or guardians are entitled to a show-cause hearing within 48 hours to determine why the child had been taken into custody or why it should not be returned to its parent.7
These statutory requirements have a constitutional dimension. The § 40.5(A) affidavit is an indispensable component of due process because it is to impart notice of the parents’ alleged offending conduct the State relies upon as its basis for the child’s removal. The trial court’s failure to conduct a § 1104.1(C) hearing denied the mother an opportunity to refute the petition’s allegations and hence to prevent the child’s removal.
Cognizance to decide custody placement in a preadjudicative phase of a deprived-status proceeding cannot be validly exercised unless it was acquired and assumed in strict conformity to the minimum standards of due process.8 Due process inexorably commands notice which reasonably informs a person that his legally protected interest may be adversely affected.9 Parents are unable to oppose an emergency *873removal of children unless the nature of the complaint against them is known. The information to be contained in the affidavit —which must include a “specific and detailed account of the circumstances” leading to removal of the child — is the first notice parents will ordinarily receive of the grounds for the impending juvenile proceeding. The affidavit’s importance is made clear when, as in the present case, the emergency orders and their extensions are obtained in ex parte proceedings.
B
The preadjudicative and merits stages of the deprived-status proceedings are jurisdictionally separable and distinct
A due process infirmity rising to a jurisdictional dimension may be presented for the first time when the nisi prius decision is challenged for its constitutional flaw on direct appeal.10 An emergency order, within the meaning of § 1104.1(C), is tantamount to process by which the court acquires jurisdiction over the preadjudicative (pendente lite) custody of the child.
The preadjudicative custody stage is to be viewed as jurisdictionally separable from the merits of the deprived-status proceedings. These stages draw on separate sources for the court’s assertion of its cognizance. The former stage calls for the exercise of judicial power over the child and the latter extends over the parents’ status. The merits stage focuses on the parents’ rights while the preadjudicative phase centers on the child’s present condition.11
The trial court’s preadjudicative stage jurisdiction was tainted by a fatally flawed process because the § 40.5(A) notice-giving affidavit was not attached to the 1986 emergency order. The mother was afforded neither the requisite notice nor an opportunity to challenge this preadjudicative custody determination. The 1986 infirmity in acquiring jurisdiction over the child’s pre-adjudicative custody was cured neither by waiver nor by the mother’s later appearances in the case to defend her embattled parental interest. The latter proceeding was jurisdictionally separate and distinct from the former.
C
The scope of the court’s review
The mother’s jurisdictional challenge goes to the very heart of the court’s power over the child’s status rather than to the correctness of an in-trial ruling and that power is subject to invalidation because of failure to give adequate notice at the critical preliminary stage of the proceeding. She brings a direct attack for want of a jurisdictional element — the power of the court to act. She argues that the procedure by which the power over her child first came to be asserted was fatally flawed. When jurisdiction over a judicial proceeding is acquired by a facially defective process, want of an objection interposed in the trial court is not a barrier to appellate review in the absence of a waiver. This is particularly so when the court gives no opportunity to challenge the tainted process by a hearing.12
*874We can presume neither the presence of jurisdictional prerequisites nor their waiver from a silent record.13 The record here does not reflect that an affidavit was attached either to the 1984 or the 1986 emergency order. Neither is there any record trial of a show-cause hearing afforded the mother within 48 hours of these emergency orders. In short, the record is absolutely devoid of a showing that at the preadjudi-cative custody stage jurisdiction was acquired by means that are constitutionally mandated. The child was taken away from the mother without the benefit of either the notice-giving affidavit or a hearing. Because the mother was not haled into court for a show-cause hearing, she had no duty to object to the defective process.
There are two distinct jurisdictional prerequisites for the preadjudicative and merits stages of a deprived-status proceeding. The mother’s right to due process was violated here in the initial assumption of jurisdiction over the preadjudicative stage. The only fit cure of this fatal defect is to vacate the preadjudicative decision and to require an immediate post-remand hearing that will address the placement issue pending adjudication of the merits.14
III BURDEN OF PROOF FOR ADJUDICATION OF AN INDIAN CHILD’S DEPRIVED STATUS
The mother contends that the State did not demonstrate by clear and convincing evidence that her conduct was likely to cause serious emotional or physical harm to N.L. This is so, she asserts, because the trial court did not rely on evidence from “qualified expert witnesses” within the meaning of § 1912. In short, her position is that the evidence at trial was not sufficient to affect her parental status.
Section 1912(e) of the ICWA provides that no foster care placement may be ordered unless there is
"... 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.”15 [Emphasis added.]
The BIA guidelines provide that under the ICWA an expert witness should have knowledge of tribal customs concerning family organization and child rearing practices. The expert may be a member of the tribe, one who has substantial experience in rendering family services to Indians, or a professional who has considerable education in his specialty.16 The guidelines. *875specify that poverty, alcohol abuse, or nonconforming social behavior is not evidence that the child should be removed from his Indian home. Rather, the state must demonstrate that a cause-and-effect relationship exists between the poverty or conduct and the potential for serious harm to the child.17
State courts have generally found that the term “qualified expert witness” in the context of the ICWA requires that the witness have experience with Indian culture and family organization. While this requisite exceeds typical social worker qualifications,18 the failure of experts to possess knowledge of Indian social practices is not necessarily fatal to the state’s case.19 Some courts have held that social workers qualify as expert witnesses because they come within the BIA term “professional persons having substantial education and experience in the area of his or her specialty.” 20 Other courts have found that testimony from a typical social worker can be properly admitted, but that it should be supplemented by an expert witness who has expertise in Indian family affairs.21
In this case, the district court heard testimony from the child welfare worker assigned to investigate N.L.’s status. She had some knowledge of the ICWA and limited experience with Indian children. Her testimony was relevant but it did not comport with the Act’s intent. One of the basic goals of the ICWA is to prevent state courts from making custody determinations involving Indian children without meaningful input about tribal family practices.22 The ICWA does not stray from the fundamental principle that the child’s best interests are paramount. The Act recognizes that the best interests concept must incorporate, for a legally effective custody decision, consideration of the child’s Indian background.23
I would hence reverse the deprived-status adjudication because no expert testimony was available as required by the ICWA. On remand, the district court should direct the State to produce testimony from persons with expertise in Indian family matters.
IV PLACEMENT PREFERENCE
Section 1915(b) requires that in a foster care or preadoptive placement determination the child should be placed, in the absence of good cause to the contrary, with:
“(i) a member of the Indian child’s extended family;
*876(ii) a foster home licensed, approved or specified by the child’s tribe;
(iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child’s needs.”24
The statutory norm was originally followed in this case when N.L. was placed with his maternal grandmother. The district court did not make an explicit finding as to why the court did not continue to follow statutory placement preferences when it changed custody from the maternal grandmother to the Huddlestons.
Because the trial court’s dispositional decision is fatally infirm, on remand it should determine if there was sufficient reason to reach for placement purposes outside the statute’s preferences. The court should consider that the “good cause” exception in § 1915, as with the issue of transfer to a tribal court (see Part V infra), was designed to allow state courts flexibility in rendering an Indian child custody decision.25 If the child’s best interests are served by a placement outside of the statutory preferences, then that placement should be upheld.
V TRANSFER OF CUSTODY DETERMINATION TO TRIBAL COURT WAS NOT WARRANTED IN THE PRESENT CASE
The mother asserts that various provisions of the state and federal ICWA, as well as the Juvenile Code, were violated during the proceedings below. She contends that the State failed to establish good cause for refusing to transfer this proceeding to her tribal court. Section 1911(b) of the ICWA provides that if an action involves an Indian child not domiciled on his tribe’s reservation then the case shall be transferred to the tribe’s jurisdiction “in the absence of good cause to the contrary.” 26
The question of transfer hinges upon the resolution of two issues: (1) the definition of “good cause to the contrary” and (2) which party must prove good cause exists. Good cause is not defined within the ICWA itself, but the Act's language appears to indicate that the burden of proof rests with the party opposing the transfer.
The legislative history of the ICWA indicates that the good cause exception to tribal court jurisdiction was designed to allow a state court to apply a “modified doctrine of forum non conveniens.”27 Generally in forum non conveniens cases, a court considers whether it has easy access to the sources of evidence, whether witnesses are available, the expense of bringing witnesses to trial and any other problems related to the expediency and expense of the trial.28 As modified for the Indian child custody context, forum non conveniens requires that state courts determine whether the tribal court is a less convenient forum. This determination must also consider the rights of the Indian parents, the Indian child and the tribe.29
The Bureau of Indian Affairs [BIA] has established guidelines that address the good cause issue.30 Though they are not *877binding,31 these guidelines indicate what the BIA believes to be necessary to the proper application of the Act. The guidelines require that a state court conduct an adversary hearing before deciding whether to transfer the action to a tribal court prior to determining the merits of the case.32 The burden of establishing good cause is cast on the State.33 The guidelines define good cause by listing several factors that the state court should examine when determining whether good cause exists.34 One of these factors is whether the evidence necessary to the case can be adequately presented in the tribal court without undue hardship to the parties or witnesses.
State courts have uniformly applied forum non conveniens when deciding whether good cause to deny a transfer exists,35 If virtually all of the witnesses and parties involved reside in the county of the state court and have-no contact with the tribal court, then transfer may be denied for good cause.36 In addition to the BIA guidelines, a state court may deny transfer if the state has by clear and convincing evidence shown that the best interests of the child would be injured by the transfer.37 State courts also follow the BIA guidelines with respect to the requirement that the state bear the burden of establishing that there is good cause not to *878transfer the proceeding.38
On the question of transfer in this case, the district court heard testimony from the Kaw Tribe representative, the Department of Human Services caseworker and witnesses relevant to the custody determination. The witnesses necessary to decide the custody issue are all located in Okmul-gee County — the neighbors who cared for N.L. during the mother’s absences and the families who have had, and continue to have, temporary custody of N.L. The Department of Human Services in Okmulgee County has investigated N.L.’s status throughout these custody proceedings. The mother is the only individual involved in this action who lives outside of Okmul-gee County.39 It is thus clear that under the doctrine of forum non conveniens, as incorporated in the BIA guidelines, there is ample reason to deny transfer to the tribal court because the entirety of the evidence relevant to the custody issue is located in the county of the state court.40
I would reverse (1) the preadjudicative custody determination, (2) the deprived-status adjudication and (3) the dispositional decision; I would remand the cause with directions (a) to forthwith issue a preadjudi-cative order with the attached affidavit required by law and (b) to conduct a hearing to determine, under application of proper procedure, the child’s preadjudicative custody placement and for further proceedings not inconsistent with the views I express in this opinion.
. 25 U.S.C. § 1912(e).
. The Federal Indian Child Welfare Act (P.L. 95-608) is codified in 25 U.S.C.A. § 1901 et seq. The state counterpart, known as the Oklahoma Indian Child Welfare Act, is found in 10 O.S. Supp.1982 § 40 et seq. The provisions pertaining to notice are found in § 1912 of the federal act and in § 40.4 of the state enactment.
. The terms of 10 O.S.Supp.1984 § 1104.1(C) provide:
“Whenever a child is taken into custody as a deprived child, the parents or guardian of the child are entitled to a hearing within forty-eight (48) hours of the child being taken into custody, and thereafter at such intervals as may be determined by the court, in order to show cause why such child has been taken into custody or why custody should not be remanded to the parents.” [Emphasis added.]
. See footnote 6 infra for the full text of 10 O.S.Supp.1982 § 40.5(A).
. See discussion in Part 11(C) infra.
. The terms of 10 O.S.Supp.1982 § 40.5(A) are:
"A. When a court order authorizes the emergency removal of an Indian child from the parent or Indian custodian of such child in accordance with 25 U.S.C. Section 1922, the order shall be accompanied by an affidavit containing the following information:
1.The names, tribal affiliations, and addresses of the Indian child, the parents of the Indian child and Indian custodians, if any;
2. A specific and detailed account of the circumstances that lead the agency responsible for the removal of the child to take that action; and
3. A statement of the specific actions that have been taken to assist the parents or Indian custodians so that the child may safely be returned to their custody.” [Emphasis added.]
. See footnote 3 supra for the full text of 10 O.S.Supp.1984 § 1104.1(C).
. York v. Halley, infra note 11 at 364; Pettit v. American Nat. Bank of Austin, infra note 10 at 529 and Carnley v. Cochran, infra note 13, 369 U.S. at 515, 82 S.Ct. at 890.
. The terms of Art. 2 § 7, Okl. Const., provide: "No person shall be deprived of life, liberty, or property, without due process of law.” Matter of C.G., Okl., 637 P.2d 66, 68 [1981]; Mullane v. Central Hanover Bank & Trust Co., 339 U.S. 306, 313-315, 70 S.Ct. 652, 657, 94 L.Ed. 865, 872-874 [1949] and Bomford v. Socony Mobil Oil Co., Okl., 440 P.2d 713, 719 [1968].
. See Johnson v. Zerbst, 304 U.S. 458, 462-463, 465-467, 58 S.Ct. 1019, 1022-1023, 1023-1024, 82 L.Ed. 1461 [1938]; Peralta v. Heights Medical Center, Inc., — U.S. -, 108 S.Ct. 896, 899, 99 L.Ed.2d 75 [1988] and Pettit v. American Nat. Bank of Austin, Okl., 649 P.2d 525, 529 [1982]. In Pettit the court allowed a foreign judgment to be attacked collaterally on due process grounds for lack of jurisdiction. Similarly, the mother here is attacking the validity of the proceeding applied against her and seeks to invalidate all the proceedings for want of due process in the initial notice-giving stage. This asserted error is not a procedural defect to be reached by an objection but rather a facially apparent jurisdictional infirmity. .
. It is clear from extant case law that preadju-dicative custody cognizance is structured by statute to give the trial court jurisdiction over the child while the parental status is clouded. See York v. Halley, Okl., 534 P.2d 363, 364-365 [1975], in which this court’s treatment of due process violations at the preadjudicative stage of the deprived status proceedings indicates its recognition of the separate nature of the preadjudi-cative and merits jurisdictional stages.
. The rule that errors sought to be presented on appeal must be preserved in the record by objection applies to issues in the adversary evi-dentiary process. See Wilson v. Levy, 140 Okl. 74, 282 P. 679, 681-682 [1929] and State Nat. *874Bank v. Lokey, 112 Okl. 82, 240 P. 101, 103 [1925]. On the other hand, the scope of review deals with the available breath of corrective relief that may be afforded in a given case. See Mayhue v. Mayhue, Okl., 706 P.2d 890, 892-893, 895 [1985], where the scope of review was limited by the judgment roll; see also Mobbs v. City of Lehigh, Okl., 655 P.2d 547, 549 [1982] and Timmons v. Royal Globe Ins. Co., Okl., 713 P.2d 589, 591 [1986], where in a post-appellate posture the scope of subsequent review was held to be confined by the settled law of the case.
. Matter of C.G., supra note 9 at 69; Faulkenberry v. Kansas City Southern Ry. Co., Okl., 602 P.2d 203, 206-207 [1979]; Carnley v. Cochran, 369 U.S. 506, 515, 82 S.Ct. 884, 890, 8 L.Ed.2d 70 [1962] and Johnson v. Zerbst, supra note 10, 304 U.S. at 464, 58 S.Ct. at 1023.
. In Peralta v. Heights Medical Center, Inc., supra note 10, 108 S.Ct. at 900, the Court reversed a Texas court decision which held that a default judgment entered without proper notice must stand absent a showing of a meritorious defense to the action. The Court found that a judgment entered without notice was constitutionally infirm and that this infirmity could only be corrected by "wiping the slate clean” in order to restore the petitioner to the position he would have occupied had due process of law been accorded to him in the first place. The Court noted that if an individual is deprived of his right to due process "it is no answer to say that in his particular case due process of law would have led to the same result because he had no adequate defense upon the merits.” Peralta, supra note 10, quoting from Coe v. Armour Fertilizer Works, 237 U.S. 413, 424, 35 S.Ct. 625, 629, 59 L.Ed. 1027 [1915]. The meritorious-defense requirement does not serve as a barrier to the appellant’s constitutionally protected right to notice in the trial court proceeding.
. 25 U.S.C. § 1912 [1982].
. Guidelines, D.4(b), infra at 67,593.
In 25 U.S.C. § 1952 the ICWA authorizes the Secretary of Interior to establish regulations necessary to implement the Act. Through the Bureau of Indian Affairs [“BIA"], the Secretary has issued mandatory rules and recommended guidelines for application of the ICWA. The *875rules are limited to narrow issues within the Act. See 25 C.F.R. §§ 13.1 — 13.16, 23.1-23.93 [1987]. The guidelines cover a broader range of subjects. See Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed.Reg. 67,-584-95 [1979] [Guidelines ]. See also, Trenta-due and DeMontigny, The Indian Child Welfare Act of 1978: A Practitioner’s Perspective, 62 N.D. L.Rev. 487, 518-521 [1986].
. Guidelines, D.3(b), and commentary, supra note 16 at 67,592.
. In re Welfare of Fisher, 31 Wash.App. 550, 643 P.2d 887, 888 [1982], the Washington Court of Appeals affirmed a state court’s termination of Indian parental rights and held that the caseworker qualified as an expert witness because she had counseling experience at an Indian center.
In State ex rel. Juv. Dept. v. Charles, 70 Or.App. 10, 688 P.2d 1354, 1360 [1984] the court held that testimony from social workers without Indian experience did not comply with the intent of ICWA. The court reversed the trial court’s decision to remove the child from the mother because the state failed to show that serious emotional or physical harm to the child was likely to occur.
In re Dependency of Roberts, 46 Wash.App. 748, 732 P.2d 528, 533 [1987], the court affirmed the termination of Indian parental rights and found that the caseworker was a qualified expert witness because she had experience and training in Indian child welfare. See also Matter of M.E.M. infra note 21 at 1317-1318.
. State ex rel. Juv. Dept. v. Charles, supra note 18 at 1360.
. D.W.H. v. Cabinet for Human Resources, 706 S.W.2d 840, 843 [Ky.App.1986]. The court affirmed the termination of an Indian parent’s custody even though the expert witnesses did not have any special knowledge of Indian society-
. Matter of M.E.M., 635 P.2d 1313, 1318 [Mont.1981].
. 25 U.S.C. § 1901(5) [1982]; see also, State ex rel. Juv. Dept. v. Charles, supra note 18 at 1359, n. 3, and 1360.
. 25 U.S.C. § 1902 [1982].
. 25 U.S.G. § 1915(b) [1982]. The terms of § 1915(a) provide that in adoption proceedings preference should be given to:
"1) a member of the child’s extended family;
(2) other members of the Indian child’s tribe; or
(3) other Indian families.”
. In re Interest of Bird Head, 213 Neb. 741, 331 N.W.2d 785, 791 [1983].
. 25 U.S.C. § 1911(b) [1982]. This section allows a transfer to the tribal court to be denied if either parent objects or the tribal court declines to assume jurisdiction.
. See Legislative History, Indian Child Welfare Act of 1978, H.R.Rep. No. 1386, 95th Cong., 2d Sess., p. 21 [1978], U.S.Code Cong. & Admin. News 1978, p. 7543.
. Jones, Indian Child Welfare: A Jurisdictional Approach, 21 Ariz.L.Rev. 1123, 1142 [1979].
. See Legislative History, supra note 27 at 21.
. See Guidelines, infra note 16.
. Guidelines, supra note 16 at 67,591 (Introduction).
. Guidelines, C.2 and C.3(d), supra note 16 at 67,590-67,591.
. Guidelines, C.2 and C.3(d), supra note 16 at 67,590-67,591.
. The terms of Guidelines, C.3(b)(i-iv), supra note 16 at 67,591, are:
"(i) The proceeding was at an advanced stage when the petition to transfer was received and the petitioner did not file the petition promptly after receiving notice of the hearing.
(ii) The Indian child is over twelve years of age and objects to the transfer.
(iii) The evidence necessary to decide the case could not be adequately presented in the tribal court without undue hardship to the parties or the witnesses.
(iv) The parents of a child over five years of age are not available and the child has had little or no contact with the child’s tribe or members of the child’s tribe.”
The Guidelines, supra note 16, also provide that a transfer should not be denied on the basis of socio-economic conditions, the adequacy of tribal social services, or the adequacy of the tribal court system. Guideline C.3(c), supra note 16 at 67,591. If there is no tribal court as defined by the Act, then the transfer may be denied. Guideline C.3(a), supra note 16 at 67,591. Tribal court is defined by the ICWA as a Court of Indian Offenses or a court established under the custom of a tribe, or any tribal administrative body which has authority over child custody determinations. 25 U.S.C. § 1903(12) [1982].
. In Interest of J.R.H., 358 N.W.2d 311, 317 [Iowa 1984]. The Supreme Court of Iowa upheld the state court’s refusal to transfer the action to a tribal court that was located in South Dakota. The court found that good cause to deny transfer could be based on “geographical obstacles.” The state agency had extensive contact with the family and the majority of the evidence and witnesses were located in Iowa. See also Note, In re Junious M.: The California Application of the Indian Child Welfare Act, 8 J.Juv.Law 74, 84 [1984]; Stetson, Conflict of Laws: The Plurality of Legal Systems: An Analysis of 25 U.S.C. § 1901-63, The Indian Child Welfare Act, 8 Am.Indian L.Rev. 333, 358 [1980] and Jones, supra note 28 at 1139.
. Matter of Adoption of Baby Boy L., 231 Kan 199, 643 P.2d 168, 178 [1982]. The Supreme Court of Kansas held that the ICWA was not applicable to adoption proceedings that concerned an illegitimate child of a non-Indian mother. The child had never been in the care of the Indian father and the mother objected to a transfer of the action to the tribal court. The court found that even if the Act were applicable, there would be good cause to deny transfer because all of the parties were located in the county of the state court and they had no connection with the tribal court. See also, In re Interest of Bird Head, supra note 25 at 790. The Indian child's maternal aunt appealed from a state court decision that terminated párente! rights and placed the child with the public welfare department for adoption. The Supreme Court of Nebraska affirmed the trial court’s denial of the aunt’s request to transfer the action to the tribal court. The denial was proper because most of the witnesses resided in the county of the state court.
. Matter of M.E.M., supra note 21 at 1317. The Supreme Court of Montana reversed the trial court’s decision to terminate parental rights of an Indian mother because counsel had not been appointed for her. As to the question of transfer, the appellate court directed the trial court to consider BIA guidelines, but said that "in addition thereto the best interests of the child could prevent transfer of jurisdiction upon a ‘clear and convincing1 showing by the State."
. Matter of M.E.M., supra note 21 at 1317.
. The mother’s address at the time of trial, according to the Okmulgee County Welfare Department, was Oklahoma County, but the caseworker noted that she had moved frequently and could not be found at the latest address she had given. The Court of Tribal Offenses is located in Tonkawa, and is thus not any more convenient for the mother to reach than the Okmulgee County court.
. It is also possible that another BIA factor is present in this case to suggest that a transfer is not warranted. Guideline C.l, supra note 16 at 67,590, requires that a petition to transfer be promptly filed. The mother’s transfer request was not filed until one year after she made her first court appearance, which was two years after the initial emergency order was rendered. The BIA guidelines recognize the disruptive effect of untimely transfer requests.
Additionally, a transfer may be denied because § 1918(a) of the ICWA has not been satisfied. The terms of § 1918(a) provide in pertinent part:
"Any Indian tribe which became subject to State jurisdiction pursuant to the provisions of the Act of August 15, 1953 ... or pursuant to any other Federal law, may reassume jurisdiction over child custody proceedings. Before any Indian tribe may reassume jurisdiction over Indian child custody proceedings, such tribe shall present to the Secretary for approval a petition to reassume such jurisdiction which includes a suitable plan to exercise such jurisdiction." [Emphasis added.]
The BIA regulations specifically state what must be included in the tribe’s petition to the Secretary, what is to be considered in the Secretary's decision on the matter and how the decision is to be reviewed. 25 C.F.R. 13.11-13.16 [1987]. Section 1918(a) was invoked in Native Village of Nenana v. Dept. of Health, 722 P.2d 219, 221 [Alaska 1986], which concerned whether an Indian child was in need of aid. Transfer of the action to the tribal court was denied because the tribe had not complied with § 1918(a). The court held that the ICWA was not intended to grant jurisdiction to Indian tribes until the Secretary had satisfactory proof that the tribe had the ability to adjudicate properly the case.