(dissenting).
I dissent from the majority opinion because I believe that the notice provision of 25 U.S.C. § 1912 was violated on the basis of both the sufficiency of the substance of the notice and the timing of the notice.
The majority cites Gridley v. Engelhart, supra, and relies on the rule of substantial compliance to find the notice sufficient under the Indian Child Welfare Act (ICWA). Although a rule of substantial compliance may suffice to carry out the notice provisions of statutes governing mundane matters of property law, see, e.g., Gridley, supra, more is required when the interests at stake are as important as those protectedt by the ICWA. Neither the state’s attorney’s letter nor the social worker’s affidavits so much as mention a right of intervention. Even if a rule of substantial compliance should apply to ICWA cases, application of the rule would be strained to uphold the notice given in this case.
In an apparent attempt to excuse the type of notice given by the State, the ma*57jority notes that the ICWA had been in effect for only two weeks. This fact, however, augmented, not lessened, the state’s attorney’s duty to explicitly inform the tribe of its right of intervention.
The letter and affidavits did not constitute timely notice. In the policy statement of 25 U.S.C. § 1902, Congress supported the “establishment of minimum Federal standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture.” 25 U.S.C. § 1912 bolsters this policy by providing that a party seeking foster placement of an Indian child must notify the child’s tribe of its right of intervention, and by providing that no foster care placement proceeding shall be held until at least ten days after the tribe receives notice. On May 25, 1979, the parents appeared before the trial court and consented to the Department of Social Services’ foster care placement. No notice of any kind was sent to the tribe until June 27, 1979. Notice sent at this time not only violated a specific provision of 25 U.S.C. § 1912, but was in contravention of a major policy behind the ICWA — that the arguments and desires of a tribe be considered by a state court before the State'removes Indian children from the home.
25 U.S.C. § 1914 provides that if in a foster care placement or termination of parental rights action, any provision of 25 U.S.C. § 1912, the intervention statute, is violated, the state court can be petitioned to invalidate its action. As one commentator on the ICWA explains:
The right to intervene also is virtually meaningless unless notice of the proceedings is prompt and reliable and unless placements that have been made without adequate notice can be reversed. The Act expressly provides for reversal. If denied notice or the opportunity to intervene, the child’s parent or tribe may petition for new proceedings.
R. Bash, The Indian Child Welfare Act of 1978: A Critical Analysis, 31 Hastings L.J. 1287, 1314 (1980). The notice in this ease was neither prompt nor reliable. The trial court, therefore, was justified in granting the parents’ request for new proceedings.
Contrary to what is implied in the majority opinion, an objection to transfer of jurisdiction under an invalidated action does not prevent consent to a transfer of jurisdiction under new proceedings. After the trial judge set aside the decree of disposition, the parents sent written consent to transfer of jurisdiction to the tribal judge, and the tribal court requested transfer of jurisdiction from the state court. The trial court, therefore, was justified under 25 U.S.C. § 1911 in transferring jurisdiction to the tribal court.*
This court has consistently required compliance with the provisions of the ICWA. See People in Interest of C.R.M., 307 N.W.2d 131 (S.D.1981); Matter of J.L.H. and P.L.L., 299 N.W.2d 812 (S.D.1980); Matter of Guardianship of D.L.L. and C.L.L., 291 N.W.2d 278 (S.D.1980). I see no reason why we should stray from that position in this case.
I would affirm the orders of the trial court.
The majority contends that the trial court had a right to refuse transfer on the basis of the “good cause to the contrary” provision of 25 U.S.C. § 1911(b). It is the State, however, which has the burden of showing “good cause to the contrary.” See Matter of 635 P.2d 1313 (Mont.1981). By not setting forth reasons for “good cause to the contrary” at the appropriate hearings, the State obviously did not meet that burden.