People ex rel. M.H.

ZINTER, Justice

(dissenting).

[¶ 26.] The trial court, in exercising its gatekeeping function under SDCL 19-15-2 (Rule 702), heard substantial (and conflicting) evidence of Eirinberg’s training and experience in Indian culture, community, and childrearing practices.8 Much of that evidence is not set forth in the majority and concurring opinions of the Court. See, e.g., infra, ¶¶ 28-32, 35-36. Because the Court does not acknowledge this other evidence of Eirinberg’s qualifications, because it does not consider all relevant cases, and because it fails to apply the abuse of discretion standard of review, I respectfully dissent.

Standard of Review

[¶ 27.] In determining the qualifications of a proposed ICWA expert, this Court is limited to the abuse of discretion standard of review. In re D.M., 2003 SD 49, ¶ 19, 661 N.W.2d 768, 773. See also, In re K.H., 294 Mont. 466, 981 P.2d 1190, 1193 (1999). Under that standard, “[t]he qualifications and competency of a witness to give opinion evidence [on ICWA issues] is primarily in the discretion of the trial court and [the trial court’s] ruling in determining qualifications will not be disturbed unless there is no evidence that the witness had the qualifications of an expert. ...” In re K.A.B.E., 325 N.W.2d 840, 844 (S.D.1982) (emphasis added) (citation omitted).

Evidence of Qualifications

[¶ 28.] There is substantial evidence, not mentioned in the Court’s opinion that establishes Eirinberg’s experience and knowledge of Indian culture, Indian family structure, and Indian childrearing practices. The record reflects that Eirinberg’s knowledge was developed over approximately fourteen years of work with Indian people in the area of child abuse and the ICWA. He began that work, almost exclusively with Indian tribes, in 1989. From 1989 to 1997, he was employed by the Yankton Sioux Tribe as a prosecutor and defense attorney in abuse and neglect, family, and juvenile cases. In that employment alone, he worked with between one thousand and two thousand Indians on the Reservation.

[¶ 29.] Eirinberg then spent the next three years working for the Ponca Tribe as that Tribe’s lawyer, representing abused and neglected children. He handled those cases in tribal and state court, intervening on behalf of the Tribe all over the country (sometimes making motions to transfer cases to tribal court). The trial court heard specific evidence that this employment required him to “review cases that came into the Tribe and work with various social workers for the Tribe to determine what was in the best interests *630of the Tribe and their children and represent their children in state courts when necessary.” During this same period of time, he was also the Ponca Tribe’s ICWA Specialist/Director, and he assisted in the preparation of that Tribe’s abuse and neglect code.

[¶ 30.] Eirinberg’s latest work experience included employment as a special prosecutor for the Flandreau Santee Sioux Tribe and as a lawyer for the Yankton Sioux Tribe on ICWA matters. He continues to represent Indian clients on the Yankton Sioux Reservation, and he was working for the Winnebago Tribe at the time of trial.

[¶ 31.] Eirinberg’s work experience on Reservations allowed him to study Indian culture, and he testified that he was actually in over one hundred homes interacting with tribal members. As a result, he testified that he knew about “Sioux culture” from his work with the Ponca Tribe and the Yankton Sioux Tribe. Most critical to this case, he provided unrefuted testimony that there were no substantial differences in childrearing practices among the relevant tribes, including the Cheyenne River Sioux Tribe.

[¶ 32.] The record also reflects that Eirinberg had specialized training on the ICWA. He testified that he had read well over one hundred law review articles in this area, had attended numerous ICWA training courses, was a member of the National Indian Child Welfare Association, and had recently completed that Association’s course on the ICWA. Eirinberg further indicated that he had previously qualified as an expert in Minnehaha and Lincoln Counties, and he had been recognized as both an expert on ICWA “and as a qualified expert witness at the disposi-tional phase” of ICWA proceedings.

[¶ 33.] Considering this evidence, the trial court found that Eirinberg had “substantial education and experience in this specialty and that’s regarding [the] Indian Child Welfare Act and also the culture and termination of Indian children and their parental rights.... ” I agree. In fact, in my view, the state’s showing is a textbook example of the qualification of an expert witness, and it certainly satisfies the some evidence abuse of discretion standard of review required by K.A.B.E. Id.

Relevant Caselaw

[¶ 34.] This Court reverses the trial court, concluding that an ICWA expert must have “specifics concerning the CRST’s unique culture or the available tribal services.... ” See supra ¶ 13. There are two problems with this conclusion. First, this type of objection regarding specifics goes to the weight of the expert’s opinion rather than its admissibility. More importantly, a “specifics” standard is not required by the authorities cited by the Cheyenne River Sioux Tribe, Mother, and Father. In fact, the Cheyenne River Sioux Tribe’s primary authority specifically rejects such a requirement:

Although we do not hold that an expert ICWA witness qualified under subpart three of the Guidelines must be fluent in the cultural standards of a particular Indian tribe, we conclude that it is highly preferable that any expert' witness qualified for purposes of ICWA — particularly a non-Indian expert witness— possess significant knowledge of and experience with Indian culture, family structure, and childrearing practices in general.

K.H., 981 P.2d at 1197.

[¶ 35.] It is also significant that even if we were to adopt the particular tribe requirement rejected in K.H., Eirinberg satisfied that requirement through his knowledge of the similarity of childrear-ing practices among all regional tribes. *631His particularized knowledge was established through his experience with the Yankton Sioux Tribe and by talking with other experts. From that experience, he was aware of the differences in culture, but the similarity of childrearing practices. More specifically, with respect to culture, Eirinberg indicated that he had “some insight, but ... not the particular cultural practices of the Cheyenne River Sioux Tribe.” However, he then explained, without contradiction, that the Yankton Sioux Tribe “is culturally, fairly culturally similar to the other eight Sioux tribes in South Dakota and North Dakota and I’m fairly familiar with their cultures.” Thus, even under a “particular culture” requirement, there was some record evidence of similarity sufficient to satisfy the abuse of discretion standard of review.

[¶ 36.] More importantly, even if Eirin-berg possessed no knowledge of cultural differences, an allegation not supported by the record, he unequivocally testified that he did have “specific knowledge of the childrearing practices.” Eirinberg explained, again without contradiction, that there were not “significant differences in childrearing practices among the nine Sioux Tribes. They have different cultural practices, but the childrearing practices are essentially the same.” Consequently, even though Eirinberg admitted the four deficiencies noted by this Court,9 he still possessed specific knowledge of the chil-drearing practices necessary to assist the court in making a dispositional decision under the ICWA.

[¶ 37.] In its brief, the Cheyenne Sioux River Tribe notes “that the type of witness being referred to [in the federal law and regulations is] one who could assist the Court in determining whether the child-rearing practices exhibited by the parents were eulturally-appropriate.” I agree, but believe that Eirinberg’s fourteen years of experience with thousands of clients was sufficient evidence to satisfy an abuse of discretion standard of review. After all, the ICWA expert is needed to answer two questions:

[f]irst, is it likely that the conduct of the parents will result in serious physical or emotional harm to the child? Second, if such conduct will likely cause such harm, can the parents be persuaded to. modify this conduct?

BIA Guidelines for State Courts: Indian Child Custody Proceedings, 44 Fed.Reg. 67584 at 67593 (November 26, 1979). Furthermore, according to the BIA commentary, the test for experts proposing to answer these questions is simply whether the proposed expert “is qualified by reason of educational background and prior experience to make judgments on those questions that are substantially more reliable than judgments that would be made by nonexperts.” Id. Certainly, someone with Eirinberg’s extensive experience would provide more reliable judgments on these two questions than a nonexpert.

[¶ 38.] Finally, it must be emphasized that today’s opinion is at odds with our two previous cases reviewing a trial court’s decision to qualify an ICWA expert. In both cases, this Court found no abuse of discretion on records concerning experts with qualifications that were less than or equal to those possessed by Eirinberg.

[¶ 39.] For example, in K.A.B.E., 325 N.W.2d at 844, this Court found no abuse of discretion in a trial court’s qualification of two witnesses with no experience unique to a particular tribe. Moreover, the foundation for their expertise was substantially inferior to that possessed by Eirinberg. The record in K.A.B.E. only reflected that *632one witness had “contact with Indians on a regular basis” and that the other witness was employed by a child care agency that served approximately thirty percent Indian children. Id. at 843. The entire extent of the qualifications approved by this Court in K.A.B.E. consisted only of the following:

The witnesses who testified were a social worker with the South Dakota Department of Social Services and the Director of the Children’s Inn in Sioux Falls. The social worker has worked as such for over four years. She has a bachelor of arts degree in social work and has had contact with Indians on a regular basis. The Children’s Inn is a shelter and resource center for children and parents involved with child abuse. The Director had a bachelor of science degree in social work and a year towards her master’s degree. Approximately 30% of the children utilizing the Children’s Inn are Indians.

Id. Notwithstanding this clearly less substantive and substantially more generalized foundation, this Court held “that sufficient evidence exists as to the qualifications of both witnesses under the ICWA.” Id. at 844.

[¶ 40.] On the other hand, in DM. this Court found no abuse of discretion in qualifying a state child protection manager with qualifications similar to those possessed by Eirinberg. The entire extent of the foundation approved in DM. included the following:

[The proposed expert’s] testimony revealed that she possessed the following qualifications: she managed the child protection program for five counties in South Dakota, including an area encompassing the Pine Ridge Indian Reservation; she had been employed by DSS for approximately fifteen years; she had prior experience in handling delinquent youth; she worked with tribal court and tribal agencies; she worked with Native American clients of the child protection program; she had attended several trainings relating to issues of family violence and child services for Native American families; she had attended trainings on ICWA and had previously been qualified as an ICWA expert.

2003 SD 49, ¶ 20, 661 N.W.2d at 773. Despite this similar foundation, this Court held that “[b]ased on these qualifications, the trial court did not abuse its discretion in determining the witness was a qualified expert under ICWA.” Id.

[¶ 41.] Under the doctrine of stare de-cisis, we should decide similar cases in a similar manner. When I compare the sufficiency of the foundation approved in K.A.B.E. and DM. to that presented here, I find it impossible to conclude that this trial court abused its discretion. Eirin-berg’s experience and training were more substantial than the others we have previously approved. Moreover, while neither of our prior decisions required any evidence of the specifics of the culture of the tribe at issue, Eirinberg provided record evidence of specifics through his consultation with other experts and his experience with similar tribes. And finally, even though there are differences in culture, this record contains uncontested evidence that the childrearing practices with which Eirinberg was familiar were not different from those of the Cheyenne River Sioux Tribe. Thus, this inconsistency in our decisions leaves future trial courts with an impossible dilemma: should they qualify a witness based upon the foundations approved in K.A.B.E. and D.M., or should they disqualify a witness with the more extensive foundation that the Court rejects today?

[¶ 42.] The result in this case is inconsistent with our prior decisions and the *633primary authority relied upon by the Cheyenne River Sioux Tribe. The Court’s decision also fails to acknowledge all of the foundational evidence presented to the trial court. “[T]he trial court and [its] ruling in determining qualifications will not be disturbed unless there is no evidence that the witness had the qualifications of an expert....” K.A.B.E., 325 N.W.2d at 844 (emphasis added). Because there is record evidence to support the trial court’s decision to qualify Eirinberg as an expert, the trial court did not abuse its discretion.

. I acknowledge that there is conflicting evidence concerning the precise level of Eirin-berg’s knowledge of Cheyenne River Sioux culture. However, Eirinberg unequivocally indicated that he was familiar with the relevant childrearing practices. See infra, ¶ 36.

. See supra, ¶ 13.