dissenting:
I.
I must respectfully dissent. I concur with Justice Hodges insofar as he believes the majority errs in holding that this moth*690er may appeal the Tribe’s denial of its motion to intervene. There is no provision in the Indian Child Welfare Act or other authority which supports finding that this mother or any third party had the capacity to raise the rights and interests of the Tribe on appeal. The Tribe did not appeal and any issues regarding the trial court’s ruling on its attempted intervention have been abandoned and may not be presented by another.
II.
To my mind, however, there remains a threshold question as to the applicability of the Act which might deserve the additional consideration of this Court — a question as to the applicability of the Act to intra-family custody disputes in the first place.
As noted by the Supreme Court in Mississippi Band of Choctaw Indians v. Holy-field, 490 U.S. 30, 109 S.Ct. 1597, 1600, 104 L.Ed.2d 29 (1989), the Act was the “product of rising concern in the mid-1970’s over the consequences to Indian children, Indian families, and Indian tribes of abusive child welfare practices that result in the separation of large numbers of Indian children from their families and tribes through adoption or foster care placement usually in non-Indian homes.” The Court noted that findings of Congress incorporated into the Act reflect the concern:
“(4) that an alarmingly high percentage of Indian families are broken up by the removal, often unwarranted, of their children from them by non-tribal public and private agencies and that an alarmingly high percentage of such children are placed in non-Indian foster and adoptive homes and institutions ... 25 U.S.C. § 1901.”
The express declaration of Congressional policy in the enactment of the Act is:
“... that it is the policy of this Nation to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by 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, and by providing for assistance as Indian tribes in the operation of child and family service programs.” 25 U.S.C. § 1902.
We are not faced here however, with a situation involving abusive practices by a public or private agency seeking to remove an Indian child from his family and arbitrarily place him in an non-Indian foster or adoptive home or institution. Neither is this the type of guardianship matter envisioned in 25 U.S.C. § 1903. This is an intra-family custody dispute that arises from the mother’s unquestioned serious drug and substance abuse problems. The boy’s paternal grandparents were concerned that his welfare would be in jeopardy if he remained with his mother and they sought his custody. These are not strangers to the boy or his Indian environment or persons who are representative of abusive and insensitive welfare practices. They are his own grandparents and they come within the definition of “extended family” in the Act. Their evidence convinced the trial court that the child’s best interests would be served by living with them and the majority opinion makes no finding that the court’s judgment in that regard was not supported by clear and convincing evidence, although such evidentiary failings are urged on appeal by the mother.
The Supreme Court of Montana addressed the issue of this intra-family limitation of the scope of the Act in Application of Bertleson, 617 P.2d 121 (Mont.1980), an internal family custody dispute which involved a non-Indian mother and Indian paternal grandparents. I am persuaded that the Court reached the correct result in holding that the Indian Child Welfare Act did not apply to such a situation. That Court held:
“[This] dispute does not fall within the ambit of the Indian Child Welfare Act. The Act is not directed at disputes between Indian families regarding custody of Indian children; rather, its intent is to preserve Indian culture values under circumstances in which an Indian child is placed in a foster home or other protec*691tive institution. The House Report sets forth the essential thrust of the act:
‘. to protect the best interests of Indian children and to promote the stability and security of Indian tribes and families by establishing minimum Federal Standards for the removal of Indian children from their families and the placement of such children in foster or adoptive homes or institutions which will reflect the unique values of Indian culture H.R.Rep. No. 95-1386, 95th Cong., 2d Sess. 21, reprinted in [1978] U.S.Code Cong. & Admin.News, p. 7530.
“The issue here is not which foster or adoptive home or institution will best ‘reflect the unique values of Indian culture ... ’ Rather, the present case involves an internal family dispute between the mother and the paternal grandparents over the custody of the child.” Id., at 125.
In the instant case, the majority reverses the trial court’s order placing custody of this child with his grandparents in spite of the fact that all the procedural safeguards and requirements of the Act were met except for allowing the Tribe to intervene, and the Tribe does not appeal that denial. Although I do not believe that this situation comes within the intended scope of the Act, it appears that even with the Tribe’s participation, the same result would be reached by the trial court. The Act does not give Indian relatives priority over non-Indian relatives with regard to placement of custody of Indian children. As the majority notes, the Act provides that in the placement of Indian children first preference shall.be given to a member of the child’s extended family. 25 U.S.C. § 1915. An “extended family member” under the Act “shall be defined by the law or custom of the Indian child’s tribe or, in the absence of such law or custom, shall be a person who has reached the age of eighteen and who is the Indian child’s grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or stepparent.” 25 U.S.C. § 1903.
I would affirm the trial court.
I am authorized to state that Justice LAVENDER and Justice HARGRAVE join with me in the views expressed above.