dissenting:
I dissent from the result of the majority opinion. This cause should be affirmed in accordance with the order of District Court Judge Joseph Gary, dated October 13,1988. In endeavoring to do justice to this four-and-one-half-year-old child born in the State of Montana, Judge Gary noted in his memorandum that she is entitled to protection of the laws of Montana. Those protections through statutory and case law of this State are carefully directed to the ultimate “welfare of the child in adoption proceedings.” This Court has noted in a number of cases where Indian children are involved that we consider the welfare of the child even though Congress, in its passage of the Indian Child Welfare Act of 1978, has put the welfare of the tribe over the best interest of a child.
Judge Gary carefully directed his decision considering the multiple bodies of crisscrossing law including Montana statutes, the Uniform Child Custody Jurisdiction Act (UCCJA), the Federal Indian Child Welfare Act (ICWA), the White Mountain Apache Tribe Jurisdiction Code, and the United States Constitution. He noted that in the four-and-one-half-years of her short lifetime, this child has lived one year and several months with the Collins family in Colorado, the family trying to adopt her; part of one year with her natural mother on the Apache Indian Reservation; one year and several months with a tribal foster family; six months with her natural mother and her mother’s adoptive parents in Montana; and then back to the Collins family in Colorado. He further noted that “surely such an undesirable situation would be viewed by any court or any culture as intolerable.” For that reason, it was the District Court’s paramount desire to provide some stability in the child’s life once and for all.
In an over twenty page written order, which accompanied his opinion, the District Court carefully considered both the question of “retained jurisdiction” by the tribe and the question of whether Michelle shall remain a “ward” of the Apache court. The District Court noted that from tribal laws and procedures, the most revealing information gleaned from the orders of that court is that it put an emphasis on the certified order lodging “exclusive jurisdiction under the ICWA on the basis of domicile on the reservation.” He further noted that the juvenile court stated that there is exclusive jurisdiction “[a]s the mother is domiciled on the reservation and therefore her child is likewise considered by this court to be domiciled therein.” In addition the court noted that under the federal law “concurrent jurisdiction is a concept that is embraced in the *466Indian Child Welfare Act. That Act is replete with references to State courts and procedures required by the same for the adoption of Indian children.” Further the court noted that the Supreme Court of Kansas, in In re Matter of Adoption of Baby Boy L (1982), 231 Kan. 199, 643 P.2d 168, exhaustively studied the ICWA. While the facts of Baby Boy L are different than those in the case before Judge Gary the principles are applicable. The purpose of the ICWA set forth in 25 U.S.C. § 1902, provides that the purpose is to:
“promote the stability and the 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 to Indian tribes in the operation of child and family services programs.”
In Baby Boy L, the Kansas court held that since the child was never a member of the Indian family on the reservation, the ICWA was not applicable.
Baby Boy L was then considered by the Tenth Circuit Court of Appeals in the Kiowa Tribe of Oklahoma v. Lewis (1985), 777 F.2d 587 at 592, where the Court of Appeals, in interpreting 25 U.S.C. § 1914, said as follows:
“Congress intended the ICWA to set minimum standards and procedural safeguards for state child custody proceedings. [Citations omitted.] In setting such standards, Congress evidently believed that an Indian child’s tribe should be involved in the process even when the proceedings are in state courts rather than tribal courts. [Citations omitted.] Thus Congress clearly realized that state courts would continue to resolve some cases of Indian child custody. Section 1911(c) expressly gives the child’s Indian tribe the right to intervene in state court proceedings involving the child’s custody. We cannot read § 1914’s reference to ‘any court of competent jurisdiction’ as the type of clear and manifest authorization that federal courts need before they upset the ordinary principles of federal-state comity embodied in 28 U.S.C. § 1738 and the Full Faith and Credit Clause. It seems rather to state simply where such actions may initially be brought. Regardless of whether we agree with the Kansas Supreme Court’s construction of the ICWA, here we must honor the judgment it has rendered on the subject.”
Judge Gary goes further in his memorandum and adopts the Kansas court’s position that since the child in question is not domiciled *467within the reservation, it is not necessary to transfer the proceedings to the jurisdiction of the tribe if opposed by either parent. In this case, the mother of the child is objecting to the transfer of the custody to the Indian tribe.
Exclusive jurisdiction is mandated only when the Indian child resides on or is domiciled within the reservation, or when an Indian child is a ward of the court. I would agree with Judge Gary and give full faith and credit to the declaration of the White Mountain Apache court of their continuing jurisdiction, but would agree with his finding that Michelle is neither a ward nor a resident of the tribe at the time of the order and that the adoption proceedings should proceed and be approved for the Collins family.
JUSTICE BARZ joins in the foregoing dissent of JUSTICE HARRISON.