Matter of MRDB

No. 88-605
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990

IN THE MATTER OF THE PARENTAL
PLACEMENT OF M. R. D. B.,
a minor child.

APPEAL FROM: ~istrictCourt of the Eighteenth Judicial ~i$trki:kt,
In and for the County of Gallatin, c -i
C3
The Honorable Joseph Gary, Judge presiding,.
COUNSEL OF RECORD:
For Appellant:
Claudeen Bates Arthur argued, General Counsel, White
Mountain Apache Tribe, Whiteriver, Arizona
D. Michael ~ a k i n ,Montana Legal services, (of counsel),
Billings, Montana
For Respondent:
Mark A. Bryan argued; Bryan & ~tkins,Bozeman, Montana

Submitted: September 25, 1989
Decided: February 14, 1990
Filed:
Justice John C. Sheehy delivered the Opinion of the Court.

The appellant, White ~ountain Apache Tribe, filed a
motion to dismiss the pending adoption proceedings in the
District Court, Eighteenth ~udicial District, all at in
County, for lack of jurisdiction under 25 U.S.C. § 1911(a) of
the Indian Child Welfare Act (ICWA). The appellant contended
in District Court that the minor child Michelle Rae Dawn
Baier (~ichelle) is a ward of the White Mountain Apache
Tribal Council and pursuant to 25 U.S.C. S 1911 (a), the
Tribal Court had exclusive j.urisdiction over proceedings
involving the child. The District Court denied the Tribe's
motion to dismiss holding that the ~ r i b a lCourt maintained
continuing but not exclusive jurisdiction and therefore, the
Montana court had concurrent jurisdiction. It is from this
order the White ~ountainApache ~ r i b eappeals. We reverse.
Oliviane ~ a r i eBaier (Oliviane), the natural mother of
the child, is a full-blooded White ~ountainApache and an
enrolled member of the ~ r i b e . ~livianewas adopted by Harold
and Betty ~ a i e r ,non-~ndians,and raised in alla at in County,
Montana, from 1972 to 1982.
prior to her pregnancy, in A.ugust of 1982, Oliviane
moved from Montana to the White Mountain Apache Reservation.
Oliviane traveled to 'the reservation to become acquainted
with her biological family. In January of 1983, she returned
to Montana. On March 5, 1984, in Billings, Montana, Oliviane
gave birth to Michelle, a one-half blood white Mountain
Apache. The father is unknown.
Shortly after ~ichelle's birth, on March 18, 1984,
Oliviane placed Michelle with Dr. James and J.udith Collins
(the Collins) of Fort Collins, Colorado, for adoption. In
August of 1984, after placing the child with the Collins',
Oliviane returned to the reservation and completed her high
school education. She remained on the reservation until
1988.
After waiting the time required by Colorado law, on
March 13, 1985, Collins filed a petition for adoption.
However, on May 22, 1985, with the assistance of the white
Mountain Apache Tribe, Oliviane withdrew her consent to the
Colorado adoption.
On May 29, 1985, Oliviane and the White Mountain Apache
Tribe jointly petitioned the White Mountain Apache Tribal
Court to accept jurisdiction pursuant to the ICWA. The
following day the Tribal Court held a hearing on the
petition. After the hearing, the Tribal Court issued an
order accepting jurisdiction over the care and custody of the
child. It provided that unless otherwise ordered by the
Tribal Court, the care and custody of the child would be with
her natural mother, that the White Mountain Apache ~ r i b a l
Social Services was to keep the court informed on a weekly
basis regarding the care of the child; and that the court
would set the case for review.
prior to Michelle being brought to the reservation,
proceedings had been filed in Colorado alleging that Oliviane
had neglected and abandoned Michelle. In view of the
seriousness of these allegations against Oliviane, the Tribal
Court set the matter for review on July 3, 1985. After
hearing testimony and examining the psychological evaluation
and personality assessment of Oliviane, the Tribal Court
ordered that it would retain jurisdiction of Michelle; that
Michelle shall remain a ward of the court; that the Tribal
Social Services shall provide the court with reports on
Oliviane's visitations of Michelle and assessments thereof;
and further provide the court with a rehabilitative plan to
reunite the family.
 On July 25, 1985, the Colorado court, recognizing and
giving full faith and credit to the Tribal Court orders,
dismissed the adoption proceedings and ordered Michelle to be
turned over to the Tribal Court Social Services. Michelle
was brought to the reservation on July 26, 1985. Although
Michelle was a ward of the Tribal Court, and under the super-
vision of the Tribal Social Services, Oliviane was given
physical custody of Michelle.
On May 27, 1986, the Tribal Court ordered Michelle
removed from Oliviane's physical custody for ~ichelle'sown
protection. The Tribal Court again affirmed the wardship and
Michelle was placed with an 1ndian foster family on the
reservation. On December 2, 1986, ~liviane filed a motion
for return of custody. in ally, on October 23, 1987, the
Tribal Court heard Oliviane's motion for return of custody.
The ~ r i b a lCourt allowed Oliviane to regain physical custody
of the child, indicating its expectation that Oliviane would
raise the child in her home. Furthermore, the court ordered
Oliviane to participate in a home study and evaluation to be
accomplished before December 8, 1987.
On November 15, 1987, Michelle was taken to Bozeman,
Montana, with her grandparents. Later, on December 18, 1987,
the Tribal Court issued an order requiring Oliviane to
complete psychological evaluations as ordered on October 26,
1987, and to file them with the Tribal Court.
In January of 1988, Oliviane returned to Bozeman and
enrolled as a student at Montana State university. Since
January, 1988, Oliviane has remained in Montana and has not
returned to the reservation. On February 22, 1988, The
Collins' filed a notice of parental placement with the Dis-
trict Court of the Eighteenth Judicial District. On February
25, 1988, Oliviane placed Michelle with the ~ollins'pursuant
to the Montana private Placement Adoption Law. Finally, on
March 31, 1989, Oliviane complied with the Tribal Court order
of October 26, 1987, and December 18, 1987, by submitting an
evaluation by Dr. Straynham to the Tribal Court.
On April 20, 1988, a hearing was held in Montana Dis-
trict Court where Oliviane confirmed her consent to the
adoption and the court ordered an investigation. On May 3,
1988, after receiving notice of the Montana proceedings, the
Tribe filed a motion to dismiss for lack of jurisdiction with
the District Court. The Tribe also filed a petition in the
Tribal Court for an order directing Oliviane to show cause
why the custody order the ~ r i b a l Court should not be
modified.
On May 13, a hearing was held in Montana District Court.
A stipulation was entered into between the ~ r i b a lCourt, the
Collins', and Oliviane leaving temporary custody of Michelle
with the Collins' pending further proceedings of the ~istrict
Court.
On May 27, 1988, the ~ r i b a lCourt issued an order find-
ing Oliviane in contempt of the October 26, 1987 order.
Furthermore, the court stated that Michelle was a ward of the
court, and ordered ~ichellebe returned to the custody of the
Tribal Social Services.
On June 1, 1988, the Tribe filed a motion for emergency
modification of the ~istrict Court's order of temporary
placement of the child with the Collins', and requested that
the court order all parties to comply with the May 27, 1988
Tribal Court order.
On October 13, 1988, the Montana ~istrict Court order
denied the ~ r i b e ' smotion to dismiss and motion for change of
temporary custody and set a date for the final hearing of the
adoption. The District Court in its order found that
Michelle was not a ward of the Tribal Court, thus the Tribal
Court lacked. exclusive jurisdiction over Michelle.
Furthermore, the District Court asserted it held concurrent
j urisdiction over the adoption proceeding pursuant to 25
U.S.C. 1911(b) of the ICWA.
The Tribe raises a number of challenges to the ~istrict
Court's rulings, but the pivotal issue is whether the
District Court properly decided that it had jurisdiction.
Because it did not, this appeal may be resolved without
reaching the remaining issues.
The Indian Child Welfare Act of 1978, 25 U.S.C. 5 5
1901-1963 was the product of rising concern in the mid-1970's
over the consequences to 1ndian children, 1ndian families,
and Indian tribes of abusive child welfare practices that
resulted in the separation of large numbers of 1ndian
children from their families and tribes through adoption or
foster care placement, usually in non-Indian homes.
Mississippi Choctaw v. Holyfield (1989), - U.S. , 109
S.Ct. 1597, 1599-1600, 104 L.Ed.2d 19, 36. Studies
undertaken by the Association on American Indian ~ f f a i r sin
1969 and 1974, and presented in ICWA Senate hearings, showed
that 25 to 35 percent of all 1ndian children had been
separated from their families and placed in adoptive
families, foster care or institutions. Mississippi Choctaw,
- U.S. , 109 S.Ct. at 1600, 104 L.Ed.2d at 36. H.R.
Rep. no. 95-1386 at 9 (1978).
The Senate and House ~earings not only focused on the
devasting impact to Indian families separated by abusive
foster care practices, but also on the harm to the tribes
themselves by the wholesale removal of their children.
Mississippi Choctaw, - U.S. , 109 S.Ct. at 1600, 104
L.Ed.2d at 37. For example, Calvin Isaac, Tribal Chief of
the Mississippi Band of Choctaw Indians and representative of
the National Tribal Chairmen's ~ssociation testified as
follows:
 Culturally, the chances of Indian survival are
significantly reduced if our children, the only
real means for the transmission of the tribal
heritage, are to be raised in non-Indian homes and
denied exposure to the ways of their People.
Furthermore, these practices seriously undercut the
tribes' ability to continue as self-governing
communities. Probably in no area is it more
important that tribal sovereignty be respected than
in an area as socially and culturally determinative
as family relationships.
Mississippi Choctaw, ,
U.S. at - 109 S.Ct. at 1597, 104
L.Ed.2d at 37; 95th Cong., 2d Sess. (1978) at 193.
The Congressional findings that were incorporated into
the ICWA reflect these sentiments. The following
congressional findings are set forth at 25 U.S.C. S 1901:

(3) that there is no resource that is more vital
to the continued existence and integrity of Indian
tribes than their children . . .;
(4) that an alarming high percentage of Indian
families are broken .up by the removal, often
unwarranted, of their chlldren from them by
nontribal public and private agencies and that an
alarming high percentage of such children are
placed in non-Indian foster and adoptive homes and
institutions; and
(5) that the States, exercising their recognized
jurisdiction over Indian child custody proceedings
through administrative and judicial bodies, have
often failed to recognize the essential tribal
relations of Indian people and the culture and
social standards prevailing in Indian communities
and families.
At the heart of the ICWA are its provisions concerning
jurisdiction over Indian child custody proceedings.
Mississippi Choctaw, U.S. , 109 S.Ct. at 1601, 104
L.Ed.2d at 38. The ICWA provides for exclusive j.urisdiction
in the Tribal Court pursuant to 25 U.S.C. S 1911 (a), which
states in pertinent part:
. .
. Where an Indian child is a ward of the tribal
court, the Indian tribe shall retain exclusive
jurisdiction, notwithstanding the residence or
domicile of the child.
The tribe contends that Michelle is a ward of the Tribal
Court, thus giving exclusive jurisdiction to the Tribal Court
under S 1911 (a). The Collins' urge this Court to affirm the
District Court's order granting the ~istrictCourt concurrent
jurisdiction under 25 U.S.C. § 1911 (b) . The Collins' argue
that the Tribal Court lost its wardship status over ~ichelle
when it granted physical custody to Oliviane on October 26,
1987. Furthermore, the Collins' contend the Tribal Court
violated its own juvenile code which set a one year time
limit on orders. To resolve the issue of jurisdiction, a
review of Tribal Court orders and the District Court order is
necessary.
In May of 1985, Oliviane requested the Tribe to assist
her in petitioning the ~ r i b a lCourt to take jurisdiction over
the care and custody of her child and in revoking her consent
to the Colorado adoption. On May 29, 1985, 0liviane and the
Tribe jointly petitioned the ~ r i b a l Court to accept
jurisdiction pursuant to the ICWA. The next day, after a
hearing before the Tribal Court on the petititon, the ~ r i b a l
Court accepted jurisdiction over ~ichelle. The ~ r i b e argues
that the ~ r i b a l Court's order of May 30, 1985, placed
jurisdiction over the care and custody of Michelle in the
Tribal Court, thereby making the child a ward of the Tribal
Court. Although the Tribal Court order accepting
j.urisdiction did not specifically state that Michelle is "a
ward of the Tribal Co-urt, this Co.urt has long held that an
"

infant becomes a ward of the court when its parents submit
themselves to the jurisdiction of the court. Barbour v.
Barbour (1958), 134 Mont. 317, 327, 330 P.2d 1093, 1098; Lay
v. District Court (1948), 122 Mont. 61, 72, 198 P.2d 761,
767; Wolz v. Wolz (1940), 110 Mont. 458, 463, 102 P.2d 22,
24. Oliviane submitted herself to the jurisdiction of the
Tribal Court when she withdrew her consent to the Colorado
adoption, and subsequently petitioned the Tribal Court to
accept jurisdiction pursuant to 25 U.S.C. § 1911, et seq.
Thus, Michelle became a ward of the Tribal Court on May 30,
1985.
Subsequent orders by the Tribal Court firmly establish
exclusive jurisdiction of the Tribal Court under § 1911(a).
On July 3, 1985, prior to Michelle arriving at the
reservation, the Tribal Court reaffirmed the wardship status
of Michelle when it ordered that "Michelle remain a ward of
the Tribal Court as previously ordered on May 30, 1985."
On May 27, 1986, the Tribal Court ordered ~ichelle
removed from Oliviane's physical custody for Michelle's own
protection. The Tribal Court again specifically addressed
the wardship and reasserted that "Michelle is a ward of the
Tribal Court unless otherwise ordered by the Tribal Court. "
Subsequently, the Tribal Social Services placed Michelle with
an Indian foster family on the reservation.
On October 24, 1987, the Tribal Court, in response to
Oliviane's petition to regain custody of ~ichelle,dissolved
the foster care of Michelle, and granted Oliviane physical
custody of Michelle. The Collins' contend that Michelle
ceased to be a ward of the Tribal Court when the court
granted physical custody to the mother. The ~istrictCourt
in its order agreed with respondents1 contention that the
Tribal Court lost exclusive jurisdiction under S 1911 (a) .
Both the collins1 and the ~istrict Court are incorrect in
their assertions that the Tribal Court's order terminated the
wardship status and exclusive jurisdiction over ~ichelle.
When the Tribal Court ret.urned physical custody of Michelle
to her mother, it specifically ordered her to raise the child
in her home and complete a home study and evaluation so that:
. . . the Court will be fully advised in making
any further orders it deems necessary.
The language of the order clearly shows the ~ r i b a l Court
sought to maintain exclusive jurisdiction over the welfare of
Michelle notwithstanding the residence or domicile of the
child. Although the ~ r i b a lCourt granted physical custody to
Oliviane, Michelle continued to remain a ward of the ~ r i b a l
Court. There is no other reasonable explanation for the
words "so that the Court will be fully advised in making any
further orders . . ." Such a judicial award of c-ustodyof a
child is not final, but is subject to the continuing control
and j.urisdiction of the court. Matter of B.T. (1986), 223
Mont. 287, 289, 725 P.2d 230, 231.
The Tribal Court has exclusive jurisdiction pursuant to
25 U.S.C. § 1911(a) because the minor child is a ward of the
Tribal Court. Nevertheless, the ~istrict Court found that it
could accept jurisdiction pursuant to 25 U.S.C. 5 1911 (b) of
ICWA, as follows:
In any State court proceeding for the foster care
placement of, or termination of parental rights to,
an 1ndian child not domiciled or residing within
the reservation of the 1ndian child's tribe, the
court, in absence of good cause - - contrary,
to the
shall transfer such-proceeding to the jurisdiction
of the tribe, absent objection either parent,
upon the petition of either parent or the 1ndian
custodian or the Indian child's tribe: Provided,
That such transfer shall be subject to declination
by the tribal court of such Tribe. (Emphasis by
the District Court.)
Section 1911(b) is not applicable in this case because §
1911 (a) provides that the Tribal Court shall retain exclusive
jurisdiction. It was error on the part of the ~istrictCourt
to determine that Montana had concurrent jurisdiction over
Michelle. The ~ r i b a lCourt found her a ward of the ~ r i b a l
Court and this wardship has not been terminated by any
judicial proceedings in the Tribal Court.
Further support for vesting exclusive jurisdiction in
the Tribal Court can be found in the Tribal ~uvenileCode.
~urisdiction of the ~ r i b a lCourt is found at S 42.1 of the
Tribal Juvenile Code, which states:
The Juvenile Court shall have exclusive original
jurisdiction over proceedings in which the child is
to be adjudicated to be neglected, in need of
supervision, or delinquent, proceedings for the
termination of parental rights, and proceedings for
the adoption of a child.
Furthermore, 42.4 of the ~uvenile Code provides the
following:
J.urisdiction obtained by the Juvenile Court shall
be retained by the Juvenile Court until a child
becomes 18 years of age, unless terminated prior
thereto.
The very word "retained" in the statute connotes
continuation of jurisdiction. Continuing jurisdiction
results in continuing wardship "until the child becomes 18
years of age, unless terminated prior thereto." Thus, as
long as the court has continuing authority over the child,
the child continues to be a ward of the court. The ICWA, 25
U.S.C. 1911(a), dictates exclusive jurisdiction where a child
is a ward of the Tribal Court. Michelle became a ward of the
Tribal Court when Oliviane came before the Tribal Court on
her petition to revoke the Colorado adoption. Therefore, the
Montana District Court erroneously concluded that it has
concurrent jurisdiction.
The Tribal Court order of October 23, 1987 was issued
pursuant to a hearing on a motion by Oliviane to return
custody to her. She did not request the Tribal Court,
pursuant to S 4 2 . 4 of the Tribal ~uvenileCode, to terminate
its jurisdiction or request that the wardship status be
ended. The exclusive jurisdiction under cS 1911(a) by the
Tribal Court over the child continued while the Tribal Court
granted custody to the mother. The only issue addressed at
the October, 1 9 8 7 hearing was whether custody of the child
should remain with Tribal Social Services or be returned to
the natural mother.
Respondent argues that wardship terminated pursuant to §
47.5 of the Tribe's Juvenile Code. This section, however,
merely addresses custody orders, and not Tribal Court
jurisdiction. While the Tribal Court may have violated the
custody provisions as set forth in S 4 7 . 5 of the Tribal
Juvenile Code, jurisdiction still remains exclusively with
the Tribal Court.
The Collins' argue that we should consider the bonding
between themselves and ~ichelle in reaching this decision.
The Collins are correct in their assertions that a family
bond has developed, and a separation at this point would
cause considerable pain. However, the best interest of
Michelle is not a question for this Court to decide. The
sole issue under consideration by this Court is whether the
Tribal Court has exclusive jurisdiction under 25 U.S.C. 5
1911 (a) of the ICWA. Clearly the evidence dictates granting
exclusive jurisdiction to the Tribal Court. The White
Mountain Apache Tribal Court has the exclusive right to
determine the fate of Michelle. We are fully confident the
Tribal Court will consider the best interest of all parties
in making its adoption determination.
We reverse the order of the ~istrict Court asserting
concurrent jurisdiction over the Indian child, and remand
this case for further proceedings consistent with this
Opinion.

We Concur: / i
J u s t i c e F r e d J. Weber s p e c i a l l y c o n c u r s a s f o l l o w s :

I j o i n i n t h e h o l d i n g o f t h e m a j o r i t y o p i n i o n i n view of

the recent Choctaw holding of the United States Supreme

Court. Although I have strong reservations about the

majority's analysis, and tend to join the dissent on t h e

wardship theory, I c o n c l u d e we must concede j u r i s d i c t i o n to

the tribal court under Choctaw. I e x p r e s s two c o n c e r n s .

F i r s t , I am shocked a t t h e T r i b e ' s a p p a r e n t d i s r e g a r d o f

t h e due p r o c e s s r i g h t s of t h e p a r e n t i n t h e e a r l y s t a g e s of

the controversy. The majority concludes that the child

became a ward o f t h e t r i b a l c o u r t on May 3 0 , 1 9 8 5 . T h i s was

accomplished w i t h v i r t u a l l y no r e c o g n i t i o n o f t h e due p r o c e s s

r i g h t s o f t h e mother. The T r i b e ' s wardship a p p e a r s t o have

been b a s e d on n o t h i n g more t h a n i t s own s t a t e d c l a i m . In

Montana, any comparable r e s t r i c t i o n o f p a r e n t a l r i g h t s can be

done o n l y w i t h c a r e f u l r e g a r d f o r t h e due p r o c e s s r i g h t s of

the parents. A l s o s h o c k i n g t o me i s t h e a p p a r e n t e a s e w i t h

which t h e T r i b e now a r g u e s a g a i n s t t h e d e s i r e o f t h e mother,

one of its own tribal members. It is ironic that the

a t t o r n e y s f o r t h e T r i b e who have f o u g h t f o r many y e a r s f o r

t h e p r o t e c t i o n o f t h e i n t e r e s t s o f t r i b a l members, now come

all the way t o Montana to argue so eloquently in direct

o p p o s i t i o n t o t h i s I n d i a n mother. Who i s l e f t t o r e p r e s e n t
the rights of the individual Indian mother when she is so
abandoned by her Tribe?
Second, I am concerned with the effect of the Choctaw
holding. In Choctaw, a father and mother went 200 miles off
the reservation in order to give birth to twins, and promptly
made adoption arrangements for the twins with a non-Indian
couple. The Supreme Court concluded that the tribal court
had exclusive jurisdiction to determine the custody of these
children. Noting the policy furthered by the ICWA, which is
in part to protect the interests of the Indian community in
retaining its children within its society, the court
concluded that tribal jurisdiction could not be defeated by
the parents' deliberate attempt to make a decision regarding
their own children's custody. This holding indicates the
interests of the Tribe now are superior to the interests of
the parents. The dissenting judges in Choctaw pointed out
that it was questionable whether Congress intended to deprive
Indian parents of their wishes in regard to the placement of
their children. Parental rights are among the most
significant rights granted to any human being. The Choctaw
decision is incredible in light of its apparent elimination
of certain parental rights in favor of tribal rights.
Justice John Conway Harrison 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
16
 t ' :
' f

then back to the Collins family in Colorado. He further noted that
llsurelysuch 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 llwardu the Apache court.
of The ~istrict
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 llexclusive
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 I1[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 llconcurrent
jurisdiction is a concept
that is embraced in the Indian 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 (Kan. 1982), 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. 5 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 . 2 d
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 5 1914's reference to "any court
of competent juri~diction~~ the type of
as
clear and manifest authorization that federal
courts need before they upset the ordinary
principles of federal-state comity embodied
in 28 U.S.C. 5 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
 . ' 4

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 within 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 forthe Collins
family.

Justice Diane G. Barz joins in the foregoing dissent of Justice
John Conway Harrison.