No. 95-132
IN THE SUPREME COURT OF THE STATE OF MONTANA
1995
IN THE MATTER OF THE ADOPTION
OF JESSICA LYNN RIFFLE
APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable Peter L. Rapkoch, Judge presiding.
COUNSEL OF RECORD:
For Appellants:
Monte J. Boettger, Attorney at Law, Lewistown,
Montana
Ann Gilkey, Department of Family Services, Helena,
Montana
Ronald Ameson, Attorney at Law, Billings, Montana
For Respondents:
Jerrold Nye, Attorney at Law, Billings, Montana
Submitted on Briefs: July 28, 1995
Decided: September 13, 1995
Filed:
Chief Justice J. A. Turnage delivered the Opinion of the Court.
Appellants John Garlick, Montana Department of Family Services
and Turtle Mountain Band of Chippewa appeal the decision of the
Tenth Judicial District Court, Fergus County, granting the petition
of respondents Kenneth and Clara Siroky for adoption of Jessica
Lynn Riffle. We reverse and remand.
We find the following issue dispositive on appeal:
Did the District Court err in determining that Jessica was not
an "Indian child" pursuant to the Indian Child Welfare Act (ICWA)?
The facts relevant to the issue addressed in this opinion are
as follows: Jessica Lynn Riffle (Jessica) was born on July 14,
1988, to Mary Garlick Riffle and Gary D. Riffle. Jessica is l/8
Chippewa Indian. Jessica's natural parents struggled with alcohol
and drug abuse as well as domestic violence. These problems made
it difficult for her parents to properly care for Jessica. Jessica
spent much time with her extended family, including her grandmoth-
er, Dorothy Garlick and her uncle, John Garlick.
In May 1990 the Montana Department of Family Services (DFS)
removed Jessica from her mother's care and placed her in the foster
care of Kenneth and Clara Siroky. DFS returned Jessica to her
mother in December of 1990. DFS again removed Jessica from her
mother's care in June 1991 and returned her to the foster care
custody of the Sirokys where she has remained.
On August 4, 1992, the Turtle Mountain Band of Chippewa (the
Tribe) was notified of the impending termination of Mary Riffle's
parental rights. The Tribe was again notified on December 16,
1992. The Tribe took no immediate action. On September 28, 1993,
the Tenth Judicial District Court terminated Mary and Gary Riffle's
parental rights and awarded DFS permanent custody of Jessica.
DFS commenced adoption proceedings, seeking to find a suitable
adoptive parent for Jessica. John Garlick sought custody of
Jessica and on May 5, 1993, petitioned for her adoption. DFS
concluded that John Garlick was a suitable adoptive parent and
consented to his adoption of Jessica. On May 3, 1994, the Sirokys
petitioned the court for Jessica's adoption. On May 26, 1994,
shortly before John was to receive custody of Jessica, the Sirokys
obtained a temporary restraining order preventing Jessica's removal
from their custody.
On May 15, 1994, prior to the District Court's determination
of Jessica's custody, the Tribe moved the court's permission to
intervene in the proceedings. On May 20, 1994, the court prelimi-
narily granted the Tribe's motion. However, on July 27, 1994, the
court adopted the Bureau of Indian Affairs' (BIA) opinion that
Jessica was not an "Indian child" pursuant to ICWA and therefore
ICWA did not apply to these proceedings.
On November 14 and 15, 1994, the District Court heard the
arguments of petitioner John Garlick and petitioners Kenneth and
Clara Siroky concerning their respective desires to adopt Jessica.
On December 12, 1994, the District Court issued its findings of
fact, conclusions of law, and order granting the Sirokys' petition
for adoption. John Garlick, DFS and the Tribe appeal the decision
of the District Court.
3
Did the District Court err in determining that Jessica was not
an "Indian child" pursuant to ICWA?
In its July 27, 1994, order, the District Court concluded that
Jessica was not an "Indian child" pursuant to ICWA and, therefore,
the provisions of ICWA were not applied to these proceedings. The
court concluded that the Tribe was given the opportunity to
intervene in these proceedings, yet failed to indicate whether it
considered Jessica eligible for tribal membership. The court
proceeded to conclude that the BIA's determination that Jessica was
not eligible to become a member of the Tribe was conclusive. The
court held that, even if the Tribe was allowed to intervene later
in the proceedings, the BIA's determination could not be rebutted.
In reference to the BIA's determination that Jessica lacked
sufficient blood quantum to be considered for Tribal membership,
the court stated:
It is significant that the Bureau's determination is in
the present tense. That is because the disqualifying act
"insufficient blood quantum", that is, not enough Indian
blood, is an objective, permanent condition. It is not
a condition based upon procedural steps or missteps or
nonsteps of the parties.
The court reiterated its conclusion that Jessica was not
eligible for membership in the Tribe and therefore not an "Indian
child" in its December 12, 1994 findings of fact and conclusions of
law concerning the parties' respective petitions for adoption. We
review district court conclusions of law to determine whether the
court's interpretation of law was correct. Steer, Inc. v. Dep't of
Revenue (19901, 245 Mont. 470, 474, 803 P.2d 601, 603.
4
ICWA contains a policy statement that encourages tribal input
and participation in custody proceedings involving Indian children.
Title 25 U.S.C. 5 1902 states:
The Congress hereby declares 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 to Indian tribes in the operation of child and
family service programs.
One of the "minimum federal standards" promulgated by ICWA is found
in 25 U.S.C. § 1911(c), which provides, "[iin any State court
proceeding for the foster care placement of, or termination of
parental rights to, an Indian child, the Indian custodian of the
child and the Indian child's tribe shall have a riqht to intervene
at any point in the proceedinq." (Emphasis added.)
We note that on May 20, 1994, the District Court granted the
Tribe's motion to intervene. However, on July 27, 1994, the court
determined that the Tribe failed to promptlv intervene after
receiving notice of the proceedings. The court concluded that the
Tribe's failure to promptly intervene after receiving notice of the
proceedings waived the Tribe's right to intervene at a later date.
Regardless of the procedural peculiarities of the District Court's
actions, we will address the Tribe's asserted right to intervene in
these proceedings.
We find no support in ICWA for the court's conclusion that the
Tribe waived its right to intervene. While 25 U.S.C. § 1912
establishes notice requirements which must be fulfilled before
5
proceedings may go forward, this section does not indicate that the
Tribe's right to intervene is impaired if it does not intervene
promptly after receiving such notice.
In In the Matter of the Guardianship of Q.G.M. (Okl. 1991),
808 P.2d 684, the Oklahoma Supreme Court concluded that an Indian
tribe could not waive its right to intervene merely by failing to
intervene within the time provided by 25 U.S.C. 5 1912. In
resolving this issue, the court explained:
[Tlhe grandparents argue that the tribe waived its rights
when it neither responded nor requested additional time
to prepare for the guardianship proceeding which is
permitted by 25 U.S.C. 5 1912(a) (1978). [Footnote
omitted.1 Although we might agree with the grandparent's
[sic] position, we are precluded from doing so by 25
U.S.C. 5 1911(c) . . .
As a matter of statutory analysis, the Court must
give effect to the Act. We cannot ignore the plain words
of a statute. [Footnote omitted.] The statute allows the
tribe to intervene at any point in the proceeding . .
Even if a tribe fails to intervene at the beginning of a
proceeding, it is not precluded from intervening at a
later point in the absence of an express waiver of the
right to intervene. A waiver of rights by the tribe
should not be inferred. [Footnote omitted. 1
Guardianship of O.G.M., 808 P.2d at 688-89.
We agree with the Oklahoma Supreme Court's interpretation of
ICWA. Section 1911(c) provides that a tribe can intervene "at any
point in the proceeding." Absent express statutory language to the
contrary, we conclude that the Tribe must be allowed to intervene
in these proceedings.
The District Court went on to conclude that, regardless of
whether the Tribe was or was not allowed to intervene, Jessica's
status would not be affected. Based on the BIA's determination,
6
the court concluded that Jessica lacked sufficient blood quantum to
ever be considered a member of the Tribe and thus an "Indian child"
under ICWA.
Blood quantum does not dictate whether or not an individual is
to be considered an "Indian child" pursuant to ICWA. ICWA defines
an "Indian child" as "any unmarried person who is under age
eighteen and is either (a) a member of an Indian tribe or (b) is
eligible for membership in an Indian tribe and is the biological
child of a member of an Indian tribe." 25 U.S.C. § 1903(4).
The Department of the Interior has promulgated Guidelines for
State Courts (Guidelines) to aid in the interpretation and
application of ICWA. This Court has previously determined that the
Guidelines, while not binding, are persuasive and should be looked
to in interpreting ICWA. In the Matter of M.E.M. (1981), 195 Mont.
329, 336, 635 P.2d 1313, 1318.
Section B.l.(b) (ii) of the Guidelines states:
Absent a contrary determination by the tribe that is
alleged to be the Indian child's tribe, a determination
by the Bureau of Indian Affairs that a child is or is not
an Indian child is conclusive.
The District Court, relying on this language, concluded that the
BIA's determination that Jessica lacked sufficient blood quantum to
be an "Indian child" was conclusive. However, this provision does
not require a & contrary determination by the Tribe to render
the BIA determination ineffectual. Rather, it merely requires a
contrary determination by the Tribe. The immediately preceding
section of the Guidelines, s B.l.(b) (i), states:
The determination by the tribe that a child is not a
member of that tribe, is or is not eligible for member-
ship in that tribe, or that the biological parent is or
is not a member of that tribe is conclusive.
Thus the Tribe, and not the BIA, is the ultimate authority on
eligibility for tribal membership.
We hold that the District Court erred in determining that the
Tribe waived its right to intervene in these proceedings. We
further hold that, under these circumstances, the District Court's
reliance on the BIA's determination that Jessica is ineligible for
membership in the Tribe and therefore not an "Indian child" was
incorrect.
We conclude that ICWA is applicable to these proceedings and
reverse and remand for a determination of whether Jessica is an
"Indian child" pursuant to 25 U.S.C. § 1903(4).
Justices
Justice James C. Nelson specially concurs.
While I concur fully in our analysis and in the result of our
opinion in this case, I am, nevertheless, compelled to make an
observation concerning the Tribe's failure to intervene promptly on
being first notified of these proceedings in August, 1992.
It can hardly be denied that the application of the ICWA to a
child custody proceeding will likely dictate the child's temporary
and permanent placement, and, perhaps, exclude persons involved in
the child's life who might otherwise be eligible to be custodians
or adoptive parents were the Act not controlling. Given that the
goal of any child custody proceeding should be to restore the child
to or to place the child in a permanent, stable, nurturing
environment as expeditiously as possible, the failure of any person
or governmental entity or agency--whether tribal or non-tribal--to
promptly discharge a right or duty of participation in such a
proceeding cannot not be condoned.
I appreciate that a Tribe may not immediately respond to the
notice of or intervene in a child custody proceeding because in the
early stages it may appear that the likely placement of the child
by the State agency and court will be acceptable to the Tribe and
to the Native American family members who have priority under the
Act. This is all the more true because a substantial number (some
60%, in Montana) of Tribal members and their extended families
reside in communities outside their reservation and may not have
close ties with their Tribal government, institutions and social
support. Accordingly, it may not be immediately apparent to a
Tribe that it should become involved in a particular child custody
9
proceeding.
Nonetheless, if, as in this case, circumstances cause the
Tribe to intervene in the proceeding at a late stage (here, nearly
two years after the initial notice), the net result may be
additional litigation and substantial delay in the ultimate
resolution of the child's placement. In the usual child custody
proceeding where, almost by definition, the child's life already
lacks stability and has been seriously disrupted and where the
child may have special needs, adding more delay and litigation to
an already cumbersome process is simply not acceptable from the
standpoint of either the child or the parties involved.
Without criticizing the motives or procedures of the Tribe in
this case, I, nevertheless, submit that the early and vigorous
participation of the Tribe in all child custody proceedings subject
to the Act, whether such participation may, initially, appear to be
necessary or not, will ultimately best serve the underlying
policies of the ICWA, will ensure that the proceeding will be
concluded expeditiously and in accordance with applicable law, and,
most importantly, will best serve the paramount right of the child
to live in a stable, loving and support
10