Matter of Adoption of Riffle

NO. 96-076
IN THE SUPREME COURT OF THE STATE OF MONTANA
1996

IN THE MATTER OF THE ADOPTION
OF JESSICA LYNN RIFFLE,
a Youth in Need of Care

APPEAL FROM: District Court of the Tenth Judicial District,
In and for the County of Fergus,
The Honorable John R. Christensen, Judge presiding.

COUNSEL OF RECORD:
For Appellants:
Jerrold L. Nye; Nye & Meyer, Billings, Montana

For Respondent:
Monte J. Boettger, Attorney at Law,
Lewistown, Montana (for John Garlick)

Ann Gilkey, Department of Family Services,
Helena, Montana (for Department of Family Services)

Ronald Arneson, Attorney at Law, Billings, Montana
(for Turtle Mountain Band of Chippewa Indians)

Submitted on Briefs: June 27, 1996
Decided: July 30, 1996
Filed:
Justice W. William Leaphart delivered the Opinion of the Court.

Appellants, Kenneth and Clara Siroky (the Sirokys), appeal

from the Findings of Fact and Conclusions of Law and Order of the

Tenth Judicial District Court, Fergus County, concluding that
Jessica Lynn Riffle (Jessica) is an Indian child and that, pursuant

to the Indian Child Welfare Act, 25 U.S.C. §§ 1901 to 1963 (the

ICWA), Jessica's uncle, John Garlick (Garlick) gets the benefit of

an adoptive placement preference. We affirm.

The Sirokys present four issues on appeal:

1. Is Jessica an "Indian child" as defined by the ICWA?

2. Does application of the ICWA deny Jessica her
constitutional rights?

3. Have Jessica's best interests been addressed?

4. Is the Montana Department of Public Health and Human
Services' (Department) consent required for the adoption
of Jessica pursuant to § 40-8-111, MCA?

The background to this case is set forth in this Court's

opinion in In re Adoption of Riffle (1995), 273 Mont. 237, 902 P.2d

542. In Adoption of Riffle, Garlick, who is an enrolled member of

the Turtle Mountain Band of Chippewa Indians, the Department, and

the Turtle Mountain Band of Chippewa Indians (the Tribe) appealed

the District Court's grant of the Sirokys' petition for adoption of

Jessica. We reversed and remanded for a determination of whether

Jessica is an "Indian child" pursuant to 25 U.S.C. 5 1903(4).

In Adoption of Riffle, we held that, in determining whether a

child is an "Indian child" pursuant to the ICWA, the Tribe is the

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ultimate authority on eligibility for tribal membership. Adoption
of Riffle, 902 P.2d at 545. The 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. 5 1903(4). Consequently, we held that the

district court erred in relying on the Bureau of Indian Affairs'

(BIA) determination that Jessica is ineligible for tribal

membership based on her blood quantum. Adoption of Riffle, 902

P.Zd at 545. Furthermore, we held that the Tribe must be allowed

to intervene in the proceeding. Adoption of Riffle, 902 P.2d at

545.

On remand, the District Court concluded that the Tribe's

determination that Jessica is an Indian child and is a member of

the Tribe was conclusive. Thus, the court determined that the ICWA

applied to Jessica's adoption. Consequently, although the court

found that both the Sirokys and Garlick could provide a loving,

caring and secure environment for Jessica, the court concluded that

there was no good cause not to follow the ICWA placement

preferences and that the ICWA preference favored placement with

Jessica's uncle, Garlick. Thus, the court granted Garlick's

petition for adoption of Jessica and concluded that it was in

Jessica's best interest to maintain contact with the Sirokys.

We review district court conclusions of law to determine

whether the court's interpretation of law is correct. Adoption of

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Riffle, 902 P.2d at 544 (citing Steer, Inc. v. Department of
Revenue (1990), 245 Mont. 470, 474, 803 P.2d 601, 603).

1. Is Jessica an "Indian child" as defined by the ICWA?

We find this issue to be dispositive. There are two
prerequisites to the application of the ICWA: (1) a child custody

proceeding; and (2) an Indian child. 25 U.S.C. § 1903; see

qenerallv Debra DuMontier-Pierre, The Indian Child Welfare Act of

1978: A Montana Analysis, 56 MONT. L. REV. 505, 510 (1995). The
instant case meets both prerequisites.

In Adoption of Riffle, we quoted § B.l.(b) (i) of the

Department of Interior Guidelines for State courts when

interpreting the ICWA:

The determination by the tribe that a child is not a
member of that tribe, or is not eligible for membership
in that tribe, or that the biological parent is or is not
a member of that tribe is conclusive.

Adoption of Riffle, 902 P.2d at 545. We held that the Tribe is the

ultimate authority on eligibility for tribal membership. Adoution

of Riffle, 902 P.2d at 545.

In the instant case, the Tribe filed papers with the District

Court officially recognizing Jessica as an Indian child and a

"member of the tribe" under the provisions of the ICWA. Contrary

to the Sirokys' contention, enrollment of the child in the Tribe is

not required so long as the Tribe recognizes the child as a member.

In re Junious M. (Cal. Ct. App. 1983), 193 Cal.Rptr. 40, 44.

Enrollment and membership are not synonymous. In re Baby Boy Doe

(Idaho 19931, 849 P.2d 925, 931. Enrollment is a common but not

exclusive evidentiary means of determining membership in a tribe.

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Baby Boy Doe, 849 P.2d at 931 (citing 44 Fed.Reg. 67,584, 67,586
(1979)). Given the Tribe's determination that Jessica is an Indian

child, we hold that the District Court correctly concluded that the

Tribe's determination was conclusive.

Since Jessica is an Indian child, the ICWA applies to this

adoption proceeding. Accordingly, the District Court properly

applied the adoptive placement preferences found at 25 U.S.'?. 5

1915. 25 U.S.C. 5 1915(a) provides:

In any adoptive placement of an Indian child under State
law, a preference shall be given, in the absence of good
cause to the contrary, to a placement with
(1) a member of the child's extended family;
(2) other members of the Indian child's tribe; or
(3) other Indian families.

The child's extended family is defined at 25 U.S.C. 5 1903(2) as

follows:

"extended family member" shall be as 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 stepparentL.1 [Emphasis added. 1

As Jessica's uncle, Garlick clearly falls within the

definition of "extended family member." The District Court was

thus correct in giving Garlick the benefit of the adoptive

placement preference under 25 U.S.C. 5 1915(a).

2. Does application of the ICWA deny Jessica her
constitutional rights?
The Sirokys ask this Court to adopt the rationale of the

California appellate court in its recent decision in In re Bridget
R. (Cal. Ct. App. 1996) 49 Cal.Rptr.2d 507. In In re Bridget R.,

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the California court held that the ICWA could not be
constitutionally applied in the absence of evidence that the

biological parents have a significant social, cultural, or

political relationship with the Tribe. In re Bridqet R., 49 Cal.

Rptr.Zd at 526.
In 1978, Congress passed the ICWA in response to a significant

threat to the integrity of Indian cultures caused by the alarmingly

high incidence of often unwarranted removal of Indian children from

their families. 25 U.S.C. § lYOl(4). Congress declared 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.
/I 25 U.S.C. § 1902. As this Court has previously stated, we

share Congress' concern and support its policy. In re Baby Girl

Jane Doe (1993), 262 Mont. 380, 385, 865 P.2d 1090, 1092; In re

M.E.M. (1981), 195 Mont. 329, 333, 635 P.2d 1313, 1315-16. In &

re M.E.M., we stated that it was our constitutional duty to

preserve the unique cultural heritage and integrity of the American

Indians. Mont. Const. art. X, § l(2); In re M.E.M., 635 P.2d at

1316. Moreover, in Mississippi Band of Choctaw Indians v.

Holyfield (1989), 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.Zd 29, the

United States Supreme Court affirmed the intent and purposes of the

ICWA. In In re Baby Girl Doe, we discussed Mississippi Choctaw at

length and concluded that "the principal purposes of the Act are to

promote the stability and security of Indian tribes by preventing

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further loss of their children; and to protect the best interests

of Indian children by retaining their connection to their tribes."

In re Baby Girl Doe, 865 P.2d at 1095. Accordingly, we hold that

the application of the ICWA does not deny Jessica her
constitutional rights and we decline to adopt the California

Court's approach in In re Bridset R.

3. Have Jessica's best interests been addressed?

The Sirokys contend that the District Court should have made

a "best interest" analysis under § 40-E-109, MCA, outside the

restrictions, preferences or limitations of the ICWA. However,
since we affirm the District Court's determination that the ICWA

applies to this adoption, a determination of "best interests" under

Montana law would be inappropriate. The ICWA expresses the

presumption that in an adoptive placement of an Indian child, the

child's best interests are best served by placement with an

extended family member. 25 U.S.C. 1915(a) (1). To overcome this

preference, a party must establish the existence of "good cause to

the contrary." 25 U.S.C. 1915(a) (1). BIA guidelines provide "good

cause to the contrary" must be based upon one or more of the

following considerations:

(i) The request of the biological parents or the
child when the child is of sufficient age.

(ii) The extraordinary physical or emotional needs
of the child as established by testimony of a qualified
expert witness.
(iii) The unavailability of suitable families for
placement after a diligent search has been completed for
families meeting the preference criteria.
Guidelines for State Courts; Indian Child Custody Proceedings, 44

Fed.Reg. 67,584, 67,594 (1979).

At least two courts which have interpreted the "good cause"

exception of 25 U.S.C. § 1915 have determined that courts may

consider the best interests of the child in determining whether the

exception app1ies.l Matter of Adoption of F.H. (Alaska 1993), 851

P.2d 1361, and Adoption of M. (Wash. Ct. App. 1992), 832 P.2d 518.

The Minnesota Supreme Court, however, has rejected this
interpretation and we agree. The Minnesota Supreme Court held

that:
We believe, however, that a finding of good cause
cannot be based simply on a determination that placement
outside the preferences would be in the child's best
interests. The plain language of the Act read as a whole
and its legislative history clearly indicate that state
courts are a part of the problem the ICWA was intended to
remedy. See Mississippi Band of Choctaw Indians, 490
U.S. at 44-45, 109 S.Ct. at 1606-07. The best
interests of the child standard, by its very nature,
requires a subjective evaluation of a multitude of
factors, many, if not all of which are imbued with the
values of majority culture. It therefore seems "most
improbable" that Congress intended to allow state courts
to find good cause whenever they determined that a
placement outside the preferences of § 1915 was in the
Indian child's best interests. Cf. Mississippi Band of
Choctaw Indians, 490 U.S. at 45, 109 S.Ct. at 1606-07.

Matter of Custody of S.E.G. (Minn. 1994), 521 N.W.Zd 357, 362-63.

1 We note that in In re M.E.M., we stated that, in determining
whether to transfer jurisdiction to the tribal court, "the best
interest of the child could prevent transfer of jurisdiction upon
'clear and convincing' showing by the State." In re M.E.M., 635
P.2d at 1317. In the instant case, however, we are not considering
the transfer of jurisdiction to a tribal court; rather, we are
considering adoption placement preferences under 25 U.S.C. 5
1915(a) (1). Thus, In re M.E.M. is not controlling on this issue.

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 Although the District Court cited Adoption of M. and concluded

that "there was no good cause not to follow the placement
preference and Garlick's adoption is in the best interests of the

child" (emphasis added), that conclusion, to the extent that it

determines "best interests," is an unnecessary and inappropriate

analysis under the ICWA. The determination that there was no "good

cause" not to follow the ICWA placement preference was sufficient.

In the present case, the record clearly supports the

conclusion that there was no "good cause" for overcoming the

placement preferences of the ICWA: the Department had approved

Garlick as providing an approved adoptive home; Garlick is bonded

with Jessica; he had significant contact with her during the first

18 months of her life; he is Jessica's uncle and, as such, is part

of her extended family; Jessica's natural mother supported Garlick

as the adoptive parent for Jessica, and; the Department supports

Garlick as the adoptive parent for Jessica.

We affirm the District Court's decision to adhere to the

adoption preferences established by the ICWA.

4. Is the Montana Department of Public Health and Human
Services' consent required for the adoption of Jessica
pursuant to § 40-8-111, MCA?

We hold that the District Court correctly applied the

provisions of the ICWA and granted Garlick's Petition for Final

Adoption of Jessica Lynn Riffle. The Department supported and

consented to Garlick's adoption of Jessica. Since the court did

not grant the Sirokys' petition to adopt, the Sirokys' argument

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that they do not need the Department's consent to petition for the
adoption of Jessica is moot.

Affirmed.

Justices

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Justice Karla M. Gray, specially concurring.

I concur in the result reached in the Court's opinion and with

much of what is said therein. On the basis of the record before

us, however, I disagree with the Court's conclusion that Jessica is

an "Indian child" as defined by the ICWA and its related conclusion

that the ICWA applies. I would affirm the District Court on the

basis of that court's determination that Jessica's adoption by her

uncle, John Garlick, is in her best interests.

As the Court correctly observes, the 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." See 25 U.S.C. § 1903(4). I also agree

with the Court that a Tribe's determination that a child is "a

member or eligible for membership" is conclusive for purposes of

the ICWA.

The Court states that the Tribe officially recognized Jessica

as an Indian child and "a member of the Tribe." I agree that the

Tribe stated that Jessica is "an Indian child;" that statement is

not conclusive on the District Court, however, because it is a

conclusion of law that only the court can make by applying the ICWA

definitions to the record before it.

I disagree with the Court's conclusion that the Tribe's

"recognition" of Jessica as a member of the Tribe meets either

definition of an "Indian child" under the ICWA. I do not find of

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record any statement by the Tribe that Jessica either & a member

of, or is eligible for membership in, the Tribe. What the Tribe
does say is that Jessica is "recognized as a member during her

childhood." It is my view that the ICWA requires more than this.

Thus, while I agree with the Court that the language of the ICWA

does not require that the child actually be enrolled as a member,

the ICWA does require that the child be a member or eligible for

membership. No clear and unequivocal determination to either

effect has been made by the Tribe.

Notwithstanding my disagreement with the Court over whether

the ICWA applies here, however, I also would affirm the District

court. The District Court determined that it is in Jessica's best

interests to be adopted by her uncle, John Garlick, and there is a

surfeit of evidence on the record to support that determination.

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