(dissenting):
I respectfully dissent.
1. The Indian Child Welfare Act (ICWA) gives the tribe exclusive jurisdiction over foster care placements of Indian children. 25 U.S.C.A. § 1911 (1990). The county assisted the tribe in making placements but had no authority, de jure or de facto, to do so unilaterally.
As the district court properly reasoned, the ICWA obviates negligence claims because it imposes no legal duty on the county in tribal court jurisdiction cases. The county lacks the requisite legal duty for negligence because it lacks the concomitant authority, both as to the child and the providers, to avoid the complained of harm.
The ICWA demands placements of Indian children be made in the Indian community. Even where the state is “actively servicing” the Indian child, the authority and jurisdiction as to the child remains with the tribal court. The majority’s interpretation of the county’s powers under the ICWA impermissibly expands a county’s power in these placements. The majority reasoning would allow the county to appropriately, unilaterally place the child in a special group home for hyperactive children outside the Indian community. Such a view of the act runs counter to the carefully and explicitly reasoned policy concerns of Congress in crafting the ICWA. State courts should beware of meddling in this issue where even slight deviations may yield far-reaching and unwelcome results. See Argument; Legisprudential Considerations in Unraveling the Safety Net: Food Stamps, Foster Care and the Indian Child Welfare Act, 4 J. Law and Inequality 667 (1986) (illustrating unintended effects, counter to legislative intent of the ICWA, as a result of administrative fiat).
Further, the majority mentions only peripherally one of the key factors the district court relied upon in finding the county owed no legally cognizable duty in this case. The child was placed in a home licensed by the tribe, not the county. Even if the county were dissatisfied with the care and supervision of the child in the placement, it could take no action against the Winds’ foster care license in response. The county had no authority to make on-site inspections or in any way physically supervise the placement. The Winds lived on the reservation and, like the child, were under the exclusive jurisdiction of the tribal court.
The majority seems to find fault with the county’s actions because they differed from those that may have been taken in a case where there was no tribal court jurisdiction. While this concern with uniform treatment is usually laudable, it is mistaken here. The ICWA’s legislative scheme invests tribes with complete authority in the care and maintenance of Indian children and contemplates a minimum of outside interference. The differing levels of county involvement between Indian and non-Indian foster care placements is an intended consequence of the act. This same deference, counter to the majority’s contention, is shared in Minnesota law when dealing with cases like John Sayers’.
The majority cites the Minnesota Indian Family Preservation Act (MIFPA), Minn. Stat. 257.35-.3579 (1990), in support of its position that the county assumed legal duties in the context of a “voluntary foster care placement.” Such placements involve *667participation of county social service agencies which result “in the temporary placement of an Indian child away from the home of the child’s parents or Indian custodian in a foster home, * * * and the parent or Indian custodian may have the child returned upon demand.” Minn.Stat. § 257.351, subd. 17 (1990) (emphasis added). In this case, the child was in the home of an “Indian custodian” as defined by Minn.Stat. § 257.351, subd. 8. Given the broad “demand” authority residing with the Native American community in “voluntary foster care placements,” I question whether there is any diminution in the tribe’s ultimate authority even where the provision applies. Beyond doubt, this section of the MIFPA is without moment here, where it does not even apply.
Minnesota law does not, as the majority infers, provide for any county action independent of the tribal court, particularly when the placement is made with Native American custodians, licensed by the tribe, and residing on a reservation. Our statute, mirroring the ICWA, provides,
An Indian tribe with a tribal court has exclusive jurisdiction over a child placement proceeding involving an Indian child who resides within the reservation of such tribe at the commencement of the proceedings. When an Indian child is in the legal custody of a person or agency pursuant to an order of a tribal court, the Indian tribe retains exclusive jurisdiction, notwithstanding the residence or domicile of the child.
Minn.Stat. § 257.354, subd. 1 (1990). MIF-PA only provides a limited role for counties in making foster care placements, and this role is not invested with any actual authority over the placement. In placements within the tribal setting, local agencies are only required to be given notice and “an opportunity to be heard regarding the placement.” Minn.Stat. § 257.354, subd. 4. This is hardly a broad grant of authority.
The provisions in the ICWA and MIFPA providing for “orderly transfer of jurisdiction” or “concurrent jurisdiction,” cited by the majority must be read narrowly and in the context of the public policy goals of the Acts. Surely they cannot be extended to placements such as this, wholly within the Native American community, where the tribe never relinquished jurisdiction.
I find no basis for holding the county negligent where it has less than full and absolute authority to take steps to regulate and control its foster care activities. Sadly, in light of the majority’s decision, I fear no county in this state will likely agree to provide any foster care services to tribal courts if the county is exposed to liability without concomitant control. This untoward result runs not only counter to the ICWA’s encouragement of a limited county role, but against the interests of these children as well.
2. In addition to finding no duty as a matter of law, I fail to see how any reasonable person could find the county was responsible for any breach proximately causing the child’s injuries. Two are alleged. First, it is claimed the county somehow failed to warn the Winds of the child’s hyperactivity. However, Mrs. Wind testified she recognized the child was hyperactive. Mrs. Wind is a licensed practical nurse who has experience working with hyperactive children. Where, through whatever means, knowledge is possessed sufficient to provide warning, there is no legal duty to warn. Leuer v. Johnson, 450 N.W.2d 363, 366 (Minn.App.1991), pet. for rev. denied (Minn. Mar. 16, 1991). This situation is reminiscent of negligent nondisclosure claims in a medical malpractice context. There, a patient’s own medical expertise reduces the amount of information needed to permit a patient to make an intelligent decision concerning surgery. Kiniken v. Heupel, 305 N.W.2d 589, 595 (Minn.1981). Mrs. Wind had actual knowledge of the possibility of the harm that befell John Sayers. The record is absolutely devoid of any evidence that had the county informed Mrs. Wind of the clinical diagnosis of hyperactivity, her actions on the day of the injury would have differed.
Second, it is alleged the county somehow negligently supervised the placement. It is unclear what the majority would have the county do in this regard. Should they have *668issued daily activity plans for Mrs. Wind and the child? In this case, such a plan would have required such specificity as to detail, literally, such as when Mrs. Wind could go to the bathroom! Would the majority have the Winds remove all possible dangers to a hyperactive two-and-a-half year old child? In this regard, I fully agree with the district court, which aptly stated:
A government agency cannot place foster children in situations without any risk of injury. Chemicals, automobiles, knives, electrical appliances, fireplaces, and bathtubs are only a few of the common hazards associated with living in modern society and which are impractical to forbid in foster homes. Furthermore, a county agency cannot match its wards to facilities which will provide for all of their various and, at times, contradictory needs. Setting such a standards would be impracticable and would impede the provision of governmental services designed to improve the safety in living standards of citizens.
Under such circumstances, it seems the only way the county could have avoided negligence is to demand the child be penned up under lock and key 24 hours a day.
In fact, Mrs. Wind had warned the child to stay away from the washing machine wringer. However, we must further keep in mind this was a two-and-a-half year old child. The child’s injury was not the type the boy was particularly susceptible to because of his hyperactivity. As any parent of a normal, active, two-and-a-half year old child can attest, the possibility of this sort of tragedy is not limited to hyperactive children. The danger to which the child was exposed is one attendant to the care of all two-and-a-half year old children. I fail to see when the majority would ever preclude the possibility of a county’s liability for negligent supervision where an infant is involved, hyperactive or not. There is no causal nexus between the particular, allegedly negligently supervised danger and the injury. I’m afraid the majority ignores the time honored doctrine that “[wjhether a particular act, or a failure to act, has, wholly or in part, proximately caused an accident depends in the last analysis on the application of common sense to the facts of each case.” Johnson v. Chicago Great Western R.R. Co., 242 Minn. 130, 134, 64 N.W.2d 372, 376 (1954).
In the final analysis, there was no duty; there was no breach; there was no causation. Rather there was a tragic injury and a frantic, tortured search for a deep pocket. While I sincerely hope this poor child may be somehow recompensed for this injury, I believe allowing liability against the county is a shortsighted means of achieving that goal. It runs counter to the policy and dictates of the Indian Child Welfare Act; discourages county assistance in future Indian foster care placements; and generally obviates long standing, recognized principles of tort law.