NO. 96-076 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1996

INTHEMATTEROF THEADOPTION OFJESSICA LYNNRIFFLE,

aYouth in Needof Care

APPEAL FROM: District Court of the Tenth Judicial District,

In and for the County of Fergus, TheHonorable John R.Christensen, Judge presiding.

COUNSELOFRECORD:

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

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

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

Appellants, Kenneth and Clara Siroky (the Sirokys), appeal from the Findings of Fact andConclusions of LawandOrder of the Tenth Judicial District Court, Fergus County, concluding that Jessica Lynn Riffle (Jessica) is anIndian child andthat, pursuant to the Indian Child Welfare Act, 25U.S.C. §§ 1901 to 1963 (the ICWA), Jessica's uncle, John Garlick (Garlick) gets the benefit of

anadoptive placement preference. Weaffirm. The Sirokys present four issues onappeal: 1. Is Jessica an "Indian child" asdefined bythe 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 andHuman 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 reAdoption of Riffle (1995), 273Mont. 237, 902P.2d 542. InAdoption of Riffle, Garlick, whois anenrolled 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. Wereversed and remanded for adetermination of whether Jessica is an "Indian child" pursuant to 25U.S.C. 51903(4). In Adoption of Riffle, weheld that, in determining whether a child is an "Indian child" pursuant to the ICWA, the Tribe is the

2ultimate authority oneligibility for tribal membership. Adoption

of Riffle, 902P.2d at 545. The ICWAdefines an"Indian child" as "any unmarried person who is under ageeighteen and is either (a)

amember of anIndian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of amember of an Indian tribe." 25 U.S.C. 5 1903(4). Consequently, we held that the district court erred in relying onthe 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, weheld that the Tribe must beallowed 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 amember of the Tribe wasconclusive. 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 andsecure environment for Jessica, the court concluded that there was no good cause not to follow the ICWA placement preferences and that the ICWApreference 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

3Riffle, 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" asdefined bythe ICWA? We find this issue to be dispositive. There are two prerequisites to the application of the ICWA: (1) achild custody proceeding; and (2) an Indian child. 25 U.S.C. § 1903; see qenerallv Debra DuMontier-Pierre, The Indian Child Welfare Act of 1978: AMontana Analysis, 56MONT.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 achild is not a member of that tribe, or is not eligible for membership in that tribe, orthat the biological parent is or is not amember of that tribe is conclusive. Adoption of Riffle, 902P.2d at 545. Weheld that the Tribe is the ultimate authority oneligibility 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 solong asthe Tribe recognizes the child asamember. 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 acommon but not exclusive evidentiary means of determining membership in atribe. 4Baby Boy Doe, 849 P.2d at 931 (citing 44Fed.Reg. 67,584, 67,586

(1979)). Given the Tribe's determination that Jessica is anIndian child, wehold that the District Court correctly concluded that the Tribe's determination wasconclusive. Since Jessica is an Indian child, the ICWAapplies to this adoption proceeding. Accordingly, the District Court properly applied the adoptive placement preferences found at 25 U.S.'?. 5 1915. 25U.S.C. 51915(a) provides: In anyadoptive placement of anIndian child under State law, apreference shall begiven, in the absence of good cause to the contrary, to aplacement with (1) amember 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 25U.S.C. 51903(2) as follows:"extended family member" shall beasdefined bythe law or custom of the Indian child's tribe or, in the absence of such law or custom, shall beaperson whohas reached the age of eighteen and who is the Indian child's grandparent, aunt or uncle, brother or sister, brotherin-law orsister-in-law, niece ornephew, first orsecond 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 25U.S.C. 51915(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) 49Cal.Rptr.2d 507. In In re Bridget R.,

5the 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., 49Cal. Rptr.Zd at 526. In 1978, Congress passed the ICWAin response to asignificant threat tothe integrity of Indian cultures caused bythe alarmingly high incidence of often unwarranted removal of Indian children from their families. 25U.S.C. §lYOl(4). Congress declared that "it is the policy of this Nation to protect the best interests of Indian children andtopromote the stability andsecurity of Indian tribes and families by the establishment of minimum Federal standards for the removal of Indian children from their families. /I 25U.S.C. §1902. Asthis 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), 195Mont. 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 andintegrity 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), 490U.S. 30, 109S.Ct. 1597, 104L.Ed.Zd 29, the United States Supreme Court affirmed the intent andpurposes of the ICWA. In In re Baby Girl Doe, wediscussed Mississippi Choctaw at length andconcluded that "the principal purposes of the Act are to promote the stability andsecurity of Indian tribes by preventing

6further loss of their children; andto protect the best interests

of Indian children byretaining their connection to their tribes." In re Baby Girl Doe, 865 P.2d at 1095. Accordingly, wehold 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 weaffirm the District Court's determination that the ICWA applies to this adoption, adetermination of "best interests" under Montana law would be inappropriate. The ICWA expresses the presumption that in anadoptive placement of an Indian child, the child's best interests are best served by placement with an extended family member. 25U.S.C. 1915(a) (1). Toovercome this preference, aparty must establish the existence of "good cause to the contrary." 25U.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) Theextraordinary physical oremotional needs of the child asestablished bytestimony of aqualified expert witness. (iii) The unavailability of suitable families for placement after adiligent 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, andAdoption 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: Webelieve, however, that afinding of good cause cannot bebased simply onadetermination that placement outside the preferences would be in the child's best interests. Theplain language of the Act read asawhole and its legislative history clearly indicate that state courts are apart of the problem the ICWAwasintended 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, 109S.Ct. at 1606-07. Matter of Custody of S.E.G. (Minn. 1994), 521N.W.Zd 357, 362-63.

1Wenote that in In re M.E.M., westated 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. Inthe instant case, however, weare not considering the transfer of jurisdiction to atribal 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 onthis issue. 8Although the District Court cited Adoption of M.andconcluded

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. Thedetermination that there wasno"good cause" not to follow the ICWAplacement preference wassufficient. 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 asproviding anapproved adoptive home; Garlick is bonded with Jessica; hehadsignificant contact with her during the first 18months of her life; heis Jessica's uncle and, assuch, is part of her extended family; Jessica's natural mother supported Garlick

as the adoptive parent for Jessica, and; the Department supports Garlick asthe adoptive parent for Jessica. Weaffirm the District Court's decision to adhere to the adoption preferences established bythe ICWA. 4. Is the Montana Department of Public Health andHuman 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 ICWAand 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

9that they donot need the Department's consent to petition for the

adoption of Jessica is moot. Affirmed.

Justices

10Justice Karla M.Gray, specially concurring.

Iconcur in the result reached in the Court's opinion andwith much of what is said therein. Onthe basis of the record before us, however, Idisagree with the Court's conclusion that Jessica is

an"Indian child" asdefined bythe ICWAandits related conclusion that the ICWAapplies. Iwould affirm the District Court onthe basis of that court's determination that Jessica's adoption byher uncle, John Garlick, is in her best interests. Asthe Court correctly observes, the ICWAdefines 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 anIndian tribe." See25U.S.C. §1903(4). Ialso agree with the Court that aTribe's determination that achild is "a member or eligible for membership" is conclusive for purposes of the ICWA. TheCourt states that the Tribe officially recognized Jessica

as anIndian child and "amember of the Tribe." Iagree 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 canmakebyapplying the ICWA definitions to the record before it. I disagree with the Court's conclusion that the Tribe's "recognition" of Jessica as amember of the Tribe meets either definition of an "Indian child" under the ICWA. Idonot find of

11record any statement by the Tribe that Jessica either & amember

of, or is eligible for membership in, the Tribe. What the Tribe does say is that Jessica is "recognized as amember during her childhood." It is myview that the ICWArequires more than this. Thus, while I agree with the Court that the language of the ICWA does not require that the child actually beenrolled asamember, the ICWAdoes require that the child beamember or eligible for membership. No clear and unequivocal determination to either effect has been madeby the Tribe. Notwithstanding mydisagreement with the Court over whether the ICWAapplies here, however, I also would affirm the District court. The District Court determined that it is in Jessica's best interests to beadopted byher uncle, John Garlick, and there is a surfeit of evidence onthe record to support that determination.

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