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) 

Filed: 

Submitted on Briefs: June 27, 1996 

Decided: July 30, 1996 
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, brotherin-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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