No. 86-61 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

IN RE THE MATTER OF M.E.M., JR. 

APPEAL FROM: District Court of the Eighth Judicial District, 

In and for the County of Cascade, 

The Honorable Joel G. Roth, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Vivian Marie, Montana Legal Services, Great Fall-s, 

Montana 

Steven L,. Bunch, Montana Legal Services, Helena, 

Montana 

For Respondent : 

John F. Iwen, Great Falls, Montana 

Leslie C. Taylor, Dept. SRS, Helena, Montana 

Amicus Curiae : 

Andrew M. Small for Gros Ventre & Assiniboine, 

Billings, Montana 

Submitted on Briefs: June 20, 1986 

Decided: September 16, 1986 

Filed : 

SFP 1 6 1985 

* *+ 

Clerk 
Mr. Justice William E. Hunt, Sr. , delivered the Opinion of 

the Court. 

Nellie Silk, the aunt of M.E.M., Jr., appeals the 

decision of the Cascade County District Court denying her 

motion to intervene in adoption proceedings concerning 

M.E.M., Jr. and dismissing her petition for adoption. 

In her appeal, Silk raises two issues: 

1. Does Silk have the right to intervene in the 

adoption proceedings? 

2. May Silk petition for adoption? 

We reverse the judgment of the District Court and remand 

the cause for hearing pursuant to this opinion. 

M.E.M., Jr. (hereinafter M.E.M.) is an enrolled member 

of the Gros Ventre and Assiniboine Tribes of the Fort Belknap 

Indian Community. He was born in Havre, Montana in March, 

1981. His parents were acute alcoholics. Prior to M.E.M.'s 

birth, Nellie Silk, M.E.M.'s paternal aunt, expressed her 

interest in caring for the child because she was aware of her 

brother and sister-in-law's parenting problems. M.E.M.'s 

father verbally agreed to that arrangement. 

However, following M.E.M.'s birth, Hill County 

Department of Social and Rehabilitative Services (SRS) placed 

him in foster care immediately upon his release from the 

hospital. Temporary custody of M.E.M. was awarded to SRS on 

April 22, 1981. 

Upon learning that SRS had taken the child into foster 

care, Silk wrote to SRS requesting that M.E.M. be placed in 

her custody. She also contacted Montana Legal Services, who 

wrote in her behalf to SRS. 
SRS responded that because of SRS's efforts to 

reintegrate the family, placement of M.E.M. with Silk would 

be inappropriate. Silk is a member of the Standing Rock 

Sioux Tribe and resides on the Fort Peck Reservation. 

Visitation between Havre and Fort Peck was considered too 

difficult. SRS indicated M.E.M. was not being placed for 

adoption at that time but stated, "We [SRS] are aware of the 

implications of the Child Welfare Act and she [Silk] of 

course, as a member of the family would be considered if any 

adoption does take place." 

In May of 1983, M.E.M. 's parents' parental rights were 

terminated. That termination was subsequently upheld on 

appeal. In the Matter of M.E.M., Jr. (Mont. 1984), 679 P.2d 

1241, 41 St.Rep. 636. 

SRS notified the Fort Belknap Tribes of the termination. 

Silk, however, was not informed by either SRS or the Tribes 

about the termination proceedings nor was she notified of 

M.E.M.'s availability for adoption or his preadoptive 

placement with a non-Indian family. In June of 1984 Silk 

learned through informal contacts that M.E.M. had been placed 

for adoption. She went to the Fort Belknap Tribal Judge to 

inquire. He informed her the child had been placed, but he 

did not know where. Silk, then through Legal Services, 

contacted SRS to inquire about M.E.M. SRS did not respond. 

Because the termination of parental rights had taken 

place in Hill County, Silk petitioned the Hill County 

District Court for adoption and moved to intervene in any 

previously instituted adoption proceeding. The District 

Court refused Silk's filings hecause there was no action 

concerning M.E.M. pending in that court. SRS continued to 

withhold information concerning M.E.M. from Silk. 
Later, by chance, Silk learned that adoption proceedings 

had been initiated by the foster family in Cascade County. 

She then filed a petition for adoption and a motion to 

intervene in the Cascade County District Court on October 12, 

1984. Subsequently, Silk negotiated for an open adoption 

arrangement. Those negotiation efforts failed and SRS 

opposed her motions. The District Court denied her motion 

and petition. It also denied her later motion to amend or 

alter that judgment. 

In support of her motion to intervene, Silk argues that 

she meets the requirements of Rule 24(a), M.R.Civ.P. which 

governs the right to intervene. She further argues that in 

denying her motion the District Court denied her due process 

of law guaranteed by our Montana Constitution and the federal 

Constitution. Because we hold Silk does have a statutory 

right to intervene we need not discuss the constitutional 

question. 

Rule 24 (a), M.R.Civ.P. provides: 

Upon timely application anyone shall be permitted 

to intervene in an action: . . . (2) when the 

applicant claims an interest relating to the 

property or transaction which is the subject of the 

action and he is so situated that the disposition 

of the action may as a practical matter impair or 

impede his ability to protect that interest, unless 

the applicant's interest is adequately represented 

by existing parties. (Emphasis added.) 

We find that Silk has just such an interest in the 

adoption proceedings concerning M.E.M. Her interest stems 

from the provision of the Indian Child Welfare Act of 1978, 

25 U.S.C. S 1901 - et seq. (ICWA). The ICWA expresses 

Congress' intention that Indian children be placed for 

adoption with Indian families where that is possible. 

Section 1915 (a) of the Act states: 
Adoptive placements: preferences. 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. 

As we have previously noted: 

The Act represents Congressional recognition of the 

concomitant cultural interests of Indian tribes and 

Indian children; interests fundamental to the 

perpetuation and preservation of their mutual and 

valuable heritage. Congress found 'that an 

alarmingly high percentage of Indian families are 

broken up by the removal, often unwarranted, of 

their children from them by nontribal public and 

private agencies and that an alarmingly high 

percentage of such children are placed in 

non-Indian foster and adoptive homes and 

institutions . . . 25 U.S.C.A. S 1904 (4). We 

share that concern. 

In the Matter of M.E.M. (1981), 195 Mont. 329, 333, 635 P.2d 

1313, 1316 (a different case than the instant case). 

We have also noted in the context of proceedings under 

the ICWA that the State of Montana has a strong and 

independent commitment to the principles embodied in the 

ICWA. As we stated in the Matter - of M.E.M., supra. 

. . . Our constitution recognizes 'the distinct 

and unique cultural heritage of the American 

Indians and is committed in its education goals to 

the preservation of their cultural integrity'. 

1972 Mont. Const., Art. X, S l(2). Preservation of 

Indian culture is undoubtedly threatened and 

thereby thwarted as the size of any tribal 

community dwindles. In addition to its artifacts, 

language and history, the members of a tribe are 

its culture. Absent the next generation, any 

culture is lost and necessarily relegated, at best, 

to anthropological examination and categorization. 

- In applying our state --- law and the Indian Child 

Welfare --- Act we are cognizant -- of our responsibility 

- to promote and protect the unique Indian cultures 

- of - our state for - - allfuture generations - of 

Montanans. (Emphasis added.) 

In light of these federal and Montana statutory and 

constitutional provisions we turn to Silk's right to 
intervene. Silk is an "extended family member" within the 

meaning of the ICWA § 1915(a). She has an interest created 

by the preferences listed in that same section. And clearly, 

the present parties to the adoption do not adequately 

represent her interest. Therefore Silk meets all of the 

requirements laid out in Rule 24 (a), M.R.Civ.P. for 

intervention. However, the District Court ruled that Silk's 

motion was not timely. Given the ignorance in which Silk was 

kept, we can not see how Silk could have been more diligent 

or any earlier in her petition or motion. 

Therefore, we hold Silk's motion to intervene must be 

granted. 

Further, the paramount consideration in an adoption 

proceeding is the best interests of the child involved. The 

absence of SRS consent to the adoption in these circumstances 

may not be found to bar Silk's claim if, in the court's 

discretion, this lack of agency consent would not promote the 

child's best interests. 

Because we remand the case to allow Silk to intervene, 

she may again file her petition for adoption to be considered 

along with the foster parents' petition in the action. We, 

of course, do not decide the adoptive placement of the child. 

However, these competing petitions are to be considered in 

light of the ICWA preferences which must be followed absent a 

showing by the foster parents that good cause exists for not 

following them. 

Reversed and remanded. 
We Concur: 

eehcd, .hw