DA 09-0463

IN THE SUPREME COURT OF THE STATE OF MONTANA

2010 MT 38

IN THE MATTER OF THE FAIR HEARING OF

JEWELL HANNA

CFSD CAPS RR #189612,

Appellant.

APPEAL FROM: District Court of the First Judicial District,

In and For the County of Lewis and Clark, Cause No. ADV 08-599

Honorable Dorothy McCarter, Presiding Judge

COUNSEL OF RECORD:

For Appellant:

Terrence L. Toavs, Law Offices of Terrance L. Toavs; Wolf Point,

Montana

For Appellee:

Michelle J. Maltese, Special Assistant Attorney General; Helena, Montana

Submitted on Briefs: January 13, 2010

Decided: February 23, 2010

Filed:

__________________________________________

Clerk

February 23 2010
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Justice W. William Leaphart delivered the Opinion of the Court.

¶1 Jewel Hanna appeals the decision and order of the District Court for the First

Judicial District, Lewis and Clark County, ruling that the Child and Family Services

Division (CFSD) of the Department of Public Health and Human Services (DPHHS) had

jurisdiction to issue a report substantiating child abuse and neglect by Hanna.

¶2 The sole issue on appeal is whether the District Court erred in concluding that

CFSD had jurisdiction, or the power to exercise its authority, to substantiate child abuse

and neglect by Hanna. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶3 This case arises from the failed placement of M.S., an Indian child, in the foster

care of Jewel Hanna, an enrolled member of the Fort Peck Indian Tribes. At all times

relevant to this case, Hanna has resided in Poplar, Montana, within the external

boundaries of the Fort Peck Indian Reservation.

¶4 M.S. was born in Minnesota and was in foster case since birth. The State of

Minnesota had terminated the parental rights of M.S.’s birth parents and assumed legal

custody. Pursuant to the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963

(2006), a central policy of which is to promote placement of Indian children removed

from their families in foster and adoptive homes that reflect Indian values and culture,

Minnesota sought to place M.S. with Hanna, who is M.S.’s great aunt.

¶5 Because Minnesota sought to place M.S. in a foster home in Montana, the

Interstate Compact on the Placement of Children (ICPC) governed. Section 41-4-101,
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art. III, MCA. As DPHHS administers Montana’s obligations as a receiving state under

ICPC, § 41-4-104, MCA, DPHHS had to approve the foster placement, § 41-4-104, art.

III(4), MCA. After conducting a home study and background investigation, DPHHS

approved placing M.S. with Hanna. In July 2004 DPHHS licensed Hanna as a kinship

foster care provider under § 52-2-662, MCA, and Rule 37.51.202, Admin. R. M. A

month later, DPHHS placed the child with her great aunt.

¶6 Despite the general prohibition of state interference with tribal affairs, DPHHS, a

state agency, placed M.S., an Indian child, with Hanna, an enrolled member living on the

Fort Peck Indian Reservation, under the auspices of a Memorandum of Agreement

(MOA) between the Assiniboine and Sioux Tribes of the Fort Peck Indian Reservation

(Tribes), the Bureau of Indian Affairs (BIA), and the State (DPHHS). The MOA, it turns

out, is the linchpin of CFSD’s claim for jurisdiction.

¶7 M.S.’s placement with Hanna was short-lived. In March 2005 staff at the daycare

where Hanna would leave M.S. when she went to work reported their suspicion that M.S.

was suffering abuse. Upon receiving the report of abuse, CFSD took physical custody of

M.S., placing the child in a temporary foster home off the reservation, in Miles City.

Subsequently M.S. was sent to Minnesota, which state retained legal custody. Minnesota

later consented to M.S.’s adoption.

¶8 Contemporaneous with M.S.’s removal, CFSD, along with BIA and a tribal

criminal investigator, initiated an investigation into the cause of the alleged abuse. They

concluded that Hanna had abused M.S., and in May 2005 CFSD issued a substantiated
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report of abuse and neglect to Hanna. The report informed Hanna of the adverse effects

that CFSD’s substantiation determination would have on her ability to obtain work in

fields regulated by DPHHS.

¶9 Within one month of receiving the substantiated report, Hanna sought a fair

hearing under Rule 37.47.610, Admin. R. M., to contest the determination. Under Rule

37.47.615, Admin. R. M. (which contains exceptions to the right to a fair hearing under

Rule 37.47.610, Admin. R. M.), a person subject to a substantiated report of child abuse

is not entitled to a fair hearing if she has been convicted of an offense related to child

abuse. CFSD did not begin the fair hearing process for Hanna until 2007, since the

investigation had not led to criminal charges.

¶10 After CFSD initiated the procedures for the fair hearing, Hanna moved to dismiss

the substantiation proceeding on jurisdictional grounds. Hanna argued that under the Fort

Peck Comprehensive Code of Justice (CCOJ), the Tribes maintained exclusive

jurisdiction over matters involving Indian youth and that CFSD’s substantiation

proceeding interfered with tribal sovereignty. The hearing officer of DPHHS adopted

this argument and dismissed the substantiation proceeding.

¶11 CFSD appealed the hearing officer’s decision to the District Court pursuant to the

Montana Administrative Procedure Act (MAPA), § 2-4-702(1)(a), MCA. There, CFSD

argued that pursuant to the MOA, it had jurisdiction to issue the substantiated report

against Hanna under state law and policy because it had licensed Hanna as a kinship

foster care provider in the first place. CFSD maintained that the CCOJ did not apply
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because its relevant provisions merely focused on the welfare of children and did not

address substantiation determinations, which focus on the abuser (here, Hanna). This

argument persuaded the District Court, which reversed the hearing officer’s decision.

¶12 Hanna timely appealed the District Court’s decision.

STANDARD OF REVIEW

¶13 Resolution of this case turns on the question of subject matter jurisdiction. This is

a question of law, which we review de novo. See Bugger v. McGough, 2006 MT 248,

¶ 19, 334 Mont. 77, 144 P.3d 802.

DISCUSSION

¶14 Whether the District Court erred in concluding that CFSD had jurisdiction to

substantiate child abuse and neglect by Hanna.

¶15 Hanna’s principal argument is that CFSD lacks jurisdiction to pursue a

substantiation proceeding against an enrolled tribal member, like Hanna, for acts

committed on the reservation against an Indian child. We disagree.

¶16 Our discussion begins with the sovereign rights of the Fort Peck Indian Tribes.

Tribes, as “domestic dependent nations,” exercise “inherent sovereign authority over their

members and territories”; that is, tribes may make laws to govern their internal affairs

and social relations. Zempel v. Liberty, 2006 MT 220, ¶ 20, 333 Mont. 417, 143 P.3d 123

(quoting Okla. Tax Commn. v. Potawatomi Tribe, 498 U.S. 505, 509, 111 S. Ct. 905, 909

(1991)). Tribes are, however, subject to the “plenary and exclusive” authority of the

United States Congress. United States v. Lara, 541 U.S. 193, 200, 124 S. Ct. 1628, 1633
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(2004). With roots in the so-called Indian Commerce Clause and the Treaty Clause, U.S.

Const., art. I, § 8, cl. 3; art. II, § 2, cl. 2, this congressional authority, along with tribes’

recognized right of self-government, has traditionally operated to exclude state authority,

or jurisdiction, over Indian affairs. Lara, 541 U.S. at 200, 124 S. Ct. at 1633; White Mt.

Apache Tribe v. Bracker, 448 U.S. 136, 142, 100 S. Ct. 2578, 2583 (1980); Worcester v.

Georgia, 31 U.S. 515, 561 (1832); but see Nevada v. Hicks, 533 U.S. 353, 361-62 n. 4,

121 S. Ct. 2304, 2311 n. 4 (2001) (suggesting, in dicta, limitation on holding from

Worcester).

¶17 This Court has acknowledged this general limitation, that “[t]he exercise of state

jurisdiction over activities occurring entirely on Indian lands is an infringement on

inherent tribal authority and is contrary to principles of self-government and tribal

sovereignty.” Flat Ctr. Farms, Inc. v. State, 2002 MT 140, ¶ 13, 310 Mont. 206, 49 P.3d

578; cf. First v. State, 247 Mont. 465, 471, 808 P.2d 467, 470 (1991) (ruling that State

may exercise jurisdiction over tribal members within reservations if such exercise is not

preempted by Congress and does not interfere with tribal sovereignty). Despite this

general prohibition against state jurisdiction over Indian affairs, states and tribes may,

with congressional approval, enter into cooperative agreements altering the scope of

jurisdiction on reservations. See Native Village of Stevens v. Smith, 770 F.2d 1486, 1489

(9th Cir. 1985) (explaining that 42 U.S.C. § 1919(a) authorizes tribal-state cooperative

agreements regarding child care); cf. Kinnerly v. Dist. Ct. of the Ninth Jud. Dist. of Mont.,
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400 U.S. 423, 423-30, 91 S. Ct. 480, 480-84 (1971) (ruling that tribe could not grant state

jurisdiction over tribal affairs absent congressional authorization).

¶18 Here, CFSD points to the Memorandum of Agreement between the Tribes and

DPHHS (and BIA) as the federally-authorized cooperative agreement that is the basis for

its jurisdiction to maintain the substantiation determination. To evaluate this position, we

must consider first whether the MOA enjoys congressional authorization, and second

whether the MOA allows CFSD to pursue a substantiation proceeding against Hanna.

¶19 The purpose of the MOA is to allow eligible Indian children on the Fort Peck

Indian Reservation to receive services and foster care maintenance payments from CFSD

(or BIA). Under the MOA, CFSD was to provide care and services to Indian children

eligible for funding under the foster care program of Title IV-E of the Social Security

Act, 42 U.S.C. §§ 670-679c (2006).

1

The Tribes, CFSD, and BIA entered into the MOA

under the authority of the Indian Child Welfare Act, 25 U.S.C. §§ 1901-1963 (2006).

Under § 1919(a) of ICWA, tribes and states:

are authorized to enter into agreements with each other respecting care and

custody of Indian children and jurisdiction over child custody proceedings,

including agreements which may provide for orderly transfer of jurisdiction

1 Title IV-E creates a foster care program of “cooperative federalism” in which states may 

choose to participate. Native Village of Stevens, 770 F.2d at 1487-88. Participating states create

and operate foster care and adoption programs that conform to federal requirements, and in

exchange the federal government reimburses states for their expenditures. 42 U.S.C. §§ 671(a),

674(a). Until 2008, Tribes had to enter into agreements with states to receive Title IV-E funding.

Barbara Ann Atwood, Wells Conference on Adoption Law: Achieving Permanency for American

Indian and Alaska Native Children: Lessons from Tribal Traditions, 37 Cap. U. L. Rev. 239, 252

n. 64 (2008). The Fostering Connections to Success and Increasing Adoptions Act of 2008, Pub.

L. No. 110-351, §§ 301-302, 122 Stat. 3949, 3962-73 (2008), now allows tribes to enjoy the

same direct access to Title IV-E funding as states do.
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on a case-by-case basis and agreements which provide for concurrent

jurisdiction between States and Indian tribes.

This language is sufficiently broad to include agreements between tribes and states that

grant state agencies jurisdiction to administer Title IV-E foster care programs and to

make foster care maintenance payments to Indian children on Indian reservations. See

Native Village of Stevens, 770 F.2d at 1489-90 (holding that § 1919(a) does not require

states to enter agreements with tribes, but suggesting that § 1919(a) allows tribes and

states to enter agreements regarding Title IV-E foster care programs and payments).

Accordingly, we conclude that the MOA is a valid, federally-authorized agreement.

¶20 Hanna objects to this conclusion, arguing that while § 1919(a) may authorize

states and tribes to enter agreements “respecting care and custody of Indian children and

jurisdiction over child custody proceedings,” it does not allow agreements that deprive

tribal courts of jurisdiction to adjudicate the rights of accused abusers. We reject this

argument. The substantiation proceeding, which is an adjudication of Hanna’s rights,

Dowell v. Mont. Dept. of Pub. Health & Human Servs., 2006 MT 55, ¶¶ 15-16, 20, 331

Mont. 305, 132 P.3d 520, arose directly from Hanna’s “care” of an Indian child, M.S. As

such, it fits within the language of § 1919(a). Such investigation and verification of

alleged child abuse and neglect are necessary components of an effective foster care

program. See e.g. 42 U.S.C. § 671(a)(9)-(10) (requiring approved state foster care

programs to provide for reporting of child abuse and to establish standards for foster

homes). Furthermore, as we see below, CFSD’s authority to pursue the substantiation

proceeding conforms with the grant of jurisdiction from the MOA.
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¶21 Accordingly, we turn to the second consideration: whether the MOA authorizes

CFSD to pursue a substantiation proceeding against Hanna for her alleged abuse of M.S.

We conclude that it does.

¶22 The relevant language of the MOA is plain on its face. Part X of the MOA

addresses licensing of foster homes. Paragraph B of Part X reads, “The Tribes and BIA

will recognize the CFSD license of a foster home when the home has a current license

issued by CFSD.” Paragraph C of Part X then provides:

The agency that licensed a home, upon receipt of a referral regarding

violation of foster home licensing standards, will conduct an investigation

to determine compliance with governing licensing standards, statute/tribal

code and policy. The final decision concerning licensing status will remain

with the agency that issued the license.

Paragraph E of Part X adds:

When CFSD and BIA receive a referral on a licensed foster home alleging

child abuse or neglect, the report shall be investigated by the placing

agency and the agency that issued the license and follow the requirements 

of the Indian Child Protection Act (25 USC 3203) where appropriate. 

¶23 These provisions demonstrate that DPHHS, the agency that licensed Hanna here,

is responsible for investigating allegations of abuse and neglect, documenting the

conclusions of such investigation in a final report, and making the final decision about

Hanna’s licensing status. By the terms of Paragraph E, upon receipt of an allegation of

abuse and neglect by Hanna, CFSD (the relevant section of DPHHS) was required to

conduct an investigation. Under 25 U.S.C. § 3203(b)-(c) of the Indian Child Protection

Act (cited in Paragraph E), this investigation was to lead to a final written report (here,

the substantiated report). Following the final written report, under Paragraph C, CFSD
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was required to make a final decision about Hanna’s licensing status. Where the parties

to the MOA wanted the Tribes’ Comprehensive Code of Justice to apply or the Fort Peck

Tribal Court to have jurisdiction, they expressly so stated. See MOA, pt. III, ¶ G; pt. V,

¶ B. The MOA does not contemplate tribal jurisdiction with regard to investigations of

and reports on child abuse and neglect, and final licensing decisions brought by state

agencies under Part X. For this reason, we hold that the CFSD had jurisdiction under the

terms of the MOA to pursue the present substantiation proceeding against Hanna under

state laws and regulations. We therefore affirm the ruling of the District Court.

/S/ W. WILLIAM LEAPHART

We concur:

/S/ MIKE McGRATH

/S/ JAMES C. NELSON

/S/ MICHAEL E WHEAT

/S/ PATRICIA O. COTTER