No. 95-132 INTHESUPREMECOURTOFTHESTATEOFMONTANA 1995

INTHEMATTEROFTHEADOPTION OFJESSICA LYNNRIFFLE

APPEAL FROM: District Court of the Tenth Judicial District,

In and for the County of Fergus, The Honorable Peter L. Rapkoch, Judge presiding.

COUNSELOFRECORD:

For Appellants: Monte J. Boettger, Attorney at Law, Lewistown, Montana AnnGilkey, Department of Family Services, Helena, Montana Ronald Ameson, Attorney at Law, Billings, Montana For Respondents: Jerrold Nye, Attorney at Law, Billings, Montana

Submitted onBriefs: July 28, 1995

Decided: September 13, 1995 Filed:Chief Justice J. A. Turnage delivered the Opinion of the Court.

Appellants JohnGarlick, Montana Department of Family Services and Turtle Mountain Band of Chippewa appeal the decision of the Tenth Judicial District Court, Fergus County, granting the petition of respondents Kenneth and Clara Siroky for adoption of Jessica Lynn Riffle. Wereverse and remand. Wefind the following issue dispositive onappeal: Did the District Court err in determining that Jessica wasnot

an"Indian child" pursuant to the Indian Child Welfare Act (ICWA)? The facts relevant to the issue addressed in this opinion are

as follows: Jessica Lynn Riffle (Jessica) was born on July 14, 1988, to Mary Garlick Riffle and Gary D. Riffle. Jessica is l/8 Chippewa Indian. Jessica's natural parents struggled with alcohol and drug abuse aswell asdomestic violence. These problems made it difficult for her parents toproperly care for Jessica. Jessica spent much time with her extended family, including her grandmother, Dorothy Garlick andher uncle, John Garlick. In May 1990 the Montana Department of Family Services (DFS) removed Jessica from her mother's care andplaced her in the foster

care of Kenneth and Clara Siroky. DFS returned Jessica to her mother in December of 1990. DFSagain removed Jessica from her mother's care in June 1991 and returned her to the foster care custody of the Sirokys where shehas remained. OnAugust 4, 1992, the Turtle Mountain Band of Chippewa (the Tribe) wasnotified of the impending termination of Mary Riffle's parental rights. The Tribe was again notified on December 16,1992. TheTribe took noimmediate action. OnSeptember 28, 1993,

the Tenth Judicial District Court terminated Mary andGary Riffle's parental rights and awarded DFSpermanent custody of Jessica. DFScommenced adoption proceedings, seeking to find asuitable adoptive parent for Jessica. John Garlick sought custody of Jessica and on May 5, 1993, petitioned for her adoption. DFS concluded that John Garlick was asuitable adoptive parent and consented to his adoption of Jessica. OnMay3, 1994, the Sirokys petitioned the court for Jessica's adoption. OnMay 26, 1994, shortly before John wasto receive custody of Jessica, the Sirokys obtained atemporary restraining order preventing Jessica's removal from their custody. OnMay 15, 1994, prior to the District Court's determination of Jessica's custody, the Tribe moved the court's permission to intervene in the proceedings. OnMay20, 1994, the court preliminarily granted the Tribe's motion. However, onJuly 27, 1994, the court adopted the Bureau of Indian Affairs' (BIA) opinion that Jessica was not an "Indian child" pursuant to ICWAand therefore ICWAdid not apply to these proceedings. OnNovember 14 and 15, 1994, the District Court heard the arguments of petitioner John Garlick and petitioners Kenneth and Clara Siroky concerning their respective desires to adopt Jessica. OnDecember 12, 1994, the District Court issued its findings of fact, conclusions of law, andorder granting the Sirokys' petition for adoption. John Garlick, DFSandthe Tribe appeal the decision of the District Court.

3Did the District Court err in determining that Jessica wasnot

an"Indian child" pursuant to ICWA? In its July 27, 1994, order, the District Court concluded that Jessica wasnot an"Indian child" pursuant to ICWAand, therefore, the provisions of ICWAwere not applied to these proceedings. The court concluded that the Tribe was given the opportunity to intervene in these proceedings, yet failed to indicate whether it considered Jessica eligible for tribal membership. The court proceeded to conclude that the BIA's determination that Jessica was not eligible to become amember of the Tribe was conclusive. The court held that, even if the Tribe wasallowed to intervene later in the proceedings, the BIA's determination could not berebutted. In reference to the BIA's determination that Jessica lacked sufficient blood quantum to be considered for Tribal membership, the court stated: It is significant that the Bureau's determination is in the present tense. That is because the disqualifying act "insufficient blood quantum", that is, not enough Indian blood, is anobjective, permanent condition. It is not acondition based upon procedural steps or missteps or nonsteps of the parties. The court reiterated its conclusion that Jessica was not eligible for membership in the Tribe andtherefore not an "Indian child" in its December 12, 1994findings of fact andconclusions of law concerning the parties' respective petitions for adoption. We review district court conclusions of law to determine whether the court's interpretation of lawwascorrect. Steer, Inc. v. Dep't of Revenue (19901, 245Mont. 470, 474, 803P.2d 601, 603.

4ICWAcontains apolicy statement that encourages tribal input

andparticipation incustody proceedings involving Indian children. Title 25U.S.C. 51902 states: The Congress hereby declares 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 and the placement of such children in foster or adoptive homes which will reflect the unique values of Indian culture, andbyproviding for assistance to Indian tribes in the operation of child and family service programs. Oneof the "minimum federal standards" promulgated by ICWAis found in 25 U.S.C. § 1911(c), which provides, "[iin any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child andthe Indian child's tribe shall have ariqht to intervene at any point in the proceedinq." (Emphasis added.) Wenote that onMay20, 1994, the District Court granted the Tribe's motion to intervene. However, onJuly 27, 1994, the court determined that the Tribe failed to promptlv intervene after receiving notice of the proceedings. Thecourt concluded that the Tribe's failure topromptly intervene after receiving notice ofthe proceedings waived the Tribe's right to intervene at alater date. Regardless of the procedural peculiarities of the District Court's actions, wewill address the Tribe's asserted right to intervene in these proceedings. Wefind nosupport in ICWAfor the court's conclusion that the Tribe waived its right to intervene. While 25 U.S.C. § 1912 establishes notice requirements which must be fulfilled before 5proceedings maygoforward, this section does not indicate that the

Tribe's right to intervene is impaired if it does not intervene promptly after receiving such notice. In In the Matter of the Guardianship of Q.G.M. (Okl. 1991), 808P.2d 684, the Oklahoma Supreme Court concluded that an Indian tribe could not waive its right to intervene merely by failing to intervene within the time provided by 25 U.S.C. 5 1912. In resolving this issue, the court explained: [Tlhe grandparents argue that the tribe waived its rights when it neither responded nor requested additional time to prepare for the guardianship proceeding which is permitted by 25 U.S.C. 5 1912(a) (1978). [Footnote omitted.1 Although wemight agree with the grandparent's [sic] position, weare precluded from doing so by 25 U.S.C. 51911(c)

. . . As amatter of statutory analysis, the Court must give effect to the Act. Wecannot ignore the plain words of astatute. [Footnote omitted.] Thestatute allows the tribe to intervene atanypoint inthe proceeding

. . Even if atribe fails to intervene at the beginning of a proceeding, it is not precluded from intervening at a later point in the absence of anexpress waiver of the right to intervene. Awaiver of rights by the tribe should not beinferred. [Footnote omitted. 

### 1 Guardianship of O.G.M., 808P.2d at 688-89. Weagree with the Oklahoma Supreme Court's interpretation of ICWA. Section 1911(c) provides that atribe canintervene "at any point in the proceeding." Absent express statutory language to the contrary, weconclude that the Tribe must beallowed to intervene in these proceedings. The District Court went on to conclude that, regardless of whether the Tribe was or wasnot allowed to intervene, Jessica's status would not beaffected. Based onthe BIA's determination,

6the court concluded that Jessica lacked sufficient blood quantum to

ever beconsidered amemberof the Tribe andthus an"Indian child" under ICWA. Blood quantum doesnot dictate whether ornot anindividual is to beconsidered an"Indian child" pursuant to ICWA. ICWAdefines

an "Indian child" as "any unmarried person who is under age eighteen and is either (a) amember of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of amember of an Indian tribe." 25U.S.C. §1903(4). TheDepartment of the Interior haspromulgated Guidelines for State Courts (Guidelines) to aid in the interpretation and application of ICWA. This Court haspreviously determined that the Guidelines, while not binding, are persuasive andshould belooked to in interpreting ICWA. Inthe Matter of M.E.M. (1981), 195Mont. 329, 336, 635P.2d 1313, 1318. Section B.l.(b) (ii) of the Guidelines states: Absent a contrary determination by the tribe that is alleged to bethe Indian child's tribe, adetermination bythe Bureau of Indian Affairs that achild is or is not anIndian child is conclusive. The District Court, relying onthis language, concluded that the BIA's determination that Jessica lacked sufficient blood quantum to bean"Indian child" wasconclusive. However, this provision does not require a& contrary determination bythe Tribe to render the BIA determination ineffectual. Rather, it merely requires a contrary determination by the Tribe. The immediately preceding section of the Guidelines, sB.l.(b) (i), states:The determination by the tribe that achild is not a

member of that tribe, is or is not eligible for membership in that tribe, or that the biological parent is or is not amember of that tribe is conclusive. Thus the Tribe, and not the BIA, is the ultimate authority on eligibility for tribal membership. Wehold that the District Court erred in determining that the Tribe waived its right to intervene in these proceedings. We further hold that, under these circumstances, the District Court's reliance onthe BIA's determination that Jessica is ineligible for membership in the Tribe and therefore not an "Indian child" was incorrect. Weconclude that ICWAis applicable to these proceedings and

reverse and remand for adetermination of whether Jessica is an "Indian child" pursuant to 25U.S.C. §1903(4).

JusticesJustice James C.Nelson specially concurs.

While Iconcur fully in our analysis and in the result of our opinion in this case, I am, nevertheless, compelled to make an observation concerning the Tribe's failure tointervene promptly on being first notified of these proceedings in August, 1992. It canhardly bedenied that the application of the ICWAto a child custody proceeding will likely dictate the child's temporary andpermanent placement, and, perhaps, exclude persons involved in the child's life whomight otherwise beeligible to becustodians

or adoptive parents were the Act not controlling. Given that the goal of anychild custody proceeding should beto restore the child to or to place the child in a permanent, stable, nurturing environment asexpeditiously aspossible, the failure of anyperson

orgovernmental entity or agency--whether tribal ornon-tribal--to promptly discharge a right or duty of participation in such a proceeding cannot not becondoned. Iappreciate that aTribe maynot immediately respond to the notice of or intervene in achild custody proceeding because in the early stages it mayappear that the likely placement of the child by the State agency andcourt will beacceptable to the Tribe and to the Native American family members whohave priority under the Act. This is all the more true because asubstantial number (some 60%, in Montana) of Tribal members and their extended families reside in communities outside their reservation and maynot have close ties with their Tribal government, institutions and social support. Accordingly, it may not be immediately apparent to a Tribe that it should become involved in aparticular child custody

9proceeding.

Nonetheless, if, as in this case, circumstances cause the Tribe to intervene in the proceeding at alate stage (here, nearly two years after the initial notice), the net result may be additional litigation and substantial delay in the ultimate resolution of the child's placement. In the usual child custody proceeding where, almost by definition, the child's life already lacks stability and has been seriously disrupted and where the child mayhave special needs, adding more delay and litigation to

an already cumbersome process is simply not acceptable from the standpoint of either the child or the parties involved. Without criticizing the motives orprocedures of the Tribe in this case, I, nevertheless, submit that the early and vigorous participation of the Tribe inall child custody proceedings subject to the Act, whether such participation may, initially, appear tobe necessary or not, will ultimately best serve the underlying policies of the ICWA, will ensure that the proceeding will be concluded expeditiously andin accordance with applicable law, and, most importantly, will best serve the paramount right of the child to live in astable, loving andsupport

10