No. 95-132 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1995 

IN THE MATTER OF THE ADOPTION 

OF JESSICA LYNN RIFFLE 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellants: 

Monte J. Boettger, Attorney at Law, Lewistown, 

Montana 

Ann Gilkey, Department of Family Services, Helena, 

Montana 

Ronald Ameson, Attorney at Law, Billings, Montana 

For Respondents: 

Jerrold Nye, Attorney at Law, Billings, Montana 

Submitted on Briefs: July 28, 1995 

Decided: September 13, 1995 

Filed: 
Chief Justice J. A. Turnage delivered the Opinion of the Court. 

Appellants John Garlick, 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. We reverse and remand. 

We find the following issue dispositive on appeal: 

Did the District Court err in determining that Jessica was not 

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 as well as domestic violence. These problems made 

it difficult for her parents to properly care for Jessica. Jessica 

spent much time with her extended family, including her grandmother, Dorothy Garlick and her uncle, John Garlick. 

In May 1990 the Montana Department of Family Services (DFS) 

removed Jessica from her mother's care and placed her in the foster 

care of Kenneth and Clara Siroky. DFS returned Jessica to her 

mother in December of 1990. DFS again removed Jessica from her 

mother's care in June 1991 and returned her to the foster care 

custody of the Sirokys where she has remained. 

On August 4, 1992, the Turtle Mountain Band of Chippewa (the 

Tribe) was notified of the impending termination of Mary Riffle's 

parental rights. The Tribe was again notified on December 16, 
1992. The Tribe took no immediate action. On September 28, 1993, 

the Tenth Judicial District Court terminated Mary and Gary Riffle's 

parental rights and awarded DFS permanent custody of Jessica. 

DFS commenced adoption proceedings, seeking to find a suitable 

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 a suitable adoptive parent and 

consented to his adoption of Jessica. On May 3, 1994, the Sirokys 

petitioned the court for Jessica's adoption. On May 26, 1994, 

shortly before John was to receive custody of Jessica, the Sirokys 

obtained a temporary restraining order preventing Jessica's removal 

from their custody. 

On May 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. On May 20, 1994, the court preliminarily granted the Tribe's motion. However, on July 27, 1994, the 

court adopted the Bureau of Indian Affairs' (BIA) opinion that 

Jessica was not an "Indian child" pursuant to ICWA and therefore 

ICWA did not apply to these proceedings. 

On November 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. 

On December 12, 1994, the District Court issued its findings of 

fact, conclusions of law, and order granting the Sirokys' petition 

for adoption. John Garlick, DFS and the Tribe appeal the decision 

of the District Court. 

3 
Did the District Court err in determining that Jessica was not 

an "Indian child" pursuant to ICWA? 

In its July 27, 1994, order, the District Court concluded that 

Jessica was not an "Indian child" pursuant to ICWA and, therefore, 

the provisions of ICWA were 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 a member of the Tribe was conclusive. The 

court held that, even if the Tribe was allowed to intervene later 

in the proceedings, the BIA's determination could not be rebutted. 

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 an objective, permanent condition. It is not 

a condition 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 and therefore not an "Indian 

child" in its December 12, 1994 findings of fact and conclusions of 

law concerning the parties' respective petitions for adoption. We 

review district court conclusions of law to determine whether the 

court's interpretation of law was correct. Steer, Inc. v. Dep't of 

Revenue (19901, 245 Mont. 470, 474, 803 P.2d 601, 603. 

4 
ICWA contains a policy statement that encourages tribal input 

and participation in custody proceedings involving Indian children. 

Title 25 U.S.C. 5 1902 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, and by providing for 

assistance to Indian tribes in the operation of child and 

family service programs. 

One of the "minimum federal standards" promulgated by ICWA is 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 and the Indian child's tribe shall have a riqht to intervene 

at any point in the proceedinq." (Emphasis added.) 

We note that on May 20, 1994, the District Court granted the 

Tribe's motion to intervene. However, on July 27, 1994, the court 

determined that the Tribe failed to promptlv intervene after 

receiving notice of the proceedings. The court concluded that the 

Tribe's failure to promptly intervene after receiving notice of the 

proceedings waived the Tribe's right to intervene at a later date. 

Regardless of the procedural peculiarities of the District Court's 

actions, we will address the Tribe's asserted right to intervene in 

these proceedings. 

We find no support in ICWA for 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 

5 
proceedings may go forward, 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), 

808 P.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 we might agree with the grandparent's 

[sic] position, we are precluded from doing so by 25 

U.S.C. 5 1911(c) . . . 

As a matter of statutory analysis, the Court must 

give effect to the Act. We cannot ignore the plain words 

of a statute. [Footnote omitted.] The statute allows the 

tribe to intervene at any point in the proceeding . . 

Even if a tribe fails to intervene at the beginning of a 

proceeding, it is not precluded from intervening at a 

later point in the absence of an express waiver of the 

right to intervene. A waiver of rights by the tribe 

should not be inferred. [Footnote omitted. 1 

Guardianship of O.G.M., 808 P.2d at 688-89. 

We agree with the Oklahoma Supreme Court's interpretation of 

ICWA. Section 1911(c) provides that a tribe can intervene "at any 

point in the proceeding." Absent express statutory language to the 

contrary, we conclude that the Tribe must be allowed to intervene 

in these proceedings. 

The District Court went on to conclude that, regardless of 

whether the Tribe was or was not allowed to intervene, Jessica's 

status would not be affected. Based on the BIA's determination, 

6 
the court concluded that Jessica lacked sufficient blood quantum to 

ever be considered a member of the Tribe and thus an "Indian child" 

under ICWA. 

Blood quantum does not dictate whether or not an individual is 

to be considered an "Indian child" pursuant to ICWA. 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. § 1903(4). 

The Department of the Interior has promulgated Guidelines for 

State Courts (Guidelines) to aid in the interpretation and 

application of ICWA. This Court has previously determined that the 

Guidelines, while not binding, are persuasive and should be looked 

to in interpreting ICWA. In the Matter of M.E.M. (1981), 195 Mont. 

329, 336, 635 P.2d 1313, 1318. 

Section B.l.(b) (ii) of the Guidelines states: 

Absent a contrary determination by the tribe that is 

alleged to be the Indian child's tribe, a determination 

by the Bureau of Indian Affairs that a child is or is not 

an Indian child is conclusive. 

The District Court, relying on this language, concluded that the 

BIA's determination that Jessica lacked sufficient blood quantum to 

be an "Indian child" was conclusive. However, this provision does 

not require a & contrary determination by the Tribe to render 

the BIA determination ineffectual. Rather, it merely requires a 

contrary determination by the Tribe. The immediately preceding 

section of the Guidelines, s B.l.(b) (i), states: 
The determination by the tribe that a child 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 a member of that tribe is conclusive. 

Thus the Tribe, and not the BIA, is the ultimate authority on 

eligibility for tribal membership. 

We hold 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 on the BIA's determination that Jessica is ineligible for 

membership in the Tribe and therefore not an "Indian child" was 

incorrect. 

We conclude that ICWA is applicable to these proceedings and 

reverse and remand for a determination of whether Jessica is an 

"Indian child" pursuant to 25 U.S.C. § 1903(4). 

Justices 
Justice James C. Nelson specially concurs. 

While I concur 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 to intervene promptly on 

being first notified of these proceedings in August, 1992. 

It can hardly be denied that the application of the ICWA to a 

child custody proceeding will likely dictate the child's temporary 

and permanent placement, and, perhaps, exclude persons involved in 

the child's life who might otherwise be eligible to be custodians 

or adoptive parents were the Act not controlling. Given that the 

goal of any child custody proceeding should be to restore the child 

to or to place the child in a permanent, stable, nurturing 

environment as expeditiously as possible, the failure of any person 

or governmental entity or agency--whether tribal or non-tribal--to 

promptly discharge a right or duty of participation in such a 

proceeding cannot not be condoned. 

I appreciate that a Tribe may not immediately respond to the 

notice of or intervene in a child custody proceeding because in the 

early stages it may appear that the likely placement of the child 

by the State agency and court will be acceptable to the Tribe and 

to the Native American family members who have priority under the 

Act. This is all the more true because a substantial number (some 

60%, in Montana) of Tribal members and their extended families 

reside in communities outside their reservation and may not 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 a particular child custody 

9 
proceeding. 

Nonetheless, if, as in this case, circumstances cause the 

Tribe to intervene in the proceeding at a late 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 may have 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 or procedures of the Tribe in 

this case, I, nevertheless, submit that the early and vigorous 

participation of the Tribe in all child custody proceedings subject 

to the Act, whether such participation may, initially, appear to be 

necessary or not, will ultimately best serve the underlying 

policies of the ICWA, will ensure that the proceeding will be 

concluded expeditiously and in accordance with applicable law, and, 

most importantly, will best serve the paramount right of the child 

to live in a stable, loving and support 

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