Resources - A Practical Guide to the Indian Child Welfare Act; Native American Rights Fund

(Cite as: 1985 WL 195282 (Nev.A.G.))

Office of the Attorney General

State of Nevada

*1 Opinion No. 85-20

December 23, 1985

ADOPTION: An Indian social services agency must notify the Nevada State Welfare Division prior to placing a child for adoption off the reservation in Nevada.

Mrs. April Wilson

Deputy Administrator for Social Services

Welfare Division

2527 North Carson

Capitol Complex

Carson City, Nevada 89710

Dear Mrs. Wilson:

This is in response to your request for a legal opinion.

QUESTION

Is the action of the social services agency of the Pyramid Lake Indian tribe in placing a child off the reservation for adoption within the jurisdiction of the Indian tribe?

ANALYSIS

Initially, it should be noted that the tribal council at Pyramid Lake reservation has adopted the Nevada Revised Statutes in matters not covered by the Tribal Code. The Tribal Code does not specifically address adoptions and placements. With this in mind, NRS 127.280 provides, in relevant part:

1. No child may be placed in the home of prospective adoptive parents for the 30-day residence in that home which is required before the filing of a petition for adoption, . . ., unless the welfare division receives written notice of the proposed placement from:

(a) The prospective adoptive parents of the child;

(b) The person recommending the placement; or

. . .

4. Pending completion of the required investigation, the child must be retained by the natural parent or parents or relinquished to the welfare division and placed by the welfare division in a foster home licensed by it until a determination is made by the welfare division concerning the suitability of the prospective adoptive parents.

. . .

8. Any person who places, accepts placement of, or aids, abets or conceals the placement of any child in violation of the placement provisions of this section, is guilty of of gross misdeanor.

As a general rule, an Indian tribe has jurisdiction over occurrences on Indian land. However, this is not necessarily so as to occurrences off Indian land.

The Indian social services agency in question is not licensed by the State to place children for adoption within the State of Nevada. Where this agency places children for adoption in Nevada outside Indian country without complying with the placement provisions of State statute, serious impediments to the adoption process may occur. See Nevada Revised Statutes § 127.280 (1983).

In a Nevada civil case, Vorhees v. Spencer, 89 Nev. 1, 504 P.2d 1321 (1973), the Nevada Supreme Court stated: '[A]bsent congressional prohibition, if the evidence or matter in controversy which calls for judicial action arises outside Indian country, Indians are subject to the laws of the jurisdiction involved. In re Wolf, 27 Fed. 606 (W.D. Ark. 1886); Ex Parte Moore, 28 S.D. 339, 133 N.W. 817 (1911) . . .'

*2 In the recent case of Mescalero Apache Tribe v. State of New Mexico, 462 U.S. 324, 103 S.Ct. 2378, 76 L.Ed.2d 611, (1983), the United States Supreme Court said at 103 S.Ct. 2386: 'State jurisdiction is preempted by operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the State interests at stake are sufficient to justify the assertion of state authority.' [Citations omitted.]

In Mescalero, supra, the court was dealing with regulations the State was attempting to impose on Indian land. However, even in this context, the court said: 'A State's regulatory interest will be particularly substantial if the State can point to off reservation effects that necessitate intervention.' [Citation omitted.]

Mescalero is distinguishable from the situation we are dealing with in that the State of Nevada is not attempting to regulate on-reservation activities of the Indian tribe. The State of Nevada is regulating the placement of children for adoption on State land which is not part of an Indian reservation.

In Odenwalt v. Zaring, 624 P.2d 383 (Idaho 1980), the court held that the State had jurisdiction over a tort occurring off the reservation. The court quoted from Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148149, 93 S.Ct. 1267, 1279, 36 L.Ed.2d 114 (1973), as follows:

It was similarly noted in Vorhees v. Spencer, 89 Nev. 1, 504 P.2d 1321, 1323-24 (1973), that '[a]bsent congressional prohibition, if the evidence or matter in controversy which calls for judicial action arises outside of Indian country, Indians are subject to the laws of the jurisdiction involved. . . . Indians have access to the state courts, and the State may regulate their activities outside Indian country, even though they are members of a Tribe and reside on a reservation.

A.B.M. v. M.H., 651 P.2d 1170 (Alaska 1982), cert. den. 103 S.Ct. 1893, was a case in which an Indian mother placed her child, R.H., for adoption with her sister and brother-in-law, who resided off the reservation. The decree of adoption was entered after proceedings in State court conducted pursuant to the Indian Child Welfare Act. Subsequently, the adoption was set aside because the State Department of Health and Social Services, Division of Family and Youth Services, had not been notified of the adoption proceedings as required by State statute and had thus been deprived of an opportunity to investigate the suitability of R.H.'s prospective home, which was off the reservation.

The same situation pertains here. The Indian social services agency has placed a child off the reservation for adoption without notifying the Nevada State Welfare Division. The Nevada State Welfare Division is thereby deprived of the ability to investigate the suitability of the home as required by State law. NRS 127.280. It is to be noted that adoptive placements in Nevada by other States are treated in the same way. The Welfare Division must be given notice of the placement and an opportunity to do a home study. Thus, the Indian tribe is treated the same as another State.

*3 The question with which we are dealing in this opinion involves activities off the reservation.

In De Coteau v. District County Court, 420 U.S. 425, 95 S.Ct. 1082, 43 L.Ed.2d 300 (1975), reh. den. 421 U.S. 939, the Court held that because the Indians no longer owned land which had once been part of their reservation (they having ceded it to the United States), the South Dakota state courts have civil and criminal jurisdiction over conduct of members of the tribe on the non-Indian, unalloted lands within the 1867 reservation borders. It follows that, under that case, acts of Indians performed off the reservation are subject to State jurisdiction.

It is interesting to note that De Coteau involved a child custody proceeding, where under the Indian Child Welfare Act of 1978 the results might have been different. However, the general principle that acts off the reservation are subject to State jurisdiction would seem to apply here, in the absence of a contrary provision in the Indian Child Welfare Act of 1978.

From the foregoing court decisions, it is concluded that the Indian Social Services Agency may not place children off the reservation in contravention of NRS 127.280 unless Congress has provided otherwise. This leads us to a perusal of the Indian Child Welfare Act of 1978. In 78 U.S. Code Cong. & Adm. News, which supplies legislative history of the Act, at page 7536, U.S. v. Nice, 241 U.S. 591 (1916), was quoted as follows:

The power of Congress to regulate or prohibit traffic with tribal Indians within a state whether upon or off an Indian reservation is well settled * * *. Its source is towfold; first, the clause of the Constitution expressly investing Congress with authority to regulate commerce * * * with the Indian tribes; and, second, the dependent relation of such tribes to the United States.

The Indian Child Welfare Act, found at 25 U.S.C. § 1902, reads:

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.

The Indian Child Welfare Act provides at Sec. 101(a) (25 U.S.C. § 1911) as follows:

An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.

It is clear from this statute that the tribe has jurisdiction over Indian children residing or domiciled on the reservation. It is also clear that the tribal court retains jurisdiction over an Indian child who is an express ward of the court, regardless of residence or domicile. This is analogous to the jurisdiction of the Juvenile Court in Nevada, where a child who is a ward of the court is placed in an act-of-state facility. The court retains jurisdiction.

*4 It should be noted that in a child-placing situation for purposes of adoption the child is not a ward of the court. Rather, the child is in the custody of a social services agency. The social services agency is not the tribal court and so it is clear the social services agency can retain jurisdiction only over the Indian child that resides or is domiciled on the reservation. By placing a child off the reservation, the social services agency loses jurisdiction because the child no longer 'resides' on the reservation.

Since the object of the Indian Child Welfare Act is to preserve Indian culture, heritage and family and tribal ties, without specific authorization by Congress providing for Indian Social Service Agency adoptive placements off the reservation, it would appear that the Indian social service agencies do not have the authority to place Indian children off the reservation, and this is particularly true with respect to placements with non-Indians. Since there is no Congressional grant of authority to the tribes to place children for adoption off the reservation, the tribe must comply with the laws of the jurisdiction in which placement is sought.

CONCULSION

The Indian social services agency does not qualify as a child-placing agency under Nevada law. Since they are not licensed as a child-placing agency in the State of Nevada, the placement of children off the reservation for adoption in Nevada must be brought to the attention of the Nevada State Welfare Division for review pursuant to NRS 127.280. As noted previously, this same requirement is imposed on any other State placing a child in Nevada for adoption. The reciprocal situation is also true. The State of Nevada should notify the tribe prior to placement of any child for adoption on the reservation. Additionally, any adoption completed on the reservation by the tribal court is valid and its validity should be recognized by State authorities.

Sincerely,

Brian McKay

Attorney General

By: Nancy Ford Angres

Deputy Attorney General

Welfare Division

1985 Nev. Op. Atty. Gen. 94, 1985 Nev. Op. Atty. Gen. No. 20, 1985 WL 195282 (Nev.A.G.)