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(Cite
as: 1985 WL 195282 (Nev.A.G.))
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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
(c)
A licensed child-placing agency and the investigation required by the
provisions of this section has been completed.
. . .
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.)
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