as: 1979 WL 35596 (Or.A.G.))
Office of the Attorney General
State of Oregon
*1 Opinion No. 7899
May 13, 1979
Mr. J.N. Peet
Children's Services Division
Department of Human Resources
FIRST QUESTION PRESENTED
Under the requirements of 25 USC sec 1901, et seq, is the preference for placement of an Indian child in a foster home licensed, approved or specified by the child's tribe limited to such foster homes on the Indian reservation?
SECOND QUESTION PRESENTED
For homes on the reservation, under what circumstances is CSD authorized to make foster care payments?
CSD is required to provide support, including foster care payments where necessary, for children placed in its custody pursuant to state court order. Even where CSD does not have custody of a child, it may provide support, including foster care payments.
THIRD QUESTION PRESENTED
Must homes off the reservation meet Oregon's certification standards and be certified under ORS 418.625?
FOURTH QUESTION PRESENTED
(a) Does an Indian tribal court having jurisdiction in Indian child welfare proceedings have all of the powers and duties of a juvenile court under ORS ch 419? (b) Specifically, does the Indian tribal court have the authority to order CSD to accept the legal custody of an Indian child for care, placement and supervision?
(a) No. (b) No.
These questions arise because CSD has proposed rules relating to foster home placement of Indian children. Apparently, there is concern whether Indian children in the custody of CSD must be placed in foster homes certified by CSD. Also, the rules raise the question whether a tribal court, having jurisdiction and ordering placement of an Indian child, has the same authority as a state juvenile court. Specifically, the concern is whether CSD can provide money for foster home placements not made by state courts.
The first question presented is whether 25 USC sec 1915(b)(ii), which requires that preference be given in foster care or preadoptive placement to a foster home licensed, approved or specified by an Indian child's tribe, applies only to those homes on the Indian reservation. We believe not. In any foster care or preadoptive placement involving an Indian child, preference must be given to a placement with:
'(i) a member of the Indian child's extended family;
'(ii) a foster home licensed, approved or specified by the Indian child's tribe;
'(iii) an Indian foster home licensed or approved by an authorized non-Indian licensing authority; or
'(iv) an institution for children approved by an Indian tribe or operated by an Indian organization which has a program suitable to meet the Indian child's needs.' 25 USC sec 1915(b).
The federal policy behind this legislation is to protect the best interests of Indian children by establishing 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.' 25 USC sec 1902. This policy of protecting the Indian child's cultural bond with the Indian community is applicable to Indian children living both on and off reservations. CSD, as well as state and tribal courts, must abide by the above preference system when placing Indian children in foster care or preadoptive placement. [FN1] Where there is no extended family with whom the child can be placed, the agency or court making the placement must consult the Indian child's tribe to see if there exists a foster home, either on or off the reservation, which the tribe has licensed, approved or specified as an appropriate placement for the Indian child. The federal statute, 25 USC sec 1915, does not require that the foster home selected by the tribe be located on the reservation.
*2 The second question presented asks under what circumstances CSD is authorized to make foster care payments to homes on the reservation. Where an Indian child is in the custody of CSD pursuant to state court order, [FN2] the division must provide services for the child, including payment for foster care. ORS 418.015(2). This is true regardless of whether the child was placed in foster care on or off of the reservation. In other cases, CSD may, within its discretion and subject to the limits of funds available, make foster care payments for Indian children placed in foster homes on the reservation. ORS 418.015(1); 418.495. This is true of whether or not the child is within the custody of CSD. See ORS 418.015(1).
The third question presented is whether foster care homes off the reservation must meet Oregon's certification standards and be certified under ORS 418.625. While ORS 418.630 requires a certificate of approval for all foster homes within the state, this state statute is preempted by the federal statute, 25 USC 1915, to the extent that the two statutes are inconsistent. US Const art VI (Supremacy Clause); US Const art I, sec 8 (Commerce Clause); 25 USC sec 1901. The federal statute has no certification requirements, but it clearly specifies to whom a preference must be given in making a placement. This preference, where possible, must be respected even if the foster home selected is not, or cannot be, certified under the Oregon statutory requirements.
The specific statutory language of 25 USC sec 1915(b) provides further support for this position. The statute is worded in the alternative. Preference for placement of an Indian child should be given to (1) the child's extended family; (2) a foster home licensed, approved or specified by the child's tribe; (3) a foster home licensed or approved by an authorized non-Indian licensing authority, or (4) an institution approved by an Indian tribe or operated by an Indian organization. 25 USC sec 1915(b). From the very language of the statute, it is clear that a foster home licensed or certified by an authorized non-Indian licensing authority, such as CSD, is only one of four alternatives for placement. Implicit in the statutory language is the fact that the other three alternatives do not have to be licensed or certified by the non-Indian licensing authority.
The fourth question is whether an Indian tribal court has the power and duties of a juvenile court under ORS ch 419 and, specifically, whether the Indian tribal court has authority to order CSD to accept legal custody of an Indian child for care, placement and supervision. The tribal court's authority is created by federal, not state, law. 25 USC sec 1911(a) provides that:
'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.'
*3 In the case of an Indian child residing or domiciled within the reservation, the tribal court may make its determination as to the appropriate custody or foster care placement of such child and its determination is entitled to full faith and credit by state courts. 25 USC sec 1911(d).
Nonetheless, since a tribal court has only that jurisdiction granted it under federal law, it does not have authority to order a state agency, such as CSD, to accept custody of Indian children. Such an act would be analagous to the State of California purporting to order Oregon CSD to accept custody of a child residing in California who was found by the California court to be neglected or delinquent. It is simply not within the jurisdiction of any court besides an Oregon court to order CSD to accept custody of a child. [FN3]
Furthermore, in view of the preemptive nature of Congressional action in the area of Indian child welfare, as well as the state's lack of jurisdiction over Indian children living on reservations, it is our opinion that CSD cannot be required to accept custody of Indian children pursuant to tribal court orders. See 40 Op Atty Gen 31 (1979). This is not to say, however, that CSD may not voluntarily accept custody of or provide services for such children. See ORS 418.015; 418.495. Where desirable, CSD may enter into agreements with Indian tribes to accept custody of Indian children found to be in need of foster care. 25 USC sec 1919(a) authorizes states and Indian tribes:
'. . . to enter into agreements with each other respecting care and custody of Indian children and jurisdiction over child custody proceedings . . ..'
Such an arrangement could be in the best interest of the child, which is the policy behind both state and federal laws.
James M. Brown
[FN1] See 25 USC sec 1901, citing US Const art I, sec 8 for the proposition that Congress has power to regulate Commerce with Indian tribes and thereby has plenary power over Indian affairs. Also, through statutes, treaties and the general course of dealing with Indian tribes, Congress has assumed the responsibility of protecting and preserving Indian tribes. Therefore, federal law on this subject, if conflicting, preempts state law.
[FN2] This could be the case where a state court terminates parental rights or determines foster care placement of an Indian child not domiciled or residing within the reservation. See 25 USC sec 1911(b), (c).
[FN3] ORS 418.015(2) requires CSD to accept custody of a child pursuant to 'court order.' However, Oregon statutes refer only to state courts, not to the courts of other jurisdictions.
40 Or. Op. Atty. Gen. 461, 1979 WL 35596 (Or.A.G.)