| (Cite
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
Administrator
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?
ANSWER
GIVEN
No.
SECOND
QUESTION PRESENTED
For homes on the reservation, under what circumstances is CSD
authorized to make foster care payments?
ANSWER
GIVEN
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?
ANSWER
GIVEN
No.
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?
ANSWER
GIVEN
(a) No. (b) No.
DISCUSSION
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
Attorney
General
[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.)
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