December 30, 2014
STATE OF MONTANA, Petitioner,
THIRTEENTH JUDICIAL DISTRICT COURT, THE HONORABLE G. TODD BAUGH, Respondent.
The State of Montana seeks a writ of supervisory control over the Thirteenth Judicial District Court in connection with its orders and proceedings in Yellowstone County Cause No. DN-13-171, a Youth In Need of Care case involving N.M.W., an Indian child. The State's petition alleges that the District Court committed a mistake of law by transferring jurisdiction to the Tribal Court for the Southern Ute Indian Tribe (SUIT) over the objection of the child's mother, arguing that 25 U.S.C. § 1911(b), part of the Indian Child Welfare Act (ICWA), prohibits transfer if one of the parents objects. The State also argues that the court failed to conduct a mandatory jurisdictional transfer hearing prior to entering its order. In re J.W.C., 2011 MT 312, ¶ 30, 363 Mont. 85, 265 P.3d 1265. Finally, the State's petition seeks an order vacating the placement order on the ground that the District Court committed a mistake of law by ordering a change in placement without considering the factors prescribed by 25 U.S.C. § 1915(b) or consulting with N.M.W., notwithstanding the fact that the court had appointed counsel for N.M. W. for that very purpose.
On December 4, 2014, this Court entered an order staying all proceedings and vacating the District Court's orders transferring jurisdiction and changing N.M.W.'s placement pending the Court's further review of the matter. The Court allowed twenty days for the filing of responses to the petition. A response has been filed by the youth's father, M.P., through counsel. In addition, the SUIT has filed a notice that it will not file a response to the State's petition because it has withdrawn as an intervening party in the underlying action.
The SUIT'S motion to dismiss itself from the District Court action, a copy of which it provided with its notice to this Court, indicates that it is withdrawing because, at the behest of the Department of Public Health and Human Services, N.M.W. recently was enrolled as a member of the Northern Cheyenne Tribe (NCT), the natural mother's tribe, and under the Southern Ute Tribal Constitution, the child now is ineligible for enrollment in the Southern Ute Indian Tribe. As a result, the SUIT states that it does not have a basis in federal law to remain in the action as an intervenor. The child's enrollment in the NCT occurred on Monday, December 8, 2014, just days after this Court ordered responses to the State's petition.
The change in status of N.M.W.'s eligibility for enrollment in the SUIT changes the posture of the case significantly. Under the Bureau of Indian Affairs ICWA Guidelines, a child may have only one "tribe" for purposes of determining jurisdiction of the "Indian child's tribe" under 25 U.S.C. § 1911(b). "If a child becomes a member of one tribe during or after the proceeding, that tribe shall be designated as the Indian child's tribe with respect to all subsequent actions related to the proceeding." ICWA Guidelines, § B.2(e), 44 Fed. Reg. No. 228 at 67587. "The Act itself and the legislative history make it clear that tribal rights are to be based on the existence of a political relationship between the family and the tribe. For that reason, the guidelines make actual tribal membership of the child conclusive on this issue." ICWA Guidelines, § B.2 (Commentary) 44 Fed. Reg. No. 228 at 67587. The Guidelines provide further that "actions taken based on the court's determination prior to the child's becoming a tribal member continue to be valid." ICWA Guidelines, § B.2(e), 44 Fed. Reg. No. 228 at 67587. Although the District Court on November 20, 2014, ordered transfer of jurisdiction to the Southern Ute Tribal Court and placement of N.M.W. with the SUIT Department of Social Services for transition to an extended family placement, those orders were vacated by this Court on December 4. Thus, the order for transfer and change of placement were not in effect at the time of N.M.W.'s enrollment in the NCT. The ICWA Guidelines indicate that the provision maintaining the validity of court actions taken prior to a child's enrollment in a tribe "is included because of the importance of stability and continuity to a child who has been placed outside the home by a court."
The transcript of the August 26, 2014 hearing before the District Court, provided with Father's response to the State's petition, indicates that Mother advocated for consideration of placement with a maternal relative on the Northern Cheyenne Reservation, and that a maternal aunt was under consideration. At that time, however, the NCT had not intervened in the District Court action. N.M.W. presumably remains in the placement of the non-Indian foster family with whom he was placed at the time of his removal from the home.
These developments require further consideration by the District Court and may render moot the legal issues presented in the State's petition. Therefore, and in order to avoid any additional delay in this proceeding,
IT IS ORDERED that the Petition for Writ of Supervisory Control is DISMISSED without prejudice.
The Clerk of this Court is directed to give immediate notice of this Order to the Attorney General, to all counsel of record in Yellowstone County Cause No. DN-13-171, and to the presiding judge in that case.