|
(Cite
as: 355 Mont. 236, 227 P.3d 596) |
Supreme
Court of Montana.
In
the Matter of the Fair Hearing of Jewell HANNA.
CFSD
Caps RR # 189612, Appellant.
No.
DA 09-0463.
Submitted
on Briefs Jan. 13, 2010.
Decided
Feb. 23, 2010.
**597
For Appellant: Terrence L. Toavs, Law Offices of Terrance L. Toavs; Wolf Point,
Montana.
For
Appellee: Michelle J. Maltese, Special Assistant Attorney General; Helena,
Montana.
Justice
W. WILLIAM LEAPHART delivered the Opinion of the Court.
*237
? 1 Jewel Hanna appeals the decision and order of the District Court for the
First Judicial District, Lewis and Clark County, ruling that the Child and
Family Services Division (CFSD) of the Department of Public Health and Human
Services (DPHHS) had jurisdiction to issue a report substantiating child abuse
and neglect by Hanna.
?
2 The sole issue on appeal is whether the District Court erred in concluding
that CFSD had jurisdiction, or the power to exercise its authority, to
substantiate child abuse and neglect by Hanna. We affirm.
FACTUAL
AND PROCEDURAL BACKGROUND
?
3 This case arises from the failed placement of M.S., an Indian child, in the
foster care of Jewel Hanna, an enrolled member of the Fort Peck Indian Tribes.
At all times relevant to this case, Hanna has resided in Poplar, Montana, within
the external boundaries of the Fort Peck Indian Reservation.
?
4 M.S. was born in Minnesota and was in foster case since birth. The State of
Minnesota had terminated the parental rights of M.S.'s birth parents and assumed
legal custody. Pursuant to the Indian Child Welfare Act (ICWA), 25 U.S.C. ??
1901-1963 (2006), a central policy of which is to promote placement of Indian
children removed from their families in foster and adoptive homes that reflect
Indian values and culture, Minnesota sought to place M.S. with Hanna, who is
M.S.'s great aunt.
?
5 Because Minnesota sought to place M.S. in a foster home in Montana, the
Interstate Compact on the Placement of Children (ICPC) governed. Section
41-4-101, art. III, MCA. As DPHHS administers Montana's obligations as a
receiving state under ICPC, ? 41-4-104, MCA, DPHHS had to approve the foster
placement, ? 41-4-104, art. III(4), MCA. After conducting a home study and
background investigation, DPHHS approved placing M.S. with Hanna. In July 2004
DPHHS licensed Hanna as a kinship foster care provider under ? 52-2-662, MCA,
and **598
Rule 37.51.202, Admin. R.M. A month later, DPHHS placed the child with her great
aunt.
?
6 Despite the general prohibition of state interference with tribal affairs,
DPHHS, a state agency, placed M.S., an Indian child, with Hanna, an enrolled
member living on the Fort Peck Indian Reservation, under the auspices of a
Memorandum of Agreement (MOA) between the Assiniboine and Sioux Tribes of the
Fort Peck *238
Indian Reservation (Tribes), the Bureau of Indian Affairs (BIA), and the State
(DPHHS). The MOA, it turns out, is the linchpin of CFSD's claim for
jurisdiction.
?
7 M.S.'s placement with Hanna was short-lived. In March 2005 staff at the
daycare where Hanna would leave M.S. when she went to work reported their
suspicion that M.S. was suffering abuse. Upon receiving the report of abuse,
CFSD took physical custody of M.S., placing the child in a temporary foster home
off the reservation, in Miles City. Subsequently M.S. was sent to Minnesota,
which state retained legal custody. Minnesota later consented to M.S.'s
adoption.
?
8 Contemporaneous with M.S.'s removal, CFSD, along with BIA and a tribal
criminal investigator, initiated an investigation into the cause of the alleged
abuse. They concluded that Hanna had abused M.S., and in May 2005 CFSD issued a
substantiated report of abuse and neglect to Hanna. The report informed Hanna of
the adverse effects that CFSD's substantiation determination would have on her
ability to obtain work in fields regulated by DPHHS.
?
9 Within one month of receiving the substantiated report, Hanna sought a fair
hearing under Rule 37.47.610, Admin. R. M., to contest the determination. Under
Rule 37.47.615, Admin. R. M. (which contains exceptions to the right to a fair
hearing under Rule 37.47.610, Admin. R. M.), a person subject to a substantiated
report of child abuse is not entitled to a fair hearing if she has been
convicted of an offense related to child abuse. CFSD did not begin the fair
hearing process for Hanna until 2007, since the investigation had not led to
criminal charges.
?
10 After CFSD initiated the procedures for the fair hearing, Hanna moved to
dismiss the substantiation proceeding on jurisdictional grounds. Hanna argued
that under the Fort Peck Comprehensive Code of Justice (CCOJ), the Tribes
maintained exclusive jurisdiction over matters involving Indian youth and that
CFSD's substantiation proceeding interfered with tribal sovereignty. The hearing
officer of DPHHS adopted this argument and dismissed the substantiation
proceeding.
?
11 CFSD appealed the hearing officer's decision to the District Court pursuant
to the Montana Administrative Procedure Act (MAPA), ? 2-4-702(1)(a), MCA. There,
CFSD argued that pursuant to the MOA, it had jurisdiction to issue the
substantiated report against Hanna under state law and policy because it had
licensed Hanna as a kinship foster care provider in the first place. CFSD
maintained that the CCOJ did not apply because its relevant provisions merely
focused on the welfare of children and did not address substantiation
determinations, which *239
focus on the abuser (here, Hanna). This argument persuaded the District Court,
which reversed the hearing officer's decision.
?
12 Hanna timely appealed the District Court's decision.
STANDARD
OF REVIEW
?
13 Resolution of this case turns on the question of subject matter jurisdiction.
This is a question of law, which we review de novo. See
Bugger
v. McGough,
2006 MT 248, ? 19, 334 Mont. 77, 144 P.3d 802.
DISCUSSION
?
14 Whether
the District Court erred in concluding that CFSD had jurisdiction to
substantiate child abuse and neglect by Hanna.
[1]
? 15 Hanna's principal argument is that CFSD lacks jurisdiction to pursue a
substantiation proceeding against an enrolled tribal member, like Hanna, for
acts committed on the reservation against an Indian child. We
disagree.
[2][3]
? 16 Our discussion begins with the sovereign rights of the Fort Peck Indian
Tribes. Tribes, as ?domestic dependent nations,?**599
exercise ?inherent sovereign authority over their members and territories?; that
is, tribes may make laws to govern their internal affairs and social relations.
Zempel
v. Liberty,
2006 MT 220, ? 20, 333 Mont. 417, 143 P.3d 123 (quoting Okla.
Tax Commn. v. Potawatomi Indian Tribe,
498 U.S. 505, 509, 111 S.Ct. 905, 909, 112 L.Ed.2d 1112 (1991)). Tribes are,
however, subject to the ?plenary and exclusive? authority of the United States
Congress. United
States v. Lara,
541 U.S. 193, 200, 124 S.Ct. 1628, 1633, 158 L.Ed.2d 420 (2004). With roots in
the so-called Indian Commerce Clause and the Treaty Clause, U.S. Const., art. I,
? 8, cl. 3; art. II, ? 2, cl. 2, this congressional authority, along with
tribes' recognized right of self-government, has traditionally operated to
exclude state authority, or jurisdiction, over Indian affairs. Lara,
541 U.S. at 200, 124 S.Ct. at 1633; White
Mt. Apache Tribe v. Bracker,
448 U.S. 136, 142, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665 (1980); Worcester
v. Georgia,
31 U.S. 515, 561, 8 L.Ed. 483 (1832); but
see Nevada
v. Hicks,
533 U.S. 353, 361-62 n. 4, 121 S.Ct. 2304, 2311 n. 4, 150 L.Ed.2d 398 (2001)
(suggesting, in dicta, limitation on holding from Worcester
).
[4]
? 17 This Court has acknowledged this general limitation, that ?[t]he exercise
of state jurisdiction over activities occurring entirely on Indian lands is an
infringement on inherent tribal authority and is contrary to principles of
self-government and tribal sovereignty.? Flat
Ctr. Farms, Inc. v. State,
2002 MT 140, ? 13, 310 Mont. 206, 49 P.3d 578; cf.
First
v. State,
247 Mont. 465, 471, 808 P.2d 467, 470 (1991) (ruling that State may exercise
jurisdiction over tribal members within *240
reservations if such exercise is not preempted by Congress and does not
interfere with tribal sovereignty). Despite this general prohibition against
state jurisdiction over Indian affairs, states and tribes may, with
congressional approval, enter into cooperative agreements altering the scope of
jurisdiction on reservations. See
Native
Village of Stevens v. Smith,
770 F.2d 1486, 1489 (9th Cir.1985) (explaining that 25 U.S.C. ? 1919(a)
authorizes tribal-state cooperative agreements regarding child care);
cf.
Kennerly
v. Dist. Ct. of the Ninth Jud. Dist. of Mont.,
400 U.S. 423, 423-30, 91 S.Ct. 480, 480-84, 27 L.Ed.2d 507 (1971) (ruling that
tribe could not grant state jurisdiction over tribal affairs absent
congressional authorization).
?
18 Here, CFSD points to the Memorandum of Agreement between the Tribes and DPHHS
(and BIA) as the federally-authorized cooperative agreement that is the basis
for its jurisdiction to maintain the substantiation determination. To evaluate
this position, we must consider first whether the MOA enjoys congressional
authorization, and second whether the MOA allows CFSD to pursue a substantiation
proceeding against Hanna.
?
19 The purpose of the MOA is to allow eligible Indian children on the Fort Peck
Indian Reservation to receive services and foster care maintenance payments from
CFSD (or BIA). Under the MOA, CFSD was to provide care and services to Indian
children eligible for funding under the foster care program of Title IV-E of the
Social Security Act, 42 U.S.C. ?? 670-679c (2006). FN1
The Tribes, CFSD, and BIA entered into the MOA under the authority of the Indian
Child Welfare Act, 25 U.S.C. ?? 1901-1963 (2006). Under ? 1919(a) of ICWA,
tribes and states:
FN1.
Title IV-E creates a foster care program of ?cooperative federalism? in which
states may choose to participate. Native
Village of Stevens,
770 F.2d at 1487-88. Participating states create and operate foster care and
adoption programs that conform to federal requirements, and in exchange the
federal government reimburses states for their expenditures. 42 U.S.C. ??
671(a), 674(a). Until 2008, Tribes had to enter into agreements with states to
receive Title IV-E funding. Barbara Ann Atwood, Wells
Conference on Adoption Law: Achieving
Permanency for American Indian and Alaska Native Children: Lessons from Tribal
Traditions,
37 Cap. U.L.Rev. 239, 252 n. 64 (2008). The Fostering Connections to Success and
Increasing Adoptions Act of 2008, Pub.L. No. 110-351, ?? 301-302, 122 Stat.
3949, 3962-73 (2008), now allows tribes to enjoy the same direct access to Title
IV-E funding as states do.
are
authorized to enter into agreements with each other respecting care and custody
of Indian children and jurisdiction over child custody proceedings, including
agreements which may provide for orderly transfer of jurisdiction on a
case-by-case **600
basis and agreements which provide for concurrent jurisdiction between
*241
States and Indian tribes.
This
language is sufficiently broad to include agreements between tribes and states
that grant state agencies jurisdiction to administer Title IV-E foster care
programs and to make foster care maintenance payments to Indian children on
Indian reservations. See
Native
Village of Stevens,
770 F.2d at 1489-90 (holding that ? 1919(a) does not require states to enter
agreements with tribes, but suggesting that ? 1919(a) allows tribes and states
to enter agreements regarding Title IV-E foster care programs and payments).
Accordingly, we conclude that the MOA is a valid, federally-authorized
agreement.
?
20 Hanna objects to this conclusion, arguing that while ? 1919(a) may authorize
states and tribes to enter agreements ?respecting care and custody of Indian
children and jurisdiction over child custody proceedings,? it does not allow
agreements that deprive tribal courts of jurisdiction to adjudicate the rights
of accused abusers. We reject this argument. The substantiation proceeding,
which is an adjudication of Hanna's rights, Dowell
v. Mont. Dept. of Pub. Health & Human Servs.,
2006 MT 55, ?? 15-16, 20, 331 Mont. 305, 132 P.3d 520, arose directly from
Hanna's ?care? of an Indian child, M.S. As such, it fits within the language of
? 1919(a). Such investigation and verification of alleged child abuse and
neglect are necessary components of an effective foster care program.
See
e.g.
42 U.S.C. ? 671(a)(9)-(10) (requiring approved state foster care programs to
provide for reporting of child abuse and to establish standards for foster
homes). Furthermore, as we see below, CFSD's authority to pursue the
substantiation proceeding conforms with the grant of jurisdiction from the
MOA.
[5]
? 21 Accordingly, we turn to the second consideration: whether the MOA
authorizes CFSD to pursue a substantiation proceeding against Hanna for her
alleged abuse of M.S. We conclude that it does.
?
22 The relevant language of the MOA is plain on its face. Part X of the MOA
addresses licensing of foster homes. Paragraph B of Part X reads, ?The Tribes
and BIA will recognize the CFSD license of a foster home when the home has a
current license issued by CFSD.? Paragraph C of Part X then
provides:
The
agency that licensed a home, upon receipt of a referral regarding violation of
foster home licensing standards, will conduct an investigation to determine
compliance with governing licensing standards, statute/
Paragraph
E of Part X adds:
*242
When CFSD and BIA receive a referral on a licensed foster home alleging child
abuse or neglect, the report shall be investigated by the placing agency and the
agency that issued the license and follow the requirements of the Indian Child
Protection Act (25 USC 3203) where appropriate.
?
23 These provisions demonstrate that DPHHS, the agency that licensed Hanna here,
is responsible for investigating allegations of abuse and neglect, documenting
the conclusions of such investigation in a final report, and making the final
decision about Hanna's licensing status. By the terms of Paragraph E, upon
receipt of an allegation of abuse and neglect by Hanna, CFSD (the relevant
section of DPHHS) was required to conduct an investigation. Under 25 U.S.C. ?
3203(b)-(c) of the Indian Child Protection Act (cited in Paragraph E), this
investigation was to lead to a final written report (here, the substantiated
report). Following the final written report, under Paragraph C, CFSD was
required to make a final decision about Hanna's licensing status. Where the
parties to the MOA wanted the Tribes' Comprehensive Code of Justice to apply or
the Fort Peck Tribal Court to have jurisdiction, they expressly so stated.
See
MOA, pt. III, ? G; pt. V, ? B. The MOA does not contemplate tribal jurisdiction
with regard to investigations of and reports on child abuse and neglect, and
final licensing decisions brought by state agencies under Part X. For this
reason, we hold that the CFSD had jurisdiction under the terms of the MOA to
pursue **601
the present substantiation proceeding against Hanna under state laws and
regulations. We therefore affirm the ruling of the District Court.
We
concur: MIKE McGRATH, C.J., JAMES C. NELSON, MICHAEL E. WHEAT and PATRICIA O.
COTTER, JJ.