In re: the Petition of A. M. G. and J. L. G. to Adopt C. A. R., L. C. R., T. M. R., K. M. R.

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A19-1389

In re: the Petition of A. M. G. and J. L. G. to Adopt C. A. R., L. C. R., T. M. R., K. M. R.

Filed March 23, 2020
Reversed and remanded
Florey, Judge

Becker County District Court
File No. 03-FA-19-225

Mark D. Fiddler, Fiddler Osband, L.L.C., Edina, Minnesota (for appellants J. L.G. and
A.M.G.)

Rebecca McConkey -Greene, McConkey -Greene Law Office, Duluth, Minnesota (for
respondent White Earth Band of Chippewa)

MaryJo Wiatrak, ICWA Law Center, Minneapolis, Minnesota (for biological mother)

Considered and decided by Worke, Presiding Judge; Larkin, Judge; and Florey,
Judge.
U N P U B L I S H E D O P I N I O N
FLOREY, Judge
Appellants challenge the district court’s transfer, pursuant to Minn. Stat.
§ 260C.771, subd. 3(b) (2018) , of their adoption petition to tribal court . We reverse and
remand.

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FACTS
This dispute arises from appellants J.G. and A.G.’s (collectively appellants) attempt
to adopt four children (collectively the ch ildren). The children, aged 10 to 16 years old,
are all the biological children of A.B. and C.R. A.B., C.R., and the children are all members
of respondent White Earth Band of Chippewa (White Earth).
In November 2011, child -protection proceedings involving the children were
initiated in White Earth tribal court. A.B. and C.R.’s parental rights were “voluntarily
suspended” by the tribal court in May 2013. In May 2015, the children’s maternal aunt,
L.R., and her partner, M.G., adopted the children in tribal court. L.R. passed away in June
2015, and M.G. passed away in March 2016. In his will, M.G. appointed his nephew, J.G.,
as the children’s guardian. The Minnesota district court issued appellants letters of
guardianship over the children in July 2016.
In August 2018, A.B. moved the tribal court to reinstate her parental rights. In
February 2019, appellants petitioned for adoption of the children in district court. The
tribal court reinstated A.B.’s parental rights in March 2019, and White Earth 1 moved the
district court to dismiss appellants’ adoption petition for lack of jurisdiction.2
Following a hearing, the district court determined that it had concurrent jurisdiction
over appellants’ adoption petition and therefore denied White Earth’s motion to dismiss.

1 White Earth intervened as a matter of right in the district court adoption proceedin gs in
February 2019.
2 Because we rely on the supreme court’s decision in In re Welfare of the Child of R.S., we
adopt the supreme court’s usage of the term “jurisdiction” in R.S. throughout this opinion
for consistency. See 805 N.W.2d 44, 48-51 (Minn. 2011).

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However, the district court also determined that state law required transfer of the adoption
proceedings to tribal court. This appeal followed.
D E C I S I O N
Appellants argue that the district court erroneously deter mined that Minn. Stat.
§ 260.771, subd. 3(b) , required transfer of appellants’ adoption -petition to tribal court.
Appellate courts review a district court’s interpretation of a statute de novo. Nelson v.
Nelson, 866 N.W.2d 901, 903 (Minn. 2015). “If the plain language of a statute is clear and
free from ambiguity, the c ourt’s role is to enforce the language of the statute and not
explore the spirit or purpose of the law.” Id. (quotation omitted).
In order to conclude that it was required to transfer appellants’ adoption petition to
tribal court, the district court held that Minn. Stat. § 260.771, subd. 3(b) , abrogated the
supreme court’s holding in In re Welfare of the Child of R.S., 805 N.W.2d 44 (Minn. 2011).
Appellants assert that under the Supremacy Clause of t he Constitution and the princip les
set forth in Marbury v. Madison , the supreme court’s holding in R.S. should control, not
the subsequent state statute. 5 U.S. 137 (1803). However, for the reasons set forth below,
we do not treat Minn. Stat. § 260.771, subd. 3(b) , and R.S. as incompatible with one
another.
In R.S., t he supreme court analyzed the Indian Child Welfare Act (ICWA), 25
U.S.C. §§ 1901 -1963 ( 2012), to determine whether it authorized the transfer of
preadoptive-placement proceedings to tribal court. 805 N.W.2d at 49. ICWA contains two
specific grants of jurisdiction to tribal courts. 25 U.S.C. § 1911(a ) provides for exclusive
tribal-court jurisdiction over custody proceedings involving an Indian child who resides or

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is domiciled within the tribe’s reservation, or is a ward of a tribal court. This section does
not apply to the children in this case because, following their adoption , they no longer
resided or were domiciled within the White Earth reservation, nor were they wards of the
tribal court.
Section 1911(b) of ICWA requires the transfer to tribal court of “any [s]tate court
proceeding for the foster care placement of, or termination of parental r ights to, an Indian
child.” 25 U.S.C. § 1911(b) . In R.S., the supreme court held that section 1911(b) is
unambiguously limited to the two enumerated proceedings and therefore did not allow for
the transfer of preadoptive -placement proceedings to the tribal court. 805 N.W.2d at 50.
The supreme court concluded that transfers other than those enumerated in section 1911(b)
were not au thorized under state or federal law because Congress has not granted tribal
courts jurisdiction over preadoptive and adoptive-placement proceedings for children who
do not reside—or are not domiciled—within the tribe’s reservation. Id. at 50-51.
The Minnesota state legislature amended Minn. Stat. § 260.771, subd. 3 , following
the supreme court’s ruling in R.S. to require the trans fer of preadoptive - and adoptive -
placement proceedings involving Indian children not domiciled or residing within a
reservation to tribal court. 2013 Minn. Laws c h. 65, § 1, at 3 56 (codified at Minn. Stat.
§ 260.771, subd. 3(b)). Despite the supreme court’s statement that state law cannot create
tribal-court jurisdiction where federal law has not, R.S., 805 N.W.2d at 50, the district court
held that the subsequently enacted Minn. Stat. § 260C.771, subd. 3(b) , abrogated the
holding in R.S. and mandated transfer of appellants’ adoption petition to tribal court.

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The district court erred in its determination that Minn. Stat. § 260.771, subd. 3(b) ,
abrogated the holding in R.S. and in its determination that transfer of appellants’ adoption
petition to tribal court was required under state law. The district court concluded that the
enactment of section 260.771, subdivision 3(b), created “a statutory mandate to transfer
these proceedings absent good cause.” However, as the district court acknowledged, good
cause to deny transfer of adoptive -placement proceedings exists when “ the Indian child’s
tribe does not have a tribal court or any other administrative body of a tribe vested with
authority over child custody proceedings, as defined by [ICWA], to which the case can be
transferred, and no other tribal court has been designated by the Indian child’s tribe.” Minn.
Stat. § 260.771, subd. 3a(b)(1) (2018).
Good cause existed to deny the transf er because the tribal court does not possess
jurisdiction over the adoptive-placement proceeding. When Indian children neither reside
nor are domiciled on their tribe’s reserva tion, as is the case here, the supreme court
interpreted section 1911(b) as conveying to the tribal courts “presumptive jurisdiction ”
over two types of child-custody proceedings only: foster care placements, and terminations
of parental rights. R.S., 805 N.W.2d at 51.
The supreme court went on to state in R.S. that “Congress has not granted tribal
courts jurisdiction over preadoptive and adoptive placement proceedings involving Indian
children who do not reside and are not domiciled on their tribe’s rese rvation.” Id.
Accordingly, because the tribal court lacked jurisdiction over appellants’ adoption petition,
good cause existed to deny the transfer under Minn. Stat. § 260.771, subd. 3a(b)(1).

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White Earth argues that the district court’s transfer order was not erroneous because
the tribe retains inherent jurisdiction over its members, and thus the tribal court could
accept a transfer of appellants’ adoption petition under Minn. Stat. § 260.771, subd. 3(b).
See State v. Stone , 572 N.W.2d 725, 728 (Minn. 1997) (“The Supreme Court has
consistently recognized that Indian tribes retain ‘attributes of sovereignty over both their
members and their territory.’” (quoting California v. Cabazon Band of Mis sion Indians,
480 U.S. 202, 207, 107 S. Ct. 1083, 1087 (1987))). However, in R.S., the supreme court
stated that inherent jurisdiction did not apply, and thus “the tribal court could assume
jurisdiction over the proceeding, if at all, only by Congressional grant.” 805 N.W.2d at 50.
At oral argument, White Earth argued that R.S. is distinguishable because, in that case, one
of the biological parents was a non-Indian, but that is a distinction without a difference.
The Supreme Court discussed the general contours of inherent tribal jurisdiction in
Montana v. United States, stating that
the Indian tribes retain their inherent power to determine tribal
membership, to regulate domestic relations among members,
and to prescribe rules of inheritance for members. But exercise
of tribal power beyond what is necessary to protect tribal self -
government or to control internal relations is inconsistent with
the depend ent status of the tribes, and so cannot survive
without express congressional delegation.

450 U.S. 544, 564, 101 S. Ct. 1245, 1257 -58 (1981) (citation omitted, emphasis added).
As in R.S., here, the children did not r eside, and were not domiciled o n, the White Earth
reservation, and nothing in the record indicates that the children’s adoptive parents, or
appellants, are tribal members. As such, appellants’ adoption petition does not constitute
solely a matter of domestic relations among the m embers of the White Earth tribe.

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Therefore, as was the case in R.S., the tr ibe does not possess inherent jurisdiction over
appellants’ adoption petition.
White Earth next argues that the supreme court’s narrow reading of section 1911(b)
is incompatible with the general purpose of ICWA, but the supreme court specifically
declined to adopt this argument in R.S. In that decision, the supreme court distinguished
the holdings of foreign jurisdictions that relied on a finding of generalized intent unde r
ICWA from those that relied on a reading of ICWA’s unambiguous statutory provisions,
determining that “courts th at have concluded that transfer of preadoptive and adoptive
placement proceedings to tribal courts is permitted have done so only by disregarding the
plain language of ICWA in favor of the intended purpose of the act. ” Id. at 52 -53
(quotation omitted). Therefore, White Earth’s argument that the transfer of jurisdiction to
tribal court was supported by the generalized purpose of ICWA was already determined to
be unavailing in R.S.
White Earth also argues that transfer to the tribal court was authorized b y federal
law by citing to the Bureau of Indian Affairs’s (BIA) response to a comment within the
Federal Register which discusses aspects of inherent tribal jurisdiction . Indian Child
Welfare Act Proceedings; Final Rule, 81 Fed. Reg. 38,822 (June 14, 2016 ) (response to
comment). However, White Earth has not identified any instance where the BIA’s
response to the comment has been codified into the Code of Federal Regulations, nor has
White Earth identified any authority to support its reliance on the BIA’s response.
As discussed above, the supreme court in R.S. determined that tribal inherent
jurisdiction did not apply to proceedings under section 1911(b), and thus transfer of

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jurisdiction was only authorized under federal law for the two types of proceedi ngs
enumerated in that section, which do not include adoptive placements. R.S., 805 N.W.2d
at 50-51. Because the tribal court lacked jurisdiction over appellants’ adoption petition,
good cause existed to deny the transfer in accordance with Minn. Stat. § 260.771, subd.
3a(b)(1). Therefore, the district court’s order transferring the petition to tribal cour t is
reversed, and the appellants’ petition to adopt the children is remanded to the district court.
Reversed and remanded.