In Re Smmd
272 P.3d 126
Nev.2012Background
- Fallon Paiute Shoshone Tribe and DCFS initially removed S.M.M.D. and T.A.D. in 2002 on an emergency basis from Raena, a tribe member living on the reservation.
- Tribal and state social services conducted joint investigations in 2003 and 2004, resulting in custody of the children by foster parents while tribal blood-quantum eligibility remained in flux.
- In January 2006 the district court found the children Indian children under ICWA due to updated tribal enrollment eligibility, triggering ICWA applicability to custody proceedings.
- From 2006 through 2007, tribal and state authorities maintained concurrent custody and coordinated the termination of Raena’s parental rights, with the tribal court approving the state court’s termination petition.
- Raena elected to voluntarily relinquish her parental rights during the state termination hearing in March 2007, which the district court canvassed for voluntariness.
- In June 2007 the district court ordered custody to return to tribal social services, and the tribal court later adopted the children to Ted and Raelynn R.; Raena challenged the relinquishment in 2008 arguing lack of jurisdiction and improper notice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether 1919 allows concurrent jurisdiction when 1911(a) would be exclusive | Raena argues tribal exclusive jurisdiction under 1911(a) cannot be shared by 1919. | The State argues 1919 permits concurrent jurisdiction on a case-by-case basis even where 1911(a) would be exclusive. | Section 1919 permits concurrent jurisdiction; Nevada court validly exercised jurisdiction. |
| Whether the district court properly relied on a 1919 agreement to share jurisdiction | Raena contends there was no valid 1919 agreement to vest state jurisdiction. | The district court found a demonstrable agreement for the state to maintain jurisdiction with tribal co-agency support. | Record demonstrates a 1919 agreement enabling shared jurisdiction. |
| Whether proper notice under ICWA and state law was provided | Raena asserts deficient notice to parent and tribe under 1912 and NRS 62B. | Actual notice was provided to Raena and the tribe; technical notice deficiencies do not invalidate the proceedings. | Actual notice sufficed; proceedings upheld. |
Key Cases Cited
- Mississippi Choctaw Indian Band v. Holyfield, 490 U.S. 30 (1989) (ICWA dual jurisdiction and tribal autonomy principles)
- In re Phillip A.C., 122 Nev. 1284, 149 P.3d 51 (2006) (tribe determines enrollability; ICWA applicability to custody)
- In re Resort at Summerlin Litigation, 122 Nev. 177, 127 P.3d 1076 (2006) (specific vs general jurisdiction controls; statutory interpretation)
- In re J.M., 218 P.3d 1213 (2009) (ICWA involuntary-to-voluntary terminations and notice considerations)
- In re TM, 628 N.W.2d 570 (2001) (actual notice sufficiency when substantial compliance with ICWA)