In re M.M., a Person Coming Under the Juvenile Court Law.
Humboldt County Department of Health & Human Services, Plaintiff and Appellant,
v.
Michael T., Defendant and Respondent; Karuk Tribe of California et al., Interveners and Respondents; M.M., Appellant.
Court of Appeal of California, First District, Division Five.
*275 Interim County Counsel, Ralph Faust, Marilyn Dutkus, Deputy County Counsel, for Plaintiff and Appellant Humboldt County Department of Health & Human Services.
Deborah Dentler, for Appellant M.M.
Linda K. Harvie, for Defendant and Respondent Michael T.
California Indian Legal Services, Samuel D. Hough, for Intervener and Respondent Karuk Tribe of California.
Law Office of Gradstein & Gorman, Seth F. Gorman, Half Moon Bay, for Interveners and Respondents Marilyn R. and Jason M.
NEEDHAM, J.
This appeal from an order transferring a case from a California juvenile court to an Indian tribal court pursuant to the Indian Child Welfare Act of 1978 (ICWA), title 25 United States Code section 1901 et seq., raises a question of first impression in Californiadoes the transfer of a juvenile dependency case from state court to tribal court pursuant to title 25 United States Code section 1911(b) deprive the California courts of jurisdiction over the dependency case and thus preclude any appeal from the transfer order? We conclude that it does.
M.M. (Minor) appeals from an order of the Humboldt County Juvenile Court that transferred his dependency proceeding to the Karuk Tribal Court. The Humboldt County Juvenile Court transmitted its case files to the tribal court, the tribal court accepted jurisdiction, and it declared Minor a ward of that court. Because no party requested a stay of the transfer order prior to completion of the transfer, we hold that the California court lost all power to act in the matter upon completion of the transfer of the case. We further hold that as a California appellate court we can provide no effective relief to Minor, because we have no power to order the courts of a separate sovereignthe Karuk Tribeto return the case to the state courts. We must therefore dismiss this appeal for lack of jurisdiction.
FACTUAL AND PROCEDURAL BACKGROUND
Minor was born on January 24, 2005. On February 10, 2005, the Humboldt County Department of Health and Human Services (the Department) filed a petition alleging that Minor was a dependent child within the meaning of Welfare and Institutions *276 Code section 300, subdivisions (b), (g), and (j). The petition noted that Minor "may be a member of, or eligible for, membership in a federally recognized Indian tribe."
Minor's mother, Roseanna A., is an enrolled member of the Hoopa Valley Tribe. Roseanna identified Chester M. as Minor's father, and Chester signed a declaration of paternity at the hospital the day after Minor's birth; Chester is also listed as the father of the child on Minor's birth certificate. Chester M. is an enrolled member of the Hoopa Valley Tribe. On February 15, 2005, the juvenile court found that Chester M. was Minor's presumed father. Minor was later placed in foster care with Roseanna A.'s relative, Marilyn R. and her partner, Jason M.
The Department's investigation indicated that Minor was reported to be eligible for membership in the Hoopa Valley, Karuk, Yurok, and Porno tribes. In February 2005, a Department social worker spoke with a representative of the Hoopa Valley Tribe, who indicated that the tribe did not wish to intervene in the case at that time.[1] On March 17, 2005, the Department sent a "Notice of Involuntary Child Custody Proceedings for an Indian Child" (Judicial Council form JV-135) to the Hoopa Valley Tribal Council, the Karuk Tribe of California, and the Yurok Tribe, as well as to the Office of the Regional Solicitor of the Department of the Interior.
At the March 29, 2005 jurisdictional hearing, the juvenile court sustained amended jurisdictional allegations. The court found that Minor was a child described in subdivisions (b) and (j) of Welfare and Institutions Code section 300. Although the juvenile court found that notice had been given as required by law, the court left open the question whether notice to the tribes had been adequate. On April 18, 2005, the juvenile court declared Minor a dependent of the court and ordered reunification services for both mother and the presumed father.
On September 22, 2005, the Humboldt County Superior Court received a notice of intervention from the Hoopa Valley Tribe. At the six-month review hearing five days later, the juvenile court granted the request to intervene and continued the review hearing, which was eventually calendared for November 21, 2005. The six-month status review report noted that Minor had applied for enrollment in the Hoopa Valley Tribe but that the eligibility determination process was not yet complete.
At the contested six-month review hearing on November 21, the court terminated reunification services to both Roseanna A. and Chester M. It then set a permanency planning hearing under Welfare and Institutions Code, section 366.26 for March 20, 2006. The court further ordered the Department to submit its report by February 21, 2006.
At a hearing on February 28, the juvenile court noted that it had not received the Department's report. At the same hearing, however, the court and all counsel confirmed receipt of a letter dated February 22, 2006, from respondent Michael T. Michael T. is an enrolled member of the Karuk Tribe. In the letter, Michael T. explained that he had been told that he was Minor's father and expressed a desire to retain his parental rights. He also requested a blood test to establish his paternity over Minor. The Department opposed *277 the request for a blood test, since Chester M. had already been declared Minor's presumed father. The juvenile court did not rule on the request at the hearing.
On March 10, 2006, the Karuk Tribe sent a letter to the Department's social worker stating that the tribe had no records for Minor and that the tribe would support the Department and the Hoopa Valley Tribe in the adoption of Minor. At the time this letter was sent the Karuk Tribe had not been provided with notice that Michael T. had contacted the juvenile court claiming to be Minor's father.
At the March 20, 2006 permanency planning hearing, Michael T. appeared and addressed the court.[2] He stated that he "would like to establish a paternity test (sic)." Counsel for Minor and Chester M. argued that Michael T. lacked standing to request a paternity test because only the presumed father could request such a test. The juvenile court made no explicit ruling on Michael T.'s request, stating only that "the presumed father is Chester M[.]. By law, there's only one presumed father." The court then proceeded to terminate the parental rights of both Roseanna A. and Chester M., as well as the rights of "any and all other persons claiming to be the mother or father of the child."
In May 2006, the Hoopa Valley Tribe performed a paternity test by drawing blood from Minor, Roseanna A., and Michael T. The test showed a 99.99 percent probability that Michael T. was Minor's father. The Karuk Tribal Council subsequently approved a resolution finding that Minor was eligible for membership in the Karuk Tribe and was the natural child of a member of the Karuk Tribe. The resolution also authorized the tribe's intervention in Minor's dependency proceeding. On July 21, 2006, the children's division of the tribal court of the Karuk Tribe of California entered an "ORDER ACCEPTING JURISDICTION AND AWARDING TEMPORARY CUSTODY." In the order, the tribal court found that Michael T. was Minor's biological father and that Minor was eligible for membership in the tribe. The tribal court also "accepted" the transfer of jurisdiction of the case from the Humboldt County Juvenile Court.[3] Its order further provided that "effective upon transfer from the California Superior Court, [Minor] is adjudged a temporary Ward of the Children's Division of the Karuk Tribal Court with temporary legal custody awarded to the Karuk Tribe of California Department of Child and Family Services."
Shortly thereafter, on July 28, 2006, the Karuk Tribe filed in Humboldt County Juvenile Court a notice of intervention and a request to transfer jurisdiction to the Karuk Tribal Court. On August 1, 2006, the tribe filed in the juvenile court a petition to invalidate the court's earlier termination of parental rights. The following day, the Hoopa Valley Tribe filed a notice of withdrawal of intervention. In its notice, the Hoopa Valley Tribe stated that Minor was not eligible for membership in the Hoopa Valley Tribe.
On August 7, 2006, Minor's case was calendared for a hearing on the intervention by the Karuk Tribe and the tribe's *278 motion to transfer jurisdiction.[4] The juvenile court inquired whether anyone disputed that Minor was the biological child of a Karuk Tribe member. Neither counsel for the Department nor counsel for Minor offered to refute the blood test results showing that Michael T. was Minor's father. The juvenile court then found that "it does appear from the state of the record, and no one has shown otherwise or objected otherwise, thatthat the child's tribe is the Karuk Tribe since he is the biological child of a member of the Karuk Tribe, Mr. T[.], by the record before it, the evidence before the Court, and is either a member of or eligible for membership in the Karuk Tribe." The juvenile court therefore confirmed the Karuk Tribe's right to intervene in the case.
At the continuation of the hearing on August 8, the court appointed counsel for Michael T. That same day, Michael T. filed a parental notification of Indian status, stating that he was a member of the Karuk Tribe and that Minor was a member or eligible for membership in the tribe. Michael T. also filed a statement regarding paternity in which he stated that he had established paternity through a blood test and through the July 21, 2006 judgment of paternity by the children's division of the Karuk Tribal Court. On August 16, Michael T. joined the Karuk Tribe's motion to transfer the case to tribal court.
After various continuances of the hearing, the juvenile court heard argument on a number of motions on September 13, 2006. The juvenile court granted the Karuk Tribe's motion to transfer and entered a written order stating that "[o]n 9-13-06, this matter be transferred to the Children's Division of the Tribal Court of the Karuk Tribe of California pursuant to the Indian Child Welfare Act, [title] 25 U.S.C. § 1911(b)." Although counsel for Minor was present at the hearing, she did not request a stay of the transfer order. Pursuant to title 25 United States Code section 1914,[5] the juvenile court also set aside its earlier order terminating parental rights. The court further denied without prejudice the de facto parents' request for prospective adoptive parent designation, denied a motion by Minor's counsel for paternity testing, and granted Michael T.'s motion for visitation. The court directed the clerk's office to complete the transfer to the Karuk Tribal Court and continued the matter to September 25, 2006, to confirm that the case had been transferred.
At the hearing on September 25, 2006, the juvenile court confirmed that the file had been delivered to the Karuk Tribal Court on September 18, 2006, and had been accepted by the tribal court on the following day. At the same hearing, the juvenile court also relieved all counsel in this matter. On October 25, 2006, the juvenile court signed a form JV-550 ("Juvenile Court Transfer Orders"). (See Cal. Rules of Court, rule 5.605(f).) That order states, "The child is an Indian child under the Indian Child Welfare Act and the child's case is transferred to the Karuk Tribe [T]ribal Court, the child's tribe, under 25 U.S.C. section 1911." The order *279 was filed in Humboldt County Superior Court on October 27, 2006.
On October 2, 2006, counsel for Minor filed a notice of appeal from the juvenile court's September 13, 2006 order setting aside the termination of parental rights. Although the notice of appeal identified only the order setting aside the termination of parental rights, Minor's brief on appeal challenges a number of other rulings by the juvenile court, including the order transferring the case to the Karuk Tribal Court.
This court appointed appellate counsel for Minor on December 1, 2006. Six months later, on May 15, 2007, Minor's counsel filed a petition for writ of supersedeas/prohibition/habeas corpus and a request for a temporary stay of a Karuk Tribal Court hearing set for May 18, 2007. On May 18, 2007, we denied the petition for writ of supersedeas/prohibition and the request for temporary stay. We severed Minor's habeas corpus claims from the remainder of the petition and further ordered the appeal expedited.[6] On June 7, 2007, Minor's counsel filed a second petition for writ of supersedeas and request for stay. We denied this petition by order dated June 12, 2007.
DISCUSSION
Minor raises a host of arguments in this court, but before we may address them, we must determine whether we may entertain this appeal at all. Both the Karuk Tribe and Michael T. argue that the juvenile court's transfer of Minor's case to the Karuk Tribal Court has rendered the appeal moot. They note that Minor asks this court to reverse the transfer order and to direct the juvenile court to reassume jurisdiction over his dependency case. In simplest terms, the Karuk Tribe and Michael T. contend that because the juvenile court has transferred the case, the tribal court has accepted jurisdiction, and Minor is now a ward of tribal court, the juvenile court has lost all jurisdiction over Minor's dependency.[7] They argue that jurisdiction over Minor now resides in the Karuk Tribal Court, and this court has no power to compel that court to return Minor's case to the California courts.
For the reasons that follow, we conclude that the transfer of Minor's case to the courts of a wholly separate sovereign has deprived the California courts of jurisdiction over this case. Simply put, the juvenile court may not act in a case over which it no longer has jurisdiction, and, as we shall explain, we have no power to command the Karuk Tribal Court to return the case to us. Because this loss of jurisdiction makes it impossible for us to render any effective relief to Minor, we must dismiss this appeal. Before turning to the jurisdictional issue that is at the heart of this case, we will first review ICWA's jurisdictional provisions and the principles of tribal sovereignty that guide our decision.
*280 I. Transfers to Tribal Courts Under ICWA
Section 101 of ICWA, codified at title 25 United States Code section 1911, governs Indian tribal jurisdiction over custody proceedings involving Indian children. In custody proceedings involving Indian children who reside or are domiciled within the reservation of the tribe, ICWA generally grants the tribe exclusive jurisdiction. (25 U.S.C. § 1911(a).) In contrast, ICWA "creates concurrent but presumptively tribal jurisdiction in the case of children not domiciled on the reservation: on petition of either parent or the tribe, state-court proceedings for foster care placement or termination of parental rights are to be transferred to the tribal court, except in cases of `good cause,' objection by either parent, or declination of jurisdiction by the tribal court." (Mississippi Choctaw Indian Band v. Holyfield (1989)
While ICWA clearly establishes a preference for tribal court jurisdiction in custody proceedings involving Indian children and provides certain rules for the transfer of cases to tribal courts, it does not prescribe any particular mechanism or procedure for accomplishing such transfers. (Risling, Cal. Judges' Benchguide: The Indian Child Welfare Act (Cal. Indian Legal Services 2000 ed.) p. 69 ["there is no standard procedure for accomplishing transfer" (bold omitted) ].) The BIA Guidelines say only that upon receiving a transfer petition, "the state court shall notify the tribal court in writing of the proposed transfer" and, if the case is transferred, "the state court shall provide the tribal court with all available information on the case." (BIA Guidelines, supra,
*281 Thus, neither ICWA itself nor the guidelines interpreting it are particularly helpful in determining whether the juvenile court's transfer of this proceeding to the Karuk Tribal Court has completely and irrevocably divested the state court of jurisdiction over Minor's case. Despite this absence of direct, controlling authority, we may answer this question by reference to well-established legal principles concerning the status of Indian tribes and to case law concerning transfers of jurisdiction.
II. Indian Tribal Sovereignty
California case law recognizes the unique status of Indian tribes as sovereign entities. (See, e.g., Agua Caliente Band of Cahuilla Indians v. Superior Court (2006)
"[Although the tribal court is located within the geographic boundaries of the state, it is not a [California] court; it is the court of an independent sovereign." (Teague v. Bad River Band (2000)
*282 III. The California Courts Have Lost Jurisdiction Over Minor's Case.
In their supplemental briefs, the parties have directed our attention to a number of cases in which appellate courts have reviewed ICWA transfer orders. We discuss these cases first to determine whether they can support an exercise of our appellate jurisdiction in this case. We find these cases inconclusive, and we therefore turn next to cases addressing the effect of transfer orders on trial court jurisdiction. As we explain below, our review of the relevant case law indicates that the juvenile court's transfer of jurisdiction to the Karuk Tribal Court has deprived us of jurisdiction to consider this appeal.
A. Cases Involving Appellate Review of ICWA Transfer Orders
Our research has disclosed two reported cases in which California courts have clearly entertained appeals from ICWA transfer orders. (In re M.A. (2006)
Cases from other states are similarly unhelpful. In some cases, although litigants have contended that the transfer of a case from state to tribal court deprives the state courts of jurisdiction, the court has not passed upon the issue. (In Interest of Armell (1st Dist.1990)
These cases do not assist us in determining whether we have the power to review the propriety of an ICWA transfer order after the juvenile court has ordered the case transferred to the tribal court, the tribal court has accepted jurisdiction, and the minor has been made a ward of the tribal court. The answer to the question lies instead in an analysis of the effect of the transfer on the juvenile court's jurisdiction.
B. Transfer of the Case Deprives the California Juvenile Court of Any Further Jurisdiction to Act.
We have found only one published case that directly addresses how an ICWA transfer order affects the jurisdiction of the transferor court. In Comanche Indian Tribe of Oklahoma v. Hovis (W.D.Okl. 1994)
At the conclusion of its opinion, the Hovis court addressed the tribe's contention that the state court lost any jurisdiction that it had over the case when it transferred the matter to the tribal court in 1987. (Hovis, supra, 847 F.Supp. at pp. 885-887.) The defendants, including the mother, argued that the original transfer order was void because it was made over mother's objection, and that once the state court found its initial transfer improper, it could reassert jurisdiction to correct its error. (Id. at p. 885.) Relying on Oklahoma state law governing transfers of venue, the district court held that the state court lost jurisdiction over the case after it transferred the matter and transmitted the case file to the tribal court. (Id. at pp. 886-887.) Because the record already had been transferred and the tribal court had asserted its exclusive jurisdiction, "the State Court, at [the time the motion to vacate was filed] in 1991, had indeed lost jurisdiction to vacate the prior order." (Id. at p. 887.) As a result, the district court concluded that the state court had no jurisdiction to reconsider and vacate the transfer order, and its vacation of that order was void for lack of jurisdiction. (Ibid.)
Because Hovis appears to be the only case directly on point, we look to other areas of the law for additional guidance. A helpful analogy to the situation before us is the removal of actions from state court to federal court under title 28 United States Code section 1446. Just as states and Indian tribes are separate sovereigns, states are separate sovereigns with respect to the federal government. (E.g., Heath v. Alabama (1985)
Applying the reasoning of these cases to the appeal before us supports the conclusion that the California courts are deprived of jurisdiction. The Humboldt County Juvenile Court lost jurisdiction over Minor's dependency proceeding once the case was transferred to the Karuk Tribal Court and the latter court accepted jurisdiction. (Hovis, supra,
As the foregoing discussion makes clear, we cannot adopt Minor's suggestion that we simply reverse the transfer order and direct the juvenile court to "reassume jurisdiction" over this matter. The case has been transferred to the Karuk Tribal Court, which has exercised its jurisdiction and declared Minor a ward of that court. Even if we were to reverse, neither the juvenile court nor this court has the power to command the courts of a wholly separate sovereign to return the case to us.
C. ICWA's Grant of Concurrent Jurisdiction to State Courts Does Not Permit State Courts to Retain Jurisdiction After Transfer Is Completed.
Minor argues that the juvenile court's transfer order "bestowed joint or `concurrent' jurisdiction on the tribal courtthe order did not terminate the state judiciary's authority to make orders in the exercise of its concurrent jurisdiction over a California dependent minor."[12] Minor appears *286 to interpret ICWA's grant of concurrent jurisdiction to state and tribal courts as permitting a state court to continue to issue orders affecting the dependent juvenile even after the case has been transferred to the tribal court. Minor's argument betrays a basic misunderstanding of the meaning of the term "concurrent jurisdiction."
When we speak of "concurrent jurisdiction," we refer to a situation in which two (or perhaps more) different courts are authorized to exercise jurisdiction over the same subject matter, such that a litigant may choose to proceed in either forum.[13] As the Minnesota Supreme Court explained in a case involving an Indian tribe, "[c]oncurrent jurisdiction describes a situation where two or more tribunals are authorized to hear and dispose of a matter and the choice of which tribunal is up to the person bringing the matter to court." (Gavle, supra,
Thus, although ICWA grants state and tribal courts the power to adjudicate proceedings for foster care placement or termination of parental rights to Indian children not domiciled or residing within the reservation of the Indian child's tribe, this does not mean that after a state court transfers a case to tribal court under title 25 United States Code section 1911(b), the state court retains the power to make orders affecting the Indian child. Were we to accept Minor's position, dependent Indian children could be subject to the orders of two wholly separate judicial systems, with no clear means of resolving potential conflicts between those orders. Even if it were within our power to do so, we see no reason to create such a jurisdictional conflict.
Minor's argument also cannot be squared with the manner in which Congress has chosen to allocate jurisdiction *287 between the state and tribal courts under ICWA. Although state courts do enjoy concurrent jurisdiction to adjudicate custody matters involving Indian children in certain circumstances (25 U.S.C. § 1911(b)), Minor can point to nothing in the statute that would authorize a California court to continue to supervise a dependent minor's case once that case has been transferred to the jurisdiction of the tribal court. Such an argument seems particularly ill-founded in light of Congress's explicit decision to require that cases such as this be transferred to tribal jurisdiction save in certain enumerated circumstances. (See 25 U.S.C. § 1911(b).)
IV. Preserving the Right to Appeal in Cases Subject to Transfer Orders
We recognize that our disposition of this case will preclude Minor from having his claims on the merits heard by this court. Although counsel for Minor decries this result as unjust, it is in part a consequence of the tribe's separate sovereignty. (See Lamere v. Superior Court (2005)
The loss of jurisdiction that has led us to conclude that this appeal must be dismissed might have been averted had Minor's counsel sought an immediate stay of the transfer order pending Minor's exhaustion of his appellate remedies. (See Wanomi P., supra,
An appeal need not unreasonably delay an appropriate transfer of the matter to the tribal court. Appeals from judgments in proceedings under Welfare and Institutions Code section 300 "have precedence over all other cases in the court to which the appeal is taken." (Welf. & Inst.Code, § 395, subd. (a)(1).) In addition, to ensure that the matter is heard and decided promptly by the Court of Appeal, the parties may request calendar preference in the appellate court. (Cal. Rules of Court, rule 8.240.) An order granting calendar preference "may include expedited briefing and preference in setting the date of oral *288 argument." (Ibid.) These procedures should ensure that appellate review does not create undue delay.
DISPOSITION
The appeal is hereby dismissed for lack of jurisdiction.
We concur: JONES, P.J., and GEMELLO, J.
NOTES
Notes
[1] In state court proceedings for the foster care placement of, or termination of parental rights to, an Indian child, ICWA grants the Indian child's tribe "a right to intervene at any point in the proceeding." (25 U.S.C. § 1911(c).)
[2] Although the record does not contain Michael T.'s date of birth, all parties agree that he was a minor at the time of the permanency planning hearing.
[3] This acceptance of jurisdiction was premature. At the time the tribal court entered its order, no request for transfer of jurisdiction had yet been filed in the Humboldt County Juvenile Court. The tribal court therefore issued a second order on July 24, 2006, noting that it would take no action until the transfer request was heard in Humboldt County Juvenile Court.
[4] The juvenile court also noted that Marilyn R. and Jason M., who had earlier been granted de facto parent status, had filed a request for prospective adoptive parent designation.
[5] That provisions states: "Any Indian child who is the subject of any action for foster care placement or termination of parental rights under State law, any parent or Indian custodian from whose custody such child was removed, and the Indian child's tribe may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections [1911], [1912], and [1913] of this Act." (25 U.S.C. § 1914.)
[6] In the separate petition for writ of habeas corpus, appellant has raised a number of claims regarding his alleged right to a stable placement and challenging the competency of his trial counsel. We have dismissed that petition by separate order filed this date.
[7] In view of the importance of the jurisdictional question, on July 11, 2007, we requested that the parties submit supplemental briefs on this issue. Although the parties have framed the issue as one of mootness and our supplemental briefing request used that term, we believe that the problem is more correctly described as one of jurisdiction. Counsel for Minor, the Karuk Tribe, and Michael T. have filed supplemental briefs. In addition, on July 23, 2007, we appointed counsel for de facto parents Marilyn R. and Jason M., and their counsel has submitted a brief on their behalf which also addresses the jurisdictional issue.
[8] Under tide 25 United States Code section 1919(a), states and Indian tribes are authorized to enter into agreements "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 basis and agreements which provide for concurrent jurisdiction between States and Indian tribes." (25 U.S.C. § 1919(a).) Minor has requested that we take judicial notice of the "Title IV-E Intergovernmental Agreement Between the California Department of Social Services and the Karuk Tribe of California." We grant the request. (Evid.Code, § 452, subd. (c).) Nevertheless, our review of this agreement has not disclosed any provisions governing the procedure for transferring custody cases from state to tribal courts.
[9] It is possible that in those cases the courts granted a stay of the transfer order pending appeal to preserve appellate jurisdiction. (Cf. In re Wanomi P. (1989)
[10] The Tenth Circuit reversed the district court's judgment in Hovis because the appellate court concluded that collateral estoppel precluded the tribe from relitigating its jurisdictional claims in federal court after those claims had been considered and rejected by the Oklahoma state courts. (Comanche Indian Tribe of Oklahoma v. Hovis (10th Cir.1995)
[11] Cases such as Brown on Behalf of Brown v. Rice (D.Kan.1991)
[12] It should be obvious that Minor is incorrect in contending that the juvenile court's transfer order "bestowed" jurisdiction on the Karuk Tribal Court. The tribal court's jurisdiction is a product of the Karuk Tribe's inherent sovereignty and Congress's allocation of jurisdiction under ICWA. (See 25 U.S.C. § 1911 [Indian tribe jurisdiction over Indian child custody proceedings]; Montana v. United States (1981)
[13] Although courts refer to the jurisdiction granted by ICWA under tide 25 United States Code section 1911(b) as "concurrent," in this context the term is perhaps somewhat imprecise. The Ninth Circuit has described this jurisdiction as "referral jurisdiction" and noted that "referral jurisdiction is broader in scope than concurrent jurisdiction, in that referral jurisdiction is concurrent but presumptively tribal jurisdiction." (Native Village of Venetie I.R.A. Council v. Alaska (9th Cir.1991)