Doe vs Mann

No. 04-15477, D.C. No. capacity; ROBERT L. CRONE, JR., in ??CV-02-03448-MHP his official capacity.

Appeal from the United States District Court
for the Northern District of California

Marilyn H. Patel, District Judge, Presiding
Argued and Submitted October 6, 2004—San Francisco, California
Filed July 19, 2005

Before: Stephen S. Trott, M. Margaret McKeown, Circuit Judges, and Milton I. Shadur, Senior District Judge.*
Opinion by Judge McKeown

*The Honorable Milton I. Shadur, United States Senior District Judge for the Northern District of Illinois, sitting by designation.

McKEOWN, Circuit Judge:
Mary Doe (1) challenges the State of California’s jurisdiction to terminate her parental rights over her Indian child, Jane Doe, who was domiciled on the Elem Indian Colony reservation at the time she was removed from Mary Doe’s custody by the Lake County Department of Social Services.

The case arises under the Indian Child Welfare Act (“ICWA”), which was passed in 1978 to ensure the tribes a role in adjudicating child custody proceedings involving Indian children. P.L. 95- 608, codified at 25 U.S.C. §§ 1901-1963.

(2) ICWA provides that tribes will have exclusive jurisdiction over child custody proceedings involving Indian children domiciled or residing on the reservation “except where such jurisdiction is otherwise vested in the State by existing Federal law.” 25 U.S.C. § 1911(a) (emphasis added).

Under one such federal law, 18 U.S.C. § 1162(a) and 28 U.S.C. § 1360(a), commonly known as “Public Law 280,” California is vested with broad criminal and certain civil jurisdiction over Indians. This case presents an issue of first impression for the federal
courts, requiring us to reconcile Public Law 280’s grant of certain jurisdiction to the state of California over Indians with the exclusive jurisdiction granted to tribes by ICWA over child custody proceedings involving Indian children domiciled on Indian reservations.

As a threshold matter, we conclude that the federal court has jurisdiction under 28 U.S.C. § 1331 and, in conjunction with ICWA, may use that jurisdiction to review the state court
judgment terminating Mary Doe’s parental rights; the Rooker- Feldman doctrine did not bar the district court from exercising jurisdiction. On the merits, we conclude that ICWA does
not provide the Elem Indian Colony with exclusive jurisdiction over this child dependency proceeding involving Jane Doe, an Indian child. Consequently, we affirm the district
court’s entry of judgment in favor of the State of California.

Mary Doe is a member of the federally recognized Elem Indian Colony in Lake County, California. (3) In 1999, Jane told her mother that a minor male cousin had sexually assaulted
her. Mary Doe called the Department of Social Services, and the agency responded by removing Jane from her great-aunt’s home on the Elem Indian Colony’s reservation, where Jane was residing at the time.

The Department of Social Services initiated child dependency proceedings in Lake County Superior Court under California’s Welfare and Institutions Code (“Cal. Welf. & Inst. Code”) §§ 300(b) and (d) based on Mary Doe’s failure to protect her daughter. Jane was placed in a licensed foster home while the state dependency proceedings were pending in state
superior court. In the fall of 2000, the Elem Indian Colony intervened in the superior court proceedings. At the same time, the Tribal Council passed a resolution declaring that Jane should be placed for adoption with Mary Doe’s brother and her sister-in-law.

The superior court terminated Mary Doe’s parental rights in 2001. Jane’s foster parents, Mr. and Mrs. D, petitioned to adopt her. Mrs. D is an Indian but not a member of the Elem Indian Colony. Despite the Elem Indian Colony’s resolution, the superior court approved the adoption by Mr. and Mrs. D. The petition for adoption stated that Jane was an Indian child under ICWA and was affiliated with the Elem Indian Colony.

A year and a half after her parental rights were terminated, Mary Doe filed a complaint in federal court for declaratory and injunctive relief. Among other claims, Mary Doe challenged
the superior court’s jurisdiction to terminate her parental rights and to approve Jane’s adoption by Mr. and Mrs. D. Mary Doe named as defendants two Superior Court Judges
and the Superior Court (collectively “Court-Appellees”), Mr. and Mrs. D, and the Department of Social Services. The district court held that the Rooker-Feldman doctrine did not bar it from exercising subject matter jurisdiction over Mary Doe’s complaint because § 1914 provides a cause of action in federal court to invalidate certain state court child custody proceedings. Doe v. Mann, 285 F. Supp. 2d 1229, 1233-34 (N.D. Cal. 2003). Applying its jurisdiction, the district court held that, because the Elem Indian Colony did not have exclusive jurisdiction over child dependency proceedings under § 1911(a), the superior court had jurisdiction to terminate Mary Doe’s parental rights and approve Jane’s adoption. Id. at 1238-39. The district court entered a final judgment against Mary Doe, thus leaving intact the state court parental termination and adoption orders.

Mary Doe’s district court complaint asserted that the state judges and “the Superior Court erroneously deprived [Mary Doe] of custody of [Jane] without jurisdiction.” Invoking § 1914, (4) which provides that a parent “may petition any court of competent jurisdiction to invalidate” a parental rights termination order, Mary Doe sought a declaration that the state
court judgments terminating Mary Doe’s parental rights and approving the adoption of Jane were null and void for lack of jurisdiction under ICWA. Mary Doe contended that § 1911(a)
provides the Elem Indian Colony exclusive jurisdiction over Jane’s dependency proceedings because Jane was domiciled within Indian country at the time dependency proceedings commenced.

Typically, the Rooker-Feldman doctrine bars federal courts from exercising subject-matter jurisdiction over a proceeding in “which a party losing in state court” seeks “what in substance would be appellate review of the state judgment in a United States district court, based on the losing party’s claim that the state judgment itself violates the loser’s federal
rights.” Johnson v. De Grandy, 512 U.S. 997, 1005-06 (1994).

The nature of Mary Doe’s federal complaint falls squarely within the confines of a “de facto appeal” of a state court judgment that would be outside the subject-matter jurisdiction of the federal district court under the Rooker-Feldman doctrine. See Noel v. Hall, 341 F.3d 1148, 1156 (9th Cir. 2003) (federal district court must refuse to hear “a forbidden de
facto appeal from a judicial decision of a state court”). We ultimately conclude, however, that the federal district court had jurisdiction to consider Mary Doe’s complaint because
the federal district court had federal question jurisdiction over Mary Doe’s claims, and § 1914 grants federal district courts the authority to invalidate state court actions that violate
§§ 1911, 1912, and 1913...

[1] The Rooker-Feldman doctrine derives its name from two Supreme Court cases: Rooker v. Fidelity Trust Co., 263 U.S. 413 (1923), and District of Columbia Court of Appeals v. Feldman, 460 U.S. 462 (1983). In simple terms, “[u]nder Rooker-Feldman, a federal district court is without subject matter jurisdiction to hear an appeal from the judgment of a state court.” Bianchi v. Rylaarsdam, 334 F.3d 895, 896 (9th Cir. 2003).

The Supreme Court has applied the doctrine only three times, in the named cases and, just this year, in Exxon Mobil Corp. v. Saudi Basic Industries Corp., where it emphasized
the narrow scope of the doctrine:

The Rooker-Feldman doctrine . . . is confined to cases of the kind from which the doctrine acquired its name: cases brought by state-court losers complaining of injuries caused by state-court judgments rendered before the district court proceedings commenced and inviting district court review and rejection of those judgments. Rooker-Feldman does not
otherwise override or supplant preclusion doctrine or augment the circumscribed doctrines that allow federal courts to stay or dismiss proceedings in deference to state-court activities. 125 S. Ct. 1517, 1521-22 (2005). (5) Our earlier precedent is consistent. As we explained in Noel v. Hall, [a] federal district court dealing with a suit that is, in part, a forbidden de facto appeal from a judicial decision of a state court must refuse to hear the forbidden appeal. As part of that refusal, it must also refuse to decide any issue raised in the suit that is “inextricably intertwined” with an issue resolved by the state court in its judicial decision.

Mary Doe first tries to sidestep Rooker-Feldman on the theory that state court jurisdiction under § 1911 (a) was not raised and litigated in Lake County Superior Court, thus preventing Mary Doe’s federal complaint from being characterized as a de facto appeal. Rather than ask the federal district court to reconsider the substance of the state court orders to terminate Mary Doe’s parental rights and approve the adoption of Jane, Mary Doe contends the complaint presents a new jurisdictional issue. We are not persuaded.

[2] Although the ICWA jurisdictional issue was not raised in the state court proceedings, Mary Doe’s federal claim is still a de facto appeal of a state court judgment, and the jurisdictional issue raised by Mary Doe is inextricably intertwined with the state court’s judgment. See Noel, 341 F.3d at 1158.

Indeed, while not explicitly addressed in the state court’s rulings terminating Mary Doe’s parental rights and approving Jane’s adoption, the state court necessarily must have concluded it had jurisdiction pursuant to ICWA and Public Law 280 to make those decisions. (6) Thus, the fact that Mary Doe now challenges the state court’s jurisdiction under ICWA does not change our initial Rooker-Feldman calculus. Mary Doe requests that we “undo” a prior state court judgment, which is another way of presenting a federal district court with a de facto appeal that bars subject-matter jurisdiction under the Rooker-Feldman doctrine.

See Bianchi, 334 F.3d at 900 (“Stated plainly, ‘Rooker-Feldman bars any suit that seeks to disrupt or ‘undo’ a prior state-court judgment, regardless of whether the state-court proceeding afforded the federal-court plaintiff a full and fair opportunity to litigate her claims.’ ”) (citations omitted).

Our conclusion that Mary Doe’s case falls within the traditional boundaries of the Rooker-Feldman doctrine is but one piece of the jurisdictional puzzle. We next consider whether
Congress, in enacting ICWA, provided federal courts authority to invalidate state court actions in the narrow area of child custody proceedings involving Indian children. If so, Rooker- Feldman would not preclude federal jurisdiction. Before turning to ICWA, we consider other circumstances in which Congress authorized federal courts to review state court judgments.

[3] The Constitution does not command the Rooker- Feldman doctrine. In re Gruntz, 202 F.3d 1074, 1078 (9th Cir. 2000) (en banc) (“Rooker-Feldman is not a constitutional doctrine. Rather, the doctrine arises out of a pair of negative inferences drawn from two statutes. . . . .”). As a result, Congress may authorize federal district courts to review state court judgments. Id. at 1079 (Rooker-Feldman must be considered in the context of “the entire federal jurisdictional constellation,” including congressional grants of authority to review state-court decisions in certain cases). Federal statutes that permit federal courts to review state court judgments are rare but obvious. (7) Two examples, habeas corpus and bank-ruptcy jurisdiction, are often referred to as “exceptions” to Rooker-Feldman.

As we explained in Noel, the principle that there should be no appellate review of state court judgments by federal trial courts has two particularly notable statutory exceptions:

First, a federal district court has original jurisdiction to entertain petitions for habeas corpus brought by state prisoners who claim that the state court has made an error of federal law.

Second, a federal bankruptcy court has original jurisdiction under which it is empowered to avoid state judgments, to modify them, and to discharge them. 341 F.3d at 1155 (internal citations and quotations omitted).

In both instances, the statutes reflect clear congressional grants of authority. Another useful example of an explicit grant of authority for federal courts to invalidate state court judgments is the implementing legislation of the Hague Convention. The statute, the
International Child Abduction Remedies Act (“ICARA”), provides that state and federal courts have concurrent original jurisdiction over actions arising under the Hague Convention. 42 U.S.C. § 11603(a).

We have interpreted this provision of ICARA to provide federal district courts the authority to vacate state custodial decrees that violate the Hague Convention:

In this case, Congress has expressly granted the federal courts jurisdiction to vindicate rights arising under the Convention. See 42 U.S.C. § 11603(a). Thus, federal courts must have the power to vacate state custody determinations and other state court orders that contravene the treaty. Mozes v. Mozes, 239 F.3d 1067, 1085 n.55 (9th Cir. 2001).

[4] Whether characterized as exceptions to Rooker- Feldman or as specific grants of authority, these three examples underscore that Congress may by statute grant federal
courts authority to review certain state court judgments.

[5] The question we now consider is whether § 1914 is a grant of authority to the federal courts to invalidate certain state court child custody proceedings that counteracts the
Rooker-Feldman doctrine.

Section 1914 provides:
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 101, 102, and 103 of this Act [25 U.S.C. §§ 1911, 1912, and 1913].

25 U.S.C. § 1914 (emphasis added). Federal cases that have interpreted § 1914 are few and far between, and no case has analyzed § 1914 in the jurisdictional context or in relation to the Rooker-Feldman doctrine. (8)

The district court held, by a process of elimination, that § 1914 granted it authority to review the state court judgment:

[B]y a process of elimination, a “court of competent jurisdiction” must include inferior federal courts, or the provision is meaningless. If the section only referred to state appellate courts, there would be no need for Congress to create this cause of action; Doe
already has the right to appeal an adverse decision to California’s higher courts. It is highly unlikely that the provision grants tribal courts the power to invalidate state court judgments.

This court finds that section 1914 grants federal courts the power to review state custody proceedings such as those here; therefore, the Rooker-Feldman doctrine does not apply to the action at bar. 285 F. Supp. 2d at 1233-34. We reach the same conclusion, but via a different path.

“any court of competent jurisdiction” may invalidate a state court action. 25 U.S.C. § 1914 (emphasis added). Certainly the federal court easily fits within the broad “any court” language, but we must determine whether the statute confers jurisdiction upon the federal courts.

At the outset, it is important to note that despite broad language, § 1914 is not a statute that itself confers jurisdiction. In an analogous situation involving the Administrative Procedure
Act, the Supreme Court reasoned that 5 U.S.C. § 703’s reference to a “court of competent jurisdiction” was not a grant of subject-matter jurisdiction:

Title 5 U.S.C. § 702 makes clear that a person wronged by agency action “is entitled to judicial review thereof.” But § 703 suggests that this language was not intended as an independent jurisdictional foundation, since such judicial review is to proceed “in a court specified by statute” or “in a court of competent jurisdiction.” Both of these clauses seem to look to outside sources of jurisdictional authority. Thus, at best, the text of [§§ 702 and
703] is ambiguous in providing a separate grant of subject-matter jurisdiction.

Applying Califano, we conclude that § 1914’s reference to “any court of competent jurisdiction” alone does not create subject-matter jurisdiction in the federal district court sufficient to review and vacate state custody decrees. Consequently, we must determine whether the federal district court had jurisdiction from an independent source, 28 U.S.C.
§ 1331, making it a “court of competent jurisdiction” that is authorized by § 1914 to invalidate certain state court child custody proceedings.

[6] More than a decade ago, we resolved that ICWA creates an implied cause of action and thus serves as a basis for federal question jurisdiction under 28 U.S.C. § 1331. In Native
Village of Venetie v. Alaska, 944 F.2d 548 (9th Cir. 1991) (“Native Village of Venetie I”), we concluded that Congress intended to create a federal private right of action in tribes and
individuals to seek a determination of their ICWA rights and obligations in federal district court under ICWA’s full faith and credit clause in § 1911(d):

[W]e see no reason that Congress would not have intended to give Indian tribes access to federal courts to determine their rights and obligations under the Indian Child Welfare Act. The Act includes an express congressional finding that state courts and agencies have often acted contrary to the interests of Indian tribes.

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. . . .
It would thus be ironic indeed if Congress then permitted only state courts, never believed by Congress to be the historical defenders of tribal interests, to determine the scope of tribal authority under the Act.
. . . .
Without a cause of action under the Indian Child Welfare Act, [the individual tribal members] would be essentially left without a remedy. We cannot conceive that Congress intended such a self-defeating result. Id. at 553-54. We reaffirmed our holding when the case returned to the Ninth Circuit:

In considering our jurisdiction in [Native Village of Venetie I], we held that § 1911(d) of the ICWA gave both the Native villages and their individual residents private rights of action in federal court. We reasoned that, given Congress’s understanding at the time of passage that statutes passed for the benefit of Indian tribes would “be liberally construed in favor
of such tribes,” Congress would have expressly precluded a federal cause of action had it intended that none be recognized. After finding “no reason that Congress would not have intended to give Indian tribes access to federal courts to determine their rights and obligations under the Indian Child Welfare Act,” the court held that “Congress’s intention
to create a tribal cause of action under the Act can be inferred.” Native Village of Venetie v. Alaska, 155 F.3d 1150, 1152 (9th Cir. 1998) (internal citations omitted) (“Native Village of
Venetie II”).(10) [7] The Indian canons of construction were critical to our reasoning:

Congress’s intention to create a tribal cause of action under the [ICWA] can be inferred from Congress’s understanding of the law at the time the Act was enacted. The intention of Congress can be gleaned, at least in part, by reference to prior law, as Congress is presumed to be knowledgeable about existing law pertinent to any new legislation. Thus, Congress can be presumed to know that statutes passed for the benefit of Indian tribes will be liberally construed in favor of such tribes. Congress can also be presumed to know that the federal courts routinely resolve questions of tribal sovereignty as they are implicated by various acts of Congress. If Congress did not seek to have such principles applied to the interpretation of the Indian Child Welfare Act, we presume that it would have said so. Thus, we must conclude that the villages may seek determination of their rights under the Act in federal court.

As to [the individual tribal members’] individual causes of action under the Indian Child Welfare Act, the same reasoning applies. Native Village of Venetie I, 944 F.2d at 554 (internal citations omitted). The rationale in Native Village of Venetie I that § 1911(d) included an implied federal private right of action equally supports recognizing an implied federal private right of action in § 1911(a) for tribes and individuals to seek federal district court determination of the tribe’s jurisdiction over child custody proceedings involving Indian children domiciled on the reservation....

Twenty-five years prior to the passage of ICWA, Congress adopted Public Law 280, legislation that provides six “mandatory” states, including California,(15) with jurisdiction over criminal and some civil matters arising in Indian country.

Each of the States or Territories listed . . . shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed . . . to the same extent that such State or Territory has jurisdiction over offenses committed elsewhere within the State or Territory, and the criminal laws of such State or Territory shall have the same force and
effect within such Indian country as they have elsewhere within the State or Territory . . . .18 U.S.C. § 1162(a).

- The civil jurisdiction conferred by Public Law 280, on the other hand, is more circumscribed:

Each of the States listed . . . shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country listed . . . to the same extent that such State has jurisdiction over other civil causes of action, and those civil laws of such State that are of general application to private persons or private
property shall have the same force and effect within such Indian country as they have elsewhere within the State . . . . 28 U.S.C. § 1360(a).

- The legislative history of Public Law 280 reveals that Congress was motivated to confer criminal jurisdiction on the states due to “lawlessness” on Indian reservations:

In many States, tribes are not adequately organized to perform that function; consequently, there has been created a hiatus in law-enforcement authority that could best be remedied by conferring criminal jurisdiction on States indicating an ability and willingness
to accept such responsibility. S. Rep. No. 699 (1953), reprinted in 1953 U.S.C.C.A.N.
2409, 2411-12.

In contrast, the civil component of Public Law 280 was adopted with a “virtual absence of expression of congressional policy or intent.” Bryan, 426 U.S. at 381.

- What little published legislative history exists provides only the following explanation for the civil jurisdiction:

Similarly, the Indians of several States have reached a state of acculturation and development that makes desirable extension of State civil jurisdiction to the Indian country within their borders. Permitting the State courts to adjudicate civil controversies arising
on Indian reservations, and to extend to those reservations the substantive civil laws of the respective States insofar as those laws are of general application to private persons or private property, is deemed desirable. S. Rep. No. 699 (1953), reprinted in 1953 U.S.C.C.A.N. 2409, 2412.

In Bryan, one of the seminal cases construing Public Law 280, the Court concluded that Congress intended to confer civil jurisdiction in Public Law 280 states to “redress the lack of adequate Indian forums for resolving private legal disputes between reservation Indians, and between Indians and other private citizens, by permitting the courts of the States to decide such disputes . . . .” 426 U.S. at 383.

However, the Court emphasized that the legislative history included no indication of “an intention to confer general state civil regulatory control over Indian reservations.” Id. at 384.

The federal courts have interpreted ICWA on rare occasions, and while some courts have danced seductively close to the issue, none has ever directly addressed either Public
Law 280 jurisdiction over child custody proceedings or whether there is a difference between voluntary and involuntary child custody proceedings in the context of Public Law
280. More specifically, no court has addressed the California child dependency statute.

- The Supreme Court’s only case interpreting ICWA, Holyfield, included a footnote that referenced the “existing Federal law” proviso in § 1911(a):

Section 1911(a) does not apply “where such jurisdiction is otherwise vested in the State by existing Federal law.” This proviso would appear to refer to Pub.L. 280, 67 Stat. 588, as amended, which allows States under certain conditions to assume civil and criminal jurisdiction on the reservations. Title 25 U.S.C. § 1918 permits a tribe in that situation to
reassume jurisdiction over child custody proceedings upon petition to the Secretary of the Interior. The State of Mississippi has never asserted jurisdiction over the Choctaw Reservation under Public Law 280. 490 U.S. at 42 n.16. This passing reference does not resolve whether California’s child dependency proceedings fall within the state’s Public Law 280 criminal or civil jurisdiction. Not only is Mississippi not a Public Law 280 state, but the child custody proceeding at issue in Holyfield was a voluntary adoption initiated by the Indian parents of Indian twins. Id. at 37-38. Holyfield did not involve, as this case does, an involuntary termination of an Indian’s parental rights.

Similar to the Holyfield footnote, the Ninth Circuit has made a broad, but ultimately non-dispositive, statement about the interplay between § 1911(a) and Public Law 280. See
Native Village of Venetie I, 944 F.2d at 555 (noting that tribes in Public Law 280 states can invoke exclusive jurisdiction under § 1911 only after petitioning the Secretary of Interior).

Like Holyfield, Native Village of Venetie I involved a voluntary, private adoption and the court limited its discussion of the expanse of Public Law 280’s civil jurisdiction to private adoption cases. Id. at 560 (“It is not disputed that private adoption cases are included within this transfer of civil jurisdiction [in Public Law 280] from the federal government to
the states.”) (emphasis added)).

States that have considered the interplay between Public Law 280 and a state’s authority to enforce child dependency laws in Indian country have arrived at conflicting results. On one side, the Wisconsin Attorney General concluded that involuntary child custody proceedings lie outside Wisconsin’s Public Law 280 jurisdiction because they “involve some aspect of the state’s regulatory jurisdiction.” 70 Op. Att’y Gen. Wis. 237 (1981), 1981 Wisc. AG LEXIS 7, *7, 18-20.
The Attorney General contrasted voluntary proceedings, which are “not between the state and an individual, but rather primarily involve[ ] only private persons.” Id. at *7. No other
source has adopted this voluntary versus involuntary custody analysis. (17) In contrast, Washington and Idaho, two nonmandatory Public Law 280 states, have long identified child
dependency proceedings as a subject matter within their Public Law 280 jurisdiction. See Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463,
465 n.1 (1979) (quoting Washington’s 1963 law asserting Public Law 280 jurisdiction); (18) State v. George, 905 P.2d 626, 629 (Idaho 1995) (quoting Idaho’s 1963 law asserting Public Law 280 jurisdiction).(19, 20)

...Congress intended Public Law 280 states to have jurisdiction over Indian child dependency proceedings unless tribes availed themselves of § 1918 in order to obtain exclusive jurisdiction. The effort to impose a dividing line between voluntary and
involuntary finds no support in the statute. The legal landscape that existed when Congress passed ICWA bolsters the conclusion that Public Law 280 states have jurisdiction over child dependency proceedings. When Congress enacted ICWA, states already were exercising their Public Law 280 jurisdiction over child dependency proceedings, a fact we presume Congress knew. E.g., United States v. Gonzalez-Mendez, 150 F.3d 1058, 1061 (9th Cir. 1998) (“We presume that Congress enacts statutes with full knowledge of the existing law.”). Therefore, it cannot go unnoticed that Congress considered ICWA against the backdrop of mandatory Public Law 280 states like California (33) and nonmandatory states like Washington and Idaho that had specifically
asserted Public Law 280 jurisdiction over child dependency proceedings prior to the passage of ICWA. (34) Had Congress wanted to divest Public Law 280 states of this jurisdiction, surely it would have done so on the face of ICWA.

The legislative history of ICWA supports the view that Congress intended Public Law 280 states to retain jurisdiction over all child custody proceedings as defined in ICWA. In fact, the focus of Congress and the Executive Branch on the ability of tribes in Public Law 280 states to reassume exclusive jurisdiction over child custody proceedings comports with our conclusion that both branches were particularly concerned with the tribes’ ability to handle resource-intensive child custody proceedings. In passing ICWA, Congress recognized that Public Law 280 states should retain, at least initially, jurisdiction over child dependency proceedings until the tribes had the capability to reassume exclusive jurisdiction.

As discussed in § III(B), supra, the carve out of Public Law 280 states from ICWA’s exclusive tribal jurisdiction was a conscious undertaking on the part of Congress. Indeed, after the Executive Branch brought to the attention of Congress that failure to exclude Public Law 280 states from § 1911(a) would obliterate existing state-court jurisdiction, Congress
was quick to respond—both with a letter to the Department of Justice (35) and with amendment of the draft bill.

It is also important to note that throughout the congressional discussions of ICWA, state-initiated dependency proceedings were a focus of the discussion. The conference report
that accompanied the passage of ICWA demonstrates Congress’s focus on abuses in involuntary child custody proceedings involving Indian children. After summing up the
statistical evidence that Indian children were far more likely to be removed from their families and placed in foster homes than non-Indian children, the report stated “It is clear then that the Indian child welfare crisis is of massive proportions and that Indian families face vastly greater risks of involuntary separation than are typical of our society as a whole.” H.R. Rep. No. 95-1386, at 9 (1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7532. The report went on to note that “[i]n judging the fitness of a particular family, many social workers, ignorant of Indian cultural values and social norms, make decisions that are wholly inappropriate in the context of Indian family life and so they frequently discover neglect or
abandonment where none exists.” H.R. Rep. No. 95-1386, at 10, reprinted in 1978 U.S.C.C.A.N. 7530, 7532.

While it is true that Congress also expressed concern with voluntary adoptions both by incorporating voluntary proceedings as part of ICWA and noting voluntary proceedings in the legislative history, the legislative history demonstrates Congress’s strong interest in curbing the abuses of state agencies and courts in involuntary proceedings. To conclude that Congress, when it amended § 1911(a) to exclude tribes in Public Law 280 states from exercising exclusive jurisdiction, meant only to refer to voluntary proceedings is thus unreasonable. If Congress intended to differentiate between voluntary and involuntary proceedings in the context of the Public Law 280 proviso in § 1911(a), then Congress would have done so explicitly rather than referring only to “child custody proceedings”
generally before inserting the “existing Federal law” proviso. In drafting the definition of “child custody proceedings” to include involuntary proceedings and in structuring the legislation so that tribes in Public Law 280 states could reassume exclusive jurisdiction over these proceedings, Congress recognized that dependency proceedings fell within the
Public Law 280 carve out.

The case law cited in the report accompanying the passage of ICWA also supports this understanding. The report cites three cases involving non-Public Law 280 states. In each
instance, the court held that tribes had exclusive jurisdiction. But the cases all suggest that if Public Law 280 had been applicable, the state would have had jurisdiction. H.R. Rep. No. 95-1386, at 21 (July 24, 1978), reprinted in 1978 U.S.C.C.A.N. 7530, 7544 (citing Wisconsin Potowatomies v. Houston, 393 F. Supp. 719 (W.D. Mich. 1973); Wakefield v. Little Light, 347 A.2d 228 (Md. 1975); Matter of Adoption of Buehl, Duckhead v. Anderson, 555 P.2d 1334 (Wash. 1976)). (36) The citation to Duckhead is particularly instructive because Duckhead references Comenout v. Burdman, 525 P.2d 217 (Wash. 1974). Duckhead, 555 P.2d at 1338-39. In Comenout, the Washington Supreme Court held that Washington courts have jurisdiction pursuant to Public Law 280 to terminate the parental rights of Indians residing on reservations within the State of Washington through enforcement of the state’s involuntary child dependency law. 525 P.2d at 222.

Mary Doe urges us to apply the Indian canon of construction to resolve the dispute in her favor. See Ala. Pac. Fisheries Co. v. United States, 248 U.S. 78, 89 (1918) (ambiguous
provisions in a statute passed for the benefit of tribes and their members are interpreted in favor of the Indians). Although we have applied the Indian canons to resolve whether state speeding laws are criminal or regulatory under Public Law 280, that case involved Public Law 280 as a standalone statute and not in connection with ICWA’s exception. See Confederated Tribes of Colville, 938 F.2d at 149.

The sovereignty considerations that have led courts to apply the canon in interpreting Public Law 280 are not present here because Congress already weighed those considerations in formulating ICWA. There is little doubt that concern for tribal sovereignty and tribal control over Indian children led to ICWA’s adoption. See 25 U.S.C. § 1901(3) (Indian Child Welfare Act Congressional Findings — “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children”). After Bryan, the carve out from Public Law 280 of regulatory jurisdiction was clear and the scope of Public Law 280 civil jurisdiction was clarified.

In the face of this decision, Congress was unambiguous in its effort to exempt Public Law 280 states from ICWA’s exclusive jurisdiction and, in doing so, to include all child custody
proceedings, both voluntary and involuntary. [18] But Congress was not unmindful of bridging the sovereignty gap for tribes in Public Law 280 states. With the goal of making tribal sovereignty paramount, Congress established a scheme by which tribes in Public Law 280 states, without the cooperation of state governments, could petition the Secretary
of Interior for reassumption of exclusive jurisdiction over child custody proceedings through § 1918. Section 1918 recognized the sovereignty concerns of tribes by permitting Public Law 280 tribes to reassert their sovereign, exclusive authority over child custody proceedings involving children domiciled on the reservation. Given the lack of ambiguity in
ICWA and explicit congressional recognition of Indian sovereignty in ICWA, including the reassumption provisions, the Indian canon of construction does not come into play.
Mary Doe’s tribe, the Elem Indian Colony, has never petitioned for reassumption of jurisdiction over child custody proceedings. We decline to use the Indian canon of construction to disrupt a congressional scheme that provided a specific process through which tribes in Public Law 280 states could protect their sovereign interests in the future of Indian children.

Although our decision does not provide relief to Mary Doe, nothing prevents Mary Doe’s tribe from submitting a petition to reassume jurisdiction (37) and nothing prevents Congress from amending ICWA’s statutory scheme to recognize the tribal sovereignty interests through a method other than § 1918’s reassumption provisions. In a policy area so fraught with risk to the interests of Indian children and tribes, we do not think the court should substitute its judgment for that of Congress where Congress explicitly provided tribes an opportunity to assert their sovereignty over child custody proceedings.

Finally, we turn to a discussion of California’s practice of asserting concurrent jurisdiction under Public Law 280 over dependency proceedings involving Indian children. The practice
is best described by a benchguide for California judges prepared by the Law Offices of California Indian Legal Services.

See generally Mary J. Risling, California Judges’ Benchguide: The Indian Child Welfare Act (2000), available at http://www.calindian.org/icwa.htm

Under its definition of “child custody proceeding”, the [ICWA] specifies the types of custody cases to which it applies and the types of custody cases to which it does not apply. The focus is not on what a proceeding is called, or whether it is a private action or an action brought by a public agency, but on whether the proceeding meets a definition set forth
in the Act. (25 U.S.C. 1903(1).) The Act covers any temporary placement where the child need not be returned upon demand, and includes placement in a foster home or institution or the home of a guardian or conservator. The Act also covers any proceeding resulting in adoption or termination of parental rights. This would generally not include juvenile, family court and probate guardianship actions. Benchguide at 1 (emphasis original).
***

While California tribes do not yet have primary jurisdiction over custody proceedings, it is important to bear in mind that the Indian child has an interest in his or her tribe that Congress has sought to protect.

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. . .
Non-exclusive jurisdiction can also arise where a tribe’s authority over civil matters has been partially divested by the federal government. Although tribes generally retain exclusive jurisdiction over their internal affairs, in some states, Congress delegated to the states partial jurisdiction over Indian reservations within the states. 28 U.S.C. § 1360. These states are commonly called “P.L. 280 states”, and the tribes affected by the statute are called “P.L. 280 tribes”.

In these states, even if a child is domiciled or resides on the reservation, the state may acquire valid initial jurisdiction. 25 U.S.C. § 1911(a). California is one of these states. 25 U.S.C. § 1360(a). Tribes from California and other P.L. 280 states may not exercise
exclusive jurisdiction over an Indian child custody proceeding under the ICWA, unless they have reassumed jurisdiction under the Act. Where a tribe has reassumed jurisdiction, and an Indian child residing or domiciled within that tribe’s reservation
is removed by state authorities, California law requires notice to the tribe no later than the next business day, and transfer of the proceedings to tribal court within 24 hours of receipt of a written notice from the tribe that the child is an Indian. Welf. & Inst. Code § 305.5.
Benchguide at 64-65 (emphasis added).

In addition, California’s dependency statute suggests that California will transfer a child dependency proceeding to a tribe only if the tribe has reassumed exclusive jurisdiction
under § 1918:

Removal of Indian child from custody of parents by state or local authority; notice to tribe

(a) Where an Indian child, who resides or is domiciled within a reservation of an Indian tribe that has reassumed exclusive jurisdiction over Indian child custody proceedings pursuant to Section 1918 of Title 25 of the United States Code, has been removed by a state or local authority from the custody of his or her parents or Indian custodian, the
state or local authority shall provide notice of the removal to the tribe no later than the next working day following the removal and shall provide all relevant documentation to the tribe regarding the removal and the child’s identity. If the tribe determines that the child is an Indian child, the state or local authority shall transfer the child custody proceeding to the tribe within 24 hours after receipt of written notice from the tribe of that determination.

(b) As used in this section, the terms “Indian child” and “Indian child custody proceedings” shall be defined as provided in the federal Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.). Cal. Welf. & Inst. Code § 305.5.
It is also significant that prior to amendment in 2005, Rule 1439(c)(1) of the California Rules of Court stated: “If the Indian child resides or is domiciled on an Indian reservation
that exercises exclusive jurisdiction under the Act over child custody proceedings, the petition under section 300 must be dismissed. At present, no California tribe is authorized under the Act to exercise exclusive jurisdiction.” The new rule contains the same substantive provision suggesting that a state court will not transfer a dependency proceeding under § 1911(a) unless the tribe has reassumed jurisdiction: “If the Indian child resides or is domiciled on an Indian reservation that exercises exclusive jurisdiction under the act over child custody proceedings, the petition under section 300 must be
dismissed.” Cal. Ct. R. § 1439(c)(1).

Consistent with ICWA, California, a mandatory Public Law 280 state, has been exercising at least concurrent jurisdiction over dependency proceedings involving Indian children. With the drop of a hat, Mary Doe would have us undo this statutory and historical framework and immediately vest exclusive jurisdiction in the tribes. Such a result surely would eviscerate the unambiguous Public Law 280 exception in ICWA. From an ultimate perspective of public policy and in furtherance of the goal of tribal sovereignty over the destiny of Indian children, a transition from Public Law 280 jurisdiction to tribal jurisdiction in child custody proceedings may well be appropriate. But we believe this is a judgment for
Congress to make, not the courts.

(2) All references to the U.S. Code are to Title 25 unless otherwise indicated.

(3) Mary Doe submitted a motion to strike portions of the Supplemental Excerpts of Record because most of the documents were state court records that were not included in the district court record. The motion to strike is granted. See Fed. R. App. P. 10(a)(1); 9th Cir. R. 10-2(b). We do, however, take judicial notice of the following records from the state court
proceedings: 1) Orders Under Section 366.26 of the Welfare and Institutions Code, which establish that Mary Doe’s parental rights were terminated on February 16, 2001; 2) Petition for Adoption; 3) Attachment to Petition for Adoption — Adoption of an Indian Child; 4) Order of Adoption; and 5) Juvenile Dependency Petition.

(4) Section 1914, codified at 25 U.S.C. § 1914, provides:
- 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 101, 102, and 103 of this Act [25 U.S.C. §§ 1911, 1912, and 1913].

(5) We note that the Court-Appellees did not raise preclusion principles on appeal, and the Department of Social Services raised preclusion principles in only one sentence of its brief. As a result, we leave for another case the relationship between § 1914 and the Full Faith and Credit Act, 28 U.S.C. § 1738, and the principles of res judicata and collateral estoppel.
341 F.3d at 1158.

(6) Rooker-Feldman applies where the plaintiff in federal court claims that the state court did not have jurisdiction to render a judgment. See Olson Farms, Inc. v. Barbosa, 134 F.3d 933, 936 (9th Cir. 1998) (Rooker- Feldman bars subject-matter jurisdiction over federal claim challenging determinations of the California Agricultural Labor Relations Board and California state courts that they had jurisdiction over Olson Farms under the California Agricultural Labor Relations Act); MacKay v. Pfeil, 827 F.2d 540, 545 (9th Cir. 1987) (Rooker-Feldman bars subject-matter jurisdiction over federal claim that Alaska Superior Court wrongly found it had personal jurisdiction over plaintiff); Schmitt v. Schmitt, 324 F.3d 484, 487 (7th Cir. 2003) (Rooker-Feldman bars subject-matter jurisdiction over federal claim that state court lacked personal jurisdiction).

(7) Courts have been loath to recognize statutory authorizations to review state court judgments. See, e.g., Dale v. Moore, 121 F.3d 624, 627 (11th Cir. 1997) (holding the Americans With Disabilities Act “does not provide an independent source of federal court jurisdiction that overrides the application of the Rooker-Feldman doctrine” even though the ADA subjects state public entities to the terms of the act); Ritter v. Ross, 992 F.2d 750, 753, 755 (7th Cir. 1993) (applying Rooker-Feldman to bar § 1983 suit claiming state foreclosure proceeding was a deprivation of property without due process, but noting that Rooker-Feldman “simply forbids federal district court appellate review of state court judgments in the guise of collateral attacks when no federal statute authorizes such review’ ” (quoting James S. Liebman, Apocalypse Next Time?: The Anachronistic Attack on Habeas Corpus/Direct Review Parity, 92 Colum. L. Rev. 1997, 2008 n.46 (1992)); Johnson v. Kansas, 888 F. Supp. 1073, 1080 (D. Kan. 1995), aff’d, 1996 U.S. App. LEXIS 6598 (10th Cir. 1996) (“The only exception to . . . the Rooker-Feldman doctrine, is where a federal statute authorizes federal appellate review of final state court decisions.”) (alteration in original) (internal quotations and citations omitted).

(8) Court-Appellees argue that Confederated Tribes of the Colville Reservation v. Superior Court, 945 F.2d 1138 (9th Cir. 1991), demonstrates that § 1914 does not provide an exception to Rooker-Feldman. This case is not germane to our inquiry, however, because it involved a parent-to-parent custody dispute that was not covered under ICWA. Id. at 1140 n.3. (“As the district court made clear, the question of the Tribes’ exclusive jurisdiction
under the ICWA became a ‘non-issue.’ ”). Although the Tenth Circuit has construed § 1914 in the context of res judicata, collateral estoppel, declaratory judgment actions, and Younger abstention, none of the cases considered Rooker-Feldman principles in conjunction with challenges to compliance with ICWA. See Kiowa Tribe of Okla. v. Lewis, 777 F.2d 587, 590 (10th Cir. 1985) (res judicata prevented the tribe from relitigating claims in federal court where the state court denied the tribe the right to intervene in child custody proceeding); Morrow v. Winslow, 94 F.3d 1386, 1390 (10th Cir. 1996) (no consideration of Rooker-Feldman in the context of § 1914 because Younger abstention prevented an injunction of ongoing state custody proceeding); Comanche Indian Tribe of Okla. v. Hovis, 53 F.3d 298, 304 (10th Cir. 1995) (collateral estoppel prevented the tribe from seeking declaratory judgment as to its jurisdiction under § 1911(a)).

(9) See also Indus. Indem., Inc. v. Landrieu, 615 F.2d 644, 646-47 (5th Cir. 1980) (provision in National Housing Act that the “Secretary shall . . . be authorized . . . to sue and be sued in any court of competent jurisdiction” was a waiver of sovereign immunity only, and the district court’s subject matter jurisdiction came from 28 U.S.C. § 1331).

(10) It bears noting that the Native Village of Venetie cases did not involve an effort to invalidate a state court judgment, but rather, involved an effort to force state executive agencies to recognize tribal adoption decrees. This posture, however, does not alter our reliance on the holding in the Native Village of Venetie cases that ICWA creates a federal private right of action over which district courts have federal-question jurisdiction.

(15) The five other mandatory states are Alaska, Minnesota, Nebraska, Oregon, and Wisconsin. Alaska was added by amendment in 1958. See Native Village of Venetie I, 944 F.2d at 560. In a few of these states, specific reservations are exempted from the state’s Public Law 280 jurisdiction, but all Indian country in California is subject to the state’s criminal and civil Public Law 280 jurisdiction. See 18 U.S.C. § 1162(a), 28 U.S.C. § 1360(a).

(16) Until amended in 1968, Public Law 280 permitted states that were not designated as mandatory Public Law 280 states by the statute to assert similar jurisdiction over Indian country within state borders. See Washington v. Confederated Bands and Tribes of the Yakima Indian Nation, 439 U.S. 463, 471 n.9 (1979) (quoting original text of Public Law 280). Thus, for example, Washington, Idaho, Florida, and Iowa also asserted various degrees of Public Law 280 jurisdiction. These states are sometimes referred to as “non-mandatory” Public Law 280 states. After 1968, no additional states could assert jurisdiction under Public Law 280 without tribal consent.

(17) The Ninth Circuit cited the Wisconsin Attorney General’s opinion favorably in Native Village of Venetie I, although for the separate proposition that Public Law 280 jurisdiction only provides states with “concurrent” jurisdiction over private adoption cases, not “exclusive” jurisdiction. Native Village of Venetie I, 944 F.2d at 561.

(18) Washington’s Public Law 280 jurisdiction remains codified today at Wash. Rev. Code § 37.12.010 (2005) and includes “[d]omestic relations,” “[a]doption proceedings,” and “dependent children.” Id. at §§ (3), (6) and (7).

(19) Idaho’s Public Law 280 jurisdiction remains codified today at Idaho Code § 67-5101 (2004) and includes “Dependent, neglected and abused children.” Id. at § C.

(20) Both states asserted jurisdiction over child dependency proceedings in In sum, we navigate the question whether California properly exercised jurisdiction over Jane’s dependency proceedings without much of a compass.

(33) As a mandatory Public Law 280 state, California did not need specific
state legislation to take jurisdiction over Public Law 280 subjects, including
child dependency.

(34) Wash. Rev. Code § 37.12.010 (1963); Idaho Code § 67-5101 (1963).
These statutes did not indicate whether the states thought the criminal or
civil component of Public Law 280 provided each state with jurisdiction
over involuntary child dependency proceedings. Recently, an Idaho
appeals court asserted in dictum that Idaho’s child dependency law was
prohibitory in nature, and therefore, fell within the state’s criminal Public
Law 280 jurisdiction. State v. Marek, 777 P.2d 1253, 1255 (Idaho Ct. App.
1989) (“Idaho does not merely “regulate” — rather, it prohibits and seeks
to eliminate — injury to children. Indeed, the same can be said of the
Child Protective Act and the Parent-Child Relationship Termination Act.
These statutes do not simply ‘regulate’ the abuse, neglect or abandonment
of children; rather, they seek to prevent and to ameliorate the tragic effects
of such conduct.”).

(35) Morris Udall, Chairman of the Interior and Insular Affairs Committee, advised the Department of Justice that the Committee had, in fact, “amended the bill to meet some of the Department’s objections.” 124 Cong. Rec. H38103 (daily ed. Oct. 14, 1978) (letter of Rep. Udall).

(36) Although the Washington Supreme Court decided Duckhead and Washington is a non-mandatory Public Law 280 state, the case involved a tribe located in Montana, a state that had not assumed Public Law 280 jurisdiction over the Montana tribe involved in the case. Duckhead, 555 P.2d at 657-58 & n.6. The court emphasized that if Washington’s Public Law 280 jurisdiction had applied, the state would have had jurisdiction to terminate the parental rights of Indians. Id. at 657.

(37) Section 1918(d) states that an “[a]ssumption of jurisdiction under this section shall not affect any action or proceeding over which a court has already assumed jurisdiction . . .”

Michigan State University College of Law
INDIGENOUS LAW & POLICY CENTER
OCCASIONAL PAPER SERIES

Jake J. Allen
2L, MSU College of Law
Indigenous Law & Policy Center Working Paper 2007-03
March 2007

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