Doe v. Mann , 415 F.3d 1038 ( 2005 )

Volume 1 of 2
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARY DOE, 
Plaintiff-Appellant,
v.
No. 04-15477
ARTHUR MANN, in his official
capacity; ROBERT L. CRONE, JR., in  D.C. No.
CV-02-03448-MHP
his official capacity; LAKE COUNTY
SUPERIOR COURT; DEPARTMENT OF OPINION
SOCIAL SERVICES, LAKE COUNTY;
D., Mrs.; D., Mr.,
Defendants-Appellees.

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.
8413
DOE v. MANN 8417
COUNSEL
Jeffrey L. Bleich, Munger, Tolles & Olson, San Francisco,
California, for the plaintiff-appellant.
Marc A. Le Forestier, Deputy Attorney General, State of Cali-
fornia, Sacramento, California; Robert L. Weiss, Deputy
County Counsel, Lake County, Lakeport, California, for the
defendants-appellees.
Caroline J. Todd, Berkeley, California, for intervenor-
appellee Jane Doe.
Bertram E. Hirsch, Great Neck, New York, for amici Associa-
tion on American Indian Affairs, National Indian Child Wel-
fare Association, and Tanana Chiefs Conference.
Thomas Weathers, Alexander, Berkey, Williams & Weathers,
Berkley, California, for amicus Morongo Band of Mission
Indians.
Brad S. Jolly, Smith & Jolly, Thornton, Colorado, for amicus
Elem Indian Colony.
John W. Corbett, Klamath, California, for amicus Yurok
Tribe.
OPINION
McKEOWN, Circuit Judge:
Mary Doe1 challenges the State of California’s jurisdiction
1
Pseudonyms are used to identify the mother, child, and adoptive par-
ents.
8418 DOE v. MANN
to terminate her parental rights over her Indian child, Jane
Doe, who was domiciled on the Elem Indian Colony reserva-
tion 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 other-
wise 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 fed-
eral 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 exercis-
ing jurisdiction. On the merits, we conclude that ICWA does
not provide the Elem Indian Colony with exclusive jurisdic-
tion 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.
2
All references to the U.S. Code are to Title 25 unless otherwise indi-
cated.
DOE v. MANN 8419
I. FACTUAL AND PROCEDURAL BACKGROUND
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 depen-
dency proceedings in Lake County Superior Court under Cali-
fornia’s Welfare and Institutions Code (“Cal. Welf. & Inst.
Code”) §§ 300(b) and (d) based on Mary Doe’s failure to pro-
tect 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.
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 Institu-
tions Code, which establish that Mary Doe’s parental rights were termi-
nated on February 16, 2001; 2) Petition for Adoption; 3) Attachment to
Petition for Adoption — Adoption of an Indian Child; 4) Order of Adop-
tion; and 5) Juvenile Dependency Petition.
8420 DOE v. MANN
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 chal-
lenged the superior court’s jurisdiction to terminate her paren-
tal 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 dis-
trict court held that, because the Elem Indian Colony did not
have exclusive jurisdiction over child dependency proceed-
ings 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.
II. JURISDICTION
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
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].
DOE v. MANN 8421
of competent jurisdiction to invalidate” a parental rights ter-
mination 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 sub-
stance 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 doc-
trine. 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.
A. ROOKER-FELDMAN DOCTRINE
[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
8422 DOE v. MANN
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 com-
plaining of injuries caused by state-court judgments
rendered before the district court proceedings com-
menced and inviting district court review and rejec-
tion of those judgments. Rooker-Feldman does not
otherwise override or supplant preclusion doctrine or
augment the circumscribed doctrines that allow fed-
eral courts to stay or dismiss proceedings in defer-
ence 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 deci-
sion 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 “inextrica-
bly intertwined” with an issue resolved by the state
court in its judicial decision.
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.
DOE v. MANN 8423
341 F.3d at 1158.
Mary Doe first tries to sidestep Rooker-Feldman on the the-
ory 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 jurisdic-
tional 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 juris-
dictional 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 rul-
ings terminating Mary Doe’s parental rights and approving
Jane’s adoption, the state court necessarily must have con-
cluded 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
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 juris-
diction 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 fed-
eral claim that state court lacked personal jurisdiction).
8424 DOE v. MANN
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, regard-
less 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 tradi-
tional 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 author-
ity 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 turn-
ing to ICWA, we consider other circumstances in which Con-
gress authorized federal courts to review state court
judgments.
B. CONGRESSIONAL GRANTS OF AUTHORITY 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 doc-
trine. Rather, the doctrine arises out of a pair of negative
inferences drawn from two statutes. . . . .”). As a result, Con-
gress may authorize federal district courts to review state
court judgments. Id. at 1079 (Rooker-Feldman must be con-
sidered in the context of “the entire federal jurisdictional con-
stellation,” 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-
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
DOE v. MANN 8425
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 imple-
menting legislation of the Hague Convention. The statute, the
International Child Abduction Remedies Act (“ICARA”),
provides that state and federal courts have concurrent original
an independent source of federal court jurisdiction that overrides the appli-
cation 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 with-
out due process, but noting that Rooker-Feldman “ ‘simply forbids federal
district court appellate review of state court judgments in the guise of col-
lateral 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 orig-
inal) (internal quotations and citations omitted).
8426 DOE v. MANN
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 Conven-
tion:
In this case, Congress has expressly granted the fed-
eral 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 exam-
ples underscore that Congress may by statute grant federal
courts authority to review certain state court judgments.
C. ICWA § 1914—AUTHORITY TO INVALIDATE STATE
COURT ACTIONS
[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 custo-
dian 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].
DOE v. MANN 8427
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 invali-
date state court judgments.
....
8
Court-Appellees argue that Confederated Tribes of the Colville Reser-
vation 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 jurisdic-
tion 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)).
8428 DOE v. MANN
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.
On its face, the statutory language is clear and very broad:
“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” lan-
guage, but we must determine whether the statute confers
jurisdiction upon the federal courts.
At the outset, it is important to note that despite broad lan-
guage, § 1914 is not a statute that itself confers jurisdiction.
In an analogous situation involving the Administrative Proce-
dure 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 lan-
guage was not intended as an independent jurisdic-
tional 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 jurisdic-
tional authority. Thus, at best, the text of [§§ 702 and
703] is ambiguous in providing a separate grant of
subject-matter jurisdiction.
Califano v. Sanders, 430 U.S. 99, 106 n.6 (1977).9
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 jurisdic-
tion” was a waiver of sovereign immunity only, and the district court’s
subject matter jurisdiction came from 28 U.S.C. § 1331).
DOE v. MANN 8429
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 suffi-
cient to review and vacate state custody decrees. Conse-
quently, 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 fed-
eral 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.
....
It would thus be ironic indeed if Congress then per-
mitted 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
8430 DOE v. MANN
be essentially left without a remedy. We cannot con-
ceive 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 resi-
dents 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 pre-
cluded 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 Wel-
fare 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:
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.
DOE v. MANN 8431
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 fed-
eral district court determination of the tribe’s jurisdiction over
child custody proceedings involving Indian children domi-
ciled on the reservation.
[8] Having resolved that the federal district court is a “court
of competent jurisdiction” under § 1914, we turn to the
remainder of the statute. Section 1914 provides that the Indian
child, the parent or Indian custodian, or the tribe “may peti-
tion any court of competent jurisdiction to invalidate such
action.” 25 U.S.C. § 1914. The action referred to is a state-
8432 DOE v. MANN
court action for “foster care placement or termination of
parental rights.” Id. The language of the statute could not be
clearer: Congress is authorizing any court of competent juris-
diction to invalidate a state court judgment involving the
Indian child.11 Having concluded that Congress created a fed-
eral cause of action over which the federal courts have subject
matter jurisdiction under 28 U.S.C. § 1331, it requires no leap
for us to conclude further that Congress explicitly authorized
federal courts to invalidate state court judgments in this lim-
ited arena.
We recognize that the prudential concerns embodied by the
Rooker-Feldman doctrine are important to our system of lim-
ited federal court jurisdiction and federalism. The Rooker-
Feldman doctrine, however, will give way where Congress
otherwise grants federal courts the authority to review state
court judgments. Although Congress did not specifically iden-
tify federal courts in ICWA as the tribunals designated to
review state judgments, in contrast to the habeas and bank-
ruptcy statutes, here Congress went one step further and gave
“any court of competent jurisdiction” the authority to “invali-
date” certain state child custody proceedings.
[9] To the extent there is any uncertainty about the scope
of federal authority to invalidate state court child custody pro-
ceedings, a proposition we do not embrace, one of the Indian
canons of construction resolves the issue. It provides that fed-
eral courts will liberally construe a federal statute in favor of
Indians, with ambiguous provisions interpreted for their bene-
fit. Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766
(1985). The purpose of ICWA was to rectify state agency and
11
Although not necessary to our analysis, we note that the legislative
history is equally clear: “Section 104 [25 U.S.C. § 1914] authorizes the
child, parent, or Indian custodian or the tribe to move to set aside any fos-
ter care placement or termination of parental rights on the grounds that the
rights secured under [25 U.S.C. §§ 1911, 1912, or 1913] were violated.”
H.R. Rep. No. 95-1386, at 23 (1978), reprinted in 1978 U.S.C.C.A.N.
7530, 7546.
DOE v. MANN 8433
court actions that resulted in the removal of Indian children
from their Indian communities and heritage.12 Resolving any
ambiguity in favor of the Indians yields a conclusion that
Indians have a forum in federal court to challenge state child
custody decisions. We thus conclude that § 1914 provides the
federal courts authority to invalidate a state court foster care
placement or termination of parental rights if it is in violation
of §§ 1911, 1912, or 1913.
III. THE INDIAN CHILD WELFARE ACT AND PUBLIC LAW
280 JURISDICTION
A. SUMMARY
Resolution of Mary Doe’s case requires us to decide
whether her tribe has exclusive jurisdiction in a child depen-
dency proceeding. We begin with § 1911(a), which provides:
An Indian tribe shall have jurisdiction exclusive as
to any State over any child custody proceeding
involving an Indian child who resides or is domiciled
within the reservation of such tribe, except where
such jurisdiction is otherwise vested in the State by
existing Federal law.
25 U.S.C. § 1911(a) (emphasis added). The “existing Federal
law” proviso in § 1911(a) has been interpreted to include a
federal law popularly referred to as “Public Law 280,” which
gives certain states, including California, broad jurisdiction
over criminal offenses committed in Indian country, 18
U.S.C. § 1162(a), and limited jurisdiction over civil causes of
action that arise in Indian country, 28 U.S.C. § 1360(a). See
12
See 25 U.S.C. § 1901(5) (“Congress finds . . . that the States, exercis-
ing their recognized jurisdiction over Indian child custody proceedings
through administrative and judicial bodies, have often failed to recognize
the essential tribal relations of Indian people and the cultural and social
standards prevailing in Indian communities and families.”).
8434 DOE v. MANN
Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S.
30, 42 n.16 (1989). No other “existing Federal law” is appli-
cable here.
The first step is to determine whether the proceeding “in-
volv[es] an Indian child who resides or is domiciled” on the
reservation. 25 U.S.C. § 1911(a). Jane, who no one disputes
is an Indian child, was domiciled on her reservation when the
child dependency proceedings in this case commenced.
The next step is to determine whether the dependency pro-
ceeding at issue falls within the meaning of “any child cus-
tody proceeding.” Id. Again, the statutory language provides
an easy answer as “child custody proceeding” is defined to
include “termination of parental rights,” which means “any
action resulting in the termination of the parent-child relation-
ship,” and “adoptive placement,” which means “the perma-
nent placement of an Indian child for adoption, including any
action resulting in a final decree of adoption.” 25 U.S.C.
§§ 1903(1)(ii), (iv). These are precisely the actions taken in
the proceedings at issue here.
[10] On its face, § 1911(a) poses little difficulty in interpre-
tation. The wrinkle comes in interpreting Public Law 280,
which is embedded within § 1911. Section 1911(a) provides
in unambiguous terms that the tribe has exclusive jurisdiction
over any child custody proceeding involving an Indian child
residing or domiciled on the reservation unless jurisdiction is
vested in a state under Public Law 280. Thus, we must decide
whether Public Law 280 vested California with jurisdiction to
terminate Mary Doe’s parental rights and order the adoption
of Jane.
The answer to that question lies in the interplay between
California’s child dependency law and Public Law 280. The
California child dependency law, Cal. Welf. & Inst. Code
§ 300 et seq., permits the state to commence dependency pro-
ceedings in juvenile court, § 325, if a child’s status falls
DOE v. MANN 8435
within various categories, including that the child suffered or
is at substantial risk of physical harm, § 300(b), or the child
has been or is at substantial risk of being sexually abused,
§ 300(d). The law permits the state, under certain circum-
stances, to petition for the termination of parental rights over
a child previously judged to be a dependent of the juvenile
court. Cal. Welf. & Inst. Code § 366.26.
[11] Determining whether the state had jurisdiction under
Public Law 280 to enforce its child dependency law requires
us to categorize the state dependency law as either criminal,
civil regulatory, or civil adjudicatory. If the child dependency
law embodies either a criminal offense under 18 U.S.C.
§ 1162(a) or a civil cause of action (civil adjudicatory) under
28 U.S.C. § 1360(a), then the tribe does not have exclusive
jurisdiction under § 1911(a) and the state properly exercised
jurisdiction. If, however, California’s dependency law is a
regulatory statute, then the tribe had exclusive jurisdiction and
the parental rights determination is invalid. See Bryan v.
Itasca County, 426 U.S. 373, 390 (1976) (Public Law 280 did
not give the states “general civil regulatory powers” over
tribes and their members in Indian country).
Mary Doe argues that California’s dependency law falls
into the civil regulatory category and thus outside the state’s
Public Law 280 jurisdiction. See Bryan, 426 U.S. at 390. She
asks us to reach this conclusion by drawing a distinction
between involuntary and voluntary custody proceedings. She
maintains that involuntary child dependency proceedings are
regulatory because they involve intervention by the state,
through its sovereign authority, in a parent-child relationship.
This type of proceeding, according to Mary Doe, contrasts
with voluntary proceedings such as private adoptions, which
involve only private parties and are not regulatory.
The Department of Social Services and Court-Appellees
also stake their analysis on an interpretation of Public Law
280. In their view, the dependency statute falls under either
8436 DOE v. MANN
the criminal or the civil adjudicatory category, meaning that
the tribe lacks exclusive jurisdiction. They argue that the
voluntary/involuntary dichotomy is a false one and should not
inform our analysis.
Although California’s child dependency statute may not fit
neatly into any of the Public Law 280 jurisdictional boxes,
construing ICWA as a whole and considering child depen-
dency proceedings in the context of both ICWA and Public
Law 280, we conclude that the California statute does not fall
within Public Law 280’s criminal jurisdiction, but that it does
fall within Public Law 280’s civil adjudicatory jurisdiction.
Embedded in this determination is the conclusion that the
child dependency statute is not regulatory in nature. Thus,
under ICWA, the tribe does not have exclusive jurisdiction
over the child dependency proceeding because “jurisdiction is
otherwise vested in the state [of California] by existing Fed-
eral law.” 25 U.S.C. § 1911(a). Before delving into the appli-
cation of Public Law 280, we take a detour to explain the
contours of ICWA and Public Law 280, which provide the
foundation for our analysis.
B. BACKGROUND OF ICWA
Congress passed ICWA in 1978 in response to a growing
concern that Indian children were removed from their homes
by state child protection officials at an alarmingly high rate
and placed in foster care or adoption settings outside their
Indian communities and culture. See 25 U.S.C. § 1901(4);
Holyfield, 490 U.S. at 32. “At the heart of ICWA” lies a juris-
dictional scheme aimed at ensuring that tribes have a role in
adjudicating and participating in child custody proceedings
involving Indian children domiciled both on and off the reser-
vation. Holyfield, 490 U.S. at 36. This aim is reflected in
§ 1911(a)’s broad grant of exclusive jurisdiction to most
tribes. 25 U.S.C. § 1911(a).
As we have explained, the “existing Federal law” proviso
in § 1911(a), providing tribes with exclusive jurisdiction “ex-
DOE v. MANN 8437
cept where such jurisdiction is otherwise vested in the State
by existing Federal law,” is the crux of this case. Although the
text of the proviso does not specifically identify Public Law
280, the legislative history surrounding the adoption of
§ 1911(a) and subsequent court decisions confirm that Con-
gress was referring, at least in part, to Public Law 280. See
H.R. Rep. No. 95-1386, at 32 (1978), reprinted in 1978
U.S.C.C.A.N. 7530, 7554 (letter from Department of Inte-
rior); H.R. Rep. No. 95-1386, at 40, 1978 U.S.C.C.A.N. 7530,
7563 (letter from Department of Justice); Holyfield, 490 U.S.
at 42 n.16; Native Village of Venetie I, 944 F.2d at 555.
An earlier draft of ICWA, House Resolution 12533,
included a provision similar to § 1911(a) but did not refer to
“existing” federal laws: “Sec. 101. (a) An Indian tribe shall
have jurisdiction exclusive as to any State over any placement
of an Indian child who resides on or is domiciled within the
reservation of such tribe.” Court-Appellees’ Answer Brief at
App. 22. During consideration of this earlier legislation, the
Departments of Justice and Interior alerted Congress that this
section could strip states of jurisdiction already existing where
Public Law 280 applied. The Department of the Interior
stated, “We believe that reservations located in States subject
to Public Law 83-280 should be specifically excluded from
section 101(a) . . . .”13 The Department of Justice voiced simi-
lar concerns in two letters to Congress:
As you may be aware, the courts have consistently
recognized that tribal governments have exclusive
jurisdiction over the domestic relationships of tribal
members located on reservations, unless a State has
assumed concurrent jurisdiction pursuant to Federal
legislation such as Public Law 83-280 . . . . [S]ection
101(a) of the House draft, if read literally, would
appear to displace any existing State court jurisdic-
13
Letter from Forrest J. Gerard, Assistant Secretary of Interior, H.R.
Rep. No. 95-1386, at 32, reprinted in 1978 U.S.C.C.A.N. 7530, 7554.
8438 DOE v. MANN
tion over these matters based on Public Law 83-280.
We doubt that is the intent of the draft because, inter
alia, there may not be in existence tribal courts to
assume such State-court jurisdiction as would appar-
ently be obliterated by this provision.14
After these letters were received, Congress amended the
legislation to include the “existing Federal law” proviso that
became law.
C. PUBLIC LAW 280
Twenty-five years prior to the passage of ICWA, Congress
adopted Public Law 280, legislation that provides six “manda-
tory” states, including California,15 with jurisdiction over
criminal and some civil matters arising in Indian country.16
The criminal jurisdiction conferred by Public Law 280 is
expansive:
Each of the States or Territories listed . . . shall have
14
Letters of Patricia M. Wald, Assistant Attorney General, H.R. Rep.
No. 95-1386, at 35, 40, reprinted in 1978 U.S.C.C.A.N. 7530, 7558, 7563.
15
The five other mandatory states are Alaska, Minnesota, Nebraska,
Oregon, and Wisconsin. 18 U.S.C. § 1162(a); 28 U.S.C. § 1360(a). 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 Cal-
ifornia is subject to the state’s criminal and civil Public Law 280 jurisdic-
tion. 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 Washing-
ton 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.
DOE v. MANN 8439
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 juris-
diction 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 else-
where within the State or Territory . . . .
18 U.S.C. § 1162(a). The civil jurisdiction conferred by Pub-
lic 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 Con-
gress 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 will-
ingness to accept such responsibility.
S. Rep. No. 699 (1953), reprinted in 1953 U.S.C.C.A.N.
2409, 2411-12.
8440 DOE v. MANN
In contrast, the civil component of Public Law 280 was
adopted with a “virtual absence of expression of congressio-
nal policy or intent.” Bryan, 426 U.S. at 381. What little pub-
lished 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 reser-
vations the substantive civil laws of the respective
States insofar as those laws are of general applica-
tion 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 “re-
dress the lack of adequate Indian forums for resolving private
legal disputes between reservation Indians, and between Indi-
ans and other private citizens, by permitting the courts of the
States to decide such disputes . . . .” 426 U.S. at 383. How-
ever, 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.
D. PUBLIC LAW 280 AND ICWA PRECEDENT
The federal courts have interpreted ICWA on rare occa-
sions, 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 involun-
tary child custody proceedings in the context of Public Law
DOE v. MANN 8441
280. More specifically, no court has addressed the California
child dependency statute.
The Supreme Court’s only case interpreting ICWA, Holy-
field, included a footnote that referenced the “existing Federal
law” proviso in § 1911(a):
Section 1911(a) does not apply “where such jurisdic-
tion is otherwise vested in the State by existing Fed-
eral 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 invol-
untary 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 volun-
tary, private adoption and the court limited its discussion of
the expanse of Public Law 280’s civil jurisdiction to private
8442 DOE v. MANN
adoption cases. Id. at 560 (“It is not disputed that private
adoption cases are included within this transfer of civil juris-
diction [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 non-
mandatory Public Law 280 states, have long identified child
dependency proceedings as a subject matter within their Pub-
lic 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
17
The Ninth Circuit cited the Wisconsin Attorney General’s opinion
favorably in Native Village of Venetie I, although for the separate proposi-
tion that Public Law 280 jurisdiction only provides states with “concur-
rent” 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
DOE v. MANN 8443
In sum, we navigate the question whether California prop-
erly exercised jurisdiction over Jane’s dependency proceed-
ings without much of a compass.
IV. ICWA, PUBLIC LAW 280, AND THE CALIFORNIA
DEPENDENCY REGIME
Given that no federal court has squarely addressed the
question, we must break new ground in deciding whether Cal-
ifornia’s child dependency proceedings are within Califor-
nia’s Public Law 280 jurisdiction. Our analysis proceeds in
two steps. First, is California’s child dependency law criminal
in nature? Second, if the child dependency law cannot be con-
sidered criminal, does enforcement of this law fall within the
state’s Public Law 280 civil adjudicatory jurisdiction, or is the
state enforcing a “regulatory” law that is outside the state’s
jurisdiction under Bryan? Resolution of these questions must
also be squared with an overall statutory analysis of ICWA,
as Public Law 280 does not stand alone here but is integrated
into the ICWA scheme.
A. PUBLIC LAW 280 CRIMINAL JURISDICTION
1. IDENTIFYING CRIMINAL/PROHIBITORY LAWS UNDER
PUBLIC LAW 280
In California v. Cabazon Band of Mission Indians, the
Supreme Court succinctly outlined the path to deconstructing
Public Law 280:
In Bryan v. Itasca County, we interpreted [28 U.S.C.
§ 1360(a)] to grant States jurisdiction over private
Indian country long before the Supreme Court issued its landmark Public
Law 280 decisions in Bryan (1976) and California v. Cabazon Band of
Mission Indians, 480 U.S. 202 (1987), and before Congress enacted
ICWA in 1978.
8444 DOE v. MANN
civil litigation involving reservation Indians in state
court, but not to grant general civil regulatory
authority . . . . [Public Law 280] plainly was not
intended to effect total assimilation of Indian tribes
into mainstream American society. We recognized
that a grant to States of general civil regulatory
power over Indian reservations would result in the
destruction of tribal institutions and values. Accord-
ingly, when a State seeks to enforce a law within an
Indian reservation under the authority of Pub.L. 280,
it must be determined whether the law is criminal in
nature, and thus fully applicable to the reservation
under [18 U.S.C. § 1162(a)], or civil in nature, and
applicable only as it may be relevant to private civil
litigation in state court.
480 U.S. 202, 208 (1987) (internal citations omitted). The
decision establishes three categories into which a state law
may fall: criminal, regulatory, and civil law relevant to private
litigation. Id.
In Cabazon, the Court applied this analytical framework by
grappling with whether the State of California could enforce
its penal code in Indian country for violation of the state’s
bingo laws. Id. at 205. The Court observed that state regula-
tory laws are often enforced with penal sanctions, making
them appear “criminal” for Public Law 280 purposes, and
thereby avoiding the regulatory classification that would pre-
vent their enforcement under Bryan. Id. at 211 (“But that an
otherwise regulatory law is enforceable by criminal as well as
civil means does not necessarily convert it into a criminal law
within the meaning of Pub.L. 280. Otherwise, the distinction
between [Public Law 280’s criminal jurisdiction and civil
jurisdiction] could easily be avoided. . . .”). Under Cabazon,
the label attached to the law in the state’s statutory code is not
the determinative factor for the purposes of classifying a law
as either criminal or regulatory in nature. Id. Rather, the criti-
cal factor is whether the conduct at issue in the statute is gen-
DOE v. MANN 8445
erally prohibited by the state, or whether the conduct is
generally permitted by the state but subject to regulation:
[I]f the intent of a state law is generally to prohibit
certain conduct, it falls within Pub.L. 280’s grant of
criminal jurisdiction, but if the state law generally
permits the conduct at issue, subject to regulation, it
must be classified as civil/regulatory and Pub.L. 280
does not authorize its enforcement on an Indian res-
ervation.
Id. at 209.
The Court ultimately determined that the bingo laws were
regulatory in nature, even though enforced with penal sanc-
tions, because “California permits a substantial amount of
gambling activity, including bingo, and actually promotes
gambling through its state lottery,” demonstrating that “Cali-
fornia regulates rather than prohibits gambling in general and
bingo in particular.” Id. at 211. (Federal and state courts have
applied the Cabazon criminal/prohibitory versus regulatory
test with widely varying results, provoking some commenta-
tors to question whether the test is manageable in its current
form.21 The variation tends to result from how courts charac-
terize the scope of the conduct at issue.22
21
See generally Arthur F. Foerster, Divisiveness and Delusion: Public
Law 280 and the Evasive Criminal/Regulatory Distinction, 46 UCLA L.
Rev. 1333 (1999); Emma Garrison, Baffling Distinctions Between Crimi-
nal and Regulatory: How Public Law 280 Allows Vague Notions of State
Policy to Trump Tribal Sovereignty, 8 J. Gender Race & Just. 449 (2004).
22
See State v. Stone, 572 N.W.2d 725, 729 (Minn. 1997) (“[T]here has
been a split of authority among courts across the country, including the
Minnesota court of appeals, regarding the application of the Cabazon test.
Those courts which have interpreted ‘conduct’ to refer to the broad activ-
ity have focused on this aspect without regard to the particularities of the
narrow conduct. Those courts which have interpreted ‘conduct’ to refer to
the narrow activity have focused primarily on whether the narrow conduct
is categorically prohibited or whether the statute controlling the conduct
contains exceptions.”).
8446 DOE v. MANN
Some courts take a broad perspective by considering the
conduct in the context of a larger permitted but regulated activi-
ty,23 while other courts have focused on the narrow conduct
specifically at issue in the case.24
Our decision in Confederated Tribes of the Colville Reser-
vation v. Washington, 938 F.2d 146 (9th Cir. 1991), provides
a concrete example of the difficulty of classifying a state law
based on the specific conduct that is prohibited. In Confeder-
ated Tribes of Colville, we considered whether Washington
state’s traffic offense statutes, including its speeding laws,
were prohibitory or regulatory in nature. Id. at 147. We con-
cluded, relying on the broad line drawing in Cabazon, that
driving was the conduct at issue, not speeding—even though
23
See Sycuan Band of Mission Indians v. Roache, 54 F.3d 535, 539 (9th
Cir. 1995) (considering conduct of gambling, not whether electronic
machine gambling was prohibited in California, and concluding “the state
cannot regulate and prohibit, alternately, game by game and device by
device, turning its public policy off and on by minute degrees. Cabazon
Band addressed the problem at a higher level of generality than that”);
Quechan Indian Tribe v. McMullen, 984 F.2d 304, 307 (9th Cir. 1993)
(concluding state fireworks laws were criminal/prohibitory because
although fireworks could be sold eight days out of the year in California,
the conduct was generally prohibited); Twenty-Nine Palms Band of Mis-
sion Indians v. Wilson, 925 F. Supp. 1470, 1477 (C.D. Cal. 1996) (profes-
sional boxing is a regulated subset of the generally permitted activity of
boxing) (vacated, 156 F.3d 1239 (9th Cir. 1998)); Seminole Tribe of Fla.
v. Butterworth, 658 F.2d 310 (5th Cir. 1981) (bingo is among types of
gambling permitted but regulated by Florida); State v. Stone, 572 N.W.2d
at 730-31 (laws prohibiting driving without proof of insurance, without a
license, without a seatbelt, etc., are laws within larger context of permit-
ted, but regulated, activity of driving).
24
St. Germaine v. Circuit Court, 938 F.2d 75, 77 (7th Cir. 1991) (driv-
ing with a revoked license is prohibited by state law, and not simply con-
sidered part of regulated conduct of driving); State v. Busse, 644 N.W.2d
79, 84-85 (Minn. 2002) (driving after license was cancelled after four DUI
convictions was prohibited by state law, and not simply considered part of
regulated conduct of driving); State v. Robinson, 572 N.W.2d 720, 724
(Minn. 1997) (underage drinking is prohibited by state law, and not simply
considered part of regulated conduct of alcohol consumption).
DOE v. MANN 8447
speeding was certainly a prohibited activity in Washington
state. Id. at 148. Thus, because driving is a generally permit-
ted but regulated activity, the state law was regulatory in
nature and could not be enforced by state officers against
Indians in Indian country:
Laws which prohibit absolutely certain acts fall into
the [criminal/prohibitory] category, while those gen-
erally permitting certain conduct but subject to regu-
lation are within [the regulatory category]. . . .
Cabazon focuses on whether the prohibited activity
is a small subset or facet of a larger, permitted activ-
ity — high-stakes unregulated bingo compared to all
bingo games — or whether all but a small subset of
a basic activity is prohibited.
Id. at 147, 149.
The Supreme Court injected another wrinkle in the analysis
when it held that the “shorthand test” for whether a law is pro-
hibitory or regulatory is “whether the conduct at issue violates
the State’s public policy.” Cabazon, 480 U.S. at 209. If the
conduct at issue violates public policy, then the law is more
likely criminal/prohibitory. Id. Significantly, the Ninth Circuit
has held that permitting tribes rather than states to enforce a
policy does not undermine state public policy. For instance,
in Confederated Tribes of Colville, we acknowledged that
tribal enforcement of its own traffic code in lieu of the state’s
speeding laws would not undermine the state’s public policy:
Thus, although the government is correct that speed-
ing remains against the state’s public policy, Caba-
zon teaches that this is the wrong inquiry. Cabazon
focuses on whether the prohibited activity is a small
subset or facet of a larger, permitted activity — high-
stakes unregulated bingo compared to all bingo
games — or whether all but a small subset of a basic
activity is prohibited. Thus, in United States v. Mar-
8448 DOE v. MANN
cyes, 557 F.2d 1361, 1364 (9th Cir. 1977) we found
. . . [t]o allow tribal members to operate fireworks
stands on reservations would “entirely circumvent
Washington’s determination that the possession of
fireworks is dangerous.” Marcyes, 557 F.2d at 1364.
But to look to the Tribes rather than the state for
traffic enforcement on the reservation will not
detract from Washington’s determination to discour-
age speeding.
Confederated Tribes of Colville, 938 F.2d at 148-49 (empha-
sis added).
DOE v. MANN 8449
Volume 2 of 2
8450 DOE v. MANN
2. ANALYSIS OF THE CALIFORNIA CHILD DEPENDENCY
STATUTE AS A CRIMINAL STATUTE
Although the Ninth Circuit and numerous other courts have
applied the Cabazon test to state gaming, driving, fireworks,
and boxing laws, to name just a few, reconciling the many
distinctions and finding a common, consistent thread of analy-
sis is neither an easy task nor a productive one. In particular,
applying the criminal versus regulatory test to Mary Doe’s
case is unwieldy because it is problematic to compare a state’s
child dependency statutory scheme to a criminal prosecution
or to state gaming laws. Overall, California’s child depen-
dency law and proceedings are aimed at promoting the best
interests of the child, not at prohibiting conduct. As a result,
the dependency proceedings do not fall within California’s
broad Public Law 280 criminal jurisdiction over Indians.
First and foremost, the statute does not prohibit specific
conduct. Rather, the child dependency statute gives the state
broad authority to remove children and terminate parental
rights under specific circumstances. Granted, the state’s
authority under the statute is often triggered if a child is a vic-
tim or at substantial risk of harm, abuse, or neglect. Cal. Welf.
& Inst. Code §§ 300(a), (b), (d), (e), (f), (j). Indeed, Jane was
made a dependent of the juvenile court pursuant to §§ 300 (b)
and (d) because her mother had failed to adequately supervise
and protect her from physical harm and because Jane was the
alleged victim of sexual abuse from which her mother failed
to protect her.
But the statute is also triggered where abuse is not an issue,
such as where the child is suffering from mental illness and
the parents cannot address this special need. Cal. Welf. &
Inst. Code § 300(c). Likewise, subsection (h) makes a child a
dependent of the juvenile court if “[t]he child has been freed
for adoption by one or both parents for 12 months by either
relinquishment or termination of parental rights or an adop-
tion petition has not been granted.” Cal. Welf. & Inst. Code
DOE v. MANN 8451
§ 300(h). Both of these provisions demonstrate that abusive
conduct or neglect is not necessarily a predicate to trigger
California’s child dependency statute.
While some of the circumstances that trigger the statute,
such as child abuse, may constitute criminal violations under
different parts of the California code, the statute itself does
not require proof of a criminal violation nor does it prohibit
such conduct.25 Moreover, the statute provides that it is not
designed to infringe on the permitted activity of parenting,
suggesting that the state law regulates but a small facet of the
generally permitted activity of parenting.26
It is also important to underscore that the statute is geared
toward protecting the best interests of the child rather than
controlling behavior. For that reason, our precedent that looks
to categorization of the conduct at issue does not easily fit this
statute. Of course, one could say that the statute regulates par-
enting, which is a permitted activity. Or one could argue that
the statute prohibits abuse. But this framework is not particu-
larly transferable because the well-being of the child, not con-
duct of the parent, is the focus of the statute and no specific
conduct is prohibited.
25
Unlike the Wisconsin civil statute at issue in In re Burgess that was
found to be criminal for Public Law 280 purposes and permitted involun-
tary civil commitment of sexually violent people only if they had been
convicted of a criminal offense, 665 N.W.2d 124, 132 (Wis. 2003), child
dependency proceedings in California may be triggered regardless of
whether the state pursues any criminal prosecution of a parent or a guard-
ian for abuse or neglect.
26
“It is the intent of the Legislature that nothing in this section disrupt
the family unnecessarily or intrude inappropriately into family life, pro-
hibit the use of reasonable methods of parental discipline, or prescribe a
particular method of parenting. Further, nothing in this section is intended
to limit the offering of voluntary services to those families in need of
assistance but who do not come within the description of this section.”
Cal. Welf. & Inst. Code § 300.
8452 DOE v. MANN
Although the criminal versus civil inquiry is “one of the
statute’s intent and not simply its label,” Quechan Indian
Tribe, 984 F.2d at 307, the fact that California’s child depen-
dency statute is codified in the civil code is telling. More
importantly, the California Supreme Court has affirmed that
child dependency proceedings are civil in nature. See In re
Malinda S., 51 Cal. 3d 368, 384 (Cal. 1990) (quoting In re
Mary S., 186 Cal. App. 3d 414, 418 (Cal. Ct. App. 1986)).27
Just as significant, the proceedings are not punitive. “De-
pendency proceedings are civil in nature, designed not to
prosecute the parent, but to protect the child.” In re Mary S.,
186 Cal. App. 3d at 418; see also In re Malinda S., 51 Cal.
3d at 384 (same); Collins v. Superior Court, 74 Cal. App. 3d
47, 52 (Cal. Ct. App. 1977) (“The purpose of these depen-
dency proceedings is to protect and promote the welfare of the
child, not to punish the parent.”).
Consistent with the notion that the proceedings are neither
criminal nor punitive, the procedural protections available in
California’s child dependency proceedings lie somewhere
between criminal and civil in nature. See Confederated Tribes
of Colville, 938 F.2d at 148 (considering procedural elements
in assessing whether the state scheme was criminal or civil).
Although indigent parents have a statutory right to counsel
similar to that afforded criminal defendants, Cal. Welf. &
Inst. Code § 317, the standard of proof required to remove a
child from the parents’ custody is “clear and convincing evi-
27
“For many years, the courts characterized the nature of the depen-
dency system inconsistently. Some viewed it as civil in nature. . . . Others
viewed it as quasi-criminal in nature . . . . In 1990, however, the California
Supreme Court described dependency proceedings as civil in nature,
designed not to punish the parent but to protect the child . . . . While they
may be civil in nature, these proceedings are significantly different from
ordinary civil actions by reason of the way they affect the fundamental
rights of parents and children.” Gary C. Seiser & Kurt Kumli, California
Juvenile Courts Practice and Procedure § 2.10[2] (2004).
DOE v. MANN 8453
dence,” § 361(c),28 something more akin to the civil standard
of preponderance of the evidence than to the criminal stan-
dard of beyond a reasonable doubt. Many other procedural
protections associated with criminal proceedings are likewise
unavailable:
A parent at a dependency hearing cannot assert the
Fourth Amendment exclusionary rule, since ‘the
potential harm to children in allowing them to
remain in an unhealthy environment outweighs any
deterrent effect which would result from suppressing
evidence’ unlawfully seized. Nor can the parent seek
reversal on the grounds of incompetency of counsel.
In re Malinda S., 51 Cal. 3d at 384-85 (quoting In re Mary
S., 186 Cal. App. 3d at 418-19); see also Lois R. v. Superior
Court, 19 Cal. App. 3d 895, 900 (Cal. Ct. App. 1971)
(“[D]ependency proceedings are civil and have been con-
ducted without strict adherence to all the formalities of a
criminal trial.”).
[12] Finally, we address Cabazon’s “shorthand test” for
whether a law is prohibitory or regulatory, that is “whether
the conduct at issue violates the State’s public policy.” 480
U.S. at 209. California’s public policy “to provide maximum
safety and protection for children who are currently being
physically, sexually, or emotionally abused, being neglected,
or being exploited, and to ensure the safety, protection, and
physical and emotional well-being of children who are at risk
of that harm,” Cal. Welf. & Inst. Code § 300.2, is not under-
mined simply because the law is not classified as criminal in
nature. As in Confederated Tribes of Colville, “look[ing] to
the Tribes rather than the state” for protection of children
28
In ICWA cases, state courts can terminate parental rights only when
the determination is proven beyond a reasonable doubt. 25 U.S.C.
§ 1912(f). This provision does not alter our analysis of whether Califor-
nia’s child dependency statute is criminal for Public Law 280 purposes.
8454 DOE v. MANN
against abuse and neglect does not violate the state’s public
policy. See 938 F.2d at 149. Taken as a whole and considering
the multiple factors used for analyzing whether a law is
criminal/prohibitory, we conclude that the California child
dependency statute is not prohibitory. Therefore, California
may not enforce its involuntary child dependency statute in
Indian country through its criminal Public Law 280 jurisdic-
tion.
B. PUBLIC LAW 280 CIVIL JURISDICTION
We next consider whether the child dependency law falls
within Public Law 280’s civil adjudicatory jurisdiction or
whether it is analogous to a regulatory statute. Bryan, 426
U.S. at 390. This distinction may be easy to state but, as noted
in the American Indian Law Deskbook, the application is quite
onerous.29
[13] California may assert its Public Law 280 civil jurisdic-
tion over cases that are “civil causes of action between Indi-
ans or to which Indians are parties” and that involve “those
civil laws . . . that are of general application to private persons
or private property.” 28 U.S.C. § 1360(a). The plain language
of Public Law 280’s civil jurisdictional provision suggests
that California’s enforcement of its child dependency law falls
within the state’s Public Law 280 civil jurisdiction. The state
proceedings involved a civil cause of action to which Mary
Doe and her child, both Indians, were parties. In addition,
California’s child dependency law is of “general application
to private persons” in the state of California.
While it is tempting to rest on this plain reading of the stat-
29
“The distinction between state civil laws that may supply a rule of
decision and state regulatory laws that cannot be enforced by virtue of
Public Law 280 civil jurisdiction is hardly clear and has caused difficulty
in application.” American Indian Law Deskbook 219-20 (Hardy Myers &
Clay Smith eds., 3d ed. 2004).
DOE v. MANN 8455
ute, the Supreme Court’s language in Bryan and Cabazon
gives us pause: those two cases intimate that Public Law
280’s civil jurisdiction is limited to disputes between private
parties, which begs the question whether when, as here, the
state is one of the parties, a proceeding falls within Public
Law 280’s civil jurisdiction. In Bryan, the Supreme Court
described the civil component of Public Law 280 as “primar-
ily intended to redress the lack of adequate Indian forums for
resolving private legal disputes between reservation Indians,
and between Indians and other private citizens. . . .” Bryan,
426 U.S. at 383 (emphasis added).
In Cabazon, the Court reiterated its holding that Public Law
280 granted to states civil jurisdiction only over private dis-
putes. 480 U.S. at 208. We later characterized a Public Law
280 state’s “very limited” civil jurisdiction provision as “es-
sentially [affording] Indians a forum to settle private disputes
among themselves.” Confederated Tribes of Colville, 938 F.2d
at 147 (emphasis added). Throughout these cases, the theme
is that the private nature of disputes is what places them
within Public Law 280’s civil jurisdiction.
We are confident, however, that resting our analysis simply
on the Supreme Court’s references to private disputes would
create a tortured result that is at odds with the overall struc-
ture of ICWA, as well as with the history of Public Law 280
and California child dependency proceedings.
To begin, the genesis of the Court’s analysis in Bryan and
Cabazon was very different from a child dependency proceed-
ing. In both those cases, the broad language about “private
legal disputes” and “private civil litigation” was made in the
context of an attempt to categorize a state’s authority to regu-
late taxation and gambling. The taxation and gambling stat-
utes both regulate the conduct of the public at large. They do
not address the rights or status of private individuals. And, in
the case of taxation, the Court was particularly sensitive to
precedent barring states from taxing reservation Indians with-
8456 DOE v. MANN
out express congressional approval.30 In contrast, California’s
child dependency proceedings focus, not on public activities,
but on the status of individual Indian parents and children.
At the heart of the dependency proceedings is a dispute
about the status of the child, a private individual; the simple
fact that the state steps in as a party does not transform what
is an adjudicatory proceeding involving private parties into a
regulatory proceeding.31 In short, child dependency proceed-
ings are more analogous to the “private legal disputes” that
30
The Supreme Court in Bryan noted that prior decisions of the Court
firmly established that without congressional authorization, the states were
generally barred from imposing taxes on reservation Indians. 426 U.S. at
376-77. The Court was particularly concerned with Congress’s silence on
any intention to confer taxing authority over Indian country through the
civil component of Public Law 280:
Of special significance for our purposes, however, is the total
absence of mention or discussion regarding a congressional intent
to confer upon the States an authority to tax Indians or Indian
property on reservations. . . . This omission has significance in
the application of the canon of construction applicable to statutes
affecting Indian immunities, as some mention would normally be
expected if such a sweeping change in the status of tribal govern-
ment and reservation Indians had been contemplated by Con-
gress.
Id. at 381.
31
California and Minnesota treat suits brought by the state to collect
child support from a parent as equivalent to private civil litigation under
Public Law 280 jurisdiction. See County of Inyo v. Jeff, 227 Cal. App. 3d
487, 494 (Cal. Ct. App. 1991) (“While Public Law 280 is structured in
terms of private parties, we believe that the test is one of substance rather
than form . . . [T]he mere fact that the state is a party does not in and of
itself disqualify [the county]. The action of Inyo can be considered as pri-
vate in substance.”); Becker County Welfare Dep’t v. Bellcourt, 453
N.W.2d 543, 544 (Minn. Ct. App. 1990) (same). But see State ex rel.
Dep’t of Human Res. v. Whitebreast, 409 N.W.2d 460, 463-64 (Iowa
1987) (rejecting the state’s contention that its petition filed “as next
friend” transformed its public, regulatory duty into a private civil cause of
action under Public Law 280).
DOE v. MANN 8457
fall under a state’s Public Law 280 jurisdiction than to the
regulatory regimes at issue in Bryan and Cabazon.
A footnote in Bryan underscores that California’s child
dependency law is different from the taxation laws considered
in that case and that it should not be considered “regulatory”
in nature. In Bryan, the Supreme Court recognized commen-
tary stating that laws having to do with status were the types
of laws that Congress envisioned would fall within a state’s
civil Public Law 280 jurisdiction:
A fair reading of these two clauses suggests that
Congress never intended ‘civil laws’ to mean the
entire array of state noncriminal laws, but rather that
Congress intended ‘civil laws’ to mean those laws
which have to do with private rights and status.
Therefore, ‘civil laws . . . of general application to
private persons or private property’ would include
the laws of contract, tort, marriage, divorce, insanity,
descent, etc., but would not include laws declaring or
implementing the states’ sovereign powers, such as
the power to tax, grant franchises, etc. These are not
within the fair meaning of ‘private’ laws.
426 U.S. at 384 n.10 (emphasis added) (quoting Daniel H.
Israel & Thomas L. Smithson, Indian Taxation, Tribal Sover-
eignty and Economic Development, 49 N.D. L. Rev. 267, 296
(1973)). While we do not view the Supreme Court’s footnote
as dispositive, we observe that the Court recognized “status”
laws generally, and “insanity” laws particularly, as different
from regulatory laws.
In a similar vein, the Wisconsin Supreme Court has catego-
rized statutes involving status determinations as falling within
Public Law 280’s civil jurisdiction. That court held that a
state civil statute permitting the state to involuntarily commit
sexually violent persons applied to Indian country through
either the state’s Public Law 280 criminal jurisdiction or
8458 DOE v. MANN
through the state’s Public Law 280 civil jurisdiction. In re
Burgess, 665 N.W.2d 124, 132 (Wis. 2003). The Court refer-
enced Bryan’s “insanity” language to bolster its alternative
civil analysis:
In addition, even if [Wisconsin’s involuntary civil
commitment statute] is strictly construed as a “civil”
law in its entirety, it is civil/adjudicatory rather than
civil/regulatory, and therefore falls within PL-280’s
grant of civil jurisdiction to the State. . . .
In this case, the adjudication of Burgess’s mental
health is a status determination, which is more simi-
lar to adjudications like those involving insanity,
rather than regulations such as the power to tax.
Id. at 132-33. Even though the Wisconsin Attorney General’s
1981 opinion concluded that the state would not enforce its
involuntary child dependency law in Indian country because
the laws were “regulatory” in nature under Bryan, 70 Op.
Att’y Gen. Wis. 237 (1981), 1981 Wisc. AG LEXIS 7, *7, 18,
19-20, the state supreme court decision, which is controlling
law in Wisconsin, recognized that a status determination is
different than a regulatory regime for civil jurisdictional pur-
poses under Public Law 280.
[14] The distinction the Wisconsin Supreme Court drew
between state adjudicatory jurisdiction and state regulatory
jurisdiction is not without significant textual and historical
support. As referenced in William Canby’s American Indian
Law Nutshell:
The civil grant is one of power over “civil causes
of action.” This language would appear to mean that
the state simply acquired adjudicatory jurisdiction—
the power to decide cases—not the entire power to
legislate and regulate in Indian country . . . .
DOE v. MANN 8459
The Supreme Court [in Bryan] concluded that the
primary purpose of the civil provisions of Public
Law 280 was to provide a state forum for the resolu-
tion of disputes. Viewed in that light, the provision
that the civil laws of the state should have effect in
Indian country simply ‘authorizes application by the
state courts of their rules of decision to decide such
disputes.’
The effect of the Court’s decision is to confine the
civil grant of Public Law 280 to adjudicatory juris-
diction only.
William C. Canby, Jr., American Indian Law in a Nutshell
241-42 (4th ed. 2004). That California’s dependency law
determines children’s status is compelling evidence that it is
adjudicatory, not regulatory.
Our conclusion does not rest solely on an abstract analysis
of Public Law 280. One difficulty with applying Bryan and
Cabazon in a vacuum is that, in those cases, the Court was
forced to interpret Public Law 280 as a stand-alone statute
without context and with virtually no legislative history. We
face a different situation. Here, Public Law 280 is embedded
within ICWA, a comprehensive statute with considerable leg-
islative history and with a singular focus—child custody pro-
ceedings involving Indian children. Significantly, Public Law
280 must be interpreted as part and parcel of ICWA, the stat-
ute into which it is incorporated. Thus, we turn now to an
analysis of the text, structure, history, and backdrop of ICWA.
Whereas the civil component of Public Law 280 was
enacted with a “virtual absence of expression of congressional
policy or intent,” Bryan, 426 U.S. at 381, in ICWA Congress
provided considerable structure, content, and intent. The text
and structure of ICWA, coupled with the backdrop against
which ICWA was enacted, persuade us that Congress
intended Public Law 280 states to exercise jurisdiction over
8460 DOE v. MANN
child dependency proceedings and did not intend to differenti-
ate between voluntary and involuntary proceedings for the
purposes of Public Law 280.
[15] ICWA references Public Law 280 in two places, both
of which indicate that Congress intended Public Law 280
states to have jurisdiction over dependency proceedings in
Indian country. First, while § 1911(a) gives tribes in most
states exclusive jurisdiction “over any child custody proceed-
ing involving an Indian child, who resides or is domiciled
within the reservation of such tribe,” Congress limited this
tribal jurisdiction “where such jurisdiction is otherwise vested
in the State by existing Federal law.” In other words, tribes do
not have exclusive jurisdiction over child custody proceedings
in Public Law 280 states.
[16] Second, Congress expressly incorporated Public Law
280 in § 1918(a):
Any Indian tribe which became subject to State juris-
diction pursuant to the provisions of the Act of
August 15, 1953 (67 Stat. 588), as amended by Title
IV of the Act of April 11, 1968 (82 Stat. 73, 78)
[Public Law 280], or pursuant to any other Federal
law, may reassume jurisdiction over child custody
proceedings. Before any Indian tribe may reassume
jurisdiction over Indian child custody proceedings,
such tribe shall present to the Secretary for approval
a petition to reassume such jurisdiction which
includes a suitable plan to exercise such jurisdiction.
Through use of the term “reassume,” Congress manifested its
awareness that Public Law 280 states would continue to exer-
cise jurisdiction over child custody proceedings, both volun-
tary and involuntary. In § 1918, Congress provided tribes in
Public Law 280 states the opportunity to obtain exclusive
jurisdiction by following a detailed procedure. See 25 U.S.C.
§§ 1918(a), (b); 25 C.F.R. § 13.12. Absent an attempt to fol-
DOE v. MANN 8461
low that protocol, however, Public Law 280 states may exer-
cise jurisdiction over child custody proceedings.
Section 1918(a) would make little sense unless § 1911(a)
permits Public Law 280 states to exercise jurisdiction over
child custody proceedings. Section 1918(a) provides a mecha-
nism for the tribes to reassume exclusive jurisdiction. But
unless Public Law 280 states have jurisdiction, there is noth-
ing for tribes to reassume under § 1918. It would be illogical
to give exclusive jurisdiction back to the tribes under
§ 1918(a) if such jurisdiction were not part of the exception
under § 1911(a).
Mary Doe claims that under ICWA, states have jurisdiction
over adoptions and voluntary proceedings, but not over invol-
untary dependency actions. Mary Doe’s efforts to create a dis-
tinction between “involuntary” and “voluntary” proceedings
in order to put her case outside of California’s Public Law
280 jurisdiction are unpersuasive and without statutory sup-
port. As an overall proposition, it is important to note that
both § 1911(a) and § 1918 reference “child custody proceed-
ing” as a unitary concept and do not separate or distinguish
between voluntary and involuntary proceedings.
In addition, “child custody proceeding” is specifically
defined by § 1903(1) to include both voluntary and involun-
tary child custody proceedings:
(1) “child custody proceeding” shall mean and
include—
(i) “foster care placement” which shall
mean any action removing an Indian child
from its parent or Indian custodian for tem-
porary placement in a foster home or insti-
tution or the home of a guardian or
conservator where the parent or Indian cus-
todian cannot have the child returned upon
8462 DOE v. MANN
demand, but where parental rights have not
been terminated;
(ii) “termination of parental rights” which
shall mean any action resulting in the termi-
nation of the parent-child relationship;
(iii) “preadoptive placement” which shall
mean the temporary placement of an Indian
child in a foster home or institution after the
termination of parental rights, but prior to
or in lieu of adoptive placement; and
(iv) “adoptive placement” which shall
mean the permanent placement of an Indian
child for adoption, including any action
resulting in a final decree of adoption.
Such term shall not include a placement based upon
an act which, if committed by an adult, would be
deemed a crime or upon an award, in a divorce pro-
ceeding, of custody to one of the parents.
25 U.S.C. § 1903(1).
Although the definition encompasses voluntary adoption,
which ultimately would result in “termination of parental
rights” and an “adoptive placement,” the sequence of the defi-
nition is, however, clearly aimed at involuntary proceedings.
A “foster care placement” is one “wherein the parent or
Indian custodian cannot have the child returned upon demand,
but where parental rights have not been terminated.” Follow-
ing such a placement, parental rights may be terminated. In
turn, a child would then be placed in a “preadoption place-
ment” and ultimately, although not necessarily, into a perma-
nent “adoptive placement.” The definition of the term “child
custody proceeding” definitely encompasses both voluntary
DOE v. MANN 8463
and involuntary proceedings and contemplates state participa-
tion in dependency proceedings.
The text of ICWA further underscores that Congress distin-
guished voluntary from involuntary child custody proceedings
when it intended the distinction to be meaningful. For
instance, §§ 1912 and 1913 established federal standards that
apply in involuntary and voluntary child custody proceedings
involving Indian children. Section 1912(a) specifically
requires state agencies to give notice to an Indian child’s par-
ent or custodian and tribe when an involuntary proceeding is
pending in state court. 25 U.S.C. § 1912(a) (“In any involun-
tary proceeding in a State court, where the court knows or has
reason to know that an Indian child is involved, the party
seeking the foster care placement of, or termination of paren-
tal rights to, an Indian child shall notify the parent or Indian
custodian and the Indian child’s tribe, . . .”) (emphasis added).
In addition, § 1913 establishes parental rights in voluntary
child custody proceedings involving Indian children. 25
U.S.C. § 1913 (entitled “Parental rights; voluntary termina-
tion) (emphasis added); 25 U.S.C. § 1913(c) (in any voluntary
proceeding for termination of parental rights, a parent may
withdraw consent). Congress made no such distinction
between involuntary and voluntary child custody proceedings
when it employed its general reference to “child custody pro-
ceedings” in §§ 1911(a) and 1918(a).
The maxim that the various provisions of a statute are
affected by other parts of the statutory scheme and that “the
words of a statute must be read in their context and with a
view to their place in the overall statutory scheme,” FDA v.
Brown & Williamson Tobacco Corp., 529 U.S. 120, 132-33
(2000) (internal quotations and citations omitted), is particu-
larly apt here. When the term “child custody proceedings” is
used as it is defined in § 1903 without modification, it refers
to child custody proceedings generally, both voluntary and
involuntary. Only §§ 1912 and 1913 make a distinction; when
Congress wanted to refer to either voluntary or involuntary
8464 DOE v. MANN
proceedings specifically, it so stated. Absent that delineation,
the statute does not differentiate between voluntary and invol-
untary proceedings. See §§ 1911(a) and 1918(a).
This understanding of ICWA is also reflected in the regula-
tions promulgated by the Bureau of Indian Affairs following
ICWA’s enactment. The regulations require tribes attempting
to reassume jurisdiction over child custody proceedings pur-
suant to § 1918 to show the availability of child care services.
25 C.F.R. § 13.12(5). In particular, the child care services
were deemed necessary in cases where a “tribal court finds [a
child] must be removed from parental custody,” id., which
confirms that the Bureau of Indian Affairs anticipated tribal
reassumption of jurisdiction over involuntary proceedings
where Public Law 280 states had assumed jurisdiction.32
[17] In short, the explicit references to Public Law 280 in
ICWA, ICWA’s clear definition of child custody proceedings,
and the statutory structure of ICWA demonstrate that Con-
32
While Mary Doe points out that the same regulations noted that the
jurisdictional status of child custody proceedings was not clear in the late
1970s, this statement in the regulations was limited to the debate over
whether Public Law 280 states have exclusive or concurrent jurisdiction
over child custody proceedings:
On some reservations there are disputes concerning whether cer-
tain federal statutes have subjected Indian child custody proceed-
ings to state jurisdiction or whether any such jurisdiction
conferred on a state is exclusive of tribal jurisdiction. Tribes
located on those reservations may wish to exercise exclusive
jurisdiction or other jurisdiction currently exercised by the state
without the necessity of engaging in protracted litigation. The
procedures in this part also permit such tribes to secure unques-
tioned exclusive, concurrent or partial jurisdiction over Indian
child custody matters without relinquishing their claim that no
Federal statute had ever deprived them of that jurisdiction.
25 C.F.R. § 13.1(b). This question was resolved by our decision in Native
Village of Venetie I, which held that Public Law 280 states have only con-
current jurisdiction with the tribes over child custody proceedings involv-
ing Indian children. 944 F.2d at 559-62.
DOE v. MANN 8465
gress 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 proceed-
ings, 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 knowl-
edge of the existing law.”). Therefore, it cannot go unnoticed
that Congress considered ICWA against the backdrop of man-
datory Public Law 280 states like California33 and non-
mandatory states like Washington and Idaho that had specifi-
cally asserted Public Law 280 jurisdiction over child depen-
dency proceedings prior to the passage of ICWA.34 Had
Congress wanted to divest Public Law 280 states of this juris-
diction, surely it would have done so on the face of ICWA.
33
As a mandatory Public Law 280 state, California did not need specific
state legislation to take jurisdiction over Public Law 280 subjects, includ-
ing 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.”).
8466 DOE v. MANN
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 exclu-
sive jurisdiction over child custody proceedings comports
with our conclusion that both branches were particularly con-
cerned with the tribes’ ability to handle resource-intensive
child custody proceedings. In passing ICWA, Congress recog-
nized that Public Law 280 states should retain, at least ini-
tially, jurisdiction over child dependency proceedings until
the tribes had the capability to reassume exclusive jurisdic-
tion.
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
Justice35 and with amendment of the draft bill.
It is also important to note that throughout the congressio-
nal discussions of ICWA, state-initiated dependency proceed-
ings were a focus of the discussion. The conference report
that accompanied the passage of ICWA demonstrates Con-
gress’s focus on abuses in involuntary child custody proceed-
ings 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
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).
DOE v. MANN 8467
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 proceed-
ings as part of ICWA and noting voluntary proceedings in the
legislative history, the legislative history demonstrates Con-
gress’s strong interest in curbing the abuses of state agencies
and courts in involuntary proceedings. To conclude that Con-
gress, 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 proceed-
ings” generally before inserting the “existing Federal law”
proviso. In drafting the definition of “child custody proceed-
ings” to include involuntary proceedings and in structuring
the legislation so that tribes in Public Law 280 states could
reassume exclusive jurisdiction over these proceedings, Con-
gress 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.
8468 DOE v. MANN
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 invol-
untary child dependency law. 525 P.2d at 222.
Mary Doe urges us to apply the Indian canon of construc-
tion to resolve the dispute in her favor. See Ala. Pac. Fish-
eries 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 speed-
ing 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
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.
 DOE v. MANN 8469
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 exclu-
sive jurisdiction and, in doing so, to include all child custody
proceedings, both voluntary and involuntary.
[18] But Congress was not unmindful of bridging the sov-
ereignty 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 Sec-
retary 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 sover-
eignty 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 peti-
tioned for reassumption of jurisdiction over child custody pro-
ceedings. 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 chil-
dren. Although our decision does not provide relief to Mary
Doe, nothing prevents Mary Doe’s tribe from submitting a
petition to reassume jurisdiction37 and nothing prevents Con-
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 . . .”
8470 DOE v. MANN
gress 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 oppor-
tunity to assert their sovereignty over child custody proceed-
ings.
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 prac-
tice is best described by a benchguide for California judges
prepared by the Law Offices of California Indian Legal Ser-
vices. See generally Mary J. Risling, California Judges’
Benchguide: The Indian Child Welfare Act (2000), available
at http://www.calindian.org/icwa.htm. Because the excerpts
are illuminating, we quote at length.
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).
***
DOE v. MANN 8471
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 pro-
tect. . . .
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 exer-
cise exclusive jurisdiction over an Indian child cus-
tody 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:
8472 DOE v. MANN
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 domi-
ciled 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 cus-
tody 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 rele-
vant documentation to the tribe regarding the
removal and the child’s identity. If the tribe deter-
mines that the child is an Indian child, the state or
local authority shall transfer the child custody pro-
ceeding 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 Wel-
fare 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 con-
tains 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
DOE v. MANN 8473
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 juris-
diction over dependency proceedings involving Indian chil-
dren. 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 jurisdic-
tion 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.
AFFIRMED.