Matter of Adoption of Riffle , 277 Mont. 388 ( 1996 )

JUSTICE GRAY,

specially concurring.

I concur in the result reached in the Court’s opinion and with much of what is said therein. On the basis of the record before us, however, I disagree with the Court’s conclusion that Jessica is an “Indian child” as defined by the ICWA and its related conclusion that the ICWA applies. I would affirm the District Court on the basis of that court’s determination that Jessica’s adoption by her uncle, John Garlick, is in her best interests.

As the Court correctly observes, the ICWA defines an “Indian child” as “any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” See 25 U.S.C. § 1903(4). I also agree with the Court that a Tribe’s determination that a child is “a member or eligible for membership” is conclusive for purposes of the ICWA.

The Court states that the Tribe officially recognized Jessica as an Indian child and “a member of the Tribe.” I agree that the Tribe stated that Jessica is “an Indian child;” that statement is not conclusive on the District Court, however, because it is a conclusion of law that only the court can make by applying the ICWA definitions to the record before it.

I disagree with the Court’s conclusion that the Tribe’s “recognition” of Jessica as a member of the Tribe meets either definition of an “Indian child” under the ICWA. I do not find of record any statement by the Tribe that Jessica either is a member of, or is eligible for membership in, the Tribe. What the Tribe does say is that Jessica is “recognized as a member during her childhood.” It is my view that the ICWArequires more than this. Thus, while I agree with the Court that the language of the ICWA does not require that the child actually be enrolled as a member, the ICWA does require that the child be a member or eligible for membership. No clear and unequivocal determination to either effect has been made by the Tribe.

Notwithstanding my disagreement with the Court over whether the ICWA applies here, however, I also would affirm the District Court. The District Court determined that it is in Jessica’s best interests to be adopted by her uncle, John Garlick, and there is a surfeit of evidence on the record to support that determination.