BASIC (05-05)

PR 01320.029 Montana

A. PR 10-086 Vacated Adoption in the State of Montana, NH – Regina S~ – REPLY D~

DATE: April 9, 2010

1. SYLLABUS

A Crow tribal court Nunc Pro Tunc Order vacating an adoption is effective from the date of the hearing at which the presiding judge decided to vacant the adoption. The fact that the order was not issued until nine months after the hearing does not alter the effective date.

2. OPINION

Question Presented

You asked whether the Crow Tribal Court’s Nunc Pro Tunc Order vacating Regina S~’s adoption of Kiomy L~ S~ made the adoption invalid from the date of the original adoption or whether it is null effective only from the date of the order.

Short Answer

The Crow Tribal Court’s Order annuls Regina S~’s March 23, 2004 adoption of Kiomy L. S~ effective April 19, 2006.

Background

According to the information you provided, Kiomy L. S~, a member of the Crow Tribe of Indians, was born April 9, 1999. Her biological mother, Natalie J. C~, is also a member of the Crow Tribe of Indians, and her biological father, Max S~, is a member of the Northern Cheyenne Tribe of Indians.

The numberholder, Regina C. S. H. S~—Plaintiff’s maternal grandmother and a member of the Crow Tribe of Indians—adopted Kiomy L. S~ on March 23, 2004. The Page 2 – Robert J~ numberholder also filed an application for benefits for Kiomy S~ as her daughter, and, in April 2004, benefits were approved and became effective.

Since her adoption, Kiomy S~ resided primarily with her biological mother. The numberholder then applied to have the adoption vacated. After an April 19, 2006 hearing, the Crow Tribal Court issued an “Order to Vacate Adoption (Nunc Pro Tunc),” declaring that “the previous order of this court dated March 23, 2004” was “vacated,” “ordered on the 19th day of April 2006 by the Honorable Judge Dale K~,” but “signed this 9th day of January 2007, nunc pro tunc.

DISCUSSION

The tribal court had exclusive jurisdiction over this matter, because Kiomy S~ was domiciled on the Crow Reservation. See 25 U.S.C. § 1911(a) (“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 . . . .”); see Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36 (1989). According to the tribal court’s order, Kiomy S~, her biological mother, and her adoptive mother were all members of the Crow Tribe of Indians and all were domiciled on the Crow Reservation. Additionally, even if Kiomy S~ lived off the reservation at the time, the tribal court had “presumptive” jurisdiction because she was an Indian child. See Holyfield, 409 U.S. at 36; see also 25 U.S.C. § 1911(b).

Because the tribal court had jurisdiction over this matter, its order is generally entitled to “full faith and credit.” 25 U.S.C. § 1911(d); see also Iowa Mut. Ins. Co. v. LaPante, 480 U.S. 9, 19 (1987) (“Unless a federal court determines that the Tribal Court lacked jurisdiction, . . . proper deference to the tribal court system precludes religitation of issues raised by . . . and resolved in the Tribal Courts.”).1_/

By order signed on January 9, 2007, the Crow Tribal Court “vacated” Regina S~’s March 23, 2004 adoption of Kiomy L. S~. The Tribal Court’s order nullified or cancelled the prior Adoption Order. See Black’s Law Dictionary 1584, 1604 (8th ed. 2004) (defining vacate); see also August 2003 Memo. Because the Tribal Court’s order was nunc pro tunc, however, the effective date of the invalidation is April 19, 2006—and not January 9, 2007, the date the order was signed, nor March 23, 2004, the date of the adoption.

Although the court’s order vacated the March 2004 adoption, this did not make the adoption invalid from the start. There is a difference between an action that is void or void ab initio, as compared to an action that is merely voidable. If the adoption were void ab initio it would be “[n]ull from the beginning, as from the first moment [it was] entered into.” Black’s Law Dictionary 1604. Something that is voidable, however, is valid until annulled. Id. 1605. Here, the tribal court vacated, or cancelled, the adoption, but did not declare that it was void or void ab initio. Thus, it was valid until annulled.

This conclusion is consistent with the POMS. The POMS provide that “[e]ntitlement to a child’s benefit based on a legal adoption will terminate if the adoption is annulled,” and “[t]he effective date of the termination to benefits is the month in which the annulment becomes effective.” Program Operations Manual System (POMS) RS 00203.035.B.3. Here, the tribal court vacated or annulled the adoption effective April 19, 2006.

Further, the Court’s nunc pro tunc order did not make the adoption invalid from the beginning. A nunc pro tunc judgment is a “procedural device by which the record of a judgment is amended to accord with what the judge actually said and did, so that the record will be accurate.” Black’s Law Dictionary 861. As the Ninth Circuit explained, a court does not have “the ability to alter the substance of that which actually transpired or to backdate events to serve some other purpose. Rather, [the use of nunc pro tunc judgments] is limited to making the record reflect what the . . . court actually intended to do at an earlier date, but which it did not sufficiently express or did not accomplish due to some error or inadvertence.” Singh v. Mukasey, 533 F.3d 1103, 1110 (9th Cir. 2008).

Here, the tribal court held a hearing on April 19, 2006, and ordered on that day that the adoption was vacated. However, it appears the presiding judge did not sign a written order to that effect. Another judge signed a written order, but not until January 9, 2007. The nunc pro tunc order served only to make the record reflect what the presiding judge intended on April 19, 2006. Thus, the court’s nunc pro tunc order did not serve to invalidate the adoption retroactive to its creation. That would “alter the substance of that which actually transpired.” See id. Instead, it makes the record reflect what the court “actually intended to do,” which was to enter an order vacating the adoption on April 19, 2006.

CONCLUSION

The Crow Tribal Court “vacated” its previous adoption order nunc pro tunc, effective April 19, 2006. Thus, any legal status created by the March 2004 adoption order no longer exists effective April 19, 2006.

Donna L. C~

Acting Regional Chief Counsel

Region VIII

By:____________

David B~

Assistant Regional Counsel

1_/ In August 2003, we provided legal advice in response to a similar question. See Memorandum from the Regional Chief Counsel, Region VIII, to the Office of the Regional Commissioner, Region VIII, Validity of an Order Vacating an Adoption Pursuant to the Tribal Code of the Northern Cheyenne Reservation, NH-Lloyd Yellowrobe (Aug. 21, 2003) (hereinafter August 2003 Memo). There, we considered the tribal family law and whether the tribal court properly applied that law, but nevertheless concluded that, because the tribal court had jurisdiction, its order was entitled to full faith and credit. Id. Here, we do not have access to the Crow Tribal Law, but because the tribal court had jurisdiction, the result is the same: the court’s order vacating the adoption is generally entitled to full faith and credit. We note that, although SSA is not necessarily bound by a state court order in a proceeding for which SSA was not a party, see Social Security Ruling (SSR) 83-37c, it is not clear as a matter of law and as a matter of policy, whether SSR 83-37c applies equally to tribal court orders given the unique, quasi-sovereign status of Indian tribes. See generally 41 AM. JUR. 2D Indians; Native Americans § 8; LaPlante, 489 U.S. at 14-15. We do not reach that question here because, even if we assume that SSR 83-37c applies, we have identified no reason to question the correctness of the tribal court’s ruling.

B. PR 04-215 Validity of Order Regarding an Adoption, NH-Daniel D~

DATE: April 30,2004

1. SYLLABUS

A court order issued in Montana by the Chippewa Cree Tribal Court setting aside the adoption of the Nh's entitled children is valid and has the effect of annulling the adoptions.

2. OPINION

You have requested an opinion about the validity of a court order issued by the Chippewa Cree Tribe of the Rocky Boy Indian Reservation in Montana, which sets aside an adoption of two children by the number holder. Specifically, you have asked whether

(1) the court had authority to set aside the adoption;

(2) if so, whether the adoptions were void since their initial filing or from the date of the court order vacating them;

(3) whether the order makes the children ineligible for benefits as the adopted children of the number holder under section 202(d) of the Social Security Act (the Act); and,

(4) if so, whether their ineligibility for benefits is as of the date of initial entitlement or from the date of the Chippewa Cree tribal court's order vacating the Decrees of Adoption.

FACTS

The available facts in this case indicate that Daniel D~, an enrolled member of the Chippewa Cree Tribe of the Rocky Boy Indian Reservation in Montana, was married to Yvonne D~, also a member of the Chippewa Cree Tribe. Ms. D~ had two granddaughters, Randee and Blayne D~, who were also both members of the tribe.

At some point, Mr. D~ suffered a stroke. Information in the claims file indicates that on March 14, 2001, Ms. D~ obtained durable power of attorney for Mr. D~. This document authorized Ms. D~ to, among other things, handle all of Mr. D~'s financial and business affairs, "including but not limited to," the receipt of income, the payment of bills, the purchase and sale of property, the handing of financial accounts, and Social Security benefits. See id. The document did not expressly give Ms. D~ authority to adopt children on Mr. D~'s behalf.

On March 16, 2001, only two days after she obtained power of attorney and presumably while Mr. D~ was still recovering from a stroke, Ms. D~ petitioned the Tribal Court to allow her and Mr. D~ to adopt her two granddaughters (Petition for Adoption). The Petition for Adoption contained in the claims file states that Ms. D~ had custody of the children. The petition is signed only "Yvonne D. D~, POA."

The claims file also reflects that on May 15, 2001, the Tribal Court granted the adoptions of Randee and Blayne by Mr. D~ and Ms. D~ (Adoption Decree).

In August of 2001, Mr. D~ became entitled to Disability Insurance Benefits (DIB).

Ms. D~ subsequently became entitled to mother's benefits, and the children became entitled to benefits as Mr. D~'s children.

Soon thereafter, Mr. D~ and Ms. D~'s marriage ended in divorce, finalized by decree on August 27, 2002 (Tribal Court Order, Settlement Out of Court Of On-Going Problems In Identified Referenced Case (hereinafter "Tribal Court Order"), April 29, 2003). The Divorce Decree, also contained in the claims file, asserted jurisdiction over the parties, and dissolved the marriage (Divorce Decree, August 27, 2002). The decree claims that "there [were] no minor children," made no provision for alimony or maintenance, and divided property. See id.

Apparently, several problems developed with regard to the division of property, resulting in various criminal and civil charges being brought by both parties (Tribal Court Order). During this time, Mr. D~ objected to the adoptions, claiming that he was unaware that Ms. D~ had petitioned the court for both him and her to adopt the children (Statement of Claimant or Other Person, June 9, 2003).

On April 27, 2003, Ms. D~ was served with a notice to appear for a hearing before the Tribal Court the following day. She sent a letter to the Tribal Court, requesting that the adoptions be annulled, "not because there was any fraud as alleged previously," but out of a desire to continue "her life in peace" while "leaving the past behind" (Letter from Ms. D~ to the Tribal Court, April 27, 2003). She indicated that she would not be present at the hearing due to a restraining order and asked the Chief Judge to act as an intermediary on her behalf.

On April 29, 2003, without citing any authority, the Tribal Court issued an order declaring the adoptions "null and void" and ordering the Bureau of Vital Statistics to change their records to reflect this (Tribal Court Order).

The Agency suspended the children's benefits in June of 2003, pending an opinion from this office on the effect of the tribal order..

DISCUSSION

Section 202 of the Act provides that every child of an individual entitled to old-age or DIB is entitled to a child's insurance benefit provided that the child (1) files an application for child's benefits; (2) is unmarried at the time the application is filed; (3) is either under age 18 if not enrolled in school or under 19 if enrolled in school, or is disabled before the age of 22; and (4) is dependent on the entitled individual. See 42 U.S.C. § 402(d)(1) 1_/; see also 20 C.F.R. § 404.350.2_/ The definition of "child" includes "the child or legally adopted child of an individual." 3_/ 42 U.S.C. § 416(e)(1) (section 216 of the Act). To determine whether an adoption is legal, the Agency applies "the adoption laws of the State or foreign country where the adoption took place, not the State inheritance laws described in § 404.355." 20 C.F.R. § 404.356. If a child is the grandchild or step grandchild of the insured person, and is legally adopted by the insured person, the child is considered an adopted child. See 20 C.F.R. § 404.358(b).

According to information provided by the field office and documents in the claims file,

Mr. D~, Ms. D~, and both her grandchildren are all members of the tribe. As such, the tribal court had exclusive jurisdiction of this matter, even if the parties did not reside on the reservation. See Fisher v. Dist. Court of the Sixteenth Jud. Dist. of Montana, 424 U.S. 382, 386, 389 (1976), reh'g denied 425 U.S. 926 (1976); see Indian Child Welfare Act (ICWA), 25 U.S.C. § 1911(a) (Indian tribes have exclusive jurisdiction as to any State over any child custody proceeding 4_/ involving an Indian child 5_/ who resides or is domiciled within the reservation of the tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law and the United States, and every State must give full faith and credit to the judicial proceedings of any Indian tribe applicable to Indian child custody proceedings); Law and Order Code of the Chippewa Cree Tribe (Code) Title I, Chapter 2, § 2.2 (1988) (Jurisdiction of the tribal court extends to all civil actions arising in whole or in part within the exterior boundaries of the reservation); see also Code, Title I, Chapter 2, § 2.3 (Civil jurisdiction of the tribal court shall extend to any person within the exterior boundaries of the Rocky Boy's Reservation, and to persons who are parties in causes arising out of contacts with the reservation in matters in which the court has subject matter jurisdiction).

The Code, which does not expressly address vacation or annulment of an adoption, states that "in the absence of Tribal law in civil matters the court may apply laws and regulations of the United States or the State of Montana." See Code, Title I, Chapter 1, § 1.9 (emphasis added). The only Federal law addressing adoption of Indian children limits the time period in which such adoptions can be terminated to two years, unless State law provides otherwise; suggests that only a natural parent can withdraw consent; and requires a finding of fraud or duress. See 25 U.S.C. § 1913(d). Montana permits annulment of an adoption, but requires no specific time limitations for doing such. However, Montana law also disfavors collateral attack of adoptions in the absence of fraud. Cf. In re Adoption of Curtis, 143 Mont. 330, 390 P.2d 209 (1964).

Although the Code granted to the Tribal Court discretionary authority to look to either Federal law or Montana law to decide civil matters, it was not bound to do so. Because the Tribal Court had jurisdiction in this matter, and because there was no binding authority to the contrary, we believe the Tribal Court Order was valid.

CONCLUSION

Accordingly, we advise that:

(1) Under ICWA, 25 U.S.C. § 1911 and the Code, Title I, Chapter 2, §§ 2.2 and 2.3, the tribal court had jurisdiction over the parties and subject matter and therefore had the authority to set aside the adoptions.

(2) As per Program Operations Manual System (POMS) RS 00203.035B.3 which states that "entitlement to a child's benefit based on legal adoption will terminate if the adoption is annulled," and that "the effective date of the termination to benefits is the month in which the annulment becomes effective," the adoptions are void from April 29, 2003, the date of the order.

(3) Randee and Blayne D~ are no longer entitled to benefits under § 202(d) of the Act, as the adopted step grandchildren of Daniel D~ because they are no longer his adopted children as defined in 20 C.F.R. § 404.358(b).

(4) Randee and Blayne D~ were ineligible for benefits as the adopted grandchildren of Daniel D~ effective April 29, 2003, the date of the Chippewa Cree tribal court's Order annulling their adoption.

1_/ All references to the United States Code (U.S.C.) in this opinion are to the 2000 edition.

2_/All references to the Code of Federal Regulations (C.F.R.) in this opinion are to the 2003 edition.

3_/ The Act does not define legal adoption, but enables the Commissioner of Social Security (the Commissioner) to "prescribe such rules and regulations as the Commissioner determines necessary or appropriate to carry out the functions of the Administration." 42 U.S.C. § 902(a)(5).

4_/ "Child custody proceedings" can include "adoptive placement," which is "permanent placement of an Indian child for adoption, including any action resulting in a final decree of adoption." 25 U.S.C. § 1903(1)(iv).

5_/ "Indian child" means any unmarried person under the age of eighteen and is either (a) a member of an Indian tribe or (b) eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe. Id. § 1903(4)


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PR 01320.029 - Montana - 05/11/2010
Batch run: 05/11/2010
Rev:05/11/2010