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
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
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..
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
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.
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
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)