Adoption – Subject Matter Jurisdiction – ICWA – Tribal Court Order

Even though the Cheyenne River Sioux Tribal Court in South Dakota originally exercised jurisdiction over two Cheyenne children and placed them in the custody of their appellant-aunt, since (1) the aunt sought and obtained guardians for the children from the courts of North Carolina, (2) the children have lived most of their lives in North Carolina and were not residents of or domiciled in an Indian reservation, and (3) the children were not wards of the tribal court in that the tribe did not provide them with protections or necessities, the North Carolina trial court could exercise jurisdiction over petitioners’ petition to adopt the children.

We affirm the adoption order.

25 U.S.C. § 1911(a) of the Indian Child Welfare Act (ICWA) grants tribal courts exclusive jurisdiction over child custody proceedings in three instances: (1) over an Indian child who resides within the reservation; (2) over an Indian child domiciled within the reservation; and (3) over an Indian child who is a ward of the tribal court. Here, the children did not reside on the reservation and were not domiciled therein at the time this matter arose, so the only way the tribal court could have exclusive jurisdiction over this matter is if the children were its wards.

ICWA does not instruct as to who should make a finding regarding a child’s status as a tribal court’s ward, and North Carolina does not use the term “ward” in the context of adoptions. Black’s Law Dictionary defines “ward of the state” as “someone who is housed by, and receives protection and necessities from, the government.” For purposes of ICWA, we adopt this definition for the term “Tribal Court Ward.” Applying this definition to the relevant provision of ICWA, once a child has stopped being housed by or provided protections and necessities from the tribe, she will cease being its ward for purposes of 25 U.S.C. § 1911(a).

In 2012, the Cheyenne River Sioux Tribe placed the children in the care of their aunt. There is no evidence that the tribe housed the children or provided them protections or necessities thereafter.

In fact, the aunt sought and obtained guardians for the children from the courts of North Carolina. Having lived most of their life outside the tribe’s reservation and without provision of protections and necessities therefrom, the children were not wards of the tribal court. The tribal court cannot assert exclusive jurisdiction over this matter under 25 U.S.C. § 1911(a).

The aunt attempted to introduce into evidence a tribal court order declaring it had jurisdiction over the children. However, under the Uniform Enforcement of Foreign Judgments Act (UEFJA), to domesticate a foreign judgment, the party seeking to enforce the judgment must file a properly authenticated foreign judgment with the office of the clerk of superior court in any North Carolina county along with an affidavit attesting to the fact that the foreign judgment is both final and unsatisfied in whole or in part and setting forth the amount remaining to be paid on the judgment. Here, no such filing was made with any North Carolina court—including ours—and the only copy of the tribal court’s purported order we have is the unauthenticated copy included in the record as part of the “Proposed Intervenor’s Exhibits for June 15, 2016 District Court hearing[.]”

We hold the district court did not err in excluding the tribal court’s purported “Order of Jurisdiction,” which was not presented as a properly authenticated document. To the extent a hearing was conducted in the tribal court, it did not comply with the basic tenants of our Due Process jurisprudence because no party besides the aunt – including the children’s guardian ad litem – was given notice of the proceeding or an opportunity to be heard. 

In re K.L.J. (Lawyers Weekly No. 011-183-19, 11 pp.) (John Tyson, J.) (John Arrowood, J., concurring in the result only without separate opinion) Appealed from New Hanover County District Court (Melinda Crouch, J.) On remand from the Supreme Court. Michael Harrell for appellant; Bobby Mills for appellees LeeAnne Quattrucci for guardian ad litem. N.C. App.