Crownpoint Family Court decides that discrimination against Navajos for adoption subsidies does not justify surrender of jurisdiction over a Navajo child to a state court.

IN THE FAMILY COURT OF THE NAVAJO NATION

JUDICIAL DISTRICT OF CROWNPOINT, NAVAJO NATION (NEW MEXICO)

IN THE MATTER OF W.,

A Minor Child. No. CP-AN-37-98

OPINION AND ORDER

This matter comes before the court on the petition of the Navajo Nation for this court to decline to accept jurisdiction over the adoption of a Navajo minor child. For the reasons set forth in this opinion, the petition is denied.

I.

The court considers the allegations of the petition and supporting documentation to be true, although there is a factual discrepancy (discussed below).

W. is a Navajo child. Her natural mother is Navajo, and the mother's whereabouts are unknown. The child's father is Hispanic. The petition states that the child is placed with a Navajo family in Gallup, New Mexico, but a June 29, 1999 memorandum also says that the child is with a family in Hunter's Point, which is in the Arizona portion of the Navajo Nation.

While the Navajo Nation concedes that this court does have jurisdiction over the child under both the Indian Child Welfare Act and Navajo Nation law, it asks the court to decline jurisdiction over the child and surrender it to the State of New Mexico. Supporting documentation explains that Navajo families are having a difficult time getting adoption subsidies administered by the states, and that while a Navajo family prevailed in administrative proceedings on the issue in Arizona, there has not yet been positive movement in the State of New Mexico.

II.

The basic legal problem before the court on the issue of whether to exercise discretion to decline jurisdiction over W. is whether this court should surrender its parens patriae authority.

The Children's Code gives the court limited guidance. The purposes section, at 9 NNC Sec. 1001(A) (1995), instructs the court "to provide for the care, protection and wholesome mental and physical development of children within the provisions of the Children's Code." The Family Court jurisdiction section, at 9 NNC Sec. 1055(D), says that "The Court may decline jurisdiction in appropriate circumstances where a forum with concurrent jurisdiction is exercising its authority." The court could give full faith and credit to a New Mexico adoption decree or other child welfare order or decree where the State court has jurisdiction pursuant to 9 NNC Sec. 1402. However, 9 NNC Sec. 1405 requires the court to make this child a ward of the court where the child is domiciled within Navajo Indian Country and is voluntarily placed outside of Navajo Indian Country. The court has not been advised of the child's domicile, but assumes that it may be within the Navajo Nation.

The Navajo Nation seems to assume that the State of New Mexico has concurrent jurisdiction, but this has not been made clear. The court is not advised of the marital status of the child's parents. Are they married? If so, where was the family domiciled? Are they divorced and does the mother have legal custody? If so, then if the mother's domicile is within the Navajo Nation, that is the child's domicile. It would be irresponsible for this court to surrender jurisdiction over the child unless the concurrent jurisdiction of the State of New Mexico is clear. The court's jurisdiction statute decides the matter, because the court may decline jurisdiction where a forum with concurrent jurisdiction "is" exercising its authority. 9 NNC Sec. 1055(D). There is not proof that a New Mexico court with actual and proper concurrent jurisdiction is in fact currently exercising its authority over this child.

The troublesome problem is that the Navajo Nation seems to be saying that Navajos are being discriminated against for subsidized adoptions, and this court should ratify an act of discrimination by surrendering this child to state authority. The Navajo Nation does not go far enough, and it does not satisfy the court that simply giving in to discrimination is in the child's best interests, given this court's duty to provide for M.'s care, protection and wholesome mental and physical development.

The Navajo Nation did not address whether an adoption decree from this court could be enforced under New Mexico's full faith and credit doctrine. It also did not advise the court on the application or not of provisions of the New Mexico Children's Code for the recognition of this court's decree and treatment services for the child.

The Navajo Nation did not overcome a general presumption, and one found in the Children's Code, that this court should exercise its parens patriae duties toward this child. As a general principle of law, Indian nations have exclusive jurisdiction over the domestic relations of members. United States v. Quiver, 241 U.S. 602 (1916); Fisher v. District Court, 424 U.S. 382 (1976). That creates a presumption that this court has jurisdiction over this case and should exercise it

Finally, the Navajo Nation did not satisfy 9 NNC Sec. 1055(D), which requires a showing of "appropriate circumstances" to decline jurisdiction. There is a factual discrepancy on where the child actually is in the submissions to the court, and the Navajo Nation did not address the alternatives set out above.

The petition to decline jurisdiction over the well-being and best interests of W. is hereby DENIED.

Dated this 21st day of July, 1999

Hon. Sharon M. Johnson, Family Court Judge