“No-Waiver Veto”: The Supreme Court of Montana Affirms an Absolute Parental Veto over ICWA Transfer Requests

Introduction

In Matter of J.B., YINC, 2025 MT 170 (DA 24-0516), the Supreme Court of Montana addressed three pivotal questions:

1. Whether an absent non-Indian father’s written objection barred transfer of an Indian Child Welfare Act (ICWA) proceeding to tribal court.
2. Whether the mother received constitutionally adequate assistance of counsel.
3. Whether termination of the mother’s parental rights complied with state law and ICWA’s heightened standards.

Although the factual record is long and complex, the Court’s most significant doctrinal contribution is its unequivocal holding that either parent’s objection—without more—operates as an unwaivable veto on transfer under 25 U.S.C. § 1911(b). An objecting parent’s failure to attend the hearing, to argue, or to furnish evidentiary support does not constitute waiver, withdrawal, or forfeiture of that objection. The Court thus clarified Montana practice and aligned state jurisprudence with the prevailing national view.

Summary of the Judgment

• Transfer to Tribal Court. The district court properly denied the Fort Belknap Indian Community’s motion to transfer because the father had filed a written objection. Section 1911(b) and parallel regulations leave no discretion once a parent objects.
• Ineffective Assistance of Counsel (IAC). The mother failed to establish deficient performance or prejudice. Her own prolonged non-communication prevented counsel from mounting a defense, and counsel’s advocacy—when the mother was reachable—was deemed competent.
• Termination of Parental Rights. The district court’s findings satisfied § 41-3-609, MCA, and ICWA § 1912(d)–(f). Evidence beyond a reasonable doubt showed (i) active efforts, (ii) parental non-compliance, (iii) likely serious harm if custody were returned, and (iv) the child’s best interests.
• Disposition. Affirmed in all respects.

Analysis

1. Precedents Cited

The Court anchored its reasoning in a tight web of federal and state authorities:

• Statutory: 25 U.S.C. § 1911(b); 25 U.S.C. § 1912(d)–(f); 25 C.F.R. § 23.117; § 41-3-1310(5), MCA; § 41-3-609, MCA.
• U.S. Supreme Court: Haaland v. Brackeen, 599 U.S. 255 (2023) (describing ICWA’s structure and purpose).
• Montana Cases:
  • In re D.L.L., 2025 MT 98 – abuse-of-discretion standard; ICWA “active efforts.”
  • In re L.D., 2018 MT 60 – fundamental “best interest of the tribe” presumption.
  • In re Z.N.-M., 2023 MT 202 – IAC framework in dependency cases.
  • In re B.J.J., 2019 MT 129 – parent’s non-contact defeats IAC claim.
• Sister-State Authority endorsing the absolute veto: In re Larissa G. (Cal.), In re S.F. (Okla.), In re D.A.C. (Utah), In re S.Z. (S.D.).
• Legislative History: House Report 95-1386 (1978).

By canvassing out-of-state decisions, the Court reinforced that the “parental veto” rule is the nationwide majority position, thereby erasing any lingering uncertainty within Montana.

2. Legal Reasoning

a) Transfer Issue

The statutory text—“absent objection by either parent”—is plain. The Court rejected the mother’s waiver theory for three reasons:

1. Textualism. Neither § 1911(b) nor § 23.117 conditions the veto on appearance or argument; a formal objection suffices.
2. Uniform Interpretation. Every cited jurisdiction recognizes an “absolute veto.” Consistency promotes nationwide ICWA uniformity.
3. Separation of Powers. Courts cannot dilute express congressional language under equitable or “best interest” concepts.

b) Ineffective Assistance

Applying the two-part Z.N.-M. test (training/experience + advocacy), the Court held:

• Counsel’s pedigree was uncontested.
• The mother’s chronic absence crippled counsel’s ability to advocate; the doctrine of self-created impediment from B.J.J. controlled.
• No prejudice was shown, as termination rested on overwhelming evidence independent of any alleged missteps.

c) Termination Findings

The Court itemized the statutory elements and mapped evidence to each:

3. Impact of the Decision

• Clarifies Montana Procedure. Trial courts now have definitive guidance: if either parent lodges any objection to transfer—even in writing and even if later silent—the state court must retain jurisdiction.
• Limits Strategic Forum-Shifting. Litigants cannot undermine ongoing state proceedings by belatedly advocating tribal transfer unless both parents affirmatively consent.
• Resource Allocation. State agencies can confidently invest in long-term placements without fear of mid-stream jurisdictional reversal, knowing a single parental veto is dispositive.
• ICWA Uniformity. Montana joins the mainstream, reducing intercourt conflict and fostering predictable, nationally consistent outcomes.
• Attorney Conduct. Reinforces that parental engagement is a prerequisite for effective representation; non-contact cannot later be weaponized as IAC.

Complex Concepts Simplified

Indian Child Welfare Act (ICWA)

Federal law (1978) meant to curb state-level over-removal of Indian children. It injects higher evidentiary burdens (“active efforts,” “beyond a reasonable doubt”) and tribal-court transfer rights.

§ 1911(b) Transfer

When an Indian child lives off-reservation, state and tribal courts share authority. Either parent or the tribe may request transfer to tribal court—but either parent may veto it.

Active Efforts vs. Reasonable Efforts

“Active” means more than passive referrals; the state must proactively help the family access culturally appropriate services.

Qualified Expert Witness (QEW)

An expert—often designated by the tribe—who can testify about tribal child-rearing, the likelihood of harm, and whether active efforts were adequate.

Youth in Need of Care (YINC)

Montana designation akin to “dependent child,” triggering protective jurisdiction.

Conclusion

Matter of J.B. cements a clear, bright-line rule: an objecting parent’s silence or non-appearance does not nullify their veto of an ICWA transfer. The opinion harmonizes Montana law with the dominant national interpretation, provides much-needed certainty for courts and agencies, and underscores parents’ duty to engage if they wish to preserve their rights. Equally significant, the Court reaffirmed rigorous application of ICWA’s “active efforts” and “serious harm” safeguards while illustrating that termination remains appropriate when those safeguards are satisfied and parental change is unlikely. The decision will guide future dependency practitioners, tribal advocates, and judges confronting the delicate interplay between state process and tribal sovereignty.