In re A.B.

2010 UT 55
This opinion is subject to revision before final
publication in the Pacific Reporter.
IN THE SUPREME COURT OF THE STATE OF UTAH
----oo0oo----
In the matter of the Adoption 	No. 20080211
of A.B. and D.T., persons under
eighteen years of age.
________________________________
Navajo Nation,
Appellant,
v.
F I L E D
State of Utah,
Appellee. 	September 28, 2010
---
Third District Juvenile, Salt Lake
The Honorable Andrew A. Valdez
No. 471329
Attorneys: 	K. Andrew Fitzgerald, Moab, for appellant
Mark L. Shurtleff, Att’y Gen., John M. Peterson,
Carol L. C. Verdoia, Asst. Att’ys Gen., Wesley D.
Hutchins, Salt Lake City, for appellee
Martha M. Pierce, Salt Lake City, for the Office of
the Guardian Ad Litem
---
On Petition for Rehearing*
NEHRING, Justice:
INTRODUCTION
¶1 	This appeal arises from a juvenile court order that
granted the adoption of two children who are both enrolled
members of the Navajo Nation (the “Nation”) by their non-Indian
foster parents. 	The Nation challenges the adoption order and
several other juvenile court orders concerning the children. 	The
* Changes were made in paragraphs 16 and 20; also in footnote 15.

1 See State v. Holland, 921 P.2d 430, 431 (Utah 1996)
(reciting only the facts pertinent to the issues on appeal).
2 As noted above, Ms. Tsosie gave birth to D.T. on
December 28, 2005.
3 There is some confusion as to whether Lorene VanWinkle is
the children’s grandmother or maternal great aunt. 	Because she
self-identifies as the children’s grandmother and the juvenile
court refers to her as the children’s grandmother, we likewise
refer to Lorene VanWinkle as the children’s grandmother.
No. 20080211 	2
Nation, however, failed to comply with an essential procedural
prerequisite to its appeal because its notice of appeal was not
timely filed with the Nation’s signature. 	This failure presents
two jurisdictional issues of first impression: 	first, whether
the Indian Child Welfare Act (“ICWA”) preempts Utah’s notice of
appeal requirements; second, whether Indian tribes, as
quasi-sovereign entities, are exempt from Utah’s notice of appeal
requirements. 	We hold that ICWA does not preempt Utah’s notice
of appeal requirements and that those requirements apply to
Indian tribes. 	Our answers to these questions compel us to
dismiss the Nation’s appeal because we have no jurisdiction over
it.
BACKGROUND
¶2 	A.B. and D.T. were born to Thomasita Tsosie on July 16,
1999, and December 28, 2005, respectively. 	Ms. Tsosie, A.B., and
D.T. are all enrolled members of the Navajo Nation, a federally
recognized Indian tribe. 	Ms. Tsosie also had three other
children: 	A1.B., O.R., and Baby Girl Tsosie. 	Because A1.B.,
O.R., and Baby Girl Tsosie are not at issue in this appeal, we do
not reference them except to the extent that their affairs
provide context for the adoption of A.B. and D.T. 1
I. 	THE ODYSSEY OF THE TSOSIE CHILDREN
¶3 	On September 25, 2005, the Salt Lake City Police
Department contacted the Division of Child and Family Services
(“DCFS”) after a police officer found A.B. and D.T.’s
four-year-old sibling, A1.B., crying alone by a dumpster in Salt
Lake City. 	At the time, Ms. Tsosie was pregnant with D.T. 2 and
resided with A1.B. and O.R. in Salt Lake City. 	A.B. was not in
Ms. Tsosie’s physical custody because he had been living with his
grandmother, Lorene VanWinkle, 3 on a Navajo Nation reservation in
Arizona.

4 As with Lorene VanWinkle, there is confusion as to whether
Laurie VanWinkle is the children’s aunt or cousin. 	Because
Laurie self-identifies as the children’s aunt and the juvenile
court refers to her as the children’s aunt, we likewise refer to
Laurie VanWinkle as the children’s aunt.
3 	No. 20080211
¶4 	At a shelter hearing a few days later, the juvenile
court ordered DCFS to return the children to Ms. Tsosie and to
provide family preservation services to them. 	Two weeks later,
the juvenile court ordered DCFS to contact the Nation “to
determine if the protective supervision service case [could] be
transferred to the tribe.” 	On February 6, 2006, the Nation
informed DCFS that Lorene VanWinkle would be willing to keep A.B.
¶5 	A short time later, Ms. Tsosie was sent to jail after
being found in contempt of court for intentionally failing to
follow the court’s orders that she participate in peer parenting,
maintain contact with the DCFS caseworker, and take domestic
violence classes. 	The juvenile court removed all four children
from Ms. Tsosie’s custody after finding that “continuation in the
home would be contrary to the welfare of the children and removal
[would be] in their best interests.” 	A.B. was allowed to remain
on an extended visit with Lorene VanWinkle in Arizona. 	D.T. was
sent on an extended home visit with her aunt, Thomarita Tsosie,
who failed to pass a DCFS background and federal criminal
background check. 	With the failure of this placement, the court
gave custody of D.T. to another relative, Ermalinda Tsosie. 	One
week later, Ermalinda Tsosie contacted DCFS and requested that
D.T. be removed from her home. 	As a result, D.T. was placed in
the Christmas Box House in Salt Lake City.
¶6 	Shortly thereafter, Lorene and Laurie VanWinkle picked
up D.T. from the Christmas Box House. 	Laurie is Lorene’s
daughter and the children’s aunt. 4 	DCFS continued to provide
protective supervision services to the children. 	Approximately
three months later, the juvenile court granted Laurie VanWinkle
permanent legal custody of A.B. and D.T. and terminated DCFS’s
involvement with the children. 	But after only two weeks, Laurie
VanWinkle informed the court that she wanted to relinquish
custody of the children. 	Laurie VanWinkle requested that the
children stay with their closest relatives in Salt Lake City
until a permanent placement could be made and asked the court to
“do what is best for the children and mother.” 	The court treated
Laurie VanWinkle’s written request as a petition to transfer
custody of the children.
¶7 	On September 26, 2006--one year after DCFS first became
involved with the children--the juvenile court removed A.B. and

No. 20080211 	4
D.T. from Laurie VanWinkle’s custody and placed them in the
interim custody of DCFS. 	The court found that Ms. Tsosie and her
family had been harassing and alienating Laurie VanWinkle and
that continued custody by either Laurie VanWinkle or Ms. Tsosie
would present “a substantial danger to the physical health or
safety of the children.” 	The court also found that DCFS “made
reasonable efforts to prevent out of home care” by providing
protective supervision services, making kinship placements, and
creating a service plan for the mother and the custodian.
¶8 	As required by ICWA, the State sent notice of the
removal and interim custody by DCFS to the Nation. 	Approximately
one week later, Joe Shirley, Jr., President of the Chinle Arizona
chapter of the Nation, sent a letter to the juvenile court that
requested the children be returned to Laurie VanWinkle “[i]n
accordance with [ICWA] and the need to provide a safe and stable
environment for the child[ren].” 	The next day, the court left a
message with the Nation asking whether Mr. Shirley’s letter was
intended to communicate the Nation’s intention to intervene in
the child custody proceedings. 	The State also sent written
notice to the Nation that it had “the right to intervene (be made
a party) in this [child custody] proceeding” and “the right to
request by petition that these proceedings be transferred to the
Tribal Court.” 	The Nation did not intervene at that time.
¶9 	Once in DCFS custody, D.T. was placed in an emergency
foster home, and then transferred to a legal-risk home. 	A.B. was
also placed in an emergency foster home, and then transferred to
two different specialized foster homes. 	On January 31, 2007,
DCFS reported that the children were “doing well in their current
foster care placements,” that “there ha[d] been no visitation
with [Ms. Tsosie]” because she “[would] not make those
arrangements,” and that the permanency goal for the children was
guardianship with relatives. 	DCFS also reported that it had
“been in constant contact with the Navajo Tribe” but the Nation
was “still working on the home study for Lorene VanWinkle.”
¶10 	On April 12, 2007, the juvenile court held a pretrial
hearing regarding the possible termination of Ms. Tsosie’s
parental rights. 	The court considered two letters written by
Lorene VanWinkle that requested custody of the children as well
as the Nation’s request that the court transfer the children to
its jurisdiction and the VanWinkle home. 	The Nation provided a
home study and certification for Lorene VanWinkle. 	During the
hearing, A.B.’s father objected to the children being placed with
the Nation. 	Based on the father’s objection, the juvenile court
declined to give custody to Lorene VanWinkle or the Nation at
that time. 	Instead, the court asked the parties to brief whether

5 (Emphases added.)
5 	No. 20080211
“good cause” existed under ICWA to deny the Nation’s request that
the court transfer jurisdiction over the children to the Navajo
Tribal Court. 	Shortly thereafter, on April 18, 2007, the Nation,
for the first time, moved to intervene in the proceedings
pursuant to ICWA, 25 U.S.C. § 1911(c).
¶11 	On May 18, 2007--nearly eight months after A.B. and
D.T. were removed from Laurie VanWinkle’s home and were placed in
foster care--the juvenile court terminated Ms. Tsosie’s parental
rights to A.B. and D.T. 	The court also determined that D.T.’s
unknown father had abandoned D.T. and terminated his parental
rights. 	The Nation’s attorney was present at the proceedings.
The court first ruled that it had concurrent jurisdiction with
the Navajo Tribal Court because the children resided in Salt Lake
County when the initial pleadings were filed and because Ms.
Tsosie lived in Salt Lake County when the children were placed in
DCFS custody. 	Next, the court found that Ms. Tsosie had
“neglected or abused the children,” and that continued custody by
Ms. Tsosie would likely result in serious emotional or physical
damage to the children. 	The court also found that DCFS “made a
diligent search to locate a placement that [met] the preferences
established within ICWA” and that there was “good cause not to
place the children according to [ICWA] placement preferences,”
including a prior placement of the children within the family on
the reservation, the objection of the father to the transfer of
jurisdiction to the tribe, and the recommendation of the
children’s therapist who opposed moving the children from their
current foster home. 	Finally, the court explained that the
children were “doing well in the adoptive home,” and that DCFS
had made “active efforts” to prevent the breakup of the family as
required by ICWA, but that the active efforts were unsuccessful.
The court’s order contained a “Notice of Appellate Rights” that
stated, in part,
You have the right to appeal any appealable
order, decree or judgment. 	Appeals from
juvenile court orders shall be taken within
15 days from entry of the order, decree or
judgment appealed from. 	If an appeal is
taken, it must be signed by the appellant’s
attorney and by appellant, unless the
appellant is a minor child or state agency.
If an appellant fails to timely sign a notice
of appeal, the appeal shall be dismissed.5

No. 20080211 	6
¶12 	In a separate order, the juvenile court denied the
Nation’s attempt to transfer jurisdiction over the children.
Although ICWA creates a preference for tribal court jurisdiction,
the court found that there was “good cause” under section 1911(b)
of ICWA to deny the transfer of jurisdiction to the Navajo Tribal
Court. 	The juvenile court explained that the Nation waited
nineteen months to file its motion to transfer jurisdiction;
thus, the Nation permitted the proceedings to reach an “advanced
stage” because “the posture of the case was at a parental
deprivation of rights trial, which is often the final proceeding
in such matters, save for an adoption hearing.” 	The court also
noted that “DCFS sent eight different notices to the [Nation] to
alert the [Nation] that the children were in state custody and
subject to the jurisdiction of this court” and that the “Nation
was involved in the case from the beginning, and often
participated in hearings in this [c]ourt by phone. 	As such, the
[c]ourt often took into consideration the [Nation’s] wishes
regarding the children.” 	The Nation did not appeal either order.
¶13 	Approximately five months later, the juvenile court
terminated the parental rights of A.B.’s father. 	The court
reiterated that it had concurrent jurisdiction with the Nation,
that DCFS had made a diligent search to locate a placement that
complied with ICWA, that there was “good cause” not to place the
children according to ICWA preferences, and that DCFS made active
but unsuccessful efforts to prevent the breakup of the family as
required by section 1912(d) of ICWA. 	The court concluded that
adoption was the most appropriate plan for the children.
Although the Nation participated in the proceedings and the
court’s order again contained a “Notice of Appellate Rights,” the
Nation did not appeal.
II. 	THE JUVENILE COURT GRANTS THE NON-INDIAN FOSTER PARENTS’
PETITION FOR ADOPTION
¶14 	On January 11, 2008, A.B. and D.T.’s non-Indian foster
parents filed a Verified Petition for Adoption with the juvenile
court. 	The Nation objected to the petition on the grounds that
DCFS had not followed the placement preferences required by
section 1915 of ICWA.
¶15 	The juvenile court granted the non-Indian foster
parents’ Verified Petition for Adoption on February 21, 2008.
The court’s order echoed its previous orders. 	The court first
ruled that it had concurrent jurisdiction with the Navajo Tribal
Court and was, therefore, a competent forum to hear the adoption
proceedings. 	Next, the court reaffirmed that there was “good
cause” under ICWA section 1911(b) to deny the transfer of

6 See Utah Code Ann. § 78A-6-1109(2) (2008) (“Appeals of
right from juvenile court orders related to . . . adoption
proceedings, shall be taken within 15 days from entry of the
order . . . appealed from. 	In addition, the notice of appeal
must be signed by appellant’s counsel, if any, and by appellant,
unless the appellant is a child or state agency. 	If an appellant
fails to timely sign a notice of appeal, the appeal shall be
dismissed.”); see also Utah R. App. P. 52(a) (“A notice of appeal
from an order in a child welfare proceeding . . . must be field
within 15 days of the entry of the order appealed from.”); Utah
R. App. P. 53(b) (“The notice of appeal must be signed by
appellant’s counsel and by appellant, unless the appellant is a
minor child or state agency.”).
7 	No. 20080211
jurisdiction to the Navajo Tribal Court. 	Similarly, the court
held that there was “good cause” under ICWA section 1915 to place
A.B. and D.T. outside ICWA placement preferences. 	The court also
found that A.B.’s and D.T.’s best interests would be promoted by
the adoption. 	The court explained that A.B. and D.T. had resided
with the non-Indian foster parents for nearly thirteen months and
that the foster parents “have engaged, and have committed to
continue to engage, in numerous efforts to educate [A.B. and
D.T.] regarding their Navajo culture and traditions throughout
their lives.”
¶16 	In response, the Nation sought extraordinary relief
from the rulings of the juvenile court. 	The court of appeals
summarily denied the petition because the Nation was free to file
a direct appeal. 	On March 7, 2008, the Nation filed a direct
appeal from the district court’s adoption decree. 	This was the
first appeal the Nation chose to file since the shelter hearing
was first held in September 2005. 	The Nation’s notice of appeal,
however, did not comply with Utah’s notice of appeal
requirements.
III. 	THE NATION FILES A DEFICIENT NOTICE OF APPEAL
¶17 	Under Utah law, a notice of appeal must be filed within
fifteen days of the order appealed from and must contain the
appellant’s signature. 6 	While the appellant’s signature is
always required, the fifteen-day filing period may be extended if
certain conditions are met. 	If the appellant’s counsel files a
certification of diligent search (for the appellant) with the
unsigned notice of appeal, the appellant is granted an additional
fifteen days to correct the deficiency by filing an amended

7 Utah R. App. P. 53(b) (“Counsel filing a notice of appeal
without appellant’s signature shall contemporaneously file, with
the clerk of the juvenile court, a certification that
substantially complies with the Counsel’s Certification of
Diligent Search form that accompanies these rules. 	An amended
notice of appeal adding appellant’s signature shall be filed
within 15 days of the filing of the notice of appeal or the
appeal shall be dismissed.”).
8 Utah Code Ann. § 78A-6-1109(2).
9 See Utah Code Ann. § 78A-6-1109(2); Utah R. App. P. 52(a),
53(b).
No. 20080211 	8
notice of appeal that contains the appellant’s signature. 7 	If an
appellant fails to file a signed notice of appeal in conformity
with these rules, “the appeal shall be dismissed.” 8
¶18 	In this case, the Nation’s original notice of appeal
was defective. 	Even though it was filed within fifteen days of
the adoption order and signed by the Nation’s counsel, the notice
of appeal did not contain the Nation’s signature. 	And the Nation
did not acquire the additional fifteen days to correct the
deficiency because the Nation’s counsel did not file a
certification of diligent search.
¶19 	Recognizing these errors, a clerk from the court of
appeals sent a letter to the Nation’s counsel explaining that the
notice of appeal was deficient and would be dismissed if a
certification of diligent search was not filed upon receipt of
the letter. 	The Nation’s counsel again failed to file a
certification of diligent search. 	Instead, the Nation waited
until March 24, 2008, to file an amended notice of appeal that
included the signature of its representative. 	Thus, the Nation
failed to “timely sign a notice of appeal” as required by Utah
law. 9
¶20 	On April 8, 2008, the Nation requested a ten-day
extension to file its petition on appeal. 	The court of appeals
granted the Nation’s request. 	But rather than file a petition on
appeal, the Nation challenged the court’s jurisdiction by filing
a “Motion for Summary Reversal Based on Lack of Jurisdiction and
Memorandum of Points and Authorities in Support Thereof.” 	The
court of appeals entered an order that the Nation’s motion was
inappropriate in child welfare cases. 	Nonetheless, the court of
appeals construed the motion as the petition on appeal and
allowed the Nation to file an amended petition on appeal within
ten days of its order. 	The Nation filed its amended petition on

10 See Brown v. Div. of Water Rights, 2010 UT 14, ¶ 13, 228
P.3d 747.
11 See Utah R. Civ. P. 12(h)(2) (“[W]henever it appears by
suggestion of the parties or otherwise that the court lacks
jurisdiction of the subject matter, the court shall dismiss the
action.”); see also K. L. v. C.L. (In re J.J.L.), 2005 UT App
322, ¶ 6, 119 P.3d 315 (per curiam).
12 See Utah Div. of Consumer Prot. v. Flagship Capital, 2005
UT 76, ¶¶ 4-6, 125 P.3d 894; Harmon City, Inc. v. Nielsen &
Senior, 907 P.2d 1162, 1167 (Utah 1995); Hobbs v. Labor Comm’n,
1999 UT App 308, ¶ 7, 991 P.2d 590.
13 Section 78-3a-305(3) has been renumbered to Utah Code
Ann. § 78A-6-304 (2008).
9 	No. 20080211
appeal and the court of appeals ordered the parties to brief the
relevant issues and subsequently certified the appeal to this
court pursuant to section 78A-3-102(3)(b) of the Utah Code and
Utah Rule of Appellate Procedure 43(a).
STANDARD OF REVIEW
¶21 	Whether this court has jurisdiction over an appeal is a
question of law that can be raised for the first time on
appeal. 10 	When this court lacks jurisdiction over an appeal, it
retains only the authority to dismiss the appeal. 11 	Whether
federal law, here ICWA, preempts state law is a question of law
that we review de novo. 12
ANALYSIS
¶22 	In this appeal, the Nation asks us to vacate several of
the juvenile court’s orders involving A.B. and D.T. because the
Nation claims that those orders violate ICWA. 	The Nation makes
four arguments in support of this claim. 	First, the Nation
contends that its tribal courts maintained exclusive jurisdiction
over A.B. and D.T. and that we must, therefore, vacate all orders
entered after A.B. and D.T. were removed from Laurie VanWinkle’s
custody in October 2006. 	Second, the Nation argues that the
juvenile court erred when it exercised jurisdiction over D.T.
because the State did not, prior to the shelter hearing
concerning D.T., file a verified petition to commence proceedings
in a juvenile court alleging that D.T. was abused, neglected, or
dependent as required by Utah Code section 78-3a-305(3) 13 .
Third, the Nation argues that this court must invalidate the
adoption order under section 1914 of ICWA because the juvenile

14 See Utah Code Ann. § 78A-6-1109(2) (2008); Utah R. App.
P. 52(a),f 53(b).
15 Because we dismiss this appeal for lack of jurisdiction,
we do not reach the appellees’ argument that the Nation does not
have standing to appeal the adoption proceeding.
No. 20080211 	10
court violated sections 1911, 1912, 1913, and 1915 of ICWA
throughout its involvement with A.B. and D.T. 	Finally, the
Nation contends that its due process rights were violated at the
adoption proceedings.
¶23 	Before we can turn our attention to these claims, we
must answer the threshold question of whether we have
jurisdiction over this appeal. 	As explained above, the Nation’s
original notice of appeal did not contain the Nation’s signature,
the Nation did not receive the fifteen-day extension to file an
amended notice of appeal because its counsel did not file a
certification of diligent search, and the Nation’s amended notice
of appeal was filed more than fifteen days after the adoption
order was entered. 14
¶24 	Regardless of these shortcomings, the Nation contends
that this court maintains jurisdiction over this appeal. 	The
Nation defends this assertion by claiming that ICWA preempts
Utah’s notice of appeal requirements because section 1914 of ICWA
gives Indian tribes the right to petition state courts at any
time to invalidate any state action that violates ICWA.
Alternatively, the Nation claims it was automatically entitled to
the fifteen-day extension to file an amended notice of appeal
because the rule 53(b) certification of diligent search
requirement cannot apply to quasi-sovereign entities. 	We
disagree with both assertions.
¶25 	We hold that (I) ICWA does not preempt Utah’s notice of
appeal requirements and (II) Utah appellate courts lack
jurisdiction over an appeal, even when the appellant is an Indian
tribe, if the notice of appeal is not filed in strict compliance
with Utah’s notice of appeal requirements. 	Thus, because the
Nation’s notice of appeal was not timely filed with the Nation’s
signature, we dismiss this appeal for lack of jurisdiction. 15
I. 	UTAH’S NOTICE OF APPEAL REQUIREMENTS ARE NOT PREEMPTED BY
ICWA
¶26 	The Nation first argues that Utah’s notice of appeal
requirements are preempted by ICWA. 	We have not addressed this
preemption issue before. 	The United States Supreme Court has

16 See English v. Gen. Elec. Co., 496 U.S. 72, 78-79 (1990);
see also Utah Dep’t of Human Servs. v. Hughes, 2007 UT 30, ¶ 22,
156 P.3d 820. 	Although we only identified two types of federal
preemption in Hughes-–express and implied–-we explained that
implied preemption involves “field preemption” and “conflict
preemption.” 	See Hughes, 2007 UT 30, ¶ 22. 	Thus, we address all
three preemption categories here.
17 In re Adoption of Halloway, 732 P.2d 962, 967 (Utah 1986)
(quoting New Mexico v. Mescalero Apache Tribe, 462 U.S. 324, 334
(1983)).
18 See 25 U.S.C. § 1921 (2006) (“In any case where State or
Federal law applicable to a child custody proceeding under State
or Federal law provides a higher standard of protection to the
rights of the parent or Indian custodian of an Indian child than
the rights provided under this title [25 USCS §§ 1911-1923], the
State or Federal Court shall apply the State or Federal
standard.”).
11 	No. 20080211
recognized three categories of federal preemption: 	(A) express
preemption, (B) field preemption, and (C) conflict preemption. 16
In addition to these traditional categories, when examining an
issue of Indian tribal preemption, we must also balance “the
nature of the competing interests at stake” rather than
“narrow[ly] focus on congressional intent to preempt state law as
the sole touchstone.” 17
¶27 	The Nation contends that section 1914 of ICWA gives an
Indian child’s tribe the right to petition any court of competent
jurisdiction to invalidate any child custody action that violates
sections 1911, 1912, or 1913 of ICWA. 	And because section 1914
itself neither imposes time limits to file such petitions nor
provides that such petitions are subject to state-imposed time
limits, the Nation claims that section 1914 petitions can
presumably be filed at any time. 	The Nation also argues that
under section 1921 of ICWA, state law only applies in child
welfare proceedings involving Indian children if the state law
provides higher standards of protection to Indian tribes than
ICWA. 18 	Thus, the Nation concludes that because section 1914
petitions can presumably be raised at any time, Utah’s notice of
appeal requirements are more restrictive than ICWA and are
therefore preempted and unenforceable.
¶28 	For analytical clarity, we first examine the Nation’s
preemption argument under the three traditional categories of
federal preemption: 	(A) express preemption, (B) field
preemption, and (C) conflict preemption. 	We then balance the

19 Mount Olivet Cemetery Ass’n v. Salt Lake City, 164 F.3d
480, 486 (10th Cir. 1998); see also English, 496 U.S. at 78-79.
20 See Hughes, 2007 UT 30, ¶ 24 (quoting Utah Div. of
Consumer Prot. v. Flagship Capital, 2005 UT 76, ¶ 13, 125 P.3d
894).
21 See 25 U.S.C. § 1911(b) (recognizing the validity of
“[s]tate court proceeding[s] for the foster care placement of, or
termination of parental rights to, an Indian child.”).
22 Flagship Capital, 2005 UT 76, ¶ 12 (“The United States
Supreme Court has found [express] preemption in only two
circumstances: 	certain causes of action under the Labor
Management Relations Act of 1947 and the Employee Retirement
Income Security Act of 1974 (ERISA).” (citations omitted)).
23 Hughes, 2007 UT 30, ¶ 22 (quoting Flagship Capital, 2005
(continued...)
No. 20080211 	12
Nation’s interests under ICWA with Utah’s interest that appeals
from child custody proceedings be dismissed if a signed notice of
appeal is not timely filed by the appellant. 	We conclude that
Utah’s notice of appeal requirements are not preempted by ICWA.
A. 	There Is No Express Preemption of Utah’s Notice of Appeal
Requirements
¶29 	Express preemption occurs “when the language of the
federal statute reveals an express congressional intent to
preempt state law.” 19 	Express preemption cannot occur through
mere silence; it requires an explicit statement “‘delivered in a
clear congressional voice.’” 20
¶30 	ICWA does not contain any explicit statement that
Congress intended ICWA to preempt state rules of appellate
procedure. 	Furthermore, ICWA clearly contemplates that state
courts will adjudicate a number of child custody cases involving
Indian children. 21 	Indeed, this court recently explained that
the United States Supreme Court has found express preemption in
only two circumstances, neither of which involved ICWA. 22
B. 	There Is No Field Preemption of Utah’s Notice of Appeal
Requirements
¶31 	Field preemption occurs “‘when the scope of a statute
indicates that Congress intended federal law to occupy a field
exclusively.’” 23 	The intent of Congress to regulate a field

23 (...continued)
UT 76, ¶ 11).
24 Id. ¶ 26 (alteration in original) (quoting English, 496
U.S. at 79).
25 See, e.g., 25 U.S.C. § 1911(b)-(c) (recognizing the
validity of “[s]tate court proceeding[s] for the foster care
placement of, or termination of parental rights to, an Indian
child not domiciled or residing within the reservation of the
Indian child’s tribe”).
26 Id. § 1902 (emphasis added).
27 See, e.g., In re Adoption of Erin G., 140 P.3d 886, 889-
90 (Alaska 2006) (applying state statutes of limitations in an
appeal from a state child adoption case involving Indian
children); In re Adoption of T.N.F., 781 P.2d 973, 978-79 (Alaska
1989) (concluding that Congress intended for state statutes of
limitations to apply in actions brought under section 1914 of
ICWA); Sonoma Cnty. Human Servs. Dep’t v. Evita H. (In re Brandon
M.), 63 Cal. Rptr. 2d 671, 677 (Cal. Ct. App. 1997) (“[I]t simply
cannot be maintained that the ICWA in any way, manner, shape or
form ‘occupies the field’ of child custody or adoption, even as
to Indian children. . . . ICWA is totally devoid of any
provisions dealing with, e.g., the bases on which a child may be
(continued...)
13 	No. 20080211
exclusively “‘may be inferred from a scheme of federal regulation
. . . so pervasive as to make reasonable the inference that
Congress left no room for the States to supplement it.’” 24
¶32 	ICWA clearly contemplates that state courts will
adjudicate some child welfare cases involving Indian children. 25
In these state court proceedings, Congress intended ICWA to
protect the best interests of Indian children
and to promote the stability and security of
Indian tribes and families by the
establishment of minimum Federal standards
for the removal of Indian children from their
families and the placement of such children
in foster or adoptive homes which will
reflect the unique values of the Indian
culture. 26
These minimum standards do not wholly repudiate state rules of
appellate procedure. 27 	Instead, ICWA’s minimum standards focus

(...continued)
removed from a parent’s custody, when and how often hearings must
be held to review a child’s status, who is entitled to what
reunification services and for how long, or many, many other
similar issues.”); In re J.D.B., 584 N.W.2d 577, 581 (Iowa Ct.
App. 1998) (“[W]e find nothing in ICWA which expressly or
impliedly preempts a state’s error preservation rules.”); A.D.T.
v. State (State ex rel. C.D.), 2008 UT App 477, ¶ 14, 200 P.3d
194 (“So long as the intent of the ICWA is preserved and [its]
core protections are satisfied, the underlying procedural
framework has been left to the states.”).
28 See 25 U.S.C. §§ 1902-15; Miss. Band of Choctaw Indians
v. Holyfield, 490 U.S. 30, 36 (1989).
29 See State ex rel. C.D., 2008 UT App 477, ¶ 14.
30 Hughes, 2007 UT 30, ¶ 25 (internal quotation marks
omitted).
31 See Navajo Nation v. Superior Court, 47 F.Supp. 2d 1233,
1237-38 (E.D. Wash. 1999) (citing Conn. Nat’l Bank v. Germain,
(continued...)
No. 20080211 	14
on core protections: 	requiring transfer of jurisdiction to
Indian tribes in certain situations, providing a right to
counsel, requiring notice of child welfare proceedings to Indian
tribes, invalidating illegal proceedings, imposing foster care
placement preferences, and imposing high standards of proof in
parental termination hearings. 28 	So long as these core
protections are honored and the intent of ICWA is preserved,
states may fashion the underlying procedural framework. 29
Accordingly, whether Utah’s notice of appeal requirements are
preempted by ICWA’s minimum requirements is not a matter of field
preemption.
C. 	There Is No Conflict Preemption of Utah’s Notice of Appeal
Requirements
¶33 	Conflict preemption occurs “where it is
impossible . . . to comply with both state and federal
requirements, or where state law stands as an obstacle to the
accomplishment and execution of the full purposes and objectives
of Congress.” 30 	To determine whether it is impossible to comply
with both ICWA and Utah’s notice of appeal requirements, or
whether Utah’s notice of appeal requirements stand as an obstacle
to accomplishing the full purposes of ICWA, we first look to the
plain language of ICWA. 31 	The Nation argues that under section

31 (...continued)
503 U.S. 249, 254 (1992)) (conducting a plain-language analysis
of ICWA).
32 25 U.S.C. § 1914 (emphasis added).
33 Id.
34 Utah Code Ann. § 78A-6-1109(1).
35 Id. § 78A-6-1109(2); see also Utah R. App. P. 52(a),
53(b).
15 	No. 20080211
1914 of ICWA, it can petition this court at any time to
invalidate the juvenile court’s orders regarding A.B. and D.T.
Section 1914 provides,
Any Indian child who is the subject of any
action for foster care placement or
termination of parental rights under State
law, any parent or Indian custodian from
whose custody such child was removed, and the
Indian child’s tribe may petition any court
of competent jurisdiction to invalidate such
action upon a showing that such action
violated any provision of sections [1911,
1912, and 1913] of this Act. 32
By its plain language, section 1914 does not conflict with Utah’s
notice of appeal requirements. 	Section 1914 gives Indian tribes
the right to appeal state court actions “for foster care
placement or termination of parental rights . . . upon a showing
that such action violated any provision of sections [1911, 1912,
and 1913] of [ICWA].” 33 	Utah law clearly protects that right by
giving intervening Indian tribes the right to appeal “any order,
decree, or judgment of the juvenile court.” 34 	Although Utah law
requires that an appeal “shall be dismissed” if the “appellant
fails to timely sign a notice of appeal,” 35 Utah’s notice of
appeal requirements do not conflict with the basic right to
appeal provided by section 1914. 	Furthermore, nothing in ICWA
indicates that Congress intended that section 1914 petitions be
available without limitation, and ICWA does not contain any rules
of procedure that could be construed to compete with state
appellate rules of procedure. 	Had Congress intended that section
1914 petitions be available at any time, or that state rules of
procedure be subordinate to section 1914 petitions, it could have
so stated. 	But because the plain language of section 1914 only
confers on Indian tribes the right to appeal state court actions

36 25 U.S.C. § 1914.
37 See id. § 1921 (“In any case where State or Federal law
applicable to a child custody proceeding under State or Federal
law provides a higher standard of protection to the rights of the
parent or Indian custodian of an Indian child than the rights
provided under this title [25 USCS §§ 1911-1923], the State or
Federal court shall apply the State or Federal standard.”).
38 Halloway, 732 P.2d at 967 (quoting New Mexico v.
Mescalero Apache Tribe, 462 U.S. 324, 334 (1983)).
No. 20080211 	16
and because Utah law protects that right, we hold that ICWA does
not conflict with Utah’s notice of appeal requirements.
¶34 	We also note that the plain language of section 1914
does not give an Indian tribe the right to appeal adoption
proceedings involving Indian children. 	Rather, the plain
language of section 1914 grants an Indian tribe the right to
petition any court of competent jurisdiction to invalidate any
action “for foster care placement or termination of parental
rights under [s]tate law.” 36 	Notably absent is the right to
appeal adoption proceedings. 	Thus, to the extent that Utah law
gives an Indian tribe a right to appeal child adoption
proceedings, Utah law provides the tribe with greater protections
than ICWA. 	And consistent with section 1921 of ICWA, 37 although
an Indian tribe is entitled to claim the benefit of greater state
protections where they exist, the tribe cannot at the same time
argue that those additional state protections violate ICWA.
Here, the Nation had a right under Utah law to appeal the
juvenile court’s adoption order. 	To take advantage of that
right, the Nation was required to comply with the applicable
state procedural rules. 	The Nation failed to do so, however, and
nothing in ICWA excuses this failure or preempts Utah’s
procedural requirements.
D. 	Utah’s Notice of Appeal Requirements Neither Interfere With
nor Are Incompatible With the Federal and Tribal Interests
Reflected in ICWA
¶35 	Having determined that Utah’s notice of appeal
requirements are not preempted under the three traditional
preemption categories, we finally balance the “nature of the
competing interests at stake.” 38 	Under this analysis, “State
jurisdiction is [preempted] by the operation of federal law if it
interferes or is incompatible with federal and tribal interests

39 Id. at 967-68 (emphasis omitted) (quoting Mescalero
Apache Tribe, 462 U.S. at 334).
40 See 25 U.S.C. § 1902; Halloway, 732 P.2d at 968.
41 See 25 U.S.C. § 1914.
42 See Utah Code Ann. § 78A-6-1109; Utah R. App. P. 52(a),
53(b).
43 See 25 U.S.C. § 1914.
44 See Utah Code Ann. § 78A-6-1109(1); Utah R. App. P.
52(a), 53(b).
45 See State v. C.A. (State ex rel. S.L.), 1999 UT App 390,
(continued...)
17 	No. 20080211
reflected in federal law, unless the state interests at stake are
sufficient to justify the assertion of state authority.” 39
¶36 	As discussed above, ICWA was enacted “to protect the
best interests of Indian children and to promote the stability
and security of Indian tribes and families” by establishing
minimum federal standards that apply in state court actions
involving Indian children. 40 	To ensure that state courts apply
these minimum protections, section 1914 creates a mechanism for
Indian tribes to petition courts of competent jurisdiction to
invalidate state court actions that violate certain provisions of
ICWA. 41
¶37 	Consistent with section 1914, Utah law guarantees
Indian tribes the right to appeal state court proceedings that
involve Indian children. 42 	Moreover, as we have explained, Utah
law actually confers greater protections than ICWA because Utah
law permits an Indian tribe to appeal child adoption proceedings
whereas ICWA only gives an Indian tribe the right to challenge
“foster care placement or termination of parental rights”
actions. 43 	To swiftly and permanently resolve child custody
issues, Utah law requires a notice of appeal to be timely filed
with the appellant’s signature. 44 	To protect the appellant, Utah
Rule of Appellate Procedure 53(b) gives an additional fifteen
days to file an amended notice of appeal if the appellant’s
counsel files a certification of diligent search with the amended
notice. 	These requirements promote Utah’s legitimate interest in
providing, without undue delay, a stable and permanent adoptive
home to children who might otherwise linger indefinitely in
foster care. 45 	These requirements are not onerous and place no

45 (...continued)
¶ 42, 995 P.2d 17 (“[The] overarching purpose [of Utah’s child
welfare laws] is to provide stability and permanency for abused
and neglected children, and to end the ‘legal limbo’ of state
custody as quickly as possible. 	To that end, the Legislature has
crafted specific time lines . . . to prevent a child from
languishing indefinitely in foster care.” (third alteration in
original) (internal quotation marks omitted)).
46 25 U.S.C. § 1902.
No. 20080211 	18
additional burdens on Indian tribes. 	Although failure to comply
with the requirements may have harsh consequences, those
consequences do not unfairly target Indian tribes or deprive them
of their interests more than any other party. 	Finally, Utah’s
interest in the swift resolution of child custody cases is
consistent with Congress’s intention that ICWA “protect the best
interests of Indian children and . . . promote the stability and
security of Indian tribes and families.” 46 	Accordingly, we hold
that Utah’s notice of appeal requirements are not preempted by
ICWA.
II. 	WE LACK JURISDICTION OVER THIS APPEAL BECAUSE THE NAVAJO
NATION DID NOT FILE ITS NOTICE OF APPEAL IN ACCORDANCE WITH
UTAH’S NOTICE OF APPEAL REQUIREMENTS
¶38 	Having concluded that ICWA does not preempt Utah’s
notice of appeal requirements, we next address whether Indian
tribes are exempt from those requirements in light of their
unique status as quasi-sovereign entities.
¶39 	The Nation contends that its failure to timely file a
signed notice of appeal does not divest this court of
jurisdiction to hear this appeal. 	The Nation reasons that it was
automatically entitled to the fifteen-day extension to file a
signed notice of appeal under rule 53(b) when it filed “the
original notice of appeal with a signature line for the Nation,
but without [its] signature” because a certification of diligent
search cannot be required when the appellant is a sovereign
entity.
¶40 	The Nation cites no authority for its position.
Rather, it contends that the certification of diligent search “is
unnecessary when the appellant is a sovereign entity” because the
certification form itself only evidences “counsel’s efforts to
locate a client who has indicated a desire to appeal but has
failed to maintain contact with their attorney during the
process.” 	The Nation claims that it had already determined to

47 See Utah Code Ann. §§ 78A-6-1109 (3)-(4) (2008).
48 J.R. v. State (State ex rel. D.E.), 2006 UT App 391, ¶ 6
n.1, 147 P.3d 462 (per curiam).
19 	No. 20080211
appeal the adoption order and had signed a notice of appeal, but
the notice of appeal was misplaced and the Nation’s
representative was temporarily unavailable during the fifteen-day
filing period. 	The Nation concludes that its counsel was not
required to file the certification of diligent search because its
“representative had not lagged in its duty to keep in contact
with its counsel . . . and was not going to disappear during the
process.” 	We disagree.
¶41 	Indian tribes are not relieved from Utah’s clearly
stated notice of appeal requirements. 	Rule 53(b) only excludes
“a minor child or state agency” from the signature requirement;
the Nation concedes it is neither. 	Furthermore, Utah’s notice of
appeal requirements comport with ICWA’s minimum requirements and
even surpass those minimum requirements by providing Indian
tribes with a right to appeal child adoption proceedings. 	In
addition, Utah’s notice of appeal requirements promote Utah’s
legitimate interests by ensuring that Indian tribes intend to
meaningfully participate in appeals from child welfare
proceedings. 47 	As the court of appeals has noted “If counsel
could, at any time and for any reason, file an incomplete notice
of appeal and thereby receive an extension, the specified time
period for appeal would be completely circumvented and made
ineffectual.” 48 	We find this reasoning equally applicable to
Indian tribes: 	the Nation’s quasi-sovereign status does not
permit it to circumvent Utah’s clearly stated notice of appeal
requirements.
¶42 	We also note that the Nation chose to wait until the
final hour--in this case, the adoption proceedings--to appeal.
The Nation could have appealed several orders involving A.B. and
D.T., including the order removing A.B. and D.T. from the
VanWinkle home, the order terminating the parental rights of Ms.
Tsosie and D.T.’s father, the order denying the Nation’s motion
for transfer of jurisdiction over the children, and the order
terminating the parental rights of A.B.’s father. 	Instead, the
Nation waited nearly two-and-one-half years to appeal. 	This is
precisely the type of behavior that the Utah notice of appeal
requirements are intended to prevent and is similar to the

49 According to the BIA guidelines,
[a]lthough [ICWA] does not explicitly require
transfer petitions to be timely, it does
authorize the court to refuse to transfer a
case for good cause. 	When a party who could
have petitioned earlier waits until the case
is almost complete to ask that it be
transferred to another court and retried,
good cause exists to deny the request.
Timeliness is a proven weapon of the
courts against disruption caused by
negligence or obstructionist tactics on the
part of counsel. 	If a transfer petition must
be honored at any point before judgment, a
party could wait to see how the trial is
going in state court and then obtain another
trial if it appears the other side will win.
Delaying a transfer request could be used as
a tactic to wear down the other side by
requiring the case to be tried twice. 	[ICWA]
was not intended to authorize such tactics
and the “good cause” provision is ample
authority for the court to prevent them.
Bureau of Indian Affairs Guidelines for State Courts; Indian
Child Custody Proceedings, 44 Fed. Reg. 67,584, 67,590 (Nov. 26,
1979) (emphases added). 	Although the BIA Guidelines “are not
intended to have binding legislative effect,” we include them
here because they “represent the interpretation of the Interior
Department” and are intended to “help assure that rights
guaranteed by [ICWA] are protected when state courts decide
Indian child custody matters.” 	Id. at 67,584.
50 See Utah Code Ann. § 78A-6-1109(2)(“If an appellant fails
to timely sign a notice of appeal, the appeal shall be
dismissed.” (emphasis added)); Utah R. App. P. 52(a), 53(b) (“An
amended notice of appeal adding appellant’s signature shall be
filed within 15 days of the filing of the notice of appeal or the
appeal shall be dismissed.” (emphasis added)); see also State ex
rel. D.E., 2006 UT App 391, ¶¶ 1-7 (dismissing the appeal of an
order terminating appellant’s parental rights for lack of
(continued...)
No. 20080211 	20
behavior that constitutes “good cause” to deny a transfer of
jurisdiction to an Indian tribe under the BIA Guidelines. 49
¶43 	Accordingly, because the Nation did not file its notice
of appeal in conformity with Utah’s notice of appeal
requirements, we are required to dismiss this appeal for lack of
jurisdiction. 50

(...continued)
jurisdiction because the appellant did not sign the original
notice of appeal, appellant’s counsel did not file a
certification of diligent search with the notice of appeal, and
the amended notice of appeal was filed twenty days after the
juvenile court’s order was entered); K.L. v. C.L. (In re J.J.L.),
2005 UT App 322-6, 119 P.3d 315 (per curiam) (dismissing for lack
of jurisdiction where “[t]he original notice of appeal, signed
only by counsel, was untimely under rule 52 and was not
accompanied by the certificate of diligent search required by
rule 53”); C.F. v. State (State ex rel. A.M.), 2005 UT App 2, ¶¶
5-7, 106 P.3d 193 (per curiam) (dismissing for lack of
jurisdiction where the notice of appeal was filed more than
fifteen days after the trial court’s permanency order).
51 Because the juvenile court has granted the non-Indian
foster parents’ petition for adoption, we refer to them as the
adoptive parents in this section.
52 Utah R. App. P. 33(a).
53 Utah R. App. P. 33(b).
54 Id.
21 	No. 20080211
III. 	THE NON-INDIAN FOSTER/ADOPTIVE PARENTS ARE NOT ENTITLED TO
ATTORNEY FEES OR COSTS BECAUSE THE NAVAJO NATION’S APPEAL IS
NEITHER FRIVOLOUS NOR FOR DELAY
¶44 	The Adoptive Parents 51 contend that the Nation’s appeal
justifies an award of attorney fees and costs consistent with
rule 33 of the Utah Rule of Appellate Procedure. 	Under rule 33,
this court “shall award just damages, which may include single or
double costs . . . and/or reasonable attorney fees, to the
prevailing party” if we determine that an appeal “is either
frivolous or for delay.” 52 	An appeal is frivolous if it “is not
grounded in fact, not warranted by existing law, or not based on
a good faith argument to extend, modify, or reverse existing
law.” 53 	An appeal is “interposed for the purpose of delay” if it
is “interposed for any improper purpose such as to harass, cause
needless increase in the cost of litigation, or gain time that
will benefit only the party filing the appeal.” 54
¶45 	The Adoptive Parents argue that the Nation’s track
record before the juvenile court and on appeal

No. 20080211 	22
has been one of delay, failure to follow
proper rules and procedures, and the
submission of frivolous arguments in an
ill-fated too-little-too-late effort to
challenge the placement of the Minor Children
into DCFS foster care and their successful
adoption into a stable and loving home.
The Adoptive Parents also argue that this appeal and other
attempts to challenge these proceedings “are not grounded in
fact, are not warranted by existing law, or based on a good faith
argument to extend, modify, or reverse existing law.”
¶46 	The Nation counters that tribal sovereign immunity bars
an award of attorney fees. 	The Nation also argues that this
appeal is not frivolous because it “is grounded in fact,
warranted and supported by existing law, and is based in good
faith.” 	The Nation explains that the decision in this case is
important because case law on ICWA that pertains to the
circumstances presented on appeal is lacking and because “[a]ll
of the parties indicated a request for oral argument and
published opinion” should this court reach the merits of the
case. 	The Nation also argues that its brief “puts forth several
justiciable questions and contains extensive legal citation and
analysis of the law intertwined with the facts of this case.” 	As
support that the appeal was not intended to cause delay, the
Nation explains that “[w]hen a Navajo child is removed from its
parent and placed into DCFS care, the Nation’s policy is not to
immediately intervene and request jurisdiction of the case”
because “[i]mmediate intervention and removal of the child to
tribal land would interfere with any hope of reunification of the
child with the parent.” 	The Nation also posits that its efforts
“to preserve Indian families” are “similar to the purpose of
ICWA.”
¶47 	We need not address the issue of tribal sovereign
immunity. 	Rather, we hold that the Nation’s appeal is neither
frivolous nor interposed for the purpose of delay. 	First, this
appeal is not frivolous. 	As the Nation correctly notes, there is
little case law that pertains to the issues on appeal. 	Indeed,
this appeal presents two issues of first impression related to
this court’s jurisdiction. 	Furthermore, the Nation made a good
faith argument with proper legal citations to extend or modify
existing law related to ICWA. 	Second, there is no evidence that
the purpose of this appeal was to harass the appellees,
needlessly increase the costs of litigation, or gain time to
benefit the Nation. 	Rather, the Nation contends that it delayed
intervention and appeal in this case in order to avoid
interfering “with any hope of reunification of the child with the

23 	No. 20080211
parent.” 	Although the wisdom of this course of action is
debatable, we cannot say that it was pursued for delay. 	We
therefore deny the Adoptive Parents’ request for attorney fees
and costs under rule 33.
CONCLUSION
¶48 	We hold that Utah’s notice of appeal requirements are
not preempted by ICWA and that those requirements apply to Indian
tribes. 	Because the Nation did not timely file a notice of
appeal that contained its signature, we are required to dismiss
this appeal for lack of jurisdiction. 	We also deny the Adoptive
Parents’ request for attorney fees and costs.
---
¶49 	Chief Justice Durham, Associate Chief Justice Durrant,
and Justice Parrish concur in Justice Nehring’s opinion.
¶50 	Justice Wilkins sat for oral argument. 	Due to his
retirement from this court, however, he does not participate in
this opinion.