The opinion of the court was delivered by: Jeffrey L. VIKEN United States District Judge
ORDER REJECTING REPORT AND RECOMMENDATION AND DISMISSING INDICTMENT
On July 6, 2011, defendant Francisco Lopez was indicted for failure to pay legal child support. (Docket 1). On February 27, 2012, defendant filed a motion to dismiss the indictment. (Docket 28). Mr. Lopez claims the prosecution is based on "an invalid state order that was premised on Tribal Court adoption proceedings which were illegally and improperly held as the Tribal Court . . . lacked any jurisdiction to enter an adoption order." Id. The government resists defendant's motion. (Docket 34) (sealed). Pursuant to 28 U.S.C. § 636(b)(1)(B), the court referred Mr. Lopez's motion to Magistrate Judge Veronica L. Duffy. On July 10, 2012, Magistrate Judge Duffy issued a report and recommendation. (Docket 48). The magistrate judge recommended denying defendant's motion. Id. Defendant timely filed objections to the report and recommendation. (Docket 51). The court reviews de novo those portions of the report and recommendation which are the subject of objections. Thompson v. Nix, 897 F.2d 356, 357-58 (8th Cir. 1990); 28 U.S.C. § 636(b)(1). The court may then "accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). For the reasons stated below, the report and recommendation is rejected in whole.
The court makes the following limited findings of fact drawn from the clearly undisputed submissions of the parties.
Francisco Lopez is a resident alien from Mexico. In December 1993, he was living with his girlfriend Francine Joyce Guevara, a/k/a Francine J. Bettelyoun, in Rapid City, South Dakota. Ms. Guevara is an American Indian and an enrolled member of the Oglala Sioux Tribe ("OST"). Ms. Guevara and Mr. Lopez never married and have no children together.
On December 23, 1993, Ms. Guevara's sister, Carla T. Kocer, gave birth to a baby boy, J.R.B. Because of a change in the child's last name in the adoption proceedings, the child will be referred to as "J.R.L." (Docket 29-4). Other children of Ms. Kocer had been removed from her care by the Department of Social Services. She asked her sister Francine to adopt J.R.L. immediately to avoid having him taken into state custody. Ms. Guevara agreed and asked Mr. Lopez to sign an adoption petition in OST Tribal Court to help her keep the baby from being taken by state authorities. Mr. Lopez could not read English and relied on what Ms. Guevara explained to him about the adoption process.
On December 29, 1993, Ms. Guevara and Mr. Lopez traveled to Pine Ridge, South Dakota, to appear in OST Tribal Court for an adoption hearing. On that day Mr. Lopez signed a petition for adoption in the Tribal Court before a tribal court judge. (Docket 29-3). The petition for adoption makes no mention of the biological father's name or whether the biological father was unknown. Id.
Section 53 of Chapter 3, Domestic Relations, of the OST Law and Order Code controls the adoption of an Indian child in OST Tribal Court. "The Oglala Sioux Tribal Court is vested with jurisdiction to hear, try and determine all matters arising under the provisions of this Chapter [relating to the adoption of a minor]." Oglala Sioux Tribe: Law and Order Code, Chapter 3, Section 53.5 (hereinafter the "Law and Order Code, Chapter ____, Section ____"). The Juvenile Code section of the Law and Order Code also addresses the OST Tribal Court's authority over the adoption of Native American children.
The Oglala Sioux Tribal Court shall have jurisdiction in any adoption proceeding involving an Indian child or adoptive Indian parent . . . who is a member of the Oglala Sioux Tribe and maintains sufficient contracts therewith . . . .
Id. at Chapter 5, Juvenile Code, Subchapter VIII, Adoption, Section 8.01. The Juvenile Code also mandates that "[t]here shall be no adoption of Oglala Sioux Indian children by non-Indians." Id. at Section 8.04.
Chapter 3, Section 53.3, directs when the consent of parents is necessary for an adoption:
A legitimate child cannot be adopted without the consent of the parents if living, nor an illegitimate child without the consent of its mother, if living, provided that in the following cases, consent shall not be necessary:
(1) From a parent who has been adjudged guilty of adultery or who has been convicted of any other [offense] punishable by imprisonment in the penitentiary for a period not less than one (1) year, or for an offense involving moral turpitude.
(2) From any parent who has abandoned his or her child for the period of one (1) year.
(3) From any parent who has been adjudged by a Court o[f] competent jurisdiction to be a habitual drunkard.
(4) From any parent who has been judicially deprived of the custody of the child, provided any such adjudication shall be final on appeal to the Court of last record or ...