MEMORANDUM**

Ellis Keyes appeals pro se the district court's dismissal of his action in which he alleged that his constitutional rights were violated when his daughter, Bettye, was placed in foster care. The district court found that it lacked subject matter jurisdiction under the Indian Child Welfare Act of 1978 ("ICWA"), 25 U.S.C. Secs. 1901-1963, and that Keyes had failed to state a claim under 42 U.S.C. Sec. 1983. We have jurisdiction under 28 U.S.C. Sec. 1291. We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir.1989), cert. denied, 110 S.Ct. 3217 (1990), and affirm.

Keyes contends that the district court had subject matter jurisdiction under the ICWA because Bettye is an enrolled member of the Houma Indian tribe. The ICWA 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.

25 U.S.C. Sec. 1914. Indian tribe is defined as "any Indian tribe, band, nation, or other organized group or community of Indians recognized as eligible for the services provided to Indians by the Secretary because of their status as Indians." 25 U.S.C. Sec. 1903(8).

At the time Keyes filed this action in district court, the Houma tribe was not on the list of tribes which were recognized as eligible for services. 53 Fed.Reg. 52,829-32 (1988). Further, Keyes is not himself a member of the Houma tribe, and no representative of the tribe joined in Keyes's action. Accordingly, the district court correctly found that it lacked jurisdiction under the ICWA.

Keyes also filed a complaint for damages under 42 U.S.C. Sec. 1983 against the state of California, the city and county of San Francisco, social worker Angus MacFarlane, and Huckleberry House, a private child care institution. The action against the state of California is barred by the eleventh amendment because California has not waived its immunity with regard to this type of case. Atascadero State Hosp. v. Scanlon, 473 U.S. 234, 241 (1985). As to the city and county of San Francisco, Keyes failed to allege a policy or practice of constitutional violations, as required under Monell v. Department of Social Servs., 436 U.S. 658, 690-91 (1978).

The claim against MacFarlane was correctly dismissed because social workers have absolute immunity in preparing for and determining when to institute dependancy proceedings. Meyers v. Contra Costa County Dep't of Social Servs., 812 F.2d 1154, 1157 (9th Cir.), cert. denied, 484 U.S. 829 (1987).

Finally, Huckleberry House is a private child care institution. A private institution does not act under color of state law unless there is a sufficiently close nexus between the state and the action of the entity so that the action of the latter may be fairly treated as that of the state itself, the state has exercised coercive power or provided significant encouragement, or the private entity has exercised powers that are traditionally the exclusive prerogative of the state. Blum v. Yaretsky, 457 U.S. 991, 1004-05 (1982); Taylor v. First Wyoming Bank, N.A., 707 F.2d 388, 389 (9th Cir.1983). Although a private child care institution might be found to be a state actor if the child was in effect a ward of the state and the state was providing care through the private agency, see Taylor, 707 F.2d at 390, that is not the case here. Keyes has not alleged facts which support a finding that Huckleberry House was acting under color of state law, and offers only conclusory allegations regarding state action. Thus, the district court correctly found that Huckleberry House was not a state actor and dismissed the complaint as to it. See Malachowski v. City of Keene, 787 F.2d 704, 710-11 (1st Cir.), cert. denied, 479 U.S. 828 (1986) (private foster care provider was not state actor for purposes of section 1983 action, and conclusory allegations were insufficient to state a claim under section 1983).

Accordingly, the district court correctly dismissed the section 1983 complaint as to all defendants.

AFFIRMED.