13 NICS App. 61, WILTSE V. HAGREEN (August 2015)

IN THE KALISPEL TRIBAL COURT OF APPEALS

KALISPEL INDIAN RESERVATION

UNITED STATES OF AMERICA

Tammy Wiltse, Petitioner/Appellee,

v.

Jessica Ann Hagreen, Respondent/Appellant.

NO. 2015-0032-CV-RO (August 25, 2015)

SYLLABUS^*

Appellant argues that Tribal Court does not have personal jurisdiction to enter protection order against her as a non-member/non-Indian. Court of Appeals confirmed that Tribal Court has subject matter and personal jurisdiction over the parties assuming that the primary conduct that gave rise to the protection order occurred within the territorial jurisdiction of the Tribal Court. Court of Appeals remanded this matter to the Tribal Court to make findings of fact and conclusions of law regarding its territorial jurisdiction to enter the protection order.

Before:	Randy A. Doucet, Chief Justice; Sarah Lawson, Justice; Ric Kilmer, Justice.
Appearances:	Jessica Ann Hagreen, pro se; Tammy Wiltse, pro se.

OPINION

Kilmer, J.:

Summary of Proceedings

This matter comes before the Kalispel Court of Appeals pursuant to a Notice of Appeal filed by Jessica Ann Hagreen on April 27, 2015. The appeal was filed pursuant to Section 1-12.03 of the Kalispel Tribal Code (KTC), which requires that a written Notice of Appeal to be filed within ten days from the entry of judgment. The matter being appealed is the Kalispel Tribal Court's Order for Protection entered April 20, 2015. That order was entered for the benefit of the petitioner, Tammy Wiltse, who sought to have the Court restrain Ms. Hagreen

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from committing certain acts vis-à-vis Ms. Wiltse—including committing violent or threatening acts of harassment and physical proximity to Ms. Wiltse. The Notice of Appeal was timely filed, and met the content requirements of KTC 1-12.03A.

The initial Appellate Hearing required by KTC 1-12.05 was conducted via teleconference on May 18, 2015. Under that section, this court is to review the record and hear oral argument "to determine whether or not the facts and/or laws as presented in the appealed case warrant a limited appeal on issues of law and/or facts, whether a new trial should be granted, or whether the appeal should be denied." At that hearing, the Court reviewed the record, then ordered that the parties file written briefs in support of their respective arguments. The Statement of Appellant was filed June 17, and the Statement of Appellee was filed July 9. During an August 4 teleconference, after again reviewing the record and the recently-filed written arguments/statements, this Court determined that oral argument would not be necessary (which, pursuant to Section 1-12.05, is discretionary), and would decide this appeal solely on the written arguments of the parties and the trial court's official record.

The sole issue raised on appeal by Ms. Hagreen in her Statement is that the Kalispel Tribal Court does not have personal jurisdiction to enter such a protection order against her as a non-member/non-Indian.

Standard of Review

Although there is no explicit standard of review in the Code, KTC 1-12.05 provides that, after reviewing the record and the parties' arguments, this Court may:

Based upon our review of the record and the parties' arguments, this Court has decided to treat this matter as a limited appeal on issues of law and/or facts.

Summary of Facts

This is a matter concerning a person enrolled in a federally-recognized Indian tribe, Ms. Wiltse, who is an enrolled member of the Spokane Tribe and Ms. Hagreen, a non-Indian. These two persons had had a prior dating relationship and had once resided together, and thus were intimate partners. It also concerns conduct that the trial court found occurred primarily in its Northern Quest Casino, where Ms. Wiltse was an employee at the time she alleged that Ms. Hagreen had stalked her, among other threatening and harassing activities. Casino management and security personnel corroborated Ms. Wiltse’s testimony that Ms. Hagreen would regularly

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position herself at slot machines within a few feet of Ms. Wiltse’s tables or in direct view of Ms. Wiltse while Ms. Wiltse was working; that Ms. Hagreen would stare at Ms. Wiltse during these times; that Ms. Hagreen would follow Ms. Wiltse and similarly position herself when Casino management moved Ms. Wiltse to another table to attempt to avoid proximity with Ms. Hagreen; that Ms. Hagreen had followed Ms. Wiltse to and from the Casino’s restricted employees' area; and that Ms. Hagreen’s behavior had become a security concern for the Casino. Ms. Wiltse had also alleged that Ms. Hagreen committed other related acts via phone calls, texts, Facebook messages, and at or near her apartment complex.

Ms. Hagreen was provided proper service of notice and was given reasonable notice, and an opportunity to be heard in the Tribal Court. After a hearing lasting some two and a half hours, the Court granted Ms. Wiltse an Order for Protection on April 20, 2015—pursuant to KTC 8-6.

The Court therefore found, as explicitly specified in its protection order, that Ms. Hagreen had committed domestic violence, and that it had jurisdiction over the subject matter and the parties. However, that order made no findings of fact or conclusions of law regarding its territorial jurisdiction.

Discussion

As stated earlier, the sole issue raised on appeal by Ms. Hagreen is whether the Kalispel Tribal Court has personal jurisdiction to enter such a protection order against her as a non-member/non-Indian. This Court of Appeals holds that the trial court clearly has civil jurisdiction in this matter over Ms. Hagreen, assuming that any conduct committed by her occurred within the Court's territorial jurisdiction.

Civil jurisdiction over the activities of non-Indians on reservation lands presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute. Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 18 (1987).

“A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe.” Montana v. United States, 450 U.S. 544, at 566 (1981) (citations omitted).

Chapter 3 of the Kalispel Tribal Code explicitly provides that the Court has jurisdiction in all suits between an Indian and non-Indian “wherein the cause of action arises within the exterior boundaries of the Kalispel Indian Reservation....” This concerns an Indian person as one of the parties, Ms. Wiltse, is enrolled in the Spokane Tribe; and Ms. Hagreen, a non-Indian. And it concerns conduct that may have occurred within the Court's territorial jurisdiction. Thus, under its own laws, the Kalispel Court has personal jurisdiction over Ms. Hagreen.

13 NICS App. 61, WILTSE V. HAGREEN (August 2015) p. 64

KTC 8-6 further supports such jurisdiction over Ms. Hagreen. This is a domestic violence/intimate partner-related matter. Ms. Hagreen and Ms. Wiltse once had a dating relationship and resided together. They were intimate partners. Ms. Wiltse alleged that after they broke up Ms. Hagreen began to stalk and harass her and commit other domestic violence/intimate partner-related behavior. (See KTC 8-06.01(1) and (2). See also, Chapter 3A regarding anti-harassment orders.) Thus, the Kalispel Court had both subject matter jurisdiction and personal jurisdiction over the two parties.

Nonetheless, Ms. Hagreen argues that only federal law can grant the Kalispel Court such personal jurisdiction over her, and that there is no such federal authority. But there is such a federal statute. Section 905 of the Violence Against Women Act of 2013, as codified at 18 U.S.C. § 2265, states in relevant part: “[A] court of an Indian tribe shall have full civil jurisdiction to issue and enforce protection orders involving any person … in matters arising anywhere in the Indian country of the Indian tribe....” (Emphasis added.)

However, both Kalispel tribal and federal law specifically provide that such subject matter and pesonal jurisdiction over a non-Indian exist only if the Court also has territorial jurisdiction. The non-Indian's conduct must occur within the exterior boundaries of the Kalispel Reservation, according to the Tribe's own laws. KTC Chapter 3. (Federal law, as noted above, provides that it can be a matter that arises “anywhere in the Indian country of the Indian tribe.” 18 U.S.C. § 2265. Whether that federal statute expands the Kalispel Tribal Court's territorial jurisdiction despite the Tribe's own territorial limitation imposed by its own laws is not being decided here at this time.) It is not clear to this Court of Appeals from the official record that any of Ms. Hagreen's conduct occurred within the exterior boundaries of the Kalispel Reservation.

Conclusion and Order

By virtue of its own laws and federal law, the Kalispel Tribal Court has subject matter and personal jurisdiction over the parties to this matter, as one of the parties is an enrolled member of an Indian Tribe—provided that the primary conduct that gave rise to the protection order occurred within the territorial jurisdiction of the Kalispel Tribal Court. However, whether the Court indeed has such territorial jurisdiction is not clear from the Court's official record.

Therefore, we remand this matter to the trial court to make specific and explicit findings of fact and conclusions of law regarding its territorial jurisdiction to enter the protection order vis-à-vis Ms. Wiltse. As this concerns a protection order, which shall remain in effect until such time as the trial court determines if it indeed has such territorial jurisdiction, those findings and conclusions shall be made expeditiously, preferably within thirty (30) days of the Court receiving this written opinion. Any of the parties may then appeal the court's order, if they so choose.

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The syllabus is not a part of the Court’s Opinion. The syllabus is a summary of the Opinion prepared by the publishers of this reporter only for the convenience of the reader. Therefore, the syllabus should not be cited in whole or part as legal authority. Only the Opinion, which follows the syllabus, may be cited as legal authority.