14 NICS App. 27, BAKER v. GOURDINE (June 2016)
IN THE MUCKLESHOOT TRIBAL COURT OF APPEALS
MUCKLESHOOT INDIAN RESERVATION
AUBURN, WASHINGTON
Jamie Baker, Respondent,
v.
Tammy Gourdine, Appellant.
NO. MUC-AP-09/15-164 (June 6, 2016)
SYLLABUS*
Appellant argued that tribal court did not have the jurisdiction to issue permanent domestic violence protective order against her as she and respondent were not in a “domestic relationship” as defined by the tribe’s domestic violence statute. Appellant conceded to act of abuse. Appellant’s step-brother is respondent’s step-father. Tribe’s code defines “domestic violence” to include acts of abuse by family member and defines “family member” as adults related by blood or marriage. Court of Appeals’ concluded that tribe’s council did not expressly limit meaning of “related by marriage” to the common law understanding of affinity, therefore it extended its domestic violence protection statute to all adult tribal members who can show some connection through one or more marriages. Court of Appeals affirmed tribal court had jurisdiction as the appellant and respondent are family members.
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Before: |
Gregory M. Silverman, Chief Judge; Ric Kilmer, Judge; Thomas Weathers, Judge. |
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Appearances: |
Tammy Gourdine, in pro per; no appearance from Respondent.1 |
OPINION
14 NICS App. 27, BAKER v. GOURDINE (June 2016) p. 28
Weathers, J.:
This matter comes before the Court of Appeals pursuant to the Notice of Appeal timely filed on September 30, 2015 by Appellant, Tammy Gourdine. Gourdine challenges the domestic violence protective order issued against her by the tribal court. She does not dispute the tribal court’s finding that Gourdine committed an act of violence against Jamie Baker, the subject of the protective order. Instead, Gourdine argues that the tribal court had no jurisdiction to issue a domestic violence protective order because Gourdine was not in a “domestic relationship” with Jamie Baker. Gourdine contends that Baker should have filed in state court, not tribal court. We disagree and affirm the tribal court.
I. BACKGROUND
Gourdine and Baker are both adult members of the Muckleshoot Indian Tribe. On September 22, 2015, Baker filed in tribal court for a domestic violence protective order against Gourdine. Baker claimed that Gourdine had threatened Baker and hit Baker in the face and back of the head while at a baseball game. Baker also alleged that Gourdine had physically threatened Baker through Facebook posts. The tribal court granted a temporary protective order and set a hearing. We presume that the tribal court held the hearing – though the appellate record contains no transcript or other evidence of such a hearing – because the tribal court subsequently entered a permanent domestic violence protective order restraining Gourdine from having any contact with Baker. Gourdine now appeals that permanent order.
II. ANALYSIS
This appeal turns on statutory interpretation. We review issues of fact under the “clearly erroneous” standard and issues of law under the “de novo” standard. In the Guardianship of Three Indian Minors, 10 NICS App. 29, 32 (Muckleshoot Tribal Ct. App. 2011); see also Circle v. Colville Confederated Tribes, 2011 Colville App. LEXIS 6, *2 (Colville Confed. Ct. App. 2011) (question of law subject to de novo review). Statutory interpretation is a question of law subject to de novo review. Idaho v. Coeur D'Alene Tribe, 794 F.3d 1039, 1042 (9th Cir. 2015); Trustees of Amalgamated Ins. Fund v. Geltman Industries, Inc., 784 F.2d 926, 929 (9th Cir. 1986).
“A court’s primary duty in interpreting any statute is to discern and implement the intent of the legislative body.” Skokomish Indian Tribe v. Cultee, 8 NICS App. 68, 70 (Skokomish Tribal Ct. App. 2008). To determine legislative intent, the first step is to look to the plain language of the statute. U.S. v. Monsanto, 491 U.S. 600, 610 (1989); United States v. Daas, 198 F.3d 1167, 1174 (9th Cir. 1999). “The starting point must always be the statute’s plain language and ordinary meaning.” Matilton v. Hoopa Valley Tribe, 7 NICS App. 65, 69 (Hoopa Valley Tribal Ct. App. 2005).
14 NICS App. 27, BAKER v. GOURDINE (June 2016) p. 29
"It is well established that when the statute’s language is plain, the sole function of the courts – at least where the disposition required by the text is not absurd – is to enforce it according to its terms." Lamie v. United States Trustee, 540 U.S. 526, 534 (2004) (internal quotes omitted); see also In the Guardianship of N.S., 10 NICS App. 90, 92 (Muckleshoot Tribal Ct. App. 2012) (“Ordinarily, courts apply the plain language of a statute.”) A legislative definition included in a statute is controlling and excludes any meaning that is not stated. See Colautti v. Franklin, 439 U.S. 379, 392 n.10 (1979); Neilson ex rel. Crump v. Blanchette, 201 P.3d 1089, 1091 (Wash. Ct. App. 2009).
Under Section 5.13.070(a) of the updated Muckleshoot Tribal Code of Laws (“MTC”), any person claiming to be a victim of domestic violence may petition the tribal court for an order of protection. “Domestic violence means an act of abuse by a perpetrator on an intimate partner, family member or household member of the perpetrator.” MTC § 5.13.010(a)(7)(iv) (internal quote omitted). “Family Member or Household Member means . . . Adults related by blood or marriage, adults who are presently residing together or who have resided together in the past;” MTC § 5.13.010(a)(10).
While conceding the act of abuse, Gourdine maintains that the domestic violence statute does not apply to her because she is not an intimate partner, family member, or household member of Baker. The facts of this case make clear that Gourdine is neither an intimate partner nor household member of Baker. However, Gourdine admits in her Notice of Appeal that she is the “step-aunt” of Baker. Gourdine’s mother and Baker’s mother remarried men who are blood related. Gourdine’s mother married a man and Baker’s mother married that man’s son. In other words, Gourdine’s step-father is the father and Baker’s step-father is the son. That makes Gourdine the step-sister of Baker’s step-father and Baker the step-daughter of Gourdine’s step-brother. Baker and Gourdine are related through two separate marriages.
The statute is clear on its face. The plain language defines “domestic violence” to include acts of abuse by a family member. The statute then defines “family member” to include adults related by blood or marriage. Unlike some other jurisdictions that limit their definitions, “related by marriage” in the Muckleshoot statute is not limited. Cf. Cal. Fam. Code § 6211(f) (limiting “related by marriage” to second degree of affinity); La. Rev. Stat. § 46:2132 (limiting “family members" to spouses, former spouses, parents and children, stepparents, stepchildren, foster parents, and foster children); Va. Code § 16.1-228 (limiting “family member related by marriage not residing in the same home” to spouses, stepchildren, and stepparents); Hendrix v. Yurok Tribe, 6 NICS App. 4, 9 (2000) (noting tribal law that limits “related by marriage” to first or second degree to party or attorney in disqualifying a judge); Oglala Sioux Tribe Domestic Violence Code Ch. 1, sec. 103 (limiting “family member” to persons related or formerly related by marriage as recognized by Western or Lakota tradition); Colville Domestic and Family Violence Code § 5-5-3(g) (limiting “family member” to persons who have a biological, legal, or step parent-child relationship); Seminole Domestic Violence Code § 105 (j)(1) (limiting “related by marriage” to parent-in-law, stepparent, stepchild, step-grandchild, stepbrother, step-sister, brother-in-law, or sister-in-law). The Muckleshoot statute has no such limitations. Read literally,
14 NICS App. 27, BAKER v. GOURDINE (June 2016) p. 30
the statute encompasses all tribal member adults connected in some way through one or more marriages.
We recognize that common law may be to the contrary. One may be related to another by consanguinity, which is through the blood line, or by affinity, which is through marriage. State v. Hooper, 37 P.2d 52, 63 (Kan. 1934). “Affinity is relationship by marriage.” Criminal Injuries Compensation Board v. Remson, 384 A.2d 58, 67 (Md. 1978). According to one source,
The doctrine of affinity grew out of the canonical maxim that marriage makes a husband and wife one. The husband has the same relation, by "affinity," to his wife's blood relatives as she has to them by "consanguinity" and vice versa.
Op. Ark. Atty. Gen. No. 089 (2012). In other words, the term “affinity” was generally understood as the relation that one spouse had to the blood relatives of the other spouse. See Black’s Law Dictionary 63 (8th ed. 2004); 41 Am. Jur. 2d Husband and Wife § 4 (2015). So, in effect, common law defined “related by marriage” as the relationship that exists between one spouse and the other spouse’s blood relatives. See Allen v. Sanders, 346 P.3d 30, 32 (Ariz. Ct. App. 2015). A husband is related by affinity to the blood relatives of his wife, and a wife is related by affinity to the blood relatives of her husband. Criminal Injuries Compensation Board, 384 A.2d at 67.
However, “there is no affinity between the blood relatives of the husband and the blood relatives of the wife.” Kirby v. State, 8 So. 110, 111 (Ala. 1890). For example, “[m]arriage will relate the husband by affinity to the wife's blood relations, but will not relate the husband's brother to any of her relations.” Central R. & B. Co. v. Roberts, 18 S.E. 315, 315-316 (Ga. 1893). A husband’s brother is not related by affinity to a wife’s sister. See Tegarden v. Phillips, 42 N.E. 549, 551 (Ind. Ct. App. 1895). "Blood relations of the husband and the blood relations of the wife are not related to each other by affinity." Hooper, 37 P.2d at 64.
Furthermore, “the husband is not related in any way to those persons to whom his wife is related only by affinity, and the wife is not related in any way to those persons to whom her husband is related only by affinity.” Criminal Injuries Compensation Board, 384 A.2d at 67. “My wife’s brother's wife is related to my wife by affinity because of the blood relationship existing between my wife and her brother; but she is not related to me by affinity, because there is no blood in common between us.” Tegarden, 42 N.E. at 551. “[A]n affine of one spouse is not related to an affine of the other spouse.” Matter of Anita C. v Johana S., 48 Misc. 3d 619, 622 (N.Y. Fam. Ct. 2015) (internal quotes omitted).
Common law would then suggest that Gourdine and Baker are not related by marriage. There is no blood in common between them. Nevertheless, we choose not to incorporate western
14 NICS App. 27, BAKER v. GOURDINE (June 2016) p. 31
common law into Muckleshoot tribal law in this instance.2 We found no case defining let alone limiting the phrase “related by marriage” in the context of a domestic violence protection statute. A purpose of the Muckleshoot domestic violence ordinance is to protect tribal members and others residing on the Reservation from abuse, neglect or exploitation. See MTC § 5.01.010(a)(6). The Muckleshoot Tribal Council has directed that the statute be interpreted to further this general purpose. See MTC § 5.01.010(b).
It makes no sense to read into the ordinance a limitation that is not expressly there and that would be contrary to the broad purpose of the statute to protect as many people as possible from violence. Had the Muckleshoot Tribal Council wanted to limit the meaning of “related by marriage” to the common law understanding of affinity, it easily could have done so. See, e.g., MTC § 12.02.010 (expressly limiting the meaning of “Immediate family member” in the context of child welfare matters to “spouse, spouse equivalent, child, parent, step parent, sibling, grandparent, grandchild, step or foster child, foster parent, and legal guardian” and expressly limiting the meaning of “Extended family member" to “parents-in-law, siblings-in-law, aunts or uncles, first cousins, nieces, nephews, or other family member with a significant familial relationship to a child, including a non-Indian person or adult considered to be an extended family member by the Muckleshoot Indian Tribe according to custom and tradition.”) By not expressly limiting the meaning of “related by marriage” in the context of domestic violence, the Muckleshoot Tribal Council extended its domestic violence protection statute to all adult tribal member who can show some connection through one or more marriages.
III. CONCLUSION
Gourdine and Baker are adults related by marriage. Gourdine’s step-brother is Baker’s step-father. That makes them family members for purposes of the Muckleshoot domestic violence protection statute. The tribal court correctly interpreted the applicable law in issuing a domestic violence protective order against Gourdine. Therefore, we affirm.
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.
Respondent Jamie Baker (incorrectly called “Appellee” in Gourdine’s brief) did not file a brief in this case. Nonetheless, we found nothing in Muckleshoot Tribal Law that would preclude us from deciding this matter based on the record and Appellant’s brief. See Muckleshoot Tribal Code section 9.03.01(g) (requiring appellant to file brief but not similarly requiring respondent to file brief).
In fact, the Tribe’s law precludes us from basing our decision on western common law where such common law is inconsistent with the spirit or letter of any ordinance of the Muckleshoot Tribe. See MTC § 9.04.01(b) (“The Courts of the Muckleshoot Tribe shall not recognize or apply . . . common law . . . which is inconsistent with either the spirit or the letter of . . . any ordinances or resolutions of the Muckleshoot Tribe . . . .”) Application of western common law on affinity in this case could be seen as “inconsistent” with the spirit and letter of the Tribe’s domestic violence protection ordinance.