20 NICS App. 1, TURPEN v. TURPEN (April 2022)
IN THE MUCKLESHOOT TRIBAL COURT OF APPEALS
MUCKLESHOOT INDIAN RESERVATION
AUBURN, WASHINGTON
In re the Marriage of:
Katherine Denise Arquette Turpen, Petitioner/Appellee,
v.
David William Turpen, Respondent/Appellant.
NO. MUC-AP-09/21-143 (April 7, 2022)
SYLLABUS*
Matter concerns a marriage dissolution between an enrolled tribal member and a non-Indian who shared a home off the reservation that was financed with a tribal program. Appellant moved to dismiss for lack of service and jurisdiction. Court of Appeals found appellant waived issues concerning service and confirmed the tribal court has both personal and subject matter jurisdiction to hear the dissolution as appellant entered a consensual relationship with the Tribe when he married a member and when he contracted with the Tribe for financial support. Court of Appeals affirmed and remanded to trial court for further proceedings.
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Before: |
Jerry R. Ford, Chief Judge; Michelle Sheldon, Judge; Lisa M. Vanderford-Anderson, Judge. |
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Appearances: |
O. Yale Lewis III for Appellant; Emily Schultz for Appellee. |
OPINION
Ford, C.J.:
Katherine Turpen, (Appellee), commenced this action by filing for dissolution from her Husband David Turpen (Appellant) in Muckleshoot Tribal Court. Appellee is an enrolled member of the Muckleshoot Tribe and an Elder. Appellant is not enrolled Muckleshoot and is non-Indian. The marital home is not located on the Muckleshoot Reservations but was financed through a contact between the Appellee and Appellant and the Muckleshoot Housing Authority’s Elder’s Pay Back Program. Hearings and mediation were held and the Appellant moved for dismissal for the lack of service upon the Appellant and a lack of subject matter jurisdiction over
20 NICS App. 1, TURPEN v. TURPEN (April 2022) p. 2
the Appellant and the community home, both being located outside the boundaries of the Muckleshoot Reservation. The Trial Court denied the motion to dismiss and entered detailed Findings of Fact and Conclusions of Law (“Trial Court Order”) finding the Appellant had waived any issues concerning service and that the Trial Court had jurisdiction over the dissolution proceeding.1 The Appellant then sought the review of the Trial Court Order with this Court. We affirm the Trial Court and remand for further proceedings consistent with this opinion.
While the Muckleshoot Tribal Code is silent on what standard facts and law are to be reviewed, this Court has ruled in the past that questions of fact shall be reviewed under the clearly erroneous standard and issues of law are addressed de novo. In the Guardianship of Three Indian Minors, 10 NICS App. 29, 32 (2011).
This Court is not in the position to second guess the factual determinations and has not been shown that the Trial Court was clearly erroneous in its factual findings.2 Therefore, we will adopt the findings of fact by the Trial Court and proceed to a de novo review of the issues addressed in the conclusions of law.
The jurisdiction of this Court in making decisions on cases before it is set forth in Muckleshoot Code 3.02.70:
Decisional Authority
a) In cases otherwise properly before the court of the Court of Appeals, decision on matters of both substance and procedure will be based on the following, in the following order of precedent:
1) The Constitution and Bylaws of the Tribe:
2) The tribal code;
3) Tribal Council Resolutions;
4) Customary law, customs, traditions, and culture of the tribe;
5) Law, rules and regulations of the United States, states and Indian Tribes and cases interpreting such laws, rules, and regulations; and
6) The common law.
b) The Courts shall not recognize or apply any federal, state or common law, rule, or procedure which is inconsistent with either the spirit of the letter of either the Constitution and Bylaws of the tribe, or with any ordinances or resolutions of the tribe, or with the customs, traditions or culture of the tribe unless otherwise required, in the case of federal law only, by the Supremacy Clause of the United States Constitution.
20 NICS App. 1, TURPEN v. TURPEN (April 2022) p. 3
Being a court of limited jurisdiction, Muckleshoot Tribal Court can only exercise power over those cases the Tribal Council has established for them by Code. J.I. and E.I. v MPC, et all. 13 NICS App 43 (2016).
The first step in our examination of the Trial Courts authority is to determine if Tribal Council has specifically empowered the court to hear dissolutions. Chapter 14.03 of the Muckleshoot Tribal Code provides for Dissolution of Marriage and all the normal powers necessary to bring about the end of marriages involving tribal members.
Of particular applicability to this case is Muckleshoot Code 14.03.070:
Disposition of Property
a) In a proceeding for dissolution of marriage, legal separation, or a declaration of invalidity, the Tribal Court may, without regard to marital misconduct, divide the property and liabilities of the parties, either community or separate, as is just and equitable after considering all relevant factors including:
1) The nature and extent of the community and separate property;
2) The nature and extent of any trust or restricted property;
3) The duration of the marriage;
4) The economic circumstances of each party at the time the division of property is to become effective including:
i) The desirability of awarding the family home or the right to live therein for reasonable periods to a party with whom the children reside the majority of the time; and
ii) The desirability of ensuring that both parties’ ability to continue working in their chosen field or livelihood is not unreasonably jeopardized;
5) The direct or indirect contribution of each party to the education or career development of the other party; and
6) Any interruption in education or career opportunities to benefit the other’s career, marriage or children.
Further, Jurisdiction of the Trial Court in dissolution actions where one party is a member of the Muckleshoot tribe is set forth in Muckleshoot Code 14.01.030 (b):
Jurisdiction
The Tribal Court shall have jurisdiction to hear matters as follows:
20 NICS App. 1, TURPEN v. TURPEN (April 2022) p. 4
b) Dissolution The Tribal Court has jurisdiction to dissolve a marriage if one party is a member of the Muckleshoot Indian Tribe.
The Court has jurisdiction to resolve matters pertaining to the dissolutions in which one party is an enrolled member and there exists community real property to be distributed. 3
The remaining non-Montana issue is the effectiveness of service of process on the Appellant. It is clear he was served in a manner of his choosing, designed to get him as much information as quickly as possible and he appeared, argued and won in contested hearings and took part in mediation which indicates he waived any peculiarities in the service of process upon him. 4
Applicability of Montana
One of the main arguments in this case has been the applicability of the Montana exceptions in finding jurisdiction over Appellant in the dissolution matter. See Montana v. U.S, 450 U.S. 544 (1981). Appellee correctly noted that Muckleshoot has clearly provided for jurisdiction over marriages in which one party is a Muckleshoot Tribal Member and does not provide for limitations or exceptions regarding, for example, the location of the family home. (“The Court retains jurisdiction to resolve matters pertaining to the dissolution.”). See Muckleshoot Tribal Code Section 14.01.030 (b). The Montana exception at issue in this case is the first exception, which states:
“A tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealings, contracts, leases, or other arrangements.” Montana, 450 U.S. at 565.
It is undisputed that, in addition to entering into marriage with Appellee, a Tribal Member, he also entered into a contract to receive financial support for the purchase of the marital home through the Elder’s Pay Back Program. Respondent does not and cannot dispute this fact. By entering into that contract, he entered into a consensual relationship with the Tribe which allows the Muckleshoot Tribal Court to exercise jurisdiction over him for purposes of this dissolution. See Port Gamble S’Klallam v Lexington Insurance, Et Al 19 NICS App. 12, 17 (2021).
The court below correctly determined that service upon the Appellant had been established, that there was both subject matter and personal jurisdiction over this dissolution. We affirm and remand this case for further proceedings not inconsistent with this opinion.
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.
See Purser v. Purser, 9 NICS App 102 (2010).
The sole exception is that there was a simple mistake by the Trial Court in stating the date of the marriage. For our purposes here, it is irrelevant.
Appellant has filed a Petition for Dissolution in King County Superior Court subsequent to this action. There is no indication that a CR 82.5 action has been made. The parties are encouraged to do this as soon as possible to settle any remaining jurisdictional issues between the two courts. It should be noted that this appears to be the first time a Tribal Court of Appeals has made a jurisdictional decision going into such a conference.
The purpose of the actions of the clerk and the court were to allow access to the court which the Appellant took advantage of the opportunity to his benefit. Unfortunately, the Trial Courts recording system did not accurately record the proceedings.