IN RE THE WELFARE OF L.B. AND K.B.

6 NICS App. 172, IN RE THE WELFARE OF L.B. AND K.B. (September 2004)

IN THE SQUAXIN ISLAND TRIBAL COURT OF APPEALS

SQUAXIN ISLAND INDIAN RESERVATION

SHELTON, WASHINGTON

In Re the Welfare of: L.B. and K.B., Minors.

Joan Koenig, Appellant.

No.’s SQI-CI-03-08-212; 213 (September 30, 2004, as amended December 1, 2004)

SYLLABUS^*

Trial court exercised dependency jurisdiction over minors who are members of the Tribe where neither the minors nor their parents reside within the reservation. Court of Appeals holds that the family’s acceptance of benefits and other contacts with the Tribe and the Tribal code each establish a basis for the exercise of jurisdiction by the trial court. Trial court affirmed.

Before: Emma Dulik, Chief Justice; Lisa Brodoff, Justice; Elizabeth Fry, Justice.

OPINION

Fry, J.:

This matter came before the Appeals Court of the Squaxin Island Tribe pursuant to Appellant’s Notice of Appeal filed on December 5, 2003. Appellant appeals five orders of the Squaxin Island Tribal Court referring to fact-finding hearings, a motion to rescind, and a dispositional hearing.

Oral Argument was heard on August 16, 2004. Appellant Joan Koenig appeared Pro Se. Mark Allen, Attorney at Law, appeared on behalf of the Squaxin Island Tribe. The minor child L.B. appeared. The natural father, Theodore Bechtold, was served notice but did not appear and is currently in prison, his mother Peggy Bechtold appeared. The Guardian Ad Litem, Cheryl Miller, is now a caseworker and appeared for the children. Whitney Jones appeared for the Squaxin Island Tribe’s Children Services Department.

SUMMARY

This case concerns two Squaxin Island tribal youth alleging sexual abuse by an Indian stepfather. The stepfather is a registered sex offender. The Squaxin Island Tribal Court exercised

6 NICS App. 172, IN RE THE WELFARE OF L.B. AND K.B. (September 2004) p. 173

dependency jurisdiction over the minors even though neither they nor their parents reside on the Squaxin Island Reservation. The Court of Appeals found the trial court has jurisdiction, and affirms their decision to exercise it.

JURISDICTION

A detailed discussion will follow on the issue of jurisdiction.

ISSUES

Does the Trial Court have jurisdiction in this matter when the parents and minors reside off the Reservation?

Is there a sufficient basis to affirm the decision of the lower court to exercise dependency jurisdiction over the minors?

HISTORY

The mother and her two daughters (LB and KB), ages 17 and 12 respectively, are members of the Squaxin Island Tribe and live near the Reservation but not within its borders. The Indian stepfather resides with them. Both girls alleged sexual abuse by the stepfather, who denied it. The stepfather is a registered Level II sex offender (moderate risk) with the State of Washington.

The Tribe contends the mother was not supportive of the minors in their allegations. Criminal charges have not been filed against the stepfather by Mason County, though he is being investigated. The Washington State Child Protective Services office of the Department of Social and Health Services declined to file a dependency petition on the minors even though the Child Protective Team requested they take protective action.¹ The Child Protective Team then referred its concerns to the Squaxin Island Indian Tribe’s Indian Child Welfare caseworker, who filed youth in need of care petitions.

The Tribal Court entered separate Emergency Custody Orders on August 29, 2003 for the minor children. On September 9, 2003, the court ordered temporary custody for the children and placed them out of the home. There was a fact-finding hearing in October 2003, and the court found the minors to be in need of care. The minors and their mother were determined to be tribal members. A Mason County detective investigated the sexual abuse allegations. LB recanted near the end of the investigation in a letter dated October 20, 2003. The detective was convinced LB had been coerced to recant, but filed charges against LB for filing a false police report. The mother moved to rescind the dependency on October 31, 2003 citing the recanting letter. The motion was denied on November 25, 2003.

6 NICS App. 172, IN RE THE WELFARE OF L.B. AND K.B. (September 2004) p. 174

The Dispositional Hearing was held November 25, 2003 and the court took the children into temporary legal custody, and required several conditions be met before it would release custody back to the mother. This appeal followed on December 5, 2003, no stay being granted.²

The mother/Appellant filed a youth at risk petition pursuant to Washington State law, which was held in abeyance once the Squaxin Island Tribes’ child welfare department filed a dependency petition based upon the sexual abuse allegations and against LB for running away.

The appellate court was sufficiently concerned about the status of the minors to order appointment of a Guardian Ad Litem and an immediate report on the minors. Cheryl Miller was appointed Guardian Ad Litem.

Jurisdiction

This court was initially inclined to dismiss for lack of jurisdiction due to the parents and minors lack of residency or domiciliary on the Squaxin Island Indian Reservation. However, in light of several factors, the court reconsiders its initial inclination.

The court, however, finds several issues to be significant in our determination that the Tribe does have jurisdiction over these children, even though neither they nor their parents reside on the Reservation. One factor is that the family has contacts with and accepts benefits from the Tribe. For instance, the family has accepted medical and mental health care from the Tribe. See Statement of Joan Koenig.

Additionally, the Squaxin Island Tribal Code allows the Tribe to exercise jurisdiction over all Squaxin Island tribal youth in dependency cases, no matter where they reside.³ The pertinent sections being,

6 NICS App. 172, IN RE THE WELFARE OF L.B. AND K.B. (September 2004) p. 175

A. Exclusive Jurisdiction. The Court shall have exclusive original jurisdiction over any proceeding concerning a youth alleged to be in need of care, termination of parental rights, adoption, or guardianship which involves:

1. Any Indian youth who resides or is domiciled on the Squaxin Island Indian Reservation;

2. Any youth who is a member or is eligible for membership in the Squaxin Island Tribe regardless of the youth’s residence or domicile;

This court is obligated to follow the law of the Squaxin Island Tribe.

Another significant consideration is the status of current case law which allows that “An Indian child who is not domiciled on a reservation is subject to the concurrent jurisdiction of tribal court and state court.. Navajo Nation v. Conf. Tribe and Bands of Yakama Indian Nation, 331 F. 3d 1041, 3044 (9th Cir. 2003), Napoleon v. Blackwell, 2002 WL 3409959 (Wn. App. Div.2) (unpublished). See also Matter of Adoption of T.R.M., Ind. 1988, 525 N.E. 2d 298, rehearing denied, certiorari denied 109 S.Ct. 2072, 490 U.S. 1069; People in Interests of M.C., S.D. 1993, 504 N.W.2d 598. In Navajo Nation, two tribes challenged an off-reservation adoption of an Indian child. Summary judgment was granted for the adoptive parents in federal district court. The tribes appealed and the Ninth Circuit Court of Appeals affirmed, finding that the domicile was off the Reservation. The significance of Navajo Nation is the holding regarding concurrent jurisdiction off the Reservation, which pertains to the case at hand. Both Mason County and the Squaxin Island Tribe had jurisdiction over this matter since the minors were domiciled off the Reservation.

Regarding the issue of domicile of the minors, we look to Mississippi Band of Choctaw v. Holyfield, 490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed2d 29, 57 USLW 4409. In that case, Choctaw parents delivered twin babies off the reservation, and then signed consent to adoption forms. The state courts upheld the adoptions over the Tribe’s objection. The U.S. Supreme Court determined that domiciliary under the Indian Child Welfare Act is defined by federal law and not by state law. It found that the minors had the same domicile as their parents, which was on the Reservation, and they reversed the state Supreme Court. In this case, the mother stated that she resided and was domiciled off the Squaxin Island Indian Reservation, though nearby, which would mean that the tribal member children are also domiciled off the Reservation.

6 NICS App. 172, IN RE THE WELFARE OF L.B. AND K.B. (September 2004) p. 176

Where a tribal court has declared an Indian child a ward of the court, it has exclusive jurisdiction even if the child is not domiciled or resident on the reservation under the Indian Child Welfare Act. Title 25 U.S.C. §1911(a) says:

…Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.

Taking all these factors into consideration, the court finds that the trial court exercised proper jurisdiction over the minors in this case.

Merits of Case

After review of the case, including transcripts, this court finds sufficient factual basis to affirm the lower court.

The court hereby affirms the lower court and remands the case to the trial court for action not inconsistent with this holding.

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 Tribe’s Brief re Jurisdiction, Page 2, 3, 4.

Id.

Squaxin Island Tribal Code Section:

10.04.020 Jurisdiction

1. Any Indian youth who resides or is domiciled on the Squaxin Island Indian Reservation;

2. Any youth who is a member or is eligible for membership in the Squaxin Island Tribe regardless of the youth’s residence or domicile; or

3. Any Indian youth who has been placed in temporary care on the reservation or in any care facility licensed by the Tribe for placement of Indian youth.

…

C. Concurrent Jurisdiction. When state, federal or other tribal courts have jurisdiction over any of the maters provided for in this code, the Court has concurrent jurisdiction over the same matters, to an extent consistent with federal law.

D. Jurisdiction—Limitations. The limitations on jurisdiction in this section are not intended to reflect the Tribe’s view as to the legally permissible limits of jurisdiction, but are merely designed to define tribal activity in this area in accordance with tribal priorities and resources.