7 NICS App. 28, IN RE: D.L.M. (May 2005)
IN THE HOOPA VALLEY TRIBAL COURT OF APPEALS
HOOPA VALLEY INDIAN RESERVATION
HOOPA, CALIFORNIA
In the Matter of D.L.M., a minor child.
Rodney McKinnon, Appellee/Petitioner,
v.
Sierra Staton, Appellant/Respondent.
No. J-01-002/A-04-002 (May 24 2005)
SYLLABUS*
Trial court ruled that it had jurisdiction to hear a dispute over the custody of a non-member Indian child between the child’s father, a tribal member, and the child’s mother, a non-Indian, despite the lack of a tribal statute specifically granting jurisdiction to hear child custody matters. Court of Appeals holds that although the trial court relied on an erroneous legal theory, the Hoopa Valley Tribal Court is a court of general jurisdiction with subject matter jurisdiction over domestic relations of its members and the mother consented to personal jurisdiction by residing on the reservation and actively seeking redress from the tribal court. Result affirmed and case remanded for further proceedings.
Before: James S. Underwood, Chief Justice; William J. Moran, Justice; and Lisa J. Dickinson, Justice.
Appearances: Keith Taylor for Appellant Sierra Staton; Kristi Schelloner for Appellee Rodney McKinnon.
OPINION
Dickinson, J.:
This matter came before the Hoopa Valley Tribal Court of Appeals on Appellant/Respondent’s April 20, 2004 Notice of Appeal of the trial court’s Order Denying Respondent’s Motion to Dismiss for Lack of Jurisdiction. Appellant challenges the jurisdiction of the Hoopa Valley Tribal Court to assert jurisdiction over Appellant and over the child, D.L.M.
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This Court issued an Order accepting the appeal and ordering that the Tribal Court not issue any orders of a permanent nature or impose any further obligations on the parties pending the completion of the appeal. The Order provided, however, for injunctions and restraining orders in strict conformance with the provisions of HVTC § 3.10, Rule 50, if necessary to protect the health and safety of the child or either parent, or to prevent immediate and irreparable injury, loss, or damage to the child or either parent.
At the invitation of this Court, the Hoopa Valley Tribe submitted an amicus curiae brief on December 20, 2004. The Hoopa Valley Tribal Court also submitted an amicus curiae Reply Brief. In order to avoid a precedent encouraging post-hoc rationalizations of decisions by trial courts, this Court did not accept or review the Tribal Court’s brief. Oral argument from representatives of both parties was heard on January 19, 2005.
We hold that the Tribal Court erred in asserting subject matter jurisdiction under Title 2 Hoopa Valley Tribal Code § 2.1.04, but that the Tribal Court did have subject matter jurisdiction under Title 1 HVTC § 1.1.04. We take judicial notice of the fact that during the pendency of this appeal, the Hoopa Valley Tribe has adopted a Domestic Relations Code which includes a specific grant of subject matter jurisdiction over child custody matters which supercedes the general grant of subject matter jurisdiction under Title 1. The Court remands this matter to the Tribal Court for further proceedings in conformance with the new Domestic Relations Code.
FACTS AND PROCEDURAL HISTORY
On March 8, 2001, the father of the child, Appellee Rodney McKinnon, filed a petition for child custody in the Hoopa Valley Tribal Court. On that date, the Tribal Court, Chief Judge Byron Nelson, Jr. presiding, held an emergency ex parte hearing on the petition, issued an Emergency Temporary Custody Order Pending Hearing awarding sole physical and legal custody of D.L.M. to Appellee, and issued a summons to Appellant Sierra Staton. On April 13, 2001, the Appellant filed her Answer in Response to Petition for Child Custody.
Between March 8, 2001 and April 8, 2004, the Tribal Court received multiple Petitions for Child Custody from each of the parents, held several hearings and issued no less than a dozen Orders prior to the jurisdictional challenge filed by Appellant. Appellant filed three petitions for modification and entered into two stipulations prior to objecting to jurisdiction. One of the petitions and one of the stipulations were filed after Appellant secured the representation of her spokesperson. Appellant’s spokesperson also filed a status report on Appellant’s behalf on February 24, 2004 recommending that the trial court conduct a six to twelve month status review at a time when the court had awarded custody to the mother
In addition to the petitions filed by D.L.M.’s parents, on April 21, 2003 the Tribe’s Division of Human Services’ Child and Family Services (CFS) filed a request for an emergency
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hearing concerning D.L.M. based on an alleged incident of domestic violence between the parents. CFS filed status reports with the trial court on April 30, June 12, and November 25, 2003. The pleadings of the parties and CFS include numerous allegations of neglect of the child.
It is undisputed that the father, a Hoopa Tribal Member, and the mother resided within the Hoopa Valley Indian Reservation during the proceedings from which the appeal is taken. The child also resided within the Hoopa Valley Indian Reservation. Neither the mother nor the child is a member of an Indian tribe.
Appellant filed a Motion to Dismiss for Lack of Jurisdiction on March 23, 2004. On April 8, 2004, the Tribal Court entered its Order denying the motion to dismiss. Appellant appealed the denial of the motion to dismiss.
DISCUSSION
The Order from which the appeal is taken cited Title 2 Hoopa Valley Tribal Code § 2.1.04 providing for the application of traditional tribal law as the basis for subject matter jurisdiction. The Tribal Court found personal jurisdiction existed under Title 1 HVTC § 1.1.04 because the mother was domiciled within the exterior boundaries of the Reservation and consented to personal jurisdiction by making a general appearance. The Court cited the equitable powers granted to the Court under Title 2 HVTC § 2.7.01 and Title 3 HVTC Rule 68,1 rather than the court’s “territorial jurisdiction,” as the basis for ordering drug testing and substance abuse treatment for the parents, home studies, and visitation orders.
Appellant argues2 that the Hoopa Valley Tribal Court is a court of limited jurisdiction and has subject matter jurisdiction only if it is expressly granted by the Tribal Code. Appellant argues that the Tribe’s Child Welfare Code, Title 14 Hoopa Valley Tribal Code, does not confer jurisdiction to the Tribal Court to hear child custody disputes; that no other provision of the Hoopa Valley Tribal Code confers such jurisdiction; and that the rules governing the application of Traditional Tribal law in Title 2 are strictly procedural and apply only when stipulated to by the parties and in no way constitute a grant of subject matter jurisdiction.
We agree that Title 2 HVTC § 2.1.04 is a purely procedural rule and, as such, cannot confer subject matter jurisdiction on the Tribal Court. However, we do not agree that the Hoopa Valley Tribal Court is a court of limited jurisdiction. Neither Appellant nor amicus curiae have cited any authority in the Hoopa Valley Tribal Code or Constitution that limit the Court’s
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jurisdiction to those subjects upon which the Tribal Council has enacted legislation.3 Indeed, although HVTC § 2.1.04 does not confer jurisdiction on the Court, it clearly expresses the intent of the Tribal Council that there will be times when the Tribal Court will be required to decide matters where “no written Tribal law applies to a cause of action or the issues involved in an action.”
It is clear that the Hoopa Valley Tribal Court had jurisdiction when the initial petition was filed on March 8, 2001, pursuant to Hoopa Valley Tribal Code 1.1.04(b) and HVTC 1.1.04(b)(1), which state in their entirety:
(b) [Jurisdiction] Personal; Subject Matter. The Hoopa Tribal Court shall have jurisdiction of all suits involving persons whose residence is within the jurisdictional territory defined by this code; all other suits in which the party has been deemed to have consented to the submission to the jurisdiction of the Tribal Court, or in which the events giving rise to the action occurred within the territory so defined.
(1) Implied Consent. Any person entering the tribal lands of the Hoopa Valley Indian Reservation as defined in subsection (a) of this Rule, shall be automatically subject to the jurisdiction of the Hoopa Valley Tribal Court.
By its plain language, HVTC § 1.1.04 grants subject matter jurisdiction to the Tribal Court over “all suits” where personal and territorial jurisdiction have been established through residency, consent, or the locus of the events giving rise to the suit. The Tribal Court found that the parties, including the child, resided on the Hoopa Valley Indian Reservation. The Appellant/Respondent, Sierra Staton, consented to the jurisdiction of the Tribal Court by filing motions and appearing in the case.
Thus, from the date of the Petition, the Tribal Court had personal and subject matter jurisdiction to hear the case and issue appropriate Orders. In addition, upon the filing of the Request for an Emergency Hearing by Child and Family Services on April 21, 2003, the Court had jurisdiction to hear this matter under Title 14, HVTC.4 Although the Court did not follow
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the specific procedures in Title 14, the Court still retained jurisdiction for the reasons stated above. We also take judicial notice of the action of the Hoopa Valley Tribal Council, which on March 3, 2005, adopted a Domestic Relations Code that includes provisions for resolving custody disputes.
Amicus curiae’s argument based on Cobell v. Cobell, 503 F.2d 790 (9th Cir. 1974) is not applicable to this dispute. The custody dispute in Cobell arose in the context of the parents’ divorce proceedings. Cobell held that the tribal court did not have jurisdiction based on the Blackfeet Tribe’s “relinquishment” of jurisdiction through a specific code provision that explicitly disclaimed tribal jurisdiction over marriage, divorce and adoption and deferred to state law and state proceedings in those areas. Cobell, at 795. There is no “relinquishment” provision or disclaimer of jurisdiction in the Hoopa Valley Code and Cobell in no way stands for the proposition that Tribal jurisdiction is divested absent such a relinquishment or disclaimer. Indeed, Cobell cites the Restatement (Second) Conflict of Laws § 79 (1979) for the proposition that “presence, domicile and jurisdiction over the parents are well recognized basis for the assertion of jurisdiction to determine child custody.” Id. at 794. As the Tribe’s amicus brief acknowledges, a long line of U.S. Supreme Court and Ninth Circuit cases affirm that “Indian Tribes retain their inherent power… to regulate domestic relations among members.” Montana v. United States, 450 U.S. 544, 564 (1981); see, also, Boxx v. Long Warrior, 265 F.3d 771, 777 (9th Cir. 2001, en banc). Although there are limitations on tribal court jurisdiction over the activities of non-members on non-Indian fee land within the reservation, 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 Mut. Ins. Co. v. LaPlante, 480 U.S. 9, 18 (1987). Cobell does nothing to change these rulings except to add explicit relinquishment by a tribal ordinance to the list of actions that may deprive a Tribal Court of civil jurisdiction.
CONCLUSION
We hold that the Hoopa Valley Tribal Court had jurisdiction to determine the custody of the minor child identified as “D.L.M.” Although the Tribal Court denied Appellant’s Motion to Dismiss based on an erroneous legal theory, we affirm the result.
ORDER
We affirm the decision of the Hoopa Valley Tribal Court, and remand the case to the Tribal Court for further proceedings consistent with this opinion and in conformance with the
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provisions of the Hoopa Valley Tribal Code, including the recently enacted Hoopa Valley Domestic Relations Code.
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.
Both these sections provide that where the relevant Title “does not expressly address a question, the Court may issue any order to accomplish substantial justice.”
Appellant’s arguments are substantially embraced and enlarged upon in the Tribe’s amicus curiae brief. For purposes of clarity and brevity, the arguments in the amicus curiae brief will therefore not be separately addressed in this opinion unless otherwise noted.
For a provision creating a court of limited jurisdiction, see, e.g., former Ordinance 49, § 1.2.3.1 of The Tulalip Tribes of Washington, as cited in Hatch v. Cultee, 3 NICS App. 372, 375 (Tulalip Tr. Ct. App. 1995), whereby “[t]he civil jurisdiction conferred upon the Tribal Court … is hereby expressly limited to adjudications of disputes and matters arising under the provisions of the tribal ordinances and enforcement of the provisions of the tribal ordinances.” See, also, Article III, § 2 of the United States Constitution.
Arguably, subject matter jurisdiction was also conferred upon the Tribal Court on the date that the Appellee filed his initial petition for custody by Title 14 HVTC §14.1.6.2(d), which states that “Except as otherwise provided by law, the Children's Court shall have exclusive jurisdiction in proceedings under the authority of this title: (d) To determine the legal custody of any child or to appoint a guardian of the person or legal custodian of any child who comes within the children's court jurisdiction.” Because the Court of Appeals holds that subject matter jurisdiction to hear this matter was conferred under Title 1 HVTC at the time the Appellee filed his original petition for custody, we do not determine the question whether subject matter jurisdiction was also conferred by Title 14 at that time.