8 NICS App. 74, IN THE GUARDIANSHIP OF E.D. AND L.D. (September 2008)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
TULALIP, WASHINGTON
In the Guardianship of: E.D. and L.D.
L.B., Petitioner and Appellant,
v.
J.B. and S.B., Respondents.
No. TUL-CV-GU-2006-010, 011 (September 23, 2008)
SYLLABUS*
Presented with competing petitions for guardianship of two Indian minors, trial court denied the petition of the non-Indian who had been caring for the minors and awarded guardianship to the minors’ paternal grandmother and her husband. Court of Appeals holds that despite provision in the tribal code that places custom law on an equal plane with ordinances, an ordinance that includes a specific list of items or relationships excludes items or relationships potentially established by custom that are not included in the list, and that the non-Indian Petitioner’s relationship with the minors was therefore not within the statutory scheme of preferred placements. Trial court order affirmed.
Before: Jane M. Smith, Chief Justice; Daniel A. Raas, Justice; John C. Sledd, Justice.
Appearances: L.B., Appellant, pro se; Richard Okrent, counsel for J.B. and S.B., Respondents; Michelle Demmert; counsel for beda?chelh, amicus curiae.
OPINION
I. Background
This case involves the interplay between Tulalip custom and written law. Appellant argues that, considering Tulalip custom, the trial court erred in denying her petition for guardianship of two children.
8 NICS App. 74, IN THE GUARDIANSHIP OF E.D. AND L.D. (September 2008) p. 75
Beda?chelh, the Tulalip Tribes’ social service agency, filed a Youth in Need of Care petition under the Youth Code, Tulalip Tribal Ordinance 81, alleging that the children, L.D. and E.D., were in need of care and that neither of their parents were fit and proper guardians at the time of the petition. Both children are members of the Tulalip Tribes. The Trial Court entered an order finding the children in need of care and appointing the Appellant as their Temporary Guardian under TTO 81.2.3.1. As the case proceeded, the Trial Court determined that the children should have a Permanent Guardian appointed. The paternal grandmother and her husband, the Respondents, were proposed as permanent guardians.1 Appellant filed her own Petition for permanent guardianship.
TTO 81.2.11.1 sets priorities for permanent guardian selection and appointment:
B. Preference for Appointment of Guardian:
1. The order of preference for appointing a guardian, in the absence of good cause to the contrary, shall be:
a. A person who was indicated by the wishes of a deceased parent as indicated in a will or similar instrument;
b. Family members;
c. Extended family members;
d. A member of the Tulalip Tribes living on or near the Tulalip Reservation;
e. A member of another Indian tribe residing on or near the Tulalip Reservation;
f. A member of the Tulalip Tribes residing off the Tulalip Reservation; or
g. A member of another Indian tribe residing off the Tulalip Reservation.
2. If the order of preference cannot be met, placement shall be with any person who has a knowledge of and desire to foster the youth’s tribal affiliation and cultural needs.
3. In the Court’s discretion, the placement preference of the youth, his or her parents, guardian, or other custodian may be considered but may not be the controlling factor in determining placement;
4. Only in exceptional circumstances and for good cause shown may a non-Indian guardian or non-Indian facility be appointed guardian.
5. The appointment of a guardian shall be governed by the best interests of the youth who is the subject of the guardianship.
8 NICS App. 74, IN THE GUARDIANSHIP OF E.D. AND L.D. (September 2008) p. 76
6. If more than one sibling is having a guardian appointed, preference shall be given to a qualified person or facility that can serve as guardian for all siblings.2
TTO 49.1.2.3 sets out the formal relationship between Tulalip custom and statutory law:
The Tulalip Tribal Courts shall apply the laws and ordinances of the Tulalip Tribes, including the custom laws of the Tribes, to all matters coming before the Courts; …
Appellant presented evidence that she had been adopted by the family of the children’s mother in a culturally appropriate ceremony. As a result of the adoption, she maintains that she should be treated as, in her words, a ‘fictive aunt’ of the children. As such, she argues that as a fictive aunt, she is on par with Respondents as regards TTO 81.2.11.1B.1.b or c.
The Trial Court did not accept Appellant’s claimed ‘fictive aunt’ status as within the definition of “family” or “extended family” found in TTO 81.2.11.1B1..b or c. As a result, the Trial Court considered only the grandparents for placement as Permanent Guardians. Appellant seeks reversal of the Trial Court. The Court requested the views of amicus beda?chelh on the legal issues raised by this case.
II. Analysis
A. Whether Appellant Or Respondents Is/Are The Best Permanent Guardian For The Children Is Not At Issue.
The Trial Court refused to include Appellant as the children’s “aunt” under TTO 81.2.11.1B.1, and thus did not balance competing claims for Permanent Guardian between Appellant and Respondents. The suitability of the Permanent Guardian as between Appellant and Respondents is thus not part of this appeal. This appeal raises only the question of whether the Trial Court must reconsider its selection of a Permanent Guardian if we find the Appellant and Respondents have equal status under TTO 81.2.11.1B.1 for such placement.
8 NICS App. 74, IN THE GUARDIANSHIP OF E.D. AND L.D. (September 2008) p. 77
B. Examination Of Appellant’s Status As A “Fictive Aunt” Is Unnecessary
Appellant’s evidence showed that she had been adopted into the children’s mother’s family. Neither respondents nor beda?chelh has challenged this status on appeal. Thus, we do not have the situation of Dawes v. Yazzie, No. A-CV-01-85 (Navajo Nation S. Ct., July 10, 1987), where the Court faced the issue of the sufficiency of evidence supporting the District Court’s finding that a traditional adoption had taken place.
For this appeal, we accept Appellant’s adoptive status as a person not related to the children by blood or marriage, but standing in the customary position of a “fictive aunt” to the children, so far as the mother’s family is concerned. The issue before us is the effect of this familial status on the placement preferences of TTO 81.2.11.1B.1.
C. The Placement Preferences Do Not Prefer Tribal Members Within The Named Relative Classes
This case does not involve tribal membership. The Tulalip Tribes is the sole judge of its membership. Martinez v. Santa Clara Pueblo, 436 U.S. 49 (1978). Appellant does not claim that her customary adoption into the mother’s family was either an adoption into the Tulalip Tribes or made her eligible for adoption into the Tribes.
The code sections dealing with placement of children under age 14 with a permanent guardian, TTO 81. 2.11.1B.1.b. and c., do not mention tribal membership as a distinguishing factor within the family relationships for placement. Indeed, as admitted at oral argument, a tribal member might well have a family member or extended family member to whom she is related by either blood or marriage who is not a tribal member or even a member of any Tribe. There is nothing in Ordinance 81, the context of the placement sections or logic, to construe the placement ordinance preferences as requiring tribal membership for family or extended family members. For example, a non-Indian first or second cousin would have the same rank for placement as a tribal member first or second cousin.3
D. The Placement Preferences For Permanent Guardians Do Not Include ‘Fictive Aunts’ As Part Of Either The ‘Family’ Or The ‘Extended Family’ of TTO 81.2.11.1B.1. b. Or c.
Ordinance 81 is a sophisticated and complete set of procedural and substantive rules by which the Tulalip Tribes treats Children in Need of Care. It is not a copy of the Washington State system, either in substance or procedure. The concept of Permanent Guardian is foreign to the Washington system, which prefers termination of the biological parental relationship and
8 NICS App. 74, IN THE GUARDIANSHIP OF E.D. AND L.D. (September 2008) p. 78
placing a child for adoption. Reunification of the parents and child(ren) and preservation of family ties are stressed throughout the Ordinance, in part by the Permanent Guardian concept. These aspects of TTO 81, among others, explicitly incorporate Tulalip tribal custom.
TTO 81. 2.11.1B.1 in part divides placement preferences into two groups of persons: “family members”, TTO 81. 2.11.1B.b., and “extended family members”, TTO 81. 1.11.1B.c. Neither of these terms are further defined in TTO 81. However, TTO 81.1.2 contains a definition which informs our decision:
Relative: Any person who is the child’s parent, step-parent, grandparent, aunt or uncle, brother or sister, brother-in-law or sister-in-law, niece or nephew, first or second cousin, or anyone deemed by beda?chelh to have established a significant familial-type relationship with the child.
While the parties differ in their characterization of the dividing line between “family” and “extended family” in TTO 81.2.11.1B.b. and c., the definition of “relative” sets the outer limits of the combination of both “family” and “extended family”.4
The classification of traditional family relationships in central Puget Sound before non-Indian contact is preserved through oral custom and is reflected in anthropological studies. While both sources suffer from the problems associated with viewing a society that existed more than 200 years ago through modern eyes, and in a language not well suited to descriptions of relationships that were important to that society, the general outline of parts of these pre-contact societies can be perceived.
At pre-contact times central Puget Sound ‘Tribes’ in the modern sense did not exist. United States v. Washington, 384 F. Supp. 312, 354-5 (1974), (Finding of Fact 17), aff’d., 676 F.2d 520 (9th Cir. 1975), cert. den., 423 U.S. 1086 (1976). When the Treaty of Point Elliot, which the predecessor entities of the Tulalip Tribes signed, was negotiated in 1855, Governor Isaac Stevens created the modern tribes, Id. at 355 (FF 18), some of which later joined in the government now known as the Tulalip Tribes. United States v. Washington, 626 F.Supp. 1405,
8 NICS App. 74, IN THE GUARDIANSHIP OF E.D. AND L.D. (September 2008) p. 79
1527 (1985) (FF 439). These Tribes included the Snohomish, Skykomish and the Snoqualmie. Id.5
The basic social organization of these groups at pre-contact times centered around the village, the household and the family. Suttles, Wayne, and Barbara Lane, “Southern Coast Salish”, in 7 Handbook of American Indians: Northwest Coast, Suttles, ed., Smithsonian Institution (1990), at 493. The Lushootseed language spoken by these precursors of the Tulalip Tribes made different distinctions regarding family relationships than either neighboring languages or English. Id., at 495. For example, the same word for older sibling was also used for older cousin in Northern Lushootseed (spoken by the Snohomish and Skykomish). Id. Appellant’s adoption by the mother’s family is consistent with this description.
Customary practices are on an equal plane with the other laws and ordinances of the Tribes. TTO 49.1.2.3, supra, Wagner v. Tulalip Housing Authority, 6 NICS 75, 81-2 (Tulalip Tribal Ct. App. 2001). However, the custom relied upon by Appellant goes only so far.
Ordinance 81 is very clear as to the types of persons for placement. Preferred above others are the named relatives. TTO 81.1.2 and TTO 81.2.11.1B.1.b and c. Ordinance 81 speaks in well-understood and precise English terms regarding family relationships. Traditional relationships between a child and his or her biological or marriage relatives that existed before non-Indian contact could have been, but were not, incorporated into Ordinance 81, except to the extent that they also meet the definition of “significant familial-type relationship” in the Ordinance. Neither does Ordinance 81 include customs relating to adoption by a family as part of the preferences for placement.6
Our conclusion is supported by a rule of interpretation often used by federal and state courts when interpreting statutes. TTO 49.1.2.3 permits use of federal and state common law in the absence of Tulalip law.7 Federal and state common law agree that a specific list of items in a document excludes by implication any similar item that is not named. See, e.g. Chevron U.S.A. Inc. v. Echazabal, 536 U.S. 73 (2002), Wash. Nat. Gas Co. v. P.U.D. No. 1, 77 Wash. 2d 94, 98
8 NICS App. 74, IN THE GUARDIANSHIP OF E.D. AND L.D. (September 2008) p. 80
(1969). Applying this rule, the relative classes that are named in TTO 81.1.2 exclude those relatives not named: third cousins, great-grandparents, fictive aunts or uncles, etc.
Appellant’s status as ‘fictive aunt’ by her adoption by the children’s mother’s family does not make her a “relative” under TTO 81.1.2, and she is therefore not “family” or “extended family” within the preferences of TTO 81.2.11.1B.b. and c.
III. Conclusion
The Trial Court is affirmed. This matter is remanded to the Trial Court for further proceedings regarding the children under TTO 81.
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.
The grandmother’s husband and the children’s father and the children have different last names. Whether the grandmother’s husband is the biological grandfather of the children is not relevant to our decision.
TTO Chapter 81.2.11 is captioned “Youth in Need of Care – Legal Guardianship; Adoption.” A list of guardianship placement provisions, identical to TTO 81.2.11.1B also appears at TTO 81.3.3.2A, under the chapter heading “All Youth – Legal Guardianship; Adoption; Emancipation.” The Tribe’s child welfare agency, beda?chelh, appearing as amicus curiae, contends that the provisions quoted above apply to guardianships initiated to provide a placement for youth in need of care, and that TTO Chapter 81.3.3.2A applies to guardianships where the child has not been the subject of a youth in need of care proceeding. Because the preferences are identical, the Court need not determine whether the two chapters have different application. For brevity, we will cite only to Chapter 81.2.11.
In such a case, however, the Trial Court might consider TTO 81.1.11.1B.3, 4 and 6, which are not relevant to this appeal.
TTO 81.1.2 also defines who falls into the group of non-relatives who may be considered for placement:
“Significant Familial-Type Relationship: An ongoing personal relationship with the minor child that began at least (12) twelve months before the filing of the motion to intervene, … and in which the moving party has [h]ad physical custody of the child or has resided in the same household as the child….”
We need not decide if a temporary guardian, such as Appellant, would qualify as such a person by virtue of the temporary guardianship, nor whether the filing of a petition for guardianship would have the same effect under this Ordinance provision as the filing of a motion to intervene, because the children lived with Appellant for less than one year.
Other pre-treaty groups may be included in the current Tulalip Tribes. These three groups are named in United States v. Washington.
While the Nisqually Tribal Court of Appeals advises: “Tribal statutes which have been adopted in derogation to tribal tradition should be regarded with caution.” Stepetin v. Nisqually Indian Community, 2 NICS App 224, 232 (Nisqually Tribal Ct. App. 1993), the tribal custom advanced by Appellant here is not negated by TTO 81.2.11.1B.1 b. ands c. The ordinance relates to a technical, legal status in relation to the Tribal government and its courts, while the custom relates to personal status and relation to the children’s family. The ordinance does not affect the latter status.
TTO 49.1.2.3 provides: “The Tulalip Tribal Courts shall apply the laws and ordinances of the Tulalip Tribes, including the custom laws of the Tribes, to all matters coming before the Courts; provided, that where no applicable Tulalip tribal law, ordinance, or custom law can be found, the Courts may utilize, in the following order, the procedural laws of other federally recognized Indian Tribes, federal statues, federal common law, state common law, and state statutes as guides to decisions of the Courts.”