8 NICS App. 81, IN THE MATTER OF S.T. (October 2008)
IN THE SQUAXIN ISLAND TRIBAL COURT OF APPEALS
SQUAXIN ISLAND INDIAN RESERVATION
SHELTON, WASHINGTON
In the Matter of S.T., a minor child.
M.R., Petitioner and Appellant,
v.
R.T., Respondent and Appellee.
No. SQI-CI-08-02-02 (October 22, 2008)
SYLLABUS*
Following a hearing on the merits, trial court denied great-grandmother’s petition for visitation with her great grandson. Court of Appeals holds that under tribal constitution, trial court only has subject matter jurisdiction where such jurisdiction is conferred by ordinance, and no ordinance confers jurisdiction to hear actions of the nature of this proceeding. Trial court order remanded with instructions to dismiss the petition for lack of jurisdiction.
Before: Lisa E. Brodoff, Senior Judge; Lisa L. Atkinson, Judge; Mark Johnson, Judge.
Appearances: Vicki Kruger, Spokesperson for Appellant, M.R.; Mark Allen, Squaxin Island Legal Department, for amicus curiae, Squaxin Island Tribe.1
OPINION
Johnson, J.:
This matter came before the Court of Appeals on Appellant’s appeal from a trial court order that denied her petition for visitation with her great-grandson, Appellee’s child, S.T. The purpose of visitation would be to facilitate S.T.’s participation in Squaxin Island tribal cultural activities.2 We accepted review on June 25, 2008. We hold that the Tribal Court lacked
8 NICS App. 81, IN THE MATTER OF S.T. (October 2008) p. 82
jurisdiction to hear Appellant’s petition and therefore remand the cause with instructions that the petition be dismissed.
The Squaxin Island Tribal Court has no constitutional status under Squaxin Island law; it is entirely a creature of statute created by the Tribal Council pursuant to the authority granted to the Council by Article III, § 1(h) of the Squaxin Island Constitution and Bylaws. Squaxin Island Tribal Code § 4.04.040 provides that the tribal court “shall have only those powers granted to it by the Tribal Council in this and other tribal laws,” and, more generally, that the Tribal Court “shall have the power to interpret and apply tribal law.” However, the Tribal Court only has jurisdiction “over persons and subjects as the Tribal Council gives it by ordinances or resolution.” SITC § 4.04.050.
This Court requested that the parties specifically address the question of whether the Tribal Court has jurisdiction to hear general family law matters.3 This Court also invited the Tribe to appear as amicus curiae and address the issue of jurisdiction.
Appellant has not identified a tribal law that authorizes an order for visitation with a non-parent, nor identified an ordinance or resolution of the Tribal Council granting the Tribal Court jurisdiction to review a petition for such an order.4 Although Appellant alluded to cases in which she claims the Tribal Court has ruled on visitation issues, she failed to establish that any such cases did not fall within the jurisdictional grant to the Tribal Court found in Title 10 of the Squaxin Island Code, the Tribe’s Youth Code. The Squaxin Island Tribe, appearing as amicus
8 NICS App. 81, IN THE MATTER OF S.T. (October 2008) p. 83
curiae, argued that the Tribal Court did not have jurisdiction to hear Appellant’s petition because the Tribal Council has not adopted an ordinance or resolution granting jurisdiction to the Tribal Court to hear such a petition. At oral argument, counsel for the Tribe stated his belief that the visitation orders alluded to by Appellant were issued pursuant to the narrow grant of jurisdiction to the Tribal Court under Title 10 of the code. See note 3, supra.
Although the laws of other jurisdictions, including other tribes, generally have no “binding or precedential effect on the interpretation or application of the laws of the Squaxin Island Tribe,” this Court “may consult the laws of other jurisdictions as it deems necessary or appropriate where there is no Squaxin Island Code, ordinance, resolution or common law on the subject, or as otherwise helpful to interpret existing Squaxin Island laws.” SITC § 1.04.020.
[T]he law is well settled that where constitutional or statutory provisions limit the jurisdiction of a court, as is the case here, objections to jurisdiction cannot be waived. Indeed, the rule is “inflexible and without exception” and requires the Court to deny its own jurisdiction even when not asked to do so by the parties and even when doing so will result in hardship to a party as a result of the opposing party’s failure to raise the objection.
Matilton v. Hoopa Valley Tribe, 7 NICS App. 65, 70 (Hoopa Valley Tribal Ct. App. 2005) (citations omitted).
The Tribal Court’s written Order in this case, entered February 26, 2008, states simply that Appellant’s “petition request, dated February 6, 2008 is hereby denied.” However, the transcription of the hearing in this matter and the presiding Judge’s oral ruling of February 26, 2008 indicate that the Judge was prepared to issue a default order granting the petition; that the Judge believed that if he was presented with “some sort of tribal moray [sic] or social laws or … oral law” supporting a non-parent’s claim for visitation rights, he could grant the petition; and that the Judge was denying the petition “at this time,” suggesting that the Judge believed he could grant such a petition in the future if presented with legal argument supporting a non-parent’s claim to visitation rights. Each of these statements indicate that the Judge mistakenly believed that he had jurisdiction to hear the petition, despite the clear limitation on the Court’s jurisdiction set forth in SITC § 4.04.050 and the Court’s independent obligation to establish its jurisdiction.
The Appellant has not identified an ordinance or resolution conferring jurisdiction on the Tribal Court to hear her petition, and this Court has found no such ordinance or resolution despite its own thorough review of the Squaxin Island Tribal Code. We therefore hold the proper ruling in this case is to “dismiss” the petition based on lack of jurisdiction, rather than to
8 NICS App. 81, IN THE MATTER OF S.T. (October 2008) p. 84
“deny” it based on a lack of authority supporting the petitioner’s claim.5 Although this may appear to be a rather fine and technical distinction, it is an important one, as it clearly avoids setting an erroneous precedent that the Tribal Court may have jurisdiction to hear petitions for visitation outside the scope of Title 10 or some other ordinance or resolution conferring jurisdiction on the Tribal Court. We therefore remand this matter to the Tribal Court for entry of an order dismissing the petition for lack of jurisdiction.
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.
Appellee did not appear for oral argument or file a brief. W.P and S.P., who identified themselves as Appellant’s sons, accompanied Appellant and addressed the Court briefly.
At oral argument, Appellant indicated that she was no longer seeking visitation, and simply sought to compel S.T.’s mother to facilitate S.T.’s participation in Squaxin Island cultural activities.
Title 10 of the Squaxin Island Tribal Code, the Tribe’s Youth Ordinance, gives the Tribal Court jurisdiction over “any proceeding concerning a youth alleged to be in need of care, termination of parental rights, adoption, or guardianship” regarding youth who meet certain criteria specified in Title 10. SITC § 10.04.020. There is no claim that S.T. is in need of care or that any other provision of Title 10 applies to the current proceeding.
SITC § 1.04.020 states that the written laws and common law of the Squaxin Island Tribe may be “supplemented by introduction of evidence of custom and tradition, as appropriate.” SITC § 4.32.110 grants the Court of Appeals the discretion to allow a party to present evidence not presented to the trial court “if refusal to consider the evidence would result in a clear injustice.” At oral argument, this Court allowed Appellant to present testimony from Dr. Dale Croes, an anthropologist familiar with tribal traditions surrounding the cultural training of Squaxin Island children. The Court of Appeals allowed the testimony of Dr. Croes for the sole purpose of determining whether Squaxin Island custom or tradition might rise to the level of a “tribal law” under SITC § 4.04.040 that might in turn affect this Court’s analysis of the jurisdictional limitation imposed by SITC § 4.04.050. Dr. Croes testified that Appellant, as the matriarch of her extended family, traditionally would act as the primary decision maker about the training and welfare of any of the family’s children, and that historically, the matriarch would even have had authority to take a child away from a parent who was not raising the child in a way that the matriarch deemed appropriate. At the level of cultural law, though, the matriarch’s authority to remove a child appears to have been similar to the powers now granted to the Tribal Court under the Youth Code, Tribal Code Title 10. While, by tribal tradition, Appellant may have great authority to guide the cultural training of her descendants, Dr. Croes was unable to say that tribal law would permit Appellant to remove the child from Appellee’s care for that reason, even on a temporary basis. Nothing in Dr. Croes’ testimony persuaded the Court of Appeals that tribal culture or tradition might have conferred jurisdiction on the Tribal Court to hear Appellant’s petition.
Compare definitions of “dismiss” and “deny” in Black’s Law Dictionary, Sixth Edition, where the definition of “deny” includes “to refuse to grant a petition or protest,” whereas the definition of “dismiss” includes “to dismiss an action or suit without any further consideration or hearing.”