Adoption of Buehl, Matter of

• Decision Date: 04 November 1976
• Docket Number: No. 44120,44120
• Citation: 555 P.2d 1334,87 Wn.2d 649
• Parties: In the Matter of the ADOPTION OF Daniel Keith Duckhead BUEHL, a minor. Patricia DUCKHEAD, Petitioner, v. Robert L. ANDERSON and Theda Anderson, his wife, Respondents.
• Court: Washington Supreme Court

Page 649

87 Wn.2d 649

555 P.2d 1334

In the Matter of the ADOPTION OF Daniel Keith Duckhead BUEHL, a minor. Patricia DUCKHEAD, Petitioner, v. Robert L. ANDERSON and Theda Anderson, his wife, Respondents.

No. 44120.

Supreme Court of Washington, En Banc.

Nov. 4, 1976.

Rehearing Denied Dec. 2, 1976.

Halverson, Srong, Moen & Chemnick, Sidney J. Strong, Seattle, Wash., for petitioner.

Allen H. Sanders, Legal Services Center, Joan Andersen, Seattle, for respondents.

Bruce Thompson, Daniel A. Raas, Office of the Reservation Atty., Quinault Indian Nation, Taholah, for amicus curiae, Quinault Indian Tribe.

Michael Taylor, Taholah, Sandra K. Watts, Browning, Mont., for amicus curiae, Blackfeet Indian Tribe.

UTTER, Associate Justice.

Patricia Duckhead and her son, Daniel Duckhead Buehl, are enrolled members of the Blackfeet Tribe of the Blackfeet Indian Reservation in Montana. In 1974, the Blackfeet Tribal Court placed Daniel in the temporary foster care of Robert and Theda Anderson, residents of Washington. The tribal court subsequently ordered the return of the child to the natural mother. The Andersons refused to comply with the court order and instituted adoption proceedings in King County Superior Court. The court assumed jurisdiction of the matter but then dismissed the action, holding that the tribal court order was entitled to full faith and credit. Patricia Duckhead then petitioned the King County Superior Court for a writ of habeas corpus. Another department of that court held the tribal court decree was not entitled to full faith and credit and ruled there should be an independent determination of custody by a court of this state. Appeals from both rulings were consolidated. The fundamental issue presented is the extent to which an Indian tribe, located in another state, retains authority over its children, free from interference by the courts of this state.

I

The stipulated record and agreed statement of facts submitted by the parties reveal the following. As an enrolled member of the tribe, petitioner-appellant Patricia Duckhead has lived her entire life on or near the Blackfeet Indian Reservation, located within the exterior boundaries On September 6, 1973, Daniel, aged 8 months, was taken into the 'temporary protective custody' of the Blackfeet Tribal Court. The court arranged care for the child with supervisory assistance from the Glacier County Welfare Department. Subsequently, tribal court Judge Howard Doore contacted the Andersons about their interest in assuming foster care of Daniel. On March 20, 1974, Judge Doore ordered the child placed with the Andersons 'for the Period of one (1) Year, probationary, for his Health, Education, and Welfare. The natural mother may petition after six (6) months for custody.' Courtesy supervision was provided by the Washington Department of Social and Health Services, which was asked to license this foster placement. The following day, the Andersons signed a document, presented by Judge Doore and signed by the clerk of the tribal court, stating that the Andersons 'agree to return Daniel . . . to the Blackfeet Indian Reservation, Browning, Montana, if his natural mother, Patricia Duckhead Buehl, petition the Blackfeet Tribal Court.'

of Montana. She is the natural mother of Daniel, also an enrolled member of the tribe. Robert Anderson is a member of the Blackfeet Tribe and his wife, Theda, is an enrolled member of the Shoshone-Bannock Tribe. The Andersons, respondents in this matter, reside in Seattle, Washington.

The mother did petition the tribal court for a hearing on custody, held before Tribal Court Judge John Sharp on December 17, 1974. The court found that 'the welfare reports and the testimony of the two county welfare workers . . . show that unquestionably Patricia Duckhead has made a remarkable recovery and that she presently is fit and able to care for her child.' The court also found it was in the best interest of the child to be returned to his natural mother and so ordered. The Andersons were notified of the order but refused to release Daniel. This litigation followed.

The Blackfeet Tribe is a self-governing Indian tribe, organized under the Indian Reorganization Act of 1934, 25 U.S.C. § 461 Et seq. (1970), and recognized as such by the

                Secretary of the Interior.  The 1934 act is a 'statute specifically intended to encourage Indian tribes to revitalize their self-government.'  Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 946, 47 L.Ed.2d 106 (1976).  Pursuant to the Blackfeet Constitution, the tribe maintains a court system consisting of a trial court and appellate court of five Justices.  The former is composed of a small claims court, a traffic court, a juvenile court, and a general civil and criminal tribal court.  All actions, with the exception of those in small claims court, are brought in the name of the Blackfeet Tribal Court.  The tribe operates under its own set of laws, ordinances and resolutions, adopted by the governing Tribal Business Council.  The pertinent juvenile code provisions are found in chapter 7 of the Blackfeet Tribal Law and Order Code of 1967, as amended.  1 [555 P.2d 1337] We hold the Blackfeet Tribal Court, acting according to its tribal laws and customs, has exclusive jurisdiction to determine whether a Blackfeet Indian mother is to retain custody of her child
                

II

The relationship of Indian tribes with the several States of the Union has a long and complex history. See generally U.S. Department of the Interior, Federal Indian Law (1958); Canby, Civil Jurisdiction and the Indian Reservation 1973 Utah L.Rev. 206. Today courts recognize Indian tribes as 'unique aggregations possessing attributes of sovereignty over both their members and their territory . . . they are 'a separate people' possessing 'the power of regulating their internal and social relations . . .'' United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 717, 42 L.Ed.2d 706 (1975), Quoting United States v. Kagama, 118 U.S. 375, 381--82, 6 S.Ct. 1109, 30 L.Ed. 228 (1886). This statement rests on a policy first articulated in Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 557, 561, 8 L.Ed. 483 (1832), in which the Supreme Court held (T)he several Indian nations (are) distinct political communities, having territorial boundaries, within which their authority is exclusive, and having a right to all the lands within those boundaries, which is not only acknowledged, but guarantied by the United States.

The whole intercourse between the United States and this (Indian) nation, is, by our constitution and laws, vested in the government of the United States.

(Italics ours.) The Supreme Court has recently noted "(t)he policy of leaving Indians free from state jurisdiction and control is deeply rooted in the Nation's history." ² McClanahan v. Arizona State Tax Comm'n, 411 U.S. 164, 168, 93 S.Ct. 1257, 1260, 36 L.Ed.2d 129 (1973). See Warren Trading Post Co. v. Arizona Tax Comm'n, 380 U.S. 685, 686--87, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965). Thus, Congress has consistently acted upon the assumption that the states have no power to regulate affairs of Indians on reservations and has expressly granted jurisdiction to the states when it has desired to do so. Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959).

The Indian sovereignty doctrine has not remained static during the last century. Changing conditions led the Supreme Court in Williams v. Lee, supra 358 U.S. at 219, 79 S.Ct. at 270 to modify the principle of Worcester v. Georgia, supra, 'in cases where essential tribal relations were not involved and where the rights of Indians would not be jeopardized . . .' In Williams, the court held that state courts could not exercise jurisdiction over a civil suit by a non-Indian against an Indian where the cause of action arose out of a commercial transaction on an Indian reservation.

(A)bsent governing Acts of Congress, the question (is) whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.

Williams v. Lee, supra, 358 U.S. at 220, 79 S.Ct. at 271. The principle of Indian sovereignty is a backdrop against which to read the applicable treaties and statutes, state and federal, which define the limits of state power. See Mescalero Apache Tribe v. Jones, 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114 (1973); McClanahan v. Arizona State Tax Comm'n, supra, 411 U.S. at 172. Such an approach was employed by this court in State ex rel. Adams v. Superior Court, 57 Wash.2d 181, 356 P.2d 985 (1960), and In re Colwash, 57 Wash.2d 196, 356 P.2d 994 (1960), which held that, under the then-existing law, the state probate court was without jurisdiction to determine the custody of Indian children residing on a reservation within Washington.

III

Jurisdiction over the subject matter of an action is an elementary prerequisite to the exercise of judicial power. It is the authority of the court to hear and determine the class of actions to which the case belongs. See Washington Optometric Ass'n v. Pierce County, 73 Wash.2d 445, 447 n.1, 438 P.2d 861 (1968). A court lacking such jurisdiction may do nothing other than enter an order of dismissal. Deschenes v. King County, 83 Wash.2d 714, 716, 521 P.2d 1181 (1974).

A.

Respondents Anderson predicate Washington jurisdiction to determine the custody of Daniel Duckhead Buehl on two alternative grounds. First, they rely upon RCW 37.12.010, enacted under the Congressional authorization contained in Public Law 83--280, ch. 505, § 7, 67 Stat. 588. ³ The statute was an attempt to strike a balance between abandoning the Indian to the states and maintaining them as wards of the federal government, subject only to federal or tribal jurisdiction. Goldberg, Public Law 280. The Limits of State Jurisdiction Over Reservation Indians, 22 U.C.L.A.L.Rev. 535, 537 (1975). The Act of August 15, 1953, gave the This state took the requisite action in adopting RCW...