Brown on Behalf of Brown v. Rice

• Decision Date: 15 March 1991
• Docket Number: No. 90-4232-R.,90-4232-R.
• Citation: 760 F. Supp. 1459
• Parties: Allen and Leslie BROWN, on Behalf of Crystal BROWN, a minor, and Melanie Brown, a minor, Petitioners, v. Betty RICE, Native American Family Services, and the Prairie Band of Potawatomi Indians Tribal Council, Respondents.
• Court: U.S. District Court — District of Kansas

760 F. Supp. 1459

Allen and Leslie BROWN, on Behalf of Crystal BROWN, a minor, and Melanie Brown, a minor, Petitioners, v. Betty RICE, Native American Family Services, and the Prairie Band of Potawatomi Indians Tribal Council, Respondents.

No. 90-4232-R.

United States District Court, D. Kansas.

March 15, 1991.

Lynette F. Petty, Kansas Legal Services, Inc., Topeka, Kan., Judith A. Jones, Legal Services of Northeast Kansas, Seneca, Kan., for petitioners.

Scott D. McKenzie, Topeka, Kan., for respondents.

MEMORANDUM AND ORDER

ROGERS, District Judge.

Plaintiffs or petitioners in this case are Allen and Leslie Brown acting on behalf of Crystal and Melanie Brown. The defendants or respondents are Betty Rice, a social worker with Native American Family Services and the Prairie Band of Potawatomi Indians Tribal Council. Native American Family Services (NAFS) is a child protective services agency which works with three Indian tribes in the area, including the Potawatomi tribe. NAFS is licensed with the State of Kansas and is also governed by regulations of the Bureau of Indian Affairs and the traditions and rules of Indian tribes.

The petition asks this court to order respondents to release Crystal and Melanie Brown (particularly Melanie Brown) to the custody of petitioners. Crystal and Melanie Brown have been declared wards of the Administrative Body Court of the Prairie Band of Potawatomi Indians and placed by this tribal court in the custody, care and control of NAFS. The tribal court for the Prairie Band of Potawatomi Indians is the Tribal Council, which is also the executive governing body of the tribe. In this opinion, we shall refer to the Tribal Council, in most instances, as the tribal court.

At the direction of the tribal court, Melanie Brown has been placed by NAFS in the foster care of her paternal grandparents. The tribal court has granted petitioners care over Crystal Brown, although there is continuing supervision by NAFS. Betty Rice has worked directly with Melanie and Crystal Brown, their parents, and (we assume) the paternal grandparents on behalf of NAFS.

Melanie (age 14) and Crystal Brown (age 8) are of ¼ Indian blood and are enrolled members of the Potawatomi tribe, as is their father, Allen Brown, who is of ½ Indian blood. Melanie comes from a previous marriage of her father. Crystal is the only child produced from the marriage of Allen and Leslie Brown. Leslie Brown has two boys from another marriage (Tony and Michael). These boys, who are not of Indian ancestry, have been adopted by Allen Brown. No member of this family has ever resided on the Potawatomi reservation. They currently live in Topeka, Kansas. The paternal grandparents, with whom Melanie Brown has been placed, also live in Topeka, Kansas. Allen Brown occasionally hunts or fishes on the Potawatomi reservation. But, this is the only connection the family has to the reservation, aside from enrollment as members of the Potawatomi tribe.

On November 2, 1990, the four children of the Brown family were taken into protective custody by the Topeka police. Betty Rice and NAFS were notified either by the police or county child protection authorities. Betty Rice took custody of Melanie and Crystal. The two boys were temporarily placed in a foster home by State of Kansas authorities. Apparently, it is customary to ask NAFS to supervise the custody of Indian children taken into protective custody by state and local authorities, regardless of whether the children live on or off Indian territory.

A hearing was scheduled regarding all four children in Shawnee County District Court on November 6, 1990. Meanwhile, Betty Rice contacted the executive director of NAFS, Mr. Virgil Free. They decided to ask for an order of temporary custody from the Potawatomi tribal court. This was granted. Documents were also drafted on behalf of the Potawatomi tribe requesting transfer of jurisdiction from the state district court, intervention in the state district court proceedings, and temporary emergency custody of Melanie and Crystal Brown.

On November 6, 1990, prior to any hearing, the assistant district attorney, Timothy Henderson, met with the state district judge and moved, ex parte, for the dismissal of proceedings regarding Crystal and Melanie. Earlier the judge and Mr. Henderson had been given the motions for intervention, transfer and custody by Betty Rice. The position of the Potawatomi tribe did not cause the assistant district attorney to request dismissal of the proceedings involving Crystal and Melanie. After speaking with a social worker and considering the caseload pressures on the system, he thought it would be best to ask for a "family preservation referral" for the two boys and to dismiss proceedings regarding the two girls.¹

The state district judge believed that the Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901 et seq., applied and required transfer of proceedings to the Potawatomi tribal court, regardless of the position of the parents. However, no formal transfer order or procedure was followed. The case of Melanie and Crystal was simply dismissed with the notation that the ICWA applied. To reiterate, Leslie and Allen Brown were not consulted or present when this decision was made. No formal action was taken on the tribe's motions for transfer, intervention or custody. But, Melanie and Crystal remained in the custody of NAFS.

On November 14, 1990, petitioners received notice of a hearing before the Administrative Body Court of the Prairie Band of Potawatomi Indians on November 16, 1990 at 10:00 a.m. At the hearing, petitioners were present and represented by counsel. Betty Rice made a report to the tribal court. Petitioners objected to the tribal court's jurisdiction. Petitioners were invited to submit their jurisdictional objections in writing. The tribal court determined that it had jurisdiction to act, and it adopted the recommendations of Betty Rice. Upon these recommendations, the tribal court maintained custody of the two girls, placing Melanie with her paternal grandparents and Crystal with the petitioners. The tribal court's decision was recorded in writing approximately three months later, on February 16, 1991. (Exhibit 400). This order states in part:

The Court advised it has jurisdiction over this case, the parties and the subject matter and that proper notice had been given to all interested parties that could be located.

A review of the custody arrangement was conducted by the tribal court on February 25, 1991, two days before this case was scheduled for its first hearing in this court. Petitioners were present and again objected to the tribal court's jurisdiction. The tribal court reaffirmed its jurisdiction. Visitation of Melanie by petitioners was expanded, and a reintegration plan was established so that Melanie could be permanently placed in petitioners' home within 90 days.

There is no tribal judicial authority or appellate body above the Potawatomi tribal court (or Tribal Council). A lengthy tribal code has been formulated for the Prairie Band of Potawatomi Indians. The code has not been formally adopted and may still be under revision. The testimony before this court, however, was that the tribal court has been following the code for the last six or seven months. Reference to the code is made in the tribal court's order regarding the November 16, 1990 hearing. Portions of the code have been produced for this court's inspection and shall be placed in the record. However, prior to the first hearing before this court, counsel for petitioners could not obtain a copy of the code.

The tribal code provides that tribal courts shall have personal jurisdiction "over all defendants served in cases arising within the territorial jurisdiction and over all persons consenting to such jurisdiction." Section 104. "Territorial jurisdiction" is confined to Indian country under the code. Section 103. The code further provides:

The District Court shall have exclusive original jurisdiction in all proceedings and matters when such children are found within the jurisdiction of these Courts, or when jurisdiction is transferred to these Courts pursuant to law.

Section 106.

Subject matter jurisdiction. The court believes it has subject matter jurisdiction over this case. Petitioners essentially challenge the power and authority of the tribal court to restrict the actions of Crystal and Melanie. The Supreme Court has held that challenges to the exercise of jurisdiction by a tribal court present a question of federal common law which can be heard in a federal court under the general federal question statute, 28 U.S.C. § 1331. National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 853, 105 S.Ct. 2447, 2452, 85 L.Ed.2d 818 (1985). Other courts have also held that parents may challenge the jurisdiction of tribal courts to make custody determinations under the habeas corpus provisions set out in 25 U.S.C. § 1303. DeMent v. Oglala Sioux Tribal Court, 874 F.2d 510 (8th Cir.1989); U.S. v. Cobell, 503 F.2d 790 (9th Cir.1974). This would be another means of presenting basically the same federal question to this court.

Exhaustion of tribal remedies. The Supreme Court has made clear that before a federal court scrutinizes the assertion of tribal court jurisdiction, the tribal court should have the "first opportunity to evaluate the factual and legal bases for the challenge." National Farmers Union Ins. Co. v. Crow Tribe, supra, 471 U.S. at 856, 105 S.Ct. at 2454. A tribal court should have "a full opportunity to determine its own jurisdiction and to rectify any errors it may have made." Id. at 857, 105 S.Ct. at 2454. However, exhaustion of tribal remedies would not be required "where an assertion of tribal jurisdiction `is motivated by a desire to harass or is conducted in bad faith,' cf. Juidice v. Vail, 430 U.S. 327, 338, 97 S.Ct. 1211, 1218-19, 51 L.Ed.2d 376 (1977), or where the action is patently violative of express...