Comanche Indian Tribe of Oklahoma v. Hovis, s. 94-6166
| Decision Date | 18 April 1995 |
| Docket Number | Nos. 94-6166,94-6167,s. 94-6166 |
| Citation | 53 F.3d 298 |
| Parties | COMANCHE INDIAN TRIBE OF OKLAHOMA, a federally recognized Indian Tribe, Plaintiff-Appellee, v. Richard E. HOVIS, individually and as Judge of the District Court of Kiowa County; Kiowa County District Court, of Oklahoma, Defendants, and Rhonda Wahnee, Defendant-Intervenor-Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
Micheal C. Salem (Guy Hurst, Asst. Atty. Gen., Oklahoma City, OK, with him on the brief), of Salem Law Offices, Norman, OK, for defendant-appellant.
Glenn M. Feldman of O'Connor, Cavanagh, Phoenix, AZ, for plaintiff-appellee.
Before KELLY, BRIGHT * and BARRETT, Circuit Judges.
Appellants (the District Court of Kiowa County, Oklahoma, Judge Richard E. Hovis, and intervenor, Rhonda Wahnee) appeal from the federal district court's entry of summary judgment in favor of the Comanche Indian Tribe of Oklahoma (the Tribe). See Comanche Indian Tribe of Oklahoma v. Hovis, 847 F.Supp. 871 (W.D.Okla.1994).
This case arose out of a jurisdictional dispute between the District Court of Kiowa County, State of Oklahoma (State Court) and the Comanche Tribal Children's Court (Tribal Court) regarding which court had jurisdiction to adjudicate a petition to terminate the parental rights of Rhonda Wahnee pursuant to the Indian Child Welfare Act (ICWA), 25 U.S.C. Secs. 1901-1963. A brief recitation of the facts material to our disposition follows.
On October 15, 1985, Rhonda Wahnee (Rhonda), a non-Indian, filed for divorce from Stuart Wahnee (Stuart), an enrolled member of the Tribe, in State Court. At that time, Rhonda and Stuart had two children, Kristy and Shannon, 1 and were living in low-income HUD housing in Mountain View, Oklahoma, outside the Comanche reservation.
On January 24, 1986, Stuart and Rhonda signed a power of attorney giving Stuart's sister, Blanche Wahnee (Blanche), an enrolled member of the Tribe, custody of Kristy.
In May, 1986, the Assistant District Attorney for Kiowa County, Oklahoma, filed separate petitions on behalf of Shannon and Kristy to terminate Rhonda's parental rights in the State Court. 2 At the same time, the State Court entered a divorce decree granting Rhonda and Stuart a divorce while staying the determination of custody and child support until resolution of the pending juvenile proceeding regarding termination of Rhonda's parental rights. In this regard, we note that Sec. 1903(1) of the ICWA defining "child custody proceeding" does not include an award, in a divorce proceedings, of custody to one of the parents, see infra part I. 25 U.S.C. Sec. 1903(1); see also In re Q.G.M. 808 P.2d 684, 687-88 (Okla.1991).
On June 16, 1986, the State Court concluded that Kristy was a deprived child and ordered Rhonda to comply with the Service Plan filed with the order. The Service Plan established the requirements that Rhonda must fulfill in order to demonstrate to the State Court that she could provide a safe and stable home for Kristy.
On May 27, 1987, at a hearing in State Court, the State Court noted that the Tribal Court wished to assume jurisdiction over the termination of parental rights proceeding. At that time, Rhonda orally objected to the transfer of the proceeding to Tribal Court.
On June 9, 1987, the Tribal Court filed a formal motion to transfer jurisdiction pursuant to Sec. 1911(b) of the ICWA. The State Court granted the motion on June 11, 1987. On June 26, 1987, the Tribal Court accepted jurisdiction of the juvenile proceeding for termination of Rhonda's parental rights.
On January 25, 1991, Rhonda filed a motion in State Court to vacate the June 11, 1987, order of transfer. The basis of her motion was that her oral objection at the hearing on May 27, 1987, made transfer to the Tribal Court pursuant to Sec. 1911(b) improper. 3
On February 11, 1991, the State Court vacated its June 11, 1987, order of transfer to the Tribal Court, concluding that in view of Rhonda's objection, the transfer pursuant to Sec. 1911(b) was void.
On February 27, 1991, the Tribe filed, in State Court, a motion to transfer pursuant to the ICWA Sec. 1911(a), claiming that, based on the facts of the case, the Tribal Court had exclusive jurisdiction.
On March 8, 1991, the Tribe filed another motion in State Court requesting the State Court to rescind its February 11, 1991, order or, in the alternative, to transfer the proceedings back to Tribal Court pursuant to Sec. 1911(a). The Tribe alleged that the Tribal Court, not the State Court, had exclusive jurisdiction pursuant to Sec. 1911(a) to determine the "child custody proceedings" regarding Kristy and that the State Court lost jurisdiction to vacate its prior transfer order once the transfer was complete.
On March 10, 1991, Rhonda filed a motion for summary judgment in opposition to the Tribe's motions to transfer, claiming that at the commencement of the juvenile proceeding Kristy was not a resident of nor domiciled on the reservation.
On March 29, 1991, the Tribe filed a response to Rhonda's motion of March 10, 1991, requesting the State Court deny Rhonda's motion for summary judgment and grant summary judgment to the Tribe, or in the alternative, set the matter over for a factual hearing on the issue of Kristy's domicile.
On June 5, 1991, the State Court denied the Tribe's motions and entered summary judgment in favor of Rhonda. 4 See In re Shannon James Wahnee; DOB: 4.19.84 and Kristy Wahnee; DOB: 7/19/82, No. JFJ-86-12 (D.Ct.3d Jud.D.Okla. Kiowa County June 5, 1991) Based on the evidence presented in the motion for summary judgment, the State Court found that at the time of the filing of the juvenile proceeding in the State Court, Rhonda and Stuart were not residing on tribal land. Therefore, the State Court concluded that Sec. 1911(a) did not apply. The court further ruled that the order transferring the case to the Tribal Court was void ab initio due to Rhonda's timely objection and that the Tribal Court never obtained personal jurisdiction over Rhonda. Although Blanche appealed the State Court's decision to the Oklahoma Supreme Court, the Tribe did not.
On October 28, 1992, the Tribe filed this action in the federal district court seeking a declaratory judgment as to whether the Tribal Court or the State Court has exclusive jurisdiction to adjudicate the proceeding regarding termination of Rhonda's parental rights. In its motion for summary judgment the Tribe sought a declaratory judgment that pursuant to Sec. 1911(a), the Tribal Court had exclusive jurisdiction.
On March 28, 1994, the federal district court ruled that: (1) the Tribal Court had exclusive jurisdiction pursuant to Sec. 1911(a) based on its findings that Kristy was a resident of the reservation, domiciled on the reservation, 5 and a ward of the Tribal Court; and, alternatively, (2) the State Court had no jurisdiction to reconsider and vacate the June 11, 1987, transfer order.
On appeal, Appellants contend that: (1) the federal district court erred in its determination that the residence and domicile of Kristy were the residence and domicile of Blanche and not that of her parents; (2) the federal district court erred in entering summary judgment where there were material questions of fact in issue regarding the domicile and residence of Kristy; (3) the federal district court improperly sat in appellate status of the State Court instead of giving full faith and credit to the State Court's rulings; and (4) the federal district court improperly assumed jurisdiction over this action.
Initially, it is important to clarify exactly what proceeding the State Court and Tribal Court are disputing over. It is clear that neither party disputes that Kristy is an "Indian child" pursuant to the ICWA. See 25 U.S.C. Sec. 1903(4). However, it is not clear what "proceeding" is at the heart of this jurisdictional dispute.
The main focus of the ICWA is in its provisions concerning jurisdiction over Indian child custody proceedings. Specifically, Sec. 1911 provides:
(a) Exclusive jurisdiction
An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of the tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.
(b) Transfer of proceedings
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child's tribe....
25 U.S.C. Sec. 1911. While Sec. 1911(a) creates exclusive jurisdiction in the Tribal Court over "child custody proceedings" in certain circumstances, Sec. 1911(b) creates concurrent but presumptively Tribal Court jurisdiction over specific child custody proceedings in other circumstances. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36, 109 S.Ct. 1597, 1601, 104 L.Ed.2d 29 (1989).
The ICWA specifically defines which "child custody proceedings" are within its purview. Section 1903(1) provides that:
(1) "child custody proceeding" shall mean and include--
(i) "foster care placement" ...;
(ii) "termination of parental rights" which shall mean any action resulting in the termination of the parent-child relationship;
(iii) "preadoptive placement" ...;
(iv) "adoptive placement"....
Such term or terms shall not include a placement based upon ... an award, in a divorce proceeding, of...
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