Comanche Indian Tribe of Oklahoma v. Hovis, CIV-92-2134-A.

• Decision Date: 28 March 1994
• Docket Number: No. CIV-92-2134-A.,CIV-92-2134-A.
• Citation: 847 F. Supp. 871
• Parties: COMANCHE INDIAN TRIBE OF OKLAHOMA, Plaintiff, v. The Honorable Richard E. HOVIS, individually and as Judge of the District Court of Kiowa County, State of Oklahoma; the district court of Kiowa County, State of Oklahoma, Defendants, and Rhonda Wahnee, Intervenor.
• Court: U.S. District Court — Western District of Oklahoma

847 F. Supp. 871

COMANCHE INDIAN TRIBE OF OKLAHOMA, Plaintiff, v. The Honorable Richard E. HOVIS, individually and as Judge of the District Court of Kiowa County, State of Oklahoma; the district court of Kiowa County, State of Oklahoma, Defendants and Rhonda Wahnee, Intervenor.

No. CIV-92-2134-A.

United States District Court, W.D. Oklahoma.

March 28, 1994.

COPYRIGHT MATERIAL OMITTED

Glenn M Feldman, O'Connor Cavanagh Anderson Westover Killingsworth & Beshears, Phoenix, AZ, Bob Rabon, Rabon Wolf & Rabon, Hugo, OK, for Comanche Indian Tribe of Oklahoma.

Rabindranath Ramana, Office of Atty. Gen., Oklahoma City, OK, for Richard E. Hovis and Kiowa County District Court.

Susan Bussey, Micheal C. Salem, Salem Law Office, Norman, OK, for Rhonda Wahnee.

ORDER

ALLEY, District Judge.

This matter is before the Court on the Motion for Summary Judgment, pursuant to Fed.R.Civ.P. 56, filed by plaintiff, Comanche Indian Tribe of Oklahoma ("the Tribe").¹ Defendants, Honorable Richard E. Hovis ("Judge Hovis") and District Court of Kiowa County, State of Oklahoma ("the State Court"), and intervenor, Rhonda Wahnee, have filed a response in opposition to the motion. The Tribe has filed a reply thereto, and the motion is at issue.

I.

This is a jurisdictional dispute concerning an eleven-year old Indian child, Kristy Wahnee ("Kristy"), who has been subjected to custody litigation in both the State Court and the Comanche Tribal Children's Court ("the Tribal Court").² At issue is which of the two courts — the State Court or the Tribal Court — has jurisdiction to adjudicate matters relating to Kristy pursuant to the Indian Child Welfare Act of 1978 ("ICWA"), 25 U.S.C. §§ 1901-1963, and whether jurisdiction in one or the other is exclusive.

The undisputed material facts underlying this action are that Kristy was born at the U.S.P.H.S. Indian Hospital ("Indian Hospital") in Lawton, Oklahoma on July 19, 1982, to Stuart Wahnee, a Comanche Indian, and Rhonda Wahnee, a non-Indian. After Kristy's birth, the Wahnee family lived primarily on the Kiowa-Comanche-Apache ("KCA") reservation in Lawton, Oklahoma. On April 19, 1984, Kristy's brother, Shannon Wahnee ("Shannon"), was born at the Indian Hospital. In July 1985, the Wahnee family moved into low-income HUD housing in Mountain View, Oklahoma, outside a reservation. Rhonda Wahnee filed for divorce from Stuart Wahnee on October 15, 1985.

On January 24, 1986, Stuart and Rhonda Wahnee executed a power of attorney granting custody and control of Kristy to her paternal aunt, Blanche Wahnee. The power of attorney reads as follows:

That I, Rhonda Wahnee & Stuart Wahnee ... have made, constituted and appointed, and by these paresnts sic do make, constitute and appoint Blanche Wahnee ... my true and lawful attorney, for me, and in my name, place and stead, and to my use to act for me in regards to my child Khristy sic Wahnee ... and to consent to and sign any necessary documents pertaining to any and all medical needs and school needs and records and to keep said child in their custody until such a time as I am able to provide for and to care for said child myself and to act in my stead regarding said child as I myself would have the right to act, giving my said attorney full power to do everything whatsoever requisite and necessary to be done in the premises, as fully as I could do if personally present, with full power of substitution and revocation, hereby ratifying and confirming all that my said attorney, or his substitute shall lawfully do, or cause to be done, by virtue hereof.

Power of Attorney at 1. Although there is some dispute as to the precise date when Kristy began living full-time with Blanche Wahnee, Kristy lived with Blanche Wahnee on January 24, 1986, the date the power of attorney was executed, and has lived with her ever since. Kristy's brother Shannon, however, continued to live with his mother.

Blanche Wahnee, Stuart Wahnee and Kristy are enrolled members of the Tribe. Blanche Wahnee owns a home on the KCA reservation where she stays during the summer months. She regards this home as her domicile. During the school year, she is in Lawrence, Kansas, where she teaches at the Haskell Indian College. Kristy stays with her aunt on the reservation in the summer and accompanies her to Kansas during the school year.

On May 2, 1986, the Tribal Court granted temporary custody of Shannon to his paternal grandmother after he was physically abused while at his mother's home. No party objected to the Tribal Court's jurisdiction. Thereafter, on May 16, 1986, at the request of Stuart Wahnee, the Assistant District Attorney for Kiowa County, Oklahoma filed a petition in the State Court requesting the State Court to determine that Shannon was a deprived child and to terminate Rhonda Wahnee's parental rights. As a matter of standard procedure, the petition also included Kristy. A hearing was held in the State Court on the matter on May 27, 1987, and the State Court noted that the Tribal Court wished to assume jurisdiction over the case. Rhonda Wahnee attended the hearing with her court-appointed counsel, and, through counsel, orally objected to the proposed transfer to the Tribal Court. The case was continued in State Court until July 27, 1987.

On June 9, 1987, the Tribal Court filed a motion in the State Court to transfer the case to the Tribal Court pursuant to the ICWA, 25 U.S.C. § 1911(b).³ The State Court issued an order to transfer, granting the motion on June 11, 1987. The Tribal Court issued an order accepting jurisdiction on June 26, 1987, and made Shannon and Kristy wards of the Tribal Court. On November 28, 1988, the Tribal Court, after a full hearing and a review hearing, specifically held: "The Comanche Tribal Children's Court has Personal and Subject Matter jurisdiction over this matter all in accord with the Comanche Indian Child Welfare Code and the Indian Child Welfare Act of 1978, P.L. 95-608."

Between September 4, 1987, and August 16, 1990, the Tribal Court conducted several custody and related hearings at which the Tribal Court recited that it had jurisdiction over both the subject matter and the parties. The majority of the hearings were attended by all parties. Rhonda Wahnee did not file any objections regarding the Tribal Court's jurisdiction, nor object to any of the specific hearings. On June 5, 1990, Shannon died.

On February 11, 1991, Rhonda Wahnee appeared through counsel in the State Court on a motion to vacate its order of transfer. The basis of the motion was that Rhonda Wahnee's oral objection to the transfer of the case at the May 27, 1987, hearing, made transfer of the action to the Tribal Court improper under the ICWA, 25 U.S.C. § 1911(b). The matter was heard by Judge Hovis, who issued an order vacating the transfer. Judge Hovis concluded that in view of Rhonda Wahnee's prior objection, the transfer order was void pursuant to § 1911(b).

On March 8, 1991, the Tribe filed in the State Court a motion requesting the State Court to rescind its February 11, 1991, order, or, in the alternative, to transfer the action back to the Tribal Court. The Tribe asserted that pursuant to the ICWA, 25 U.S.C. § 1911(a), the Tribal Court, not the State Court, had exclusive jurisdiction over Kristy. The Tribe further alleged, inter alia, that the State Court had no jurisdiction to vacate its prior transfer order; because once the transfer was done, the State Court lost all power in the case.

The State Court issued an order on June 5, 1991, denying the Tribe's motion to transfer and entering summary judgment in favor of Rhonda Wahnee. 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). Judge Hovis found that at the time of the filing of the original petition in the State Court, Rhonda and Stuart Wahnee were not residing on tribal land and therefore 25 U.S.C. § 1911(a) did not apply. He further ruled that the order transferring the case to the Tribal Court was void ab initio due to Rhonda Wahnee's timely objection. Blanche Wahnee appealed to the Supreme Court of Oklahoma through an application to assume original jurisdiction. Her application was denied on September 24, 1991.

On October 17, 1991, the Tribe filed in the Tribal Court a motion to intervene and a motion for summary judgment requesting the Tribal Court to reaffirm its repeated holdings that it had jurisdiction over Kristy's case. The Tribal Court issued an extensive order on February 5, 1992, granting summary judgment in favor of the Tribe and holding that the Tribal Court had exclusive jurisdiction to adjudicate Kristy's case pursuant to 25 U.S.C. § 1911(a) based on its findings that Kristy's was a resident of the reservation, was a domiciliary of the reservation, and was a ward of the Tribal Court. See In re Kristy Ann Wahnee; DOB 07/19/82, No. JV-86-9 (Comanche Tribal Child.Ct. Feb. 5, 1992). The action in this Court followed.

The Tribe's complaint in this Court, filed on October 28, 1992, seeks a declaratory judgment as to whether the Tribal Court or the State Court has exclusive jurisdiction to adjudicate matters relating to Kristy. Alternatively, the Tribe seeks a declaratory judgment directing that the case be transferred to the District Court of Douglas County, Kansas. Rhonda Wahnee filed a motion to intervene as a defendant on November 25, 1992, which the Court granted on December 21, 1992.

Motions to dismiss were filed by the State Court and Judge Hovis on December 8, 1992, and by Rhonda Wahnee on December 31, 1992. The Tribe filed responses thereto, and the Court held a hearing on the motions on July 21, 1993. The Court granted the motions to dismiss as to the Tribe's application to transfer, but denied the motions as to the overall jurisdictional dispute presented by this action. The matter is presently before the Court on the next round of motions, the Tribe's motion for summary judgment.

The...