DeMent v. Oglala Sioux Tribal Court
| Decision Date | 03 May 1989 |
| Docket Number | 88-5106,Nos. 88-5105,s. 88-5105 |
| Citation | 874 F.2d 510 |
| Parties | Henry F. DeMENT, Jr., on behalf of himself and as custodian to Rachel, Jacqueline and Genevieve DeMent, Appellee, v. OGLALA SIOUX TRIBAL COURT; Patrick Lee, Judge, Debra Redner, Appellant. Henry F. DeMENT, Jr., on behalf of himself and as custodian to Rachel, Jacqueline and Genevieve DeMent, Appellee, v. OGLALA SIOUX TRIBAL COURT; Patrick Lee, Judge; Appellants, Debra Redner. |
| Court | U.S. Court of Appeals — Eighth Circuit |
Mario Gonzalez, Pine Ridge, S.D., for appellant.
Before HEANEY * and BEAM, Circuit Judges, and LARSON, ** District Judge.
Debra Redner and the Oglala Sioux Tribal Court appeal the district court order finding that the tribal court lacked jurisdiction to adjudicate a custody battle between Redner and her former husband, Henry DeMent. 1 We affirm in part and reverse in part.
Henry DeMent and Debra Redner have three minor children: Rachel, Jacqueline and Genevieve. When DeMent, a non-Indian, and Redner, a member of the Oglala Sioux Indian Tribe, were divorced in March 1981 in Nebraska, a state court granted joint custody to both parents and physical custody to Redner.
In October 1981, Redner and DeMent reconciled and Redner moved with the children to be with DeMent in California. They lived together until August 1983 when the couple separated. The children continued to live with their father until June 1984 when Redner took them with her to live on the Pine Ridge Indian Reservation in South Dakota. Since that time, both parents have battled one another for physical custody of the girls.
On August 29, 1984, Redner obtained a temporary restraining order from the Oglala Sioux Tribal Court after DeMent threatened to take the girls back to California. DeMent was served with notice of the TRO when he traveled to the Indian reservation to visit the children. Although the tribal court set a hearing for September 4, 1984 to resolve the custody issue, DeMent kidnapped the children and took them to California before the hearing was held. DeMent was arrested in California and the children returned to their mother in South Dakota.
On October 10, 1984, DeMent asked Redner to drop the criminal charges against him, which she agreed to do after DeMent In the meantime, Redner sought an order from the tribal court confirming the Nebraska custody determination and making the children wards of the tribal court. This motion was granted on November 23, 1984.
promised never to steal the children again. The following day, DeMent filed an action in San Diego County Superior Court seeking a modification of the Nebraska court order awarding custody to Redner. On November 21, 1984, Redner filed a motion to dismiss this action and a notice of special appearance alleging that the California court had no jurisdiction over her and her children. On December 13, 1984, the court denied this motion, stating "Respondent's Motion to Dismiss on the basis of lack of Jurisdiction under [Uniform Child Custody Jurisdiction Act and] Indian Child Welfare Act (25 U.S.C. Sec. 1901 et seq.) and inconvenient forum is denied." No further reasons were given for the exercise of jurisdiction, even though at the time DeMent instituted the state proceedings, the children were living with their mother on the reservation
On January 17, 1985, the California state court held a custody hearing. Redner was not present at this proceeding, nor did she have legal representation. On January 31, 1985, the court awarded DeMent custody based on Redner's failure to file any opposition. When Redner sought reconsideration of the California decree, the court refused and awarded custody to DeMent on March 11, 1985.
The next day, DeMent traveled to South Dakota to take the children back to California. Redner obtained another restraining order from the tribal court and prevented DeMent from removing the children.
On May 16, 1985, the tribal court held a custody hearing. Although DeMent was present, he apparently objected to the tribal court's jurisdiction. On May 21, 1985, the tribal court ruled that it had jurisdiction to adjudicate the custody suit based on the domicile of the children on the reservation. It found that the California proceedings were invalid and refused to give full faith and credit to the California court order. It awarded custody to Redner. Shortly thereafter, DeMent kidnapped the children for a second time and took them to California.
Over the next year, the children lived with their father in California. Redner traveled to California and unsuccessfully sought a modification of the California court order. After several hearings and a court-ordered home study, the court refused to modify its earlier decree. On April 25, 1986, DeMent was awarded custody.
In the summer of 1986, DeMent allowed the girls to travel to Pine Ridge Indian Reservation to visit their mother. To ensure their safe return to California, he asked Redner to obtain an order from the tribal court that the California custody decree would be honored. On July 15, 1986, the tribal court entered a stipulation recognizing Redner's summer visitation rights. At the end of the summer, the children went back to California.
The parents agreed to the same arrangement for the summer of 1987. At the end of the summer, however, Redner refused to return the girls to California. On August 21, 1987, she obtained a restraining order from the tribal court preventing DeMent from taking the children. DeMent informed the San Diego authorities and a warrant was issued in California for Redner's arrest. The tribal court held a second custody hearing on October 8, 1987 but DeMent refused to attend, alleging that the tribal court lacked jurisdiction over him. The tribal court awarded custody to Redner on October 12, 1987.
DeMent then brought this action in district court in South Dakota seeking a writ of habeas corpus to regain custody of the children. He alleged that the tribal court had violated his right to due process under the Indian Civil Rights Act (ICRA), 25 U.S.C. Sec. 1302(8) and the Parental Kidnapping Prevention Act (PKPA), 28 U.S.C. Sec. 1738A, by refusing to enforce the California custody decree. The tribal court alleged that it has exclusive subject matter jurisdiction under the Indian Child Welfare Act (ICWA), 25 U.S.C. Sec. 1911(d), over Indian child custody proceedings and that the California court lacked jurisdiction over the The district court held that DeMent had no right to relief under either the PKPA or the ICRA. It also found the ICWA inapplicable to child custody proceedings between divorced parents and thus, inapplicable to the present suit. Finally, it held that the tribal court had no personal jurisdiction over DeMent and, thus, had no authority to adjudicate the custody dispute involving his children. The tribal court appeals to this Court arguing that the district court erred in holding that the tribal court had no jurisdiction to adjudicate the custody dispute between DeMent and Redner.
children while they resided on the reservation.
The district court dismissed DeMent's petition for habeas corpus relief after determining that neither the ICRA or the PKPA create a private right of action against either the tribal court or Redner. 2 We disagree. While we agree with the lower court that the PKPA does not give DeMent a cause of action, the ICRA does create a cause of action as well as federal habeas jurisdiction under appropriate circumstances.
Section 1303 of the ICRA provides: "The privilege of the writ of habeas corpus shall be available to any person in a court of the United States to test the legality of his detention by order of an Indian tribe." 25 U.S.C. Sec. 1303 (1983). See also Santa Clara Pueblo v. Martinez, 436 U.S. 49, 66-67, 98 S.Ct. 1670, 1681, 56 L.Ed.2d 106 (1978).
DeMent's complaint alleged that by refusing to enforce the California decree in 1987, the tribal court violated his right to due process protected by the Indian Civil Rights Act, 25 U.S.C. Sec. 1302(8). Section 1302(8) provides in part:
No Indian tribe in exercising powers of self-government shall--
* * *
* * *
(8) deny to any person within its jurisdiction the equal protection of its laws or deprive any person of liberty or property without due process of law * * *.
We believe the district court had jurisdiction to determine whether DeMent stated a claim under this statutory provision.
Furthermore, we cannot overlook the fact that the basic dispute in this case is whether California or the tribe had jurisdiction to determine the custody of DeMent's children. The question of whether an Indian tribe has the power to compel a non-Indian to submit to the civil jurisdiction of a tribal court is a federal question under 28 U.S.C. Sec. 1331. National Farmers Union Ins. Co. v. Crow Tribe, 471 U.S. 845, 852, 105 S.Ct. 2447, 2451-52, 85 L.Ed.2d 818 (1985). Thus, the district court had federal question jurisdiction in this case.
As stated above, we agree with the district court that DeMent has no direct federal cause of action under 28 U.S.C. Sec. 1738A. In Thompson v. Thompson, 484 U.S. 174, 108 S.Ct. 513, 98 L.Ed.2d 512 (1988), the Supreme Court of the United States held that this statute does not furnish an implied cause of action in federal court to determine which of two conflicting state custody decisions is valid. 3 Although
the PKPA was intended to eliminate custody struggles such as we have here, the Supreme Court in Thompson held that federal courts are not the appropriate forum to raise a PKPA claim. 4
We agree with the district court that the Indian Child Welfare Act does not apply to this case. Although the ICWA gives Indian tribes exclusive jurisdiction to determine the custody of Indian children, the statute only applies...
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