Harris v. Young

• Decision Date: 03 July 1991
• Docket Number: No. 17237,17237
• Citation: 473 N.W.2d 141
• Parties: John C. HARRIS, Appellee, v. Charlene K. YOUNG, formerly Charlene K. Harris, Appellant.
• Court: South Dakota Supreme Court

Page 141

473 N.W.2d 141

John C. HARRIS, Appellee, v. Charlene K. YOUNG, formerly Charlene K. Harris, Appellant.

No. 17237.

Supreme Court of South Dakota.

Argued March 20, 1991.

Decided July 3, 1991.

Curtis W. Hanks, Lemmon, for appellee.

Eric J. Antoine, Dakota Plains Legal Services, Mission, for appellant.

SABERS, Justice.

Indian mother living on reservation with her three children challenges the subject matter jurisdiction of state circuit court to modify the child custody provisions of a Wyoming divorce decree.

Facts

Young (mother) and Harris (father) were divorced by a Wyoming state court in 1981. Mother is an enrolled member of the Cheyenne River Sioux Tribe (tribe). Father is not an enrolled member of tribe and is apparently non-Indian.

The Wyoming divorce decree gave mother custody of the couple's three daughters: Bernice (b. 1974), Misty (b. 1976) and Sabrina (b. 1978). Prior to the divorce, mother and daughters moved to the town of Isabel in Dewey County, South Dakota. Isabel is within the boundaries of the Cheyenne River Indian Reservation (reservation). Daughters Bernice and Misty, like mother, have at all relevant times been enrolled members of tribe. Sabrina is not an enrolled member although her parentage is identical to that of Bernice and Misty and mother claims she is eligible for tribal enrollment. ¹

Later in 1981, mother petitioned circuit court in Dewey County to modify the custody and visitation provisions of the Wyoming divorce decree, alleging that father abused and mistreated the three daughters during summer visitation. The court issued a temporary restraining order enjoining father from exercising his visitation rights at Christmas, 1981.

In 1988, father moved near the town of Meadow in Perkins County, South Dakota. Perkins County is not within the boundaries of any Indian reservation. Sabrina spent Thanksgiving, 1988 with father. Afterwards, she refused to return to mother allegedly because of the environment of alcohol abuse and exposure to sexual misconduct.

On January 12, 1989, father petitioned circuit court in Dewey County to modify the 1981 Wyoming divorce decree and award him custody of all three daughters. Father's petition alleged that mother was often drunk, that Sabrina had seen mother having sex with three different men and that her sister had been sexually abused by mother's boyfriend.

On April 20, 1989, mother moved to dismiss father's petition, arguing that subject matter jurisdiction lies exclusively in tribal court. Following a hearing on mother's motion to dismiss held May 1, 1989, the court denied the motion to dismiss and ordered the 1981 Wyoming divorce decree modified to award custody of Sabrina to father. The court entered findings of fact and conclusions of law on October 16, 1989. Mother appeals and argues that the court erred in:

(1) Finding that mother and daughter reside outside the boundaries of reservation;

(2) Applying the Uniform Child Custody Jurisdiction Act to the proceedings;

(3) Applying the Indian Child Welfare Act to the proceedings; and

(4) Concluding that it had subject matter jurisdiction.

1. Reservation Boundaries

The court found that the home of mother and daughters in Isabel is "within the original exterior boundaries of the Cheyenne River Indian Reservation, but outside of the diminished reservation."

This finding is clearly erroneous. The United States Supreme Court has ruled that the Cheyenne River Indian Reservation was never diminished. Solem v. Bartlett, 465 U.S. 463, 481, 104 S.Ct. 1161, 1171, 79 L.Ed.2d 443 (1984). Beyond doubt, Isabel is within reservation boundaries and is "Indian country" within the meaning of 18 U.S.C. § 1151 (1988).

2. Uniform Child Custody Jurisdiction Act

The court concluded that it had "jurisdiction of the subject matter ... based on the factors contained in SDCL 26-5A-3 et seq....." This, too, is error for two reasons.

First, SDCL 26-5A-3 does not confer subject matter jurisdiction on any court. Chapter 26-5A is South Dakota's enactment of the Uniform Child Custody Jurisdiction Act (UCCJA). It merely sets forth the nexus which is sufficient for a court in this state to assume personal jurisdiction over a child custody case when relevant parties are in another state. In addressing itself to any "court of this state which is competent to decide child custody matters," the UCCJA assumes, but does not create, subject matter jurisdiction. SDCL 26-5A-3 (emphasis added).

Normally, any circuit court in South Dakota is "competent to decide" child custody matters. See SDCL 25-4-45. In this case, the question is whether the circuit court has subject matter jurisdiction over child custody matters where the children and one parent are Indians domiciled on a federally recognized reservation. The UCCJA provides no guidance in answering this question.

The second problem with reliance on the UCCJA in a custody matter where necessary parties are domiciled on a reservation is that the UCCJA speaks only of "states." An Indian reservation is not a "state" within the meaning of the UCCJA. SDCL 26-5A-2(10). Therefore, even for its intended limited purpose of establishing personal jurisdiction, the UCCJA has no application where parties reside not between different states but between reservation and non-reservation areas within the same state.

We conclude that to the extent the trial court based its finding of subject matter jurisdiction on SDCL 26-5A-3, the finding must be rejected.

3. Indian Child Welfare Act

Mother claims the court erred in applying the provisions of the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963 (1988), to the facts of this case. Although ICWA has no application in this case because the placement of a child with a parent in connection with a divorce decree is not a "child custody proceeding" within the meaning of ICWA, 25 U.S.C. § 1903(1); Application of Defender, 435 N.W.2d 717, 721-722 (S.D.1989), there is no basis for mother's claim. The court's findings of fact and conclusions of law do not mention ICWA, much less apply its provisions to this case. Therefore, we find no error in this regard.

4. Subject Matter Jurisdiction

Mother and her three daughters live on reservation. Mother and two of her daughters are enrolled members of tribe and the third daughter is allegedly eligible for enrollment. We must decide whether, under these circumstances, the circuit court had subject matter jurisdiction of the petition of the non-Indian, off-reservation father to modify custody provisions based on a change in circumstances which occurred on reservation. ²

[W]e must resort to the traditional jurisdictional test set forth in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). Under Williams, we must determine whether the exercise of state jurisdiction infringes upon the right of reservation Indians to make their own laws and be governed by them. Id. Further, we must be guided by the United States Supreme Court's admonition that tribal courts have been recognized as appropriate forums for the exclusive adjudication of disputes affecting important personal and property interests of both Indians and non-Indians. Santa Clara Pueblo v. Martinez, 436 U.S. 49, 98 S.Ct. 1670, 56 L.Ed. [2d] 106 (1978).... We also recognize that tribal courts play a vital role in the area of custody of Indian children. See Matter of Guardianship of D.L.L. and C.L.L., 291 N.W.2d 278 (S.D.1980).

Application of Defender, 435 N.W.2d at 722 (citations omitted).

The state of South Dakota has no general civil jurisdiction over Indians on reservations within its borders. State v. Spotted Horse, 462 N.W.2d 463, 467 (S.D.1990); Rosebud Sioux Tribe v. South Dakota, 900 F.2d 1164, 1167 (8th Cir.1990), cert. denied, 500 U.S. 915, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991). Clearly, if this were a custody dispute between two enrolled members of tribe domiciled on reservation, the subject matter jurisdiction of the tribal court would be exclusive. Fisher v. Dist. Court of Sixteenth Jud. Dist., 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976); see also Wells v. Wells, 451 N.W.2d 402 (S.D.1990).

In contrast, when one parent is a non-Indian domiciled off-reservation who petitions the state court for relief to which any state citizen is entitled, the Williams infringement test becomes a closer question. We note initially that mother fails to point out any specific ways in which the exercise of state jurisdiction under these circumstances would infringe on the right of reservation Indians to make their own laws and be governed by them.

In a similar case, the North Dakota Supreme Court ruled that a state court lacks subject matter jurisdiction over the child custody modification motion of the off-reservation father where the mother and child were domiciled on the reservation. Malaterre v. Malaterre, 293 N.W.2d 139 (N.D.1980). Malaterre is distinguishable because the father, although living off-reservation, was an enrolled member of the same tribe to which mother and child belonged. Following Malaterre, Byzewski v. Byzewski, 429 N.W.2d 394 (N.D.1988), held that the state court lacked subject matter jurisdiction over custody and support matters in a divorce action brought by an off-reservation, non-Indian husband against his reservation Indian wife. Byzewski, too, can be distinguished from the present case because there the husband lived continuously on the reservation with his wife for nearly three years, and only left the reservation after the wife began divorce proceedings in tribal court. The husband filed for divorce in state court approximately one day after moving off the reservation.

In Matter of Guardianship of Flyinghorse, 456 N.W.2d 567 (S.D.1990), this court recently held that a state court lacked subject matter jurisdiction over the petition of the Veterans Administration to assume guardianship of a reservation Indian, and that under the Williams v. Lee infringement test, the tribal court had...