In re J.D.M.C.

• Decision Date: 12 September 2007
• Docket Number: No. 23998.,23998.
• Citation: In re J.D.M.C., 2007 SD 97, 739 N.W.2d 796 (S.D. 2007)
• Parties: In re the Matter of J.D.M.C.
• Court: South Dakota Supreme Court

739 N.W.2d 796

2007 SD 97

In re the Matter of J.D.M.C.

No. 23998.

Supreme Court of South Dakota.

Argued October 2, 2006.

Decided September 12, 2007.

As Modified Upon Denial of Rehearing October 18, 2007.

William J. Janklow, Sioux Falls, SD and Gordon P. Nielsen of Delaney, Vander Linden, Delaney, Nielsen & Sannes, PC, Sisseton, SD, for appellant Father.

Andrew M. Small, Jessica L. Ryan of Blue Dog, Paulson & Small, Minneapolis, MN and Karen Gangle, Tribal Prosecutor, Agency Village, SD, for appellee Sisseton-Wahpeton Oyate.

Danelle J. Daugherty of Bantz, Gosch & Cremer, LLC, Aberdeen, SD, for intervenor appellee Mother.

SABERS, Justice.

[¶ 1.] We determine whether the circuit court correctly granted full faith and credit or comity to a tribal court abuse and neglect order when all parties, at all relevant times, lived off the reservation. Because the Sisseton-Wahpeton Oyate Tribe (SWO) and Mother did not meet their burden to show the tribal court had personal jurisdiction, we reverse the circuit court.

FACTS

[¶ 2.] Mother and Father were married in Sisseton, South Dakota, on December 27, 2002. Mother is an enrolled member of the SWO Tribe and Father is a non-Indian. The couple had two daughters, J.D.M.C. and T.J.C., both enrolled members of the SWO. In 2005, Mother and Father were divorced in state court in Sisseton, South Dakota, Roberts County. The parties shared joint legal and physical custody of both children, but the children resided with Father in Sisseton while Mother lived in Biloxi, Mississippi, where she was stationed as a member of the military. The parties agreed the girls would reside with Father during the school year and reside with Mother during the summer while she was stationed in Biloxi.

[¶ 3.] Despite this agreement, Mother and Father decided Father would have the girls for the summer of 2005. It was during this time that T.J.C. died when Father accidentally left her in the car while he went to work in Browns Valley, Minnesota. Father was investigated but no criminal charges were filed. Mother filed an abuse and neglect petition in tribal court, alleging J.D.M.C. was abused and neglected, based on the incident with T.J.C., and sought protective custody pending a child protection investigation. The tribal court entered an ex-parte emergency custody order making J.D.M.C. a ward of the tribal court. The state court would not grant comity¹ to the emergency custody order.

[¶ 4.] SWO's Child Protection Program (CPP) filed an emergency custody petition and Mother filed an abuse and neglect petition² in tribal court to remove J.D.M.C. from Father's custody. Father appeared specially to contest jurisdiction. While the tribal court found J.D.M.C. did not reside on the reservation, it found she was a ward of the tribal court. Therefore, the tribal court found it had jurisdiction and issued an order for emergency custody (order).³

[¶ 5.] SWO then filed a motion to enforce the order in circuit court. Father filed a motion for a comity hearing and to invalidate the order. Mother intervened in the action. At the hearing, Father argued the tribal court had no jurisdiction to enter the order since none of the parties had ever resided or been domiciled on the reservation. SWO contended the tribal court had exclusive jurisdiction under the Indian Child Welfare Act (ICWA), since J.D.M.C. was declared a ward of the tribal court. After the hearing, the circuit court adopted the tribal court's memorandum opinion and found the order was entitled to full faith and credit under ICWA. The circuit court also found SDCL 1-1-25, the comity statute, was preempted by ICWA. Despite firmly believing ICWA preempted SDCL 1-1-25, the circuit court went on to find the order met the requirements of SDCL 1-1-25.

[¶ 6.] Father appeals, raising the following issues:

1. Whether the circuit court erred in determining the tribal court had jurisdiction.

2. Whether the circuit court erred in determining the order was not subject to comity under SDCL 1-1-25 because ICWA preempted SDCL 1-1-25.

3. If ICWA does not preempt SDCL 1-1-25, whether the circuit court erred in determining SWO had met its burden of proving the comity factors set forth in SDCL 1-1-25 had been met by clear and convincing evidence.

4. Whether the circuit court erred in determining that SWO was not required to provide notice to the South Dakota Attorney General pursuant to SDCL 15-6-24(c), regarding its challenge to SDCL 1-1-25.

STANDARD OF REVIEW

[¶ 7.] This case involves a jurisdictional question. An issue regarding jurisdiction is a question of law reviewed de novo. Grajczyk v. Tasca, 2006 SD 55, ¶ 8, 717 N.W.2d 624, 627 (additional citations omitted). "[W]e afford no deference to the conclusions reached by the trial court." In re Adoption of H.L.C., 2005 SD 110, ¶ 18, 706 N.W.2d 90, 92 (quoting In re Yankton County Comm'n., 2003 SD 109, ¶ 9, 670 N.W.2d 34, 37).

[¶ 8.] Questions of statutory interpretation are reviewed de novo. People ex rel. J.S.B., Jr., 2005 SD 3, ¶ 12, 691 N.W.2d 611, 615 (citing City of Rapid City v. Pennington County, 2003 SD 106, ¶ 5, 669 N.W.2d 120, 121).

[¶ 9.] 1. Whether the circuit court erred in concluding the SWO had jurisdiction.

[¶ 10.] The major contention of SWO is that ICWA provides the tribe with exclusive jurisdiction because J.D.M.C. was a ward of the tribal court. SWO further argues in the alternative that (a) J.D.M.C. was domiciled on the reservation; and (b) a purchase service agreement between SWO and the state conferred jurisdiction to the tribe in this type of case.

[¶ 11.] In the early seventies, Congress became concerned about the detrimental effect the removal of Indian children from their homes was having on the Indian tribes, children and families. Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597, 1599-1600, 104 L.Ed.2d 29 (1989). In response, Congress enacted the Indian Child Welfare Act of 1978. Id.; see also 25 USCA §§ 1901-1963. This act was designed to limit the "wholesale removal of Indian children from their homes," ensure Indian tribes would not be negatively harmed by the removal, and allow Indian children to remain connected to the tribe through preferential Indian family and foster home placements. Holyfield, 490 U.S. at 32, 109 S.Ct. at 1600, 104 L.Ed.2d 29. The most important aspect of ICWA, especially for the purpose of this case, is its jurisdictional provisions. Id. at 36, 490 U.S. 30, 109 S.Ct. at 1601, 104 L.Ed.2d 29.

[¶ 12.] The starting point of ICWA is an Indian child, as there must be an Indian child who meets the statutory definition before ICWA is applicable. See People ex rel. D.T., 2003 SD 88, ¶ 16, 667 N.W.2d 694, 699. An Indian child is "any unmarried person who is under age eighteen and is either (a) a member of an Indian tribe or (b) is eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe." 25 USCA § 1903(4). After this threshold is met, ICWA's jurisdictional mandates can be separated into two different types of cases. In the first type of case, the Indian tribe would have exclusive jurisdiction. The exclusive jurisdiction cases involve "an Indian child who resides or is domiciled within the reservation of such tribe" or an Indian child who "is a ward of a tribal court. . . notwithstanding the residence or domicile of the child." 25 USCA 1911(a).⁴

[¶ 13.] In cases originating in State court, if the Indian child is not a domiciliary or resident of the reservation, or ward of the tribal court, then section 1911(b) of ICWA has been interpreted to create concurrent jurisdiction between the Indian tribe and the State court. Holyfield, 490 U.S. at 36, 109 S.Ct. at 1601-02, 104 L.Ed.2d 29 ("Section 1911(b) . . . creates concurrent[,] but presumptively tribal jurisdiction[,] in the case of children not domiciled on the reservation[.]"); In re Interest of C.W., 239 Neb. 817, 479 N.W.2d 105, 112 (1992); see also 25 USCA § 1911(b).⁵ A parent may object to the transfer of the case to tribal court, or the tribe may decline jurisdiction.⁶ 25 USCA § 1911(b).

[¶ 14.] In this case, J.D.M.C. is an Indian child since she is an enrolled member of SWO. 25 USCA § 1903(4). It is clear from the record that J.D.M.C. did not reside on the reservation. She was living in Sisseton at the time. ICWA defines "reservation" as:

Indian country as defined in section 1151 of Title 18 and any lands, not covered under such section, title to which is either held by the United States in trust for the benefit of any Indian tribe or individual or held by any Indian tribe or individual subject to a restriction by the United States against alienation.

Section 1903(10). "Indian country" is described in 18 USCA § 1151 as:

(a) all land within the limits of any Indian reservation under the jurisdiction of the United States Government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same.

Sisseton does not meet the definition of "reservation" under ICWA. The SWO reservation was determined to be diminished. See DeCoteau v. Dist. Court, 420 U.S. 425, 427-28, 95 S.Ct. 1082, 1084-85, 43 L.Ed.2d 300 (1975). Sisseton does not rest on the "checkerboard" of Indian land that resulted from the diminishment. Id. at 464, 420 U.S. 425, 95 S.Ct. at 1102, 43 L.Ed.2d 300 (Douglas, J., dissenting). Nor is that portion of Sisseton on which they resided trust land or allotted land or a dependent Indian community. Therefore, they did not reside in Indian country.

[¶ 15.] However, SWO claims it has exclusive jurisdiction because (a) J.D.M.C. is domiciled on...