United Keetoowah Band of Cherokee Indians in Okla. v. Barteaux

Decision Date30 September 2020
Docket NumberCase No. 20-CV-8-GKF-JFJ
Citation527 F.Supp.3d 1309
Parties The UNITED KEETOOWAH BAND OF CHEROKEE INDIANS IN OKLAHOMA, a federally recognized Indian tribe as parens patriae for K.P., and Kelly Pritchett Evan, an individual and next friend of K.P., Plaintiffs, v. T. Luke BARTEAUX, Presiding District Judge for the District Court of the Cherokee Nation of Oklahoma, a federally recognized Indian tribe, Defendant.
CourtU.S. District Court — Northern District of Oklahoma

Klint Austin Cowan, Fellers Snider Blankenship Bailey & Tippens, Oklahoma City, OK, for Plaintiff United Keetoowah Band of Cherokee Indians in Oklahoma.

Amanda Sue Proctor, Shiel Law Group PLC, Tulsa, OK, Klint Austin Cowan, Fellers Snider Blankenship Bailey & Tippens, Oklahoma City, OK, for Plaintiff Kelly Pritchett Evan.

Chrissi R. Nimmo, Cherokee Nation Office of the Attorney General, Tahlequah, OK, Donald J. Simon, Lloyd B. Miller, Sonosky Chambers Sachse Endreson & Perry LLP, Washington, DC, for Defendant.

OPINION AND ORDER

CREGORY K. FRIZZELL, UNITED STATES DISTRICT JUDGE

Before the court is the Motion to Dismiss [Doc. 23] of defendant T. Luke Barteaux, as Presiding District Judge for the District Court of the Cherokee Nation of Oklahoma. For the reasons set forth below, the motion is granted.

I. The Allegations and the Tribal Court Proceedings1

On October 6, 2016, a woman testing positive for amphetamines gave birth to a child, K.P., at the Cherokee Nation's Hastings Medical Center in Tahlequah, Oklahoma. The Cherokee Nation obtained emergency custody of K.P. soon after birth because of the mother's positive amphetamine test and her admission to methamphetamine use during pregnancy. [Doc. 20, p. 11, ¶¶ 35-37; Doc. 25-1, pp. 2-5]. In April 2017, the Nation's Indian Child Welfare Department (ICW) placed K.P. in foster care with plaintiff Kelly Pritchett Evan, K.P.’s paternal aunt. [Doc. 20, p. 12, ¶ 43; Doc. 25-1, p. 34, ¶¶ 7, 9]. Ms. Pritchett, like many of K.P.’s paternal relatives, is an enrolled member of plaintiff The United Keetoowah Band of Cherokee Indians in Oklahoma (UKB). [Doc. 20, p. 7, ¶ 18; Id. , p. 11-12, ¶ 39]. However, following a verbal disagreement between Pritchett and a Cherokee Nation child welfare worker, the Cherokee Nation's ICW removed K.P. from Pritchett's home and placed him in a new foster home with no biological connection to K.P. [Doc. 20, p. 13, ¶ 45]. K.P. continued in the Nation's custody for over three years until he was adopted by members of the Cherokee Nation on December 16, 2019. [Doc. 20, pp. 21-22, ¶ 79; Doc. 25-1, pp. 64-68].

Plaintiffs seek review of the Cherokee Nation's tribal court juvenile proceedings—the Juvenile Deprived Proceeding, Case No. JD-16-23, and the Adoption Proceeding, Case No. A-19-53—which culminated in K.P.’s adoption. In May 2018, the UKB's Attorney General filed a motion to intervene in the Juvenile Deprived Proceeding. [Doc. 20, p. 14, ¶ 49; Doc. 25-1, p. 12]. Judge Barteaux granted the motion in an Order filed on May 11, 2018 at 10:17 a.m., and found "[t]he UKB has an interest in the placement of minor child, K.P., who is eligible for enrollment in the UKB and whose family is enrolled UKB." [Doc. 25-1, p. 12, ¶ 1; see also Doc. 20, p. 14, ¶ 48]. The UKB's Attorney General entered a formal appearance and requested notice of all future proceedings involving the minor child to be directed to his law office in Oklahoma City. [Doc. 20, p. 14, ¶ 49]. But at 3:53 p.m., following a closed hearing during which the UKB's Assistant Chief listened in through the main door to the courtroom and during which hearing Judge Barteaux learned that newspaper articles regarding K.P. had been published, Judge Barteaux entered an Order vacating the Order he had entered earlier that day. He ordered that the "UKB, UKB representatives or agents, and or UKB counsel shall not have access to any CNO District Court files that Judge Barteaux has authority over, including but not limited to this case, until further Order of the Court." [Doc. 20, p. 15, ¶ 51; Doc. 25-1, p. 15, ¶ 9]. Plaintiffs allege that "[b]y virtue of the [second Order of May 11, 2018], the UKB officials and authorities were chilled in their efforts to protect the Minor Child" and K.P.’s family members "felt they could not seek relief from the UKB government or communicate with anyone—including legal counsel—about the Juvenile Deprived Proceeding due to the chilling effect of the [second Order of May 11, 2018]." [Doc. 20, p. 15, ¶ 53].

Plaintiff Pritchett and K.P.’s other family members nonetheless "hoped and believed that the natural father of the Minor Child would complete his individual service plan and correct the conditions resulting in the Juvenile Deprived Proceeding. However, "sufficient progress apparently was not made by natural father" and the Cherokee Nation moved to terminate his parental rights. [Id. , pp. 15-16, ¶ 54]. On November 9, 2018, following a jury trial, Judge Barteaux terminated the natural father's parental rights. [Id. , p. 16, ¶ 56; Doc. 25-1, pp. 26-28]. The jury found that the natural father had been given three months to correct the conditions which led to the deprivation of the child, but had failed to correct the conditions, and that termination of parental rights was in the best interests of the child. [Doc. 25-1, p. 28, ¶ 1]. In his Order, Judge Barteaux found "[t]he Cherokee Nation has provided active efforts to reunite the family but the natural father failed to comply with the Court-ordered treatment plan and failed to correct the conditions which led to the child's deprivation." [Doc. 25-1, p. 27, ¶ 9]. Those conditions included the use of methamphetamine. [Id. , ¶ 5].

Pritchett and her husband subsequently engaged a private attorney to file a Motion to Intervene in the Juvenile Deprived Proceeding and to Request Permission to Pursue the Adoption of the Minor Child. [Doc. 20, p. 16, ¶ 57]. However, the Cherokee Nation and K.P.’s court-appointed attorney opposed permanent placement with Pritchett in favor of placement with non-UKB members. [Id. , pp. 17-18, ¶ 63]. Plaintiffs allege that K.P.’s court-appointed attorney "had indicated to Pritchett's counsel that she also had been retained by the current foster parents to pursue an adoption of [K.P.] on their behalf" and "continued to take litigation positions ... which advanced the interests of the adoptive foster parents and disfavored [K.P.’s] biological family members and the UKB." [Id. , p. 17, ¶ 59]. Pritchett filed two separate Motions to Disqualify K.P.’s court-appointed attorney for irreconcilable conflicts of interest. [Id. ].

In an Order entered February 27, 2019, Judge Barteaux denied the Pritchetts’ request to intervene and pursue adoption of K.P. [Doc. 20, p. 18, ¶ 65; Doc. 25-1, p. 47]. He also denied the motions to disqualify K.P.’s court-appointed attorney, concluding the Pritchetts lacked standing to raise the issue. [Id. , ¶ 62; Doc. 25-1, pp. 47-48]. He noted Pritchett and her husband had placement of the child from April of 2017 until January of 2018, roughly nine months. [Doc. 25-1, p. 34, ¶ 9]. Then, "[a]t the request of [Pritchett and her husband] the child was removed from their home and the child was placed in [another] foster home." [Id. , p. 35, ¶ 11]. Judge Barteaux found the Cherokee Nation had just cause to remove K.P. from the Pritchetts’ home where the Pritchetts "voluntarily requested the child be removed, were given a chance to change their minds, and they refused to do so." [Id. , p. 45]. He concluded the Pritchetts lacked any mandatory or conditional intervention right "because they never gained a liberty interest in the child." [Id. ]. He also wrote that "it would also appear the child is not UKB eligible" because the Cherokee Nation had not consented to relinquish the child's Cherokee Nation citizenship. [Id. , p. 50; Doc. 20, p. 18, ¶ 66]. With respect to the UKB's intervention in the Juvenile Deprived Proceeding, Judge Barteaux wrote that, until such time as the Juvenile Deprived Proceeding is closed, "the Court's order stands that all UKB has to do to continue to intervene is to just show up and abide by the Court's orders just as they are required to do in any other tribal, state, or federal court system." [Doc. 25-1, p. 51].

The Pritchetts timely appealed Judge Barteaux's Order to the Cherokee Nation's Supreme Court. [Doc. 20, p. 19, ¶ 68]. On October 28, 2019, the Supreme Court upheld the termination of the natural father's parental rights but recommended "[c]laims asserted on appeal that counsel for the [current foster parents] may have acted improperly should be reviewed and clarified." [Id. , p. 20, ¶ 71; Doc. 25-1, p. 55]. The Supreme Court identified "[o]ther issues [that] permeated these proceedings." First, it stated that K.P. "may be eligible for membership of the United Keetoowah Band, a federally recognized Indian tribe who was not properly provided notice of the proceedings, a situation required by [Cherokee Nation] statutes." [Doc. 25-1, p. 55]. Second, it stated "[t]hat [the] statutory notice requirement was not followed, and the District Court should review how this matter was overlooked to determine if the rights of the minor child were abridged." [Id. , p. 56]. The Supreme Court concluded with the following admonition: "[p]roviding UKB with notice is a critical element of due process and benefits all parties to ensure that it is properly administered." [Id. , p. 56]. Plaintiffs here allege that Judge Barteaux "failed to effectively or meaningfully implement the [Cherokee Nation Supreme Court's] Order." [Doc. 20, p. 20, ¶ 73].

Plaintiffs also contend that the Cherokee Nation provided no notice to the UKB's Attorney General of the Supreme Court's order or any subsequent proceeding involving K.P., even though the Attorney General had entered a formal appearance in the Juvenile Deprived Proceeding. [Id. , ¶ 75]. Two days after the Supreme Court's Opinion, Judge Barteaux entered the following "Additional Order...

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    ...are insufficient to establish jurisdiction under 25 U.S.C. § 1303. See United Keetoowah Band of Cherokee Indians in Okla. v. Barteaux, No. 20-CV-8-GKF-JFJ, 527 F.Supp.3d 1309, 1317–18 (N.D. Okla. Sept. 30, 2020) (determining that defendant's motion to dismiss presented a facial challenge to......
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