Wilburn v. State (In re S.J.W.)

Decision Date25 April 2023
Docket Number119404
Citation2023 OK 49
PartiesIN THE MATTER OF S.J.W., MINOR CHILD v. STATE OF OKLAHOMA, Petitioner/Appellee. STEPHEN and MORGAN WILBURN Respondents/Appellants,
CourtOklahoma Supreme Court

2023 OK 49


STEPHEN and MORGAN WILBURN Respondents/Appellants,
STATE OF OKLAHOMA, Petitioner/Appellee.

No. 119404

Supreme Court of Oklahoma

April 25, 2023



Phillip P. Owens II, OWENS LAW OFFICE, PC, Oklahoma City, Oklahoma, for Respondents/Appellants,

Jessica L. Dice, CARTER COUNTY DISTRICT ATTORNEY'S OFFICE, Ardmore, Oklahoma, for Defendant/Appellee.


Darby, J.

¶ 0 The deprived adjudication of a Muscogee (Creek) Indian child domiciled in the Chickasaw Nation's reservation results in concurrent state and tribal jurisdiction. 25 U.S.C. § 1911(b) (2018). Under the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 et seq., an Indian tribe has exclusive territorial jurisdiction over member Indian children domiciled within the external boundaries of their reservation. 25 U.S.C. § 1911(a). ICWA does not oust the State of its subject matter jurisdiction.


¶1 After the Carter County District Court adjudicated S.J.W., child, deprived, Parents (Appellants) appealed. S.J.W., through child's attorney, filed a motion to dismiss the appeal for lack of subject matter jurisdiction. S.J.W. claims the Chickasaw Nation has exclusive jurisdiction pursuant to 25 U.S.C. § 1911(a) based on the plain language in the Indian Child Welfare Act (ICWA), 25 U.S.C. §§ 1901 et seq., because S.J.W. resides within the Chickasaw reservation, notwithstanding the fact that S.J.W. is an Indian child and member of the Muscogee (Creek) Nation. Parents adopted S.J.W.'s argument as their first proposition of error. Alternatively, Parents argue if the district court does have jurisdiction, the trial court denied them due process in failing to complete the adjudication within the statutory time period allowed per 10A O.S. 2011, § 1-4-601(B)(2) ("If the adjudicatory hearing is delayed pursuant to this subsection, the emergency custody order shall expire unless the hearing on the merits of the petition is held within one hundred eighty (180) days after the actual removal of the child.").

¶2 On appeal, Parents raise two issues: first, whether Oklahoma courts have subject matter jurisdiction over a nonmember Indian child's deprived case arising in Carter County, which is completely within the external, territorial boundaries of the Chickasaw reservation; [1] and second, if the court does have jurisdiction, whether a delay in the adjudication hearing deprived Parents of their due process rights. With respect to the first issue, we hold the district court has subject matter jurisdiction to adjudicate S.J.W. deprived. Pursuant to 25 U.S.C. § 1911(b), the State of Oklahoma shares concurrent territorial jurisdiction with an Indian child's tribe when the Indian child is not domiciled or residing on the Indian child's tribe's reservation. [2] In our dual federalism system, an Oklahoma district court's subject matter jurisdiction may be limited by the Oklahoma or U.S. Constitution. U.S. Const., amend. X; Okla. Const. art. I, §§ 1, 7(a). In this case, the State's authority is not ousted by federal law. See 25 U.S.C. § 1911(b).

¶3 Next we find no violation of Parents' right to due process of law as any delay was not arbitrary, oppressive or shocking to the conscience of the court, and Parents had a meaningful opportunity to defend throughout the proceeding. Flandermeyer v. Bonner, 2006 OK 87, ¶ 10, 152 P.3d 195. See also In re A.M., 2000 OK 82, ¶ 9, 13 P.3d 484 ("In the context of a proceeding to terminate parental rights, the essence of procedural due process is a 'meaningful and fair opportunity to defend.'").


¶4 This case started in the spring of 2020, at the beginning of the COVID-19 pandemic. S.J.W. was born March 16, 2020--the same day this Court entered its first emergency order due to the outbreak of the novel coronavirus. [3] S.J.W. was taken into custody two days later on March 18, 2020. [4] At the end of March, the State filed its petition to adjudicate S.J.W. deprived. The State alleged: Morgan Rippetoe, [5] Mother, and Stephen Craig Wilburn, Father, posed a threat of harm to S.J.W.; reported Mother had mental health issues; and that both Parents have a history of domestic violence. The petition claimed the district court had jurisdiction pursuant to the Uniform Child Custody Jurisdiction Enforcement Act (UCCJEA), 43 O.S. 2011, §§ 551-101 et seq., and 10A O.S. 2011, § 2-2-102, and that ICWA and the Oklahoma Indian Child Welfare Act, 10 O.S.2011, §§ 40, et seq. applied because S.J.W. was eligible for enrollment with an Indian tribe.

¶5 The State filed the notice of child custody proceedings on May 27, 2020. The notice comported with ICWA requirements, reported S.J.W.'s tribal affiliation as Muscogee Creek, and listed the initial hearing for June 23, 2020. All parties appeared on June 23rd. On July 16th, Parents filed a motion to continue and requested additional time to present their case. The district court agreed and continued the hearing to August 5, 2020. On September 21st, Parents filed a "Motion to Dismiss Deprived Petition" claiming the delay in holding the adjudicatory hearing violated Oklahoma law and required dismissal of the State's petition. The very next day, on the State's motion, the district court set the matter for hearing within two weeks. On October 20th the State filed its witness and exhibit list, and on the 23rd of October the hearing reconvened and testimony was taken. The State's case continued to November 20th. On December 7, 2020, and February 12, 2021, Parents presented their arguments. The district court entered its order adjudicating S.J.W. deprived on February 12, 2021.

¶6 Mother and Father appealed alleging three propositions of error. [6] After the appeal commenced, S.J.W., by and through his attorney, filed a motion to dismiss the appeal for lack of subject matter jurisdiction alleging for the first time that neither the Carter County District Court nor the Oklahoma Supreme Court has subject matter jurisdiction of this case based on the United States Supreme Court's decision in McGirt v. Oklahoma, 591 U.S. __, 140 S.Ct. 2452, 207 L.Ed.2d 985 (2020), and Bosse v. Oklahoma, 2021 OK CR 30, 499 P.3d 771. Parents adopted S.J.W.'s argument that the State lacked subject matter jurisdiction to adjudicate S.J.W. deprived. We retained this case.


¶7 When a case comes before us on appeal, this Court has a duty to inquire into our own jurisdiction as well as the jurisdiction of the lower court. Broadway Clinic v. Liberty Mut. Ins. Co., 2006 OK 29, ¶ 25, 139 P.3d 873, 880. "When there are no contested jurisdictional facts, the question of subject matter jurisdiction is purely one of law which we review de novo." Reeds v. Walker, 2006 OK 43, ¶ 10, 157 P.3d 100, 107 (footnotes omitted). Whether a delay in the adjudication hearing constituted a due process violation is reviewed de novo. See In re A.M., 2000 OK 82, ¶ 6, 13 P.3d 484, 486-87." De novo review requires an independent, non-deferential re-examination of another tribunal's legal rulings." Id. (citations omitted).


¶8 S.J.W. and Parents claim that the application of McGirt [7] and Bosse [8] require the dismissal of this case for lack of subject matter jurisdiction. They argue the Chickasaw tribal court has exclusive jurisdiction per 25 U.S.C. § 1911(a) regardless of the fact that S.J.W. is a nonmember Indian child. Essentially, Parents argue that if any Indian child is domiciled or residing on any Indian reservation then the tribe with the reservation has exclusive subject matter jurisdiction regardless of whether the Indian child is a member of that tribe. The first proposition of error raises two significant questions: first, whether § 1911's "jurisdiction" is subject matter jurisdiction, and second, whether § 1911(a) applies.



¶9 At the heart of ICWA is its jurisdictional statute, which primarily concerns whether an Indian child's domicile is within the reservation of the Indian child's tribe. See Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 36, 109 S.Ct. 1597, 1601-02, 104 L.Ed.2d 29 (1989). [9] Subject matter jurisdiction cannot be waived. See In re A.N.O., 2004 OK 33, ¶ 9, 91 P.3d 646, 649. See also In re B.H. & A.H., 2022 OK 80, ¶ 3 (Kane, V.C.J., concurring specially) (noting the importance of the type of jurisdiction at issue in ICWA's jurisdictional statutory scheme). "[T]he word 'jurisdiction' is such a chameleon." See Moore v. Olson, 368 F.3d 757, 759 (7th Cir. 2004). While courts have ascribed different meanings to the general term "jurisdiction," questions challenging the district court's subject matter jurisdiction only concern those which allege a defect in the court's adjudicatory competence. Id. (citing Kontrick v. Ryan, 540 U.S. 443, 124 S.Ct. 906, 157 L.Ed.2d 867 (2004)). But the word "jurisdiction" can also refer to the territory of the judicial district, among other things. Moore, 368 F.3d at 759-60.

¶10 Territorial jurisdiction refers to a sovereign's--a nation's or state's-- "prerogative to control and regulate activities within its boundaries," which "is an essential, definitional element of sovereignty." Laker Airways Ltd. v. Sabena, Belgian World Airlines, 731 F.2d 909, 921 (D.C. Cir.1984). In most instances, the locus of the person, conduct, or harm provides the basis for jurisdiction, but citizenship of an individual is also recognized as a basis to support jurisdiction. Id. at 921--22 (footnotes omitted). In some instances, "two or more [sovereigns] may have legitimate interests in prescribing governing law over a particular controversy," and therefore "these jurisdictional bases are not mutually exclusive" but rather "often give rise to concurrent jurisdiction." Id. at 922...

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