| (Cite
as: 435 N.W.2d 717)
Supreme
Court of South Dakota.
In
the Matter of the Application of Carole DEFENDER for a
Writ of Habeas
Corpus,
Petitioner and Appellee.
Loren
Zephier, Respondent and Appellant.
No.
15945.
Considered
on Briefs Oct. 11, 1988.
Decided
Jan. 18, 1989.
*718
Billy Joe Jones, Dakota Plains Legal Services, Fort Yates, N.D.,
for petitioner and appellee.
Charles B. Kornmann of Richardson, Groseclose, Kornmann, and Wyly, Aberdeen,
for respondent and appellant.
MILLER, Justice.
In this child custody appeal we hold that (1) the
circuit court properly refused to grant comity to a certain
tribal court order, (2) the Indian Child Welfare Act does
not apply to custody disputes between a child's natural parents,
and (3) there was no abuse of discretion in awarding
custody of the child to its mother.
FACTS
The parties to this litigation are Indian. Appellant
Loren Zephier (Father) is an enrolled member of the Cheyenne
River Sioux Tribe. Appellee Carole DeFender (Mother) is
enrolled in the Standing Rock Sioux Tribe. Their
daughter, Danielle, is enrolled with the Cheyenne River Sioux Tribe.
Danielle was born out of wedlock on February
4, 1982. At the time of Danielle's birth,
Mother was living in Aberdeen, South Dakota, where she held
a temporary position with the Bureau of Indian Affairs (BIA),
and Father resided in Sioux Falls, South Dakota, where he
worked for Minnehaha County. After Danielle's birth, Father
*719
would travel frequently to Aberdeen to visit his daughter.
Despite these visits, the parents were unable to agree
on child support and visitation matters.
Mother's temporary position with the BIA ended in November 1983.
She then moved to her parents' home in
Kenel, South Dakota, which is located on the Standing Rock
Sioux Indian Reservation. In August 1984 she began
attending the University of North Dakota (UND), necessitating that she
move her family to Grand Forks, North Dakota.
[FN1] The record indicates that from November 1983 to
April 1986 Father visited his daughter on only one occasion,
when he had the child for approximately one month.
FN1.
Mother has two older children born out of wedlock.
Mother's fifteen-year-old son lives with her parents in Kenel.
Astrid (a female child, age 12 at the
time of the hearing) resides with Mother.
In June 1984 the circuit court in Minnehaha County ordered
Father to pay $250 per month in child support for
Danielle. He failed to comply with that order,
resulting in two separate contempt proceedings. In June
1985 Father filed a petition for permanent custody of Danielle
with the Cheyenne River Sioux Tribal Court. At
that time, Father resided in Sioux Falls and Danielle and
Mother were in Grand Forks. The record indicates
that Mother was never properly served with a copy of
that petition and that the tribal court did not act
upon the petition at that time. However, Father
ceased making child support payments from the time he filed
the petition with the tribal court until September of 1986.
In March 1986 the Cheyenne River Sioux Tribal Court granted
an ex parte temporary custody order which awarded Father temporary
custody of Danielle. At that time, Mother and Danielle were
still living in Grand Forks and Mother contends that she
was never notified of any hearing to be held regarding
that custody order.
In April 1986 Father traveled to Grand Forks.
At that time the parties agreed
that he could take Danielle with him, on the condition
that she be returned to Mother in August.
Mother contends that she was not aware of the temporary
custody order entered by the tribal court.
In late April 1986 Mother received a letter from the
Cheyenne River Sioux Tribal Court notifying her that a hearing
on the permanent custody of Danielle would be held one
week later. Mother telephoned the tribal court office
and asked for a continuance of that hearing because of
her pending final examinations at UND. Her request
for a continuance was denied and the tribal court conducted
the hearing in Mother's absence. The tribal court
granted permanent custody to Father with visitation rights to Mother.
It also vacated and forgave Father for all
child support arrearages which had accrued under the circuit court's
child support order.
Mother filed a motion for relief from the tribal court's
custody order in May 1986 alleging that the tribal court
lacked jurisdiction and that the service of process upon her
was insufficient. That motion has yet to be
ruled upon by the tribal court.
Meanwhile, Father attempted to utilize the tribal court custody order
to vacate the circuit court's order regarding child support payments.
In July 1986 the circuit court in Brown
County held a hearing on a motion to show cause
why Father should not be held in contempt for failing
to pay his child support obligation. At the
hearing, Father represented that the Cheyenne River Sioux Tribal
Court had awarded custody of Danielle to him.
The circuit court then suspended Father's payment of future child
support to Mother pending final resolution of the custody issue.
However, the circuit court did not forgive the
past child support arrearages.
In August 1986 Mother filed a petition for a writ
of habeas corpus with the circuit court in Brown County,
requesting that the court award her custody of Danielle.
The circuit court held that it would not grant
comity to the earlier tribal court order and that it
had jurisdiction over the habeas corpus petition. It
further ordered alternating custody of Danielle between the parents pending
a trial upon the merits of Mother's petition.
*720
In April 1987 a trial to the court was held
concerning Mother's habeas corpus petition. The circuit court,
after hearing the testimony and reviewing the evidence, concluded that
both Father and Mother were fit and capable parents.
However, because, among other things, Danielle had lived most
of her life with her mother and because she had
a strong bond with her older half-sister, Astrid, the court
found that Danielle's best interests would be served by awarding
permanent custody to Mother with visitation rights granted to Father.
The trial court's previous order regarding Father's payment
of child support was also reinstated. Father appeals.
DECISION
I
WHETHER
THE TRIBAL COURT'S ORDER SHOULD HAVE BEEN RECOGNIZED BY COMITY.
Father contends
that the order granting him custody of Danielle which was entered by the
Cheyenne River Sioux Tribal Court was entitled to comity in the circuit
court proceeding held in Brown County. As we noted in State
ex rel Joseph v. Redwing,
429 N.W.2d 49 (S.D.1988), a party seeking recognition of a tribal court
order under the principle of comity must establish the mandatory requisites
of SDCL 1-1-25 by clear and convincing evidence. Under SDCL 1-1-25, the
party must establish that (1) the tribal court had jurisdiction over both
the subject matter and the parties; (2) the order or judgment was not
fraudulently obtained; (3) the order or judgment was obtained by a process
that assures the requisite of an impartial administration of justice,
including but not limited to due notice and a hearing; (4) the order or
judgment complies with the laws of the jurisdiction in which it was obtained;
and (5) the order or judgment does not contravene the public policy of
the State of South Dakota. See
also Hilton v. Guyot,
159 U.S. 113, 16 S.Ct. 139, 40 L.Ed. 95 (1895); Mexican
v. Circle Bear,
370 N.W.2d 737 (S.D.1985). It is clear, for the reasons stated below,
that Father has failed to meet his burden and that the circuit court did
not abuse its discretion in refusing to grant comity to the tribal court
order.
First,
the tribal court did not properly have jurisdiction over Mother. In order
to exercise jurisdiction over a nonresident, the forum court must
act in compliance with the requirements of due process. Both components
of due process--notice and minimum contacts--must be satisfied before
a court may properly exercise personal jurisdiction over a party. See
International Shoe Co. v. Washington,
326 U.S. 310, 66 S.Ct. 154, 90 L.Ed. 95 (1945).
[FN2] The standard set forth for determining whether the assertion of
jurisdiction comports with due process was summarized by the United States
Supreme Court as follows:
FN2.
Although International
Shoe
did not involve a claim of jurisdiction by a tribal
court, the same due process standard is applicable to tribal
courts due to incorporation of the Due Process Clause in
the Indian Civil Rights Act. See
25 U.S.C. §
1302(8); see
also Loncassion v. Leekity,
334 F.Supp. 370 (D.N.M.1971).
The
existence of personal jurisdiction ... depends upon the presence of
reasonable notice to the defendant that an action has been
brought ... and a sufficient connection between the defendant and
the forum State to make it fair to require defense
of the action in the forum.
Kulko
v. Superior Court,
436 U.S. 84, 91, 98 S.Ct. 1690, 1696, 56 L.Ed.2d
132, 141 (1978) (citations omitted). Here, the record
indicates that Mother was never properly served with either a
copy of Father's petition for permanent custody
of Danielle or a copy of the tribal court's temporary
custody order. Further, the record shows that Mother received only
a bare summons (served by certified mail) to appear in
the Tribal Court for a hearing on who would receive
permanent custody of Danielle and
that Mother has never had any contacts with the Cheyenne
River Sioux Reservation. As a result, we conclude
that Mother did not have sufficient contacts with the Cheyenne
River Sioux Tribe so as to render her amenable to
its personal jurisdiction.
*721
Kulko, supra; International Shoe, supra.
Moreover, we do not believe that Mother did
anything so as to purposely avail herself of the privilege
of conducting activities within the Cheyenne River Sioux Indian Reservation
so as to render herself subject to personal jurisdiction by
Tribal Court. See
Hanson v. Denckla,
357 U.S. 235, 78 S.Ct. 1228, 2 L.Ed.2d 1283 (1958).
Finally, we must note that the actions of
Father alone are insufficient for the tribe to take jurisdiction
over Mother.
[FN3] "The unilateral activity of those who claim some
relationship with a nonresident defendant cannot satisfy the requirement of
contact with the forum State." Kulko,
436 U.S. at 93-94, 98 S.Ct. at 1698, 56 L.Ed.2d
at 142, quoting
Hanson, supra.
FN3.
It should be observed, too, that Father's contacts with his
tribe were quite minimal. He lived on the
reservation from age 4 to 13, during
a time his father worked for the BIA.
He has not resided there for several years.
None of his family, including his parents and various siblings,
reside there.
We note that the tribe's own Law and Order Code
fails to provide for jurisdiction in this instance.
Its preamble makes no reference to the Code's applicability to
off-reservation Indians. Its provisions for the assumption of
jurisdiction by the tribe also do not appear to apply.
T.C. §
1-4-1 applies only to those Indians living within the territorial
jurisdiction of the reservation. T.C. §
1-4-2 extends the tribe's jurisdiction to the exterior boundaries of
the reservation and upon certain Indian trust lands.
T.C. §
1- 4-3 extends personal jurisdiction only in the case where
one has had sufficient contact with the reservation, e.g., living
on the reservation, transacting business or owning property thereon, or
tortious or criminal activity within the reservation.
The tribe's Juvenile Code also does not appear to grant jurisdiction.
T.C. § 5-3-1 applies only to Indians found upon the reservation and
only in certain enumerated circumstances. The tribal court attempted to
exercise jurisdiction under one such circumstance, namely that Danielle
was neglected or dependent, pursuant to T.C. § 5-3-1(2). However,
Danielle's absence from the reservation rendered such exercise a nullity.
Further, because the
tribe could not assume jurisdiction over Danielle under its Juvenile Code,
its attempt to exercise jurisdiction over Mother pursuant to T.C. §
5-8-2, which extends jurisdiction to certain adults who are necessary
for a juvenile adjudication, is likewise a nullity. Thus, the tribal court's
failure to gain personal jurisdiction over Mother precludes the circuit
court from extending comity to the tribal court's order.
[FN4]
FN4.
While we are able to dispose of the comity issue
solely on the basis of the tribe's lack of personal
jurisdiction (SDCL 1-1-25(1)(a)), we also believe that it lacked subject
matter jurisdiction under SDCL 1- 1-25(1)(a) (see Issue II, infra),
and that the tribal court's order was not obtained by
due process because of the lack of sufficient notice given
to Mother relative to the temporary and permanent custody hearings
(SDCL 1-1-25(1)(c)).
II
WHETHER THE CIRCUIT COURT LACKED JURISDICTION DUE
TO THE INDIAN CHILD
WELFARE ACT.
Father
next contends that the Indian Child Welfare Act of 1978 (ICWA), 25 U.S.C.
§ 1901 et seq., prohibited the circuit court from exercising jurisdiction
over this issue. We disagree. The ICWA applies only to child custody
proceedings. As defined by the Act, a child custody proceeding may be
either a foster care placement, termination of parental rights, preadoptive
placement or adoptive placement. See
25 U.S.C. § 1903(1). Here, the placement of Danielle with either
of her natural parents does not fit within the definition of a custody
proceeding and thus does not implicate the ICWA. This is clarified in
the guidelines published by the Bureau of Indian Affairs which provide
that: "Child custody disputes arising in the context of divorce or
separation proceedings or
other similar domestic relations proceedings are not covered by the Act
so long as custody is awarded to one of the parents."
See
*722
Guidelines for State Courts; Indian Child Custody Proceedings, 44 Fed.Reg.
67,584, 67,587 (1979).
[FN5]
FN5.
It should be noted that the BIA did not promulgate
their guidelines for state courts in Indian child custody proceedings
as regulations because they were not intended to have binding
legislative effect. However, the guidelines do represent the
Department of Interior's interpretation of certain provisions of the ICWA
in order to assure that the rights guaranteed by the
ICWA are protected when state courts decide Indian child custody
matters. See
Guidelines for State Courts, supra
at 67,584.
Because
the ICWA does not apply in this particular circumstance, we 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); see
also National Farmers Union Ins. Co. v. Crow Tribe of Indians,
471 U.S. 845, 105 S.Ct. 2447, 85 L.Ed.2d 818 (1985); Iowa
Mut. Ins. Co. v. LaPlante,
480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987). 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. & C.L.L.,
291 N.W.2d 278 (S.D.1980). However, absent the applicability of the ICWA,
we do not believe that these principles may be extended so as to grant
tribal courts the exclusive authority to adjudicate disputes which involve
Indian children when neither the child nor the parents reside on the reservation.
Thus, the circuit court did not abuse its discretion in exercising state
jurisdiction over this issue.
III
WHETHER
THE CIRCUIT COURT ERRED IN AWARDING CUSTODY OF DANIELLE TO
MOTHER.
Having determined
that the circuit court properly exercised jurisdiction over this matter,
we turn to the issue of whether it erred in awarding custody of Danielle
to Mother. Again, our standard of review is whether the circuit court
abused its discretion in making its determination. See
Kolb v. Kolb,
324 N.W.2d 279 (S.D.1982). The evidence adduced by the circuit court was
that each parent was equally fit to be the primary custodian of Danielle.
The court noted, however, that Danielle had lived most of her life with
Mother and had become attached to her older half-sister. While Father
and Mother each volleyed allegations of abuse and neglect of Danielle
against each other, none of the allegations were substantiated so as to
necessitate the removal of Danielle from either parent's custody.
Reviewing the circuit court's decision in its entirety, we do
not believe that it abused its discretion in finding that
Danielle's best interests would be served by placing her in
the primary custody of Mother with liberal visitation granted to
Father.
For all of the foregoing reasons, the judgment of the
circuit court is affirmed.
WUEST, C.J., and MORGAN and SABERS, JJ., concur.
HENDERSON, J., concurs in result.
HENDERSON, Justice (concurring in result).
In concurring in result, the minority viewpoint in Redwing
is cited and its thesis is incorporated hereby.
However, this author believes that he can concur in result
because Redwing
and this case are totally distinguishable. As I write, the
Clerk of the United States Supreme Court has advised the
Clerk of this Court that a petition for certiorari concerning
the Redwing
decision has been filed with the Highest Court in this
Nation. So--Redwing
is a final decision in this Court, but we await
to see if it is a final decision in this
Nation.
*723
Redwing
involved an attempt to enforce child support provisions of an
earlier, invalid, State court paternity proceeding. There, the
State court had conducted its paternity proceeding although it lacked
subject-matter jurisdiction. See
Redwing,
429 N.W.2d 49, 52-59 (Henderson, J., dissenting). In
Redwing,
the tribal court had jurisdiction from beginning to end, which
is 100% opposite to the present case. Unlike
the mother in Redwing,
who turned to the State court because she was dissatisfied
with tribal proceedings, the father in this case went forum-shopping
in the tribal court after adverse rulings in the State
court.
An examination of the current factual pattern and case history
does not present the same threat, from the State of
South Dakota, to tribal courts as that exhibited in Redwing.
Reason: The notice provided to Carole of
the tribal proceeding was deficient, thus depriving the tribal court
of personal jurisdiction. Obviously, she was entitled to
Due Process notice.
However, I cannot agree with the majority that subject-matter jurisdiction
was lacking. Title 5, Sec. 5-3-1(6), provides that
the tribal juvenile court has jurisdiction over all proceedings concerning
custody over a "child." "Child," as defined in Title
5, Sec. 5-1-2(3), is an enrolled member of the Cheyenne
River Sioux Tribe, or
any other Indian on the reservation, under the age of
eighteen. The Tribal Code does not limit its
subject-matter jurisdiction regarding its enrolled members by reference to a
map. It appears that the moving hand of
the Highest Court of this State is hemming in tribal
control of Indian children by the geographical boundary of the
reservation. I believe this is wrong.
It destroys the efficacy of the tribal courts and undermines
Federal policy as established by the United States Congress.
See
Iowa Mut. Ins. Co. v. LaPlante,
480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987);
Fisher
v. District Court,
424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976).
The anomalous nature of tribal jurisdiction is such that tribal
government can control
questions of domestic relations of tribal members off the reservation,
as this Court noted in In
re Guardianship of D.L.L. & C.L.L.,
291 N.W.2d 278, 281 (S.D.1980). Obviously, the tribal
court's reach is not, necessarily, so narrowly circumscribed as the
majority opinion would have it.
435 N.W.2d 717
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