| (Cite
as: 569 N.W.2d 29, 1997 SD 112)
Supreme
Court of South Dakota.
The
PEOPLE of The State of South Dakota, in the Interest
of G.R.F., Minor
Child,
And Concerning L.R. And M.S.
No.
19894.
Considered
on Briefs July 24, 1997.
Decided
Sept. 3, 1997.
*31
John R. Murphy, Rapid City, for appellant, M.S., Father.
Gustav K. Johnson, Rapid City, for appellee, L.R., Mother.
Mark Barnett, Attorney General, Joan P. Baker, Assistant Attorney General,
Pierre, for appellee, State of South Dakota.
PER CURIAM.
ACTION
**1
Father, M.S., and State appeal from a trial court's
order dismissing the abuse and neglect action against Mother, L.R.,
and transferring jurisdiction to the Oglala Sioux Tribe.
We affirm.
FACTS
**2
Father, a non-Indian, and Mother, an Indian, met in
Torrington, Wyoming in March 1994 and became involved in a
relationship which Father ended in November 1994. When
they separated, Father was aware Mother was pregnant with his
child. In March 1996 Father learned Mother had
given birth to their daughter, G.R.F.
**3
In June 1995 Mother moved to Rapid City. Prior
to that time Mother and her four children lived in
various off-reservation locations in Wyoming, Nebraska, and South Dakota, as
well as on the Pine Ridge Indian Reservation from time
to time according to public assistance applications filed by Mother.
[FN1] On August 8, 1995, G.R.F. was born in
a Rapid City hospital. Mother listed her home address
on the hospital admission papers as Rapid City.
FN1.
Applications listing a Pine Ridge address were filed by Mother
on October 21, 1986; July 25, 1989; May
5, 1992; and August 8, 1994.
**4
On November 5, 1995, Mother notified her landlord she
intended to move out of the trailer in which she
and G.R.F. were living. By November 28, she
had changed her mind but landlord advised her the trailer
home was already rented to a third party.
The following day, Mother executed a document entitled "Custody Agreement"
giving temporary custody of G.R.F. to two guardians, one of
whom was related to Mother, for a period of three
months.
**5
The next day, November 30, 1995, one of the
guardians took G.R.F. to the Department of Social Services (DSS)
to obtain Title XIX benefits. At DSS, a
case worker observed G.R.F. to be in need of immediate
medical attention. The guardian took G.R.F. to a doctor and
she was admitted to a Rapid City hospital that same
day.
**6
G.R.F. remained hospitalized until December 4, 1995.
During that time, DSS was unsuccessful in locating Mother and,
upon the child's release from the hospital, the Pennington County
Sheriff's Office took emergency custody of her. The
following day, the trial court ordered temporary legal custody with
DSS for sixty days. Physical custody was granted
to one of the guardians where G.R.F. remained until July
17, 1996 when she was placed in foster care.
**7
At the end of the sixty days, on February
5, 1996, DSS filed an abuse and neglect petition against
Mother. G.R.F. was adjudged to be abused and
neglected on February 21, 1996. On March 20,
1996, the Oglala Sioux Tribal Court
issued an order accepting jurisdiction under 25 U.S.C. §
1911(b) and awarding temporary custody of G.R.F. to the tribal
court pending a hearing on the matter.
**8
By June 14, 1996, paternity test results revealed M.S.
to be the child's father and at a hearing held
in the state trial court on August 13, 1996, DSS
recommended custody be awarded to Father. At this
same hearing, Mother moved to dismiss the action from state
court for lack of jurisdiction and transfer jurisdiction to the
Oglala Sioux Tribal Court. As Father was unrepresented
and *32
State was not prepared to proceed, the matter was delayed
for briefing by all parties. A subsequent hearing
was held in the state trial court on September 26,
1996 at which time all parties presented argument.
Both State and Father objected to dismissal and transfer of
the action. Father further objected to Mother's proposed
findings of fact and conclusions of law.
**9
At the September hearing, the trial court orally ordered
dismissal of the action and transferred jurisdiction to the tribe.
On October 24, 1996, the trial court signed
an order reducing its oral order to writing. Mother's proposed
findings and conclusions were adopted by the trial court.
**10
Father and State appeal the trial court's ruling, raising
essentially the same two issues:
1.
Whether the Oglala Sioux Tribe had exclusive jurisdiction over
this matter
pursuant to 25 U.S.C. §
1911(a) of the Indian Child Welfare Act?
2.
Whether the evidence was sufficient to support the finding that
Mother was domiciled on the Pine Ridge Indian Reservation at
times relevant to this action?
DISCUSSION
**11
We review a trial court's grant or denial of a motion to dismiss by determining
whether the pleader was entitled to judgment as a matter of law. Stumes
v. Bloomberg,
1996 SD 93, ¶ 6, 551 N.W.2d 590, 592; Estate
of Billings v. Deadwood Congregation of Jehovah Witnesses,
506 N.W.2d 138, 140 (S.D.1993). In this appeal, whether Mother is entitled
to judgment as a matter of law turns on determining what point in time
jurisdiction attaches under ICWA and where G.R.F. was then domiciled.
**12
1. Whether the Oglala Sioux Tribe had exclusive jurisdiction over
this matter pursuant to 25 USC §
1911(a) of the Indian Child Welfare Act?
**13
Mother is an enrolled tribal member and Child is
eligible for enrollment. The statutory requirements of ICWA
control this action. 25 U.S.C. §§
1901-1963; SDCL 26-7A-2. ICWA recognizes a tribe's
significant interest in self-government and in its ability to assert
its interest in its children. See
Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 52, 109 S.Ct. 1597, 1610, 104 L.Ed.2d
29, 49 (1989); Jones, Indian
Child Welfare: A Jurisdictional Approach,
21 Ariz.L.Rev. 1123,
1128 (1980).
**14
25 U.S.C. § 1911(a) of ICWA sets forth the jurisdictional framework
for child custody proceedings and grants a tribe exclusive jurisdiction
if: 1) the child is a ward of the tribal court, regardless of where the
child resides or is domiciled; 2) the child resides within the reservation
of his or her tribe; or 3) the child is domiciled within the reservation.
[FN2] Where § 1911(a) does not apply, 25 U.S.C. § 1911(b) affords
states and tribes concurrent but presumably tribal jurisdiction over child
custody proceedings.
[FN3] In enacting the jurisdictional provisions of ICWA, "Congress
intended that as a general principle, Indian tribes should have authority
to determine custody issues involving Indian children." In
re Adoption of Halloway,
732 P.2d 962, 968 (Utah 1986).
FN2.
25 U.S.C. §
1911(a) provides:
An
Indian tribe shall have jurisdiction exclusive as to any State
over any child custody proceeding involving an Indian child who
resides or is domiciled within the reservation of such tribe,
except where such jurisdiction is otherwise vested in the State
by existing Federal law. Where an Indian child is a
ward of a tribal court, the Indian tribe shall retain
exclusive jurisdiction, notwithstanding the residence or domicile of the child.
FN3.
25 U.S.C. §
1911(b) provides:
In
any State court proceeding for the foster care placement of,
or termination of parental rights to, an Indian child not
domiciled or residing within the reservation of the Indian child's
tribe, the court, in the absence of good cause to
the contrary, shall transfer such proceeding to the jurisdiction of
the tribe, absent objection by either parent, upon the petition
of either parent or the Indian custodian or the Indian
child's tribe: Provided,
That such transfer shall be subject to declination by the
tribal court of such tribe.
(emphasis
original).
**15
In Holyfield,
supra,
the Supreme Court held that the removal of children to
a hospital outside the reservation for their *33
birth, and subsequent placement for adoption and abandonment of the
children in state court did not deprive the tribal court
of exclusive jurisdiction where the children's domicile was on the
reservation. In that case, the children's parents were
residents and domiciliaries of the Choctaw Reservation who extended some
effort to assure their twin babies were born off-reservation. The
parents' and children's domicile never changed from the reservation despite
their temporary absence from it. The Court extensively
cited ICWA's purpose in
its opinion.
**16
In the present case, the facts represent that Mother has lived a somewhat
transient lifestyle, residing in various locations both off and on the
reservation for the past several years. The Holyfield
Court, discussing the definition of "domicile," recognized that
"one can reside in one place but be domiciled in another" and
that "domicile is established by physical presence in a place in
connection with a certain state of mind concerning one's intent to remain
there." 490 U.S. at 48, 109 S.Ct. at 1608, 104 L.Ed.2d at 46.
[FN4] G.R.F. has resided in Rapid City since her August 1996 birth and
has never resided within a reservation. However, an illegitimate child's
domicile follows her mother's. Id.
The trial court found that on December 5, 1995, the date a petition for
temporary legal custody was filed with the trial court, and the date the
trial court heard the matter and awarded custody to DSS, Mother was domiciled
on the reservation and therefore, the tribal court had exclusive jurisdiction
over the custody proceedings under 25 U.S.C. § 1911(a).
FN4.
"Domicile" does not carry the same meaning as "residence." "
'Residence' signifies living in [a] particular locality while 'domicile' means
living in that locality with intent to make it a
fixed and permanent home." Black's Law Dictionary 485
(6th Ed 1990).
**17
State and Father claim the relevant time period for determining jurisdiction
is the time the abuse and neglect took place, which in this case, was
sometime prior to November 30, 1995, the date of G.R.F.'s hospitalization,
when both Mother and G.R.F. were living in Rapid City. They argue that
abuse and neglect proceedings are quasi-criminal in nature, therefore
the determinant time period is when the conduct that gave rise to the
cause of action occurred. This Court has previously held, in an abuse
and neglect action, that "[p]rocedures determining the custody of
dependent children are not criminal, are not quasi-criminal, but instead
constitute a civil action, or a special proceeding of a civil nature."
In re
C.J.H.,
371 N.W.2d 345, 349 (S.D.1985) (internal citations omitted). Moreover,
in a prior case determining the proper forum under ICWA, we stated:
The
locus of the act of a member is not conclusive.
Rather, the test is a broader one, hinging
on whether the matter demands exercise of the tribe's responsibility
of self-government. There can be no greater threat
to essential tribal relations and to the tribal power of
self-government than to interfere in questions of custody of tribal
members.
In
the Matter of Guardianship of D.L.L. and C.L.L.,
291 N.W.2d 278, 281 (S.D.1980) (citing Williams
v. Lee,
358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959);
Littell
v. Nakai,
344 F.2d 486 (9thCir.1965)). Cf.
Wells
v.
Wells,
451 N.W.2d 402, 405 (S.D.1990) (recognizing the effect of a
change of domicile on the jurisdiction of a domestic relations
case involving enrolled tribal members). Adherence to State's
and Father's argument would not promote the purpose of ICWA
which bases jurisdiction on the child's relationship with the tribe
through residency, domicile, or as a ward of the tribal
court.
[FN5]
FN5.
Father and State also attempt to argue a due process
"minimum contacts" test, more appropriate to a determination of in
personam jurisdiction, see
SDCL 15-7-2, or a "significant connection" test, more appropriate to
a question involving subject matter jurisdiction under the Uniform Child
Custody Jurisdiction Act, see
In re M.C.S.,
504 N.W.2d 322 (S.D.1993). These are not the
tests provided by ICWA, however, to find subject matter jurisdiction
over custody proceedings involving Indian children.
**18
Although how jurisdiction attaches is defined by § 1911 of ICWA,
the statute does not address when is the relevant point of inquiry for
attachment of jurisdiction. *34
Holyfield cautioned
against applying state law definitions to interpret federal law. The Court
stated "[o]ne reason for this rule of construction is that federal
statutes are generally
intended to have uniform nationwide application." Holyfield,
490 U.S. at 43, 109 S.Ct. at 1605-06, 104 L.Ed.2d at 43.
**19
A federal court addressing the point at which jurisdiction attaches stated
"[t]he general rule is that the jurisdiction of the federal court
is determined at the time of the filing of the complaint." In
re General
Motors Corp.,
594 F.2d 1106, 1139 (7thCir.1979) (citing Mollan
v. Torrance,
9 Wheat. 537, 22 U.S. 537, 539, 6 L.Ed. 154 (1824); St.
Paul Mercury Indemnity Co. v. Red Cab Co.,
303 U.S. 283, 58 S.Ct. 586, 82 L.Ed. 845 (1938); Rosado
v. Wyman, 397
U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970)). More recently, a court
addressing an ICWA-based jurisdictional question noted "[i]t is a
well-established rule in both federal and state courts that jurisdiction
over a case is established at the time an action is filed and cannot be
voided by later events." Spear
v. McDermott,
121 N.M. 609, 916 P.2d 228, 234 (App.1996) (citing Mid-American
Waste Sys., Inc. v. City of Gary, Ind.,
49 F.3d 286, 292 (7thCir.1995); F.
Alderete Gen. Contractors, Inc. v. U.S.,
715 F.2d 1476, 1480 (Fed.Cir.1983); Resolution
Trust Corp. v. Foust,
177 Ariz. 507, 869 P.2d 183, 193 (Ct.App.1993); Foster
v. Nordman,
244 S.C. 485, 137 S.E.2d 600 (1964)). In
Spear, 916
P.2d at 234-35, jurisdiction was determined based on the children's and
mother's domicile at the time abuse and neglect proceedings were initiated.
The court held mother's change in domicile to the reservation during pendency
of
the proceedings did not divest the state court of jurisdiction obtained
when the action was first brought. In Halloway,
732 P.2d at 966, also decided under ICWA's jurisdictional requirements,
the Supreme Court of Utah stated "[T]he propriety of the trial court's
assumption of jurisdiction turns on [the child's] domicile at the time
these proceedings were initiated." Maternal aunt's removal of the
child from the reservation for adoption proceedings in state court did
not change the child's domicile where the mother was domiciled on the
reservation; the ruling of the state court that it had jurisdiction was
vacated.
**20
This rule confirms the trial court's conclusion that jurisdiction
is determined as of December 5, 1995, the date the
abuse and neglect action was initiated in the trial court.
We affirm on this issue.
**21
2.
Whether the evidence was sufficient to support the finding that
Mother was domiciled on the Pine Ridge Indian Reservation at
times relevant to this action?
**22
State and Father next claim the trial court erred
in finding Mother to be domiciled on the reservation on
December 5, 1995. The trial court made findings
of fact that Mother's primary residence was on the reservation
beginning November 30, 1995 and continuing through September 26, 1996,
the date of the hearing, and that Mother resided and
was domiciled on the reservation on December 5, 1995.
Although the settled record establishes Mother
lived in Rapid City, and therefore off-reservation, from June 1995
to November 30, 1995, her affidavit indicates her move to
Rapid City was temporary for the purposes of obtaining adequate
living arrangements for her children and expected baby and that
it was not her intention to remain in Rapid City
indefinitely. She confirmed by affidavit her move to
Rapid City was a move from her "established home on
the Pine Ridge Indian Reservation." At the hearing,
her attorney informed the trial court that Mother was born
and raised on the reservation and still has family members
living there. Mother's affidavit states when she returned
to the reservation November 30, 1995, she lived in a
shack near her brother's home until she could complete living
arrangements for herself and her children in a mobile home
on the reservation. The record also includes two
affidavits filed by the DSS social worker assigned to the
case; neither of these contains facts disputing Mother's affidavit.
**23
In granting Mother's motion to dismiss, the trial court relied on her
affidavit. Affidavit evidence is reviewed de novo. Miller
v. Weber, 1996
SD 47, ¶ 7, 546 N.W.2d 865, 867; First
Nat'l Bank of Biwabik v. *35
Bank of Lemmon,
535 N.W.2d 866, 871 (S.D.1995). In In
re Estate of Eberle,
505 N.W.2d 767, 771 (S.D.1993), we stated the following regarding evidence
produced by affidavit:
Affidavits,
although made under oath, are ordinarily not considered competent evidence.
Affidavits are unsatisfactory as forms of evidence;
they are not subject to cross-examination, combine facts and conclusions
and, unintentionally or sometimes even intentionally, omit important facts or
give a distorted picture of them. Nevertheless, the
ultimate determination of whether issues of fact should be resolved
by affidavit is left in the sound discretion of the
trial court. SDCL 15-6-43(e) provides 'when a motion is
based on facts not appearing of record the court may
hear the matter on affidavits presented by the respective parties,
but the court may direct that the matter be heard
wholly or partly on oral testimony or depositions.'
**24
There is no evidence the trial court abused its discretion in determining
the question of Mother's domicile based on her affidavit. The trial court
stated it would hear oral testimony on this matter if there were factual
issues raised that had not been submitted by affidavit. No testimony was
forthcoming even though a DSS social worker was present at the September
hearing and presumably could have been called by Father or State to dispute
the affidavit. Father and State chose instead to rely on DSS reports previously
filed with the trial court. The trial court again noted it was "confined
to the affidavits and testimony and will not consider hearsay or unsupported
allegations."
**25
State argues the trial court erred in not considering such evidence as
is permitted at dispositional hearings. See
SDCL
26-7A-90; C.J.H.,
371 N.W.2d at 350. SDCL 26-7A-1(17) defines "dispositional hearing"
as "a hearing after adjudication at which the court makes an interim
or final decision in the case." State claims that because G.R.F.
had already been adjudged abused and neglected by the trial court, the
September hearing constituted a dispositional hearing. However, the September
1996 hearing was to determine the trial court's jurisdiction over the
matter, and not to consider evidence regarding proper disposition of G.R.F.
SDCL 19- 9-14 provides that the rules of evidence "apply to all actions
and proceedings in the courts of this state" with eight exceptions.
Jurisdictional hearings are clearly not included among the list of statutory
exceptions. See,
e.g., State
v. Milk, 519
N.W.2d 313, 315 (S.D.1994) (holding a juvenile transfer hearing is not
a dispositional hearing in juvenile court as excepted from SDCL 19-9-14).
A trial court's evidentiary rulings are reviewed under an abuse of discretion
standard. Milk,
519 N.W.2d at 315; Zens
v. Chicago, Milwaukee, St. Paul and Pac. R.R. Co.,
479 N.W.2d 155, 159 (S.D.1991). The trial court did not abuse its discretion
in excluding from consideration hearsay evidence and unsupported allegations.
**26
Our de novo review of the affidavits leads us to the same result as that
reached by the trial court: on December 5, 1995, the date these proceedings
were initiated in the state trial court, Mother was domiciled on the Pine
Ridge Indian Reservation. Therefore, G.R.F. was domiciled on the reservation
on that date as well. No reliable evidence to the contrary was produced
at the hearing.
**27
The typical concerns of "forum-shopping," raised by State and
Father on appeal, do not stand on the same ground when the question of
proper forum involves ICWA, which has as its purpose tribal self-government
and the tribe's interest in the welfare of its children. See
25 U.S.C. § 1901(5). Cf.
New Mexico v.
Mescalero Apache Tribe,
462 U.S. 324, 334, 103 S.Ct. 2378, 2386, 76 L.Ed.2d 611, 620 (1983) ("
'The unique historical origins of tribal sovereignty' and the federal
commitment to tribal self-sufficiency and self-determination make it 'treacherous
to import ... notions of pre-emption that are properly applied to ...
other [contexts].' ") (quoting White
Mountain Apache Tribe v. Bracker,
448 U.S. 136, 143, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665, 672 (1980)).
[FN6] Recognizing an Indian tribe's protectable*36
interest in its Indian children, the Holyfield
Court stated:
FN6.
We note also that if the facts of this case
were different and the State were found to have had
jurisdiction, had Mother fled to the reservation she may have
been beyond the State's subpoena power. "It is beyond
contention that South Dakota officials and courts do not have
jurisdiction over Indian trust lands." State
v. Lufkins,
381 N.W.2d 263, 266 (S.D.1986) (citing DeCoteau
v. District County Court,
420 U.S. 425,
95 S.Ct. 1082, 43 L.Ed.2d 300 (1975); Annis
v. Dewey County Bank,
335 F.Supp. 133 (D.S.D.1971)).
The
protection of this tribal interest is at the core of
the ICWA, which recognizes that the tribe has an interest
in the child which is distinct from but on a
parity with the interest of the parents. This
relationship between Indian tribes and Indian children domiciled on the
reservation finds no parallel in other ethnic cultures found in
the United States. It is a relationship that
many non-Indians find difficult to understand and that non-Indian courts
are slow to recognize. It is precisely in
recognition of this relationship, however, that the ICWA designates the
tribal court as the exclusive forum for the determination of
custody and adoption matters for reservation-domiciled Indian children, and the
preferred forum for nondomicilary Indian children.
490 U.S. at 52-53, 109 S.Ct. at 1610-1611, 104
L.Ed.2d at 49 (citing Halloway,
732 P.2d at 969-70).
CONCLUSION
**28
We agree with the trial court that Mother, and
therefore G.R.F., was domiciled on the reservation on December 5,
1995. Therefore, jurisdiction rests exclusively with the tribe
pursuant to 25 U.S.C. §
1911(a). Affirmance of the trial court's decision to dismiss the
action and transfer jurisdiction
to the tribe does not determine the outcome of the
abuse and neglect action involving G.R.F. but decides only which
court will determine that outcome. We affirm.
**29
MILLER, C.J., and SABERS, AMUNDSON, KONENKAMP and GILBERTSON,
JJ., participating.
569 N.W.2d 29, 1997 SD 112
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