| (Cite
as: 473 N.W.2d 141)(Cite
as: 473 N.W.2d 141)
Supreme
Court of South Dakota.
John
C. HARRIS, Appellee,
v.
Charlene
K. YOUNG, formerly Charlene K. Harris, Appellant.
No.
17237.
Argued
March 20, 1991.
Decided
July 3, 1991.
*142
Curtis W. Hanks, Lemmon, for appellee.
Eric J. Antoine, Dakota Plains Legal Services, Mission, for appellant.
SABERS, Justice.
Indian mother living on reservation with her three children challenges
the subject matter jurisdiction of state circuit court to modify
the child custody provisions of a Wyoming divorce decree.
Facts
Young (mother) and Harris (father) were divorced by a Wyoming
state court in 1981. Mother is an enrolled
member of the Cheyenne River Sioux Tribe (tribe).
Father is not an enrolled member of tribe and is
apparently non-Indian.
The Wyoming divorce decree gave mother custody of the couple's
three daughters: Bernice (b. 1974), Misty (b. 1976) and
Sabrina (b. 1978). Prior to the divorce, mother
and daughters moved to the town of Isabel in Dewey
County, South Dakota. Isabel is within the boundaries
of the Cheyenne River Indian Reservation (reservation). Daughters
Bernice and Misty, like mother, have at all relevant times
been enrolled members of tribe. Sabrina is not
an enrolled member although her parentage is identical to that
of Bernice and Misty and mother claims she is eligible
for tribal enrollment.
[FN1]
FN1.
Whether Sabrina is eligible for enrollment in tribe is a
significant factor in determining the relative weight of Indian and
non-Indian interests in this case. Yet this court
cannot determine whether she is eligible or not due to
the inadequate record and briefing of the issue on the
part of both parties' attorneys. Apparently the Constitution
of the Cheyenne River Sioux Tribe originally set no minimum
tribal blood quantum for enrollment eligibility. Tribe subsequently
amended its Constitution to require a 1/4 tribal blood quantum
for persons born after the
effective date of the amendment to qualify for enrollment, but
the Constitution does not state on its face when the
amendment took effect. See
CRST Const. Art. II. Father's counsel claimed at
oral argument that the tribal blood quantum of the three
daughters is considerably less than 1/4 and that the constitutional
amendment making 1/4 the minimum quantum for enrollment took effect
between the birth dates of Misty and Sabrina. If
these assertions are true, then Sabrina cannot become a tribal
member even though her mother and sisters are already members.
The problem is that nothing in the record
or the briefs supports, refutes or is even relevant to
either assertion.
Later in 1981, mother petitioned circuit court in Dewey County
to modify the custody and visitation provisions of the Wyoming
divorce decree, alleging that father abused and mistreated the three
daughters during summer visitation. The court issued a temporary
restraining order enjoining father from exercising his visitation rights at
Christmas, 1981.
In 1988, father moved near the town of Meadow in
Perkins County, South Dakota. Perkins County is not
within the boundaries of any Indian reservation. Sabrina
spent Thanksgiving, 1988 with father. Afterwards, she refused
to return to mother allegedly because of the environment of
alcohol abuse and exposure to sexual misconduct.
On January 12, 1989, father petitioned circuit court in Dewey
County to modify the 1981 Wyoming divorce decree and award
him custody of all three daughters. Father's petition alleged that
mother was often drunk, that Sabrina had seen mother having
sex with three different men and that her sister had
been sexually abused by mother's boyfriend.
On April 20, 1989, mother moved to dismiss father's petition,
arguing that subject matter jurisdiction lies exclusively in tribal court.
Following a hearing on mother's motion to dismiss
held May 1, 1989, the court denied the motion to
dismiss and ordered the 1981 Wyoming divorce decree modified to
award custody of Sabrina to father. The court
entered findings of fact and conclusions of law on October
16, 1989. *143
Mother appeals and argues that the court erred in:
(1)
Finding that mother and daughter reside outside the boundaries of
reservation;
(2)
Applying the Uniform Child Custody Jurisdiction Act to the proceedings;
(3)
Applying the Indian Child Welfare Act to the proceedings;
and
(4)
Concluding that it had subject matter jurisdiction.
1.
Reservation
Boundaries
The court found that the home of mother and daughters
in Isabel is "within the original exterior boundaries of the
Cheyenne River Indian Reservation, but outside of the diminished reservation."
This finding is clearly erroneous. The United States
Supreme Court has ruled that the Cheyenne River Indian Reservation
was never diminished. Solem
v. Bartlett,
465 U.S. 463, 481, 104 S.Ct. 1161, 1171, 79 L.Ed.2d
443 (1984). Beyond doubt, Isabel is within reservation
boundaries and is "Indian country" within the meaning of 18
U.S.C. §
1151 (1988).
2.
Uniform
Child Custody Jurisdiction Act
The court concluded that it had "jurisdiction of the subject
matter ... based on the factors contained in SDCL 26-5A-3
et seq....." This, too, is error for two reasons.
First, SDCL 26-5A-3 does not confer subject matter jurisdiction on any
court. Chapter 26-5A is South Dakota's enactment of the Uniform Child
Custody Jurisdiction Act (UCCJA). It merely sets forth the nexus which
is sufficient for a court in this state to assume personal
jurisdiction over a child custody case when relevant parties are in another
state. In addressing itself to any "court of this state which
is competent to decide
child custody matters," the UCCJA assumes, but does not create, subject
matter jurisdiction. SDCL 26-5A-3 (emphasis added).
Normally, any circuit court in South Dakota is "competent to
decide" child custody matters. See
SDCL 25-4-45. In this case, the question is
whether the circuit court has subject matter jurisdiction over child
custody matters where the children and one parent are Indians
domiciled on a federally recognized
reservation. The UCCJA provides no guidance in answering
this question.
The second problem with
reliance on the UCCJA in a custody matter where necessary parties are
domiciled on a reservation is that the UCCJA speaks only of "states."
An Indian reservation is not a "state" within the meaning of
the UCCJA. SDCL 26-5A-2(10). Therefore, even for its intended limited
purpose of establishing personal jurisdiction, the UCCJA has no application
where parties reside not between different states but between reservation
and non-reservation areas within the same state.
We conclude that to the extent the trial court based
its finding of subject matter jurisdiction on SDCL 26-5A-3, the
finding must be rejected.
3.
Indian
Child Welfare Act
Mother
claims the court erred in applying the provisions of the Indian Child
Welfare Act (ICWA), 25 U.S.C. §§ 1901-1963 (1988), to the facts
of this case. Although ICWA has no application in this case because the
placement of a child with a parent in connection with a divorce decree
is not a "child custody proceeding" within the meaning of ICWA,
25 U.S.C. § 1903(1); Application
of Defender,
435 N.W.2d 717, 721-722 (S.D.1989), there is no basis for mother's claim.
The court's findings of fact and conclusions of law do not mention ICWA,
much less apply its provisions to this case. Therefore, we find no error
in this regard.
4.
Subject
Matter Jurisdiction
Mother and her three daughters live on reservation.
Mother and two of her daughters are enrolled members of
tribe and the third daughter is allegedly eligible for enrollment.
We must decide whether, under these circumstances, the
circuit court had subject matter jurisdiction of the petition of
the non-Indian, off-reservation father to *144
modify custody provisions based on a change in circumstances which
occurred on reservation.
[FN2]
FN2.
Since a determination of whether state court jurisdiction infringes on
tribal sovereignty depends in part on a weighing of all
relevant factual circumstances, it would be helpful to have some
background on the parties and their marriage. Instead,
the briefs and the record barely mention that father is
non-Indian, a critical factor. They provide no information
whatever on where mother and father were married, where daughters
were born, whether father had ever been domiciled on reservation,
and whether mother had ever been domiciled on reservation prior
to moving there in 1980.
[W]e
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)....
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. and C.L.L.,
291 N.W.2d 278 (S.D.1980).
Application
of Defender,
435 N.W.2d at 722 (citations omitted).
The state of South Dakota
has no general civil jurisdiction over Indians on reservations within
its borders. State
v. Spotted Horse,
462 N.W.2d 463, 467 (S.D.1990); Rosebud
Sioux Tribe v. South Dakota,
900 F.2d 1164, 1167 (8th Cir.1990), cert.
denied, 500
U.S. 915, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991). Clearly, if this were
a custody dispute between two enrolled members of tribe domiciled
on reservation, the subject matter jurisdiction of the tribal court would
be exclusive. Fisher
v. Dist. Court of Sixteenth Jud. Dist.,
424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976); see
also Wells v. Wells,
451 N.W.2d 402 (S.D.1990).
In contrast, when one parent is a non-Indian domiciled off-reservation
who petitions the state court for relief to which any
state citizen is entitled, the
Williams
infringement test becomes a closer question. We note
initially that mother fails to point out any specific ways
in which the exercise of state jurisdiction under these circumstances
would infringe on the right of reservation Indians to make
their own laws and be governed by them.
In a similar case, the North Dakota Supreme Court ruled
that a state court lacks subject matter jurisdiction over the
child custody modification motion of the off-reservation father where the
mother and child were domiciled on the reservation. Malaterre
v. Malaterre,
293 N.W.2d 139 (N.D.1980). Malaterre
is distinguishable because the father, although living off-reservation, was an
enrolled member of the same tribe to which mother and
child belonged. Following Malaterre,
Byzewski v. Byzewski,
429 N.W.2d 394 (N.D.1988), held that the state court lacked
subject matter jurisdiction over custody and support matters in a
divorce action brought by an off-reservation, non-Indian husband against his
reservation Indian wife. Byzewski,
too, can be distinguished from the present case because there
the husband lived continuously on the reservation with his wife
for nearly three years, and only left the reservation after
the wife began divorce proceedings in tribal court. The husband
filed for divorce in state court approximately one day after
moving off the reservation.
In
Matter of Guardianship of Flyinghorse,
456 N.W.2d 567 (S.D.1990), this court recently held that a
state court lacked subject matter jurisdiction over
the petition of the Veterans Administration to assume guardianship of
a reservation Indian, and that under the Williams
v. Lee
infringement test, the tribal court had exclusive jurisdiction.
See
also Matter of Guardianship of Sasse,
363 N.W.2d 209 (S.D.1985). However, the Flyinghorse guardianship
petition, even though filed by *145
a non-Indian party, a federal agency, implicated no interests outside
the reservation and involved no parties other than "Indians residing
on the reservation." Flyinghorse,
456 N.W.2d at 568. The case is far
different where, as here, a non-Indian, off-reservation party domiciled in
South Dakota brings an adversary proceeding against a reservation Indian
in state court.
On balance, we believe Wells
v. Wells, supra,
although not cited by either party, is the key South
Dakota precedent for deciding the present case. In
Wells,
an off-reservation Indian wife brought a divorce action in state
court against her reservation Indian husband. We held
that the state and tribal courts had concurrent subject matter
jurisdiction over the cause of action. Under concurrent
jurisdiction, the case could be adjudicated by whichever court system
first obtained valid personal jurisdiction over the parties, and there
was no impermissible interference with the sovereignty of the tribe.
Once
[wife] left the reservation and took up residence in Rapid
City, the state acquired an interest in the marriage of
[wife] and [husband], and their divorce
can no longer be characterized exclusively as a "reservation matter."
... The ... tribe is not denied the ability
to enact its own laws governing divorce and to enforce
those laws in its own courts.... [T]he state court
is merely exercising its own concurrent jurisdiction over the marriage
of one of its domiciliaries.... Just as South Dakota
does not retain exclusive jurisdiction over the marriage of South
Dakota citizens who leave the state, the tribe does not
retain exclusive jurisdiction over the marriage of its members who
leave the reservation.
Id.
at 405. Cf. Byzewski
and other cases cited and distinguished in Wells,
supra,
at 406.
Concurrent
subject matter jurisdiction in divorce-related litigation between an Indian
party domiciled on a reservation and a party domiciled elsewhere in South
Dakota is even more compelling in this case than in Wells
because this father is not an enrolled member of tribe and apparently
was not domiciled on reservation anytime within the past ten years, if
ever. Moreover, Sabrina is not an enrolled member of tribe either, and
it is possible she may not be eligible for enrollment, see footnote 1.
A further consideration underscoring the need for concurrent state and
tribal subject matter jurisdiction in this case is that "the
Cheyenne River Sioux Tribe's By-Laws expressly state that the Cheyenne
River Sioux Tribal Courts shall not have jurisdiction over disputes
involving Indian and non-Indian parties
unless both parties stipulate to such jurisdiction. Cheyenne
River Sioux Tribe By-Laws Art. V §
1(c) (1935)." Pommersheim, South
Dakota Tribal Court Handbook,
12-13 (1988). In other words, if the tribal
court had exclusive jurisdiction over this cause of action, mother
could deny father all relief simply by refusing to stipulate
to the tribal court's personal jurisdiction.
[FN3] Therefore, concurrent jurisdiction *146
not only passes the Williams
v. Lee
infringement test but is compelled by specific provisions of the
tribe's own By-Laws.
FN3.
Cheyenne River Sioux Tribe By-Laws Art. V. §
1(c) provides in part that tribal court "shall have jurisdiction
over ... disputes or lawsuits ... between Indians and non-Indians
where such cases are brought before it by stipulation of
both parties[.]" Whether this provision remains good law is
questionable. It has been subject to scathing criticism
by tribe's high court in Becker
County, Mn. Welfare Dept. v. Mestes,
Mem.Op. (CRST Ct.App. Sept. 22, 1989), and Thorstenson
v. Cudmore,
Mem.Op. (CRST Ct.App. Feb. 15, 1991). In its
detailed analysis in Thorstenson,
the court refers to the stipulated jurisdiction provision as a
legal "oddity" inserted into the 1935 By-Laws by the BIA
either through oversight or political trepidation and not reflective of
either the congressional mandate embodied in the Indian Reorganization Act
of 1934, at
25 U.S.C. §
476 (1988), or of "any considered decision of the Cheyenne
River Sioux people." Thorstenson,
supra,
at 10-11. The court goes on to point
out the negative public policy and due process consequences of
literally applying a by-law which, in the case of disputes
between Indians and non-Indians, "effectively place[s] the opportunity to pursue
remedial redress in the hands of the alleged 'wrongdoer.' "
Id.
at 15. Thus it is possible that father
might have successfully brought an action to modify the divorce
decree in tribal court whether mother stipulated to jurisdiction or
not.
Nevertheless,
we cannot say with certainty that father could have brought
his action as of right. The stipulated jurisdiction
provision in the By-Laws remains on the books.
The tribal court's criticism of the provision in Becker
County
and Thorstenson
is ultimately dicta: Becker
County
found jurisdiction present without stipulation because the real parties in
interest were both tribal members, one of whom merely assigned
her cause of action to a non-Indian entity, and Thorstenson
reached the same result by finding that the written contracts
which were the subject of the dispute between the Indian
and non-Indian parties, both domiciled on reservation, supplied the required
stipulation to jurisdiction.
The
tribe's codified law also reflects the tribe's desire to get
beyond the narrow confines of the stipulated jurisdiction provision in
the By-Laws: It
is hereby declared as a matter of Tribal policy ...
that the Tribe provide itself, its members, and other persons
living within the territorial jurisdiction of the Tribe ... with
an effective means of redress in ... civil ... cases
against members and non-Tribal members who through either their residence,
presence, business dealings, other actions or failures to act, or
other significant minimum contacts with this Reservation ... incur civil
obligations to persons or entities entitled to the Tribe's protection.
CRST
Law and Order Code 1-4-1. Even so, the
benefit of this statute appears limited to tribe, its members
and non-members residing on reservation--to the exclusion of this father.
We
note again that neither counsel directed the trial court's attention
to this critically important stipulated jurisdiction provision in tribe's By-Laws,
nor briefed nor researched same for this court.
A final factor supporting concurrent subject matter jurisdiction is that
mother herself used the state court system in 1981 to
temporarily restrain father from exercising his visitation rights under the
Wyoming divorce decree. We generally recognize that "subject matter jurisdiction
can neither be conferred on a court, nor denied to
a court by the acts of the parties or the
procedures they employ." Application
of Koch Exploration Co.,
387 N.W.2d 530,
536 (S.D.1986) (citing In
re Marriage of Helm,
271 N.W.2d 725, 727 (Ia.1978)). Nevertheless, while not
dispositive on the question of subject matter jurisdiction, mother's previous
use of the state court system to the same end
father now pursues is a factor supporting our conclusion that
tribal sovereignty will not be infringed by concurrent jurisdiction permitting
father to do no more than what has already been
done by mother. We note further that mother's
attempt to deny father the same relief she has already
claimed appears opportunistic, self-serving and it is poorly received.
For all of the above reasons, we affirm the
trial court's conclusion that it had subject matter jurisdiction.
5.
Failure
to Cite Supporting Authority
Mother, as appellant,
[FN4] cites SDCL § 15-26A-60(6) and Mielitz
v. Schmieg,
461 N.W.2d 763 (S.D.1990), for the proposition that father's failure to
cite authority in support of three of his arguments constitutes waiver.
FN4.
Although it is necessary in this section to refer to
the parties as "appellant" and "appellee," we are aware of
SDCL 15-26A-63, which pertains to references to parties in briefs
and arguments by counsel, and provides:
In
their briefs and oral arguments counsel should minimize references to
parties
by such designations as "appellant" and "appellee." It
promotes clarity to use the designations used in the trial
court, or the actual names of the parties, or descriptive
terms such as "employer," "owner," "guest," "injured person," "husband," etc.
For
purpose of clarity, we continue to urge compliance with this
statute by all counsel.
SDCL 15-26A-60(6) provides in part: "The brief of the
appellant
shall contain ... citations to the authorities relied on."
(Emphasis added). In Mielitz
v. Schmieg,
461 N.W.2d at 764, this court held that an appellee
who failed to support his notice of review with argument
and authority waived the issue.
Although SDCL 15-26A-61 provides that the brief of appellee shall
conform to SDCL 15-26A-60, the rule requiring supporting authority is
addressed primarily to those who raise issues, not to those
who respond to them. Here, father is appellee
and has filed no notice of review. Father
stands by the judgment of the circuit court.
While it is no doubt poor strategy for an appellee
to respond to appellant's argument without citing supporting authority, just
as it is generally poor strategy for an appellant not
to file a reply brief, it is the party who
raises
an issue and then fails to support it with authority
who will be deemed to have waived the issue.
*147
In summary, we reverse the trial court's finding that the
Cheyenne River Indian Reservation has been diminished and its conclusion
that its subject matter jurisdiction was based in part on
the Uniform Child Custody Jurisdiction Act. However, we
affirm the trial court's conclusion that it had subject matter
jurisdiction and further hold that the state court's subject matter
jurisdiction is concurrent with that of the tribal court.
MILLER, C.J., and WUEST and AMUNDSON, JJ., concur.
HENDERSON, J., concurs in part and dissents in part.
HENDERSON, Justice (concurring in part, dissenting in part).
ISSUE
I
I concur.
ISSUE
II
I specially concur. Essentially, an Indian tribe is
not a state within the meaning of the Uniform Child
Custody Jurisdiction Act (UCCJA). As held by the
case of Malaterre
v. Malaterre,
293 N.W.2d 139, 144 (N.D.1980), the UCCJA pertains to situations
where there are jurisdictional disputes with sister states.
Here, the child and mother live within South
Dakota but reside on the Cheyenne Indian Reservation and therefore
come within the purview of the federal Act of August
15, 1953, 67 Stat. 558, now codified at 18 U.S.C.
§
1162. South Dakota has never effectively assumed general
civil jurisdiction over Indian Reservations under P.L. 280. Rosebud
Sioux Tribe v. State of South Dakota,
900 F.2d 1164, 1171 (8th Cir.1990).
ISSUE
III
I specially concur. It appears the circuit court
decided that the Indian Child Welfare Act applied to the
proceedings upon which it adjudicated. Not so.
ICWA provides, inter alia, that it has no application
to an "award, in a divorce proceeding, of custody to
one of the parents." 25 U.S.C. §
1903(1). Therefore, the trial court's decision on this
point of law could not be based upon the Cheyenne
River Sioux Tribe's failure to intervene or request a transfer.
Settled law: Application
of Defender,
435 N.W.2d 717, 721 (S.D.1989).
ISSUE
IV
I dissent. This case should be reversed and
remanded due to the dearth of salient facts as reflected
by footnotes 1 and 2 of the majority opinion.
As the facts go, so goes the applicable law.
Additionally, mother and three daughters appear to be
Indians, (mother and two daughters are enrolled members of
the tribe and the third daughter appears to be eligible
for enrollment), residing on the reservation, and all the circumstances
supposedly justifying a change in custody occurred within the exterior
boundaries of the Cheyenne River Indian Reservation. Thus,
the action taken by the circuit court appears to infringe
upon the right of the Cheyenne River Sioux Tribe to
decide where Indian children should live. Where circumstances
concerning the internal affairs of Indians residing on the reservation
occur on the reservation, state court authority has consistently been
held to be invalid. Matter
of Guardianship of Sasse,
363 N.W.2d 209, 211 (S.D.1985); Matter
of Guardianship of D.L.L. & C.L.L.,
291 N.W.2d 278, 281 (S.D.1980).
Recently, our sister state of North Dakota recognized exclusive tribal
jurisdiction in domestic matters involving resident Indians. Byzewski
v. Byzewski,
429 N.W.2d 394, 399 (N.D.1988). South Dakota has
never effectively assumed general civil jurisdiction over Indian reservations under
P.L. 280. Rosebud
Sioux Tribe v. State of South Dakota,
900 F.2d 1164, 1171 (8th Cir.1990), cert.
denied,
500 U.S. 915, 111 S.Ct. 2009, 114 L.Ed.2d 98 (1991).
See
State v. Spotted Horse,
462 N.W.2d 463 (S.D.1991). The Eighth Circuit Court
of Appeals stated: "We believe that the failure to
assume jurisdiction in a manner consistent with the purposes of
P.L. 280 is not
sufficient action within the terms of the offer made by
Congress to the States in
1953." Rosebud,
at 1171.
*148
Here, the trial court's action was preempted by federal law.
Once it is determined that a particular matter has
been preempted by federal law, any state action taken is
a nullity and therefore void. White
Mountain Apache Tribe v. Bracker,
448 U.S. 136, 143, 100 S.Ct. 2578, 2583, 65 L.Ed.2d
665, 672 (1980).
In Byzewski,
the North Dakota Supreme Court recognized that domestic relations among
its members is an important issue of tribal control and
does not dissipate merely because one of the parties to
a marriage is a non-Indian. 429 N.W.2d at 399.
See also the United States Supreme Court ruling
in Iowa
Mutual Ins. Co. v. LaPlante,
480 U.S. 9, 107 S.Ct. 971, 94 L.Ed.2d 10 (1987),
holding, inter alia, that the United States Supreme Court recognized
that the Indians Civil Rights Act, 25 U.S.C. §
1302, provides non-Indians with various protections against unfair treatment in
the tribal courts.
Thus, it is presumed that father has legal rights he
may assert and that same will be protected and recognized
by fair dealing in the tribal court.
ISSUE
V
I concur.
473 N.W.2d 141
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