In the Matter of the Application of Carole DEFENDER for a Writ of Habeas Corpus, Petitioner and Appellee v. Loren Zephier, Respondent and Appellant
No. 15945
Supreme Court of South Dakota
Decided Jan. 18, 1989
435 N.W.2d 717
Considered on Briefs Oct. 11, 1988.
It is, of course, eаsy to create a corpus of law. Quantity of litigation can produce a large body of law. But what is more important, the body of the law in any given court or the spirit of the law? With this writing and these authorities, the spirit for the right should overcome the body of a great wrong. In summary, I would reverse, and direct that the circuit court and referee award compensation as required by these sound аuthorities.
SEQUEL
Fleeting thoughts of a sixty-year-old jurist reminded him of the poetry he eagerly pored over as a youth. A phrase haunted him in the context of this case: “The plowman homeward plods his weary way, And leaves the world to darkness and to me.” Sought he “The Literature of England” to track down the haunting phrase and found it in Thomas Gray‘s (1716-1771) “Elegy Written in a Country Churchyard.” Realized in reading same, after lo thesе many years, the universality of the appeal of this writing and a reoccurring theme therein, the transiency of human labor. Many famous lines contained in this Elegy which have been used for two centuries and drawn upon to write a book or a play. Examples: “The paths of glory lead but to the grave” and “Far from the madding crowd‘s ignoble strife.” In the context of this case, I quote one stanza:
Let not Ambition mock their useful toil,
Their homely joys, and destiny obscure;
Nor Grandeur hear, with a disdainful smile,
The short and simple annals of the poor.
Gray‘s Elegy made a great mark upon literature and mankind because of its exaltation of laboring masses and lowly folk. Spirit begot his writing. Respect for the “annals of the poor” and a commensurate respect for their way of life — was immortalized in the English language.
Billy Joe Jones, Dakota Plains Legal Services, Fort Yates, N.D., for petitioner and appellee.
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 tо 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, whеre 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, Fa
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.1 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.
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 wаs 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 temporаry 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 сontinuance 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 Fathеr 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 arreаrages.
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.
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 еntitled 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
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 beforе 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).2 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:
The existence of personal jurisdiction ... depends upon the presence of reasonable notice to the defendant that an аction 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 temрorary 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. Kulko, supra; International Shoe, supra.
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 сircumstance, 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.4
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),
Because the ICWA does not аpply 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 аdjudication 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 bеen 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.
An examination of the current factual pattern and case history does not present the same threat, from the State of South Dakоta, 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 reaсh is not, necessarily, so narrowly circumscribed as the majority opinion would have it.