John C. HARRIS, Appellee, v. Charlene K. YOUNG, formerly Charlene K. Harris, Appellant.
No. 17237.
Supreme Court of South Dakota.
Decided July 3, 1991.
Using the same analysis employed under issue 4, items described as suction cups, brushes, blades, chips for deflasher, molds, belts, poly pails, gloves and magnetic tape are neither intended components nor ingredients of the finished product and are therefore not entitled to the exemption granted by
We reverse the circuit court in part and affirm it in part, thereby entirely affirming the Secretary‘s findings.
MILLER, C.J., and WUEST, SABERS and AMUNDSON, JJ., concur.
Argued March 20, 1991.
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.1
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.
- Finding that mother and daughter reside outside the boundaries of reservation;
- Applying the Uniform Child Custody Jurisdiction Act to the proceedings;
- Applying the Indian Child Welfare Act to the proceedings; and
- 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
2. Uniform Child Custody Jurisdiction Act
The court concluded that it had “jurisdiction of the subject matter . . . based on the factors contained in
First,
Normally, any circuit court in South Dakota is “competent to decide” child custody matters. See
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.
We conclude that to the extent the trial court based its finding of subject matter jurisdiction on
3. Indian Child Welfare Act
Mother claims the court erred in applying the provisions of the Indian Child Welfare Act (ICWA),
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
[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
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.3 Therefore, concurrent jurisdiction
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,4 cites
Although
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
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.”
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. 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.
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,
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.