2015 WL 5936866 (Mash. Pequot Tribal Ct.)
Only the Westlaw citation is currently available.
FATHER J *
v.
MOTHER A.*
Attorneys and Law Firms
Michael J. Cartier, Esq., for the Plaintiff.
Erica Rodriguez, Esq., for the Defendant.
MEMORANDUM OF DECISION
THOMAS J. LONDREGAN, Judge.
I. The Proceedings.
*1 This family matter came to the Court on December 16, 2014 when the plaintiff (Father) filed a complaint alleging that he and the defendant (Mother) are the natural parents of a minor child born in 2007. The Father and Mother were living separate and apart from each other. For seven years, the parties have worked out all issues regarding the placement and residence of the child. The Father now seeks joint legal custody with primary physical custody with him, with reasonable access and visitation to the Mother. The matter was brought pursuant to Title 6 of the Mashantucket Pequot Tribal Laws entitled “Family Relations Law,” and within Title 6, chapter 6 entitled “Paternity Proceedings.” Service on the Mother was accomplished on December 18, 2014. Thereafter, Attorney Erica Rodriguez entered an appearance on behalf of the Mother. The Father and child are enrolled members of the Mashantucket Pequot Tribe. The child is one-half Mashantucket Pequot and one-quarter Mashpee Wampanoag.
On December 22, 2014, six days after this action was filed in the Mashantucket Pequot Tribal Court, the Mother filed an action for custody of the child in the Superior Court for the State of Connecticut for the Judicial District of New London at Norwich. The Mother sought sole legal custody and primary residence together with child support.
The Connecticut Superior Court (Moukawsher, J.) requested that this Court conduct a “jurisdictional hearing,” pursuant to the Uniform Child Custody Jurisdiction and Enforcement Act (hereinafter “UCCJEA”), Connecticut General Statute § 46b–115, et seq. Section 46b–115h of Connecticut’s UCCJEA permits a court of Connecticut to communicate with a court in another state concerning a proceeding arising under “Connecticut law.” Section § 46b–115k outlines the necessary factual basis for jurisdiction of a child custody dispute between states. By motion dated March 4, 2015, the Mashantucket Pequot Tribe sought permission to participate as amicus curiae on the limited issue of the Court’s jurisdiction in this matter. The motion was granted by this Court. This Court conducted a jurisdictional hearing on June 24, 2015 in which all parties participated and subsequently filed briefs. The Mashantucket Pequot Tribal Nation filed an amicus curiae brief after the hearing. Under the UCCJEA, Connecticut would have jurisdiction to make an initial child custody determination if Connecticut was the “home state” of the child or if Connecticut was the “home state” of the child within six months of the commencement of the child custody proceeding, and a parent continued to reside in Connecticut. See Conn. Gen.Stat. § 46b–115k.1
Before addressing the UCCJEA, this Court must first decide if the Mashantucket Pequot Tribal Court has jurisdiction of the Father’s complaint for joint legal custody. If so, the next question for this Court would be whether or not the UCCJEA applies to the Mashantucket Pequot Tribal Court and this proceeding.
II. The Mashantucket Pequot Tribal Court Has Jurisdiction in a Claim for Joint Legal Custody When Father and Child are Enrolled Members of the Mashantucket Tribe Notwithstanding that Child Resided in Connecticut Her Entire Life.
A. U.S. policy regarding Tribal Nations recognizes that tribes have jurisdiction over their members wherever they reside as well as their territories.
*2 Jurisdiction for this Court over matters concerning tribal children who live outside of the reservation arises from the Tribe’s inherit sovereign right to watch over the upbringing of tribal children as a matter of the health, safety, and welfare of the Mashantucket Pequot Tribal Nation as a whole. The United States Congress has expressed that “there is no resource that is more vital to the continued existence and integrity of Indian tribes than their children.” 25 U.S.C. § 1901(3). While state jurisdiction is based on residency, tribal jurisdiction is based on the relationship between tribal members and their tribe even if the members do not live on the reservation. The U.S. Supreme Court has recognized that tribes have jurisdiction over their members as well as their territory. See United States v. Mazurie, 419 U.S. 544, 557, 95 S.Ct. 710, 42 L.Ed.2d 706 (1975) (stating “it is an important aspect of this case that Indian tribes are unique aggregations possessing attributes of sovereignty over both their members and their territory” (citing Worcester v. Georgia, 31 U.S. 515, 6 Pet. 515, 557, 8 L.Ed. 483 (1832)) and “they are a ‘separate people’ possessing ‘the power of regulating their internal and social relations....’ ” (quoting United States v. Kagama, 118 U.S. 375, 381–382, 6 S.Ct. 1109, 30 L.Ed. 228 (1886))).
In this matter, the child is an enrolled member of the Mashantucket Pequot Tribe and as such, the child has all the rights and privileges of tribal membership including access to the court system. The Mashantucket Pequot Tribe has a legitimate and compelling interest in the welfare of its tribal children. In accordance with the policy of the U.S. Congress pertaining to tribal nations, the Mashantucket Pequot Tribal Court has jurisdiction over a father’s complaint which acknowledges paternity and seeks joint legal custody and primary physical custody of a tribal child even if he and the child reside off the reservation.
B. Specific Tribal Law—Grant of Authority.
The Mashantucket Pequot Tribal Council has enacted various tribal laws that grant jurisdiction to this Court to review paternity and custody cases involving tribal children and tribal members. Title 6 of the Mashantucket tribal laws is entitled “Family Relations,” and the purpose of the law is stated as follows:
The Mashantucket Pequot Tribe finds that the Tribe’s interest over family relations is an integral part of tribal self-government and the Tribe’s history and culture, that it is exceedingly important to the Tribe to support the preservation of families, that families thrive when they receive appropriate emotional and financial support, and that the lives of children and families improve by strengthening parental responsibility for family and child support.
6 M.P.T.L. ch. 1 § 1.
This law, Title 6, gives the Court jurisdiction over “all rights and remedies for establishing paternity” and “all other matters within the jurisdiction of the tribal court concerning children or family relations.” Id. at § 2(a). Section 10(e) of chapter 4 of Title 6 provides that: “Where the parents of a minor child live separately, the court may, on the petition of either party and after notice given to the other, make any order as to the custody, care, education, visitation, and support of any minor child of the parties.” 6 M.P.T.L. ch. 4 § 10(e). While Title 6, of which § 10(e) is a part, is entitled “Dissolution of Marriage and Annulment,” the language of § 10(e) is not necessarily restricted to married parents. This language essentially mirrors and is identical in substantive respects to Connecticut General Statute § 46b–61, which states:
*3 In all cases in which the parents of a minor child live separately, the superior court for the judicial district where the parties or one of them resides may, on application of either party and after notice is given to the other party, make any order as to the custody, care, education, visitation and support of any minor child of the parties.... Proceedings to obtain such orders shall be commenced by service of an application, a summons and an order to show cause.
Conn. Gen.Stat. § 46b–61.2
Mashantucket tribal law makes reference to Connecticut law: “Where necessary and practical, and where not inconsistent with ... the provisions of this Law, the court shall follow the ... principles of law applicable to similar claims arising under the laws of the state of Connecticut.” 6 M.P.T.L. ch. 4 § 4. This Court has noted on numerous occasions that where tribal laws parallel language contained in federal law or the federal Constitution, “federal precedent may guide the Tribal Court.” See Barnes v. Mashantucket Pequot Tribal Nation, 4 Mash.Rep. 477, 483 (2007). Also where Mashantucket Pequot Rules of Civil Procedure are patterned after the Federal Rules of Civil Procedure, federal decisions are a useful source of guidance. See Jones v. Mashantucket Pequot Tribal Nation, 6 Mash.Rep. 162, 168 (2014). The Court will therefore look to the case law of Connecticut interpreting Connecticut’s corresponding and nearly identical statute, Connecticut General Statutes § 46b–61. In Stevens v. Leone, 35 Conn.Supp. 237, 238–240, 406 A.2d 402 (1979), the Connecticut Superior Court reviewed the language of § 46b–61 and determined that when the legislature amended this section to take out language relating to husband and wife, the intent was to expand the jurisdiction of the Superior Court regarding custody from controversies arising out of the dissolution of marriage to controversies in which a child is born outside of marriage. Notably, this section of Connecticut law is in Title 46b of the Connecticut statutes which is entitled “dissolution of marriage, legal separation and annulment.” This Court finds that the intent of the tribal law, 6 M.P.T.L. ch. 4 § 10(e), is similar to the intent of Connecticut law, § 46b–61, and thereby provides the authority for the Tribal Court to consider and determine the custody of a tribal member’s child outside of marriage.
In addition to Title 6 “Family Relations” discussed above, Title 5 of the Mashantucket tribal laws entitled “Child Welfare Law” also contains the important finding that “the Mashantucket Pequot Tribe finds that there is no resource more vital to its continued existence and integrity than its children.” 5 M.P.T.L. ch. 1 § 1. This reiterates the statement of the United States Congress cited above.
Whether taken together or separately, the overall structure and purpose of these jurisdictional provisions of Mashantucket law provide this Court with jurisdiction over this action by a tribal father concerning a child who is also a tribal member. Jurisdiction for this Court is based on the fact that both Father and the child are tribal members. In the exercise of self-government, the Tribe has enacted these laws to provide authority to this Court to adjudicate matters, relating to family relations involving tribal members.
C. Case Law.
*4 The Mashantucket Pequot Tribe is not alone in exercising such jurisdiction. There is case law authority from other Native American Tribes supporting the exercise of jurisdiction by a tribal court when tribal members are involved, even if the members do not live on the reservation. See, e.g., Miles v. Chinle Family Court, 7 Am. Tribal Law 608, 612–13 (Nav.Sup.Ct.2008) (holding that “[u]nder the plain language of the Children’s Code, the Navajo Courts have jurisdiction to decide custody of Navajo children regardless of residency within the Nation” and that “[i]t is the child’s status as a Navajo, and not her presence within the territory of the Navajo Nation that allows jurisdiction”); accord Bahe v. Platero, 11 Am. Tribal Law 104, 107 (Nav.Sup.Ct.2012) (“We have previously stated that our courts have jurisdiction over our children wherever they may reside.”).
For the above stated reasons, this Court finds that it has jurisdiction over this action. The Court now turns to whether or not the UCCJEA applies.
III. The UCCJEA Does Not Apply to the Mashantucket Pequot Tribal Court.
The UCCJEA is one of a number of Uniform State Laws that individual states decide whether or not to adopt. They govern the relationship between the states that adopt them. Uniform laws, such as the UCCJEA, do not govern Native American tribes. As such, a state court cannot require a Native American tribe to follow a state law like the UCCJEA. To be bound by such a law, Native American tribes would have to consent and adopt the law as the law of its tribe. The Mashantucket Pequot Tribe has not adopted the UCCJEA and as such, the UCCJEA does not apply to Mashantucket.
A. Connecticut did not adopt that portion of UCCJEA that would require it to treat a tribe as if it were a state.
The Mother argues that according to the UCCJEA, the State of Connecticut and Mashantucket are both “states” under the Act in regards to custody proceedings. The Court disagrees. This Court has reviewed the UCCJEA. The National Conference of Commissioners on Uniform State Laws (hereinafter “NCC”) specifically dealt with Indian Tribes in § 104. In § 104a the NCC made it clear that the UCCJEA did not effect in any way the Indian Child Welfare Act (“ICWA”), 25 U.S.C. § 1901, et seq. Section 104a states that a child custody proceeding involving an Indian child is not subject to the UCCJEA to the extent that it is governed by ICWA. (ICWA does not apply to child custody proceedings between parents as is the case here.)
The NCC specifically proposed § 104b as an optional provision for states to adopt only if the states wanted to recognize a tribe as a “state of the United States.” Connecticut did not adopt the optional provision of § 104b of the UCCJEA. Connecticut only adopted § 104a. See Conn. Gen.Stat. § 46b–115c. Connecticut does not have to treat the Mashantucket Tribe as if it were a state of the United States.
B. Mashantucket Tribe has not adopted the UCCJEA.
*5 Likewise, and more importantly, the Mashantucket Tribe has not adopted the UCCJEA. This court (Shibles, C.J.) has previously determined that the UCCJEA was inapplicable to Mashantucket Pequot Tribal Court proceedings. See Father v. Mother, 3 Mash.Rep. 45, 52, 3 Mash. 204 (1999) (“The Mashantucket Pequot Tribal Council has not adopted [the UCCJEA] thus this court finds them to be inapplicable to Mashantucket Pequot Tribal Court proceedings.”). As the Navajo Nation Supreme Court explained in Miles:
[T]he UCCJEA is a proposed statute drafted by the National Conference of Commissioners on Uniform State Laws and adopted by state legislatures.... The UCCJEA applies in a jurisdiction only if that jurisdiction chooses to adopt it, which the Navajo Nation Council has not done. These statutes [also referring to the Parental Kidnapping Prevention Act] do not apply to the Nation, and consequently they cannot regulate the Nation’s jurisdiction over the child.
No. SC–CV–04–08, slip op. at 6.
Similarly, the Supreme Court of New Mexico has recognized that the adoption of the UCCJEA by the New Mexico legislature does not mean it applies to tribal adjudication of child custody matters. See Garcia v. Gutierrez, 2009–NMSC–044, ¶ 15, 147 N.M. 105, 217 P.3d 591. There the court explained that while the New Mexico UCCJEA recognized tribes as states for purposes of the jurisdictional provisions and that the New Mexico courts are bound to honor decisions of tribal courts for continuing jurisdictional purposes as long as the UCCJEA requirements have been met, the state statute has no similar power to bind tribal courts. Id. The court further explained: “[t]his legislation, however, has no power to similarly bind the tribal courts, because unless the tribes have passed legislation similar to the UCCJEA, they are not subject to its commands.” Id.
Mother contends that because Mashantucket law requires full faith and credit “to the public acts, records and judicial decrees applicable to child custody proceedings” (see 5 M.P.T.L. ch. 1 § 3(d) and 6 M.P.T.L. ch. 1 § 2(c)), Connecticut’s UCCJEA applies to this matter. This argument must fail for the following reason. Reference to “public acts” is followed by “records and judicial decrees ... of any court of competent jurisdiction....” This section pertains to records and judicial decrees rather than the public acts of a sister state’s legislature. A fair reading of these Mashantucket laws directs recognition of foreign orders and judgments. They do not call for the substitution of state laws into Mashantucket laws. This position is consistent with federal cases construing the Full Faith and Credit Clause of the United States Constitution, which requires that “full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state.” U.S. Const. art. IV, § 1. Federal courts have held that the Full Faith and Credit Clause does not compel “a state to substitute the statutes of other states for its own statutes dealing with a subject matter concerning which it is competent to legislate.” Franchise Tax Board of California v. Hyatt, 538 U.S. 488, 494, 123 S.Ct. 1683, 155 L.Ed.2d 702 (2003) (quoting Sun Oil Co. v. Wortman, 486 U.S. 717, 722, 108 S.Ct. 2117, 100 L.Ed.2d 743 (1988)). If this were the case, tribal sovereignty would be a nullity. The Court will not construe these sections of Mashantucket law to import a law enacted by the Connecticut legislature as the law of the Mashantucket Tribe. The Tribe is fully competent to determine whether to adopt the UCCJEA and has not done so at this time.
IV. Conclusion.
*6 Based on the U.S. policy, the statutory and case law of Mashantucket and case law from other jurisdictions as stated above, the Mashantucket Pequot Tribal Court has jurisdiction over this matter and finds no reason to defer to the State of Connecticut’s jurisdiction. The issue of custody of the child and related issues was first brought in the Mashantucket Pequot Tribal Court by the Father.3 The Mother then brought her action to the state court, which triggered the communication to this Court.
As explained above, neither Mashantucket nor the State of Connecticut are bound by the UCCJEA under the facts of this matter. Moreover, this Court cannot decide the parameters of Connecticut’s jurisdiction over the same subject matter. So where does this decision leave the parties? The Court finds the words of Justice Bosson of the New Mexico Supreme Court most appropriate:
There are occasions, and this is one, when this Court can give no definitive answer to the increasingly complex jurisdictional disputes between state and tribal courts. Given its plenary authority over Indian matters, Congress could provide such answers, but it has not. We do our best to fill the void.
Garcia, 2009–NMSC–044, ¶ 1, 147 N.M. 105, 217 P.3d 591.4
The Mashantucket Pequot Tribal Court has jurisdiction; Connecticut might assert jurisdiction. See Charles v. Charles, 243 Conn. 255, 701 A.2d 650 (1997) (where the Connecticut Supreme Court held that Connecticut had jurisdiction in a dissolution of marriage matter where a non-resident of Connecticut brought an action against a member of the Mashantucket tribe who resided on the reservation). Regardless, neither court’s jurisdiction is exclusive of the other.
Connecticut could decide to stay its action until tribal remedies have been exhausted. See Drumm v. Brown, 245 Conn. 657, 690, 716 A.2d 50 (1998) (where the Supreme Court of Connecticut concluded that a tort action should be stayed until tribal remedies were exhausted). Connecticut could also just decide to defer to the Mashantucket jurisdiction. Justice Bosson suggested that, “the state and tribal courts must share jurisdiction under principles of comity and work out their differences, guided by universally accepted principles of doing what is in the best interest of the children.” Garcia, 2009–NMSC–044, ¶ 3, 147 N.M. 105, 217 P.3d 591. Connecticut will have to decide whether it should defer to Mashantucket Tribal Court for one or more of the following reasons:
1. The strong congressional expression in favor of tribal self-determination as to upbringing of tribal children;
2. The Father was first in time of the two pending parallel actions;
3. Concurrent jurisdiction could potentially result in conflicting orders;
4. It would promote efficiency and justice and avoid forum shopping and conflicting judgments, especially where the law in Mashantucket is similar, both in substance and procedure to Connecticut law. Compare 6 M.P.T.L. ch. 4 § 10(e) with Conn. Gen.Stat. § 46b–61.5
*7 The courts of Connecticut and that of Mashantucket have on a number of occasions recognized their respective decisions under the principles of comity. In Mashantucket Pequot Gaming Enterprise v. DiMasi, Superior Court, Judicial District of New London, Docket No. CV–00–0117677, 1999 WL 799526 (Sept. 23, 1999), the trial court found that the judgment of the Mashantucket Pequot Tribal Court was entitled to enforcement by Connecticut under the principle of comity. In Cooper v. Discount Scooters, LLC, Superior Court, Judicial District of New London, Docket No. CV–10–6004606, 2012 WL 4902694 (Sept. 26, 2012), the trial court concluded that the Tribe had established reasonable procedures for the resolution of tort claims and thus the judgment of the Mashantucket Pequot Tribal Court should be afforded res judicata and/or collateral estoppel effected by the Connecticut court. Connecticut courts have also recognized the “exhaustion of tribal remedies” as a matter of comity citing both state and federal authorities. In Burnham v. Pequot Pharmaceutical Network, Superior Court, Judicial District of New London, Docket No. CV–95–536264, 1998 WL 345463 (June 19, 1998), while not a family matter, the Connecticut Superior Court held that the courts are required to abstain from adjudicating a matter when a parallel action is pending in Tribal Court.
The Mashantucket Pequot Tribal Courts have enforced many Connecticut judgments pursuant to Title 23 of the Mashantucket Pequot Tribal laws entitled, “Foreign Judgments, Wage Executions and Subpoenas” and have recognized foreign divorce and support orders from various state courts. In Husband v. Wife, 3 Mash.App. 37, 6 MPR 1 (2003), the Appellate division of the Mashantucket Court upheld the decision of the Mashantucket Pequot Tribal Court adopting the judgment of the Connecticut Superior Court dissolving a marriage on the grounds of comity. The Appellate Court stated:
At the outset, we note that Mashantucket Courts are amenable, as a general matter, to the enforcement and recognition of appropriate and lawful foreign judgments from both other tribes and the several states.
...
Comity should be withheld only when its acceptance would be contrary or prejudicial to the interest of the nation called upon to give it effect. (Citation omitted.)
Id. at 40, 42, 6 MPR 1.
Having accepted the invitation of the Superior Court of Connecticut to review the jurisdictional issue of the two pending actions and having determined that this Court has jurisdiction to adjudicate this action, the Clerk is directed to schedule a hearing on the merits of the relief requested by the Father and any counter-relief requested by the Mother. If either party considers that a guardian ad litem is necessary for the minor child, they may so advise the Court.
Mashantucket Pequot Tribal Court.
MPTC–CV–FR–2014–207.
|
Aug. 21, 2015.
Footnotes |
|
The names of the parties have been redacted to protect their identities. |
|
The Father alleged in his complaint in this Mashantucket proceeding that the child has resided in the State of Connecticut her entire life and “Connecticut is his [sic] home state.” In the hearing before the Court, the Father’s attorney contended “that the [Mashantucket] reservation is a state, the same as Connecticut or Rhode Island, for purposes of the UCCJEA and that therefore ... the Act [UCCJEA] would apply.” Transcript of Evidentiary Hearing at 5. |
|
In fact, most all of the Mashantucket Pequot Tribal Law on Family Relations—Dissolution of Marriage and Annulment (Title 6, ch. 4) is similar to the law of Connecticut. Title 6 of Mashantucket Pequot Tribal Laws provide for a ninety day conciliatory period, mandatory counseling, and a six month delay if one refuses to attend, similar criteria for awarding alimony and support as is found in Connecticut law. |
|
Father previously filed a pro se custody action in Connecticut Superior Court in 2011, which was eventually dismissed; Mother also previously filed a pro se custody action in Connecticut Superior Court in 2012, which was eventually dismissed. No custody orders were entered in either action. Both files have been destroyed per order of the Connecticut Superior Court. |
|
Unlike Connecticut, New Mexico mandated that New Mexico courts treat a tribe as if it were a state. The case involved the question of what lands constitute “Indian lands” and whether a child residing on non-Indian owned fee land within the exterior boundaries of an Indian reservation could be considered as residing in the State of New Mexico for purposes of determining the “home state” under the UCCJEA. The trial court and subsequently the Supreme Court held that there was no “home state” for the children because even though they resided within the Indian reservation, they were on fee land of a non-Indian. With no “home state” that would dictate exclusive jurisdiction to the tribal court, the trial court in New Mexico found jurisdiction pursuant to the “significant connections” prong of the UCCJEA. The Court of Appeals for New Mexico reversed and concluded that the “fee land” did qualify as Indian land and therefore the tribe was the “home state” and the tribe had exclusive jurisdiction. The Supreme Court of New Mexico reversed the Appellate Court and adopted the trial court decision. |
|
In addition to the similarities between the laws of Mashantucket and Connecticut (see footnote 2), the structure of the Mashantucket Pequot Tribal Court is as equipped to handle this dispute as the Superior Court of Connecticut. The Mashantucket court has a family relations officer, provisions for the appointment of a guardian ad litem for the child, and the court follows the universally accepted rule of deciding what is in the “best interest of the child.” See 6 M.P.T.L. ch. 4. |
|