2017 WL 3039105 (Mash. Pequot Tribal Ct.)
Only the Westlaw citation is currently available.
Mashantucket Pequot Tribal Court.
MOTHER H *
v.
FATHER H *.
MPTC–CV–FR–2017–131.
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June 28, 2017.
Attorneys and Law Firms
Gregory P. Carnese, Esq., for the Plaintiff–Mother.
The Defendant–Father appeared pro se.
AMENDED MEMORANDUM OF DECISION
THOMAS J. LONDREGAN, Judge.
I. THE PROCEEDINGS
*1 This Memorandum of Decision is issued to supplement the Court’s oral decision made on June 7, 2017 on the Plaintiff–Mother’s Motion for a Jurisdictional Hearing. The Plaintiff, Mother H, filed a motion with the court on June 2, 2017 asking for a jurisdictional hearing. The Plaintiff represented that she had filed a dissolution of marriage action in the Mashantucket Pequot Tribal Court (May 10, 2017) but unbeknownst to her counsel, there was a State of Indiana dissolution action pending in the Kosciusko County Superior Court. The Plaintiff stated that she had believed that action had been withdrawn due to a lack of action in that proceeding in Indiana. In April of 2017 the Plaintiff left Indiana without informing the Defendant, and moved to the Mashantucket Pequot Reservation in Connecticut with the parties’ daughter. When the Defendant realized the Plaintiff had left the State of Indiana with his daughter he sought an immediate temporary custody order in Indiana in the dissolution action there pending. The Indiana Court granted the Defendant’s Motion for Emergency Custody and issued an order that “[t]he minor child shall be returned to Father [Father H] and he shall have custody of the minor child, [minor child], until further order of the court.” See Order: In re: the Marriage of [Mother H], Wife and [Father H], Husband, Cause No. 43D01–1512–DR–445 in the Kosciusko County Superior Court, May 26, 2017.
About fourteen months prior to these events, the Indiana Court approved an agreed-upon order between the parties granting the husband and wife joint legal and physical custody of the minor child born June 26, 2014. That order provided for the parties to have physical custody on alternating weeks. The parties implemented that order from February 26, 2016 to April, 2017 when the Plaintiff–Mother moved to the Mashantucket Pequot Reservation. The Indiana Court noted that its order regarding custody had not been modified and that the Plaintiff–Mother had left without notice to the Defendant. The Indiana Court asserted its jurisdiction pursuant to Indiana state law, specifically Indiana law that provided that “An Indiana Court shall treat a tribe as if the tribe were a state of the United States ... for purposes of applying Indiana law.” Indiana law provided that when the court has made a custody determination the court has exclusive continuing jurisdiction over that determination. To further support its order, the Indiana Court cited Federal Law 28 U.S.C. § 1738A(g) for the proposition that Indiana was the only state entitled to exercise jurisdiction during the pendency of its custody proceeding.
Before addressing the Indiana Court’s reference to Federal Law 28 U.S.C. § 1738A(g) which is entitled “Full Faith and Credit Given to Child Custody Determinations,” this Court must first decide if the Mashantucket Pequot Tribal Court has jurisdiction of the mother’s complaint for custody. In her complaint in the Mashantucket Court she has asked for joint legal custody and also asked for immediate temporary custody pendente lite. If this Court finds jurisdiction, the next question for the Court would be whether or not 28 U.S.C. § 1738A(g) applies to tribal nations. (In other words, must the Mashantucket Pequot Tribal Court give full faith and credit to the Indiana order regarding custody.) Even if the federal law did not apply that would not end the discussion. This Court must then decide if it should decline jurisdiction and defer jurisdiction to the State of Indiana.
*2 The Court heard testimony from both the Plaintiff and the Defendant on the motion of the Plaintiff for a jurisdictional hearing.1 The parties addressed the facts regarding jurisdiction of the Indiana Court and the Mashantucket Pequot Tribal Court. The Court solicited the reasons for the Plaintiff’s abrupt removal from Indiana to Mashantucket, because even if this Court finds jurisdiction in the Mashantucket court, this Court has the discretion to defer jurisdiction to the State of Indiana.
A. THE MASHANTUCKET COURT HAS JURISDICTION IN THIS MATTER
Pursuant to 6 M.P.T.L. ch. 4 § 1, “The Tribal Court shall have jurisdiction over all complaints seeking a decree of dissolution of marriage ... provided that at least one party to the action is a member of the tribe.” In this case the Plaintiff–Mother is a member of the Mashantucket Pequot Tribe and the parties’ child is entitled to enrollment in the Mashantucket Pequot Tribe. In Father J v. Mother A, Docket No. CV–FR–2014–207, 2015 WL 5936866, 6 Mash.Rep. –––– (Mash. Pequot Tribal Ct., Aug. 21, 2015), decided August 21, 2015, this Court noted the U.S. policy that recognizes that tribal nations have jurisdiction over their members wherever they reside; whether in their territories or outside their territories. Id. 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). In this matter, the Plaintiff–Mother is an enrolled member of the Mashantucket Pequot Tribe and the minor child is a child entitled to be enrolled as a member of the Mashantucket Pequot Tribe. As such, bother mother and daughter have 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 and its members.
The Mashantucket Pequot Tribal Council has enacted various tribal laws that grant jurisdiction to this court to review custody issues involving tribal children and tribal members. Title 6 of the Mashantucket Pequot Tribal Law 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 Title 6 specifically grants jurisdiction over family relations matters affecting a tribal member and custody of a minor child “regardless of ... whether the minor child resides or is domiciled on the Mashantucket Pequot Reservation.” 6 M.P.T.L. ch. 1 § 2a. 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. See 25 U.S.C. § 1901(3). In the case of Father J v.. Mother A, Docket No. CV–FR–2014–207, 2015 WL 5936866, 6 Mash.Rep. –––– (Mash. Pequot Tribal Ct., Aug. 21, 2015), the Court noted that it was not alone in exercising such jurisdiction as there is case law authority from other Native American tribes supporting the exercise of jurisdiction by a tribal court when tribal members and their children are involved. Id. at 6.
*3 The Court need not decide at this time the reason why the Plaintiff left the State of Indiana.2 The Court’s initial focus is whether or not this Court has jurisdiction of the custody dispute in this dissolution action involving a tribal member and a child entitled to be enrolled as a tribal member when there is a prior similar action pending in Indiana.
For the above-stated reasons, the Mashantucket Pequot Tribal Court has jurisdiction in a claim for joint legal custody when the mother is an enrolled mother of the Tribe and the child is entitled by right to be an enrolled member of the Tribe. See 6 M.P.T.L. ch. 4 § 1. The fact that the child resided in Indiana immediately before the commencement of this action and the Plaintiff–Mother instituted an action of dissolution of marriage in that state, which action was still pending, does not divest the Tribal Court of its jurisdiction.
B. FULL FAITH AND CREDIT OF 28 U.S.C. § 1738A DOES NOT APPLY TO TRIBAL NATIONS.
The Court now turns to whether 28 U.S.C. § 1738A(g) grants to the State of Indiana exclusive jurisdiction during the pendency of this custody proceeding. The answer lies in the statute itself. Section 1738A(b)(8) defines the term “state.” It means a state of the United States, the District of Columbia, the Commonwealth of Puerto Rico or a territory or possession of the United States. Missing from this definition are Native American tribes who have been recognized as domestic dependent nations within the United States. By the clear terms of 28 U.S.C. § 1738A, this federal statute does not apply to Native American tribes.3
28 U.S.C. § 1738A is referenced in the Uniform Child Custody and Jurisdictional Enforcement Act (UCCJEA). Although not raised specifically by the parties, the Court will address the UCCJEA. In Father J v. Mother A, supra, this Court rejected the argument that the UCCJEA with its reference to the full faith and credit clause of 28 U.S.C. § 1738A applied to Native American tribes. The UCCJEA mandates that each state recognize and “enforce according to its terms” any child custody determination of another state, citing 28 U.S.C. § 1738A, the same statute cited by the Indiana Court. As pointed out in Father J v. Mother A, the UCCJEA is one of a number of uniform state laws that individual states decide whether or not to adopt. They govern relationship between states that adopt the uniform law. The UCCJEA does not govern Native American tribes. As such, a state court such as Indiana cannot require the Mashantucket Pequot Tribe to follow 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 therefore the UCCJEA does not apply to the Mashantucket Pequot court. Furthermore, the UCCJEA proposed an optional provision for states to adopt if it wanted to recognize a tribe “as a state of the United States.” Apparently the State of Indiana has adopted this optional provision and Indiana recognizes Native American tribes as a “state of the United States.” However, just because Indiana has recognized Native American tribes as a state does not mean that the Mashantucket Pequot Tribe is bound by Indiana law. This would turn the concept of tribal sovereignty on its head.
C. THE MASHANTUCKET PEQUOT TRIBAL COURT DECLINES TO DEFER ITS JURISDICTION TO THE INDIANA COURT.
*4 Having decided that the Mashantucket Pequot Tribal Court has jurisdiction, and that the Court is not bound by the full faith and credit clause of 28 U.S.C. § 1738A, the Court must now decide whether or not to decline its jurisdiction and defer this matter to the Indiana Court as the more appropriate forum. This decision must be guided by what is in the best interests of the child.
The Court conducted a hearing on this jurisdictional matter and heard from the parties. The Court wanted to know if the Plaintiff was avoiding some order in Indiana that she believed to be onerous, adverse to her, and therefore was seeking a different forum for redress. From the evidence and testimony received by this Court, the Court does not conclude that the Plaintiff’s move to Mashantucket constituted “forum shopping” and that the Plaintiff was attempting to avoid onerous orders from the Indiana Court. The Indiana action was commenced in December 2015 and the only “action” or orders were the consensual orders above referred to, issued in 2016. For the next fourteen months neither party took any action to move the case forward. At the commencement of the Indiana action the Plaintiff alleged in her verified petition physical confrontation in the presence of the child, drug abuse, prescription medication abuse, and emotionally erratic behavior. Adding to the difficulties in the marriage the Defendant fostered a child with the Plaintiff’s sister. Based on these facts the Plaintiff’s move to Mashantucket cannot be seen by the Court as “forum shopping.” Therefore the Court will not defer the case to the Indiana Court.
So this leaves the parties with two pending actions. This Court cannot decide the parameters of Indiana’s jurisdiction over the same dissolution subject matter. The parties of course could agree on which jurisdiction to proceed, but absent their agreement this Court will reiterate the words of Justice Bosson of the New Mexico Supreme Court quoted in this Court’s decision of Father J v. Mother A, supra, as being 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.
See Garcia v. Gutierrez, 2009–NMSC–044, ¶ 15, 147 N.M. 105, 217 P.3d 591. 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 interests of the children.” Garcia, 2009–NMSC–044, ¶ 3. Indiana will have to decide whether it should defer to the Mashantucket Pequot Tribal Court for one or more of the following reasons: (1) a strong Congressional expression in favor of tribal self-determination as to upbringing of tribal children; (2) concurrent jurisdiction could potentially result in conflicting orders; (3) it would promote efficiency and justice and avoid conflicting judgments, especially where the custody laws in both jurisdictions are based on the “best interests of the child.”
*5 For all of the above reasons, the Mashantucket Pequot Tribal Court has jurisdiction for the Plaintiff’s action for dissolution of her marriage and custody of the parties’ minor child, and will retain such jurisdiction despite the pending case in Indiana.
Footnotes |
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The names of the parties have been redacted to protect their identities. |
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The Defendant filed an appearance to contest the court’s jurisdiction, and the court accepted the appearance as a limited one for purposes of contesting the jurisdiction of this court in this jurisdictional hearing. |
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The Court received as Plaintiff’s exhibit her verified petition for provisional orders wherein she alleged the Defendant’s becoming angry and using physical force in the presence of the child, his abuse of drugs and prescription medications, and his emotionally erratic behavior. This verified petition was dated December 21, 2015. At the hearing in this Court, the Plaintiff testified that this conduct persisted to this time. In addition the Defendant fostered a child with the Plaintiff’s sister. Certainly all of this contributed to the emotional upheaval in this marriage. |
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The Court is aware of a decision that a Native American tribe should be considered a “territory or possession” of the United States. See Standing Rock Sioux Tribal Court, Standing Rock Sioux Indian Reservation, in the matter of Benjamin James Montclair, a Minor, Daniel Montclair, Sr., Petitioner, File No. CC–C–2008–037. This Court does not equate Native American tribes whose legal status has been described as “domestic dependent nations” as a territory or possession of the United States. |
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