--- Am. Tribal Law ----, 2024 WL 6045551 (Colville C.A.), 16 CCAR 18, 8 CTCR 33
Colville Tribal Court of Appeals.
 
Sharon MOSES, Appellant
 
v.
 
Frankie GEORGE and Jose RIVAS, Appellees
 
Case No. AP24-001
|
Decided June 3, 2024

Trial Court Case No.CV-OC-2024-47050

Before Chief Justice Anita Dupris, Justice Hunter Abell, and Justice Cynthia Jordan

Dupris, CJ

 

SUMMARY

This matter came before the Court of Appeals on an Appeal filed on March 22, 2024 by Sharon Moses, Appellant, against Frankie George and Joseph Rivas, Appellees. Appellant, appearing pro se, initially filed an Interlocutory Appeal; upon review we found that the Appeal is of a final order, and designated it an appeal of a final judgment.

The grounds for Appeal are under COACR 4-2 (g, f, and h), error of law, that the decision is contrary to the law and evidence, and that substantial justice has not been done. The Trial Court, in its order of March 14, 2024, entitled “UCCJEA Order RE: Jurisdiction (Dismissal Order) found cause to dismiss Appellant’s Petition for Custody based on the UCCJEA, a federal law that is applied in State Courts, and held jurisdiction under the UCCJEA rests with the - Yakama Tribal Court.

At the Initial Hearing on May 17, 2024 we found, as a matter of Colville Tribal law, the UCCJEA is not applicable to cases before the Colville Tribal Court, and, therefore, the Trial Court committed an error of law in so applying it, and we reversed and remanded the case to the Trial Court for conformance with our laws. Our decision is based on the reasoning set out below.

 

ISSUE

Does the Colville Tribal Court have UCCJEA jurisdiction over the case herein as a matter of law when the UCCJEA does not apply on the Colville Reservation?

 

STANDARD OF REVIEW

The issue before the Court is a legal one. We apply the de novo standard of review. Naff v. CCT, 2 CCAR 50 (1995).

 

DISCUSSION

Procedural Facts

1) On August 29, 2023 Appellant filed a Custody Petition and Temporary Orders request in the Colville Tribal Court (CCT Court) alleging her three minor children were being withheld from her and that their domicile is with her on the Colville Reservation. All the minors and Appellant are Colville tribal members.

2) The CCT Court set a Show Cause on Appellant’s requests for September 8, 2023.

3) Service was attempted on Rivas, the father of two of the minor children, of the August 29, 2023 petition and temporary orders motion. Appellant stated it was returned as being refused on October 7, 2023.4) Appellee George filed for temporary guardianship along with a petition for guardianship in the Yakama Indian Nation Court (YIN Court) on September 18, 2023. The YIN Court granted her ex parte orders of temporary guardianship.

5) The YIN Court also found it has exclusive jurisdiction to hear the matter. No notice was given to Appellant on the temporary order of guardianship ex parte. The document alleges no service as “unknown.” For Appellee Rivas, Appellee George stated in the document: “he is aware.”

6) CCT Court set a Show Cause hearing on Appellant’s August 29, 2023 requests, at which time, the CCT judge directed that all parties, including the children were to be present.

7) The next CCT order of October 19, 2023 set the matter for a custody trial on January 9, 2024. All parties failed to appear. An Order of January 31, 2024 states the Motion to Dismiss was granted, and the matter was dismissed. It does not state who made the Motion to Dismiss

8) In November, 2023 Appellant contacted the YIN Court and was told about the temporary orders, of which she had no notice. She was served certified notice on December 21, 2023 that the hearing was set for February 13, 2024 in the YIN Court.

9) Both Appellant and Appellee George appeared for the hearing in the YIN Court on February 13, 2024; Appellee Rivas did not.

10) The YIN Court found Appellee George established her case by clear, cogent and convincing evidence that it would be in the best interests of the children for her to have guardianship; the judge found further that Appellant’s evidence was not credible, i.e. that she was now stable enough to take care of her children and was working on what she needed to do.

11) Appellant filed a Petition for Custody in CCT Court on February 26, 2024 alleging, inter alia, the children are enrolled in Colville Tribes; she is a member of the Colville Tribes; the children were withheld from her for over a year; the father has an active Colville Tribal domestic violence warrant, and is being investigated for sexual abuse of her niece. She alleges he has contact with her minor children.

She further alleges her children are domiciled with her, but have not been returned to her. Finally, she alleges the George home has seven children, including three boys, and all the children share the same room (We assume she means bedroom).

12) On February 26, 2024 the CCT Judge denied Appellant’s motions for temporary orders and set a “judicial conference with the court of the Yakama Indian Nation, for hearing on the issue of jurisdiction between the Colville Tribal Court and the Yakama Tribal Court.” Upon questioning at the Initial Hearing on May 17, 2024, both parties stated they were not allowed to be present at the phone call hearing between the Colville and Yakama judges on the issue of jurisdiction.

13) On March 12, 2024 the Colville Judge entered an Order: UCCJEA ORDER RE: JURISDICTION (DISMISSAL ORDER). [UCCJEA Order].

14) The UCCJEA Order finds that the matter was “voluntarily dismissed” from the CCT Court, attended by both parties in the YIN Court and litigated there; that the YIN Court has jurisdiction; and that the CCT declines jurisdiction and dismissed the CCT case. It is from this Order Appellant filed a timely Appeal on March 22, 2024.

15) In her Appeal Notice Appellant states she did not understand it was a jurisdictional issue, and that she disagrees with the CCT Court ruling in the UCCJEA Order regarding YIN jurisdiction. She has raised an important jurisdictional issue before this Court. UCCJEA does not apply in cases before the Colville Tribal Courts

In Tupling v. Kruse, 13 CCAR 41 (2017), we specifically held that the UCCJEA was not adopted legislatively by CCT, and that this Court does not legislate, so it was not applicable to cases before our Courts. Tupling is the controlling law on UCCJEA.’

The only other case in which the UCCJEA was mentioned in our Court was in In Re S,L., Cd’A Tribe. v. S.L.,R.L., CCT, AP13-019, 11 CCAR 62 (2014), in which the Trial Court held the UCCJEA applied, but the issue brought before us was not the UCCJEA but an Indian Child Welfare issue. This case is not relevant herein.

In Tupling the father, Tupling, was an Indian member of a Canadian tribe; the mother was non-Indian, and they were not married. They resided on the Colville Reservation for a period of time during which time Kruse filed for and received a temporary restraining order (TRO) in Okanogan Court against Tupling alleging domestic violence. September 10, 2013, the day after receiving the TRO she moved to the west side of the State with her minor child.

Several petitions and requests for temporary orders ensued in Colville Tribal Court, Okanogan Superior Court, Island County Court and Snohomish Superior Court. Kruse filed in Okanogan and Snohomish; Tupling filed in the CCT Court, Okanogan, Island, and Snohomish Courts. Kruse filed for custody in Snohomish Superior Court on September 18, 2013.

Tupling filed a Petition for Custody on September 10, 2013 in Tribal Court but did not inform the Tribal Court of the Okanogan Court’s TRO; he did not serve Kruse the Petition until April 21, 2014. The Tribal Court, even though there was no proof of service on Kruse, held at least two hearings on Tupling’s request for ex parte temporary orders, and granted him temporary custody, and issued a pick-up warrant for the minor.

Tupling filed registrations of a foreign order in Okanogan County Court, Island County Court (where Kruse first lived when she moved to the west side of the State), and Snohomish Superior Court, where Kruse was living with her minor child, basing his requests on the UCCJEA, R.C.W. Chapter 26.27.

In May, 2014, the Snohomish Superior Court found it had concurrent jurisdiction with the Colville Tribal Court and reserved ruling on primary jurisdiction until it held a UCCJEA conference call with the Colville Tribal Judge. The jurisdictional issue raised was which Court, Okanogan (first Court), CCT Court, Island County Court, or Snohomish Superior Court, had jurisdiction over the custody matter. The judges of the CCT Court and the Snohomish Court conferred under the auspices of the UCCJEA and concluded that the Snohomish Superior Court was the more convenient forum; the CCT Court declined jurisdiction and dismissed the case.

We found that Washington’s UCCJEA recognized tribes as “states” for the purpose of determining jurisdiction over mutual custody cases. The Washington UCCJEA is modeled on the federal UCCJEA statute which directs the States to consider tribes as states for the purpose of determining jurisdiction. It does not require tribes to adopt it.

We held that the UCCJEA does not apply in our Courts in that the Tribes has not adopted the requisite statute. We further held, that in this case it was harmless error in that CCT§ 1-1-144, Means to Carry Jurisdiction Into Effect. gave the Trial Court the ability to fashion a suitable procedure in the absence of a statute when the interests of justice are served. We affirmed on this ground instead of the UCCJEA.

Justice Bass wrote a strong dissent, basically disagreeing with the majority’s finding that it was harmless error to accept the findings of the Trial Court under UCCJEA. He set out the extensive history of the UCCJEA.1 He posits that if the UCCJEA does not apply in our jurisdiction, we should have held the judgment of the Trial Court should have been void ab initio, that is from the beginning. He makes a compelling argument that in establishing a harmless error standard we ignore the plain law that Court’s do not legislate, the Colville Business Council, our legislative/executive branch does.

In hindsight we are inclined to agree with Justice Bass’s basic reasoning on the nonapplicability of UCCJEA. We should have remanded with instructions to decide under our laws. This is a clearer and truer statement of what the law should be in cases such as this.

In this case, the matter was first filed in the Colville Tribal Court. The children are CCT members, and in S,L., Cd’A Tribe. v. S.L.,R.L., CCT, 11 CCAR 62 (2014), we ruled that the domicile of a child follows the unmarried mother.

In Tupling, supra, we referred to the case of Carson v. Barham, 7 CCAR 17 (2003). In Carson, with no reference to the UCCJEA, the Trial Court conferred with a Spokane Judge on which Court should exercise jurisdiction, and ruled the Spokane Court should under the“first to file” rule. Carson does not apply to the facts in this case.

We do not know the process of the Yakama Tribal Court, whether they have adopted the UCCJEA, what was considered when it found it had exclusive jurisdiction over the Colville member minors; it’s Order establishing guardianship does not reflect if it considered that the case was first filed in the Colville Tribal Court (which is usually an issue addressed in a UCCJEA hearing).

We do not make any findings that would direct the Yakama Tribal Court on how to handle its case in the future. We do find that our Colville Tribal Court erred in its decision to apply the UCCJEA to its decision of a custody action first filed in our Courts and not considering the laws of our Tribes. We have several cases addressing custodial issues and jurisdictional issues. We direct the Trial Court to consider our laws in making its decision, and not a federal law not enacted or applicable in our jurisdiction.

Conclusion

In conclusion, we hold the Trial Court committed an error of law by adopting the UCCJEA without the authority of a statute of our laws, and REVERSE and REMAND to the Trial Court for actions that comports with the laws of our Tribes.

It is so ORDERED, and this matter is REVERSED and REMANDED to the Trial Court for actions consistent with this Order

All Citations
--- Am. Tribal Law ----, 2024 WL 6045551, 16 CCAR 18, 8 CTCR 33

Footnotes
1	The Parental Kidnaping Prevention Act was also at issue in the Tupling case; the majority ruled it did not apply in the Colville Tribal Court because it also needed legislation to make it part of our law.