22 NICS App. 10, IN RE GUARDIANSHIP OF J.A.A, JR. & S.A. (August 2024)
IN THE TULALIP TRIBAL COURT OF APPEALS
TULALIP INDIAN RESERVATION
TULALIP WASHINGTON
In Re: Guardianship of J.A.A., JR. and SA
beda?chelh, Appellant
v.
Joshua Carmichael and Thomas Carmichael, Appellees.
NO. TUL-CV-AP-2024-0225, 0226 (August 8, 2024)
Before: Daniel A. Raas, Chief Justice; Eric Nielsen, Associate Justice; Jane M. Smith, Associate Justice.
OPINION
Per Curiam:
Appellees Joshua and Thomas Carmichael have been the guardians of siblings J.A.A.. Jr. and S.A. for well over three years. As a necessary preliminary to a customary adoption of the children pursuant to TTC 4.05.790-830, Appellees filed a request with beda?chelh that it file a Petition for Suspension of Parental Rights with the Tribal Court pursuant to TTC 4.05.730. beda?chelh refused and Appellees sought and obtained an order from the Tribal Court requiring that beda?chelh file such a Petition on behalf of Appellees. beda?chelh appealed arguing that under TTC 4.05.730 its decision whether to file a Petition for Suspension of Parental Rights is discretionary and not mandatory, therefore the Tribal Court did not have the authority to order it to file the Petition.
Standard of Review
The construction of TTC 4.05.730 is a question of law. Thus, the decision of the Tribal Court is reviewed de novo, with no deference given the Tribal Court’s reasoning. TTC 2.20.090(4).
Discussion
Our primary duty in interpreting a law or constitutional provision is to discern the intent of the drafters. Lomeli v. Kelly, 12 NICS App. 1, 10 (Nooksack Tribal Ct. App. 2014); Cummings v. K’ima: W Medical Center, 12 NICS App. 79, 82, (Hoopa Valley App. Ct. 2014); Skokomish Indian Tribe v. Cultee, 8 NICS App. 68, 70 (Skokomish Tribal Ct. App. 2008). The starting point must always be the plain language and its ordinary meaning. Cultee at 70; see, Martin v. Hunter's Lessee, 14 U.S. 304, 326 (1816) (constitutional provisions are given their plain and ordinary meaning). Where the language is plain and unambiguous there is no room for judicial interpretation. Suquamish Tribe v. Lah-Huh-Bate-Soot, 4 NICS App. 32, 49 (Suquamish Tribal App. Ct. 1995).
Kempf v. Snoqualmie Tribe, 14 NICS App. 1, 5 (Snoqualmie, 2016)
TTC 2.05.030(7)(b) directs that words in the Tulalip Tribal Code are to be given their plain meaning.
TTC 4.05.730 reads “Any adult who has had legal guardianship of the child for more than three year(s) may request beda?chelh file a petition with the Court seeking an order suspending the parental rights of the biological parents.” (emphasis added). The key words are “may request”. “Request” is defined as “the act or an instance of asking for something.”1 “Request” implies a right of choice by the person to whom a request is made. Boeing Co. v. King County, 76 Wn.2d 493, 497, 457 P.2d 595 (1969). The plain language of TTC 4.05.730 does not require that beda?chelh has a mandatory duty to file a Petition for an Order Suspending Parental Rights whenever a legal guardianship has lasted at least three years and the Guardians requests beda?chelh file the Petition. If beda?chelh is required to file a Petition for an Order Suspending Parental Rights upon the request of a guardian TTC 4.05.730 would read: “Any adult who has had legal guardianship of the child for more than three year(s) may request beda?chelh which shall then file a petition with the Court seeking an order suspending the parental rights of the biological parents.” That italicized language is not in the code and we, like courts in other jurisdictions, will not add language to a code that is not there under the guise of interpreting a code. See Coughlin v. City of Seattle, 18 Wash.App. 285, 289, 567 P.2d 262 (1977) (“Courts cannot read into a statute words which are not there.”).
We hold beda?chelh has the unfettered discretion to deny the Guardians’ request. Because beda?chelh has that discretion, the Tribal Court did not have the authority to order it to file a Petition for an Order Suspending Parental Rights on behalf of the Guardians.
The Tribal Court decision is REVERSED, and the matter is REMANDED to the Tribal Court and beda?chelh for further proceedings.2
Merriam-Webster Online Dictionary, https://www.merriam-webster.com/dictionary/request (last visited August 5, 2024).
Appellees’ Motion to Dismiss the Appeal is DENIED.