Kimberly Watso, individually and on behalf of C.H. and C.P ...€¦ · 08/08/2018 · 445...
Transcript of Kimberly Watso, individually and on behalf of C.H. and C.P ...€¦ · 08/08/2018 · 445...
No. 18-1723
IN THE UNITED STATES COURT OF APPEALS
FOR THE EIGHTH CIRCUIT _____________________________________________________
Kimberly Watso, individually and on behalf of C.H. and C.P.,
her minor children; and Kaleen Dietrich,
Appellants, vs.
Emily Piper in her official capacity as Commissioner of the
Department of Human Services, Scott County; Judge John E. Jacobson, in his official capacity;
Tribal Court of the Red Lake Bank of Chippewa Indians; Judge Mary Ringhand, in her official capacity; and
Tribal Court of the Shakopee Mdewakanton Sioux (Dakota) Community,
Appellees. _____________________________________________________
ON APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MINNESOTA _____________________________________________________
BRIEF OF APPELLEE EMILY PIPER IN HER OFFICIAL
CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF HUMAN SERVICES
_____________________________________________________ OFFICE OF THE ATTORNEY GENERAL
State of Minnesota AARON WINTER Atty. Reg. No. 0390914
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445 Minnesota Street, Suite 1100 St. Paul, MN 55101-2128 Telephone: 651-757-1453 [email protected]
Attorneys for Emily Piper, in her official capacity as Commissioner of the Department of Human Services
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SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT
Appellee, Commissioner of the Minnesota Department of Human Services
(“Commissioner”) publishes an Indian Child Welfare Manual (“Manual”). The
Manual contains guidance for local social services agencies on how to determine
whether a tribal court or a state court has jurisdiction over child custody
proceedings involving an Indian child.
Appellants’ sole claim against the Commissioner below – and each of
Appellants’ arguments against the Commissioner on appeal – rely on the
proposition that the Manual’s guidance in this regard is inconsistent with the
Indian Child Welfare Act’s (“ICWA”) jurisdiction provision, contained at
25 U.S.C. § 1911. To the contrary, and as the district court held, the portions of
the Manual that Appellants challenge do not conflict. That determination disposed
of Appellants’ claim against the Commissioner below, and should be affirmed.
Even if the Court were to reverse the district court on this issue, Appellants’
request for judgment as a matter of law and an injunction is inappropriate on this
record.
The Commissioner does not believe oral argument is necessary, but if the
Court grants Appellants’ request, the Commissioner respectfully suggests each
party receive 15 minutes for oral argument.
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TABLE OF CONTENTS
Page SUMMARY OF CASE AND REQUEST FOR ORAL ARGUMENT ..................... i TABLE OF AUTHORITIES .................................................................................... iv STATEMENT OF ISSUES ....................................................................................... 1 STATEMENT OF THE CASE .................................................................................. 2
I. THE COMMISSIONER’S INDIAN CHILD WELFARE MANUAL. .............................. 2
II. CHILD CUSTODY PROCEEDINGS INVOLVING APPELLANT KIMBERLY
WATSO’S MINOR CHILDREN, C.P AND C.H. ..................................................... 3
III. THE COMMISSIONER’S MOTION TO DISMISS. ................................................... 5
STANDARD OF REVIEW ....................................................................................... 7 SUMMARY OF ARGUMENT ................................................................................. 7 ARGUMENT ............................................................................................................. 8
I. THE DISTRICT COURT CORRECTLY HELD THAT THE MANUAL DOES
NOT CONFLICT WITH ICWA. ........................................................................... 8
A. The Manual’s Guidance Regarding Child Custody Proceedings Involving Indian Children Residing Or Domiciled Within A Reservation To Tribes Does Not Conflict With ICWA. ..................... 10
B. The Manual’s Guidance Regarding Child Custody Proceedings Involving Indian Children Not Residing Or Domiciled Within A Reservation To Tribes Also Does Not Conflict With ICWA. ........ 13
C. The Manual’s Compliance With ICWA Disposes Of The Remainder Of Appellants’ Substantive Arguments Against The Commissioner On Appeal, And Any Freestanding Constitutional Claim Is Waived. ......................................................... 16
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II. IF THE COURT CONCLUDES THE MANUAL CONFLICTS WITH ICWA, IT
SHOULD SIMPLY REVERSE AND REMAND FOR FURTHER PROCEEDINGS. ....... 19
CONCLUSION ........................................................................................................ 21 CERTIFICATE OF COMPLIANCE WITH FRAP 32 ........................................... 22 CERTIFICATE OF COMPLIANCE WITH 8TH CIR. R. 28A(H)(2) .................. 23
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TABLE OF AUTHORITIES
Page FEDERAL COURT CASES
Alsager v. Dist. Court of Polk Cty., Iowa (Juvenile Div.), 406 F.Supp. 10 (S.D. Iowa 1975) ....................................................................... 18 Alsager v. Dist. Court of Polk Cty., Iowa, 545 F.2d 1137 (8th Cir. 1976) ............................................................................ 18 Azie v. Holder,
602 F.3d 916 (8th Cir. 2010) .............................................................................. 17 Car Carriers, Inc. v. Ford Motor Co.,
745 F.2d 1101 (7th Cir.1984), cert. denied, 470 U.S. 1054 (1985) ..................................................................... 18 Doe v. Mann,
415 F.3d 1038 (9th Cir. 2005) ........................................................... 1, 12, 13, 15 Gunter v. Farmers Ins. Co.,
736 F.3d 768 (8th Cir. 2013) ................................................................................ 7 Mississippi Band of Choctaw Indians v. Holyfield,
490 U.S. 30 (1989) ...................................................................................... passim Montana v. Blackfeet Tribe of Indians,
471 U.S. 759 (1985) .............................................................................................. 9 Morgan Distrib. Co. v. Unidynamic Corp.,
868 F.2d 992 (8th Cir. 1989) .............................................................................. 18 Native Village of Venetie I.R.A. Council v. Alaska,
944 F.2d 548 (9th Cir. 1991) ......................................................................... 1, 13 Pullman-Standard v. Swint,
456 U.S. 273 (1982) ....................................................................................... 1, 20
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Singleton v. Wulff,
428 U.S. 106 ........................................................................................................ 18 Walker v. Rushing,
898 F.2d 672 (8th Cir. 1990) .............................................................................. 13 STATE COURT CASES
In re Welfare of Child of: T.T.B. & G.W., 724 N.W.2d 300 (Minn. 2006) ............................................................................ 15 FEDERAL STATUTORY AUTHORITIES
25 U.S.C. § 1901(4)(5)............................................................................................... 9 25 U.S.C. § 1911 .................................................................................... i, 1, 7, 10, 15 25 U.S.C. § 1911(a) ......................................................................................... passim 25 U.S.C. § 1911(b) ......................................................................................... passim 25 U.S.C. § 1918 ...................................................................................................... 13 28 U.S.C. § 1360(a) .......................................................................................... 12, 13 42 U.S.C. § 1983 ........................................................................................................ 8 Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1091-1963 .................................... 9 Public Law 280 ........................................................................................... 12, 13, 15
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STATEMENT OF ISSUES
1. Did the district err in concluding that the Manual’s guidance to local social services agencies regarding jurisdiction over Indian child custody proceedings is consistent with ICWA?
Most apposite authorities: Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32 (1989)
Native Village of Venetie I.R.A. Council v. Alaska, 944 F.2d 548, 559-62 (9th Cir. 1991) Doe v. Mann, 415 F.3d 1038, 1048 (9th Cir. 2005)
25 U.S.C § 1911 2. In the alternative, should this Court order the requested injunctive relief on
an incomplete record before discovery has been had?
Most apposite authorities: Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982)
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STATEMENT OF THE CASE
I. THE COMMISSIONER’S INDIAN CHILD WELFARE MANUAL.
The Commissioner publishes the Manual, which Appellants attached to their
Complaint. See Doc. 1-1, pp. 1-62; App. 50-111.1 The Manual states it was
developed pursuant to the Minnesota Tribal/State Agreement, the purposes of
which are, in part, to provide policies and procedures for “[m]aximizing the
participation of tribes in decisions regarding Indian children,” “[a]ddressing
barriers to implementing those services for the protection of Indian families and
children.” Doc. 1-1, p. 5; App. 54. The Manual states that it “applies to both
county social service agencies and private child-placing agencies.” Doc. 1-1, p. 6;
App. 55.
As relevant to this case, the Manual contains guidance on referral of Indian
child custody proceedings to State or tribal court. Doc. 1-1, pp. 26-28; App. 75-77.
This guidance differs depending on whether the Indian child subject to the
proceeding resides or is domiciled within an Indian reservation. First, in the case
of an Indian child residing or domiciled within an Indian reservation, the Manual
states that “a local social services agency shall refer any proposed child custody
1 “Doc.” refers to ECF entries before the district court. “App.” refers to Appellants’ Appendix. “Add.” refers to Appellants’ Addendum. “App. Br.” refers to Appellants’ Principal Brief. “Appellees’ App.” refers to Appellees’ Joint Appendix.
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proceeding involving an Indian child to the tribal social service agency for
appropriate proceedings in tribal court.” Doc. 1-1, p. 26; App. 75. The Manual
generally requires the same referral in the event the subject child is a ward of a
tribal court. Id.
Second, in the case of an Indian child not residing or domiciled within an
Indian reservation, the Manual states that “a local social services agency shall refer
any proposed child custody proceeding involving an Indian child to the tribal
social service agency for appropriate proceedings in tribal court.” Doc. 1-1, p. 27;
App. 76. In addition, however, it requires that the agency “give written notice of
any [such] referral” to “a child’s parent(s) or Indian custodian, designated tribal
representative and tribal court.” Id. The agency shall not make the referral to
tribal court in the event that: (1) it “concludes that there is good cause to the
contrary;” (2) “[e]ither parent of a child objects, in writing;” or (3) either a
designated tribal representative or the tribal court declines to accept jurisdiction.
Id.
II. CHILD CUSTODY PROCEEDINGS INVOLVING APPELLANT KIMBERLY
WATSO’S MINOR CHILDREN, C.P AND C.H.
Appellant Kimberly Watso pled in her complaint that she is not an Indian,
nor is she a member of the Shakopee Mdewakanton Sioux Community (“SMSC”)
or the Red Lake Nation, the two Indian tribes involved in this case. Doc. 1, p. 5;
App. 5 ¶ 1. Ms. Watso has two minor children, C.P. and C.H. Id.
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C.P. is the child of Ms. Watso and Defendant Donald Perkins. Doc. 1, p. 5;
App. 5 ¶ 2. Both C.P and Mr. Perkins are Red Lake Nation members. Doc. 1, p. 5;
App. 5 ¶ 2, 8 ¶ 14.
C.H. is the child of Ms. Watso and Defendant Isaac Hall. Doc. 1, p. 5; App.
5 ¶ 3. Both C.H. and Mr. Hall are SMSC members. Doc. 1, pp. 5, 8; App. 5 ¶ 3, 8
¶ 15.
On February 24, 2015, Ms. Watso and Mr. Hall brought C.H. into a medical
clinic for an examination of C.H.’s head. Doc. 1, p. 9; App. 9 ¶ 18. This visit
resulted in a report of possible child abuse or neglect against Ms. Watso and Mr.
Hall. Doc. 1, p. 9; App. 9 ¶ 19. On or about that same day, Scott County placed a
72-hour administrative hold on both C.P. and C.H. Doc. 1, p. 9; App. 9 ¶ 20. Scott
County then, “pursuant to [the Manual] and, without initiating proceedings in state
court . . . referred C.P. and C.H. to [SMSC] social services for proceedings in
SMSC tribal court which took jurisdiction over the C.P. and C.H. child custody
proceedings.” Doc. 1, p. 10; App. 10 ¶ 20. Red Lake later took jurisdiction over
C.P.’s child custody proceeding. Id.
The Complaint did not allege that either C.P. or C.H. resided or was
domiciled outside of an Indian reservation at the time of Scott County’s referral.
Instead, the Complaint alleged in the present tense that “C.H. and C.P. do not
reside and are not domiciled within [the Red Lake Nation reservation],” apparently
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addressing their residence and domiciliary status relative to Red Lake Nation at the
time the Complaint was filed. Doc. 1, p. 10; App. 10 ¶ 25; see also Doc. 1, p. 6;
App. 6 ¶ 4 (“Neither C.H. nor C.P. are domiciled nor reside at the [Red Lake
Nation] reservation.”).2
III. THE COMMISSIONER’S MOTION TO DISMISS.
Appellants filed their Complaint on February 23, 2017. App. 1. The
Commissioner filed a motion to dismiss Appellants’ claim against her on
March 22, 2017, as did the other Appellees. Doc. 31; Appellees’ App. 635–48.
On December 5, 2017, the Magistrate Judge issued a Report and Recommendation
recommending that the Commissioner’s Motion to Dismiss, as well as motions to
dismiss filed by the other Appellees, be granted. Add. 34. Appellants objected on
December 18, 2017, see Doc. 119; Appellees’ App. 726–39, and the Commissioner
responded on December 29, 2017. Doc. 120; Appellees’ App. 740–50. On
March 27, 2018, the district court issued a Memorandum Opinion and Order
2 As noted by the district court, see Add. 9 n.4, Appellants claimed for the first time in later briefing that “[n]either C.P. nor C.H. was residing nor domiciled within the reservation of a non-Public Law 280 Indian tribe” at the time of the “transfer.” Doc. 119, p. 9; Appellees’ App. 734. Although it did not affect the disposition of the case, the district court also noted evidence in the record showing that both C.P. and C.H. were domiciled on the SMSC reservation at the time the child welfare proceeding was initiated. Add. 9 n. 4.
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overruling Appellants’ objections and granting each Appellee’s motion, including
the Commissioner’s. Doc. 124, p. 11; Add. 11.
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STANDARD OF REVIEW
A district court’s decision to grant a motion to dismiss is reviewed de novo.
Gunter v. Farmers Ins. Co., 736 F.3d 768, 771 (8th Cir. 2013).3
SUMMARY OF ARGUMENT
Appellants’ claims against the Commissioner all depend on the proposition
that the Manual’s guidance to local social services agencies on how to determine
state or tribal court jurisdiction over Indian child custody proceedings conflicts
with ICWA.
A review of the Manual, ICWA, and relevant case law reveals that the
Manual does not conflict with ICWA. Instead, its statements accurately
communicate the procedures required by 25 U.S.C. § 1911, the relevant portion of
ICWA. When a subject child is either a ward of a tribal court or resides or is
domiciled within a reservation, the Manual accurately states that local social
services agencies refer such cases to the jurisdiction of tribal court. Compare
Doc. 1-1, pp. 26-28; Add. 36-38 with 25 U.S.C. § 1911(a). When a subject child
does not reside and is not domiciled within a reservation, the Manual also
3 Appellants’ discussion of the standard of review primarily elaborates on the proposition that “governmental actions modifying parental rights involve fundamental rights under the Constitution which are generally subject to strict scrutiny” under substantive due process doctrine. App. Br., p. 21. As discussed below, Appellants’ claim against the Commissioner before the district court solely alleged that the Manual caused constitutional harms by conflicting with ICWA. See infra at p. 17.
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accurately states that local social services agencies should refer such cases
consistent with tribal court’s concurrent jurisdiction. Compare Doc. 1-2, p. 28;
Add. 37 with 25 U.S.C. § 1911(b). The district court’s holding that the Manual
does not conflict with ICWA should be affirmed.
Finally, even if the Manual conflicted with ICWA, Appellants’ request for
injunctive relief is improper at this stage because factual and legal issues remain
before any determination of the Commissioner’s liability to Appellants.
ARGUMENT
I. THE DISTRICT COURT CORRECTLY HELD THAT THE MANUAL DOES NOT
CONFLICT WITH ICWA.
Appellants contend that the Commissioner is liable under 42 U.S.C. § 1983
for promulgating the Manual, which Appellants allege incorrectly advised Scott
County on tribal and state jurisdiction over Indian child custody matters. Doc. 1,
p. 43; App. 43, ¶¶ 171-73. Appellants claim this allegedly incorrect legal guidance
then caused Appellee Scott County to unlawfully refer the custody proceeding
involving C.P. and C.H. to SMSC tribal court. Id., ¶ 174. The district court
correctly concluded that the Manual contains legally accurate statements regarding
tribal and state jurisdiction over Indian child custody proceedings.
This case involves application of statutes affecting the rights of Minnesota’s
Indian tribes. Accordingly, throughout its consideration of ICWA and other
applicable law, the Court must be mindful that “statutes are to be construed
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liberally in favor of the Indians, with ambiguous provisions interpreted to their
benefit.” Montana v. Blackfeet Tribe of Indians, 471 U.S. 759, 766 (1985).
Jurisdiction over Indian child custody proceedings is predominantly
governed by the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1091-1963
(“ICWA”). ICWA was passed due to “rising concern in the mid–1970’s over the
consequences to Indian children, Indian families, and Indian tribes of abusive child
welfare practices that resulted in the separation of large numbers of Indian children
from their families and tribes through adoption or foster care placement, usually in
non-Indian homes.” Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S.
30, 32 (1989). Hearings on the bill contained “considerable emphasis on the
impact on the tribes themselves of the massive removal of their children.” Id. at
34. The congressional findings memorialized in ICWA include “that an
alarmingly high percentage of Indian families are broken up by the removal, often
unwarranted, of their children from them by nontribal public and private agencies”
and that “the States, exercising their recognized jurisdiction over Indian child
custody proceedings through administrative and judicial bodies, have often failed
to recognize the essential tribal relations of Indian people and the cultural and
social standards prevailing in Indian communities and families.” 25 U.S.C.
§ 1901(4), (5).
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“At the heart of the ICWA are its provisions concerning jurisdiction over
Indian child custody proceedings. [25 U.S.C. § 1911] lays out a dual jurisdictional
scheme” in which jurisdiction over Indian child custody proceedings depends on
whether the subject child resides or is domiciled within the reservation.4 Holyfield,
490 U.S. 30 at 36. First, section 1911(a) grants exclusive tribal jurisdiction when a
child custody proceeding involves “an Indian child who resides or is domiciled
within the reservation of such tribe” or a child who is a ward of a tribal court.
Second, section 1911(b) applies to “an Indian child not domiciled or residing
within the reservation of the Indian child’s tribe.” Regardless of where C.P. and
C.H. resided or were domiciled at the time of Scott County’s challenged referral,
the portions of the Manual at issue do not conflict with ICWA.
A. The Manual’s Guidance Regarding Child Custody Proceedings Involving Indian Children Residing Or Domiciled Within A Reservation To Tribes Does Not Conflict With ICWA.
First, the Manual’s statements regarding Indian child custody proceedings
involving children residing or domiciled within a reservation, or those who are a
ward of a tribal court, do not conflict with ICWA. Where an Indian child is a ward
of a tribal court, the Manual states that “any proposed child custody proceeding . . .
4 As noted above, Appellants’ claims that C.P. and C.H. were not domiciled on the SMSC reservation at the time child custody proceedings were initiated conflicts with the record, see supra at p. 4–5, and in any event the record does not establish whether C.P. or C.H. was a ward of a tribal court at that time.
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regardless of the residence of domicile of a child, must be referred to the tribal
social service agency for appropriate proceedings in tribal court.” Doc. 1-1, p. 26;
Add. 36. The Manual states that when the subject child “resides or is domiciled
within an Indian reservation and is not a ward of tribal court,” local social services
agencies should “refer any proposed child custody proceeding involving an Indian
child to the tribal social service agency for appropriate proceedings in tribal court.”
Id. The Manual further states that “[t]his requirement applies to a child who
resides or is domiciled within any Indian reservation where there is a tribal court
vested with jurisdiction over child custody placement proceedings by the
reservations’ governing body.” Doc. 1-1, pp. 26-27; Add. 36-37.
These statements are consistent with ICWA. As noted, ICWA’s
section 1911(a) addresses jurisdiction over Indian child custody proceedings
involving Indian children residing or domiciled within a reservation, or those who
are wards of a tribal court:
An Indian tribe shall have jurisdiction exclusive as to any State over any child custody proceeding involving an Indian child who resides or is domiciled within the reservation of such tribe, except where such jurisdiction is otherwise vested in the State by existing Federal law. Where an Indian child is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.
25 U.S.C. § 1911(a). Accordingly, when an Indian child is a ward of tribal court,
that tribal court has exclusive jurisdiction over child custody proceedings involving
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that child. In addition, when an Indian child custody proceeding involves a child
residing or domiciled within a tribe, that tribe has exclusive jurisdiction over the
proceeding unless “such jurisdiction is otherwise vested in the State by existing
Federal law.” 25 U.S.C. § 1911(a). Neither the United States Supreme Court nor
the Eighth Circuit Court of Appeals has explicitly held that any “existing Federal
law” limits the otherwise exclusive tribal jurisdiction granted by section 1911(a).
Accordingly, the Manual correctly states that social services agencies should refer
such child custody proceedings to tribes.
Appellants argue that Public Law 280 modifies section 1911(a) through the
“existing federal law” provision so as to require presumptive state court
jurisdiction, but they are incorrect. First, Appellants solely rely on the Ninth
Circuit Court of Appeals’ holding that the “existing Federal law” provision in
Section 1911(a) refers to Public Law 280. Doe v. Mann, 415 F.3d 1038, 1048
(9th Cir. 2005). Appellants point to no case from this Court or the Supreme Court.
Second, the Manual is correct even if Public Law 280 applies. Public Law
280, in relevant part, “gives certain states . . . limited jurisdiction over civil causes
of action that arise in Indian country.” Id. (citing the civil provision of Public Law
280, 28 U.S.C. § 1360(a), which applies to SMSC). In Mann, the Ninth Circuit
held that “Public Law 280 states may exercise jurisdiction over child custody
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proceedings.” 415 F.3d at 1062.5 Even if Mann were the law in the Eighth Circuit,
however, Public Law 280 does not divest tribes of jurisdiction; it at most grants
states concurrent jurisdiction. See Walker v. Rushing, 898 F.2d 672, 675 (8th Cir.
1990) (“Nothing in the wording of Public Law 280 or its legislative history
precludes concurrent tribal authority.”); Native Village of Venetie I.R.A. Council v.
Alaska, 944 F.2d 548, 559-62 (9th Cir. 1991) (“neither [ICWA] nor Public Law
280 prevents [tribes] from exercising concurrent jurisdiction.”). Because tribes
have jurisdiction even if Public Law 280 modifies Section 1911(a), the Manual’s
guidance directing referral to tribes remains correct.6
B. The Manual’s Guidance Regarding Child Custody Proceedings Involving Indian Children Not Residing Or Domiciled Within A Reservation To Tribes Also Does Not Conflict With ICWA.
Second, the Manual’s statements regarding Indian child custody proceedings
involving children not residing or domiciled within a reservation also do not
conflict with ICWA. The Manual states that when the subject child “is not a
resident or domiciliary of an Indian reservation or a ward of a tribal court,” local
5 Contrary to Appellants’ assertions, see App. Br., p. 38, nothing in Mann suggests that PL 280 granted exclusive jurisdiction to states. 6 Appellants allege that 25 U.S.C. § 1918 manifests an intent by Congress to use Public Law 280 to totally divest tribes of jurisdiction over child custody matters, App. Br., pp. 39-40, but as the district court noted, see Add. 8, this argument has been rejected. Venitie, 944 F.2d at 561. Finally, nothing about section 1911(a) or Public Law 280 mandates an initial state court proceeding, as Appellants appear to believe. 25 U.S.C. § 1911(a); 28 U.S.C. § 1360(a).
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social services agencies should “refer any proposed child custody proceeding
involving an Indian child to the tribal social service agency for appropriate
proceedings in tribal court.” Doc. 1-2, p. 27; Add. 37. The Manual further states
that “[t]his requirement applies to a child whose tribe has established a tribal court
and vested it with jurisdiction over child custody placement proceedings but who is
neither a resident nor a domiciliary of an Indian reservation.” Id. As relevant to
Appellants’ claim, the Manual then states that social services agencies should
“give written notice of any referral pursuant to this subparagraph to a child’s
parent(s) or Indian custodian.” Id. It also states that the social services agency
should not refer the matter to the tribe if, among other conditions, “[e]ither parent
of a child objects, in writing, to the referral.” Id.
These statements are consistent with ICWA. As noted, ICWA’s section
1911(b) addresses jurisdiction over Indian child custody proceedings involving
Indian children not residing or domiciled within a reservation:
In any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child not domiciled or residing within the reservation of the Indian child’s tribe, the court, in the absence of good cause to the contrary, shall transfer such proceeding to the jurisdiction of the tribe, absent objection by either parent, upon the petition of either parent or the Indian custodian or the Indian child’s tribe: Provided, That such transfer shall be subject to declination by the tribal court of such tribe.
25 U.S.C. § 1911(b) (emphasis in original). Section 1911(b) “creates concurrent
but presumptively tribal jurisdiction in the case of children not domiciled on the
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reservation.” Holyfield, 490 U.S. at 36 (emphasis added); see also In re Welfare of
Child of: T.T.B. & G.W., 724 N.W.2d 300, 305 (Minn. 2006) (same).7
Accordingly, the Manual‘s statements are consistent with ICWA’s grant of
concurrent but presumptively tribal jurisdiction over Indian child custody
proceedings involving children not residing or domiciled within a reservation. Its
statements are also consistent with the ability of parents to object to tribal court
transfer under section 1911(b).8 In addition, section 1911(b) is not triggered except
in situations where there exists “any State court proceeding for the foster care
placement of, or termination of parental rights to, an Indian child not domiciled or
residing within the reservation of the Indian child’s tribe,” which Appellants do not
claim was the case here.
The crux of Appellants’ argument on section 1911(b) is their belief that it
requires an initial state court proceeding before any transfer to tribal court. See,
e.g., App. Br., p. 6 (“The Manual circumvents ICWA by transferring children to
7 Section 1911(b) does not contain section 1911(a)’s language setting forth an exception “where such jurisdiction is otherwise vested in the State by existing Federal law.” Section 1911(b) accordingly operates under only its own terms, and Public Law 280 does not even arguably modify section 1911(b). See Mann, 415 F.3d at 1048 (discussing Public Law 280’s relevance to section 1911 only through the “exception” language contained exclusively in section 1911(a)). 8 Appellants claim in their brief that they were denied notice and opportunity to be heard in a state court proceeding before the subject referral to tribal court. App. Br., p. 5. Nowhere do Appellants claim, however, that the Commissioner had any involvement with C.P. and C.H.’s child custody proceeding or has any legal duty to provide such notice.
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tribes without having a state court hearing.”). This is simply incorrect: as the
district court noted, the plain language of section 1911(b) does not require an
initial state court proceeding. 25 U.S.C. § 1911(b); Doc. 124, p. 9; Add. 9
(“Section 1911(b) only applies in a ‘state court proceeding.’ No state court
proceeding existed at the time the proceedings here were transferred to SMSC.”).
Instead, that provision merely sets forth a procedure for transfer to tribal court in
the event a state proceeding exists. Id. Again, the United States Supreme Court
has recognized that section 1911(b) “creates concurrent but presumptively tribal
jurisdiction in the case of children not domiciled on the reservation,” which defeats
Appellants’ theory. Holyfield, 490 U.S. at 36 (emphasis added).9
C. The Manual’s Compliance With ICWA Disposes Of The Remainder Of Appellants’ Substantive Arguments Against The Commissioner On Appeal, And Any Freestanding Constitutional Claim Is Waived.
Appellants’ brief discusses procedural and substantive due process issues.
See App. Br., pp. 21-22, 30-44. The Manual’s compliance with ICWA, however,
9 Appellants take issue with the Manual’s supposed deprivation of an initial state court proceeding primarily because, in the absence of such a proceeding, Appellants are supposedly deprived of the opportunity to object to a transfer to tribal court. See, e.g., App. Br., p. 26 (“[T]he Manual . . . reveals . . . the elimination of all due process rights of non-Indian relatives to object to state/county transfer of Indian children to tribes.”). But even this is not true; the Manual says that the referral to tribal social services from any state court proceeding shall not occur if “[e]ither parent of a child objects, in writing, to the referral.” Doc .1-1, p. 28; Add. 37.
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disposes of these issues. As made clear by Appellants’ brief, all of their
constitutional arguments are premised on the proposition that the Manual conflicts
with ICWA. See, e.g., App. Br., pp. 30 (“The [Appellants’] federal due process
rights as parent and grandparent under the federal constitution, ICWA, and . . .
ICWA regulations are being violated by the Manual and Scott County’s actions
thereunder.”), 33 (“The Constitution, ICWA and ICWA regulations prevent the
states and counties from transferring Indian children to tribes . . . . The Manual, by
not adhering to state court due process, violates the Due Process Clause,
Supremacy Clause, ICWA, and ICWA regulations.”). Because the Manual does
not conflict with ICWA, the precondition for consideration of the constitutional
harms Appellants have allegedly suffered is not met.
Indeed, if Appellants argued on appeal that ICWA itself is unconstitutional
regardless of the Manual’s compliance therewith – as opposed to arguing that the
Manual’s alleged conflict with ICWA caused a violation of constitutional rights
ICWA protects – that argument would be waived because it was not raised below.
Azie v. Holder, 602 F.3d 916, 920 (8th Cir. 2010). Appellants’ Complaint raised
no freestanding constitutional claim, but solely argued (relative to the
Commissioner) that the Manual conflicted with ICWA and that this conflict caused
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constitutional harms. Doc. 1, p. 43; App. 43.10 Similarly, Appellants never argued
that the district court should apply strict scrutiny to the Manual or ICWA, and
argument to that effect on appeal is also waived. Singleton v. Wulff, 428 U.S. 106,
120 (“[i]t is the general rule, of course, that a federal appellate court does not
consider an issue not passed upon below.”).11
10 Appellants also raised no freestanding constitutional claim in their motion to dismiss briefing, but the issue would still be waived even if they had. “’[I]t is axiomatic that a complaint may not be amended by the briefs in opposition to a motion to dismiss.’” Morgan Distrib. Co. v. Unidynamic Corp., 868 F.2d 992, 995 (8th Cir. 1989) (quoting Car Carriers, Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir.1984), cert. denied, 470 U.S. 1054 (1985)). 11 In any event, the substantive and procedural due process holdings contained in Alsager v. Dist. Court of Polk Cty., Iowa (Juvenile Div.), 406 F. Supp. 10 (S.D. Iowa 1975), opinion adopted sub nom. Alsager v. Dist. Court of Polk Cty., Iowa, 545 F.2d 1137 (8th Cir. 1976), upon which Appellants rely, see App. Br., pp. 30-33, are simply not on point here. The substantive due process holding in Alsager was based on the fact that “[n]o actual or imminent harm to the children was shown to exist as a prerequisite to termination,” thus failing to show the required governmental interest in that termination. Id. at 23. Appellants make no such argument here. As to procedural due process, the Alsager court held that the parents in that case had been given insufficient notice of the grounds for termination, and that the state had used an improper burden of proof. Id. at 24. Again, Appellants make no such arguments here. Instead, Appellants claim that “under the Constitution, non-Indian relatives have the right to object to a state/county transfer of an Indian child to [tribal jurisdiction],” App. Br., p. 31, but cite no law for that proposition. Indeed, the functional effect of Appellants’ theory would be to prevent child custody matters under Section 1911(b) from ever reaching tribal court, which is again expressly contrary to the Supreme Court’s recognition that section 1911(b) creates “creates concurrent but presumptively tribal jurisdiction.” Holyfield, 490 U.S. at 36.
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II. IF THE COURT CONCLUDES THE MANUAL CONFLICTS WITH ICWA, IT
SHOULD SIMPLY REVERSE AND REMAND FOR FURTHER PROCEEDINGS.
In the event the Court concludes the Manual conflicts with ICWA – which
the Manual does not – the Court should simply reverse and remand this case to the
district court for further proceedings consistent with that holding.
Appellants’ request for additional relief from this Court is inappropriate at
this stage. Appellants state in their brief that whether the Manual conflicts with
ICWA:
is a pure legal issue and because there are no disputed material facts regarding that claim, the Court should also hold that [Appellants] are entitled to judgment as a matter of law on that claim. The Court should require that the judgment include an injunction that [] C.P. and C.H. be returned to [Appellants] and that the tribal courts and their officials vacate and expunge their child protection orders regarding C.P. and C.H.
App. Br., p. 48.
While the question of whether the Manual conflicts with ICWA can be
determined on the existing record, it is not the case that there “are no disputed
material facts” regarding Appellants’ claim against the Commissioner. Appellants’
summary judgment motion was stayed, and the Commissioner accordingly did not
respond to it. Doc. 118. Given the procedural posture of the case, no discovery
has been conducted.
Most importantly, Appellants would not prevail against the Commissioner
merely by showing a conflict between the Manual and ICWA. To the contrary, a
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number of other factual and legal issues remain, including for example: (1)
whether C.P. and C.H. were wards of a tribal court at the time child custody
proceedings were initiated, thus conferring undisputedly exclusive tribal court
jurisdiction pursuant to section 1911(a); (2) whether C.P. and C.H. resided or were
domiciled within a reservation at the time child custody proceedings were initiated,
which affects whether section 1911(a) or (b) applies; (3) whether Scott County
actually referred C.P. and C.H. pursuant to statements contained in the Manual;
and (4) whether Appellants were in fact provided with an opportunity to object
consistent with section 1911(b).
Simply put, the Court may not grant Appellants judgment as a matter of law
on their claim against the Commissioner when Appellants have not proven, and in
any event the Commissioner has had no opportunity to explore, whether any
alleged conflict between the Manual and ICWA actually caused the harms
Appellants claim. Pullman-Standard v. Swint, 456 U.S. 273, 291 (1982) (“When
an appellate court discerns that a district court has failed to make a finding because
of an erroneous view of the law, the usual rule is that there should be a remand for
further proceedings to permit the trial court to make the missing findings.”).
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CONCLUSION
For the reasons stated above, the Commissioner respectfully requests that
this Court affirm the district court’s order granting the Commissioner’s motion to
dismiss.
Dated: June 29, 2018 Respectfully submitted,
OFFICE OF THE ATTORNEY GENERAL State of Minnesota s/ Aaron Winter AARON WINTER Assistant Attorney General Atty. Reg. No. 0390914 445 Minnesota Street, Suite 1100 St. Paul, Minnesota 55101-2128 (651) 757-1453 (Voice) (651) 282-5832 (Fax) [email protected] ATTORNEY FOR APPELLEE EMILY PIPER IN HER OFFICIAL CAPACITY AS COMMISSIONER OF THE DEPARTMENT OF HUMAN SERVICES
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CERTIFICATE OF COMPLIANCE WITH FRAP 32
1. This brief complies with the type-volume limitation of Fed. R. App.
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brief exempted by Fed. R. App. P. 32(f).
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because this brief has been prepared in a proportionally spaced typeface using
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s/ Aaron Winter AARON WINTER Assistant Attorney General
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s/ Aaron Winter AARON WINTER Assistant Attorney General
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