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

Appellate Case: 18-1723 Page: 1 Date Filed: 07/02/2018 Entry ID: 4678264

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


iv

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


v

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)


2

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


9

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).


10

“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


12

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


13

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


15

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.


16

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.


17

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


18

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.


19

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


20

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.”).


21

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


22

CERTIFICATE OF COMPLIANCE WITH FRAP 32

1. This brief complies with the type-volume limitation of Fed. R. App.

P. 32(a)(7)(B) because this brief contains 4,776 words, excluding the parts of the

brief exempted by Fed. R. App. P. 32(f).

2. This brief complies with the typeface requirements of Fed. R.

App. P. 32(a)(5) and the type style requirements of Fed. R. App. P. 32(a)(6)

because this brief has been prepared in a proportionally spaced typeface using

Microsoft Word 2010 in 14 pt Times New Roman font.

s/ Aaron Winter AARON WINTER Assistant Attorney General


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CERTIFICATE OF COMPLIANCE WITH 8th Cir. R. 28A(h)(2)

The undersigned, on behalf of the party filing and serving this brief, certifies

that the brief has been scanned for viruses and that the brief is virus-free.

s/ Aaron Winter AARON WINTER Assistant Attorney General


kimberly watso, individually and on behalf of c.h. and c.p ...€¦ · 08/08/2018 · 445...

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