as: 381 F.3d 931)
United States Court of
D. BOOZER, for himself and as father and best friend of their minor child
WILDER, Colville Confederated Tribal Member; Ian Wilder, Colville Confederated
Tribal Member; Colville Conferated Tribes, Defendants-Appellees.
Argued and Submitted July
Aug. 27, 2004.
Robert R. Fischer, Spokane, WA, for the plaintiff-appellant.
W. Christie, Confederated Tribes of the Colville Reservation, Nespelem, WA,
for the defendants-appellees.
from the United States District Court for the Eastern District
A. McDonald, District Judge, Presiding.
D.C. No. CV-03-00206-AAM.
B. FLETCHER, HAMILTON,FN*
and BERZON, Circuit Judges.
Clyde H. Hamilton, United States Senior Circuit Judge for the
Fourth Circuit, sitting by designation.
B. FLETCHER, Circuit Judge:
D. Boozer (“Boozer”)
appeals the district court's dismissal of his complaint challenging the
Colville Tribe's (“Tribe”)
jurisdiction to decide a custody dispute over his daughter, K.W.B.
The district court dismissed the complaint for failure to exhaust
tribal court remedies.
We have jurisdiction under 28 U.S.C. §
and we affirm.
was born in February 1994 to Boozer and Mawe We-Ta-Lo
K.W.B. is a member of the Colville Tribe, as was
her mother until her death;
Boozer and Wilder-Boozer separated in 1999, and the Colville Tribal
Court awarded full custody of K.W.B. to Wilder-Boozer and visitation
In July 2002, Wilder-Boozer filed a divorce petition in tribal
During the divorce proceedings, Boozer was restrained from having any
contact with K.W.B. and ordered to take anger-management courses.
Boozer moved to Georgia, and K.W.B. remained on the Colville
Reservation with her mother.
Apparently, during that time, Wilder-Boozer's parents, Darlene and Ian Wilder
who are also members of the Colville Tribe and residents
of the reservation, provided much of K.W.B.'s care.
died unexpectedly on June 3, 2003.
The next day, the grandparents received a Temporary Restraining Order
(TRO) from the tribal court granting them emergency temporary custody
of K.W.B. and restraining Boozer from contacting them or K.W.B.
The TRO application stated that the grandparents understood that Boozer
was under a court order restraining him from contacting K.W.B.
and that the grandparents believed that it would be best
for K.W.B.'s safety and well-being if she were not returned
to Boozer's custody.
On June 5, 2003, Boozer filed motions in tribal court
to vacate the order restraining him from contact with K.W.B.
and dismiss his divorce proceedings, without protesting the tribal court's
jurisdiction over the custody dispute.FN1
excerpts of record contain another motion requesting custody of K.W.B.,
but it appears that this motion was not filed;
the other two motions, it is neither signed by Boozer's
attorney nor stamped as filed.
June 9, 2003, Boozer filed a complaint in district court
requesting that the district court order the grandparents or the
Tribe to return K.W.B. to Boozer's custody and hold that
the State of Georgia, rather than the Tribe, has jurisdiction
to determine K.W.B.'s custody.
The district *934
court dismissed the complaint, holding that Boozer must exhaust tribal
court remedies before bringing suit in federal court because the
Indian Child Welfare Act (ICWA) vested the tribal court with
exclusive jurisdiction over the custody dispute.
After the district court denied his motion for reconsideration, Boozer
timely filed a notice of appeal to this court.
the meantime, on June 16, 2003, the tribal court held
a preliminary hearing to determine if Boozer was fit to
regain custody of K.W.B. or if temporary custody should be
granted to the grandparents.
At the hearing, several witnesses, including a psychologist who had
counseled K.W.B., testified that they believed that K.W.B. should not
be returned to her father's care at that time. The
tribal court granted the grandparents temporary custody, permitted Boozer supervised
visitation with K.W.B., ordered Boozer to attend counseling with K.W.B.,
ordered Boozer and the grandparents to attend mediation, restrained Boozer
from otherwise contacting K.W.B. or the grandparents, and ordered further
briefing from the parties.
Mediation was terminated, apparently unsuccessfully, in September 2003.
At oral argument before our court, the parties informed us
that the tribal court held hearings to resolve K.W.B's custody
in June 2004, after which Boozer moved to stay the
proceedings pending his motions for a mistrial and to recuse
the tribal court judge.
review de novo whether the district court had subject matter
v. United States,
327 F.3d 911, 922 (9th Cir.2003).
Whether exhaustion of tribal court remedies is required is a
question of law reviewed de novo.
v. Long Warrior,
265 F.3d 771, 774 (9th Cir.2001).
may bring a federal common law cause of
action under 28 U.S.C. §
to challenge tribal court jurisdiction.
Farmers Union Ins. Cos. v. Crow Tribe of Indians,
471 U.S. 845, 850-53, 105 S.Ct. 2447, 85 L.Ed.2d 818
law defines the outer boundaries of an Indian tribe's power
at 851, 105 S.Ct. 2447, the “question
whether an Indian tribe retains the power to compel a
to submit to the civil jurisdiction of a tribal court
is one that must be answered by reference to federal
law and is a ‘federal
at 852, 105 S.Ct. 2447.
Because Boozer is non-Indian, §
provides subject matter jurisdiction over his federal common law challenge
to the tribal court's jurisdiction to determine his fitness to
regain custody of K.W.B.FN2
styled his complaint as a habeas petition under the Indian
Civil Rights Act (ICRA).
A habeas petition is the only avenue for relief from
a violation of ICRA. See
25 U.S.C. §
Clara Pueblo v. Martinez,
436 U.S. 49, 51-52, 67-70, 98 S.Ct. 1670, 56 L.Ed.2d
We previously entertained a habeas petition alleging a violation of
ICRA in a child custody dispute.
503 F.2d 790, 792-95 (9th Cir.1974).
However, a person must be detained by a tribe to
bring an ICRA habeas petition, 25 U.S.C. §
and it is not clear if K.W.B. is detained within
the meaning of the statute.
Detention is interpreted with reference to custody under other federal
270 F.3d 789, 791-92 (9th Cir.2001) (relying on habeas cases
interpreting custody to analyze detention under ICRA);
v. Tonawanda Band of Seneca Indians,
85 F.3d 874, 879-80, 890-91 (2d Cir.1996) (holding that ICRA
detention is synonymous with custody in other federal habeas statutes).
The Supreme Court has held that children placed in foster
care are not in state custody for the purposes of
federal habeas proceedings under 28 U.S.C. §
v. Lycoming County Children's Servs. Agency,
458 U.S. 502, 510, 102 S.Ct. 3231, 73 L.Ed.2d 928
Because the district court had jurisdiction under 28 U.S.C. §
we do not decide whether a federal court may entertain
an ICRA habeas petition in a child custody dispute after
Likewise, we do not address other possible jurisdictional problems with
a habeas petition, such as Boozer's next-friend standing, whether the
defendants are proper respondents to a habeas petition, and tribal
sovereign immunity under ICRA.
to Exhaust Tribal Court Remedies
encompasses the federal question whether a tribal court has exceeded
the lawful limits of its jurisdiction, ...
exhaustion is required before such a claim may be entertained
by a federal court.”
471 U.S. at 857, 105 S.Ct. 2447.
A federal court must give the tribal court a full
opportunity to determine its own jurisdiction, which includes exhausting opportunities
for appellate review in tribal courts.
Mut. Ins. Co. v. LaPlante,
480 U.S. 9, 16-17, 107 S.Ct. 971, 94 L.Ed.2d 10
v. Warm Springs Tribal Corr. Facility,
134 F.3d 948, 954 (9th Cir.1998) (holding that the district
court properly required exhaustion, including tribal appellate review, before entertaining
an ICRA habeas petition).
is required as a matter of comity, not as a
v. A-1 Contractors,
520 U.S. 438, 451, 117 S.Ct. 1404, 137 L.Ed.2d 661
480 U.S. at 16 n. 8, 107 S.Ct. 971. Exhaustion
is not required where “the
action is patently violative of express jurisdictional prohibitions,”
471 U.S. at 856 n. 21, 105 S.Ct. 2447, or
it is otherwise plain that the tribal court lacks jurisdiction
over the dispute, such that adherence to the exhaustion requirement
would serve no purpose other than delay.
533 U.S. 353, 369, 121 S.Ct. 2304, 150 L.Ed.2d 398
520 U.S. at 459-60 n. 14, 117 S.Ct. 1404.
Likewise, exhaustion is not required “where
an assertion of tribal jurisdiction is motivated by a desire
to harass or is conducted in bad faith ...
or where exhaustion would be futile because of the lack
of an adequate opportunity to challenge the court's jurisdiction.”
471 U.S. at 856 n. 21, 105 S.Ct. 2447.
argues that he need not exhaust tribal court remedies because
it is plain that the tribal court lacks jurisdiction under
ICWA's jurisdictional provisions and because exhaustion would be futile.
argument that the tribe clearly lacks jurisdiction under ICWA is
Indian tribe shall have jurisdiction exclusive as to any State
over any child custody proceeding involving an Indian child who
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.
Boozer argues that even if K.W.B. resides on the Colville
reservation, there is plainly no jurisdiction in the tribal court,
because she is legally domiciled in Georgia.FN3
arguing, Boozer mistakenly reads the word “resides”
out of §
also suggests that K.W.B. did not “reside”
on the reservation for statutory purposes, because at the time
the district court proceedings were instituted she lived there as
a result of the tribal court order.
We do not decide whether K.W.B. in fact “resides”
on the reservation within the meaning of the statute.
We conclude only that it is not frivolous to maintain
that she did reside on the reservation at the pertinent
support his argument, Boozer relies on Mississippi
Band of Choctaw Indians v. Holyfield,
490 U.S. 30, 109 S.Ct. 1597, 104 L.Ed.2d 29 (1989),
but he misunderstands the holding of that case.
it was uncontested that two Indian children given up for
adoption never resided on the reservation.
The Court held that the tribe had exclusive jurisdiction over
the custody proceeding because the children legally were domiciled on
the Indian reservation where their parents were domiciled.
U.S. at 47-51, 109 S.Ct. 1597.
observed that “the
main effect of [ICWA] is to curtail state authority”
over child custody proceedings involving Indian children, id.
at 45 n. 17, 109 S.Ct. 1597, and ICWA's “purpose
was, in part, to make clear that in certain situations
the state courts did not
have jurisdiction over child custody proceedings.”
at 45, 109 S.Ct. 1597 (emphasis in the original).
did not hold that domicile trumped residency, but rather followed
ICWA's plain statement that either residence or
domicile on the reservation vests the tribal courts with jurisdiction
over the child custody proceeding.
K.W.B. may reside on the Colville reservation, conducting the custody
proceeding in tribal court is not “patently
violative of express jurisdictional prohibitions,”
471 U.S. at 856 n. 21, 105 S.Ct. 2447, nor
is it otherwise plain that the tribal courts lack jurisdiction
over the dispute.
533 U.S. at 369, 121 S.Ct. 2304.FN4
note that neither party disputes that this case involves a
within the meaning of ICWA. Child custody proceedings include foster
care placements, termination of parental rights, preadoptive placements, and adoptive
It appears that the tribal court is treating the tribal
court proceedings as a foster care determination.
There was a previous court order forbidding Boozer to contact
K.W.B., and it seems that there are concerns about his
fitness to regain custody of her.
If Boozer's fitness were not at issue, the Tribe plainly
would be without jurisdiction to hold a foster care determination
or other “child
within the meaning of ICWA. A fit parent has a
fundamental constitutional right to make decisions about the care and
custody of his children, which includes the right to deny
grandparents visitation and custody.
530 U.S. 57, 65-69, 120 S.Ct. 2054, 147 L.Ed.2d 49
(2000) (holding that a state may not award grandparent visitation
against a parent's wishes where there is no allegation that
the parent is unfit).
we find Boozer's argument that exhaustion is futile unpersuasive.
Boozer relies on the delay in the determination of K.W.B.'s
alone is not ordinarily sufficient to show that pursuing tribal
remedies is futile,”
v. Gila River Indian Cmty.,
174 F.3d 1032, 1036 (9th Cir.1999), we conclude that unreasonable
delay in the custody determination would be sufficient, standing alone,
to render futile exhaustion of tribal court remedies because the
harm alleged is lost parenting time that can never be
Nonetheless, Boozer made no effort to exhaust tribal court remedies
before filing a federal claim.
Boozer filed suit in federal court only six days after
Wilder-Boozer died, five days after the grandparents requested custody, and
four days after he filed a motion in tribal court
requesting that the court lift the order prohibiting Boozer from
contacting K.W.B., in which he did not contest the tribal
court's jurisdiction to determine K.W.B.'s custody.
some delay is inevitable if any court is to adjudicate
The tribal court promptly held a *937
hearing on K.W.B.'s custody on June 16, 2003, after which
it ordered measures that could have led to reunification of
Boozer and K.W.B., including visitation, counseling, and mediation.
It is possible that this unfortunate dispute already would have
been resolved if there were not dueling tribal and federal
There is no evidence that the Tribe is not competent
to handle the dispute, will not offer Boozer a fair
opportunity to regain custody of K.W.B., or will not act
in the child's best interests.
Boozer repeatedly has subjected himself to the jurisdiction of the
tribal court in the past.
Although we are troubled by the year that K.W.B. has
spent wondering who will raise her, the delay is not
yet sufficient for us to conclude that exhaustion of tribal
court remedies would be futile.
The district court's dismissal
of Boozer's complaint for failure to exhaust tribal court remedies is