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(Cite
as: 816 F.Supp. 448)
United
States District Court, W.D. Michigan, Northern Division.
Darlene
A. SANDMAN and Frederick D. Shelifoe, Plaintiffs,
v.
Bradley
DAKOTA, Defendant.
Darlene
A. SANDMAN, Plaintiff,
v.
Bradley
DAKOTA, Defendant.
Nos.
2:91-cv-269,
2:92-cv-134.
Dec.
30, 1992.
Federal
district court lacks jurisdiction to review child custody decisions within
jurisdiction of tribal court regardless of whether action is brought
under Indian Civil Rights Act or Indian Child Welfare Act.
Indian
Civil Rights Act of 1968, § 201
et seq., 25 U.S.C.A. § 1301
et seq.; Indian
Child Welfare Act of 1978, §§ 2
et seq., 101(a), 25 U.S.C.A. §§ 1901
et seq., 1911(a).
Indian
Civil Rights Act does not provide private right of action
in federal district court; habeas
corpus is only means by which federal court may review
tribal court actions. Indian
Civil Rights Act of 1968, § 201
et seq., 25 U.S.C.A. § 1301
et seq.
Writ
of habeas corpus, only means by which federal court could
review tribal court action, was not available to test validity
of child custody decree issued by tribal court, where custody
issue involved adjudication of dependency rather than divorce, and jurisdiction
of tribal court was not in question. Indian
Civil Rights Act of 1968, § 201
et seq., 25 U.S.C.A. § 1301
et seq.; Indian
Child Welfare Act of 1978, §§ 2
et seq., 101(a), 25 U.S.C.A. §§ 1901
et seq., 1911(a).
Even
if tribe member's claim that her incarceration violated due process
had been brought as habeas corpus action, judge who presided
over tribal court action was immune from suit for damages
under doctrine of judicial immunity unless there was clear absence
of all jurisdiction. Indian
Civil Rights Act of 1968, § 201
et seq., 25 U.S.C.A. § 1301
et seq.
Doctrine
of judicial immunity applies to judges in tribal courts.
*449
Robert S. Rosemurgy , Molly A. Foley, Butch, Quinn, Rosemurgy,
Jardis, et al Escanaba, MI, for Darlene A. Sandman and
Frederick D. Shelifoe.
Darlene
A. Sandman, pro se.
Joseph
P. O'Leary , Keweenaw Bay Indian Community Tribal Center, Baraga,
MI, for Bradley Dakota, Frederick Dakota, Gene Emery, Mike Lafernier,
Isadore Misegan, Ann Durant, Georgianna Emery, Elizabeth Sherman, Myrtle Tolonen,
Charles Loonsfoot, Wayne Swartz, Rosemary Haataja, Matt Shelifoe and Cheryl
Mowen.
Frederick
D. Shelifoe, pro se.
Charles
B. Bateman , Halverson, Watters, Bye, Downs Duluth, MN, for
Dr. Kwako.
David
E. McDonald , Jacobs, McDonald, Silc, McDonald, et al Ironwood,
MI, Nicholas Ostapenko , Johnson, Killen, Thibodeau & Seiler, PA,
Duluth, MN, for Marilyn Gritto.
Donald
S. McGehee , Asst. Atty. Gen., Frank J. Kelley ,
Atty. Gen., Corrections Div. , Lansing, MI, Jocelyn F. Olson,
St. Paul, MN, for Dennis J. Seitz, Linda Garver and
Jenny Weiger.
Jon
K. Iverson , Erstad & Riemer, PA, Minneapolis, MN, for
Sgt. Randelin.
Joseph
P. O'Leary, pro se.
Dennis
J. Peterson, Cloquet, MN, for Sonny Peacock, Henry Buffalo, Nadine
King, Michelle Gordon, Betty Martineau, Bonnie Jackola, Bill Spicer, Lois
Spicer, Matt Houle and Pam Houle.
Marguerite
Doran, Rudy, Gassert, Yetka, Korman, et al Cloquet, MN, for
Allen Fini-Frock and Sharon Fini-Frock.
Mark
Johnson, pro se.
M.
Sean Fosmire , Lynch, Andrews & Fosmire, PC, Negaunee, MI,
for Susan Berry.
OPINION
QUIST,
District Judge.
Two
actions brought by Darlene A. Sandman against Judge Bradley Dakota
were consolidated before this Court. In
2:91-cv-269, plaintiffs Darlene A. Sandman and Frederick D. Shelifoe (“plaintiffs”)
claimed that Judge Dakota violated plaintiffs' due process rights by
sending their children to foster care in Minnesota and by
continuing to make decisions about the children's placement and treatment
without affording plaintiffs notice or an opportunity to be heard.
The
relief plaintiffs requested was an order returning the children to
the custody of Darlene Sandman or an order that plaintiffs
be provided notice and hearing on any important decisions concerning
their children. Judge
Dakota moved for dismissal of the claim on jurisdictional grounds.
In
the second action, 2:92-cv-134, plaintiff Darlene Sandman (“Sandman”)
filed a pro se complaint against Judge Bradley Dakota, claiming
that she was wrongfully incarcerated without due process by the
Keweenaw Bay Tribal Court and seeking $20,000 in compensatory and
$800,000 in punitive damages. Judge
Dakota moved for dismissal or summary judgment. Counsel
was appointed when the cases were consolidated and participated in
briefing the issues before the court.
*450
BACKGROUND INFORMATION
No.
2:91-cv-269
Five
children of Darlene Sandman and Frederick Shelifoe were taken from
Sandman's custody by a tribal social worker on or about
June 13, 1989, when Sandman was arrested on charges of
assault and battery arising from an altercation at her house.
At
the time the children were removed from Sandman's custody, Shelifoe
was incarcerated for a criminal offense.
The
children were adjudicated dependant by Judge Bradley Dakota of the
Keweenaw Bay Tribal Court on June 19, 1989, and four
of them, Minogheezhig Sandman Shelifoe, Wabanunguquay Sandman Shelifoe, Oshkibagidahnahmahwin Sandman
Shelifoe, and Wausaumoutoikwe Sandman Shelifoe were sent to Minnesota, to
be placed with their maternal aunt and uncle.
Plaintiffs'
complaint alleged that their due process rights were violated by
Judge Dakota because the original adjudication of dependency was conducted
without notice to the parents and without affording them an
opportunity to be heard. In
addition, they complained that subsequent decisions on the placement and
treatment of the children have been made without notice or
an opportunity for the parents to be heard.
Defendant
moved for dismissal of the complaint on the grounds that
the Keweenaw Bay Tribal Court has exclusive jurisdiction over child
custody matters concerning these children and that the federal district
court does not have jurisdiction to review its proceedings. Plaintiffs
do not dispute that the tribal court has jurisdiction over
their children in custody matters but argue that the federal
district court has jurisdiction to hear their due process claim
under the Indian Civil Rights Act.
No.
2:92-cv-134
On
June 14, 1989, Sandman pled guilty on a charge of
assault and battery arising from her arrest on June 13.
She
appeared before Associate Tribal Judge Barbara Mantila without counsel. Mantila
accepted the plea in an arraignment hearing and sentenced Sandman
to 20 days incarceration. Sandman's
sentence was suspended on the condition that she successfully complete
a substance abuse program. When
Sandman was expelled from the treatment program, she was committed
to the Ontonagon County Jail on June 16, 1989, to
serve her 20 day sentence.
Defendant
Dakota moved for summary judgment on the grounds that he
had no role in the proceedings whereby Sandman was incarcerated.
In
addition, he moved for dismissal on the following grounds:
1.
The
complaint did not and cannot state a claim against the
tribal court, even if it were amended to name the
judge who presided over the guilty plea and sentencing, because
a tribal court is not required to appoint counsel and
is protected from suit by tribal sovereign immunity and judicial
immunity.
2.
Sandman
lacks standing to bring her claim because she failed to
exhaust tribal remedies.
3.
The
only relief available under the Indian Civil Rights Act is
habeas corpus relief, for which Sandman is not eligible.
In
response, Sandman admits that Judge Dakota did not personally preside
at her arraignment and sentencing. She
also admits that she is not eligible for habeas relief.
Nevertheless,
she maintains that a civil rights action can be maintained
against Judge Dakota, as the head of the tribal court,
under the Indian Civil Rights Act. She
suggests that her due process argument would be based on
a claim that, as a result of her substance abuse,
she did not understand her legal rights and that the
court's acceptance of her guilty plea was a violation of
due process. She
also argues that exhaustion of remedies would have been futile
and thus should not bar her action. Stating
that the doctrine of sovereign immunity would not be applicable
if her claim is properly pled, Sandman requests leave to
amend her complaint to add parties and requests that the
court construe her claim broadly to allege a violation of
the Indian Civil Rights Act.
DISCUSSION
Standard
of Review
An
action may be dismissed if the complaint fails to state
a claim upon which relief *451
can be granted. Fed.R.Civ.P
12(b)(6). The
moving party has the burden of proving that no claim
exists. All
factual allegations in the complaint must be presumed to be
true and reasonable inferences must be made in favor of
the non-moving party. 2A
James W. Moore, Moore's
Federal Practice,
¶ 12.07[2.5]
(2d ed. 1991). Dismissal
is proper only if “it
appears beyond doubt that the plaintiff can prove no set
of facts in support of his claim which would entitle
him to relief.”
Conley
v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d
80 (1957). Dismissal
is also proper if the complaint fails to allege an
element necessary for relief or “if
an affirmative defense or other bar to relief is apparent
from the face of the complaint, such as the official
immunity of the defendant....”
2A
James W. Moore, Moore's
Federal Practice,
¶ 12.07[2.5]
(2d ed. 1991).
Jurisdiction
to Review Tribal Court Decisions Child Custody Action, 2:91-cv-269
As the Court of Appeals for the
Sixth Circuit has explained in Shelifoe
v. Dakota, a case factually
and procedurally similar to the instant case, the federal court does not
have jurisdiction to review child custody decisions that are within the
jurisdiction of the tribal court. Shelifoe
v. Dakota, 966 F.2d
1454 (6th Cir.1992) (unpublished disposition) (text in WESTLAW and LEXIS).
The Indian Child Welfare Act, 25 U.S.C. §§ 1901
-1963, gives Indian tribes exclusive jurisdiction to determine the custody
of Indian children in child welfare situations such the proceeding that
gave rise to this action. See
25 U.S.C. § 1911(a) ; DeMent
v. Oglala Sioux Tribal Court,
874 F.2d 510, 514 (8th Cir.1989). There is no dispute that
the tribal court had jurisdiction to determine custody for plaintiffs'
children.
Indian tribes “exercise inherent
sovereign authority over their members and territories.” Oklahoma
Tax Comm'n v. Citizen Band Potawatomi Indian Tribe,
498 U.S. 505, 511, 111 S.Ct. 905, 909, 112 L.Ed.2d 1112 (1991). Federal
district court do not have jurisdiction to review the judicial actions
of tribal courts, including child custody decisions, under any statute,
including the Indian Civil Rights Act, 25 U.S.C. §§ 1301
-1303. Congress did not provide a private right of action
in the Indian Civil Rights Act, but provided only the remedy of habeas
corpus. Santa
Clara Pueblo v. Martinez,
436 U.S. 49, 70, 98 S.Ct. 1670, 1683, 56 L.Ed.2d 106 (1978). It
did not provide for any other means of federal court review of tribal
court actions.
In
limiting the remedies available, Congress, as the Supreme Court has
described, struck a “balance
between the dual statutory objectives.”
Id.
at 66, 98 S.Ct. at 1681. Those
objectives were to strengthen “the
position of individual tribal members vis-a-vis the tribe”
and “to
promote the well-established federal ‘policy
of furthering Indian self-government.’
”
Id.
at 62, 98 S.Ct. at 1679 (quoting Morton
v. Mancari,
417 U.S. 535, 551, 94 S.Ct. 2474, 2483, 41 L.Ed.2d
290 (1974)).
Plaintiffs have not brought this
action as a habeas corpus action. Even if they had, however,
the action would be dismissed because a writ of habeas corpus is not available
to test the validity of the child custody decree issued by the tribal
court. Weatherwax
ex rel. Carlson v. Fairbanks,
619 F.Supp. 294, 296 (D.Mont.1985). Plaintiffs dispute whether
a habeas action is available, arguing that their claim should be treated
like the claim in DeMent,
where the Court of Appeals for the Eighth Circuit held that habeas corpus
relief was available to a plaintiff who alleged that the tribal court
denied his due process rights in a custody proceeding. 874 F.2d
at 515. The DeMent
holding is inapplicable to plaintiffs' claim, however, because it involved
a challenge to the jurisdiction of the tribal court to determine custody
of the children of a non-Indian father in a divorce proceeding, where
the father neither resided nor was domiciled within the jurisdiction of
the tribal court. In addition, DeMent
concerned the duty of a tribal court to give full faith and credit to
the state court custody decree the father had obtained. In
contrast, the issue of the custody of plaintiffs' children involved an
adjudication of dependency, not divorce, and the jurisdiction of the tribal
court is not in question. In addition, there is *452
no issue of extending full faith and credit to the determination of any
other court.
Plaintiffs'
attempt to distinguish its case from Shelifoe
v. Dakota
also fails. Plaintiffs
argue that their claim differs in that it alleges a
due process violation. The
plaintiff in Shelifoe,
however, also claimed she was denied due process in a
child custody proceeding. 966
F.2d 1454 (unpublished disposition: slip
op. at 2; WESTLAW
text at 1). Plaintiffs'
child custody claim, 2:91-cv-269, is thus dismissed for lack of
jurisdiction for the reasons stated above.
Jurisdiction
to Review Tribal Court Decisions Criminal Action, 2:92-cv-134
In
Sandman's response to motions on her due process claim regarding
her imprisonment, 2:92-cv-134, she acknowledges that she has not brought
a habeas action because she
is at liberty, that she would allege failure to fully
inform her of her rights rather than failure to appoint
counsel, and that she did not correctly identify the judge
who presided at her arraignment. She
requests leave to amend her complaint and asks the court
to “broadly
construe her Complaint”
to state a valid claim under the Indian Civil Rights
Act. Plaintiff's
Response to Defendant's Motion for Summary Judgment and Motion to
Dismiss Complaint in File 292-CV-134,
p. 5-6.
Sandman's
complaint must be dismissed and leave to amend denied. Even
if Sandman's complaint, which was filed pro
se,
and the amendments proposed in her response to defendant's motion,
which was written with the assistance of counsel, are read
as generously as possible, Haines
v. Kerner,
404 U.S. 519, 520-21, 92 S.Ct. 594, 595-96, 30 L.Ed.2d
652 (1972), she fails to state a claim on which
relief can be granted.
Sandman
acknowledges that she did not file for a writ of
habeas corpus because she is at liberty. Moreover,
she does not propose to amend her complaint to bring
a habeas action. Yet
a federal court has jurisdiction to hear an action under
the Indian Civil Rights Act only if it is a
habeas action. Santa
Clara Pueblo v. Martinez,
436 U.S. at 70, 98 S.Ct. at 1683.
Sandman's claim, even if it is
amended, is also barred by the doctrine of judicial and tribal immunity.
Under common law, officials who are acting in a judicial capacity
are protected by judicial immunity. A claim for damages cannot
be maintained against a judicial officer exercising the authority vested
in the position. Stump
v. Sparkman, 435 U.S.
349, 355-56, 98 S.Ct. 1099, 1104, 55 L.Ed.2d 331 (1978) ; Bradley
v. Fisher, 80 U.S.
(13 Wall) 335, 351, 20 L.Ed. 646 (1872). In fact, judges cannot
be held liable even where their actions are “in excess of their jurisdiction,
and are alleged to have been done maliciously or corruptly.” Stump,
435 U.S. at 356-57, 98 S.Ct. at 1104 (quoting Bradley,
80 U.S. (13 Wall) at 351). A claim of damages can only be
brought against a judge where there was a “clear absence of all jurisdiction.”
Stump,
435 U.S. at 356, 98 S.Ct. at 1105.
Sandman argues that the doctrine
of judicial immunity should not be applied to a tribal judge when the
violation of a right is egregious. There is, however, no support
for plaintiff's position in the law. The Supreme Court has
held that the doctrine of judicial immunity is applicable in civil rights
suits. Id.
at 356, 98 S.Ct. at 1104. It is thus appropriate to apply
it to suits under the Indian Civil Rights Act. It is also
appropriate to afford the common law protection of judicial immunity to
tribal judges, in light of the rule that Indian tribes generally possess
a common law immunity from suit. Santa
Clara Pueblo v. Martinez,
436 U.S. at 58, 98 S.Ct. at 1677. Tribal immunity extends
to individual tribal officials acting in their representative capacity
within the scope of their authority. Hardin
v. White Mountain Apache Tribe,
779 F.2d 476, 479 (9th Cir.1985). If Sandman were permitted
to amend her complaint, as she requests, to name the judge who arraigned
and sentenced her and to claim against Judge Dakota in an administrative
capacity, the damages she seeks would still be barred by judicial and
tribal immunity.
CONCLUSION
For
the reasons stated above, both actions are dismissed and Sandman's
request for *453
leave to amend action No. 2:92-cv-134 is denied. Because
Sandman's second action is dismissed and leave to amend denied
on the basis of this court's lack of jurisdiction over
non-habeas actions and on the basis of judicial and tribal
immunities, it is unnecessary to address whether Sandman was required
to exhaust tribal remedies prior to bringing the action. An
Order consistent with this Opinion will be issued.
W.D.Mich.,1992.
Sandman
v. Dakota
816
F.Supp. 448
Briefs and Other Related Documents
•
2:92CV00134 (Docket) (Jun. 12, 1992)
•
2:91CV00269 (Docket) (Oct. 29, 1991)
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