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Rhonda Whiterock v. Washoe Tribe of Nevada & California

June 8, 2011

RHONDA WHITEROCK FRED, PLAINTIFF,
v.
WASHOE TRIBE OF NEVADA & CALIFORNIA, DEFENDANT.



The opinion of the court was delivered by: Gregory G. Hollows U. S. Magistrate Judge

FINDINGS & RECOMMENDATIONS

Introduction and Summary

Plaintiff is proceeding pro se in this action, which was referred to the undersigned pursuant to Local Rule 302(c)(21). As a grandparent of two children associated with the Washoe Tribe, plaintiff seeks custody of her grandchildren despite the previous action of the Washoe Tribal Court and the Inter-Tribal Court of Appeal of Nevada. Presently pending is defendant's motion to dismiss this action pursuant to Fed. R. Civ. P. 12(b)(1) for lack of subject matter jurisdiction, 12(b)(6) for failure to state a claim, for failure to exhaust tribal court remedies and for sovereign immunity.

The interrelationship of federal and tribal courts is a delicate and often complex matter. This case fits that mold. While it is clear that a federal court may have jurisdiction over a non-Indian's federal claim, Boozer v. Wilder, 381 F.3d 931 (9th Cir. 2004), the parameters of that claim are not clear, i.e., jurisdiction over what. Nor does plaintiff's complaint make clear what she seeks. Although alleging at one point that the Washoe tribal court lacked jurisdiction, and that she was denied due process in some manner, plaintiff does not clearly specify her precise claims or ask for any certain relief. In supplemental briefing on the jurisdictional question (Docket #25), plaintiff indicated that she wished the children returned to her.

The undersigned finds that the court has subject matter jurisdiction over a claim by plaintiff, and that claim may include an attack on the tribal court jurisdiction and any constitutional claims that plaintiff may have, e.g., lack of due process in taking the children from non-Washoe lands, lack of due process in the tribal court, alleged fundamental right of a grandparent to custody over grandchildren in the circumstances of this case. The undersigned will defer ruling on the validity of any such claims until they are specified with greater particularity and further facts are known. Likewise, the undersigned will not attempt to define now what remedies may be available. The undersigned further concludes that plaintiff has exhausted her tribal court remedies. With respect to sovereign immunity, the court will defer ruling on such a claim until after an amended complaint is filed setting forth with preciseness the nature of plaintiff's claims and appropriate defendants.

Background

Plaintiff is a non-enrolled California Pomo Indian who seeks custody of her two minor grandchildren, T.F. and E.F. The minor T.F. is a member of the Washoe Tribe and E.F. is eligible for membership in the Washoe Tribe. In November and December 2005, the children were removed from plaintiff's house by the Washoe Tribe's Department of Social Services, where they had been in the custody of their mother, M.F., also a member of the Washoe Tribe, or as plaintiff asserts in her supplemental briefing-- her custody. The home that the children were removed from was not within the boundaries of the Washoe Indian County. However, the children are wards of the Washoe Tribal Court.

Tribal court proceedings commenced, in which plaintiff and the motherparticipated, and the children were eventually placed in the care of their aunt.*fn1 On June 18, 2007, plaintiff filed two petitions for habeas corpus with the tribal court seeking custody, which were denied after a hearing on October 16, 2008. Plaintiff appealed to the Inter-Tribal Court of Appeals of Nevada (ITCAN) which upheld the tribal court's dismissal on January 4, 2010. The ITCAN denied plaintiff's request for reconsideration on February 18, 2010.

Plaintiff filed the instant action on April 9, 2010, alleging that the tribal court usurped its jurisdiction and otherwise denied her due process.

Subject Matter Jurisdiction

Federal district courts are courts of limited jurisdiction. United States Constitution Article III, § 1 provides that the judicial power of the United States is vested in the Supreme Court, "and in such inferior Courts as the Congress may from time to time ordain and establish." Congress therefore confers jurisdiction upon federal district courts, as limited by U.S. Const. Art. III, § 2. See Ankenbrandt v. Richards, 504 U.S. 689, 697-99, 112 S.Ct. 2206 (1992). Since federal courts are courts of limited jurisdiction, a case presumably lies outside the jurisdiction of the federal courts unless proven otherwise. Kokkonen v. Guardian Life Ins. Co. of America, 511 U.S. 375, 376-78, 114 S.Ct. 1673 (1994). Lack of subject matter jurisdiction may be raised at any time by either party or by the court. See Attorneys Trust v. Videotape Computer Products, Inc., 93 F.3d 593, 594-95 (9th Cir. 1996).

Congress passed the Indian Child Welfare Act (ICWA) in 1978 in response to a growing concern that Indian children were removed from their homes by state child protection officials at an alarmingly high rate and placed in foster care or adoption settings outside their Indian communities and culture. See 25 U.S.C. § 1901(4); Mississippi Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 32, 109 S.Ct. 1597 (1989). "At the heart of ICWA" lies a jurisdictional scheme aimed at ensuring that tribes have a role in adjudicating and participating in child custody proceedings involving Indian children domiciled both on and off the reservation. Holyfield, 490 U.S. at 36. Congress noted that states have often failed to recognize the important tribal relations that prevail in Indian communities and families. 25 U.S.C. § 1901(5).

The ICWA provides:

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 ...


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