July
11, 2003
Court of Appeals hears Jawnie Hough's
custody case
Background
On January 10, 2001, [Meghan Brun] was seized by University of
Minnesota police and taken away from her mother: to Red Lake, based on
state "comity" recognition of a Red Lake tribal court order. Beltrami
County district court judge Terrance Holter subsequently vacated his
own recognition of the Red Lake tribal court order, writing that "the
tribal court Order created a substantial deprivation of parental
rights," and Meghan's father, Don Brun, "did perpetrate misconduct on
this court" when he "used a tribal court Order under a de facto Ex
Parte comity recognition process." Holter Ordered that Meghan be
returned to the proper custody of her mother, [Jawnie Hough], "before
5:00 p.m., March 10, 2002."
[Lawrence Nichols]'s appellant's brief, on behalf of Don Brun (and his
parents), centers on jurisdictional arguments, specifically that, "the
State of Minnesota lacked jurisdiction over the person of the Appellant
... and over the cause or controversy and all orders of the District
Court were void" from the very beginning. Nichols asks that, after more
than four years, the Court of Appeals vacate the state divorce in which
Jawnie Hough, a Leech Lake enrollee and Beltrami County resident, was
initially awarded custody of her daughter, as well as all subsequent
court orders in the case -- presumably including the ex parte state
"comity" order, made at Don Brun's request, through which Meghan was
returned to Red Lake. Nichols made it clear to this writer that he had
no comment, so this writer asked Jawnie Hough's attorney, Frank Bibeau,
about the logic of Nichols's argument. "They say whatever they need to,
to whatever court, to get the result they want," Bibeau explained.
Respondent's attorney Frank Bibeau argued that the state court's
acceptance of Jawnie Hough's petition for divorce was proper, that the
state did have "personal and subject matter jurisdiction," and that the
divorce and subsequent state court actions are valid. He said that the
Red Lake tribal court's assertion of jurisdiction was based on a
"different definition" than Minnesota's -- and that despite his
requests, he was "not provided a copy of the [Red Lake tribal] code."
Court
of Appeals hears Jawnie Hough's custody case
by Clara NiiSka
Oral arguments in the continuing legal battle over the custody of
six-year old Meghan Brun were heard at the Minnesota Court of Appeals
in St. Paul on Thursday, July 10th. At issue is the fate of a child
reunited with her mother less than three weeks ago.
On January 10, 2001, Meghan was seized by University of Minnesota
police and taken away from her mother: to Red Lake, based on state
"comity" recognition of a Red Lake tribal court order. Beltrami County
district court judge Terrance Holter subsequently vacated his own
recognition of the Red Lake tribal court order, writing that "the
tribal court Order created a substantial deprivation of parental
rights," and Meghan's father, Don Brun, "did perpetrate misconduct on
this court" when he "used a tribal court Order under a de facto Ex
Parte comity recognition process." Holter Ordered that Meghan be
returned to the proper custody of her mother, Jawnie Hough, "before
5:00 p.m., March 10, 2002."
Don Brun, and his parents Geraldine and Donald Brun Sr. ignored the
state court order to return the child, and through attorney Lawrence
Nichols of suburban Eagan, Minnesota argued that the June 14, 1999
Beltrami County divorce and subsequent custody determinations were
invalid, and that the state court's order to return Meghan to her
mother did not apply because "the state district court lacks both
subject matter and personal jurisdiction."
Meghan was not returned to her mother until June 23, 2003, and then
only because, as Jeff Armstrong reported for Press/ON on June 27,
"informed by a relative of her child's presence at the Bemidji
hospital, Hough presented legal documentation of her custodial rights
to police supervising the transfer" under state jurisdiction. The Red
Lake tribal council, by resolution, does not recognize state court
orders.
Nichols's appellant's brief, on behalf of Don Brun (and his parents),
centers on jurisdictional arguments, specifically that, "the State of
Minnesota lacked jurisdiction over the person of the Appellant ... and
over the cause or controversy and all orders of the District Court were
void" from the very beginning. Nichols asks that, after more than four
years, the Court of Appeals vacate the state divorce in which Jawnie
Hough, a Leech Lake enrollee and Beltrami County resident, was
initially awarded custody of her daughter, as well as all subsequent
court orders in the case -- presumably including the ex parte state
"comity" order, made at Don Brun's request, through which Meghan was
returned to Red Lake. Nichols made it clear to this writer that he had
no comment, so this writer asked Jawnie Hough's attorney, Frank Bibeau,
about the logic of Nichols's argument. "They say whatever they need to,
to whatever court, to get the result they want," Bibeau explained.
In his reply brief on behalf of Jawnie Hough, Bibeau -- who is a tribal
attorney for the Leech Lake Band of Ojibwe as well as Hough's pro bono
attorney -- asks "whether the state loses personal and subject matter
jurisdiction over the past and ongoing actions and disputes of its
long-time citizens due to sudden or temporary domicile on Red Lake
reservation?"
Bibeau argues that, if nothing else, Brun was properly and effectively
served with notice of the state court's proceedings after service on
April 22, 1999 by a Red Lake police officer, and that Brun clearly
submitted to the state's jurisdiction in the case.
Bibeau also raises the issues of "the best interests of the child,"
Meghan, and of the State's obligation to protect Jawnie's "natural,
constitutional and court-ordered rights."
Thursday's oral arguments were heard by Judges Thomas Kalitowski,
Harriet Lansing, and Robert Schumacher.
Oral arguments at the Minnesota Court of Appeals include a statement
made by each of the attorneys, questioning by the Judges, and a
rebuttal made by the appellant's attorney.
Nichols, as the appellant's attorney, spoke first. He stressed what he
claims as the state's lack of jurisdiction over his client while at Red
Lake under Public Law 280 and Title "28 § 1368" of the U.S. Code:
"when he crosses the borders, he is immune from state action," with the
exception of actions taken which are intended to have an effect in
state jurisdiction (Nichols acknowledged two legal cases, State v.
Rossbach (1980), and State Ethical Practices Board v. The Red Lake DFL
Committee (1981), that uphold state jurisdiction when an action taken
on Red Lake reservation "intentionally causes a result within the
state" of Minnesota).
The Judges questioned Nichols about the details of Don Brun and Jawnie
Hough's residency at Red Lake, noting that "the record" is incomplete.
Although the couple's troubled marriage was formalized in October 1997
at the Red Lake Catholic church -- with a state marriage license --
they had resided during most of that marriage off-reservation, and
Meghan, enrollable both at Red Lake and Leech Lake, was born
off-reservation. Among the factors addressed by the Judges was a Red
Lake post office box. "The P.O. box is the address," Nichols asserted.
(Bibeau, in his rebuttal, argued that a P.O. box did not necessarily
reflect residency.)
Judge Robert Schumacher, who has long been an advocate of "full faith
and credit" for tribal court orders and judgments in his role on the
Tribal Court/State Court Forum, asked Nichols about his apparent
argument "that she can not bring action against" her husband while he
is on the reservation. Nichols asserted that the Red Lake tribal courts
held jurisdiction the moment that Brun crossed the boundary-line.
"Aboriginal people have a right to live under their own laws," he said.
Nichols's arguments disregarded a number of salient facts, among them
that the Red Lake tribal court has no discernable connection to
aboriginal laws, and that the Bruns have a very tenuous claim to being
"aboriginal people" of Red Lake. Nichols also did not address the
longstanding problems at the Red Lake tribal courts, including that, as
then-chairman Bobby Whitefeather put it in a June 14, 2002 interview,
non-members like Leech Lake enrollee Jawnie Hough, "legally, according
to the constitution ... have no legal standing."
Respondent's attorney Frank Bibeau argued that the state court's
acceptance of Jawnie Hough's petition for divorce was proper, that the
state did have "personal and subject matter jurisdiction," and that the
divorce and subsequent state court actions are valid. He said that the
Red Lake tribal court's assertion of jurisdiction was based on a
"different definition" than Minnesota's -- and that despite his
requests, he was "not provided a copy of the [Red Lake tribal] code."
Bibeau, who is a White Earth enrollee, stressed that the case before
the Court of Appeals "is not a tribal sovereignty issue," adding that
if Red Lake's tribal sovereignty was involved, the Red Lake tribal
attorneys would have, at the very least, filed an amicus brief in
support of the Bruns.
He also pointed out Don Brun's long involvement with the state courts
in the case, and reiterated the argument made in his brief that Jawnie
and Don Brun's "temporary domicile" at Red Lake, during "the brief time
prior to their dissolution," was insufficient to confer Red Lake
jurisdiction under Uniform Child Custody Jurisdiction standards.
Nichols, on rebuttal, argued that, "ICWA [the Indian Child Welfare Act]
clearly applies" and would confer jurisdiction on the tribal court,
even though ICWA does not apply to custody disputes. He also urged the
State Court of Appeals to return Meghan to Red Lake "during the
pendancy" of the Court of Appeals consideration of the case.
The Court of Appeals must issue a decision within 90 days after oral
arguments. Court of Appeals decisions are posted every Tuesday at http://www.courts.state.mn.us/home/
