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|Illegal process, Red Lake tribal courts: State Legal System Fails a Young Mother and Daughter|
|Lawrence, Bill, Nilska, Clara. The Ojibwe News. St. Paul, Minn.: Mar 16, 2001.Vol.13, Iss. 17; pg. 1|
|Subjects:||Courts, Government, Law, State government|
|Author(s):||Lawrence, Bill, Nilska, Clara|
|Publication title:||The Ojibwe News. St. Paul, Minn.: Mar 16, 2001. Vol. 13, Iss. 17; pg. 1|
|ProQuest document ID:||493795001|
|Text Word Count||3967|
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|Copyright Ojibwe News Mar 16, 2001
Illegal process, Red Lake tribal courts: STATE LEGAL SYSTEM FAILS A YOUNG MOTHER AND DAUGHTER
Press/ON has learned from court documents that a Minnesota State court in Beltrami County took away a Leech Lake tribal member's legal custody of her daughter - by rubber - stamping an ex parte Red Lake tribal court decision. The Red Lake custody hearing was held on behalf of the father, a Red Lake tribal member. The mother was not properly notified of the Red Lake hearing, and she thus was not present or represented. The State's reversal of State-awarded custody was also done ex parte. Black's Law Dictionary defines ex parte as, "on one side only: by for one party; done for, in behalf of, or on the application of, one party only..."
The District Court in Beltrami Country did not inform the mother that custody of her daughter was being reconsidered in Beltrami County. Instead, Beltrami County's reversal of custody was based on the father's "Application for EX-Parte Relief' and affidavit - and a May 22, 2000 Red Lake tribal court "judgement order of custody". Even though the State of Minnesota had granted physical custody to the mother, the Beltrami County judge, in his July 19, 2000 Order, wrote that the Red Lake tribal court order, "is recognized as principles of commity and shall be enforced by this court...law enforcement...is ordered to take physical custody of the child and return the child to the jurisdiction of the Red Lake Nation."
The mother, a Cass County resident, was not informed that her legal rights to her daughter had been terminated ex parte in Beltrami County. Instead, the mother was apprehended at the University of Minnesota Hospital in Minneapolis, where she had accompanied a family member undergoing medical treatment there. The little girl was taken away by deputies of the Hennepin County Sheriff's Department. A witness recalls her crying out, "Gramma, how come I have to go with the cops? What did I do wrong?"
The mother is currently being prosecuted on felony charges in Beltrami County for "depriv[ing] another of custodial or parental rights." The Beltrami County criminal complaint rests on the Red Lake tribal court decision and the Minnesota State court's ex parte order to enforce the tribal court custody order.
Meghan Agnes Brun was born is February 1997, to Red Lake enrollee Donald James Brun, Jr., and Leech Lake enrollee Jawnie Kaye Brun, née Hough. Meghan is "enrollable" both at Leech Lake and Red Lake. She was reportedly enrolled as a Red Lake member at her father's request.
Donald Brun, Jr.'s father is Donald "Dutch" Brun, and his mother is Geraldine "Joy" Brun, née Johns, who works for the tribal council. The former chairman of the Red Lake Band of Chippewa is Dutch's brother, Gerald "Butch" Burn. Francis "Chunky" Burn, Dutch Brun's first cousin, is tribal self-governance administrator. Chunky Brun controls all annually funded BIA self-governance contracts at Red Lake, which includes the tribal courts. His authority over the tribal courts is extensive - he is the individual who supervises the tribal court budgets. The Minnesota appellate case Commissioner of Taxation v Brun, 174 N.W.2d 120, establishing that enrolled members of the Red Lake Band of Chippewa Indians who live and work on Red Lake Reservation are exempt from State income tax, was litigated by Red Lake tribal attorneys on behalf of Chunky Brun and his wife.
Commissioner v Brun is also the legal precedent establishing that "process cannot be served on an enrolled member of the Red Lake Band residing within the boundaries of Red Lake Reservation, nor can a judgment." against the member be enforced." Thus, the Bruns can file legal action against Jawnie Hough in Minnesota District Court. Jawnie, however, has had difficulty filing reciprocal legal action against the Bruns, who are presently residents of Red Lake reservation. The Beltrami County court files include legal action filed by Jawnie and her mother, which was continued and then dismissed due to their inability to serve process on the Bruns at Red Lake.
Separation and Divorce
There are "several" Beltrami County court records chronicling domestic violence by Donald Brun, Jr., some of which are, according to the Clerk of Court's office, confidential. On December 7, 1998, Jawnie filed for divorce in Beltrami County. After a violent encounter at her husband's parents' home (at that time in Bemidji, Minnesota), Jawnie petitioned Beltrami County for an order of protection (OFP). The hearing was set by Judge Holter for December 23, 1998.
It appears that Done Jr. left for Red Lake, and was not served with notice of the Beltrami County hearing on the OFP until April 22, 1999. The hearing was held on April 28, 1999 - about two weeks after Judge Hass of Cass County found Don Jr. guilty of domestic assault during a February 1999 encounter with Jawnie in that jurisdiction. In his April 28, 1999 affidavit of response, Don Jr. acknowledged some of the violent incidents, and explained that Jawnie "provokes me into hitting her."
The Affidavit of Jawnie Kaye Brun, included in that court file, details a series of assaults and threats allegedly made by Don Jr., including several threats to kill her - and, in an apparent effort to prevent Jawnie from pressing charges against him, Don Jr.'s alleged threat to, "...fuck you up so bad that they'll have to fly you out to Fargo in a helicopter and you probably won't make it."
On May 5, 1999, Beltrami County Judge Terrance Holter granted an Order for Protection to Jawnie, in effect for one year. As a part of his May 5 order, Judge Holter granted Jawnie, the Petitioner, "sole legal and physical custody" of Megan, "subject to supervised visitation" by Don Jr., the Respondent. "The supervised visitation shall be permissible when Petitioner approves of the supervisor and Petitioner can be assured that Respondent will not flee with the child to Red Lake" [emphasis added].
On June 14, 1999, Judge Holter granted Jawnie's petition for divorce. In this Judgment and Decree, Judge Holter awarded Megan Burn's parents "joint legal custody," and stipulated that Jawnie would have "primary physical custody, subject to liberal and reasonable visitation" by Don Jr., provided that he "shall not use alcohol or non-prescription narcotics" during visitation.
Judge Holter also ordered that, "neither party shall remove the minor child of the parties from the State of Minnesota for the purpose of changing her place of residence without the written consent of the other party or until further order of the court, so long as either party is a resident of the State of Minnesota."
Red Lake courts: Brun's response
Don Brun, Jr., responded to Jawnie's petitions for protection and divorce in Beltrami County by filing legal actions in the Red Lake courts. Don Jr. apparently obtained an unspecified ex parte order on March 3, 1999, and he allegedly filed for divorce on April 23, 1999 - at press time the Red Lake courts had not responded to Press/ON's formal requests for those Red Lake court records.
Don Jr. also requested an Order for Protection from the Red Lake courts, which was granted by former Red Lake associate Judge Bruce Graves after the hearing was continued on May 17, 1999. Reliable sources state that during the course of litigating that Red Lake Order for Protection, Red Lake chief Judge Wanda Lyons threatened to jail Jawnie's legal services attorney, Amber Ahola; that Judge Graves asserted that Jawnie was "living in a crack house...In Tract 33"; and that an as-yet unseen order, perhaps the March 3 ex parte order, barred Jawnie from coming onto Red Lake reservation.
Red Lake "Order For Protection" 99R0086, was faxed on June 25, 1999 to Judge Paul Benshoof of the State face of that order, Judge Graves finds that "The Red Lake Nation Tribal Court retains jurisdiction over the parties and subject matter herein pursuant to the Red Lake Nation Law and Order Civil Code." He also finds that "Mr. and Mrs. Don Brun Jr...both agree that the father should have a significant part" in Meghan's life, and "both agree to open visitation that will be arranged by the Grandfather Mr. Donald Brun, Sr." Bruce Graves also prohibits Jawnie from "interfering with" Don Jr., and orders that the Order "is in effect until June 17, 2000."
Actively asserting Red Lake jurisdiction
During the years 1999 and 2000, Jawnie continued working at the job she held at the time of her Beltrami County divorce, at the Palace Casino and Hotel in Cass Lake. (She has post high school business education, and holds a responsible position there.) Although Jawnie was initially "had kept the child from [going to] Red Lake," says a source who asked not the be identified, Megan's paternal grandparents, Dutch and Joy Brun, "gained Jawnie's trust." After a "few months of...visits [which] went smoothly," Jawnie would regularly allow the senior Bruns to take Megan to Red Lake, where the Bruns moved in early 1999. Jawnie would meet them at K-Mart in Bemidji, the source explained, because Jawnie was "afraid of the restraining order and refused to go" onto Red Lake reservation.
On Good Friday, in April of 2000, Donald "Dutch" Brun, Sr. (the grandfather) reportedly met Jawnie at K-Mart, and took Mehgan back to Red Lake for what Jawnie believed would be a few days' visit. As Easter weekend, 2000 came to a close, Jawnie called the Bruns to "make arrangements to pick up her daughter" - and the Bruns "said, 'you can't have her'."
On April 13, 2000, Donald Brun, Jr., had filed a petition in the Red Lake courts, seeking custody of Meghan under Red Lake jurisdiction. The petition was heard on May 9, 2000 by Dan Charnoski, associate Judge at the Red Lake Courts.
Jawnie was not present at the hearing, and was apparently never formally notified. Donald Brun, Sr., reportedly told Jawnie by telephone that the hearing would be "May 10, ten o'clock. Jawnie called May 9th, at 2:30, just to make sure that was when it was at...He said, at 2:30, 'court is at 3:00 today'." Jawnie was in Cass Lake, where she worked and lived - nearly an hour's drive away from Red Lake.
In his May 22, 2000 Judgment and Order of Custody, Red Lake Judge Charnoski wrote that Jawnie "was duly apprised of this hearing and fully aware of the status of Meghan Brun," and that he entered a judgment in favor of Donald Brun, Jr., "by reason of default."
The Red Lake court reportedly did not provide Jawnie with a copy of its May 22, 2000 decision.
Reclaiming Mehgan under State jurisdiction
On June 6, 2000, the senior Bruns took Mehgan to get her hair cut, at Cost Cutters in Bemidji. As her daughter came out of the barbershop, Jawnie, who had been waiting outside, reportedly picked her up and "just started walking toward her car." On June 6, 2000, Jawnie still had legal custody of her daughter in Minnesota.
According to court records, Geraldine and Donald Brun, Sr., then "reported to Beltrami County Law Enforcement that their granddaughter, Meghan Brun, had been abducted by Meghan's mother, Jawnie Brun, now know as Jawnie Hough. Sgt. Daryle Russell of the Bemidji Police department spoke with the Bruns, and was told that Meghan Brun, age 2 [sic], was the daughter of Jawnie Hough and their son, Donald Brun, Jr. They stated that legal custody of the child had been awarded to their son by the Red Lake Tribal Curt...A subsequent investigation showed that on May 22, 2000, an order was issued from the Red Lake Tribal Court awarding custody of Meghan Brun to Donald Brun, Jr. A check of Beltrami County court records, however, indicated that a custody order had been issued from the District Court, Beltrami County, awarding custody of Megan to Jawnie Hough.
"The Bruns were so informed of this, and told that they needed to pursue this matter of custody in the civil courts."
Minnesota's ex parte rubber stamp
On June 16, 2000, Michael Ruffenach, attorney for Donald Brun, Jr., filed an "Application for Ex-Parte Relief" in the State Courts, Beltrami County. Ruffenach entered the ex parte application into the Ninth District Courts as a continuation of Jawnie and Donald Jr.'s 1999 divorce, File No. Fl-99-602, rather than initiating a new legal proceeding.
Jawnie was not notified of the proceedings - as one source put it, "the grandparents conveniently forgot Jawnie's phone number.
Beltrami County does not seem to have put much effort into upholding the U.S. Constitution's guarantees of due process. Judge Terrence Holter, of the Ninth District Court, State of Minnesota, decided Donald Brun, Jr.'s application for ex parte relief and field his Order in three days. The court files which Press/ON examined - all of those which were public information - give no indication that Jawnie had any opportunity to rebut the allegations made by Don Jr. in an affidavit, nor those which were made in the ex parte proceedings at Red Lake.
The affidavit in the Beltrami County Courthouse files, notarized by Don Jr.'s attorney, is clearly dated July 16th, 2000 - almost a month after Judge Holter's Order "based on the Affidavit" was filed.
In his June 19, 2000 Order, Judge Holter finds that "the child was involuntarily taken from the Red Lake Reservation." Press/ON sources state unequivocally that Jawnie retrieved her daughter at Cost Cutters, a barbershop in Bemidji, off-reservation and under State of Minnesota jurisdiction. On June 19, 2000 Jawnie had legal custody of her daughter in the State of Minnesota.
Judge Holter also writer:
"7. That the issue of custody jurisdiction in an Indian Tribe is recognized by principles of commity. That by principles of commity, the Court has discretion to recognize the order of the Tribal Court and enforce it.
"8. That there are issue and fact regarding the state of the child that can be properly determined by the Tribal forum.
"9. That through Appellate decision, the Appellate Courts have been recognizing the rights of the Tribe to assert over its enrolled members and to determine their rearing.
"10. It is ordered that the Tribal Court order, dated May 22, 2000, is recognized as principles of commity and shall be enforced by this Court."
Based on his ex parte consideration, State of Minnesota District Judge Terrance C. Holter ordered on June 19, 2000, ordered that "the Beltrami County sheriff, or the appropriate law enforcement of the county where the child is found, is ordered to take physical custody of the child and return the child to the jurisdiction of the Red Lake Indian Nation."
Press/ON attempted to contact Judge Holter for comment, who was in Clearwater County hearing cases, and who was unable to return our phone calls shortly before press time. He stated that he would like to comment after he has had the time to review the case files.
Ex post facto crimes in the State of Minnesota?
On January 9, 2001, Beltrami County Attorney Tim Faver signed a criminal complaint against Jawnie Hough, charging her with the felony of depriving another of "custodial or parental rights." The complaint states that "the Beltrami County Sheriff's Department...attempted," for nearly six months, "without success to located the child." Press/ON telephoned Mr. Faver, who stated that "law enforcement went out of their way" to find Jawnie.
Deputy Scott Winger of the Beltrami County Sheriff's Department filed a supplemental report on December 26, 2000 describing efforts to locate Jawnie - and serve the papers informing her that she had lost custody of her daughter, ex parte, in Beltrami County. Press/ON contacted Deputy Winger, who detailed some of the efforts made by the Beltrami County Sheriff's office, to locate Jawnie and her daughter: "[We] were given information by the Bruns about where she was supposed to be staying." Deputy Winger talked to the people at those addresses, who "said that [they] did not know who she was...[we were] given physical directions, she wasn't there..." Deputy Winger explained to Press/ON that his workload amounts to "serving a paper every 40 minutes. If people do not give enough information, I do not have a lot of time to spend" doing detective work trying to find people. According to Deputy Winger, the Bruns also gave him the name of a Leech Lake security officer, Scott Keller, who would "call...back with some of the places he had been looking."
Basing their search for Jawnie on the information provided to them by the Bruns, the Beltrami County Sheriff's Department looked for Jawnie, "I'd try it for an hour or so when I can, went out there..." until after Christmas, 2000.
In the meantime, according to an informed source, Director of the Leech Lake Department of Public Safety, Samuel "Rocky" Papasadora, readily contacted Jawnie, "about two days before Halloween." Mr. Papasadora "got a call from Red Lake, the courts contacted him that morning, wanted to see how Meghan was doing." Jawnie reportedly talked to "Rocky at about two o'clock - it did not take him long to find her" at her residence on the Leech Lake reservation, in Cass County. "All it would have taken was one call from Red Lake to the Leech Lake tribal police, they would have found her within hours."
The State of Minnesota "finds" Jawnie
The day after Beltrami County Attorney Tim Faver signed the criminal complaint charging Jawnie with a felony, Jawnie and her daughter were apprehended by University of Minnesota police at the Fairview University Medical Center in Minneapolis. According to a hospital staff-person who asked not to be quoted by name, "someone came up" to Hospital security and "said, 'that lady is not supposed to have the child out of the county'." Hospital security contacted the University of Minnesota police, who reportedly detained Jawnie and her daughter until the officers from the Hennepin County Sheriff's Department arrived.
On the evening of January 10, 2001, Meghan was reportedly taken away from her mother, and placed in protective custody at St. Joseph's home for children. "Jawnie's under standing was that there would be a hearing in Hennepin County." But, something before the morning of January 11th, St. Joseph's released Megan to the custody of Don Brun, Jr. At press time, the Bruns had not returned Press/ON's phone calls. Jawnie Haugh stated to Press/ON that she preferred not to comment at this time.
"A court order is a court order"
Press/ON asked Beltrami County Attorney Tim Faver about his decision to file criminal charges against Jawnie: in a county where she did not reside, and for the "crime" of retrieving a daughter of whom she had legal custody. According to Faver, it was a "case where there are battling court orders from tribal court and [Minnesota] District court." Faver explained the position of the County Attorney's office: "We do not distinguish between tribal court orders or State court orders. A court order is a court order. We do not look behind court orders in terms of the process that was used to get a court order. If [the court order is] facially valid, then we act on those orders."
Press/ON asked Faver about longstanding problems civil rights and deficiencies in due process at the Red Lake tribal courts. Faver reiterated that the County Attorney's office does not scrutinize tribal court orders, and that if court order is 'facially valid," the County acts on it. Press/ON asked Faver about the legal basis for his interpretation of the validity of Red Lake court orders. Faver explained that the Indian Child Welfare Act requires that the State give "cognizance" to tribal court orders, and that the Violence Against Women Act also requires the State to recognize tribal court orders. Press/ON asked how the extremely limited instances specified in these two federal laws compelled the District courts and the County Attorney's Office to overturn its own custody determination. Faver said that it is "not proper for me to make judgments" about the Red Lake courts, and that, "it would be paternalistic" for the County Attorney's office to "say" that Red Lake courts were "deficient." He also said that individuals affected by State recognition of tribal court orders were "free to challenge" the County's policy in court, although he acknowledged that there "might be practical problems" in doing so.
When pressed about civil rights and due process concerns, Faver said that the Red Lake courts were, "like any political system. If the citizens are dissatisfied with the government, the can exercise their rights at the ballot box to make changes." Red Lakers have been trying to change the system for over thirty years, including a revolution in 1979, and still the problem persists. Erin Sullivan-Sutton, Assistant Commissioner of Children's Service, Minnesota Department of Human Services, indicated to Press/ON that a custody battle does not involve "placement," and "the ICWA does not apply."
A Public Defender
Jawnie Kay Hough's next scheduled court appearance is March 26, 2001, nine o'clock at the Beltrami County Courthouse in Bemidji. She is charged with a felony, and faces a maximum sentence of two years in prison and $4,000 in fines. She is being defended by Kristine Kolar, Chief Public Defender, Ninth judicial District.
Press/ON visited with Ms. Kolar, who framed her words carefully: "Ms. Hough disputes not only the notification, but allegations that she abandoned the child." In response to Press/ON's questions about other disputed issues of fact, she replied, "If there are falsehoods, [Beltrami County] is compounding the falsehoods" [emphasis added].
Jawnie's public defender indicated that, in her opinion, the custody dispute "needs to be addressed by the Red Lake courts." Press/ON responded, perhaps less than diplomatically, that sending Jawnie back to the Red Lake courts was unlikely to result in her regaining custody of her daughter and, in this writer's opinion, was probably "cruel."
During the ensuing conversation, Ms. Kolar acknowledged to Press/ON that she is married to David Harrington. Harrington is Lead Attorney for the Red Lake Band of Chippewa Indians, at a salary of $69,360.
Jawnie's public defender is encouraging her to voluntarily submit to the jurisdiction of the Red Lake tribal courts. That tribal court has already ex parte terminated Jawnie's parental rights, in what an Indian court insider called "illegal process." There have been serious questions about the Red Lake courts for thirty years, including those raised in law review articles and in a lengthy confidential report by the U.S. Civil Rights Commission in 1991. Over the years, there have also been many articles, editorials and letters to the editor about lack of due process and other civil rights violations in the Red Lake tribal courts.
Significantly for Jawnie Haugh and her daughter Megan, Red Lake tribal court abuses include the removal of the director of Red Lake Family and Children Services, Rebel Gale Harjo - for her efforts to protect the rights of children - a little over a year ago. As Press/ON reported on December 17, 1999 and February 11, 2000, custody of a four year old boy "became politically charged when Red Lake tribal administrator Francis 'Chunky' Brun interceded on the side of [Ray] Smith, [Sr.], an old friend...Sources told Press/ON that Brun had been abusive and intimidating in phone conversations with staff and Family and Children Services..." At a December 9, 1999 custody hearing, Chunky also used his political influence by giving tribal judge Dan Charnoski - the same judge was on Jawnie's case - "permission" to hold Harjo in contempt and to jail her. Rebel Harjo was jailed, fired, and on February 4, 2000 became at least the 6th person to be banished from the Red Lake Reservation by tribal chairman Bobby Whitefeather.
Because of her husband's position at the Red Lake legal department, Chief Public Defender Kristine Kolar has an apparent conflict of interest in her representation of Jawnie Hough.
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