Defiant Red Lake man asks judge to overturn custody order for lack of jurisdiction

by Jeff Armstrong

While the Minnesota Supreme Court contemplates adoption of a rule which would presumptively bind state courts to enforce tribal court orders, the justices would do well to consider the case of Jawnie Hough.

As a resident of Bemidji at the time, Hough sued ex-husband Donald Brun, Jr. for divorce in Beltrami County in 1999. Alleging several incidents of spousal violence and abuse, including one which resulted in Brun pleading guilty of fifth degree assault, Hough was awarded custody of her daughter and granted a protection order against Brun.

Unbeknownst to the Anishinabe woman, however, Brun had obtained countervailing divorce, OFP and custody orders against her in Red Lake tribal court, without apparently disclosing the existence of the conflicting state court orders.

Hough's child was taken from her and she was charged with parental abduction Jan. 10, 2001, on the strength of a state court "comity" hearing of which she had no prior notice. District Judge Terrance Holter granted the father custody based on the Red Lake tribal court order, but the judge subsequently overturned his ruling because Brun "did perpetrate misconduct on this court." On March 4, 2002, Holter ruled that Burn's actions violated Hough's fundamental constitutional rights.

"As a parent and primary physical custodian, [Hough] has important and substantial legal rights which are constitutionally protected and require due process to alter or change," the judge wrote. "This court recognizes that parental rights are a fundamental right under the United States Constitution, which requires a reliable due process prior to depriving a citizen of those substantive rights."

Holter ordered Brun to return the child to her mother no later than March 10, but Hough continues to wait for the final chapter of the nightmarish saga. Although her legal custody of the girl under state law is hardly in doubt, a Minnesota agency recently ordered Hough to pay hundreds of dollars in back child support for Meghan on behalf of the father--again under threat of criminal punishment.

"He was supposed to be paying me $290 a month," says Hough. "The state can come after me, but they can't touch him. They're trying to collect child support from me back to when I had Meghan at home. They said they couldn't collect from him because he's on the reservation. As long he runs to the reservation, he can get away with murder."

Brun appeared before Judge Holter this week--not to defend himself from contempt of court charges, but rather to ask the judge to rule that Red Lake has exclusive jurisdiction over Native families who resided there in the past.

Represented by attorney Lawrence Nichols, Brun petitioned the court--under the very divorce order he contends is invalid--to vacate the March 4 ruling and the entire divorce file because the family lived on Red Lake "as late as December 1998."

"The Respondent (sic) contends that, through the operation of Public Law 280, the District Court lacks both subject matter and personal jurisdiction over the parties in their putative dissolution, and that the Court lacked jurisdiction to award custody in the domestic abuse matter as well as the dissolution matter under Minnesota law and Federal law," Brun's brief asserts.

In the strikingly similar 1985 case of Desjarlait v. Desjarlait, however, the Minnesota court of appeals ruled that state courts have authority to rule on divorce custody proceedings initiated by tribal members living on the reservation.

"Because Stuart voluntarily invoked state court jurisdiction when he filed his petition for dissolution and because the tribal code relinquished jurisdiction over domestic matters to the state courts, the county court had subject matter jurisdiction over child custody matters of members of the Red Lake Band of Chippewa Indians. Principles of full faith and credit and comity do not require state courts to recognize a tribal custody order when the Red Lake tribal court lacked subject matter jurisdiction and did not afford the parties due process," the Desjarlait court ruled.

Brun attempts to differentiate his case by relying on the appeals court's later ruling in In the Matter of the Custody of K.K.S..In the 1993 ruling, the state court voluntarily declined jurisdiction in favor of a tribal court after one parent took a mutual child off the reservation and obtained an emergency custody order--almost the direct opposite of the case at hand, in which Brun and his parents kept the child on the reservation and obtained custody in an ex-parte hearing. The intention of the court was clearly to prevent "parental kidnapping."

"To hold that the state court has exclusive jurisdiction because Stensung and K.K.S. have a transient presence off the reservation would sanction unilateral movement of children to gain advantage in custody disputes," the appeals court concluded.

Hough is not optimistic that she will see her daughter off to her first day of school when she starts kindergarten soon, expressing an equal measure of confusion and fatalism.

"Even if I win in court again, ????"