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
Hough's child was taken from her and she was charged
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
"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
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
"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
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
"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.
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.
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."
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
"Even if I win in court again, ????"