June 11, 2003
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/