United States District Court, D. Minnesota
Kimberly Watso, individually and on behalf of C.H. and C.P., her minor children, and Kaleen Dietrich, Plaintiffs,
Emily Piper in her official capacity as Commissioner of the Department of Human Services; Scott County; Tribal Court of the Shakopee Mdewakanton Sioux Dakota Community; Judge John E. Jacobson, in his official capacity; Tribal Court of the Red Lake Band of Chippewa Indians; Judge Mary Ringhand, in her official capacity; Isaac Hall; and Donald Perkins, Defendants.
REPORT AND RECOMMENDATION
KATHERINE MENENDEZ, UNITED STATES MAGISTRATE JUDGE
Report and Recommendation, the Court addresses the following
dispositive motions, which were referred to the undersigned
by the District Court:
(1) The Tribal Court of the Shakopee Mdewkanton Sioux
(Dakota) Community and Judge John E. Jacobson's Motion to
Dismiss, ECF No. 12;
(2) Emily Piper's Motion to Dismiss Plaintiffs'
Complaint, ECF No. 29;
(3) Defendant Scott County's Motion to Dismiss, ECF No.
(4) The Tribal Court of the Red Lake Band of Chippewa Indians
and Judge Mary Ringhand's Motion to Dismiss, ECF No.
Court held a hearing on these motions on May 25, 2017. For
the reasons that follow, the Court recommends that each of
the motions be granted and this matter be dismissed.
case involves child welfare proceedings in the Tribal Court
of the Shakopee Mdewakanton Sioux (Dakota) Community (the
“SMSC Court”) and the Tribal Court of the Red
Lake Band of Chippewa Indians (the “Red Lake Band
Court”). Kimberly Watso is the biological mother of two
minor children, C.H. and C.P. Compl. ¶ 1, ECF No. 1. Ms.
Watso is a non-Indian, id.; C.H. is a member of the
Shakopee Mdewakanton (Dakota) Community (“SMSC”),
id. ¶¶ 3, 30; and C.P. is a member of the
Red Lake Band of Chippewa Indians (“Red Lake
Band”), id. ¶¶ 2, 27. Isaac Hall is
C.H.'s father, id. ¶ 15; and Donald Perkins
is the father of C.P, id. ¶ 14.
January 22, 2015, a representative of the SMSC Family and
Children Services Department filed an emergency ex parte
petition in the SMSC Court seeking a determination that C.P.
and C.H were children in need of assistance, and asking to
transfer custody to the SMSC's Child Welfare
Office. See Watso v. Jacobson, et al.
(“Watso I”), No. 16-cv-983 (PJS/HB),
Doc. No. 1 ¶ 52 (D. Minn. May 31, 2016) (Petition);
id. at Doc. No. 14 (Exhibit A, Emergency Ex Parte
Pet. for Children in Need of Assistance). Three days later,
the SMSC Court determined that the matter should not be heard
ex parte and found that the parents should be
present. SMSC's Ex. A, ECF No. 17.
February 24, 2015, Ms. Watso and Mr. Hall brought C.H. to a
medical clinic for an examination of C.H.'s head. Compl.
¶ 18. As a result of that visit, a report of possible
child abuse was made against Ms. Watso and Mr. Hall.
Id. ¶ 19. A detective with the Shakopee Police
Department issued a Notice of 72-Hour Police Health and
Safety Hold notifying the parents that C.H. and C.P. would be
held at Children's Hospital. Compl., Ex. 3
(“72-Hour Hold”). No child welfare proceedings
were initiated in the state court in Scott County.
Id. ¶ 20.
Complaint states that “on February 25, 2015, Scott
County referred and transferred the C.H. and C.P. matters to
SMSC's social service agency for tribal court
proceedings.” Compl. ¶ 129; see also Id.
¶¶ 20, 131. However, an exhibit attached to the
Complaint indicates that on February 25th, the SMSC Court
received an Emergency Ex Parte Motion to Transfer Legal and
Physical Custody of C.H. and C.P. as part of the pre-existing
child welfare proceedings described above. Compl., Ex. 4.
Though the motion to remove the children from their
parents' custody was originally filed ex parte, Ms. Watso
was notified of the motion at some point and filed an
objection to the SMSC Court's exercise of jurisdiction in
the child welfare proceeding. Id. ¶¶
130-36. The SMSC Court rejected Ms. Watso's arguments and
issued orders related to the custody and care of the
children. See Id. ¶ 137; id., Ex. 4.
The SMSC Court also rejected Ms. Watso's argument that it
lacked subject matter jurisdiction because a Minnesota state
court did not first determine that jurisdiction should be
transferred to a tribal court. Id., Ex. 5 at 4.
Eventually, on January 17, 2017, the SMSC Court granted the
Red Lake Band's motion to dismiss the tribal court
proceedings concerning C.P., who is a Red Lake Band member,
“allowing the Red Lake Nation to take jurisdiction over
C.P.” Id. ¶¶ 21, 142.
present lawsuit is not Ms. Watso's first related to these
matters. A previous federal case, styled as a habeas
petition, was voluntarily dismissed as moot on February 10,
2017, id. ¶ 146, and this case was filed on
February 23, 2017. In this case, just as she previously
argued to the SMSC Court, Ms. Watso essentially asserts that
the tribal child welfare proceedings that have taken place in
the SMSC Court and the Red Lake Band Court are invalid
because the Scott County District Court did not first decide
that it was proper for the tribal courts to exercise
time this case was filed, Kaleen Dietrich, who is the
maternal grandmother of C.H. and C.P., was caring for C.P.
pursuant to an order of the Red Lake Band Court. Compl.
¶ 34. C.H. was under the care of Allene
pursuant to an order of the SMSC Court. Id. ¶
36. The Complaint ambiguously alleges that “C.H. and
C.P. do not reside [as of February 23, 2017] and are not
domiciled within the boundaries of Red Lake Nation of
Chippewa Indians, ” id. ¶ 25, but there
are no allegations setting forth where the children lived
when the child welfare proceedings commenced.
Watso alleges that the “transfer” of the child
welfare proceedings was contrary to the Indian Child Welfare
Act (“ICWA”), 25 U.S.C. § 1914, her federal
constitutional rights, and other provisions of federal law.
She “seeks dismissal of both tribal court proceedings
without prejudice and remand to [MNDHS] and Scott County for
Scott County and [MNDHS]” so that any child-welfare
decisions concerning C.H. and C.P. are made by a State court
rather than a tribal court. See Compl. ¶ 147.
Although the Complaint originally included four separate
counts, each containing multiple claims against various
defendants, the issues have been considerably narrowed by
stipulation of the parties. ECF No. 71.
before the Court are the following more limited claims. Count
I of the Complaint is most clearly stated as a claim against
the SMSC Court and the Red Lake Band Court. It is possible
that the plaintiffs also intend to assert a claim in Count I
against Judge Jacobson and Judge Ringhand for their actions
in the tribal court proceedings. The plaintiffs seek a
declaration invalidating the tribal court child-welfare
proceedings pursuant to the Indian Child Welfare Act, 25
U.S.C. § 1914. They also request an injunction requiring
the SMSC Court and the Red Lake Band Court to dismiss their
respective child custody proceedings for lack of
jurisdiction. Compl. ¶¶ 148-57. Finally, as part of
Count I, Ms. Watso asks the Court to enjoin Scott County to
“re-initiate its administrative proceedings regarding
C.H. and C.P. and to comply with this Court's decision,
ICWA and MIFPA.” Id. ¶ 157.
III of the Complaint is asserted against the DHS Commissioner
and Scott County. In Count III, pursuant to 42 U.S.C. §
1983, the plaintiffs allege that the DHS Commissioner and
Scott County violated their rights under the United States
Constitution (due process and equal protection) and the
Indian Child Welfare Act. Id. ¶¶ 168-77.
explained below, at its most fundamental, all of the claims
against all of the remaining defendants rely upon a
particular statutory analysis proffered by the plaintiffs.
However, because that analysis is incorrect, it undermines
the plaintiffs' entire theory of the case.
Count I: State and Tribal Jurisdiction
the precise contours of the plaintiffs' primary argument
are not spelled out clearly in the Complaint or in their
response to the motions to dismiss, at the hearing
plaintiffs' counsel articulated an interpretation of
several federal statutes that forms the lynchpin of the
assertion that the tribal court proceedings must be
invalidated. The plaintiffs' argument relies on an
interpretation of the intersection of the Indian Child
Welfare Act (“ICWA”) and a specific provision of
what is commonly referred to as Public Law 280. However,
careful examination of both statutes and the case law
interpreting them reveals the errors in the plaintiffs'
The Relevant Statutes
order to understand the flaws in the plaintiffs' legal
position, the Court must first examine the provisions and
purposes of the two statutes upon which they rely, and of the
tribal code which they disregard.
1953, Congress enacted Public Law 83-280, commonly known as
PL 280, which delegated jurisdiction to a handful of
enumerated states over many criminal and civil matters that
arose on the “Indian country” within those
Each of the States listed in the following table shall have
jurisdiction over civil causes of action between Indians or
to which Indians are parties which arise in the areas of
Indian country listed opposite the name of the State to the
same extent that such State has jurisdiction over other civil
causes of action, and those civil laws of such State that are
of general application to private persons or private property
shall have the same force and effect within such Indian
country as they have elsewhere within the State[.]
28 U.S.C. § 1360(a). Most of the reservations within the
state of Minnesota, including SMSC, are covered by PL 280,
but the Red Lake Band is not. Importantly, although PL 280
gave jurisdiction over some matters to states, it left intact
the inherent tribal jurisdiction over many of these matters
that preceded the statute. Cohen's Handbook of Federal
Inidan Law § 6.04[c], at 555 (Nell Jessup Newton
ed., 2012) (hereinafter “Cohen's
Handbook”) (“The nearly unanimous view among
tribal courts, state courts, lower federal courts, state
attorneys general, the Solicitor's Office for the
Department of the interior, and legal scholars is that Public
Law 280 left the inherent civil and criminal jurisdiction of
Indian nations untouched.”); see also Walker v.
Rushing, 898 F.2d 672, 675 (8th Cir. 1990)
(“Nothing in the wording of Public Law 280 or its
legislative history precludes concurrent tribal
authority.”) (citing Cohen's Handbook of
Federal Indian Law at 344 (1982)). PL 280 thus gave rise
to state authority over some matters in Indian Country, but
did not invalidate tribal sovereignty or tribal court
jurisdiction over most of these arenas.
Child Welfare Act
Indian Child Welfare Act was adopted in 1978 in response to
the extremely high numbers of Indian children removed from
their families and communities through state court child
welfare proceedings. ICWA is codified at 25 U.S.C. §§
1901-1963. In its broadest terms, ICWA “constructs a
statutory scheme to prevent states from improperly removing
Indian children from their parents, extended families and
tribes . . . . It functions to expand and enhance
tribal power over decision-making regarding [Indian]
families.” Cohen's Handbook, §
11.01, at 830. Although ICWA is a lengthy and complex
statute, only a few provisions are relevant here.
section 1911 contains language addressing tribal jurisdiction
over “Indian child custody proceeding[s].” One
provision of this section addresses the “exclusive
jurisdiction” of Indian tribes:
An Indian tribe shall have jurisdiction exclusive as
to any State over any child custody proceeding involving an
Indian child who resides or is domiciled within the
reservation of such tribe, except where such jurisdiction
is otherwise vested in the State by existing Federal
law. Where an Indian child is a ward of a tribal court,
the Indian tribe ...