--- Am. Tribal Law ----, 2019 WL 5785102 (Eastern Cherokee Ct.)
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Cherokee Court of the Eastern Band of Cherokee Indians.
IN RE: H.B., Juvenile Female.
FILE NOs. 19-CVJ-047; 17-CVJ-048
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Signed October 23, 2019
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FILED 10/24/2019
MEMORANDUM OF DECISION AND ORDER TO SHOW CAUSE
Thomas Cochran, Chief Judge
BACKGROUND
File Number 19-CVJ-047.
On or around October 11, 2019, the FSP received a report of maltreatment concerning the Minor that required investigation pursuant to C.C. § 7B-302. At that time, the Minor resided with the RM and RM’s live-in boyfriend, Marshall Byers. The three resided at alternate locations on Tribal Trust Lands: either 185 Kallup McCoy Road in Cherokee, NC, an address provided to the Minor’s school by the RM, or at 87 Nellie Jumper Road in Cherokee, NC, an address provided by the RM to the Cherokee Hospital. The Minor was then attending East Elementary School where she was a kindergartener. Following an initial investigation conducted by the FSP, the RM entered into a safety plan with the FSP in which she agreed that she would not use physical discipline on the Minor, she would cooperate with the FSP by allowing in the Minor to participate in a Forensic Interview and Child Medical Examination, and she would permit drug screens.In accordance with the safety plan, the FSP scheduled a Forensic Interview and Child Medical Examination. On October 16, 2019, an investigator with the FSP attempted to locate the RM and Minor to complete these components of the safety plan but neither the Minor nor the RM could be found. Further, the Minor was absent from her school on October 16, 2019. Later in the day on October 16, 2019, the FSP investigator received a telephone call from attorney Brad Ferguson who stated that the RM had retained him as counsel and that the RM had directed him to notify the FSP that she was rescinding her consent for the Minor to participate in a Forensic Interview and Child Medical Examination.
On October 17, 2019, Ms. Mann (and other FSP members) spoke with Mr. Ferguson requesting that he seek his client’s permission for the minor to undergo a Forensic Interview and Child Medical Examination. Mr. Ferguson was also advised that if his client did not voluntarily submit the Minor for the same, the FSP would seek a court order directing his client to cease interfering with the FSP’s investigation. After consulting with his client, Mr. Ferguson informed the FSP that his client would not consent to a Forensic Interview and Child Medical Examination. The FSP thereafter prepared a Petition alleging the RM’s obstruction of, or interference with, the FSP’s maltreatment investigation of the Minor. At 6:04 p.m. on October 17, 2019, the undersigned entered an Ex Parte Order directing, inter alia, that “the respondent mother, Brittany Blevins shall cease interfering with the investigation and specifically respondent mother shall allow the [FSP] to arrange for an evaluation of the child by a Forensic Interviewer and a Child Medical Examiner.” The FSP’s Petition, the Court’s Ex Parte Order, and the Clerk’s Summons and Notice of Hearing were all served upon the RM personally at her 87 Nellie Jumper address in Cherokee, NC, by the Cherokee Indian Police Department on October 18, 2019. Following the service of these documents upon RM, the FSP asked the RM to produce the Minor as so ordered. The RM refused to produce the Minor to the FSP.
File Number 19-CVJ-048.
The FSP filed a Child Maltreatment Petition on October 18, 2019, naming Brittany Blevins as Respondent Mother and H.B, born August 28, 2014, as the Minor. Thereafter, Ms. Mann provided a copy of the Maltreatment Petition to Mr. Ferguson. A conference call was then commenced among the undersigned, Mr. Ferguson, and Ms. Mann. At the beginning of the call, the Court inquired of Mr. Ferguson why his client did not comply with the Court’s non-interference Order, to which he responded that his client did not fully comprehend all the paperwork that was served upon her by the CIPD. The undersigned then stated he had reviewed the Maltreatment Petition, found it legally sufficient, and would enter an Order granting the FSP protective custody of the Minor. The Court then asked Mr. Ferguson whether he wished to be listed as counsel for the RM on the Notice of Hearing to which he responded in the negative as he stated his representation of the RM would end upon the completion of the telephone conference call. The Tribal Legal Services office and its telephone number were then listed on the Notice of Hearing as the RM’s lawyer and a hearing date of October 23, 2019, at 9:30 a.m., were set forth on the Notice as well.At approximately 5:30 a.m. on October 23, 2019, the RM was personally served at her place of employment by the Swain County Sheriff’s Department with a copy of the FSP’s Maltreatment Petition, the Court’s Protective Custody Order, and the Clerk’s Summons and Notice of Hearing. The RM failed to appear for her hearing at 9:30 a.m. on October 23, 2019.
These matters next came on for hearing before the undersigned at the request of the FSP at approximately 3:40 p.m. on October 23, 2019. Ms. LePre, on behalf of the RM, made an oral motion to continue the hearing until Friday, October 25, 2019, which the Court denied. Ms. Mann and Mr. Phillips then requested the Court take some action to enforce its Orders. After hearing from all counsel, the Court announced that it would issue a show cause Order to the RM notifying her to appear and explain why she should not be held in civil contempt for failing to comply with the Court’s Orders.
DISCUSSION
I. Jurisdiction.
Though no party raised the issue of this Court’s subject matter jurisdiction, given the non-enrolled status of both the Minor and of the RM, the Court will nevertheless address the proverbial Elephant in the Room. Subject matter jurisdiction – this Court’s power to adjudicate cases – can never be forfeited or waived. United States v. Cotton, 535 U.S. 625, 630, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); Anderson v. Atkinson, 235 N.C. 300, 301, 69 S.E.2d 603, 604 (1952) (a defect in jurisdiction over the subject matter cannot be cured by waiver, consent, amendment, or otherwise). Consequently, any alleged defect in subject matter jurisdiction requires immediate attention regardless of when or by whom the issue is raised. Cotton, 535 U.S. at 630, 122 S.Ct. 1781; United States v. Hartwell, 448 F.3d 707, 715 (4th Cir. 2006) (any action by a court without subject matter jurisdiction is ultra vires and therefore void). The Court, therefore, will summarize its basis to exercise subject matter jurisdiction in this case.The power of any legitimate sovereign nation to act is necessarily derived from the consent of the governed. Accordingly, one of the most important, if not the most important responsibilities of government is the protection of its citizenry and all those living within the confines of its homeland. The Tribe has a vested interest in protecting all children living on its trust or fee lands regardless of the status of any such child. Thus, the sovereign power and responsibilities of this Tribe are no different from any other government, and this is especially true herein since the RM and Minor were both residents of, and the salient facts giving rise to this action occurred on, Tribal Trust Lands.1 C.C. § 7B-200(a) (“The Cherokee Court has exclusive, original jurisdiction over any case involving a child who resides on the EBCI trust lands and is alleged to be maltreated or over cases where the alleged maltreatment occurred on the EBCI trust lands.”). Even though the two jurisdictional elements of C.C. § 7B-200(a) are stated in the disjunctive, both are met in this matter. Nevertheless, this Court’s jurisdiction must also be examined through the lens of federal legislation and U.S. Supreme Court precedent.
While Congress has plenary authority over Tribes under the Indian Commerce Clause of the U.S. Constitution, “[u]nless and until Congress acts, the tribes retain their historic sovereign authority.” Michigan v. Bay Mills Indian Cmty., 572 U.S. 782, 134 S. Ct. 2024, 2030, 188 L.Ed.2d 1071 (2014) (internal quotations omitted). That authority derives not from any grant by Congress, but from Tribes’ status as sovereigns predating the U.S. Constitution. In other words, federal permission is not deemed necessary for tribal governments to act. Rather, apart from any federally restricted powers, tribal governments are presumed to have all remaining powers to act because such authority originates from their pre-Constitutional status as sovereign nations, any untouched powers never having been extinguished.
As it pertains to a Tribe’s inherent civil jurisdiction,2 the situs of the claim and the status of the litigants play important roles. In Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981), the regulatory issue before the U.S. Supreme Court was a narrow one. “The Court of Appeals held that the Tribe may prohibit nonmembers from hunting or fishing on land belonging to the Tribe or held by the United States in trust for the Tribe ... and with this holding we can readily agree.” Id. at 557, 101 S.Ct. 1245. The clear implication of this holding being that Tribes possess the inherent authority to enact legislation regulating civil activities on Tribal Trust Land or land held by a Tribe in fee inside of their reservations without regard to the status of the individual affected. The Court went on to note that the jurisdictional calculus changes – the enrollment status of the litigant or real party in interest moves from being no factor to a significant factor – when the location of the claim occurs off of Tribal Trust or fee lands but on the fee lands owned by nonmembers contained within a Tribe’s federally-set boundaries.
We also agree with the Court of Appeals that if the Tribe permits nonmembers to fish or hunt on [tribal trust or fee] lands, it may condition their entry by charging a fee or establishing bag and creel limits. Ibid. What remains is the question of the power of the Tribe to regulate non-Indian fishing and hunting on reservation land owned in fee by nonmembers of the Tribe.
Id. (emphasis added).
In this case, the Court need not consider the question of what Tribal power remains to regulate the activities of non-Indians on non-tribal trust or fee land within the Qualla Boundary3 because the pertinent activities in the present matter allegedly perpetrated on the Minor by the RM and her boyfriend occurred on EBCI Tribal Trust Lands. At all times relevant to the Petitions and as alleged therein, the Minor, RM, and Mr. Byers lived on Tribal Trust Lands in Cherokee, NC. The physical injuries alleged in the Petitions and visited upon the Minor by the RM and Mr. Byers occurred in their homes on Tribal Trust Lands in Cherokee, NC. The allegations in the Petitions attributed to the Minor, that she witnessed Mr. Byers put “white powder up his nose,” as well as Mr. Byers’ own admission that he smoked marijuana, all occurred in their homes on Tribal Trust Lands in Cherokee, NC. Because these maltreatment allegations4 all have their origin on Tribal Trust Lands and this Tribe possesses the inherent authority to regulate child abuse and neglect claims involving all persons on its sovereign land, this Court possesses the jurisdiction to adjudicate these civil claims.
II. Contempt Power.
“There can be no question that courts have inherent power to enforce compliance with their lawful orders through civil contempt.” Shillitani v. United States, 384 U.S. 364, 370, 86 S.Ct. 1531, 16 L.Ed.2d 622 (1966). Further, where contempt consists of a refusal to obey a court order to testify at any stage in a judicial proceeding, the witness may be confined until compliance. Id.; see also C.C. § 1-27(b) (a person who is found in civil contempt may be imprisoned as long as his civil contempt continues). As the U.S. Supreme Court explained in Shillitani, “[t]he conditional nature of the imprisonment — based entirely upon the contemnor’s continued defiance — justifies holding civil contempt proceedings absent the safeguards of indictment and jury, provided that the usual due process requirements are met.” Id. at 370-371, 86 S.Ct. 1531 (internal citations omitted).The Code notifies5 any custodian of a minor that s/he may face a contempt proceeding for violating a non-interference order issued under Chapter 7B. See C.C. § 7B-303(f) (an order entered pursuant to this section is enforceable by civil or criminal contempt). See also, C.C. § 1-27(a) (failure to comply with an order of a court is a continuing civil contempt as long as the order remains in force, the purpose of the order may still be served by compliance with the order, and the person to whom the order is directed is able to comply with the order or is able to take reasonable measures that would enable him to comply with the order). The procedure to be followed in a civil contempt proceeding is also set forth in the Code to comport with due process6 requirements:
(a) Proceedings for civil contempt are either by the order of a judicial official directing the alleged contemptnor to appear at a specified reasonable time and show cause why he should not be held in civil contempt or by the notice of a judicial official that the alleged contemptnor will be held in contempt unless he appears at a specified reasonable time and shows cause why he should not be held in contempt. The order or notice must be given at least five days in advance of the hearing unless good cause is shown. The order or notice may be issued on the motion and sworn statement or affidavit of one with an interest in enforcing the order, including a judge, and a finding by the judicial official of probable cause to believe there is civil contempt.
(b) The person ordered to show cause may move to dismiss the order.
(c) The judicial official is the trier of facts at the show cause hearing.
(d) At the conclusion of the hearing, the judicial official must enter a finding for or against the alleged contemptnor. If civil contempt is found, the judicial official must enter an order finding the facts constituting contempt and specifying the action which the contemptnor must take to purge himself of the contempt.
(e) A person with an interest in enforcing the order may present the case for a finding of civil contempt for failure to comply with an order.
(f) A judge conducting a hearing to determine if a person is in civil contempt may at the hearing, upon making the required findings, find the person in criminal contempt for the same conduct, regardless of whether imprisonment for civil contempt is proper in the case.
C.C. § 1-29.
In these matters, both Petitions, both Court Orders, and both Notices of Hearing were personally served upon the RM by law enforcement officers. Further, the RM had the assistance of retained counsel prior to as well as after service of the first Petition. Finally, the Notices of Hearing each listed the Tribal Legal Assistance office as appointed counsel for the RM providing her with the telephone number to call to speak with Ms. LePre, as well as the next court date/time of October 23, 2019, at 9:30 a.m.
At the 3:40 p.m. hearing held on October 23, 2019, Ms. Mann and Mr. Phillips requested the Court seek to enforce its Orders. The Court construed this request as a motion for civil contempt made by “one with an interest in enforcing the order[s],” C.C. § 1-29(a), to notify “the alleged contemptnor [that she] will be held in contempt” if she fails to appear and provide just cause for her disobedience.7 Id. The Court will grant that motion.
WHEREFORE, based upon the foregoing, the Court concludes as a matter of law that it possesses the jurisdiction to adjudicate these civil claims and that probable cause exists to believe the RM purposefully, intentionally, and without just cause has disobeyed the Court’s non-interference and protective custody Orders. C.C. § 1-29(a).
ORDER
NOW, THEREFORE, IT IS HEREBY ORDERED.1. Ms. LePre, as counsel for the RM, is directed to notify the RM that she “will be held in contempt unless [s]he appears at a specified reasonable time and shows cause why [s]he should not be held in contempt.” C.C. § 1-29(a). Ms. LePre shall notify the RM that she must appear on October 24, 2019, at 9:30 a.m., to show cause why she should not be held in contempt and imprisoned.
2. Even though the Code directs that notice be given at least five days in advance of the hearing, the Court finds good cause – specifically, the health, safety, and wellbeing of the Minor is at stake – to truncate the prescribed period to that as set forth herein. Id.
3. The Clerk is hereby directed to forward a copy of this Order to counsel for all parties in this matter, including the RM’s former retained attorney Mr. Ferguson, and the Attorney General’s Office.
SO ORDERED this 23rd day of October, 2019.
All Citations
--- Am. Tribal Law ----, 2019 WL 5785102
Footnotes |
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The crucial nexus between tribal homeland and tribal sovereignty is a centuries-old recognition. Shortly after the founding of the United States, and despite the recognized Tribes’ then inability to convey land to whomever they please or engage in political relations with nations outside the United States, Johnson v. M’Intosh, 21 U.S. (8 Wheat.) 543, 5 L.Ed. 681 (1823), Tribes otherwise maintain, in the words of then Secretary of State Thomas Jefferson, “full, undivided and independent sovereignty,” centered on their inherent right to govern their own land. “Notes on Cabinet Opinions, 26 February 1793,” 25 Papers of Thomas Jefferson 271, 272 (Catanzariti ed., 1992). |
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Through federal legislation, a Tribe’s civil jurisdiction may be restored and augmented. The best example of this is the Indian Child Welfare Act, 25 U.S.C. § 1901 et seq. |
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For the curious reader, the U.S. Supreme Court did answer the question of what Tribal authority remains to regulate non-Indian activity on non-Tribal trust or fee lands within a reservation by identifying two broad categories of jurisdiction. First, a tribe may regulate, through taxation, licensing, or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealing, contracts, leases, or other arrangements. Montana, 450 U.S. at 565, 101 S.Ct. 1245. Second, tribes also retain inherent power to exercise civil authority over the conduct of non-Indians on non-tribal trust or fee lands within their reservations when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the Tribe. Id. at 566, 101 S.Ct. 1245. |
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Apart from the maltreatment allegations occurring on Tribal Trust Lands, the Petitioner alleges the RM also availed herself of the services offered by the Cherokee Indian Hospital, located on Tribal Trust Lands, prior to the Petitions being filed. Further, according to the Petitioner, the RM had enrolled the Minor in a North Carolina elementary school located between her homes on Tribal Trust Lands and her place of employment in Bryson City, North Carolina. These verified allegations support a strong inference that the RM was making her home with the Minor on Tribal Trust Lands and was not some transient visitor. |
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As explained above, the U.S. Supreme Court has held that all courts possess inherent contempt authority to enforce compliance with their orders and thus no legislative authorization is necessary. Shillitani, 384 U.S. at 370, 86 S.Ct. 1531. Accordingly, any lawful order of this Court, ignored by its recipient, would permit the convening of a contempt proceeding. By specifically listing C.C. § 7B-303(f) as a provision, that if violated, could lead its offender to punishment as for contempt, Tribal Council has provided greater notice to such persons that hindering or impeding an FSP investigation simply will not be tolerated. |
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Congress necessarily understood that Tribes would exercise jurisdiction over nonmembers when it made the due process provisions in the Indian Civil Rights Act applicable to “to any person within its jurisdiction[.]” 25 U.S.C. § 1302(a)(8) (emphasis added). Although an early version of ICRA extended its guarantees only to “American Indians,’’ the legislation was modified to extend its protections to “all persons who may be subject to the jurisdiction of tribal governments, whether Indians or non-Indians.” Summary Report on Constitutional Rights of the American Indian: Hearings and Investigations Before the Subcomm. on Constitutional Rights of the S. Comm. on the Judiciary, 89th Cong. 10 (1966). |
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The Court notes that the Code states the “notice may be issued on the motion and sworn statement or affidavit of one with an interest in enforcing the order[.]” C.C. § 1-29(a). Because any sworn statement or affidavit and accompanying motion is permissive (i.e., “may be issued on”), the Court finds the same unnecessary under the circumstances presented herein. In any event, Ms. Mann and Mr. Phillips’ requests were more than adequately covered by C.C. § 1-29(e) (“A person with an interest in enforcing the order may present the case for a finding of civil contempt for failure to comply with an order.’’). |
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