(Cite as: 1998 WL 1054223)

Not Reported in F.Supp., 1998 WL 1054223

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United States District Court, D. Kansas.

Hillary Jane GOSLIN, Plaintiff,

v.

KICKAPOO NATION DISTRICT COURT, and KICKAPOO SOCIAL SERVICES, Defendants.

No. 98-4107-SC.

Dec. 2, 1998.

Robert V. Eye , Irigonegaray & Associates, Topeka, for dft represented by Eye.

Hillary Goslin, Topeka, for pla represented by Goslin (Pro Se).

MEMORANDUM AND ORDER

CROW , District Senior J.

*1 The case comes before the court on the defendants' motion to dismiss pursuant to Rules 12(b)(1) and (6) of the Federal Rules of Civil Procedure. (Dk.10). In her complaint, the plaintiff alleges that she is the biological mother of two children and that she voluntarily placed both children “in foster care with the Kickapoo Social Services” in September of 1997. (Dk.1, p. 3). She further alleges that she went to the Kickapoo Nation District Court in January, February and June of 1998 and was unsuccessful in regaining custody of her children who remain in foster care. The plaintiff seeks by this action to have the children returned to her.

The defendants move the court to dismiss this action referring to the doctrine of tribal sovereign immunity and concluding that the court lacks jurisdiction and that no claim has been stated against the agencies of the Kickapoo Tribe. (Dk.11). The plaintiff responds ?FN1 citing what she describes as “Tribal Laws and Juvenile Procedures, adopted by the Kickapoo Tribal Court.” ?FN2 She alleges the defendants have violated the same. The plaintiff concludes that the defendants' refusal to return her children is a denial of “due process of law” in violation of 25 U.S.C. ??1302 ?and that the court has subject matter jurisdiction under “the Indian Child Welfare Act,” 25 U.S.C. ??1901.

FN1. When the plaintiff did not timely respond to this motion, the court issued an order to show cause why the defendant's motion should not be granted as uncontested pursuant to D. Kan. Rule 7.4. (Dk.12). The plaintiff then filed a response to the show cause order.

FN2. Some of these cited tribal procedures parallel provisions found in the Indian Child Welfare Act, 25 U.S.C. ??1901,et seq.

STANDARDS GOVERNING MOTION

Being courts of limited jurisdiction, federal courts may exercise jurisdiction only when specifically authorized to do so. Castaneda v. I.N.S., 23 F.3d 1576, 1580 (10th Cir.1994). Rule 12(b)(1) of the Federal Rules of Civil Procedure authorizes a court to dismiss a claim for lack of subject matter jurisdiction. A court lacking subject matter jurisdiction must dismiss the cause at any stage of the proceeding in which it becomes apparent that jurisdiction is lacking. Laughlin v. Kmart Corp., 50 F.3d 871, 873 (10th Cir.), cert. denied, 516 U.S. 863 (1995). Upon a defendant's Rule 12(b)(1) motion to dismiss, the plaintiff bears the burden of proving jurisdiction. Richmond, Fredericksburg & Potomac R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.1991), cert. denied, 503 U.S. 984 (1992) ; Jensen v. Johnson County Youth Baseball, 838 F.Supp. 1437, 1439-40 (D.Kan.1993). Put another way, the party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. United States v. Bustillos, 31 F.3d 931, 933 (10th Cir.1994) ; Basso v. Utah Power and Light Co., 495 F.2d 906, 909 (10th Cir.1974).

Rule 12(b)(1) attacks on subject matter jurisdiction typically are either facial attacks on the sufficiency of jurisdictional allegations or factual attacks on the accuracy of those allegations. Holt v. United States, 46 F.3d 1000, 1002-3 (10th Cir.1995). A facial attack questions the sufficiency of the allegations in the complaint as they relate to subject-matter jurisdiction. ?Holt v. United States, 46 F.3d at 1002. The defendant's motion primarily mounts a facial attack, as both sides rely only on the plaintiff's complaint. In reviewing a facial attack on the complaint, the court must accept all allegations in the complaint as true. Id.

*2 The defendants also contend that the plaintiff has not alleged a claim on which relief can be granted. Dismissal pursuant to Rule 12(b)(6) is appropriate “only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.” Hishon v. King & Spalding, 467 U.S. 69, 73 (1984) ?(citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)). “The purpose of Rule 12(b)(6) is to allow a defendant to test whether, as a matter of law, the plaintiff is entitled to legal relief even if everything alleged in the complaint is true.” Mayer v. Mylod, 988 F.2d 635, 638 (6th Cir.1993).

A court judges the sufficiency of the complaint accepting as true the well-pleaded factual allegations and drawing all reasonable inferences in favor of the plaintiff. Shaw v. Valdez, 819 F.2d 965, 968 (10th Cir.1987). The court construes the allegations in the light most favorable to the plaintiff. ?Scheuer v. Rhodes, 416 U.S. 232, 236 (1974) ; Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir.1991). These deferential rules, however, do not allow the court to assume that a plaintiff “can prove facts that it has not alleged or that the defendants have violated the ... laws in ways that have not been alleged.” Associated General Contractors v. California State Council of Carpenters, 459 U.S. 519, 526 (1983) (footnote omitted). Dismissal is a harsh remedy to be used cautiously so as to promote the liberal rules of pleading while protecting the interests of justice. Cayman Exploration Corp. v. United Gas Pipe Line, 873 F.2d 1357, 1359 (10th Cir.1989).

Because the plaintiff appears pro se, the court must remain mindful of additional considerations. A pro se litigant's pleadings are construed liberally and judged against a less stringent standard than pleadings drawn by attorneys. Hall v. Bellmon, 935 F.2d at 1110. Thus, if the pro se plaintiff's complaint reasonably can be read “to state a valid claim on which the plaintiff could prevail, it [the court] should do so despite the plaintiff's failure to cite proper legal authority, his confusion of various legal theories, his poor syntax and sentence construction, or his unfamiliarity with pleading requirements.” Id. However, “it is not the proper function of the district court to assume the role of advocate for the pro se litigant.” ?Id. For that reason, the court is not to “construct arguments or theories for the plaintiff in the absence of any discussion of those issues.” Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991) (citation omitted). Nor is the court to “supply additional factual allegations to round out a plaintiff's complaint.” Whitney v. State of New Mexico, 113 F.3d 1170, 1173-74 (10th Cir.1997).

ARGUMENTS AND ANALYSIS

The plaintiff asserts jurisdiction under both the Indian Civil Rights Act, 25 U.S.C. ???1302 ?and 1303 , and the Indian Child Welfare Act, 25 U.S.C. ??1901,et seq. The plaintiff essentially alleges that the defendants in violation of her constitutional rights and her rights under tribal law have wrongfully retained her children in foster care and have wrongfully refused to return custody of the children to her. Under existing case law, the plaintiff's allegations do not sustain a cognizable federal cause of action over which this court would have jurisdiction.

*3 In Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58 (1978), the Supreme Court summarized that “Indian tribes have long been recognized as possessing the common-law immunity from suit traditionally enjoyed by sovereign powers. (citations omitted). This aspect of tribal sovereignty, like all others, is subject to the superior and plenary control of Congress.” “In 1968, Congress passed what is perhaps the most significant limitation on tribal sovereignty: Title I of the Indian Civil Rights Act of 1968,” (“ICRA”), 25 U.S.C. ???1301 -1303. Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d 874, 881 (2d Cir.), cert. denied, 117 S.Ct. 610 (1996). The Supreme Court, however, has held that: “Nothing on the face of Title I of the ICRA purports to subject tribes to the jurisdiction of the federal courts in civil actions for injunctive or declaratory relief.” Santa Clara Pueblo, 436 U.S. at 59. Though it lists a number of substantive individual rights that necessarily restrict the power of tribal governments, Title I does not establish or imply a federal civil cause of action to remedy violations. See Santa Clara Pueblo, 436 U.S. at 72, ?Poodry v. Tonawanda Band of Seneca Indians, 85 F.3d at 884. ?“The only remedial provision expressly supplied in the ICRA is a provision allowing a habeas corpus action brought by ‘any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.” ’ Ute Distribution Corp. v. Ute Indian Tribe, 149 F.3d 1260, 1264 (10th Cir.1998) ?(quoting 25 U.S .C. ??1303). Section 1303 was not “intended to have broader reach than cognate statutory provisions governing collateral review of state and federal action.” Poodry, 85 F.3d at 879.

Federal courts do not have jurisdiction under 28 U.S.C. ??2254 to consider collateral challenges to state child-custody decisions. Lehman v. Lycoming County Children's Servs. Agency, 458 U.S. 502, 512 (1982) ; Roman-Nose v. New Mexico Dept. of Human Services, 967 F.2d 435, 436 (10th Cir.1992). To preserve the principles of federalism, federal courts lack ??2254 jurisdiction on challenges to state court orders affecting parental rights and child custody matters. See Lehman, 458 U.S. at 516; ?MacNeil v. Woodford, 132 F.3d 43, 1997 WL 780418, at *1 (10th Cir. Dec. 19, 1997). Looking to this developed law under ??2254, courts have held “that federal habeas relief is not available under 25 U.S.C. ??1303 to test the validity of a child custody decree of an Indian tribal court.” Poodry, 85 F.3d at 892 ?(citing Weatherwax on Behalf of Carlson v. Fairbanks, 619 F.Supp. 294, 296 (D.Mont.1985); see Sandman v. Dakota, 816 F.Supp. 448, 451 (W.D.Mich.1992), aff'd mem., 7 F.3d 234 (6th Cir.1993)); see, e.g., Shelifoe v.. Dakota, 966 F.2d 1454, 1992 WL 133065, at *1 (6th Cir. June 16, 1992) (Table); cf. DeMent v. Oglala Sioux Tribal Court, 874 F.2d 510, 515-16 (8th Cir.1989) (court may hear habeas petition upon a challenge to a tribal court illegally taking custody of children and exceeding its jurisdiction). Like in Lehman, the plaintiff's challenge here is nothing more than a collateral attack on the tribal court's custody decision. Because the plaintiff voluntarily placed her children in the defendant's foster care program, there is no legal issue here over the lawfulness of the tribal court determining custody of the children or over the propriety of the tribal court exercising jurisdiction here. As revealed in the plaintiff's response, the issues deal only with whether the tribal court's rulings have violated certain tribal laws and her rights as protected under those laws. For all these reasons, the court finds that a petition for habeas corpus under 25 U.S.C. ??1303 is not a proper vehicle for the plaintiff's challenges here.

*4 The Indian Child Welfare Act (“ICWA”), 25 U.S.C. ??1901 et seq., provides in relevant part “that any parent ... from whose custody [an Indian] child was removed, ... may petition any court of competent jurisdiction to invalidate such action upon a showing that such action violated any provision of sections 1911, 1912, and 1913 of this title.” 25 U.S.C. ??1914. Section 1911 specifically provides:

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 shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child.

25 U.S.C. ??1911(a). Based on what the plaintiff alleges in her complaint, it appears that the tribal court has exclusive jurisdiction to determine the custody of the plaintiff's children. Under circumstances like these, federal courts have not exercised jurisdiction under the ICWA. See, e.g., Sandman v. Dakota, 816 F.Supp. 448, 451 (W.D.Mich.1992), aff'd, 7 F.3d 234, 1993 WL 384984, at *1 (6th Cir. Sept. 29, 1993) ?(Table); Shelifoe v. Dakota, 966 F.2d 1454, 1992 WL 133065, at *1 (6th Cir. June 16, 1992) ?(Table); LaBeau v. Dakota, 815 F.Supp. 1074, 1076 (W.D.Mich.1993). From what has been alleged, the court can find no cognizable claim under the ICWA. See Moore v. Muscogee Nation, 95 F.3d 1161, 1996 WL 472489, at *1 (10th Cir. Aug. 21, 1996) (Table). Nor is there any basis for believing that the plaintiff, if given the chance to amend her complaint, could state a claim over which this court would have jurisdiction. For these reasons, the court grants the defendants' motion to dismiss.

IT IS THEREFORE ORDERED that the defendants' motion to dismiss (Dk.10) is granted.

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