Historical Perspective: CILS’ Protection of Tribal Court Sovereignty
By Debra Avenmarg, CILS Eureka Office Staff Attorney
Over the years, CILS has played an important role in defending Tribal Court jurisdiction and sovereignty. One particular case that illustrates the importance of protecting Tribal Court orders from intrusion by state courts is the case of In re M.M. (2007) 154 Cal.App.4th 897.
In re M.M.: Background
In re M.M. involved a tribal child who was a dependent of the Humboldt County Superior Court in a child welfare case. After paternity testing revealed who the biological father was, the Karuk Tribe determined that the child was eligible for enrollment and intervened in the matter. The Karuk Tribe then filed a motion to transfer the case to Karuk Tribal Court. A contested hearing was held on the transfer request, along with various other issues. Ultimately, the Humboldt Superior Court granted the motion and transferred the case to Karuk Tribal Court. Before closing the case, the Humboldt Court set a hearing two weeks out to verify that the Karuk Tribal Court had accepted the case and that the transfer had been completed. At this next hearing, it was verified that the file had been delivered to the Karuk Tribal Court, and the case was accepted by the Tribal Court within six days of ordering the transfer. The Humboldt Superior Court then closed its case.
Under California law, typically, parties have 60 days after the date of an order to file a “Notice of Appeal” to seek appellate court review of a court’s decision that they do not agree with. In the case of In re M.M., the attorney for the child did not agree with the transfer to Tribal Court and filed a “Notice of Appeal” 19 days after the order was made, which was within the usual time frame for appeal.
However, CILS, with the support of father’s counsel, argued that Notice of Appeal was not timely, and the appellate court had no authority to reconsider or undo the transfer of the case to the Karuk Tribal Court. CILS argued that once the transfer to Tribal Court was finalized and the child was made a dependent of the Tribal Court, the state courts, including the court of appeal, no longer had jurisdiction over the minor and no longer had authority to issue any decisions or orders over the minor. The time for any party to request appellate review of the decision to transfer the case and to request a stay of the transfer order, was before the Tribal Court accepted the case and the state court closed the case. Once the transfer was complete, only the Karuk Tribal Court could make decisions or orders regarding the child.
The Court of Appeal agreed with CILS and father’s counsel and concluded it had no power to compel the Tribal Court to return the case to the Humboldt County Superior Court and therefore could not provide the remedy requested by the minor’s counsel. The Court of Appeal agreed that the Humboldt County Superior Court lost jurisdiction over the dependency case when the case was transferred to Tribal Court. As a result, the Court of Appeal dismissed minor counsel’s appeal.
Outcomes and Lessons Learned
The case of In re M.M. cemented the independent sovereignty of Tribal Courts and that state courts have no authority to issue orders directing a Tribal Court to take affirmative actions. In re M.M. provides legal authority that once a transfer from state court to Tribal Court is finalized, the decision to transfer is not appealable because the California Court of Appeal has no power over the Tribal Court to which the case has been transferred. Additionally, as a result of the In re M.M. case, California laws were amended so that courts must now advise the parties that an appeal of any order transferring a case to Tribal Court must be filed before the transfer to tribal jurisdiction is finalized, and failure to request and obtain a stay of the order for transfer will result in a loss of appellate jurisdiction. The case of In re M.M. was a huge win for Tribal Court sovereignty, and it sent a strong message to all California courts to recognize and respect that sovereignty.
CILS continues to successfully advocate on behalf of Tribes to transfer ICWA matters into Tribal Courts and protect Tribal Court sovereignty. For more examples of ways CILS has protected Indian rights, please see “25 Great Reasons to Support CILS” https://www.calindian.org/25-great-reasons-to-support-cils/