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Celestine and Bahwashung v. Adam Altman

December 28, 2011

CELESTINE AND BAHWASHUNG MERRILL,
PLAINTIFFS AND APPELLANTS,
v.
ADAM ALTMAN,
DEFENDANT AND APPELLEE.



APPEAL FROM THE CIRCUIT COURT OF THE FIFTH JUDICIAL CIRCUIT BROWN COUNTY, SOUTH DAKOTA THE HONORABLE EUGENE E. DOBBERPUHL Retired Circuit Judge

The opinion of the court was delivered by: Gilbertson, Chief Justice

#25950-a-DG

ARGUED NOVEMBER 15, 2011

[¶1.] Maternal grandparents petitioned for permanent guardianship of a minor Indian child in Tribal Court. After receiving the guardianship, they sought to have it recognized in a South Dakota Circuit Court which had been exercising jurisdiction over the child and his deceased mother since 2007. The child's biological father challenged the jurisdiction of the Tribal Court. The Circuit Court concluded that the Tribal Court did not have jurisdiction. Consequently, the Circuit Court denied the grandparents' motion to recognize the Tribal Court order. Grandparents appeal. We affirm.

FACTS

[¶2.] E.M.A. was born to Natasha Merrill and Adam Altman in December

2001. Natasha and Adam separated in 2004. In 2007 a state court action was commenced to determine custody of E.M.A. Natasha and Adam shared legal custody of E.M.A., though Natasha had primary physical custody. The record does not indicate whether the original award of custody by the Circuit Court was by a stipulation confirmed by a court decree or by decree after a contested trial.

[¶3.] E.M.A. is an enrolled member of the Sisseton-Wahpeton Oyate Tribe, as was Natasha. Merrills concede that Adam is not Native American. On November 16, 2007, the Circuit Court entered a custody order that restricted Natasha from relocating her residency with E.M.A. to certain areas outside of South Dakota without the Circuit Court's consent.*fn1 A December 2008 Circuit Court order required Natasha to follow relocation statutes as set forth in SDCL 25-4A-17 to - 19.*fn2 In August 2009, Natasha unsuccessfully requested that the Circuit Court allow relocation of E.M.A. and herself to the Mille Lacs Band of Ojibwe Reservation (Mille Lacs Reservation) in Minne sota.

[¶4.] On April 6, 2010, Natasha died in a car accident. Adam was not immediately informed of Natasha's death. At the time of the accident, E.M.A. was with Natasha's parents, Celestine and Bahwashung Merrill, who lived on the Mille Lacs Reservation. Bahwashung is an enrolled member of the Mille Lacs Band of Ojibwe Indian Tribe and Celestine is an enrolled member of the Sisseton-Wahpeton Oyate Tribe.

[¶5.] The Merrills petitioned the Mille Lacs Band of Ojibwe Tribal Court

(Tribal Court) for guardianship of E.M.A. on April 12, 2010. This petition, which was the first time Adam heard of Natasha's death, was faxed to Adam's business office at 11:30 a.m. on April 12, 2010. The Notice of Hearing informed Adam the hearing was set for 4:00 p.m. that same day. Adam made a telephonic special appearance to challenge the jurisdiction of the Tribal Court. On April 14, 2010, the Tribal Court granted temporary custody of E.M.A. to the Merrills.

[¶6.] The Merrills also contacted Natasha's South Dakota attorney, who scheduled an emergency hearing in South Dakota Circuit Court to address the issue of guardianship. On April 14, 2010, the Circuit Court held an emergency hearing. The Court indicated that the grandparents could petition to intervene in the custody action between Natasha and Adam. E.M.A. was returned to Adam on April 14.

[¶7.] On April 26, 2010, both the Tribal Court and Circuit Court issued orders. The Tribal Court order directed Adam to return E.M.A. to the Merrills, consistent with the Tribal Court's earlier order. The Tribal Court further ordered that the Merrills have temporary guardianship over E.M.A. until the end of the school year, when E.M.A. would be returned to Adam pending further legal action. As a result of the emergency hearing, the Circuit Court, apparently relying on Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060, 147 L. Ed. 2d 49 (2000), ordered that Adam was entitled to custody of E.M.A. "subject to further Order of the Court in this matter."

[ΒΆ8.] On May 11, 2010, the Tribal Court found Adam in contempt of court for removing E.M.A. from the reservation on April 14 in violation of the Tribal Court's order. The Tribal Court also found that Adam had refused to abide ...


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