Wabanaki Legal News
| A publication of Pine Tree Legal Assistance |
Winter 2001
Pine Tree Case Summaries
Table of Contents
Child Custody and Tribal Court Jurisdiction
The following are summaries of some of the cases Pine Tree Native American Unit attorneys have handled over the last six months. You can call attorneys Craig Sanborn or Mike Guare or paralegal Danny Mills at 1-800-879-7463.
Case One: Child Custody and Tribal Court Jurisdiction
The client is a Penobscot tribal member living on the Penobscot Reservation with her child. She asked Craig to help her with a child custody issue. Craig asked the Penobscot Tribal Court to take jurisdiction in order to modify a child custody order entered by the Maine District Court. The other party, the defendant, asked the Tribal Court to dismiss the client's motion.
The defendant argued that the Tribal Court did not have jurisdiction over this case under the terms of the Maine Indian Claims Settlement Act of 1980 because the defendant was not a member of the Penobscot or Passamaquoddy Tribes and because he did not live on the Reservation. The Settlement Act states that the Penobscot Tribal Court has exclusive jurisdiction to hear family law matters between members of the Penobscot or Passamaquoddy Tribes when both parties live on the Reservation, or to the extent allowed by federal law.
Craig argued that the federal Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA) that was recently adopted by the State of Maine had the effect of expanding the Tribal Court's jurisdiction in child custody and other family law -related matters. Under the UCCJEA, if a child lives on the reservation with only one parent for at least six months, then the Tribal Court has jurisdiction to hear a child custody matter. This is true even if the other parent is not a member of either Tribe or does not live on the reservation.
The Tribal Court agreed with Craig's argument about the UCCJEA, and found that it had jurisdiction over this case. The Court also looked at federal Indian case law and found that it had jurisdiction under that law as well. In a 1981 case, Montana v. United States, the Supreme Court of the United States recognized that Indian Tribes kept their inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations when the conduct of the non-Indian threatens the health or welfare of the Tribe.
Relying on the Montana case, the Penobscot Tribal Court decided that it had the power to exercise jurisdiction over child custody matters, even though the Maine State Courts had jurisdiction too. This is called "concurrent jurisdiction."
The Tribal Court dismissed the Defendant's Motion to Dismiss and then took steps to assume jurisdiction in this case.
The client was a young Maliseet mother with one child. The Social Security Administration told her that she had been overpaid by two and one-half thousand dollars and that she now needed to pay that amount back.
After investigating the case, Craig learned that two years earlier Social Security had told the client that she would start to get benefits on behalf of her child because the father had been found to be disabled. The client was separated from the father at the time. In fact, the father later returned to the workplace, in spite of his alleged disability. The client told the workers at Social Security what had happened. Social Security took no immediate action to adjust the client's benefits after she had contacted them.
Craig argued successfully to Social Security that his client had gone out of her way to tell them about her changed circumstances and that she should not be punished for the father's faults. Social Security agreed that the client did not have to repay the overpayment.
The client was a Canadian Native American in Maine to work on the blueberry harvest. While in Maine, he dropped off his car for repairs at a service station with the understanding that he would return in two months to pick the car up. At the time, he left a security deposit to be applied to the agreed price of the repairs. When the client returned to pick up the car, he was told that the car was not ready and that price for the repairs was, in fact, higher than the original price. The client insisted that the original agreement be honored. He told the station owner that he would return later to pick up the car and that he would pay the balance owed under the original agreement. When he returned, he was told that the car was no longer there and that he would not get his deposit back.
Before pressing criminal charges, the client called Craig to help negotiate a civil remedy. Craig was able to negotiate an acceptable payment from the station owner to the client. The client did not give up any of his rights to look for other remedies.
