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South Dakota child custody case focuses on jurisdiction

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SIOUX FALLS, S.D. – The final judgment in a child custody case involving an enrolled member of a South Dakota tribe that has ended up in state Supreme Court could have an impact on sovereignty and jurisdiction.

At stake also is the power held by tribal court decisions, the Indian Child Welfare Act, jurisdiction over tribal members not residing on reservations, and children who are wards of the tribe.

The custody dispute involves the divorced parents of a child who is an enrolled member of the Sisseton-Wahpeton Oyate but does not, nor has ever, resided on trust land or within the boundaries of the reservation.

Barbara Baldwin, a Sisseton-Wahpeton member now in the U.S. Air Force in Grand Forks, N.D., is trying to maintain custody of her daughter, Jacinda, 7. The father, Daniel Carlson, has filed for custody of the child. He is non-Indian.

The tribal court ruled that even though Jacinda lived off the reservation, the tribe and the court had jurisdiction and she became a ward of the court.

A state court upheld that decision.

Baldwin and Carlson were married after she completed boot camp in 1999. The couple’s first daughter, Tehya, was born, and according to Air Force regulations, Baldwin had to sign custody over to the father. That was done in state court.

Tehya died while in Carlson’s care after he left her in a locked and overheated car while he was at work in a nearby Minnesota community. He was not charged criminally because a Minnesota court found he was not intentionally negligent.

Baldwin filed negligence and abuse proceedings against Carlson in tribal court and Jacinda was removed from Carlson’s care. The two were divorced in 2005.

In South Dakota Supreme Court oral hearings, the attorney for Carlson, former South Dakota Gov. William Janklow, said that Baldwin had chosen the wrong route to have custody of her daughter.

He said tribal court had no jurisdiction; that the first custody declaration was in state court and the divorce was also a state court decision.

The tribal court, in ordering custody to Baldwin, cited ICWA and Janklow called that “nonsense.”

He based most of his argument on the fact that the family never resided on trust land and lived the longest in Biloxi, Miss., where Baldwin was stationed.

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Janklow’s argument was that ICWA applied only to children who lived on a reservation. The tribal court, however, determined that the child resided near the reservation and received benefits, such as school supplies and was eligible for health care through the IHS.

Janklow added that the health care issue was federal, not tribal; and that there did not exist a consensual relationship between the tribe and the child, as stated by the tribal court, he called “nonsense.”

“South Dakota lies within the original boundaries of the reservation. The tribal judge said this child lived with the father in Sisseton, where’s the case that holds where a child is domiciled off-reservation with a parent that has no connection in any sensible way with the tribe. South Dakota has a responsibility to look out after its citizens, all citizens,” Janklow said.

Baldwin also asked for child custody payments from Carlson, and Janklow referred to Baldwin’s actions as fraud: not legal, but figurative fraud, he said.

“We can’t all be part of this fraud that’s being perpetrated,” he said.

The Sisseton-Wahpeton Oyate, represented by attorney Andrew Small of Minneapolis, argued that the tribal court and the tribe have jurisdiction over tribal members regardless of where they live.

Dani Dougherty, attorney for Baldwin, said the tribe is sovereign, to which the state agrees. Both attorneys asserted that ICWA does in fact apply in this case.

Janklow argued that because the “ICWA card” was played before the child was made a ward of the court, the act did not apply.

Small said, in response to a court question, that for ICWA to be involved the child did not have to be a ward of the court before taking jurisdiction of the child.

In the 1970s, the U.S. Supreme Court in Dakota determined that the Lake Traverse reservation was dissolved because of the large amount of land that was turned over to settlers in the 1880s. Janklow based his case on the fact that since that court decision, the reservation did not exist and that anyone living off trust land was not subject to the tribe’s jurisdiction.

The tribe asserts through its attorneys that jurisdiction over tribal members does not require the member to live on trust land to be a member or be protected or served under the tribal jurisdiction.

Janklow argued that the tribe was merely a contractor instead of a tribe when it offered services to Baldwin’s daughter. The court asked for clarification that would allow tribal jurisdiction over children living off the reservation – a reservation which, according to Carlson’s counsel, didn’t exist.

Small said the tribal code was specific about jurisdiction over the care and treatment of all tribal children.

The South Dakota Supreme Court has yet to issue a written decision on the case.