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Navajo Supreme Court Upholds Family Court’s Jurisdiction over Non-resident Navajo Children March 21, 2008

Posted by rezjudicata in Navajo Supreme Court, Tribal Courts.
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Miles v. Chinle Family Court, No. SC-CV-04-08 (Nav. Sup. Ct. Feb. 21, 2008)

Issue(s): Jurisdiction > Subject Matter Jurisdiction >> Custody >>> Non-resident Members; Navajo Law > Due Process >> Notice Requirements

After his relationship with the Mother failed, Miles took their daughter and left the Navajo Nation. Sometime later, the Family Court granted the Mother’s motions for immediate custody and writ of habeas corpus. The Mother, however, never successfully served Miles. While the daughter is a member of the Nation, Miles is not. Did the Family Court have jurisdiction over the Mother’s motions? If so, the court violate Miles’s due process rights by issuing the custody orders without notice to Miles?

Yes and no said the Navajo Supreme Court. The Supreme Court upheld jurisdiction, but not through the Family Court’s reasoning. The Family Court justified its jurisdiction by invoking the Parental Kidnapping Prevention Act (PKPA) and the Uniform Child Custody Jurisdiction and Enforcement Act (UCCJEA). The Supreme Court, however, stated that these acts do not apply to the Navajo Nation. First, tribes are not “States” within the meaning of the PKPA. And second, the UCCJEA is binding only when the jurisdiction adopts its provisions, which the Nation has not done.

The Court found a separate basis for jurisdiction in the Navajo Children’s Code. The Code grants the Family Court jurisdiction over “custody matters involving Navajo children wherever they may arise.” The daughter’s status as a Navajo-and not her physical location-confirmed the Family Court’s jurisdiction.

Miles also argued that the Family Court violated his due process rights. Miles received no notice of the Family Court proceedings until Texas lawmen enforced the court orders and took his daughter back to the Nation. Under the Navajo Bill of Rights, courts must give notice of pending actions to all parties. Here, the Family Court issued two orders. The first was an ex parte motion for immediate custody and the second was a writ of habeas corpus.

Though “only in the direst of circumstances…should a family court remove a child” without notice, the Court found no due process violation. The Court called the ex parte order problematic because it was, in essence, a request to remove the child without notice to Miles. Before the latter order, however, the Mother told the Family Court that she had tried and failed several times to serve Miles. Miles’s transient living arrangements made service of process extremely difficult. Under these circumstances, the writ did not violate Miles’s due process rights. Therefore, even if the Court overturned the ex parte motion, the Family Court’s actions could stand on the writ.

Stacy Leeds at Tsalagi Think Tank has some insightful commentary on this case.

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