Kimberly Watso, individually and on behalf of C.H. and C.P., her minor children; Kaleen Dietrich Plaintiffs - Appellants
Tony Lourey, in his official capacity as Commissioner of the Department of Human Services; Scott County; Judge John E. Jacobson, in his official capacity; Tribal Court of the Red Lake Band of Chippewa Indians; Judge Mary Ringhand, in her official capacity; Tribal Court of the Shakopee Mdewakanton Sioux (Dakota) Community Defendants - Appellees
Submitted: March 12, 2019
from United States District Court for the District of
Minnesota - Minneapolis
GRUENDER, BENTON, and GRASZ, Circuit Judges.
BENTON, CIRCUIT JUDGE
Watso, individually and for her minor children C.P. and C.H.,
and her mother Kaleen Dietrich sued the Department of Human
Services Commissioner, Scott County, two tribal courts, and
related tribal judges. They contested the tribal court's
jurisdiction over C.P. and C.H.'s child custody
proceedings. The district court dismissed the complaint. Having
jurisdiction under 28 U.S.C. § 1291, this court affirms.
Watso nor Dietrich are Indian. Watso's children are both
Indian. C.P. is a member of the Red Lake Band of Chippewa
Indians through his father Donald Perkins. C.H. is a member
of the Shakopee Mdewakanton Sioux (Dakota) Community (SMSC)
through his father Isaac Hall.
January 2015, the SMSC Family and Children Services
Department filed an emergency ex parte petition in SMSC Court
alleging C.P. and C.H. were children in need of assistance
and seeking to transfer custody to the SMSC's Child
Welfare Office. This petition initiated child protection
proceedings in SMSC Court. At a hearing the following week,
Watso disputed the SMSC Court's jurisdiction. The next
month, Watso and Hall brought C.H. to a medical clinic. The
clinic reported possible child abuse and neglect. A county
Police Department issued a Notice of a 72-Hour Police Health
and Safety Hold and notified the parents that C.P. and C.H.
would be held at Children's Hospital in St. Paul.
Indian Child Welfare Manual (the Manual) of the Minnesota
Department of Human Services instructs local social service
agencies to refer proceedings involving the welfare of
tribal-member children to "the tribal social service
agency for appropriate proceedings in tribal court."
Consistent with these instructions, Scott County officials
contacted the SMSC Family and Children Services Department.
The Department filed a second ex parte motion in SMSC Court,
seeking to transfer legal and physical custody of C.H. and
C.P. Watso was notified. She objected to the SMSC Court's
jurisdiction. The SMSC Court overruled her objection and
transferred temporary legal and physical custody of C.P. and
C.H. to SMSC Family and Children Services Development.
January 2017, the Red Lake Band moved to dismiss the
proceedings regarding C.P. The SMSC Court granted the motion,
allowing the Red Lake Band jurisdiction over C.P. The Red
Lake Band Court appointed Dietrich as C.P.'s guardian. As
C.H.'s guardian, the SMSC Court appointed a paternal
great-aunt and tribal member.
(individually and for C.P. and C.H.) and Dietrich sued
Department of Human Services Commissioner Emily Piper, Scott
County, SMSC, the SMSC Court, SMSC Judge John E. Jacobson,
the Red Lake Band, the Red Lake Band Court, and Red Lake Band
Judge Mary Ringhand. They allege that the transfer of custody
violated the Indian Child Welfare Act of 1978 (ICWA) and
their federal constitutional rights. The district court
dismissed the complaint. This court reviews a grant of a
motion to dismiss de novo, accepting as true all factual
allegations in the complaint, and drawing all reasonable
inferences in the nonmovant's favor. See Topchian v.
JPMorgan Chase Bank, N.A., 760 F.3d 843, 848 (8th Cir.
to Watso and Dietrich, part of the Manual is preempted by the
ICWA. They allege the Manual unlawfully instructed Scott
County to refer C.P. and C.H.'s child custody proceedings
to a tribal court because the referral conflicts with the
ICWA, which vests jurisdiction first with the states. This
argument fails because the ICWA does not vest jurisdiction
first with the states.
and Dietrich invoke the ICWA provision about the process for
state courts to transfer child custody proceedings to tribal
In any State court proceeding for the foster care placement
of, or termination of parental rights to, an Indian child not
domiciled or residing within the reservation of the Indian
child's tribe, the court, in the absence of good cause to
the contrary, shall transfer such proceeding to the
jurisdiction of the tribe, absent objection by either parent,
upon the petition of either parent or the Indian custodian or
the Indian child's tribe: Provided, That such
transfer shall be subject to declination by the tribal court
of such tribe.
25 U.S.C. § 1911(b). Watso and Dietrich
believe this provision means that "the tribe does not
have jurisdiction over a child held by the state until the
state court transfers jurisdiction to the tribe, which can
only occur after a state court ICWA hearing." To the
contrary, § 1911(b) does not require a state court
hearing. Section 1911(b) addresses the transfer of
proceedings from state court to tribal court. Here, there
were no state court ...