In re Children of Mary J. , 199 A.3d 231 ( 2019 )

MAINE SUPREME JUDICIAL COURT Reporter of Decisions
Decision: 2019 ME 2Docket: Was-18-232
Argued: November 7, 2018
Decided: January 3, 2019
Panel: SAUFLEY, C.J., and ALEXANDER, MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Majority: MEAD, GORMAN, JABAR, HJELM, and HUMPHREY, JJ.
Dissent: ALEXANDER, J., and SAUFLEY, C.J.
IN RE CHILDREN OF MARY J.
JABAR, J.
[¶1] The Passamaquoddy Tribe (Tribe) appeals from an order of the
District Court (Calais, D. Mitchell, J.) denying the Tribe’s motion to intervene in
a child protective action involving nonmember children, following the removal
of the children from the custody of their mother, who resided within the Tribe’s
territory. The Tribe contends that the court erred in determining that the
Department of Health and Human Services’ removal of the children from its
territory was not impermissible state regulation of an internal tribal matter.
See 30 M.R.S. § 6206(1) (2017). Because we find no error in the court’s
determination, we affirm the court’s denial of the Tribe’s motion for
intervention of right, filed pursuant to M.R. Civ. P. 24(a)(2), and the denial of
the Tribe’s motion for permissive intervention, filed pursuant to M.R.
Civ. P. 24(b).
2
I. BACKGROUND
[¶2] The following is derived from the court’s factual findings, all of
which are supported by competent evidence in the record. See Grondin v.
Hanscom, 2014 ME 148, ¶ 8, 106 A.3d 1150 (“A factual finding is clearly
erroneous only if no competent evidence supports it.”).
[¶3] In September 2017, the Department filed a child protection petition
alleging neglect by both the mother and the father of several children. See
22 M.R.S. § 4032 (2017). Although the mother is a member of the
Passamaquoddy Tribe, neither the father nor the children are members, or
eligible to become members.1 At the time the petition was filed, the children
were living with the mother on the Passamaquoddy reservation at Indian
Township.
[¶4] In February 2018, the Department requested a preliminary
protection order, seeking custody of the children. See 22 M.R.S. § 4034 (2017).
The mother waived her right to a summary preliminary hearing except as to the
issue of placement. She requested that the children be placed with their
maternal grandmother, who is also a member of the Passamaquoddy Tribe, and
who lives on the reservation. After a hearing, the court denied the mother’s
1 Because the children are not members, or eligible to become members, of the Tribe, the Indian
Child Welfare Act (ICWA), 25 U.S.C.S. §§ 1901-1963 (LEXIS through Pub. L. 115-281), does not apply.
3
request and allowed the Department to seek foster placement.2 The
Department placed the children in foster care outside of Indian Township.
[¶5] Following the Department’s removal of the children from their
mother’s care, the Tribe filed a motion to intervene, alleging that Maine Rule of
Civil Procedure 24(a)(2) provided for intervention of right, because the
Department’s removal of the children from the Tribe’s territory constituted
impermissible state regulation of an “internal tribal matter[].” See 30 M.R.S.
§ 6206(1). Alternatively, the Tribe sought permissive intervention, pursuant to
Rule 24(b), asserting that the underlying child protective action and its claim of
tribal sovereignty have a question of law in common. The court denied the
Tribe’s motion to intervene, and the Tribe timely appealed. See M.R.
App. P. 2B(c)(1).3
II. DISCUSSION
[¶6] Rule 24(a)(2) permits a nonparty to intervene, as a matter of right,
if three criteria are met: “(1) [the nonparty] must claim an interest in the
2 Although the court declined to place the children with the grandmother, she was granted
intervenor status without objection by the Department. See 22 M.R.S. § 4005-(D)(5) (2017).
3 Because the Tribe is appealing from the denial of a motion to intervene, there is no final
judgment at issue. However, we have “recognized an exception to the final judgment rule for appeals
challenging the denial of a motion to intervene. The exception applies whether the party sought
intervention of right or permissive intervention.” State v. MaineHealth, 2011 ME 115, ¶ 7, 31 A.3d
911 (citations omitted).
4
property or transaction that is the subject of the action; (2) it must be so
situated that the disposition of the action may impair or impede its ability to
protect its interests; and (3) its interests must not be adequately represented
by the existing parties to the action.” Bangor Publ’g Co. v. Town of Bucksport,
682 A.2d 227, 231 (Me. 1996). Alternatively, permissive intervention is
available when a “[nonparty’s] claim or defense and the main action have a
question of law or fact in common” and intervention will not “unduly delay or
prejudice the adjudication of the rights of the original parties.” M.R.
Civ. P. 24(b).
[¶7] Under either path for the Tribe’s intervention, the pivotal issue
before us is whether the court’s order, issued pursuant to Title 22, granting the
Department custody of children in jeopardy constitutes an impermissible state
intervention into “internal tribal matters.” See 30 M.R.S. § 6206(1).
[¶8] We review the denial of a motion to intervene for error of law or
abuse of discretion. State v. MaineHealth, 2011 ME 115, ¶ 7, 31 A.3d 911.
Where the court’s decision turns on a question of law, we review the issue de
novo. See Passamaquoddy Water Dist. v. City of Eastport, 1998 ME 94, ¶ 5,
710 A.2d 897.
5
A. Internal Tribal Matters and Intervention of Right
[¶9] The Maine Indian Claims Settlement Act (Settlement Act), 25 U.S.C.S.
§§ 1721-1735 (LEXIS, 2015 U.S.C.S. Archive), and the Maine Indian Claims
Settlement Implementing Act (Implementing Act), 30 M.R.S. §§ 6201-6214
(2017), were the result of a comprehensive settlement between the Penobscot
Nation, Passamaquoddy Tribe, and the State of Maine, resolving the Tribe’s and
Nation’s claims to vast swaths of Maine land. See Francis v. Pleasant Point
Passamaquoddy Hous. Auth., 1999 ME 164, ¶ 6, 740 A.2d 575. As a result of
these acts, Maine exerts greater jurisdiction over these Tribes than other
states.4 See id.; Great N. Paper, Inc. v. Penobscot Nation, 2001 ME 68, ¶ 12, 770
A.2d 574 (“The relationship between the State of Maine and the Tribes is not
governed by the general federal laws,” but rather “occurs in a framework that
is unique to Maine.”).
[¶10] The Implementing Act lays out the specific contours and
limitations of this unique relationship between the State of Maine and the
Tribes, and describes the powers and duties of the Tribes within their
respective territories as follows:
4 The Houlton Band of Maliseet Indians were later added to the Implementing Act, although the
Band does not retain the same jurisdiction as the Penobscot Nation and Passamaquoddy Tribe do.
See P.L. 1981, c. 675 (codified at 30 M.R.S. §§ 6203(2-A), 6205-A, 6206-A, 6208-A (2017)).
6
Except as otherwise provided in this Act, the Passamaquoddy Tribe
and the Penobscot Nation, within their respective Indian
territories, shall have, exercise and enjoy all the rights, privileges,
powers and immunities, including, but without limitation, the
power to enact ordinances and collect taxes, and shall be subject to
all the duties, obligations, liabilities and limitations of a
municipality of and subject to the laws of the State, provided,
however, that internal tribal matters, including membership in the
respective tribe or nation, the right to reside within the respective
Indian territories, tribal organization, tribal government, tribal
elections and the use or disposition of settlement fund income shall
not be subject to regulation by the State.
30 M.R.S. § 6206(1) (emphasis added). Thus, pursuant to the Implementing
Act, the Tribes are treated like municipalities except with regard to “internal
tribal matters.” See Penobscot Nation v. Stilphen, 461 A.2d 478, 488 (Me. 1983).
[¶11] In arguing that the Department’s actions interfered with internal
tribal matters, the Tribe specifically points to the “right to reside within the
respective Indian territories,” and asserts that, by placing the children in a
foster home that is not on Passamaquoddy territory, the Department has
interfered with an internal tribal matter. Based on this assertion, the Tribe
claims a right to intervene in this child protective matter. As discussed below,
the plain meaning of “right to reside within the respective Indian territories”
does not support the Tribe’s position.
[¶12] To interpret the term “right to reside,” we first look to the plain
meaning of the statutory language in the context of the whole statutory scheme.
7
See State v. Stevens, 2007 ME 5, ¶ 5, 912 A.2d 1229. The United States Supreme
Court has long recognized that Indian tribes have the right to determine who
may and may not reside within their respective territories, subject only to the
plenary control of the United States Congress. See Worcester v. Georgia, 31 U.S.
(6 Pet.) 515, 559, 561 (1832); Santa Clara Pueblo v. Martinez, 436 U.S. 49, 58
(1978). This right is specifically memorialized in section 6206(1) of the
Implementing Act, which the Tribe has recognized as giving it the
“unquestioned right to determine if and when a person may reside within
Indian Territory.” Indian Twp. Passamaquoddy Reservation Hous. Auth. v.
Socobasin, No. P93-C-03, 1994 Passamaquoddy App. LEXIS 2, at *7-8
(July 4, 1994).
[¶13] The statutory language of section 6206(1) is plain on its face: the
State is prohibited from regulating “the right to reside within the respective
Indian territories.” 30 M.R.S. § 6206(1). Here, neither the court nor the
Department has, or is, attempting to regulate who may or may not reside within
an Indian territory. As the court correctly held, a child protective proceeding
in no way “calls into question the right of the Tribe to determine who is able or
not able to reside on its reservation or within its territory.”5
5 In a child protective proceeding, it is the court’s obligation to determine whether to terminate
or suspend an individual’s parental rights because that individual’s child is in circumstances of
8
[¶14] In addition, the Implementing Act specifically acknowledged and
retained the existing structure of the Indian Child Welfare Act (ICWA). See
S. Rep. No. 96-957, at 15 (1980) (stating that the Settlement Act “specifically
continues the applicability of . . . the Indian Child Welfare Act, and all other
federal Indian statutes to the extent they do not affect or preempt authority
granted to the State of Maine under the terms of the settlement”); 30 M.R.S.
§ 6209-A(1)(D) (granting exclusive jurisdiction over “Indian child custody
proceedings to the extent authorized by applicable federal law . . . .”). If the
children who are the subject of this action were members of the Tribe, or
eligible to become members, then the ICWA would apply and the
Passamaquoddy court would be able to assert jurisdiction over these children,
or at a minimum, the Tribe would have had the statutory right to intervene in
this case. See 25 U.S.C.S. § 1911 (LEXIS through Pub. L. 115-281); 30 M.R.S.
§ 6209-A(1)(D).
[¶15] Finally, the Tribe’s urged construction is at odds with our broader
interpretation of what constitutes an internal tribal matter. In determining
jeopardy. See 22 M.R.S. §§ 4035, 4055 (2017). If the court determines that the child is in jeopardy, it
must then determine how best to protect the child. See 22 M.R.S. § 4036 (2017). In this case, the
court determined that the mother’s children were in circumstances of jeopardy and that to best
protect the children it had to remove them from her custody. See 22 M.R.S. §§ 4034, 4035, 4036,
4036-B (2017). The mother does not contest that determination.
9
whether something constitutes an internal tribal matter, we have looked to the
factors announced by the First Circuit in Akins v. Penobscot Nation, 130 F.3d
482, 486-87 (1st Cir. 1997).6 The Akins factors, which are nonexclusive and
nondispositive, include: “(1) the effect on nontribal members, (2) & (3) the
subject matter of the dispute, particularly when related to Indian lands or the
harvesting of natural resources on Indian lands, (4) the interest of the State of
Maine, and (5) prior legal understandings.” Great N. Paper, Inc. v. Penobscot
Nation, 2001 ME 68, ¶ 49, 770 A.2d 574 (applying the Akins factors to
determine that the Maine Freedom of Access Act does not apply to the
Penobscot Nation when it is engaged in self-governance).
[¶16] When the Akins factors are applied here, the subject matter of this
action—the children—are nonmembers, and stand to be the most affected by
its outcome. Moreover, the State has a well-established parens patriae interest
in the safety and well-being of the children within its jurisdiction. See In re
Emma B., 2017 ME 187, ¶ 12, 169 A.3d 945 (citing Prince v. Massachusetts,
6 Shortly after the enactment of the Implementing Act, we used the familiar canon of esjudem
generis—“that a general term followed by a list of illustrations is ordinarily assumed to embrace only
concepts similar to those illustrations”—to construe “internal tribal matters” as encompassing only
the concepts similar to those explicitly listed after it. Penobscot Nation v. Stilphen, 461 A.2d 478,
489-90 (Me. 1983) (determining that an otherwise unlawful high stakes beano game was not similar
to the listed matters because those matters did not directly bring the Penobscot Nation into conflict
with state laws of general application). However, in more recent cases, we have consistently applied
the Akins factors, and continue to do so here. See Great N. Paper, 2001 ME 68, ¶ 49, 770 A.2d 574;
Francis v. Dana-Cummings, 2008 ME 184, ¶¶ 13-17, 962 A.2d 944.
10
321 U.S. 158, 166 (1944)); see also 22 M.R.S. § 4003 (2017), amended by P.L.
2017, ch. 411, §§ 5-7 (effective Aug. 1, 2018) (codified at 22 M.R.S. § 4003(2),
(3-A), (3-B)). Finally, there is a prior legal understanding that the ICWA, which
provides the protections and procedures that the Tribe argues for here, does
not apply in this case. See 25 U.S.C.S. § 1903(4). All of these factors weigh
against a determination that an “internal tribal matter” is at issue here.
[¶17] Accordingly, the court did not err by determining that the removal
of nonmember children from the custody of their mother, pursuant to a
properly issued child protection order, did not constitute impermissible state
regulation of an internal tribal matter. For that reason, the court properly
denied the Tribe’s motion for intervention of right. See M.R. Civ. P. 24(a).
B. Permissive Intervention
[¶18] As an alternative to its claim for intervention of right, the Tribe
asserts that it should be permitted to intervene pursuant to Maine Rule of Civil
Procedure 24(b), again relying upon the argument that its participation in the
case is necessary to protect the Tribe’s sovereign power to decide who may or
may not reside within Passamaquoddy territory.7 For the reasons already
7 As part of its motion to intervene, the Tribe implies that by removing the children from Indian
Township, the children would miss out on being exposed to the Tribe’s culture, language, and
community. The Tribe asserts that it is important that the children have such exposure, regardless
11
discussed, we do not find the Tribe’s underlying argument persuasive, and
conclude that the court did not abuse its discretion by denying the Tribe’s
motion for permissive intervention. See M.R. Civ. P. 24(b); In re N.W., 2013 ME
64, ¶¶ 12-13, 70 A.3d 1219 (stating that the interest of both the children and
the Department is “the prompt adjudication of a permanent and safe living
arrangement” for the children).8
The entry is:
Judgment affirmed.
ALEXANDER, J., with whom SAUFLEY, C.J., joins, dissenting.
[¶19] This child protective action involves children who have been living
with their mother, a member of the Passamaquoddy Tribe, on the
of their nonmember status, because the children’s mother is a member, and the children were living
within the Tribe’s territory.
The court recognized this concern, and noted that the mother was free to bring her, and the
children’s, cultural traditions to the court’s attention at the hearing. In addition, the grandmother of
the children, also a member of the Tribe, was permitted to intervene in this action pursuant to
22 M.R.S. § 4005-(D)(5). See supra n.2. Like the mother, the grandmother is also able to bring
concerns regarding the children’s culture to the court’s attention.
8 While the Tribe may not intervene in this action, the Department represented at oral argument
that it would not object to the continued participation of the Tribe through interested-person or
participant status. Interested person status would allow the Tribe to remain informed regarding the
proceedings and attend all hearings. See 22 M.R.S. § 4005-D(2)-(3) (2017). As a participant, the Tribe
would be permitted to both attend all hearings and be heard in the proceedings about cultural and
other matters. § 4005-D(4).
12
Passamaquoddy Reservation at Indian Township. The children’s mother is
urging a kinship placement9 with the children’s maternal grandmother, who is
also a member of the Passamaquoddy Tribe. The grandmother has been
granted intervenor status. M.R. Civ. P. 24(b).
[¶20] The children’s mother, their grandmother, and the
Passamaquoddy Tribe itself each have a legitimate interest in preserving the
children’s access to and participation in the tribal culture that would be
fostered through a continuing relationship with the Tribe. As the Court
recognizes in its opinion In re Children of Shirley T., 2019 ME 1, ¶ 13, --- A.3d ---,
also published today, preserving access to tribal culture is important for
children with a parent or parents who are members of a tribe. Shirley T. quotes
the federal Indian Child Welfare Act, enacted in 1978, which states “that an
alarmingly high percentage of Indian families are broken up by the removal,
often unwarranted, of their children from them by nontribal public and private
agencies and that an alarmingly high percentage of such children are placed in
non-Indian foster and adoptive homes and institutions,” and “that the States
. . . have often failed to recognize the essential tribal relations of Indian people
9 See 22 M.R.S. §§ 4003(3-A), 4062(4) (2017) (instructing the Department to give preference to
an adult relative over a nonrelated caregiver when determining placement for a child). These
subsections have since been amended to include a reference to the newly enacted 22 M.R.S. § 4005-G.
See P.L. 2017, ch. 411, §§ 5, 11, 13 (effective Aug. 1, 2018).
13
and the cultural and social standards prevailing in Indian communities and
families.” 25 U.S.C.S. § 1901(4)-(5) (LEXIS through Pub. L. No. 115-281).
[¶21] In the matter before us, for the safety of the children, the District
Court (Calais, D. Mitchell, J.) rejected the request to place the children in a
kinship placement with their maternal grandmother. Instead, it authorized the
Department of Health and Human Services to seek a foster placement for the
children off the reservation and with caregivers who are not related to the
children and are not members of the Passamaquoddy Tribe.
[¶22] With the prospect of the children being removed from their
Passamaquoddy relatives and the reservation community, the Passamaquoddy
Tribe sought to intervene as a matter of right or, alternatively, with the court’s
permission. M.R. Civ. P. 24(a)(2), (b). The Tribe argued that, pursuant to
30 M.R.S. § 6206(1) (2017), the children’s right to reside with their relatives on
the reservation constituted an “internal tribal matter” that “shall not be subject
to regulation by the State.” Accordingly, the Tribe argued that it had an
independent interest and a right to at least be heard regarding proper
placement of the children.
[¶23] The District Court denied the Tribe’s motion to intervene, and the
Court today affirms. From the Court’s affirmance of the denial of the
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Passamaquoddy Tribe’s effort to be heard regarding placement of children of a
member of the Passamaquoddy Tribe who have lived on the Passamaquoddy
Reservation, we respectfully dissent.
[¶24] Although we concur with the Court’s determination that the
Tribe’s concern about removal of the children from the reservation does not
constitute an internal tribal matter that would allow the Tribe to intervene as a
matter of right, that conclusion does not decide the issue. As the Tribe asserts,
their participation in decisions related to the placement and resources
available to the children are matters of importance to the court in addressing
the needs of the children, whose mother is a member of the Passamaquoddy
Tribe. The Tribe’s role, distinct from the role of family members, is important
in informing the court of options regarding tribal resources and connections to
tribal culture. As the Tribe argues, “[g]iven the well-established, horrific
history of forced acculturation and state agencies removing children from their
tribal families and forcing them to live off the reservation,” the Tribe’s request
to remain a resource for the children and the court is compelling.
[¶25] Although the Tribe’s argument that these factors and this history
give it a right to participate pursuant to 30 M.R.S. § 6206(1) is unpersuasive on
the facts of this case, these factors and this history demonstrate that, in the
15
proper exercise of its discretion, the District Court should have found a method
of involvement for the Tribe that would benefit the children. See 22 M.R.S.
§ 4005-D(1)(C)-(E) (2017).10 With such involvement, the District Court could
properly consider information from the Tribe regarding conditions and
resources on the reservation and important cultural factors that may favor the
children returning to reside on the reservation or having continued meaningful
contact with members and the culture of the Tribe.
[¶26] In a footnote, the Court does suggest other ways the Tribe might
be allowed to participate. See supra note 8. However, those alternatives do not
appear to have been considered by the parties, and there is no certainty of any
participation on remand. We would vacate the trial court’s denial of the Tribe’s
motion to intervene and remand for the court to consider which type of
participation by the Tribe would best allow the Tribe to have meaningful input
regarding the children’s connection to their Indian heritage.
10 22 M.R.S. § 4005-D has since been revised, but subsections (1)(C)-(E) are unchanged. See P.L.
2017, ch. 411, §§ 8-9 (effective Aug. 1, 2018).
16
Arnold S. Clark, Esq. (orally), Fletcher Mahar & Clark, Calais, for appellant
Passamaquoddy Tribe
Janet T. Mills, Attorney General, and Hunter C. Umphrey, Asst. Atty. Gen.
(orally), Office of the Attorney General, Augusta, for appellee Department of
Health and Human Services
Calais District Court docket number PC-2017-06
FOR CLERK REFERENCE ONLY