State district judge orders child returned to mother, says Red
Lake Tribal
Court violated constitutional rights
By Jeff Armstrong - March 8, 2002
In a dramatic reconsideration of his earlier ruling, Beltrami County district
judge Terrance Holter this week struck down a state judicial order enforcing a
Red Lake court judgment which ultimately led to the arrest of Jawnie Hough on
felony charges and the seizure of her four-year-old child.
Holter found that the father, Donald Brun, Jr., knowingly violated standing
state court orders--a divorce decree and an order for protection--when he
"failed to procure written consent from Petitioner to remove the subject
child from the state of Minnesota" to the Red Lake Reservation. The judge
further ruled Brun "did perpetrate misconduct on this court" by
obtaining a tribal court order revoking the mother's legal custody of the child
and failing to inform Hough of a state court comity petition to enforce the
order.
"As a parent and primary physical custodian, the Petitioner has important
and substantial legal rights which are constitutionally protected and require
due process to alter or change," the judge wrote. "This court
recognizes that parental rights are a fundamental right under the United States
Constitution, which requires a reliable due process prior to depriving a citizen
of those substantive rights."
Holter expressed "serious doubts as to the impartiality and/or due
processprotection afforded Petitioner in Red Lake Tribal Court."
The court ordered that Meghan be returned to the care of her mother before 5pm,
March 10.
Hough had contended that she was never informed of the Red Lake hearing or the
state comity proceeding until her daughter was taken from her at a University of
Minnesota hospital Jan. 10, 2001. The Leech Lake woman maintains that she was
never allowed to defend her rights or to question the parenting abilities of her
ex-husband, who has been convicted of domestic assault.
Felony charges against Hough of deprivation of parental rights were
conditionally dismissed Jan. 28, 2002. Judge Holter implied that Beltrami County
Attorney Tim Faver may have filed a criminal case against the wrong party,
accusing Brun of violating the statute under which Hough was charged.
Faver said he was unaware of the ruling and expressed no regrets for his
criminal prosecution of the mother.
"The idea behind this statute is that people not resort to self-help,"
said Faver. "Instead of parents pulling kids back and forth, if you've got
a beef let the court settle it."
The county attorney said judges should be responsible for ascertaining in such
cases whether there is a contrary ruling in effect from another jurisdiction.
"The courts, in my mind, should require people to tell them whether there
are any outstanding court orders from a different court," Faver said.
Judge Holter also issued the unusual directive that the Bruns not utilize the
Red Lake court in any future custodial motions.
"While the practices of the Red Lake Tribal Court may be indicative of
tribal notions of self-government and sovereignty, these procedures are
seriously defective if the Tribal Court seeks to have its judgments enforced and
recognized by other tribal courts, other state courts, or federal courts. The
circumstances as they have developed mandate that subsequent
proceedings take place in a neutral forum providing appropriate due process
protections for all contestants," Holter wrote.
Faver said he did not know if the ruling would influence the light in which the
county viewed future comity requests from Red Lake. If the Bruns failed to
comply with the court order, he said, they could be held liable for charges of
contempt of court or deprivation of parental rights, a felony.
Used with permission from Native American Press/Ojibwe News