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Court rules tribe has no jurisdiction over father, child

By Joe Kafka
Pierre, South Dakota (AP) 9-07

The South Dakota Supreme Court ruled during mid-September that the Sisseton-Wahpeton tribal court has no jurisdiction over a non-Indian father or his daughter, reversing an earlier ruling by a state judge who said the tribe could remove the girl from her father's custody.

The tribal court issued the order for enforcement in state court against Daniel John Carlson of Sisseton after he forgot a younger daughter all day in a parked car, and she died of overheating on Aug. 17, 2005. A state prosecutor, deciding that Carlson did not intentionally leave Tehya, 14-months-old, in his car when he went to his job as vice president of a telemarketing firm in Browns Valley, Minn., refused to charge him. Carlson had left his then-6-year-old daughter, Jacinda, at his mother's home in Sisseton but forgot to drop Tehya off at her day care.

Carlson's ex-wife, Barbara Baldwin, is an enrolled member of the Sisseton-Wahpeton Tribe. She filed an abuse and neglect complaint in tribal court to gain protective custody of their older daughter; both girls also were enrolled tribal members.

After gaining the tribal court order, the Sisseton-Wahpeton Child Protection Program went to state circuit court for enforcement against Carlson. Carlson argued that the tribal court had no jurisdiction to issue the removal order, but Circuit Judge Scott Myren disagreed with him.

Myren said the Indian Child Welfare Act gave the tribe jurisdiction. ICWA was passed by Congress in 1978 to regulate the placement of Indian children, with the goal of strengthening Indian families and culture.

Overturning Myren 4-1, the state Supreme Court said the tribal court lacked jurisdiction because ICWA does not apply to Carlson or his oldest daughter. Jacinda is not a ward of the tribal court because she did not live on the reservation, and Sisseton is not on the reservation, either, the justices said.

The former Lake Traverse Reservation was diminished in 1975, resulting in a checkerboard of jurisdiction and giving state courts jurisdiction over non-Indian lands within the 1867 reservation borders, the high court noted. Sisseton is not within tribal jurisdiction, the justices added.

One of the attorneys representing Carlson was Bill Janklow, the former governor and congressman who temporarily lost his law license after a 2003 conviction of second-degree manslaughter for causing a fatal traffic crash in Moody County. The case marked Janklow's return to the legal profession, and his appearance before the Supreme Court on behalf of Carlson a year ago drew intense media interest.
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