Wolf v. United States

• Court: District Court, W.D. Washington
• Decided: July 23, 2020
• Docket: 2:19-cv-00069
• Status: Unknown

Opinion

5 UNITED STATES DISTRICT COURT 6 WESTERN DISTRICT OF WASHINGTON 7 AT SEATTLE 8 S.B., M.B., J.M., Jr., and G.M., minors, by Case No. C19-69RSL 9 Bruce A. Wolf, their guardian ad litem, 10 ORDER Plaintiffs, 11 v. 12 UNITED STATES OF AMERICA and 13 STATE OF WASHINGTON, 14 Defendants. 15

16 This matter comes before the Court on plaintiffs’ “Motion for Attorney/Client Contact.” 17 Dkt. #34. Having reviewed the memoranda, declarations, and exhibits of the parties, the Court 18 finds as follows: 19 Plaintiffs are minor children who are dependents of the Muckleshoot Indian Tribe 20 (“Tribe”). Plaintiffs allege that they suffered years of abuse and neglect in their biological 21 mother’s home, and that the Tribe and State of Washington (“State”) repeatedly removed and 22 returned them to her home, resulting in continued abuse and neglect. In June 2016, Nickolas 23 Bakke, the father of S.B. and M.B., contacted plaintiffs’ counsel, who investigated plaintiffs’ 24 allegations and determined that they had viable claims against the State and the Tribe. 25 Meanwhile, plaintiffs’ counsel petitioned the King County Superior Court requesting the 26 appointment of Bruce A. Wolf as plaintiffs’ limited guardian ad litem (“GAL”). Plaintiffs 27 subsequently brought the instant action pursuant to the Federal Tort Claims Act (“FTCA”), 28 1 State. See Dkt. #14 at ¶¶ 5.1-5.6. On August 23, 2019, the Tribe successfully moved to vacate 2 Wolf’s GAL appointment in King County Superior Court on grounds that the Tribal Court had 3 exclusive jurisdiction over the children’s dependency matters. Thereafter, plaintiffs moved this 4 Court for appointment of a GAL under Federal Rule of Civil Procedure (“Rule”) 17(c)(2). Dkt. 5 #24. On November 7, 2019, this Court issued an order declining to appoint a GAL for plaintiffs 6 on the ground that no GAL was necessary because plaintiffs’ counsel could adequately represent 7 plaintiffs’ interests. See Dkt. #31. Plaintiffs’ counsel now asserts that he has remained unable 8 to meet with his clients. He accordingly moves for an order directing defendants “to take such 9 steps that will allow these meetings to occur.” See Dkt. #34 at 1. 10 Defendants oppose plaintiffs’ motion. See Dkts. #35, #38. The United States argues 11 that, because the Tribal Court has exclusive jurisdiction over the plaintiffs’ dependency 12 proceedings, the United States lacks authority to facilitate plaintiffs’ counsel’s contact with his 13 clients. The United States urges plaintiffs’ counsel to petition the Tribal Court for access to the 14 minor plaintiffs in this matter. 15 The Court agrees with plaintiffs’ counsel that plaintiffs’ current lack of access to counsel 16 must be remedied. Cf. Danny B. ex rel. Elliott v. Raimondo, 784 F.3d 825, 831-34 (1st Cir. 17 2015). However, as the United States emphasizes, the Indian Child Welfare Act (“ICWA”) 18 “confers exclusive jurisdiction upon tribal courts over an Indian child who is domiciled on a 19 reservation.” Navajo Nation v. Confederated Tribes and Bands of the Yakama Indian Nation, 20 331 F.3d 1041, 1045 (9th Cir. 2003). While plaintiffs’ counsel argues that the ICWA is not 21 applicable in this case, the Court is not persuaded that it has jurisdiction to compel the United 22 States to facilitate contact between him and the minor plaintiffs, who are dependents of the 23 Tribe. Although an apparent structural conflict prevents the Tribe from representing plaintiffs’ 24 interests in this action, the Tribe has emphasized its willingness to seek joint appointment of an 25 independent GAL and/or to facilitate contact between plaintiffs’ counsel and plaintiffs through 26 the Tribal Court. See Dkts. #36 (Crable Decl.); #36-1 (Ex. A); #36-2 (Ex. B); #36-3 (Ex. C). 27 Plaintiffs’ counsel has not articulated why he is unwilling to coordinate with the Tribal Court to 28 1 ensure that the minor plaintiffs’ interests are adequately safeguarded,1 and the Court has no 2 reason to doubt the Tribal Court’s assertion of its willingness to do so. 3 In the Court’s view, all parties are committed to doing right by the minor plaintiffs, and 4 we cannot allow structural arguments to defeat that key purpose. Accordingly, plaintiffs’ 5 counsel should contact the Muckleshoot Tribal Court to coordinate the contact plaintiffs must 6 have with their counsel. The United States should assist with facilitating that contact. 7 Plaintiffs’ Motion for Attorney/Client Contact (Dkt. #34) is DENIED. 8 IT IS SO ORDERED. 9 10 DATED this 23rd day of July, 2020. 11

12 A

13 Robert S. Lasnik 14 United States District Judge 15 16 17 18 19 20 21 22 23 24 25 1 In a footnote in his reply, plaintiffs’ counsel expresses concern that if he seeks relief with the Tribal Court, Muckleshoot Child and Family Welfare Ordinance 12.01.080, which prohibits “[d]amage 26 suits against any employee, officer, or agent of the Muckleshoot Indian Tribe . . . for disputes arising under this ordinance or the regulations promulgated hereunder,” see Dkt. #36-4 (Ex. D) at 6, might 27 “forbid [him from bringing] any action against the Tribe.” Dkt. #39 at 5 n.2. The Court does not share 28 this concern, as plaintiffs’ counsel does not explain why this ordinance would bear any relevance in a