                   IN THE COURT OF APPEALS OF TENNESSEE
                                AT KNOXVILLE
                         Submitted on Briefs May 30, 2000

                TAMMY C. POWELL v. CHARLEY CRISP, ET AL.

                Direct Appeal from the Chancery Court for Bradley County
                         No. 98-285 Jerri S. Bryant, Chancellor

                                     FILED OCTOBER 18, 2000

                           No. E1999-02539-COA-R3-CV - Decided


This is a suit wherein Tammy C. Powell, formerly Bird, seeks custody of her minor children, Joshua
Daniel Bird (DOB 2/2/86) and Cherish Richelle Bird (DOB 8/25/88), who are now in the custody
of her parents. The Trial Court was of the opinion that the Court of Indian Offenses of the Eastern
Band of Cherokee Indians, located in Cherokee, North Carolina, the Court which initially awarded
a divorce to Richard Bird and later granted custody of the children to the maternal grandparents,
Charley and Peggy Crisp, had exclusive jurisdiction of any action seeking to change custody, and
accordingly dismissed the petition. We affirm.

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Chancery Court Affirmed;
                                    Cause Remanded

Houston M. Goddard, P.J., delivered the opinion of the court, in which Herschel P. Franks and
Charles D. Susano, Jr., JJ., joined

Lori F. Fleishman of Knoxville, Tennessee, for the appellant Tammy C. Powell

No brief filed by the appellees

                                           OPINION



               This is a suit wherein Tammy C. Powell, formerly Bird, seeks custody of her minor
children, Joshua Daniel Bird (DOB 2/2/86) and Cherish Richelle Bird (DOB 8/25/88), who are now
in the custody of her parents.

               The Trial Court was of the opinion that the Court of Indian Offenses of the Eastern
Band of Cherokee Indians, located in Cherokee, North Carolina, the Court which initially awarded
a divorce to Richard Bird and later granted custody of the children to the maternal grandparents,
Charley and Peggy Crisp, had exclusive jurisdiction of any action seeking to change custody, and
accordingly dismissed the petition.

                  At the time of the divorce and initial award of joint custody to the parents, the
children and the parents were residing within the reservation of the Indian Tribe, although at the time
of the filing of the petition in this case they were residing with their maternal grandparents in Bradley
County, Tennessee.

              The Federal Statute addressing the question presented here is found in the Indian
Child Welfare Act which, as pertinent to this appeal, provides, at 25 U.S.C.A. 1911, the following:

         § 1911. Indian tribe jurisdiction over Indian child custody proceedings

         (a) Exclusive jurisdiction

         An Indian tribe shall have jurisdiction exclusive as to any State over any child
         custody proceeding involving an Indian child who resides or is domiciled within
         the reservation of such tribe, except where such jurisdiction is otherwise vested
         in the State by existing Federal law. Where an Indian child is a ward of a tribal
         court, the Indian tribe shall retain exclusive jurisdiction, notwithstanding the
         residence or domicile of the child.

               At the outset, we note that because the question presented is one of law our review
is de novo without any presumption as to the correctness of the Trial Court’s determination. Union
Carbide Corp. v. Huddleston, 854 S.W.2d 87 (Tenn.1993).

                The following is a chronological list of the pertinent material found in the record:

1.      February 25, 1992. Divorce decree granting Richard Bird a divorce from Tammy Crisp Bird,
        now Powell. This order also incorporated a separation agreement as to custody (the parents
        were granted joint custody), visitation and support of two minor children, Joshua Daniel
        Bird, then age six, and Cherish Richelle Bird, then age three.

2.      May 14, 1996. Order by the Court of Indian Offenses granting Charley and Peggy Crisp,
        maternal grandparents, custody of the two children. In this order the Court made the
        following conclusion of law:

         1.      That this Court does have jurisdiction over this matter and shall continue
         to exercise that jurisdiction until such time as it is no longer in the best interest of
         the minor children.

3.      November 20, 1998. Petition of Mrs. Powell for the registration and enrollment of the final
        decree of divorce by the Indian Court.


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4.   November 20, 1998. Petition by Mrs. Powell for a change of custody.

5.   January 14, 1999. Motion by Peggy Crisp to contest jurisdiction and to dismiss.

6.   March 9, 1999. Order of the Chancery Court for Bradley County, taking the motion to
     dismiss under advisement and directing counsel to provide the Court of Indian Offenses “a
     copy of all pleadings filed to date in this matter. The Court also ordered that the Indian Court
     shall be permitted thirty (30) days from the date of this Order to state its position and/or
     interpretation, in writing, to this Court, in regard to whether the minor children of the parties
     were deemed wards of the Court pursuant to the previous Order of the Indian Court, entered
     on May 14, 1996, in the matter of Richard Bird v. Tammy Crisp Bird, case number CV 92-
     116.”

7.   March 16, 1999. Response and order of Indian Court reciting in part and ordering in part the
     following:

         3. Both minor children, Cherish Richelle Bird, DOB 08/25/88, RR#9170, and
         Joshua Daniel Bird, DOB 02/04/86,1 RR#8545, are enrolled members of the
         Eastern Band of Cherokee Indians.

                  ....

         7. In order for this Court to place these Indian children in a home other than with
         their natural parents, they must have been declared “wards” of the Court, and it
         was the intention of the Order of May 14, 1996, to do that.

                  ....

             IT IS NOW THEREFORE ORDERED, ADJUDGED AND
         DECREED THAT:

                  1. The Court of Indian Offenses for the Eastern Band of Cherokee Indians
         retains jurisdiction over the custody of the minor children, CHERISH RICHELLE
         BIRD and JOSHUA DANIEL BIRD.

                  2. Any petition or motion for change of custody or change of venue should
         first be ruled upon by this Court, and these two minor children are wards of this
         Court.

                 3. Any action or petition to change the jurisdiction of this case must be
         filed with the Court of Indian Offense for the Eastern Band of Cherokee Indians,

     1
         The petition of Mrs. Powell shows the date of birth to be February 2, 1986.


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         and must show to the Court that it is in the best interest of the children to have the
         jurisdiction released to another Court.

                 We note that the Judge who entered the order of March 16, 1999, stating that it was
the intent of the earlier order to make the children wards of the court, was not the Judge who entered
that order. We ordinarily would question whether one judge would know the intent of another;
however, in this case, the order of March 16 states that the children must have been declared wards
of the Court, or the Court would have no authority to place them in a home other than with their
natural parents. Our conviction is buttressed by the fact that, as shown by the order of May 14, 1996,
the Court retained continuing jurisdiction of the children. Finally, we observe that the order of
March 9, 1999, specifically finds that they are wards of the court.

               Thus, we find the Trial Court was not in error in dismissing the case because
exclusive jurisdiction was in the Indian Court.

                Before concluding, we note there is conflicting evidence relative to the reason the
Indian Court dismissed Mrs. Powell’s petition to change custody which was originally filed there.
She contends it was done because the Trial Court said the case was “closed,” but an affidavit of Mrs.
Crisp states that the Trial Court did not want to hear the petition until criminal charges against Mrs.
Powell’s present husband relating to child abuse were resolved. However that may be, if the Indian
Court will not accept jurisdiction it will be appropriate for Mrs. Powell to re-file her petition for
custody as she certainly has a right to pursue her claim in some court.

              For the foregoing reasons the judgment of the Trial Court is affirmed and the cause
remanded for collection of costs below. Costs of appeal are adjudged against Mrs. Powell and her
surety.



                                                __________________________________________
                                                HOUSTON M. GODDARD, PRESIDING JUDGE




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