In Re Marriage of Skillen

IN RE MARRIAGE OF SHANE COLIN SKILLEN, Respondent, Petitioner STACEY GALE MENZ f/k/a STACEY GALE

SKILLEN, Respondent Appellant. No. 96-520. April

Submitted on Briefs 1997. Decided March 1998. 1998 MT 43. St.Rep. 147. 287 Mont. 399. 956 P.2d 1. concurring part dissenting part, in in NELSON JUSTICE GRAY. joined JUSTICE O’Toole, II; O’Toole; Loren J. O’Toole and Appellant:

For Plentywood. Corbin, Attorney Law, City. J. Dennis Miles Respondent:

For Opinion of the Court. delivered JUSTICE TRIEWEILER Skillen, for dissolution of petition filed a petitioner, The Shane Skillen, Stacey in the District Court respondent, marriage his County. After a nonjury in Rosebud Judicial District for the Sixteenth granting joint custody order Court entered an the District trial Thereafter, the Fort Peck Stacey. child, Kinsey, to Shane their joint custody order in favor of temporary Court entered Tribal in the District Court. filed a motion to dismiss Stacey, and she dissolution, and then a final decree first entered District Court Stacey appeals. to dismiss. We reverse the order denied the motion remand this case to the District Court for the District Court and opinion. consistent with this proceedings the District Court appeal The sole issue whether has subject matter to determine the of an Indian child child, along mother, with his enrolled resides on a when the reserva- father, non-Indian, tion, and the who is resides off the reservation.

FACTUAL BACKGROUND May 13,1993. Stacey They Shane Skillen and Menz married on twenty years Community old and students at Dawson were both days at the after the College marriage, Glendive time. Two Shane County began Department Forsyth, work at Rosebud Sheriff’s reside; parents Stacey, his an enrolled member of the Fort Peck where Tribes, began returned to the Fort Peck Indian Reservation and Poplar. work at the Fort Peck Tribal Health Office in On temporary 20, 1993, August Stacey stopped work at the approximately Tribal 29, 1993, Office, August gave son, and on she to Health birth their Skillen, in Kinsey County. Kinsey Charles Custer is also an enrolled of the Fort Peck Tribes. Shane non-Indian. member Stacey if parties dispute actually The and when maintained a ¶4 grandmother residence with her on the Fort Peck Reservation. The Stacey Kinsey parties dispute also where and maintained their Kinsey’s birth, after it clear although appears they residence that Forsyth considerable time both in with Shane and on the spent Stacey’s At all times grandmother. throughout Reservation with this matter, Stacey and have substantial support both Shane received and from their extended families in their efforts to raise assistance Kinsey. January 1994, petition In Shane of filed dissolution the

¶5 in the District Court for the Sixteenth Judicial District in marriage County; brought Stacey Kinsey Forsyth Rosebud he and to and served Court petition hearing, the on her there. District conducted and February 18, 1994, granted custody to temporary parties, on both custody alternating every two weeks. At the time of the physical with Forsyth Stacey, and resided order, apparently, Shane lived court’s on the Reservation. 1995, nonjury the District Court conducted a trial. In July Stacey joint custody it that Shane and share

January ordered Kinsey, primary that would be the residential custodian. of and Shane 3, 1996, Stacey privilege her visitation and February exercised On custody failed, Kinsey however, of from She took Shane. to return Kinsey February 10, parties arranged. to Shane on as the had On 9, 1996, and February sought she received from the Fort Peck Tribal custody awarding Kinsey. an order her A temporary Court of few later, Shane, the the Richland help County weeks with of Sheriff’s Stacey and had Department, Kinsey, Kinsey located and returned to maintained custody Shane apparently physical Kinsey him. has time. since 1996, Stacey On March filed a motion in the Court District M.R.Civ.P, 12(h), M.R.Civ.P, Rule to dis- Rule

pursuant subject the case for miss lack matter She asserted the the Tribal Court had exclusive over matter virtue Stacey’s Kinsey’s residence on the Reservation at the time that dissolution, it originally juris- filed for and that exercised its Shane custody June granted temporary diction when order. On the case the District Court stated that it had granted issued its final decree dissolution which it primary and declared joint Shane to be residential parties issue, Court, parties After the briefed the District custodian. 26, 1996, Kinsey and off July significant found that had contacts on Reservation, such, and that as the District Court shared concur- Therefore, with the Tribal it denied the rent Court. motion dismiss.

DISCUSSION subject Does District Court have matter child, along of an Indian child when with determine reservation, father, mother, on a and the who is enrolled resides his non-Indian, off the reservation? resides claim subject a on lack of matter Whether to dismiss based ¶9 district is a of law. We review a court’s conclusion jurisdiction question Ins. Mercury correct. Poteat v. St. Paul law to determine if it is See of 117, 119, 677, 679. Matter (1996), 277 918 P.2d See also Mont. Co. of 66459-76L, 64988-G76L, Ciotti; Use Permit Nos. Water Beneficial 1073, (1996), 54, 50, P.2d 1076. 923 Starner subject lack of matter A to dismiss based on motion ¶10 by the any by party, either or raised at time and jurisdiction may be (1996), M.R.Civ.P; 12(h)(3), Tweedy State v. itself. See Rule court 1134, v. Tribe 313, 1135; Wippert 315, 922 P.2d Mont. Blackfeet 420, 93, 102, 859 P.2d (1993), 260 Mont. Indian Reservation Blackfeet jurisdiction when Also, consent party a cannot waive confer 425. jurisdiction. for the court to exercise See In re legal there is no basis 424, 427, 1378, (1993), 259 Mont. 1380. Marriage Miller Therefore, the District Court’s intimation in its order that despite Stacey jurisdiction by indicating Tribal she would not invoke waived Stacey to the issue of the District it, proper raise Court’s was when she did. jurisdiction to the District Court’s raises a Stacey’s challenge juris- impression light before this Court: of Indian

matter first custody principles, we must determine whether diction law and custody proceeding involving court has in a a district land, both reside on Indian parent Indian child and an Indian when parent non-Indian who does not reside on Indian land. It and a significant legal policy question a and and this Court with presents synthesize independently complex that we areas of requires custody jurisdiction. Indian and child a right The issue of considers court’s determine such, it procedural and hear an issue. As “transcends considerations power authority the fundamental and of the court and involves itself.” 102, Accordingly, inquiry 260 Mont. at 859 P.2d at 425. our Wippert, jurisdictional into the conflict between tribal court and state issue of district court extends to even more fundamental authority. tribal and state interaction between Tribal Jurisdiction in General A. that Indian tribes maintain certain It is well established activities, self-government over reservation such that states

powers of these areas tribal may jurisdiction regarding govern not exercise authority regard nature of Indian tribes’ in this is ment. exclusive (1) (2) grounds: supremacy, on two distinct federal based (1980), Tribe v. Bracker Apache See White Mountain sovereignty. 136, 142-43, 2578, 2583, 100 S. Ct. 65 L. Ed. 2d 672. U.S. tribes, Congress authority regulate has the 14¶ exists, lack See White federal law state courts where Tribe, L. Ed. 448 U.S. at S. Ct. Apache Mountain by the of federal pre-empted operation “State 2d at 672. federal and tribal interests incompatible if it interferes or is with law law, interests at stake are in federal unless state reflected authority.” New Mexico v. justify the assertion of state sufficient to 324, 334, 103 S. Ct. Tribe 462 U.S. Apache Mescalero application of state (stating Ed. 2d 76 L. on the reservation was fishing laws to nonmembers hunting scheme). regulatory and the tribe’s own by federal law preempted 408 1950s, In the Congress transferred to six states its civil and lands,

criminal over Indian states, and allowed other Montana, including jurisdiction by to assume their legislative own 53-280, August 15, 1953, action. See Pub. L. No. Act of 67 Stat. 588. Rights The 1968 Indian Civil Act repealed portion of P.L. 280 permitted unilaterally states like Montana to jurisdic- assume lands, required tion over Indian and thereafter the affected tribe to assumption 1321, consent to the state See 25 U.S.C. §§ 1322, and 1326. Here, domestic matters are generally province within the (and tribes) Congress. (1890), and not In re

states See Burrus 136 (“The 586, 593-94, 850, 853, 500, U.S. 10 S. Ct. 34 Ed. L. whole subject wife, parent of the domestic relations of husband and child, belongs to the laws of the States and not to the laws of the States.”). below, As will be Congress United discussed has in recent years legislated in the area of child custody specifically Indian custody. acts, however, facts, govern Those federal do not these they operate presumptively preempt authority nor do state in favor authority. Moreover, jurisdic- of the tribe’s Montana has not assumed pursuant tion over the Fort Peck Tribes to P.L. 280. Accordingly, jurisdictional analysis for our framework should be based not on but on the interaction between tribal and state courts in preemption, sovereignty. terms of tribal Where has not its Congress authority exercised over tribes, generally presumed tribes are to maintain their inher sovereignty

ent tribal over Indian land. See Fisher v. District Court (1976), 382, 943, 106; 96 Ct. Ed. 2d In re Marriage 424 U.S. S. 47 L. (1993), 131, 137, 559, 852 P.2d 563. Without Wellman authority, law to declare the total lack of state express federal naturally however, authority as to state versus tribal arise. questions determine method a state has commonly The most cited whether authority infringement “Essentially, a matter is the Williams test: always has been Congress, question absent Acts of governing Indians infringed right the state action of reservation whether (1959), Lee own laws and be ruled them.” Williams v. to make their 220, 269, 271, 251, also 79 S. Ct. 3 L. Ed. 2d 254. See 358 U.S. (1987), 107 S. Ct. Mut. Ins. Co. v. LaPlante U.S. Iowa sovereignty of Indian tribes (emphasizing Ed. 2d 10 retained L. territory Congress where has failed to their members and their v. District Court authority); State ex rel. Iron Bear assert its (“The lines are set guide Mont. long and as as the state guide down in Williams does violate those attempt lines and does not exercise over areas of the governing Congress there is either a Act of infringe- law where may self-government, ment on reservation continue to exercise jurisdiction.”). Supreme The United States Court held in Montana v.

¶18 United (1981), 544, 564, 1245, 1258, States 450 U.S. 101 S. Ct. 67 L. Ed. 2d 493, 509-10, authorization, that without federal a tribe’s power to “beyond sovereignty necessary exercise its does not extend what is or to control protect self-government tribal internal relations ....” See (1978), 191, v. Oliphant Suquamish also Tribe 435 U.S. 98 S. 1011, (stating Ct. 55 L. Ed. 2d 209 tribal sovereignty does not non-Indians). jurisdiction criminal authorize over however, More importantly, Montana has come to stand articulated, exceptions pursuant sovereignty to which tribal right jurisdiction dictates that a tribe has the to exercise its and non-Indians activities on Indian lands. The first exception recog regulatory jurisdiction nizes over nonmembers who enter con relationships sensual with the tribe or its members. The second exception recognizes civil tribal over nonmember reser directly conduct threatens or political vation affects the tribe’s security, health, Montana, integrity, economic or welfare. See 450 U.S. 1258, 565-66, Williams, at 101 S. Ct. at 67 L. Ed. 2d at 510-11 (citing others). (1997), The Court in Strate v. A-1 among Contractors 520 U.S. 1404, 1415-16, 137 438, 117 661, 678-79, S. Ct. L. Ed. 2d interpreted the exception apply only second Montana when the at conduct issue ability presents self-governing a threat in terms of tribe’s to be or to control its internal relations. Strate and Montana both cite the facts of Fisher to demonstrate trigger

when a state court’s exercise of would the second exception Montana and on the infringe sovereign ability tribe’s Strate, govern itself to control its internal relations. 520 U.S. at _, 1412-13, 137 674-75; Montana, 117 S. Ct. at L. Ed. 2d at 450 U.S. 1258, S. Ct. at 67 L. Ed. 2d at 511. Fisher involved a child custody dispute between an Indian mother and an Indian foster mother, of each whom resided on the reservation. The Court con the state exercise of “plainly cluded that court’s would and, result, self-government interfere” with the tribe’s of as a powers the tribal court exclusive to determine granted similarity child. In addition to factual of Fisher to of the Indian some us, regard throughout now before we must also our consid- the facts eration of this matter two key factors on which Fisher expressly (1) relied: the risk conflicting adjudications to the detriment; child’s (2) the fact that state exercise “would cause a corresponding authority decline in the of the Fisher, Tribal Court.” 424 U.S. at 96 S. Ct. at 47 L. Ed. 2d at 112. Custody

B. Child Jurisdiction As the facts before us suggest, disputes regarding child custody, specifically custody jurisdiction, are extremely complicated and many involve the interests of parties. The uncer tainty of an immediate change in marital and custody statuses compounded the dual demand on incorporate courts to these varied project family interests and to relationships many years into the future. One constant amid these is the uncertainties best interests 40-4-212, the child standard. See (directing MCA apply § courts to interests of the child best standard in a determination); Fort 304(b) (1989) (“The Code, VI, Peck Title Tribal § determination of child.”). custody shall be based on the best interests of the See also State Arizona v. Sasse Mont. (“The always best interests ofthe child have been the most salient consideration in determining family matters where children are involved.”) (Barz, J., dissenting). Although subject sometimes to in its application, discretion the best interests of the child standard attempts parties to focus the and courts on the most vulnerable interest in these proceedings: the child’s well-being. Within this ambit, jurisdictional questions also now emphasize first and foremost a determination consistent with and supportive of the best interests of the child. (UCCJA) Custody The Uniform Child Jurisdiction Act has adopted fifty

been all states. Montana has codified the UCCJA at -125, MCA, 40-7-101 to and incorporates 3 of the §§ § UCCJA at 40-4-211, MCA, to determine the initial matter of child custody § conjunction with the federal Prevention of Parental Kidnaping (PKPA), 1738A, Act 28 operates U.S.C. the UCCJA § to clarify among competing jurisdictions which shall determine matters custody. of child matter, definition As a threshold the UCCJA of “state” state, “any territory,

includes or possession States, of the United Rico, Commonwealth of Puerto and the District of Columbia” and tribes; specifically does not include Indian the PKPA uses substan 40-7-103(10), MCA; tially the same See 28 U.S.C. § definition. 1738A(b)(8). omission, however, The of no consequence to the §

411 analysis engage of the UCCJA and the PKPA that we policy-based limited purpose that for the of analo- Accordingly, we conclude here. PKPA, of the UCCJA and the policy to the considerations gizing us, Indian compare the issue before we will tribes to territo- resolve of the UCCJA and the PKPA definition of meaning ries within the (4th (Cherokee 1989), In re Larch Cir. 872 F.2d 66 tribe “state.” See (Ariz. PKPA); Superior of the Martinez v. Court purposes is a state for (in 1987), custody dispute 731 P.2d 1244 between one App. Ct. non-Indian Indian tribes are states parent parent, and one UCCJA). Day See also v. State Social meaning Dep’t within the Servs., Support & Rehab. Child Div. Enforcement (“As 170, 175, regards support orders issued courts, ‘States,’ are in Indian tribal Indian tribes deemed to be 1738B(b), are, therefore, out of the excepted U.S.C. definition § of‘foreign provisions Recognition states’under Act. Section 25-9-602(2), Additionally, judgments MCA. support matrimo- family ‘foreign judgments’ nial matters are not considered under MCA.”). 25-9-602(1), Act. But Recognition Desjarlait Section see (Minn. (“[T]he 1985), Desjarlait App. Ct. 379 N.W.2d v. apply jurisdictional disputes between a state court UGCJAdoes (N.D. court”); 1980), Malaterre v. Malaterre and a tribal N.W.2d custody (refusing to resolve a child issue between a tribal UCCJA, a state court on the basis of the based on the fact court and jurisdic- to fact “pertains that the UCCJA situations which involve states”). disputes tional with sister are, part, of the UCCJA to: purposes

(a) jurisdictional competition and with courts avoid conflict past in matters of child which have in the other states from harmful shifting resulted in the of children state state with well-being; effects on their

(c) concerning of a child takes litigation assure family the child and his ordinarily in the state with which place significant evidence con- the closest connection and where have care, training, personal relationships cerning protection, his courts this state decline the readily most available and that of family when the child and his have closer exercise of state', with another connection

(d) discourage continuing custody controversies over child in the greater stability interest of of home environment and of secure family child; relationships for the .... added). 40-7-102(1), (emphasis

Section MCA As a California case stated, “the UCCJA seeks to limit jurisdiction rather than encourage (Cal. proliferation.” or condone its In re Marriage Hopson Ct. App. of 1980), Rptr. 345, 168 Cal. App. Cal. 3d 899. Likewise, PKPA, which primarily focuses custody modification, attempts to isolate in the one court which is best able to determine the best interests of the child. The Congres- Findings sional and Declaration of Purpose for the PKPA state that: (c) general The purposes of... this Act... are to: (1) promote cooperation between State courts to the end that a custody determination of and visitation is rendered in the State child; which can best decide the case in the interest (4) discourage continuing interstate controversies over child custody greater stability in the interest of home environment and family child; relationships of secure for the (5) jurisdictional competition avoid between State conflict courts in matters of child and visitation which have in the shifting resulted in the of children from past State to State with well-being; harmful effects on their .... added). (emphasis

28 U.S.C. 1738A § jurisdictional disputes two laws make clear that Furthermore, custody are not in the best interest of the child. as will fully below, certify explained single be more laws seek to “state” connected. Finally, they the child’s interest is emphasize to which best custody jurisdiction is, the initial important how determination changes custody jurisdiction run counter to the subsequent purpose therefore, are, presumptively of the laws and disfavored. example, recently application For we twice considered

the PKPA in the context of child determination. See In re (1996), 744; of Shupe Marriage 276 Mont. P.2d In re Marriage 862 P.2d 12. Each time we held that the of Erler to the PKPA to pursuant district court lacked Montana Erler, custody determination of another state. In we modify requires PKPA full faith and credit be accorded “[t]he recognized appropriately if the court exercised decisions of a continuing and that it “vests under the PKPA standards” the child or one of the original long the state as in jurisdiction Erler, 69-70, there.” 261 Mont. at to reside contestants continues original continuing the court gives Because the PKPA P.2d at 15-16. given faith and credit be to the requires that full jurisdiction and ” duty any “sister ‘state’ determination, imposes the Act original determination that was made consistent a child to enforce Thus, custody determi where a child UCCJA and PKPA.1 with the of the child already made and where residence has been nation effectively amounts to the PKPA enforces what changed, has not Shupe, court. See 276 Mont. at jurisdiction original for exclusive (“[T]he forth for determin at 747 PKPA sets standards 414, 916 P.2d modify existing custody jurisdiction with the one state ing order.”). such, original determina imperative As it becomes custody jurisdiction be the correct one. tion of UCCJA, the rule is that the “home general Pursuant to the jurisdiction to determine of the child should have state” (Fla. See, 40-4-211(l)(a)(i), e.g., Hegler Hegler MCA. v. matters. See § 40-7-103(5), MCA, 1980), 383 2d 1134. Section defines App. So. Ct. state” as: “Home child, immediately preceding the time state in which the

[T]he involved, his ... for at least 6 parents, parent [or] lived with than 6 months in the case of a child less months consecutive any the child lived from birth with of the old the state in which any absence of of the temporary mentioned. Periods of persons the 6-month or other part period. are counted as persons named jurisdiction a court to assert for reasons permits The UCCJA residence, child’s based on the child’s best interests. other than MCA, in the child’s ll(l)(b), sets out when it would be Section 40-4-2 jurisdiction: interests for the state to assume best (i) or the child and at least one parents the child and state; this significant have a connection with contestant (ii) in substantial evidence concern- there is this state available care, protection, training, future ing present the child’s or relationships; personal claiming jurisdiction

However, a state from explicitly prohibits jurisdic- confer of the child would only physical presence where See limited or abandonment. tion, in situations of abuse except essentially under the PKPA is the same as under the 1. The basis 1738A(c). UCCJA. See 28 U.S.C. 40-4-211(2), jurisdiction, MCA. If no other state has where § jurisdiction, may another state has declined exercise state then if it in the assert best interest of the child. See 40-4- § 211(d), MCA. itself, By apparently support the UCCJA could the exer by See multiple Shupe,

cise of states. Mont. (concluding that both Montana and Utah had P.2d 744 UCCJA). However, conjunction to the when considered in pursuant PKPA, preference emerges state, a clear for the child’s home with residence, especially light of the interest that as determined his avoiding future shifts for the child’s best recognize we See, e.g., Shupe, (holding 916 P.2d 744 interests. exercising jurisdiction, though Montana from even prevented PKPÁ pursuant the child’s “home state” to the qualified neither state as UCCJA). course, says nothing unique this about the status of Indian Of

¶31 jurisdictional ultimately The case us turns on the children. before parent a court over an Indian and an Indian child who of state power reservation, just application on a strict of the may reside on However, powerful policy of the UCCJA. statements re- terms custody in child laws and their commitment to best flected these only meaning take on enhanced when we interests of the (ICWA) Child Act and the reasons that consider the Indian Welfare enact it. Congress motivated to Act

C. Indian Child Welfare ICWA, 1901-63, 1978, Congress passed the 25 U.S.C. §§ In children promote of Indian and to the best interests protect primary See 25 U.S.C. 1902. Its means of security § of Indian tribes. expanded that tribes role goal played was to ensure achieving this Court has that involved Indian children. This custody proceedings in sought implement intent of the ICWA and affirmed repeatedly custody role in Indian child in favor of a tribal its presumptions (1995), 273 Mont. Adoption See In re proceedings. Riffle tribe, as to the Bureau of Indian (granting opposed P.2d 542 eligible authority to determine whether a child is Affairs, ultimate thus, authority to determine final membership, for tribal child); In re definition of Indian satisfies the ICWA a child whether (1993), (stating 262 Mont. Baby Girl Doe Matter anonym for parent’s to a natural desire is paramount the ICWA re Parental Placement ity); In of M.R.D.B. court to broadly from the tribal language (interpreting P.2d subject of the tribal court and that Indian child was a ward conclude ICWA); to the In re M.E.M. jurisdiction pursuant to exclusive family (recognizing a member’s (1986), 223 Mont. 725 P.2d 212 after steps to the ICWAeven considerable pursuant to intervene right occurred). had adoption proceeding remedy the federal to a nationwide represents The ICWA majority originates from what is in the of cases problem problem. fully to consider the best naturally inability of states predisposed in the custody proceedings, specifically children in of Indian interests Congress found after heritage. particular, their Indian context of jurisdic- their “States, exercising recognized hearings extensive custody through administrative proceedings Indian child tion over bodies, the essential tribal recognize have often failed to judicial and the cultural and social standards people relations of Indian 1901(5). in Indian communities and families.” 25 U.S.C. prevailing § and resultant need for the ICWA are based even more The concerns that, out, Congress pointed fact as “there is no resource that on the integrity the continued existence and of Indian tribes is more vital to interest, and that the United States has a direct than their children trustee, are of or are protecting Indian children who members 1901(3). membership in an Indian tribe.” 25 U.S.C. eligible § tribal courts exclusive provide The crux of the ICWAis with custody that involve Indian chil proceedings” in “child However, expressly excludes from its definition of “child dren. from an award in a custody disputes arising proceedings” 1903(1). See 25 U.S.C. See also In re Bertelson marriage dissolution. § (“[ICWA] 524, 531, 617 not directed (1980), 189 Mont. P.2d regarding between Indian families disputes children; rather, intent is Indian culture values preserve [sic] its to circumstances placed in which an Indian child is in a foster under institution.”). Regardless nonap ofits literal protective other home or us, ignore the facts before we cannot the fact that plication the tribal role emphatic policy protecting “evinces an federal of ICWA Atwood, Ann involving Indian children.” Barbara proceedings Jurisdic Indian Children: The Uses Abuses Fighting Over (1989). L. Rev. Ambiguity, 36 U.C.L.A. tional laws, bases a custody child ICWA Similar to other ¶35 child. jurisdiction on the residence of the right to assume court’s that stronger presumption an even However, the ICWA manifests exclusively on the basis of the be determined jurisdictional disputes PKPA, courts permit than the UCCJA and the which child’s residence jurisdiction assume on the grounds additional of the best interests child, of the other among things. See Mississippi Band Choctaw Indians Holyfield (1989), v. 490 U.S. 109 S. Ct. 104 L. Ed. 2d 29 (holding that the applied ICWA though because even the Indian children had physically never entered the reservation, their residence officially was the reservation, based on their mother’s residence (Utah there); (elevat In re Adoption Halloway 1986), 732 P.2d 962 ing policies the federal of the ICWA over state law regarding aban domicile). donment and effect, In Congress

¶36 through declared the ICWA that a custody determination the tribal unequivocally court is in the best interests of the child when the child resides on Indian land. It states:

An Indian tribe shall have any exclusive as to State any custody proceeding involving an Indian child who resides or is domiciled within tribe, the reservation except of such where such is otherwise vested in the by existing State Federal law. Where an Indian child court, is ward of a tribal Indian tribe shall retain exclusive jurisdiction, notwithstanding the residence or domicile of the child. 1911(a).

25 U.S.C. § Where the child land, does not reside on Indian the ICWA directs the court, state “in good the absence of cause to the contrary, [to] transfer such proceeding tribe, to the of the objection by absent either parent ... or the Indian custodian or the 1911(b). Indian child’s tribe.” 25 U.S.C. Either way, § the tribal court presumed have over a proceeding that involves an Indian child. value of the jurisdictional ICWA for purposes of the

analysis before us is three-fold. First, that Congress felt the need to curtail states in these matters indicates that state courts are apt to exercise when the best interests of the Indian necessarily child do not support assumption words, other it puts states on they notice that are, fact, significant part problem, of the they weigh should their potential jurisdiction very assumption of judiciously. See, e.g., In re 329, 339, M.E.M. (“The P.2d purpose of the [ICWA] is to remove as far as possible the white perceptions man’s in these matters where Indian conflict.”) may J., values (Sheehy, dissenting). Second, the ICWA indicates that the child’s regardless of

residence, tribal courts are uniquely inherently qualified more than state courts to determine in the best interests of Relatedly, custody

Indian child. it accentuates that that matters implicate range Indian children a broader of involve concerns than children, that custody furthermore, matters do not involve Indian great States, that those interests are of to the United importance course, integrity Despite nonap of to the of Indian tribes. the ICWA’s plication disputes, recognize to dissolution-based we also experience that the tribal court’s and abilities in these areas are state and remain such advantages inherent courts as when the happens matter a court pursuant before to occur to a Bertelson, marriage generally 539, dissolution. See 189 Mont. at (“Presumably P.2d at 129 the tribal court is better equipped ethnic identity a in determining consider factor the child’s court.”). case, than is a state In either welfare best interests of expanded meaning the child standard takes on to tribal courts. Finally, the ICWA demonstrates confidence in the tribal ¶40 forum, only expertise perspective, for the substantive of its but ability appropriate also for its to make a fair and determination and See, the interests of all the parties, including e.g., to serve the state. (“We M.R.D.B., 463, fully In re 241 Mont. at 787 P.2d at 1224 are parties confident the Tribal Court will consider the best interest of all (“[W]e making determination.”); Halloway, its ... 732 P.2d at 972 give [custody [tribe] are confident the courts of the will the careful matter] attention deserves and will act with the utmost Indian well-being.”). [the child’s] concern for The ICWAalso demands give that state courts fall faith and credit to the of the tribal decisions 1911(d). Therefore, See 25 appreciate court. U.S.C. we terms § jurisdiction analysis, any our disregard policy of clear behind preferences the ICWA for a tribal determination instead of state part provoke determination would at least in a “decline in author ity Fisher, Ct. at of Tribal Court.” U.S. 96 S. L. Ed. 2d at 112. Activity

D. Jurisdiction Montana State Courts Over Indian of the sover frequently recognized upheld This Court has maintain rights self-government their eignty tribes See In re control the internal relations of their members. and to 1083; Marriage re Custody (1988), 230 Mont. 750 P.2d of Zier (1981), 266; State ex rel. Stewart v. of Limpy 195 Mont. Court 609 P.2d 290. District tribal courts analysis jurisdictional disputes Our between lines, depending upon and state courts has followed two different jurisdictional dispute regulatory arose from a matter or whether adjudicatory one. majority adjudicatory decisions that involve our mat ters, matters, analysis particular sovereignty and in domestic follow three-part test from State ex rel. Iron Bear District apply and v. 335, 1292, (1973), 162 Mont. 512 P.2d to determine whether a Court See, jurisdiction. exercise e.g., Limpy, district court can 195 Mont. at Stewart, 318, 268; 212-13, 187 Mont. at 609 636 P.2d at P.2d at 292. (1997), 399], v. Neuman Mont. 943 [284 See also Krause P.2d 1328 dispute regarding land); Iron Bear in a Indian trust Lam (applying (1994), Ryozik (applying Iron v. 268 Mont. P.2d 378 Bear bert accident). Bear, regarding an on-reservation auto In Iron dispute in 346, 1299, at 512 P.2d at we stated: 162 Mont. any can matter

Before a district court assume it, subject jurisdiction by find matter deter- to it must submitted (1) treaties and statutes applicable whether the federal mining: (2) jurisdiction; state whether the exercise of state preempted have self-government; interfere with reservation and jurisdiction would (3) jurisdiction or currently exercising the Tribal Court is whether preempt a manner as to state exercised such has Bear, Supreme the U.S. Court Court, primarily in Iron relied on This sovereignty develop on tribal to analysis emphasis of Williams and its Bear, 342-43, See Iron 162 Mont. 512 P.2d at 1297. the above test. remained the preemption, sovereignty focus. Even in its discussion 345, (stating at 1298 Bear, 162 Mont. at 512 P.2d See Iron “sovereignty ‘backdrop as a must be considered with preemption treaties and federal statutes must be applicable against which ”) (1973), Tax Comm’n (quoting McClanahan v. State read.’ of Ariz. 136). 1257, 1262, 129, 164, 172, 36 L. Ed. 2d 411 U.S. 93 S. Ct. regarding a jurisdictional of a conflict Our consideration analysis. See State ex rel. Poll preemption matter follows a regulatory 512, (considering 405 (1993), 257 Mont. 851 P.2d District Court v. reservation); on a Northern authority regulate gambling to state 117, (1989), 237 Mont. 772 P.2d Co. v. State Pipeline Border reservation). that traversed ability pipeline to tax (considering state Apache, Mountain 448 U.S. test from White two-part apply We “(1) 665, which asks whether: 2578, 65 L. Ed. 2d 136, 100 S. Ct. by administrative jurisdiction Montana’s subject matter assertion of (2) law, by federal the asser is preempted tribunals judicial by Montana’s administrative subject matter tion of right to unlawfully infringe [the tribe’s] would judicial tribunals v. Dept. these laws.” First State laws and be ruled its own make (1991), 465, 471, 808 LaRoche 247 Mont. Servs. ex rel. & Rehab. Soc. (“The 522, at Poll, 257 at 851 P.2d 467, 470; See also Mont. P.2d regu determining whether the State of Montana has test for proper [reservation], activity authority any committed on latory otherwise, is test set ... in statutes or forth through criminal its (Trieweiler, J., Apache.”) dissenting). inquiry That Mountain White essentially inquiry into nature of particularized “call[s] stake, inquiry designed state, federal, and tribal interests at whether, context, specific in the the exercise of state determine Apache, 448 authority violate federal law.” White Mountain would 2584, 65 Ed. 2d at 673. See State v. 145, at 100 S. Ct. at L. also U.S. 96, See (1988), generally 760 P.2d 97-98. Thomas Mont. Pub. Burlington Department Regulation R.R. Co. v. Serv. N. 497, 500-01, (discussing 269-70 Moun White Apache). tain First, rejected 808 P.2d at this Court Mont. chose apply Apache

Iron Bear and White Mountain the issue support obliga enforce whether the state could an out-of-state of an Indian who on against tion the off-reservation income resided Supreme We determined that because the U.S. Court a reservation. authority involving jurisdic the final on matters tribes and tribal tion, by White Mountain followed Iron Bear Apache and because years, Apache, should from White Mountain apply seven we test the White subsequently applied Apache not Iron Bear. We Mountain 559, Marriage 258 test in re Mont. P.2d of Wellman ability court’s to and distribute apportion which considered state pursuant marriage Indian trust land to dissolution an Indian her non-Indian husband. woman and here, analysis our need not our purposes For we revisit First and Wellman to determine whether those claims

decisions in application an the White Mountain represented appropriate First, 473, Mont. 808 at 472 preemption test. See at P.2d Apache action, accordingly, (characterizing the matter “collection custom.”). dominated How affair] tribal tradition and [a domestic any uncertainty create about ever, to the extent those cases apply disputes Court in future over test this shall which courts, here that Iron and a we hold Bear tribal and state between adjudicatory in the sovereignty-based analysis applies principally context, while White Apache Mountain preemption test shall be the starting point in a regulatory dispute. Although two tests and lines of analysis appear quite

similar, they substantially are different. Either one alone represents a sufficient basis to find that the state court lacks subject matter jurisdiction. See Milbank Mut. Eagleman Ins. Co. v. (1985), 218 Mont. 58, 61, (citing P.2d White Apache, Mountain 448 U.S. 142-43, 672). at 100 S. Ct. at 65 L. Ed. 2d at sovereignty analysis pursuant Bear, to Iron although phrased to focus on the jurisdiction, state’s exercise of ultimately turns on the breadth with which we define tribal sovereignty and the degree to which we recognize a tribe’s exercise of On the hand, other preemption analysis of the stake, various interests at pursuant Apache, White Mountain focuses less on the tribe as a sovereign nation and more on the sufficiency of the state or federal interest in overcoming the tribe’s right govern itself. Compare Limpy, 195 Mont. at 636 P.2d at 269 (applying Iron Bear to a marriage Indians) (“Sound dissolution between reservation public policy re that the quires Tribal Courts should have the to interpret their Tribal has Constitution and Tribal law where the Indian Tribe established a functioning forum for adjudicate themselves to contro children.”) affecting versies of their Wellman, with Mont. at 852 P.2d at 565 (applying White Mountain Apache to a ability state court’s dispose of Indian trust land pursuant to a dissolution) (“In marriage short, the state’s interest the property and proceedings at issue is inconsequential compared with the fed stake.”). eral and tribal interests at The fundamental difference is adjudicatory situation, civil activity all Indian land is generally presumed to rest in the court, consequently, requires analyze that we state exercise of in terms of its infringement on the tribe’s inherent sovereignty. See Strate, 1412-13, 117 S. Ct. at 674-75; 137 L. Ed. 2d at Iowa Mut. Ins. Co., 977-78, 480 U.S. at 107 S. Ct. at 94 L. 2d 21; Fisher, Ed. 386-89, 946-47, 424 U.S. at 96 S. Ct. at 47 L. Ed. 2d at 110-13. E. Concurrent v. Exclusive Jurisdiction jurisdiction The issue of which court ¶48 has to determine custody matters pursuant child to a dissolution clearly adjudi is an catory matter, such, and as apply we here the traditional sovereignty Bear, Fisher, analysis of Iron and Williams. and Stewart Limpy marriage both involved actions,

¶49 dissolution parents in which both and their children were Indian and resided on

421 relied on statements in those cases Our decisions reservation. the advisory opinions, its either its Tribal Code or tribe, through the from over dissolution actions had the tribe exclusive that such, we on the reservation. As its members who resided between that exercise of pursuant to Iron Bear state concluded See self-government. on tribal infringement constitute would 269; Stewart, Mont. at 318-19, 636 P.2d at 187 195 Mont. at Limpy, P.2d 292. at however, the district Stewart, we described Limpy In a matter obligation not to exercise of abstention court’s the court shares concur comity, implies which district based 195 at Limpy, with tribal court. See Mont. rent 269; Stewart, Mont. at 609 P.2d at But see P.2d at 187 292. 636 (also at L. Ed. Fisher, 424 U.S. at 96 S. Ct. 47 2d at 113 reservation) (“Since involving parties two Indian who resided on the appropriately litigation arising [matter] is characterized as on the exclusive.”). reservation, of the Court Tribal Indian no Although practically parties, different to relative exclusive substantially the tribal court is different as a matter jurisdiction for comity, to law from district court’s decision abstain as a matter of consider, Fisher, the if as in decline of author especially potential we Our here ity goes step in the tribal court. decision further than in Limpy recognize and Stewart difference. The facts us the first time that Court has represent before this jurisdictional rights determine the of a court in asked to district

been to a court in a domestic matter between one Indian relation Bertelson, parent. and one non-Indian See Mont. parent (involving custody dispute an Indian child between Indian P.2d grandparents who resided on a reservation with the child paternal mother). and a non-Indian Bear Bertelson, implicitly applied test, we the Iron but held apparently not an Indian and did not the mother was

that because reservation, the child’s involved on the and because reside reservation, Williams-type infringement events off significant nothing court’s prevent and there was district apply test did importantly, this Court held that al Most exercise jurisdiction, shared concurrent though the state and tribal court many unique re consider and balance factors court should district before decided whether or not garding Bertelson, 532-41, P.2d jurisdiction. See Mont. exercise Zier, 464, 126-30. See also 230 Mont. 750 P.2d (applying factors Bertelson), from Bertelson, however, provided very cursory analysis

¶53 of tribal sovereignty, upon significant based the fact that events related to the custody child’s had occurred off the reservation and that Fisher and only Williams applied to actions arising on an Indian reservation. Bertelson, 530-31, 189 Mont. at 617 P.2d at 125. Bertelson,

¶54 we stated that the significant most factor for a district court’s determination whether to jurisdiction exercise should be the best interests of the example, child. For in a discussion applicability, of the ICWA’s we stated that “a state court should respect policy federal rights consider the ofthe child and the tribe in deciding accept whether to jurisdiction.” to decline Bertelson, 533, 189 Mont. at Later, 617 P.2d at 126. in a discussion of conflict of laws we principles, “[w]riters stated that in this field generally agree any choice of law rules jurisdiction with regard must give way to the child’swelfare as the determinative jurisdiction touchstone for though even it is also the basis for deciding custody disputes on the Bertelson, 534, merits.” 189 Mont. at 617 P.2d at Finally, 127. it held: “Arguably, either the state or the jurisdiction. tribe could assert question is to determine which forum is better able to determine the best welfare of the child—the controlling principle determining jurisdiction.” Bertelson, 538, 189 Mont. at 617 P.2d at 129. We reiterate here that the best interests of the predominant should be the factor in the determination ofwhich court jurisdiction should have in a matter that involves an Indian child. We any further assert that in matter so essential to tribal relations as a involving matter parent and Indian child who land, reside on Indian we must presume that the tribal court has jurisdiction and consider the potential state exercise jurisdiction infringement terms ofits sovereignty. on tribal Based on these two criteria, we conclude as a matter of law that a more reasoned ap proach for the courts of recognize this state is to exclusive tribal in child proceedings between parents where at parent least one is an Indian and that parent resides on the reserva tion with an Indian child. As a matter of sovereignty, tribes are presumed to have activity over the of members and non-members alike Wellman,

within exterior boundaries of the reservation. See (“[CJivil 137, Mont. at 852 P.2d at 563 over activities non-Indians as well as Indians on reservation lands presumptively court.”) Fisher, 943, 424 U.S. 96 S. Ct. (citing lies in the 18, 20, 106); v. Pierce Gieger Ed. 2d 47 L. (“Generally jurisdiction over commercial activities civil affirmatively courts unless limited lies in the tribal presumptively statute.”) Iowa Ins. (citing or federal Mut. treaty, provision specific 16). Ct. at 94 L. Ed. 2d at Co., U.S. at 107 S. would in a state court’s exercise Where itself, govern may the state not exercise right the tribe’s fringe on recognized having exclusive and the tribal court is Fisher, 424 U.S. at 96 S. Ct. at 47 L. Ed. See (“Since appropriately is charac adoption proceeding the 2d at 113 reservation, the arising on the Indian litigation terized as exclusive.”). Court is of the Tribal 1119-20, 218 Mont. at 705 P.2d at which Eagleman, In against a judgment the enforcement of a default resident

involved analyze Indian, potential relied on the Ninth Circuit’s test to we self-government: infringement on tribal self-government implicated interest could be in one A tribe’s ways. First, dispute if a state or federal court resolves a of two nonju- the courts or other province was within the of tribal which institutions, that court law-applying impinge dicial tribal would within adjudicate arising to controversies it. right the tribe’s upon question validity the Second, dispute if the itself calls into fairly governmen- of an act attributable to the tribe as a propriety directly body, self-government is drawn into the contro- tal tribal versy. exclu- recognized generally that the tribal court is

We have adjudication disputes affecting of the interests forum for sive arise on the reservation. Indians and non-Indians which of both (9th 1983), 719 Belknap v. Fort Hous. Auth. Cir. R.J. Williams Co. (involving dispute performed contract over work on a F.2d omitted). reservation) (citations area of child specific another federal case to reflect custody, in Bertleson we cited authority: sovereignty “If self-governing tribal nature of the tribe’s juncture history, it must any meaning at all at this have to and mem within its own boundaries necessarily right, include the young, of its a sine upbringing for the care and bership, provide Bertelson, 189 Mont. at identity.” of its preservation to the qua-non Potowatomies v. Houston (quoting Wisconsin 539, 617 P.2d at (W.D. 1973), Supp. 719, Mich. 393 F. which the perma- involved children). orphaned nent Indian previously The facts before us are a variation of discussed They non-resident, present situations. one parent, non-Indian and Indian parent Reservation, one an Indian child who reside on the that a which indicates determination the tribal court would extend authority just the tribal to more than own its members. More impor- tantly, custody dispute the nature of a between a resident Indian parent non-resident, a non-Indian a parent means it lacks Nonetheless, clear situs either or off reservation. we are not guidance without about a interpret sovereignty how tribe’s its right self-government attendant in this context. clearly The ICWAis one source. It articulates how impor

tant children are to continued existence of Indian tribes 1901(3) (“[TJhere country. within this See 25 U.S.C. is no § resource integrity is more to the vital continued existence and of Indian children”). Especially tribes than their when Indian children reside reservation, they represent single on the most critical resource to ability to identity the tribe’s maintain its and to determine its future self-governing entity. such, aas As we cannot think of a more legiti necessary mate and manifestation of self-government tribal than the have right tribe’s a role in determination its member Any children who reside on the reservation parent. with enrolled exercise of state court reservation Indians in matter, already recognized by domestic which is this court uniquely nature, much less over the legacy tribe’s —its clearly infringe sovereign power children —would on the tribe’s to right keep itself and its to its internal free govern relations from state M.R.D.B., In authority. 459, See re at P.2d Mont. at 1221 (“[T]hese seriously ability practices undercut the tribes’ to continue self-governing Probably communities. in no area it more impor as is be sovereignty respected socially tant that tribal than in an area as as culturally family and determinative relationships.”) (quoting Con testimony on the ICWAcited in Band gressional Mississippi Choc of 37). 34, Indians, taw 490 U.S. at 109 S. Ct. at 104 Ed. 2d at L. Fisher, Court in Supreme As the U.S. stated state exercise ¶61 decline authority bring authority. may corresponding about a in tribal (“An Bertelson, also at P.2d at 129 assumption See Mont. custody disputes poses state Indian child court conflicting potentially risk of decisions which threaten substantial authority.”). We to decline in tribal decline here undermine the tribe’s merely because that entity suggestion the sovereign with as a position contacts off-reservation significant has child also Indian a resident authority to exercise its parent, his non-Indian through land is reside on Indian members who over its matters in domestic depend tribes on which safeguard the conceptual As jeopardy. put right at least the must include identity, sovereignty their protect to tribal boundaries. authority over members within to exercise facts, United these the yet has to address Although it ¶62 for to define tribe’s another source how Court is Supreme States articu Montana, exception the second in this context. sovereignty over nonmember recognized Court tribal by the lated integrity, directly political affects the tribe’s that threatens conduct Montana, 450 U.S. at See security, health, or welfare. economic Moreover, Williams, the L. Ed. 2d at 511. at 101 S. Ct. essential tribal relations only could act “where that states Court held of Indians would not be rights and where were not involved at 3 L. Ed. 79 S. Ct. Williams, 358 U.S. ....” jeopardized custody dispute which involves that in a child conclude 2d at 253. We child, enrolled both person’s tribal member and an enrolled Reservation, state of the the exterior boundaries whom live within welfare, integrity and political threaten tribe’s jurisdiction would resides is a non-Indian who dispute to the though party even another off the Reservation. exclusive recognize to core, its our decision At involves an Indian child custody matter that in a child

the tribal court is based on the Reservation who reside parent least one Indian and at interest of the child. on the best the fundamental and the PKPA recognize in the UCCJA We disputes in matters jurisdictional overwhelming opposition long that as as courts They clearly for the idea custody. stand child, the custody of the eventually determine will over who

fight established, balance, as has been well in the hangs child’s future best interests. delay not in the child’s regarding in cases factors are, however, significant other There expertise clearly reflects The ICWA Indian child. custody of an the child in interests of the best courts to determine tribal of the children’s of these aspect heritage, or her of his context regain. impossible lost, difficult if if will be lives that future expertise the tribe’s acknowledged frequently Court has This distrust reason now to ICWA, have no and we in the identified interests ability distinguish best experience court’s just of the child because the terms of the ICWA do not apply to the specific facts before us. We also appreciate that domestic matters like potential this have the especially to be contentious and divisive for families, a sad fact that often greater inflicts harm on the child than already changes difficult that occur after a marriage dissolution. The additional opportunity to contest the forum that will determine controversy merits their has the further potential to create animosity between the parties. Although minor in comparison to the injury child, to the we recognize that a dispute jurisdiction could similarly have a detrimental effect on the relationship between courts and on the parties’ perceptions of the court ultimately exercises custody and makes the determination, which is of no advantage to either court any of the parties. here, We act part, to reinforce the authority tribal court’s as an arm of the tribe’s sovereign power, but also to public eliminate manipulation of the judicial system as a whole. above, As mentioned our decision goes here a step further

than the doctrine of abstention promulgated in Limpy Stewart, as recognition well as Bertelson’s of concurrent with a preference appreciation for the attributes of We are motivated in part to avoid concurrent because it fails to serve the best interests of the child. We have in the past seen state courts and tribal together courts work in the best interest of the child. For example, in Zier we stated:

[W]e commend both the District Court and the Crow Tribal Court spirit for the obvious of cooperation between them. The District Court’s decision defer to the Tribal Court’s avoids competition and courts, conflict between promotes the pur- poses 40-7-102, of the MCA, [UCCJA] set forth in and discour- ages continuing custody. battles for 230 Mont. at 750 P.2d at 1084 (affirming, pursuant Bertelson, court). the district court’s decision to defer to the tribal Even with cooperation courts, however, the ultimate delayed determination was significantly by the parties’ ability to appeal jurisdiction, the issue which was not in the best interests of the child. A rule of law from this Court that promotes even the delay threat in child proceedings is not in the best interests of the child. Seven Indian Reservations exist within boundary. Montana’s such,

As marriages life, and, interracial are a fact of as with other so marriages, are interracial divorces and custody disputes over the marriages. seriously obligation children of those We take our to the marriages, obligation children of these as well as our to respect the of Indian tribes in relation to our sovereignty responsibility own to generally and enforce the laws of this state. See In uphold Adoption re (“[W]e (1996), 277 Mont. 922 P.2d 510 stated that it was of Riffle duty preserve unique our constitutional to the cultural and heritage Indians.”); integrity of the American In re M.E.M. (“In

329, 333, applying 1313 our state and the [ICWA] P.2d law of our to cognizant responsibility promote protect we are and the of our for all unique generations cultures state future Montanans.”). recognize We here that when the child does not reside on reservation, custody

the principles necessarily do not favor recognition of exclusive the clearly for tribe as as when addition, the Indian child resides on the reservation. the tribe’s stake, is less at since sovereignty sovereignty implicated is most seriously in matters that involve tribal reservation; members on the although Indian children manifest a fundamental aspect of the tribe’s sovereign power, when child does not reside on the reservation authority clearly tribe’s not so undermined the exercise of jurisdiction. Accordingly, state we hold that when an Indian child reservation, resides off the the state court and tribal court share jurisdiction. concurrent However, we note that even when tribal is not

exclusive, this Court suspend has been reluctant the tribal court’s jurisdiction just may jurisdic because state court have concurrent custody tion in a proceeding Bertelson, of an Indian child. See (“[W]e at 617 P.2d at 126 Mont. do believe that state courts should, nature, in a case of automatically assume this may That a state court assume in a case of this nature is should.”). say not to that it We held in Bertelson that to its choice prior to exercise court

jurisdiction, hearing a district should conduct a “to determine equipped which forum is better to make a determination on the is, merits, Bertelson, determine the child’s best interests.” 617 P.2d at Mont. 130. We directed district court at the hearing inquiry, giving to conduct a substantive due consideration to identity, ethnic and cultural as to: the child’s relating existence of tribal law or tribal customs to child care [T]he sort; personal and in cases of this the nature of the child’s mother; and relationship grandparents [his] [his] with with adjustment child’s assimilation into and to life in the tribe and on reservation; the mother’s ethnic cultural background [tribe]; membership length or ties to the of the child’s reservation; on and off the residence both domicile and resi- child’s personal relationship dence of the father the child’s father. [his] with

Bertelson, 189 Mont. at 617 P.2d at 130. We also directed the 40-4-211, 40-4-102, 40-4-107, 40-7-108, court to consider district §§ MCA, parents as well as the contacts of the child and the to the tribe state, deciding and the and “the tribe’s interest of one Bertelson, of its members ....” Mont. at 617 P.2d at 130. In factors, court, deciding addition to these a district when whether to jurisdiction, should consider the policy exercise concurrent interests here, would, described and whether its exercise of case, specific authority reasons to the facts of the undermine tribal way right self-government. as to on the tribe’s infringe in such

CONCLUSION Here, the record about the child resided is unclear where ¶71 when Shane initiated the dissolution. “Because welfare of young stake, is at we are concerned that a final decision innocent jurisdictional questions presented be based on accurate factual of the Bertelson, Although Mont. at 617 P.2d at 124. information.” Stacey petition the record indicates that Shane served with the for reservation, parties, including dissolution off the and that all the time, Kinsey, reject at the we the notion that their mere present were and, Forsyth enough in at the time is to establish residence presence consequently, jurisdiction for the state court. See 40-4- § concurrent 211(2), MCA. 1-1-215, MCA, sets forth the rules that should be Section person’s generally Reg. determine a residence. See 44 Fed.

applied to (1979) (BIA is to guidelines stating state law be ICWA). It defining in the term domicile as used in the upon relied states:

(1) person remains when not called place It is the where special temporary purpose other or and to elsewhere for labor or in of repose. returns seasons person which (2) only person residence. If a claims a may There be one any then that location is purpose, residence within Montana specific purposes for all unless there is person’s residence statutory exception.

(3) gained. A cannot be lost until another is residence (4) or, parents The residence of a minor’s if one of them is they residence, do not share the same the residence of deceased or, having legal custody parent legal if neither has parent custody, parent the residence of with whom the minor custom- arily resides is the residence of the unmarried minor. In case of a controversy, may the district court declare which parental resi- dence is the residence of an unmarried minor.

(5) The residence of an unmarried minor who has a parent living changed by cannot be either the minor’s own act or that of the guardian. minor’s

(6) changed only by The residence can be the union of act and intent. these factors should the District

Accordingly, guide Court in its Stacey’s Kinsey’s determination residence the time that petition filed the for dissolution. Shane We reverse the District Court’s order. We remand to the Stacey District Court to determine first the residence of and the child. Kinsey Stacey reservation, If it finds that were residents of the pursuant holding here, to our it can take no further action other than 12(h)(3) M.R.Civ.P; the case. See Rule Gieger dismiss v. Pierce (1988), 18, 21, 279, 281; 233 Mont. 758 P.2d In re Marriage Lance 182, 186, 981. Court, We further order the District if it finds that the child was not a resident the reservation and that shares concurrent court, with the tribal to consider the factors from Bertel- describe above son that we so as to determine whether the tribal court or the District Court would be better able to determine the best interests of the child. TURNAGE, REGNIER,

CHIEF JUSTICE JUSTICES LEAPHART and HUNT concur. concurring part

JUSTICE NELSON specially dissenting part. court, a majority prior I concur with the that district to custody proceeding over a child when such

assuming court, concurrently with a tribal must conduct jurisdiction is shared majority opinion the factors enumerated in the inquiry based on or decline to exercise accept whether the court should to determine bar the Furthermore, agree I that in the case at that residency Stacey and record is unclear as to the of both District Court 430

Kinsey. regard, importance, complexity In this due and sensi- case, I tivityof majority’s this concur with the decision to remand this Stacey’s Kinsey’s case to the District Court determine and resi- at the time Shane filed a petition dence for dissolution with the However, District Court. because this dissolution involves both an and a non-Indian parent parent who has never resided on the parent’s heritage, Reservation as well as a who shares each I Stacey’s disagree majority Kinsey’s with the residence either on or offthe Reservation is determinative of whether the Tribal Court subject jurisdiction. Rather, matter has exclusive or concurrent I Stacey’s Kinsey’s that regardless conclude residence on would Reservation, Peck or offthe Fort District Court and the Fort Peck concurrent Consequently, Tribal Court share this case. Stacey’s Kinsey’s the District Court should consider residence as many only majority opinion one of factors set forth provide appropriate determine which court would the most forum for custody, and, therefore, determining Kinsey’s which court should basis, I jurisdiction. Upon respectfully exercise this dissent. express proceedings The exclusion of divorce from the ICWA’s coverage Congress’ illustrates intent that state and tribal courts custody concurrent over Indian child pro- should share ceedings arising proceeding within a divorce between an Indian parent. and a non-Indian As Fourth Circuit Court of parent Appeals stated: statutory clearly may exclusion indicates that a state court

This lawfully parent award of an Indian child to a non-Indian proceeding. [ICWA] in a does not confer exclusive divorce jurisdiction on either a tribal court or a state court to award Rather, proceeding. [ICWA] of children in divorce Congress recognized that there can be concurrent discloses jurisdiction in state and tribal courts. (9th

Larch, (comparing 1988), 872 F.2d at 69 Sanders v.Robinson Cir. 630, 633, denied, U.S. 109 104 864 F.2d cert. 490 S.Ct. (1989)). Consideration of other case law leads to the L.Ed.2d conclusion. same exclusivity acknowledge We involving residing actions tribal members on the reserva

dissolution Wellman, 135-36, 852 (citing Limpy, P.2d at 562 tion. See 258 Mont. Stewart, Mont. 636 P.2d 266 and 290). Fisher, 382, 424 U.S. S.Ct. L.Ed.2d Compare exercised exclusive over a (holding that tribal court all the were enrolled custody dispute parties wherein members reservation). residing However, on the a dissolution once action parties a and/or party involves non-Indian one of the resides off the reservation, jurisdiction is no longer tribal considered exclusive. For example, Wellman, brought in tribal a a member dissolution action husband, court her non-Indian against although they in state both noted, dicta, on the Blackfeet Reservation. We in “[n]o resided that in suggests such a case the Tribal precedent that Blackfeet Court has jurisdiction dissolution, the that exclusive over exercise of concur jurisdiction by a district court with rent state interferes tribal self- Wellman, 136, 258 Mont. at P.2d at government.” 562. See also (without Sanders, reaching question 864 F.2d the of exclu tribal the Ninth jurisdiction, explained sive Circuit that the tribal necessarily jurisdic court had at least concurrent but not exclusive brought by non-Indian, over a against tion divorce action an Indian reservation). the both whom resided on Similarly, the South Dakota Court Supreme has determined once a no longer divorce case involves two tribal members reservation, residing on the the state and courts exercise (S.D. subject jurisdiction. 1990), concurrent matter See Wells v. Wells Wells, 451 N.W.2d 402. In brought off-reservation wife against action in state divorce court her Indian husband who resided Court reservation. The determined that the state and tribal jurisdiction courts exercised concurrent this divorce action. Wells, 451 test, N.W.2d at 405-06. Under the Williams infringement court once reservation, determined that the wife resided off the state acquired an interest and the divorce no marriage was Wells, exclusively longer a “reservation matter.” 451 N.W.2d at 405. case, By adjudicating only the state court exercising was its own right concurrent and tribe was not denied the to make Wells, enforce its Compare own laws. 451 N.W.2d 405. Bertel (“Indians son, 189 Mont. at 617 P.2d at 129 who reside off reservation, general rights as a rule have the responsibili same subject ties are of state courts in the same citizens”) (citing Apache as state manner Mescalero Tribe v. Jones 114). 411 U.S. 93 S.Ct. 36 L.Ed.2d case, subsequent In a the court that under this explained jurisdiction, the court which obtained valid personal concurrent first Young could parties adjudicate over the the case. Harris v. (S.D. 1991), Harris, 145. In the South Dakota N.W.2d Court determined that state and tribal courts share concur- Supreme party an Indian domi- over divorce actions between rent party a non-Indian domiciled elsewhere a reservation and ciled on Harris, explained 473 N.W.2d at 145. The court the state. within in this case was even more subject matter concurrent not an parties because one of the was than Wells compelling domiciled on the of the tribe and had never been enrolled member Harris, 473 N.W.2d at 145. reservation. in addition to who the court considered other factors the trial court’s exercise they and where lived to affirm were

parties daughter involved in the case The court noted that the tribal enrolled member and that the tribal code allowed yet not an was only by stipulation of type over this of suit jurisdiction to have courts Harris, at 145. The court said that these two 473 N.W.2d parties. the jurisdiction concurrent not that the assertion of state factors showed test, but that it was “com- infringement the only passed Williams Harris, 473 provisions ofthe tribal code. N.W.2d specific pelled” that because the Indian wife had Finally, the court said at 145-46. restrain the non-Indian system the state court used previously say could not now that rights, his visitation she exercising father from infringed subject matter because court lacked the state “opportunistic The court considered her actions sovereignty. Harris, at 146. ....” 473 N.W.2d self-serving [and] above, precedent suggests discussed no seen from the cases As ¶81 Court would exercise exclusive the Fort Peck Tribal that Kinsey Stacey on remand that and District Court finds even if the in at the time Shane filed for dissolution the Reservation resided on Rather, a conclusion that support these cases Court. District Clearly jurisdiction. share concurrent and Tribal Court District Court Kinsey Stacey and did by the District Court then, finding in filed for dissolution at the time Shane on the Reservation reside for the same compelling even more basis provides District Court conclusion. Court District Court and Tribal concluded that the Having regardless action of whether jurisdiction in this concurrent

share Reservation, point I would also Kinsey resided on or offthe Stacey majority in the enumerated to the factors that, in addition out as to provides guidance Code itself Fort Peck Tribal opinion, action. present in the exercised properly court which Stacey’s and Kin- determines that First, if the District Court Code Reservation, the Fort Peck Tribal was off sey’s residence exercising jurisdiction Court from the Tribal preclude itself would this and child VI, divorce matter. Title 301 of the Fort § Code, grants Peck Tribal subject tribal court matter over divorce actions and related proceedings involving non- only Indians if certain prerequisites are met: Court shall have over annulment, divorce and any custody, child paternity, property, division of support alimony pursuant decree to such divorce, annulment or where at (1) least one party marriage Indian, to the is an and at least one (1) has party been a bona resident within the bounda- fide (90) ries the Fort Peek period Reservation ninety days immediately preceding filing the action. [Empha- added.] sis Here, parties do not dispute that Shane resided offthe Reserva- tion; therefore, if the evidence shows Stacey Kinsey did not reside on the Fort Peck Reservation the time Shane filed for Court, dissolution in the District jurisdiction of the Fort Peck Tribal Court Stacey would not be invoked because would satisfy fail to requisite period. hand, time On the other if the evidence shows that Stacey Kinsey did reside on the Reservation at the time Shane filed for Court, dissolution the District the requirements of Title VI, 301 of the Fort Peck § Tribal Code would be satisfied and the Tribal Court could also exercise However, in the bar, Stacey case at never filed for dissolution Court, and, consequently, Tribal she never invoked the court’s

jurisdiction pursuant VI, to Title 301 of the Code, § Fort Peck Tribal and, therefore, her residency on or offthe Reservation is immaterial. Rather, Stacey jurisdiction invoked the of the pursuant Tribal Court VI, to Title 304a of the Fort Peck Code, by § Tribal petitioning for custody Kinsey after the District Court determined that Shane primary should be custodian. In response Stacey’s petition, the Fort Peck jurisdiction Tribal Court exercised its and awarded her tempo- rary custody the day. VI, same Title 304a of the Fort § Peck Tribal Code provides: authority

The Court shall have custody to determine of children parents legal as between guardians, or as between parents legal guardians anyone with actual physical custody of the child, pursuant either to a otherwise, court order or where there is no divorce or annulment proceeding pending. [Emphasis added.] Stacey’s invocation ofthe Tribal Court’s in this case improper. proceedings

was Once dissolution are commenced within a 434 court, to make child the state court has

state district 40-4-211, Additionally, MCA. Mon Section custody determinations. custody over child matters. See continuing tana exercises 534-35, 617 Cobell v. Bertelson, (citing Mont. at P.2d at 127 Cobell (9th denied, 421 U.S. S.Ct. 1974), 503 F.2d cert. Cir. (1975)); Cobell, (citing Barbour v. 503 F.2d at 44 L.Ed.2d 1093). Moreover, VI, Title 134 Mont. Barbour terms, juris Code, by placed Peck its own of the Fort Tribal 304a § because the state Kinsey’s custody in the District Court diction over already pending. dissolution was only Stacey improperly petition did regard, In this custody, improp the Fort Peck Tribal Court for child but

Tribal Court with its interim order while into this case erly jumped jurisdiction. point The to be made exercising was still District Court jurisdiction, an sovereign’s exercising courts are is that while one the forum court settles courts should abstain until sovereign’s other Here, Stacey opportun did the same any upon attack its Supreme the South Dakota istic, self-serving thing condemned is, Stacey used the District Court while happily in Harris. That Court in of the the District Court favor way, her but abandoned things went so. This sort of purposes it served her to do Court when Tribal princi is antithetical to the shopping forum unseemly, opportunistic stability majority opinion espouses. ples of deference Farms, Koyama very thing Agri West v. fact, condemned this we are P.2d 808. If Montana courts (1997), 281 Mont. Inc. on-going litigation tribal court interfering from required to abstain higher or until a court determines lacks until West, at determination, Agri court makes right have the 812-13, litigants Montana courts and at then P.2d is, That deference from tribal courts. the same expect, and do expect) of abstention to adhere to the same sort tribal courts they expect in National Supreme United States Court adopted by the principle as at_, Strate, 117 S.Ct. Mutual. See 520 U.S. and Iowa Farmers at 672. 1410, 137 L.Ed.2d court has exclusive that a tribal majority concludes The where parents between proceedings “child resides on the parent Indian and that is an parent one

at least conclusion, this support Indian child.” To reservation with rule general to the exception on the second primarily majority relies forth in the statutory as set law inapplicable and on in Montana justifies this conclu- majority PKPA, and the ICWA. UCCJA, the

435 core, by recognize “[a]t that its our decision to exclu- explaining sion custody a jurisdiction for the tribal court in child matter that sive at parent an Indian child and least one Indian who reside on involves interest of the the Reservation is based on the best child.” Yet, that, case law establishes absent authori- express “[o]ur by treaty, zation federal statute or over the conduct Strate, only of exists in limited circumstances.” 520 nonmembers U.S. at 670 at_, (discussing Oliphant, 117 S.Ct. at L.Ed.2d 1011, 191, 209, Montana, 98 S.Ct. 55 435 U.S. L.Ed.2d 450 U.S. 493). Here, majority 101 S.Ct. 67 L.Ed.2d the strains to “give” parents tribal courts exclusive over nonmember custody proceedings involving Native American children child namely, UCCJA, wedging inapplicable legislation, the PKPA and ICWA, is, majority into the second Montana That exception. awkwardly to a into struggles pound square peg And, a round hole. doing so, they destroyed judicial have the line separating legislative authority legislated and have improperly new law to goal the benevolent of that child ensuring custody place- effectuate parents ment as between is in the best interests of Indian children. any custody I that in agree proceeding While child the best predominantly, interests of the child standard should factor I dis alone, agree disregard that based on this reason this Court should concept separation powers. Furthermore, the fundamental of I disagree that the best interests of the child standard should be used controlling to determine a principle as the whether court possesses subject custody matter over a child case as a matter of Rather, only subject after concluding possesses law. that matter jurisdiction should a court use the best interests the child standard determine to whether controlling principle that exercise Bertelson, jurisdiction. See at Mont. P.2d at 129. Admittedly, previously policies we have looked to the of nonap custody incorporate child statutes which the best interests plicable reviewing of the child standard when court’s decision to exercise subject involving matter cases Native generally Bertelson, See American children. Mont. . (asserting although apply

P.2d at 126 the ICWAdid not to the case, “respect policy state courts should federal and consider instant rights deciding accept child and the tribe in whether to Zier, 230 Mont. at 750 P.2d at 1084 jurisdiction”) to decline deferral (commenting district court’s promotes purposes tribal court in a child matter of the UCCJA). However, rely nonapplicable custody statutes incorporate standard, which the best interests of the as the does, majority to determine as a matter of law whether a court subject matter again entirely is an different possesses is, by using the matter. That best interests of the child standard as a controlling principle to conclude that tribal courts exclusive possess cases, subject matter over certain Indian child majority erroneously discretionary the inserts a standard a into of in question Nothing prior suggests fundamental law. our case law majority’s analysis the current and decision is appropriate. Moreover, majority the has adopted interpretation application and directly here that is inapposite provisions of federal law to the of the itself and renders this rationale and the incorpo- law decision which subject rates it to attack in the federal courts. general jurisdiction, majority In its discussion of tribal the that,

acknowledges general subject excep the rule of Montana to two tions, authority Indian tribes lack civil over the conduct nonmem reservation, land the bers on non-Indian within absent different Montana, 563-67, Congressional direction. 450 U.S. at 101 S.Ct. at However, 1257-59, majority at 509-11. the 67 L.Ed.2d submits that Montana, general to the rule in exception recognizing the second tribal over nonmember reservation conduct that threat directly political integrity, security, affects the economic ens or tribe’s welfare, in applies support application health or this case. To the here, majority compares the this case exception the second Montana Fisher, explaining example that Fisher was cited as an of the Montana, Montana and Strate. See exception second Montana both Strate, 566, 101 S.Ct. at 67 L.Ed.2d at and 450 U.S. at at_, compari 117 S.Ct. at L.Ed.2d at 678. With this U.S. the a son, majority lays the foundation for conclusion when child parents involves an enrolled member and that custody dispute between reside the exterior ofthe child, both ofwhom within boundaries person’s reservation, recognized must be as exclusive avoid Fisher, See authority in the of the Tribal Court.” causing a “decline at 112. 388, 96 S.Ct. at 47 L.Ed.2d U.S. at at However, factually distinguishable from the case Fisher misplaced. reliance on Fisher is bar, and, such, majority’s termination rights adoptibn and pre-ICWA parental a Fisher involved (the parents, biological all the foster parties in which proceeding child) Cheyenne of the Northern mother, were members recog- Cheyenne of the Northern Reservation. and residents Tribe court, the jurisdiction of the tribal United States nizing the exclusive explained: Court Supreme plainly powers would interfere with the

State-court Cheyenne conferred the Northern Tribe self-government upon subject It dispute Court. a through exercised Tribal would among Indians to a arising on the reservation reservation they the one As other than have established themselves. forum illustrates, it would create a substantial risk of present record conflicting adjudications affecting the child authority corresponding decline of the Tribal would cause Court. 388-89, at

Fisher, 424 96 S.Ct. L.Ed.2d at U.S. added). (emphasis Fisher, custody dispute in the case Unlike in at bar does rights adoption termination and parental proceeding

not involve a reservation; Americans residing Native between enrolled rather, custody dispute resulting from a involves dissolution an parent parent. between Indian and a non-Indian proceeding Fisher, Furthermore, presently unlike in the situation us before “dispute arising on exclusively cannot be labeled as a the reserva- Here, Kinsey’s non-Indian father resided on the Reser- tion.” never Therefore, if the Stacey even did reside on Reservation with vation. custody, custody times and Kinsey during physical the she had Kinsey parents of still were between both and occurred split visitation Consequently, the holding both on off the Reservation. Fisher the distinguishable provide including and fails to an avenue therefore, exception, and, case the Montana present within second majority’s Peck support the ultimate conclusion the Fort fails Stacey if Kinsey Court had exclusive did reside Tribal on the Fort Peck Reservation. Next, majority “analogizes] policy the the considerations so, majority acknowledges PKPA.” doing UCCJA and the the

the the of “state” in the UCCJA and PKPA does that the definition used this, majority tribes-r the specifically Despite include Indian not the consequence policy-based omission “of no characterizes the engage PKPA that here.” And with analysis of the UCCJA we boldly compare that “we will disclaimer, majority states this and the meaning of UCCJA tribes to territories within ” majority support comparison, of‘state.’ To this PKPA definition Day, jurisdictions as well as our decision in cites cases from other 170, 900 P.2d 296. Mont. only Day Not does our decision in legitimize fail to major-

ity’s but comparison, opinion issued the Ninth Circuit Court of (9th Appeals, Marchington Wilson v. 1997), Cir. 127 F.3d sets analysis forth an showing the impropriety such a comparison. In Marchington, the Ninth Circuit Appeals Court of concluded that principles comity, principles not of full credit, faith and govern whether a district court recognize should and enforce a tribal court judgment. Marchington, conclusion, 127 F.3d at 808. To reach this that, by terms, court noted its own the Full Faith Clause, and Credit IV, Article Section 1 Constitution, of the United States only applies Marchington, to states. 127 F.3d at Furthermore, 808. the court noted legislation that the initial implementing clause, this constitutional 1738, passed 28 U.S.C. in 1790 § and modified in only was modified to include possessions. territories and Marchington, 127 F.3d at 808. No where were Indian tribes referenced in either constitutional clause or the implementing legislation. Marchington, F.3d 808. The court many considered factors to Congress conclude that did not intend to include Indian tribes under the Full Faith and Credit Marchington, First, Clause. 127 F.3d at 808-09. pointed the court out subsequent statutes, ICWA, including the 25 U.S.C. 1901 et §§ seq., expressly extended full faith and credit to proceed- certain tribal ings. Marchington, 127 F.3d at 809. The court concluded that such an inclusion necessary would have been if full faith and credit had already been extended to the Indian Marchington, tribes. 127 F.3d at Second, 809. the court specifically noted that Congress’ separate listing territories, possessions and Indian tribes the ICWA Congress indicated that did not synonymous. consider these terms as Marchington, Further, 127 F.3d at 809. pointed the court out that if intended to include Congress Indian tribes under 28 U.S.C. § specific it could have either made reference to them in the 1804 amendments made or additional amendments to the statute after ambiguous judicial Marchington, constructions surfaced. 127 F.3d at 809. The court concluded: history,

Given this imprudent would be of us to now construe phrase possessions” the “territories in the 1804 statute to meaning Congress assume the of the in language used the Indian (“every Child Welfare Act territory possession or of the United tribe”) added) States, every (emphasis and the Indian Land Act. Consolidation support could policy reasons which

Certainly, there are decisions, Those to Indian tribes. faith and credit of full extension states, Congress or the not this province of however, are within by judgments to tribal credit is not extended Full faith and Court. act, and decline to extend it we Congressional or the Constitution judicially. 127 F.3d at 809.

Marchington, expressed the distinction recognized previously haveWe Tribe 201 Mont. v. Wippert See Marchington. Blackfeet are judgments “[t]ribal that court (holding 304, 654 P.2d foreign nations shown decisions the same deference treated with 272 Mont. 900 P.2d 296. Day, See also comity”). as a matter majority’s Day citation to created implication Contrary to tribes to territories within of Indian majority’s comparison and the PKPA is by the UCCJA employed of “state” as the definition include Indian tribes arbitrarily did sound, Day decision in our in the Full Faith and Credit as set forth the definition of“state” within (1994) (Child Act, Sup 1738B Orders 28 U.S.C. Support § Child for Act). Support of the Child Rather, employed provisions we port oftribal court child involving issues enforcement Day Act in to resolve expressly Act defined Support the Child orders because support and, therefore, country,” provisions “Indian “state” to include Day, to Indian tribes. See applied Act expressly Support the Child U.S.C. 175-77, (citing at 299-301 at 1738B(b)). § (CSED) Enforcement Division Day, Support the Child against in state district court withholding action brought an income payments based on a support due child past for satisfaction Day obliga modifying Day’s support Court’s order Fort Peck Tribal 173-74, 900 at 298-99.Wefirst considered at P.2d Day, 272 Mont. tion. limitations Code’sstatute of the Fort Peck Tribal issue ofwhether Day, applied to the action. statute of limitations longer Montana’s or Initially, determined 175-77, 299-301. we 900 P.2d at 272 Mont. at Money- Foreign the Uniform applying court erred that the district Act) to conclude that under (Recognition Act Recognition Judgments the action of limitations shorter statute Tribal Code’s the Fort Peck ex 174, 900 P.2d at 299. We Mont. at Day, 272 time-barred. was coverage its excluded from expressly Act Recognition plained family Day, matters.” in matrimonial support “judgments MCA). 25-9-602(1), Further (citing P.2d at 299 § Mont. indicated Support Act as ofthe Child more, applicability on the based by express its inclusion of Indian tribes within its “state,” definition of we concluded that Indian tribes were excepted out of the definition of “foreign states” under the provisions of the Recognition Act as well. Day, MCA). 272 Mont. at (citing at 299 25-9-602(2), § Accordingly, we turned to the governing federal Child Support Act to resolve the statute of limitations issue. The Support Child Act “ provided support in a child action, enforcement ‘a court shall apply the statute of limitation of the forum State or the State of the order, court that issued the whichever statute provides longer ” period Day, limitation.’ 272 Mont. at P.2d at 300 (quoting 1738B(g)(3)). Therefore, 28 U.S.C. following § the directive of the Act, Support Child we longer held that Montana’s statute of limita and, applied, tions consequently, CSED’s action against Day not was Day, 176-77, time-barred. 272 Mont. at 900 P.2d at 300. 100 We next

¶ considered the issue of whether CSED could enforce a tribal court child support order without initiating an action in a Day, 177-79, state district court. 272 Mont. at 900 P.2d at 301-02. We again “[s]ince concluded that Indian tribes are deemed ‘states’for the purposes of child support orders under the federal Support Act, Child Montana’s Child Support [, Enforcement Act Chapter 5, Title part 4, MCA,] may employed be in the instant case Day, as well.” at Accordingly, P.2d 301. we held that Montana’s Child Support Enforcement Act could employed be as one alternative to initiating state court action to enforce tribal court child support Day, orders. 272 Mont. at 900 P.2d at 301-02. Just as in Wippert Day, the distinction made in

Marchington recognized should be and followed in this case. See Marchington, majority concedes, 127 F.3d at 808-09. As the neither the UCCJA the PKPA specifically nor include Indian tribes within and, “state,” therefore, the definition of these statutes do apply Furthermore, the case at bar. even if applicable, statutory provi sions of the UCCJA and the PKPA subject were not intended to confer court, matter only on a but rather control when a court 40-7-102, -104; should exercise that See 28 U.S.C. §§ 1738A(f). Harris, generally See (explaining N.W.2d at 143 § assumes, create, subject “the UCCJA but jurisdic does not matter tion”) Shupe, 413-15, 276 Mont. at 916 P.2d at 746-48. Conse statutory quently, provisions is axiomatic that these should not be subject used determine existence and character of matter exercised either the state or tribal courts. Furthermore, considering policies in addition heavily PKPA-, majority relies on the ICWA to UCCJA and the exclusive tribal court should exercise that the conclude an enrolled parents involving between proceedings This, the reservation with Indian child. who resides on parent coverage placement “a The ICWA excludes from too, improper. to one of award, proceeding, in a divorce upon based ... 1903(1). As the Bureau of Indian Affairs 25 U.S.C. parents.” § (BIA) for state courts: guidelines in its commented arising in the context of divorce or custody disputes

Child domestic relations proceedings or similar separation proceedings custody long so is awarded to one [ICWA] are not covered parents. of the history makes it clear that the is legislative [ICWA]

The entire someone than the attempts place directed at other primarily charge raising custodian in of an Indian child— parent or Indian temporary or basis. permanent whether on a (1979) Many jurisdictions 228 at 67587. other share the Reg. 44 Fed. proceedings exclusion of divorce from that, express based on the view custody the ICWA does proceeding,” definition of “child the ICWA’s proceed matters connected with divorce apply to child Custody (Minn.App. 1993), Matter 508 N.W.2d ings. See of K.K.S. 1991), 310, 477 N.W.2d 813, 816; Custody of Sengstock (Wis.App. In re Harris, (citing 312-13; Application 473 N.W.2d 143 of Defender (S.D. 717, 721-22); Crystal K. In 3 Dist. 1989), (Cal.App. 435 N.W.2d re 622-24, cert. denied, 619, 502 U.S. S.Ct. 1990), Cal.Rptr. 276 (1991); 1987), Marriage of Baisley (Colo.App. 144 116 L.Ed.2d denied, 446, 449, cert. 488 U.S. S.Ct. (N.D. 1980), (1988); Malaterre v. Malaterre L.Ed.2d (8th Oglala 145. See also DeMent v. Sioux Tribal Court N.W.2d Larch, 1989), 514 and 872 F.2d at 69. Cir. 874 F.2d expressly that the excludes majority acknowledges The ICWA marriage How- arising from a dissolution award. disputes nonapplica- of its literal ever, majority “[r]egardless states us, that the ICWA ignore we cannot the fact tion to the facts before the tribal role in emphatic policy protecting federal ‘evinces an ” fact, majority involving pro- Indian children.’ In proceedings jurisdiction analysis, of our “we that in terms appreciate nounces that for a preferences the clear behind the ICWA any disregard policy tribal determination instead of a state determination would at least ” part provoke a ‘decline in the authority of the Tribal Court.’ words, majority other requires district apply courts to the provi- sions of the ICWA to dissolution proceedings involving custody dis- putes over Native American children regardless of the fact that the expressly ICWA itself excludes these proceedings from its coverage. Certainly here, ¶[104 as in Marchington, tempting policy reasons standard) (namely, exist the best interests of the child to support the application of the policies underlying UCCJA, the PKPA and the ICWA, to conclude that should be exclusive. How- ever, by applying these policies, majority has unnecessarily province invaded the of the legislature. III, Article Section 1 of the provides: Montana Constitution power government of this state is divided into three

distinct legislative, judicial. executive and No person branches — persons charged with the power exercise of properly belonging to one shall any power branch exercise properly belonging to either others, except of the inas this constitution expressly directed or permitted. Correspondent separation with this powers clause is the

statutory rule of construction that “the office of the judge simply ascertain and declare what is in terms or in substance contained therein, not to insert what has been omitted or to omit what has been 1-2-101, inserted.” Section Simply put, MCA. the duty ofthe Supreme Court in interpreting a statute “is not enact, but to expound, the (1934), law ....” Clark v. Olson 417, 432, 96 Mont. 283, 288. 31 P.2d As “ stated, we have long ‘[i]t is the duty of this court to construe the law ” as it finds it.’ State ex rel. County Durland v. Board Comm’rs of (1937), 21, 24, 104 Mont. 1060, 64 P.2d (quoting 1062 Montana Beer Retailers Protective Ass’n v.State Bd. Equalization (1933), 95 Mont. 130). 30, 34, 128, 25 P.2d

“Statutes should be their own interpreter. Courts must look at the used, language and the it, whole of and derive therefrom the legislature. intention of the Where this intention is obvious there is no for room construction. When the language plain, simple, ambiguity, direct and without the Act itself, construes and courts must presume legislature intended what it plainly says. It is only ambiguous, in the case of doubtful and uncertain enactments principles that the rules and of interpretation brought can be into requisition. It is not allowable to interpret what has no need of interpretation.”

443 v. (quoting at 1062 Smith 24-25, at Durland, 104 Mont. 198). (1874), 195, Williams Indian is modified in federal this canon of construction 106 While

¶ legislative intent in favor of expressions of resolve doubtful law to reliance permit canon also “does not Americans, this modified Native exist; disregard of the permit not nor does it that do ambiguities South Carolina v. Catawba Congress.” intent of clearly expressed 506, 106 2039, 2044, Tribe, (1986), 498, S.Ct. 90 Inc. 476 U.S. Indian “ words, canon of construction is not a 490, ‘[a] 498. In other L.Ed.2d tribal and congressional clear disregard expressions license ” 16, Tribe, at 506 n. 106 S.Ct. at Indian 476 U.S. intent.’ Catawba County (1975), Court 420 U.S. v.District (quoting DeCoteau 2044 n.16 315). 300, 1082, 1094, 43 L.Ed.2d As the First 425, 447, 95 S.Ct. before explained concluding of Appeals aptly Circuit Court Regulatory Act, 25 subject Gaming to the Indian Maine was not 2701-2721, (IGRA), 18 U.S.C. 1166-1168 because Con §§ U.S.C. §§ required the IGRA to Maine as expressly apply did not gress 1980, 25 Act of U.S.C. 1721-1735: §§ Maine Indian Claims Settlement ambiguous the resolution of [regarding The rule of construction statutory language Americans] in favor of Native to which the interest strong safeguarding alludes reflects a federal Tribe autonomy. only Congress when has apposite But rule is loom, ambiguity If does not trumpet. an uncertain blown now, never arises. preferential interpretation When occasion unambiguously expressed through its intent its Congress has statutory courts must read the relevant laws language, choice of any judicial meaning, to their unvarnished without according embroidery. statutory ambiguity, since there is no So is here: triggered. construction is not principle preferential (1st 1996), 784, State Maine Cir. 75 F.3d Passamaquoddy Tribe v. 586-87, 584, v. 430 U.S. Kneip Sioux Tribe (citing Rosebud Tribe, 1362-63, 660; Catawba Indian 1361, 51 L.Ed.2d 97 S.Ct. 490; Rhode Island v. at 90 L.Ed.2d 106 S.Ct. U.S. (1st 1994), 19 F.3d cert. Indian Tribe Cir. Narragansett (1994)). See also denied, 298, 130 L.Ed.2d 211 U.S. S.Ct. (9th 1994), Cir. Indians v. Wilson Rumsey Indian Ranchería of Wintun benefitting statutes Na (holding “although 64 F.3d favor, liberally in their we construed generally are tive Americans language of a plain contradict rely on this factor to will statute”). judi (declining F.3d at 809 Marchington, Compare judgments tribal court when full faith and credit to cially extend Congress so, neither the Constitution nor despite had done extension). existence of reasons policy supporting such an Consequently, statutory because the provisions of the UC- CJA, PKPA, ICWA, by terms, and the their own inapplicable are bar, majority’s application to the case at provisions these justify “giving” tribal courts exclusive over nonmember parents custody proceedings involving in child American Native judicial improper legislation. children creates Such an imprudent violation of the constitutional prohibition against exercising courts easily could be avoided legislative power compelling while still recognition by of the best interest of the child standard simply recognizing juris- that the state and tribal courts share concurrent diction in these child matters and state admonishing courts carefully consider, basis, on a case jurisdic- case whether such using majority tion should be assumed the factors enunciated in the opinion. Recognition concurrent would allow us to the more flexible described in Bertelson in all inquiry interpar

follow custody disputes involving Native American ental children. is, rationally matter could more approached “[t]he That be as a part of restraint on the of state courts in the question exercise jurisdiction, authority.” rather than an absolute absence of Barbara Atwood, Fighting Ann Over Indian Children: The Uses and Abuses 1051, 1104(1989). 36 U.C.L.A. Rev. Ambiguity, Jurisdictional L. Such only respect parens patriae would not role of both approach tribe, would each acknowledge the state and but also forum’s determining whether exercise of its competence own would serve the best interest of the Indian child. Not to mention that encourage in child matters would also approach such an state and tribal courts overall. cooperation between Therefore, I would affirm the District Court’s conclusion that and Tribal Court share concurrent the State Court Stacey Kinsey regard matter without to whether resided this However, I remand this to the the Reservation. would case or off for consideration of the factors in Bertelson and those District Court majority accept to determine whether to opinion set forth in concurrent in this action. decline to exercise concurring joins foregoing specially GRAY in the JUSTICE dissenting opinion.

Case Details

Case Name: In Re Marriage of Skillen

Court Name: Montana Supreme Court

Date Published: Mar 3, 1998

Citation: 956 P.2d 1

Docket Number: 96-520

Court Abbreviation: Mont.