Application of Bertelson

Citation189 Mont. 524,617 P.2d 121
Decision Date23 October 1980
Docket NumberNo. 14885,14885
PartiesIn the Matter of the Application of Irene BERTELSON on behalf of Lynnette Stanley for a Writ of Habeas Corpus.
CourtUnited States State Supreme Court of Montana

Francis X. Lamebull (argued), Harlem, for appellant.

Richard Ganulin (argued), Great Falls, for respondent.

SHEA, Justice.

On June 4, 1980, this Court entered its decision reversing the District Court and holding that jurisdiction of this child custody dispute was properly with the Chippewa Cree Tribe. Irene Bertelson, the mother of the child involved, promptly petitioned this Court for a rehearing.

The petition alleged that the Court relied on erroneous facts in vacating an order of the Hill County District Court directing Mr. and Mrs. Martin Stanley, the paternal grandparents of Lynnette Stanley, to return the girl to the mother, the petitioner. This Court found, based on undisputed material facts before it, that the Chippewa Cree Tribal Court was a more appropriate forum for settling the private custody dispute presented in this case, involving an Indian child and Indian parties.

With respect to the allegations that this Court relied on facts not supported by the record, each of the alleged erroneous facts (with the exception of one) were taken from appellant's brief, as they were not refuted by the respondent in her own brief. The factual assertions by the Stanleys, that due to Irene Bertelson's neglect, her children had been placed in foster care in Spokane and that she had been in trouble with the police, were not disputed by Irene Bertelson in her brief. We, as an appellate court, are not required to ignore factual assertions that stand unrefuted. Cf., Lasky v. American Indemnity Co. (1929), 102 Cal.App. 192, 282 P. 974, 976; also see Saint v. Beal (1923), 66 Mont. 292, 213 P. 248, 250. This Court did state, however, that the Stanleys were not able to speak English, and this statement may not have any support. The Stanleys did not really participate in either of the two hearings held in District Court, and it appears that a social worker spoke on their behalf. From this, we surmised that they did not speak English.

Because of the paucity of the trial court record before us, and because of the importance of this case to a claim of Indian tribal jurisdiction, we determine that the best course of action is to remand this case to the trial court so that it can develop a complete evidentiary record and make complete findings of fact and conclusions of law.

This custody dispute concerns a child born during the marriage of James Stanley and Irene Bertelson. On February 20, 1975, the natural mother was granted a divorce decree in Cascade County, and, as part of that decree obtained custody of Lynette and her sister Brenda Lee. Only Lynette's custody is involved in the present litigation. After the divorce, the mother retained custody until April 1977. At that time the grandmother went to Spokane where the mother was living and, with the mother's consent, obtained physical custody of Lynette. Since that time, the child has been living with the grandparents on the Rocky Boy Indian Reservation near Havre, Montana. Both grandparents are enrolled members of the Chippewa Cree Tribe.

Lynette is also an enrolled member of the tribe and attends school on the reservation. Although the mother went to the reservation occasionally to visit her daughter, she did not attempt to regain custody of Lynette until March 1979, when she asked the paternal grandparents to return the child to her.

The grandparents refused to return the child, and on April 4, 1979, apparently without personal notice to the mother, they obtained a temporary custody order from the Chippewa Cree Tribal Court appointing them as special guardians. In response, the mother on April 17, 1979, filed a petition in Hill County District Court for a writ of habeas corpus. The District Court held a show cause hearing on the writ on April 30, 1979.

The record before us consists solely of the District Court file (with nothing of any help to us) and the transcript of the April 30, 1979 show cause hearing held to compel the Stanleys to show cause why they should not be required to return the daughter to Irene Bertelson, the mother. At hearing, the trial court was told of the Stanleys' inability to procure counsel. The hearing continued nonetheless. Bertelson presented evidence in support of her petition. The Stanleys did not cross-examine Bertelson nor did they present evidence in their own behalf. The trial court then continued the hearing until such time as it could rule on a request by the Stanleys for the appointment of counsel.

On May 1, 1979, the trial court issued an order stating that the grandparents were not entitled to the appointment of counsel and that the hearing would resume on May 9, 1979 to permit the Stanleys to respond further to Bertelson's petition. But the May 9 hearing never took place. The Court deemed the matter submitted on briefs. It is from this sparse record that the trial court entered its order commanding the Stanleys to return their grandchild to her mother.

In its order, of June 7, 1979, the trial court made three basic conclusions of law: (1) the Indian Child Welfare Act, 25 U.S.C. § 1901, et seq., did not apply; (2) the District Court, and not the tribal court had jurisdiction; and, (3) the mother was entitled to custody of the child. In reaching its decision, the trial court set forth neither the controlling facts nor the applicable law. In short, we do not know how this decision was reached. A trial court must set forth reasons for its rulings. Ballantyne v. Anaconda Co. (1978), Mont., 574 P.2d 582, 35 St.Rep. 171.

Because the welfare of an innocent young child is at stake, we are concerned that a final decision of the jurisdictional questions presented be based on accurate factual information. The question of whether the District Court should assume jurisdiction or determine that jurisdiction is more properly with the Chippewa Cree Tribe is not an easy one. For the guidance of the trial court in conducting its hearing and entering its findings of fact and conclusions of law, we include a discussion of the principles which must be considered, and we also set forth what we deem an appropriate test for determining whether the District Court should accept jurisdiction in this case or defer to the trial court.

We first address the issues raised by the grandparents in their appeal from the District Court order. They argue that the state cannot exercise subject matter jurisdiction over this custody dispute because: (1) the Chippewa Cree Constitution and its Law and Order Code, enacted by the tribe pursuant to the Indian Reorganization Act of 1934 (Act of June 18, 1934, 48 Stat. 984-988, as amended, 25 U.S.C. §§ 461-79) preempt state jurisdiction under the rationale of Fisher v. District Ct. (1976), 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106; and United States v. Mazurie (1975), 419 U.S. 544, 95 S.Ct. 710, 42 L.Ed.2d 706; (2) state jurisdiction would impermissibly interfere with the tribe's inherent right of self-government contrary to the doctrine of Williams v. Lee (1959), 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251; (3) the Chippewa Cree Tribal Court has exclusive jurisdiction pursuant to the Indian Child Welfare Act of 1978, 25 U.S.C. §§ 1901, et seq.; and (4) the state has not assumed, nor has the tribe ceded to the state, jurisdiction over custody matters pursuant to either Pub.L.No. 83-280 (Act of Aug. 15, 1953, 67 Stat. 588-90) or Title IV of the 1968 Federal Indian Civil Rights Act (Act of Apr. 11, 1968, 82 Stat. 79-80, 25 U.S.C. §§ 1321-1326.) We resolve these issues against the grandparents.

The Stanleys' argument that Congress has preempted state jurisdiction by delegating authority to the tribe in § 16 of the Indian Reorganization Act to enact a constitution and bylaws is misplaced. Generally, that doctrine is liberally applied only when actions clearly arise on the reservation. See, United States v. Mazurie, supra; Fisher v. District Ct., supra; and Mescalero Apache Tribe v. Jones (1973), 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114. Here, a number of significant events relating to the child's custody apparently occurred off the reservation. Bertelson and Stanley voluntarily invoked state court jurisdiction to dissolve their marriage. Bertelson, whom the state court awarded custody, apparently is not a member of the Chippewa Cree Tribe and does not reside on the reservation. Her daughter, Lynette, resided with her for a period of time off of the reservation. When substantial activities giving rise to a dispute arise within the state but outside of the reservation boundaries, the state may assume jurisdiction. Crawford v. Roy (1978), Mont., 577 P.2d 392; see, De Coteau v. District County Ct. (1975), 420 U.S. 425, 428-30 & n. 3, 95 S.Ct. 1082, 1085-1086 & n. 3, 43 L.Ed.2d 300, reh. den. 421 U.S 939, 95 S.Ct. 1667, 44 L.Ed.2d 95.

Nor does Williams v. Lee, supra, prohibit state jurisdiction in this matter. The test which the United States Supreme Court set forth in Williams was whether in litigation arising out of conduct on an Indian reservation and in the absence of a governing federal law, state jurisdiction "infringed" on the right of the Indian tribe to be self-governing. 358 U.S. at 220, 79 S.Ct. 269, 270, 3 L.Ed.2d 251. The situs of the events giving rise to the litigation must therefore be on the reservation before Williams need apply.

As this Court held in its original opinion of June 4, 1980, the dispute does not fall within the ambit of the Indian Child Welfare Act. The Act is not directed at disputes between Indian families regarding custody of Indian children; rather, its intent is to preserve Indian culture values under circumstances in which an Indian child is placed in a foster home or other protective institution. The House...

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