Marriage of Skillen, In re

• Decision Date: 03 March 1998
• Docket Number: No. 96-520,96-520
• Citation: 956 P.2d 1,287 Mont. 399
• Parties: , 1998 MT 43 In re MARRIAGE OF Shane Colin SKILLEN, Petitioner and Respondent, and Stacey Gale Menz f/k/a Stacey Gale Skillen, Respondent and Appellant.
• Court: Montana Supreme Court

Page 1

956 P.2d 1

287 Mont. 399, 1998 MT 43

In re MARRIAGE OF Shane Colin SKILLEN, Petitioner and Respondent,

and

Stacey Gale Menz f/k/a Stacey Gale Skillen, Respondent and Appellant.

No. 96-520.

Supreme Court of Montana.

Submitted on Briefs April 4, 1997.

Decided March 3, 1998.

Loren J. O'Toole, II, O'Toole and O'Toole, Plentywood, for Respondent and Appellant.

J. Dennis Corbin, Miles City, for Petitioner and Respondent.

TRIEWEILER, Justice.

¶1 The petitioner, Shane Skillen, filed a petition for dissolution of his marriage to the respondent, Stacey Skillen, in the District Court for the Sixteenth Judicial District in Rosebud County. After a nonjury trial the District Court entered an order granting joint custody of their child, Kinsey, to Shane and Stacey. Thereafter, the Fort Peck Tribal Court entered a temporary joint custody order in favor of Stacey, and she filed a motion to dismiss in the District Court. The District Court first entered a final decree of dissolution, and then denied the motion to dismiss. Stacey appeals. We reverse the order of the District Court and remand this case to the District Court for proceedings consistent with this opinion.

¶2 The sole issue on appeal is whether the District Court has subject matter jurisdiction to determine the custody of an Indian child when the child, along with his enrolled mother, resides on a reservation, and the father, who is non-Indian, resides off the reservation.

FACTUAL BACKGROUND

¶3 Shane Skillen and Stacey Menz married on May 13, 1993. They were both twenty years old and students at Dawson Community College in Glendive at the time. Two days after the marriage, Shane began work at the Rosebud County Sheriff's Department in Forsyth, where his parents reside; Stacey, an enrolled member of the Fort Peck Tribes, returned to the Fort Peck Indian Reservation and began temporary work at the Fort Peck Tribal Health Office in Poplar. On approximately August 20, 1993, Stacey stopped work at the Tribal Health Office, and on August 29, 1993, she gave birth to their son, Kinsey Charles Skillen, in Custer County. Kinsey is also an enrolled member of the Fort Peck Tribes. Shane is non-Indian.

¶4 The parties dispute if and when Stacey actually maintained a residence with her grandmother on the Fort Peck Reservation. The parties also dispute where Stacey and Kinsey maintained their residence after Kinsey's birth, although it appears clear that they spent considerable time both in Forsyth with Shane and on the Reservation with Stacey's grandmother. At all times throughout this matter, both Shane and Stacey have received substantial support and assistance from their extended families in their efforts to raise Kinsey.

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

¶6 In July 1995, the District Court conducted a nonjury trial. In January 1996, it ordered that Shane and Stacey share joint custody of Kinsey, and that Shane would be the primary residential custodian. On February 3, 1996, Stacey exercised her visitation privilege and took custody of Kinsey from Shane. She failed, however, to return Kinsey to Shane on February 10, as the parties had arranged. On February 9, 1996, she sought and received from the Fort Peck Tribal Court an order awarding her temporary custody of Kinsey. A few weeks later, Shane, with the help of the Richland County Sheriff's Department, located Stacey and Kinsey, and had Kinsey returned to him. Shane has apparently maintained physical custody of Kinsey since that time.

¶7 On March 11, 1996, Stacey filed a motion in the District Court pursuant to Rule 60, M.R.Civ.P., and Rule 12(h), M.R.Civ.P., to dismiss the case for lack of subject matter jurisdiction. She asserted that the Tribal Court had exclusive jurisdiction over the matter by virtue of Stacey's and Kinsey's residence on the Reservation at the time that Shane originally filed for dissolution, and that it exercised its jurisdiction when it granted the temporary custody order. On June 18, 1996, the District Court stated that it had jurisdiction over the case and issued its final decree of dissolution in which it granted the parties joint custody and declared Shane to be the primary residential custodian. After the parties briefed the issue, the District Court, on July 26, 1996, found that Kinsey had significant contacts on and off the Reservation, and that as such, the District Court shared concurrent jurisdiction with the Tribal Court. Therefore, it denied the motion to dismiss.

DISCUSSION

¶8 Does the District Court have subject matter jurisdiction to determine the custody of an Indian child when the child, along with his enrolled mother, resides on a reservation, and the father, who is non-Indian, resides off the reservation?

¶9 Whether to dismiss a claim based on lack of subject matter jurisdiction is a question of law. We review a district court's conclusion of law to determine if it is correct. See Poteat v. St. Paul Mercury Ins. Co. (1996), 277 Mont. 117, 119, 918 P.2d 677, 679. See also Matter of Beneficial Water Use Permit Nos. 66459-76L, Ciotti; 64988-G76L, Starner (1996), 278 Mont. 50, 54, 923 P.2d 1073, 1076.

¶10 A motion to dismiss based on lack of subject matter jurisdiction may be raised at any time and by either party, or by the court itself. See Rule 12(h)(3), M.R.Civ.P.; State v. Tweedy (1996), 277 Mont. 313, 315, 922 P.2d 1134, 1135; Wippert v. Blackfeet Tribe of Blackfeet Indian Reservation (1993), 260 Mont. 93, 102, 859 P.2d 420, 425. Also, a party cannot waive or confer by consent jurisdiction when there is no legal basis for the court to exercise jurisdiction. See In re Marriage of Miller (1993), 259 Mont. 424, 427, 856 P.2d 1378, 1380. Therefore, despite the District Court's intimation in its order that Stacey waived Tribal jurisdiction by indicating she would not invoke it, it was proper for Stacey to raise the issue of the District Court's jurisdiction when she did.

¶11 Stacey's challenge to the District Court's jurisdiction raises a matter of first impression before this Court: In light of Indian jurisdiction law and child custody principles, we must determine whether a district court has jurisdiction in a custody proceeding involving an Indian child and an Indian parent when both reside on Indian land, and a non-Indian parent who does not reside on Indian land. It presents this Court with a significant legal and policy question and requires that we synthesize the independently ¶12 The issue of jurisdiction considers a court's right to determine and hear an issue. As such, it "transcends procedural considerations and involves the fundamental power and authority of the court itself." Wippert, 260 Mont. at 102, 859 P.2d at 425. Accordingly, our inquiry into the jurisdictional conflict between a tribal court and a state district court extends to the even more fundamental issue of the interaction between tribal and state authority.

complex areas of Indian jurisdiction and child custody jurisdiction.

A. Tribal Jurisdiction in General

¶13 It is well established that Indian tribes maintain certain powers of self-government over reservation activities, such that states may not exercise jurisdiction regarding these areas of tribal government. The exclusive nature of Indian tribes' authority in this regard is based on two distinct grounds: (1) federal supremacy, and (2) tribal sovereignty. See White Mountain Apache Tribe v. Bracker (1980), 448 U.S. 136, 142-43, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665, 672.

¶14 Congress has the authority to regulate Indian tribes, and where federal law exists, state courts lack jurisdiction. See White Mountain Apache Tribe, 448 U.S. at 142, 100 S.Ct. at 2583, 65 L.Ed.2d at 672. "State jurisdiction is pre-empted by the operation of federal law if it interferes or is incompatible with federal and tribal interests reflected in federal law, unless the state interests at stake are sufficient to justify the assertion of state authority." New Mexico v. Mescalero Apache Tribe (1983), 462 U.S. 324, 334, 103 S.Ct. 2378, 2386, 76 L.Ed.2d 611, 620 (stating that the application of state hunting and fishing laws to nonmembers on the reservation was preempted by federal law and the tribe's own regulatory scheme).

¶15 In the 1950s, Congress transferred to six states its civil and criminal jurisdiction over Indian lands, and allowed other states, including Montana, to assume jurisdiction by their own legislative action. See Pub.L. No. 53-280, Act of August 15, 1953, 67 Stat. 588. The 1968 Indian Civil Rights Act repealed that portion of P.L. 280 that permitted states like Montana to unilaterally assume jurisdiction over Indian lands, and thereafter required the affected tribe to consent to the state assumption of jurisdiction. See 25 U.S.C. §§ 1321, 1322, and 1326.

¶16 Here, domestic matters are generally within the province of states (and tribes) and not Congress. See In re Burrus (1890), 136 U.S. 586, 593-94, 10 S.Ct. 850, 853, 34 L.Ed. 500, 503 ("The whole subject of the domestic relations of husband and wife, parent and child, belongs to the laws of the States and not to the laws of the United States."). As will be discussed below, Congress has in recent years legislated in the area of child custody and specifically Indian child custody. Those federal acts, however, do not govern these facts, nor do they operate presumptively to preempt state authority in favor of the tribe's authority. Moreover, Montana has not assumed jurisdiction over the Fort Peck Tribes pursuant to P.L. 280....