Petition — Fisher v. District Court of Sixteenth Judicial Dist. of Mont.
Supreme Court brief1976
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IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1975
ALVA FISHER,
Petitioner,
Vv.
STATE OF MONTANA, EX REL, IN THE MATTER
OF THE ADOPTION OF IVAN FIRECROW, A .
MINOR BY LEROY RUNSABOVE AND JOSEPHINE
RUNSABOVE.
PETiTION FOR A WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF MONTANA .
CLARENCE T. BELUE
201 West 4th Street
Hardin, Montana 59034
Attorney for Petitioner
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INDEX
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Constitutional Provisions, Treaties, Statutes,
Ordinances, Regulations Involved........
Statement of POON 66h ee eseeeeeseeeeseses
Reasons for Granting the Writ... see.
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Appendix A (Opinion of Montana Supreme Court).......+++-+1l7A
Appendix B (Opinion of Montana District Court)...........2l
Appendix C (Advisory Opinion of Appellate Court, Northern
Cheyenne (i i: PeSPvrrerrrrrrirrrerrrriri
CASE CITATIONS
TerTTrTrrTrirTeT Tite
Rad Horse v. Bad Horse, 163 Mont. 445, 517 P.2d 893,
21 St. Rep. 22, Cert. den., ‘19 U.S. a Perr. CR.
Blackwolf et. al. vs. District Court, 158 Mont. 523, 526
02d 1293 (1972) ccc crcccccvesvevcesecves
Kennerly vs. District Court, 4C0 U.S. C.
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“McClanahan v. State Tax Commission of Arizona, 4ll W.S.
164, th én nedebe SESE ESb RECO EES OOS Eee
Rio Grande R. Co. v. Gomila, U.S. 4178...
Stanley vs. Illionis, 905 U.S. 645......
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State ex rel. Iron Bear vs. District Court, 162 Mont.
335, S12 P.2d LA9VZ. ccc cee evvnvvvnvsveces
Williams vs. Lee 358 U.S. 217. .ccccecses
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IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1975
No.
ALVA FISHER,
Petitioner,
Vv.
STATE OF MONTANA, EX REL IN THE MATTER
OF THE ADOPTION OF IVAN FIRECROW, A
MINOR BY LEROY RUNSABOVE AND JOSEPHINE
RUNSABOVE.
PETITION FOR WRIT OF CERTIORARI TO THE
SUPREME COURT OF THE STATE OF MONTANA
The petitioner, Alva Fisher, prays that a writ of
certiorari issue to review the opinion and judgment of the Suprem@¢
Court of the State of Montana rendered in these proceedings on
June 2, 1975.
OPINIONS BELOW
The opinion of the Supreme Court of the State of
| Montana is reported as STATE of Montana ex rel. In the Matter of
the ADOPTION OF Ivan FIRECROW, a minor by Leroy Runsabove and
Josephine Runsabove, Petitioners, v. The DISTRICT COURT OF the
SIXTEENTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR
the COUNTY OF ROSEBUD, and the Honorable Alfred B. Coate, Judge
Thereof, Respondents, No. 13025. 536 P.2d 190. The full text
of this opinion appears at Appendix A, infra, p. 17A. The
opinion of the District Court of the Sixteenth Judicial District
of the State of Montana, in and for the County of Rosebud is
unreported, and appears at Appendix B, infra, p. 21. The
ele
of
1 Advisory Opinion of the Appellate Court of the Northern Cheyenne 1 recognized as an heir of a deceased Indian by virtue
| of an adoption—"
2 Tribe of Indians is unreported, and appears at Appendix C, infra, 2 "(1) Unless such adoption shall have been"
| — "(a) by a judgment or decree of a State court;"
S$ip. 25. 3 "(b) by a judgment or decree of an Indian court;‘
! "(c) by a written adoption approved by the ]
4 JURISDICTION 4 superintendent of the agency having jurisdiction |
over the tribe of which either the adopted
5 | The order or judgment of the Supreme Court of the State 5 child or the adoptive parent is a member, and
duly recorded in a book kept by the superinten-
6 of Montana was entered on June 2, 1975. See Appendix A, p. 17A, 8 dent for that purpose; or"
| "(d) by an adoption in accordance with a
7 infra. This petition for certiorari was filed less than 90 days 7 procedure established by the tribal authority, —
recognized by the Department of the Interior, |
8 from the date aforesaid. The jurisdiction of this Court is 8 of the tribe either of the adopted child or
the adoptive parent, and duly recorded ina
9 invoked under 28 U.S.C. § 1257 (3). 9 book kept by the tribe for that purpose; or” |
| "(2) Unless such adoption shall have been recog- |
10 | QUESTIONS RAISED 10 nized by the Department of the Interior prior to
the effective date of this section or in the |
12| Leroy and Josephine Runsabove, petitioned the Sixteenth il discribution of the estate of an Indian who has
died prior to that date: Provided, That an
12 District Judical Court of the State of Montana for adoption of 12 adoption by Indian custom made prior to the effec-
| tive date of this section may be made valid by
13. Ivan Firecrow, a minor and the son of your petitioner, Alva Fisher. 15 recordation with the superintendent if both the
{ adopted child and the adoptive parent are still
14 The child was at the time a ward of the Northern Cheyenne Tribal 14 living, if the adoptive parent requests that the
| adoption be recorded, and if the adopted child is
158 Court, and your petitioner had temporary custody rights pursuant 15 an adult and makes such a request or the superin-~
tendent on behlaf of a minor child approves of the
ad to order of the Tribal Court. All parties are enrolled Indians | 16 recordation..."
17, and all reside within the reservation. | 17) 25 U.S. C. § 1322 (a):
18 The question thereby arising is: 18 "The consent of the United States is hereby given to any
State not having jurisdiction over civil causes of
19 Whether the Montana District Court has jurisdiction over 19 action between Indians or to which Indians are parties
which arise in the areas of Indian country situated
20 an adoption petition where the would be adoptive parents, the 20 within such State to assume, with the consent of the
tribe occupying the particular Indian country or part
21 child, and the natural parents are enrolled members of the 21 thereof which would be affected by such assumption,
such measure of jurisdiction over any or all such civil
22 Northern Cheyenne Tribe and reside on the reservation, and where 22 causes of action arising within such Indian country or
any part thereof as may be determined by such State to
23 the child is a ward of the Tribal Court. 23 the same extent that such State has jurisdiction over |
other civil causes of action, and those civil laws of
24 CONSTITUTIONAL PROVISIONS, TREATIES, STATUTES, 24 such State that are of general application to private |
ORDIANCES, REGULATIONS INVOLVED persons or private property shall have the same force
25 | 25 and effect within such Indian country or part thereof
Constitution of the United States, Article I, §8, cl 3: | as they have elsewhere within the State."
26 | ee, | 26
| "The congress shall have power—. . .[t]o regulate | Amended Constitution and Bylaws of the Northern Cheyenne Tribe
27 commerse . . . with the Indian tribes." 27 of the Northern Cheyenne Indian Reservation, Article IV, Section
| I, cl. i, ky 1, ™ Br @? ns
og Constitution of the United States, Article II, $2, cl 2: 28
| —— — a.) "Enumerated Powers - The Tribal Council of the Northern
29. “(The president) shall power, by and with the 29 Cheyenne shall exercise the following powers, subject
| consent of the senate to make all treaties. . .” to any limitations imposed by the applicable statutes of
30 30 United States and subject further to all express restrice
25 U.S.C. § 372 (ad: tions upon such powers contained in this Constitution
31 31 and the attached Bylaws:"
"In probate matters under the exclusive jurisdiction
32 of the Secretary of the Interior, no person shall be 32 "(i) To promulgate and enforce ordinances, which shall
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15 Article III, Section 2, Revised Law and Order Ordinances of the
Northern Cheyenne Tribe of t.> Northern Cheyenne Reservation:
be subject to review by the Secretary of the Interior,
governing the conduct of members of the Northern
Cheyenne Tribe and any other person or persons coming
within the jurisdiction of the reservation, and provid-
ing for the maintenance of law and order and the admin-
istration of justice by establishing a reservation
court and defining its duties and powers."
"(k) To protect and preserve the property, wildlife,
and natural resources of the Tribe and to regulate the
conduct of trade and the use and disposition of property
upon the reservation, provided that any ordinance
directly affecting nonmembers of the Tribe shall be
subject to review by the Secreatry of the Interior."
"(1) To cultivate and preserve native arts, crafts,
culture, and Indian ceremonials."
"(m) To administer charity and to protect the health
and general welfare of the Tribe."
"(p) To regulate the domestic relations of members of
the Tribe and of nonmembers married into the Tribe."
"(q) To provide for the appointment of guardians for
minors and mental incompetents by ordiance or resolution
Subject to review by the Secretary of the Interior."
— -.<
"The Tribal Court of the Northern Cheyenne Reservation
shall have jurisdiction to hear, pass upon, and approve
applications for adoptions among members of the Northern
Cheyenne Tribe.”
"Upon proper showing and decision by the court, such
adoptions shall be binding .»on all concerned and here-
after only, adoptions so approved by the Tribal Court
shall be recognized."
"On all adoptiows involving nonmembers of the Northern
Cheyenne Tribe or non-Indians or both who wish to adopt
a member of the Northern Cheyenne Tribe, the Tribal
Court of the Northern Cheyenne Reservation shall have
concurrent jurisdiction to hear, pass upon, and approve
applications for adoption and upon written consent of
the court, adoption proceedings affecting members of
the Northern Cheyenne Tribe of the Northern Cheyenne
Reservation may be taken up and consummated in the |
State Courts."
e7 ‘Article IV, Section 4, cl 3, Revised Law and Order Ordinances of
the Northern Cheyenne Tribe of the Northern Cheyenne Reservation:
28)
29 |
30)
31
32.
“Jurisdiction: The Tribal Court of the Northern Cheyenne
Tribe shall have jurisdiction of all cases coming within
the terms and provisions of this Act and shall act as
a Juvenile Court in the performance of the provisions
of this ordinance. The Juvenile Court shall have
exclusive Original jurisdiction in the following
proceedings:”
"(a) Concerning any child who is delinquent."
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"(b) Concerning parents who willfully and knowingly
fail to provide their children with proper food,
clothing, medical attention and opportunity to
attend school.”
“When jurisdiction shall have been obtained by the court
in the case of any child, such child shall continue
under the jurisdiction of the court until he becomes
twenty-on* (21) years of age, unless discharged prior
thereto or is confined in a state custodial or correction-
al institution. In trials under this ordinance the
child, parent or guardian, or other persons having the
care, custody, or control of such child complained
against, Or any other persons interested in such child,
shall have the right to demand a trial by jury, which |
shall be granted as in other cases unless waived, or
the Judge may, on his own motion, call a jury to try a
case."
"The jurisdiction of the court shall extend to the child |
who is otherwise within the jurisdiction of the court,
independent of the residence or settlement of the
child's parent or guardian, provided, therefore, that
the authority of the court to command the presence of
the parent or otherwise proceed against the parent does
not extend to the parent who is not Indian, or to the
parent who is Indian but not within the exterior
boundaries of the reservation, or who is otherwise not
within the jurisdiction of the court as provided in
Chapter 1, Section 2, of the Law and Order Code.”
"The jurisdiction of the court does extend to the child
whose offense or condition is such as to make him subject |
to the court under the provisions of this ordinance |
even though he may have incidentally or subsequently
fled the reservation, to the extent that the court may
issue a warrant and authorize the taking into cutody and
the return of the child by proper authorities to the
jurisdiction of the court.”
STATEMENT OF FACTS
The facts relevant to the question presented by the |
petition are uncontroverted and therefore may be introduced to the}
Court in a summary fashion.
On August 20, 1974, petitioners, below, Leroy and
Josephine Runsabove filed in the Montana District Court a petition
for the adoption of Ivan Firecrow, a minor child, born May 10,
1965. Consent to the adoption and waiver of further notice,
executed by the natural father, was filed with the petition for
adoption. Petitioners, the child, and the petitioner herein are
all enrolled members of the Northern Cheyenne Tribe and have
resided on the Northern Cheyenne Reservation at all times pertinent
to this matter.
i
1 On July 1, 1969, Ivan Firecrow was made a ward of the 1 "(m) To administer charity and to protect the health
and general welfare of the Tribe.”
2 Northern Cheyenne Tribal Court upon a finding that the natural 2
| "(p) To regulate the domestic relations of members of
3 mother had neglected the child. An order was entered that day 3 the Tribe and of nonmembers married into the Tribe.”
1
4 giving petitioner, below, temporary custody of the child. They 4 "(q) To provide for the appointment of guardians for
f minors and mental incompetents by ordiance or resolution
5 have had custody of the child since that time. On August 30, 1974, 5 subject to review by the Secretary of the Interior.”
| /
6 the Tribal Court ordered the natural mother be granted temporary 6 The District Court held a hearing upon the petition for |
7 custody of the child for six weeks during the summer months of 1975, 7 adoption on October 11, 1974. The petitioner objected to the
8 Article IV, Section 4, cl. 3, of the Revised Law and g hearing alleging the District Court had no jurisdiction to hear
9 Ordinances of the Northern Cheyenne Tribe provides for continuing 9, and grant the petition for adopt on and, that the matter was |
10. jurisdiction of a child made a ward of the Court as follows: 109 | within the exclusive jurisdiction of the Tribal Court. Following
1l “When jurisdiction shall have been obtained by this court 11; submission of briefs on the issue of jurisdiction and receipt of |
' in the case of any child, such child shall continue undeg , ae :
12 the jurisdiction of the court until he becomes twenty- 12, an advisory opinion from the Appellate Court of the Northern
one (21) years of age...” P , ; Sate
13 13 | Cheyenne Tribe, holding that tribal jurisdiction under the facts
Montana has not assumed civil or criminal jurisdiction , :
14 ’ 14) is exclusive, see Appendix C, infra, p. 25, the District Court
15) “the the Northern Cheyenne Reservation pursuant to a Public Law
15
16 | 280, (Act of August 15, 1953, 67 Stat. 588) or the Federal Indian
issued its order holding that it had no jurisdiction over the
adoption and ordered the case dismissed.
16
Civil Rights Act of 1968, (Act of April 11, 1968, 82 Stat. 77, 79, a .
17 | 17 The petitioners, below, sought a writ of supervisory
_ 20 U.S.C. § 1321-1326). See Blackwolf et. al. vs. District Court ;
18) 1g control before the Supreme Court of the State of Montana, which
158 Mont. 523, 526, 493 P.2d 1293 (1972).
19 19) revised and remanded holding that
The Northern Cheyenne Tribe is incorporated pursuant to
20 20 1. The District Court had always had jurisdiction over
the Wheeler-Howard Act, 25 U.S.C. § 461 et. seq. It is organized ; ; ;
21. 21 adoptions involving Indians.
and existing under a constitution and by laws ratified by the , ;
22 | 22 2. Assuming the Northern Cheyenne Tribal Court has
tribe on November 2, 1935, and approved by the Secretary of ome eee . ; ' ‘bal
23 23 jurisdiction over adoptions among its tribal members,
Interior in November 23, 1935.
24 . . 24 such jurisdiction is concurrent with state court
The Amended Constitution and Bylaws of the Northern eee
25 | 25 jurisdiction.
Cheyenne Tribe of the Northern Cheyenne Indian Reservation Article| naar . g oA
26. 26 Petitioner seeks review of the state decision by writ |
IV, Section I, cl. k, 1, m, p, and q grant power: ;
27 27 of certiorari.
"(k) To protect and preserve the property, wildlife,
23 and natural resources of the Tribe and to regulate the 28 REASONS FOR GRANTING WRIT
\ conduct of trade and the use and disposition of property| a aia —_ ai : on er
29 upon the reservation, provided that any ordinance direct? 29 1. The decision below directly conflicts wi i 3
ly affecting nonmembers of the Tribe shall be subject ay eae
30. to review by the Secretary of the Interior.” 30, rulings in the Williams case, holding that absent Acts of Congress»
31 "(1) To cultivate and preserve native arts, crafts, 31 state courts cannot exercise jurisdiction which would infringe
>ulture and Indian ceremonials.” !
32 ; 32. upon the right of Indians to make their own laws and be governed
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authority of tribal courts over reservation affairs and hense
by them.
In Williams v. Lee, 358 U.S. 217, this Court forbade
exercise of state jurisdiction where it would undermine the
would infringe upon the right of the Indians to govern themselves.
That action involved a non-Indian trader, who sued an Indian in
the Arizona State Court to collect for goods sold him on credit.
This Court reviewed the course of United States policy toward
the Indians and affirmed the test thar, “[e]ssentially, absent
governing Acts of Congress, the question has always been whether
the state action infringed upon the right of reservation Indians |
to make their own laws and be governed by them.” 358 U.S. at
p. 220. This Court forbade exercise of Arizona state jurisdiction
over the suit because “to allow the exercise of state jurisdiction
here would undermine the authority of the tribal courts over
reservation affairs and hense would infringe upon the right of the
358 U.S. at 223.
Indians to govern themselves." Williams,
The action of the Supreme Court of the State of Montana
cannot be squared with the Williams test.
State jurisdiction does not exist pursuant to Act of
Congress. The only statutes whereby this could have been accom-
plished are Public Law 280 (Act of August 15, 1963, 67 Stat. 588)
and the Federal Indian Civil Rights Act of 1968 (Act of April ll,
1968, 82 Stat. 77, 79, 25 U.S.C. § 1321-1326). Montana and the |
Northern Cheyenne Tribe have never complied with the provisions
of either act. See Blackwolf et. al. vs. District Court, 158 Mont}
523, 526, 493 P.2d 1293 (1972).
The Montana Supreme Court opinion states that 25 U.S.C.
§ 372a implies Congressional conferral of state jurisdiction over
adoption matters. This provision is part of the Congressional
statutes for decent and distribution and determination of heir-
ship of Alloted Indians. Section 372a was fashioned to avoid the
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confusion which arises in these matters when adoptions by the
"Indian way” are the basis for claimed heirship. All Congress
intended by the statue was to establish an orderly means of
determining heirship, i.e. by only recognizing adoptions
consummated by judicial or quasi-judicial means. The reference
to "State court” adoption was in no way a Congressional statement
recognizing concurrent jurisdiction. It in no way whatsoever is
concerned with jurisdictional matters.
On the contrary, Congress has indirectly established
exclusive tribal court jurisdiction over this adoption matter.
The Northern Cheyenne Tribe is incorporated pursuant
to Act of Congress under the Wheeler-Howard Act, 25 U.S.C.,
§ 461 et. seq. Among cther powers granted to the tribe by Congres¢$
is the power: °
"(i) To promulgate and enforce ordinances, which shall
be subject to review by the Secretary of the Interior,
governing the conduct of members of the Northern Cheyenne
Tribe and any other person or persons coming within the
jurisdiction of the reservation, and providing for the
maintenance of law and order and the administrat.ion of
justice by establishing a reservation court and defining
its duties and powers."
"(k) To protect and preserve the property, wildlife,
and natural resources of the Tribe and to regulate the
conduct of trade and the use and disposition of property
upon the reservation, provided that any ordinance
directly affecting non-members of the Tribe shall be
subject to review by the Secretary of the Interior.”
"(1) To cultivate and preserve native arts, crafts,
culture, and Indian ceremonials.”" |
"(m) To administer charity and to protect the health |
and general welfare of the Tribe.”
"(p) To regulate the domestice relations of members of |
the Tribe and of nonmembers married into the Tribe.”
"(q) To provide for the appointment of guardians for —
minors and mental incompetents by ordinance or resolution
subject to review by the Secretary of the Interior.”
Amended Constitution and Bylaws of the Northern Cheyenne Tribe of
the Northern Cheyenne Indian Reservation, Article IV, Section I,
i, k, l, m, p and q-
1
Pursuant to these tribal powers the tribe inacted
2. Section 2, Article III, Revised Law and Order Ordinances of the
3 Northern Cheyenne Tribe of the Northern Cheyenne Reservation which |
4 provides:
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6 |
17 |
"The tribal Court of the Northern Cheyenne Reservation
Shall have jurisdiction to hear, pass upon, and approve
applications for adoptions among members of the Northern |
Cheyenne Tribe.”
"Upon proper showing and decision by the court, such
adoptions shall be binding upon all concerned and here-
after only, adoptions so approved by the Tribal Court
Shall be recognized."
"On all adoptions involving non-members of the Northern
Cheyenne Tribe or non-Indians or both who wish to adopt
a member of the Northern Cheyenne Tribe, The Tribal
Court of the Northern Cheyenne Reservation shall have
concurrent jurisdiction to hear, pass upon, and approve
applications for adoption and upon written consent of
the court, adoption proceedings affecting members of the
Northern Cheyenne Tribe of the Northern Cheyenne
———— may be taken up and consummated in the State
ourts.”
It is respectively submitted that this ordinance provideg
for exclusive tribal court jurisdiction over adoption matters
where the petitioner, the child and the natural parents are enrol-
led members of the tribe
and reside within the reservation. The
\dvisory Opinion of the Appellate Court of the Northern Cheyenne
Tribe of Indians so holds. See Appendix C, herein, infra, p. 25.
In the present case all the parties are enrolled members
of the Northern Cheyenne Tribe residing within the reservation.
The prerequisites for exclusive tribal jurisdiction as
laid down in Williams are fulfilled.
Only two facts distinguish this case from Williams.
First, Williams is a debt action; this case involves an adoption;
Second, Williams involved a non-Indian trader; all parties here
are reservation Indians.
The difference in types of actions is without signifi-
cance.
Although maybe not strictly an adversary proceecing as a
debt action (the natural parents are not defendants) they stand
in that position and defended against the adoption as such in the
-10-
1 courts below. Furthermore, their natural parental rights are
| afforded due process protection. See Stanley vs. Illionis, 905
s| U.S. 645, 31 L.Ed 2d 551, 92 S.ct. 1208. Therefore, as the
4 petitioner, Alva Fisher, is a reservation Indian, her parental
| rights ought to be litigated in tribal court according to tribal
a law, procedure and customs.
7 As to tae second factual difference, the fact that all
g parties to this matter are reservation Indians is the very basis
f for exclusive tribal juridiction under the Tribal Code. See
aa Article III, § 2, Revised Law and Order Ordinances, supra, p. 4.
1, See also Advisory Opinion, Appellate Court, Northern Cheyenne Tribe,
12, Appendix C, infra, p. 25. This Court in Williams found that “[i})t
ra is immaterial that respondent is not an Indian. He was on the
val Reservation and the transaction with an Indian took place there.”
is | 358 U.S. at p. 223. The Montana Court seems to interpret Williams
i, as holding that, although non-Indians can not subject reservation
17 Indians to the state courts, Indians can. But thé Congressional
a policy is not a limitation on non-Indians on the reservation but
vo | protection of "the right of reservation Indians to make their own
al laws and be governed by them.” It then follows, that Congress
aa | intended that this right also prevent an Indian from subjecting
os] another reservation Indian to a state court. The present case
23 is completely an Indian matter; it involves solely reservation
24, Indians, and subject matter of utmost interest to the Tribe—its
=) children. This fact should not allow state jurisdiction; on the |
as | contrary, it cries out even stronger for protection of the
on! authority of the Tribal Court. It is hard to imagine a set of
a! facts which more completely compel the conclusion that, "to allow |
29 | the exercise of state jurisdicition here would undermine the au- |
30 | thority of the tribal courts over reservation affairs and hense
31 would infringe on the right of the Indians to govern themselves."
32 358 U.S. at p. 223.
CLARENCE T. BFLUE
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2. The decision below directly conflicts with this Court's
statement in the Williams case limiting state jurisdiction where
rights of Indians would be jeopardized.
In the Williams case this Court, in reviewing Indian
cases handed down since Worcester, stated that state jurisdiction
would be allowed where rights of Indians are not jeopardized. 358
U.S. at p. 249. It would appear that state jurisdiction is not
allowed where these rights are jeopardized. Here, according to tng
Tribal Ordinances on adoptions, the petitioner is granted the
right to be heard in this matter before her own tribal court.
The State Court decision would deprive her of this right.
Furthermore, what will be the affect upon the petitioner $s
temporary custody rights granted by the Tribal Court August 30,
1974, if the State Court takes jurisdicition and grants an adoption?
Can the Tribal Court effectively enforce custody rights in the
fact of an adoption granted by the State of Montana? These
questions can only be resolved by review of the Montana dec.sion
in light of these questions.
Similar reasoning applies to the child, Ivan Firecrow,
who as a reservation Indian is also entitled to similar protec :ion,
3. The decision below effectively destroys tribal jurisdiction
over a child made a ward of the Tribal Court as a dependent and
neglected child.
The argument for exclusive tribal jurisdiction is even |
stronger when it is noted that the child was a ward of the Tribal
Court long before the Runsabove couple petitioned the State Court |
1969, and |
for adoption. The child was declared neglected July 1,
was under the power of the Tribal Court from then until August 30, |
1974, when the couple filed their petition with the State Court.
A state court decree of adoption would in effect terminate the
‘Tribal Court guardianship powers over the child as well as its
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powers to hear the adoption matter.
The fact that the child was a ward of the Tribal Court |
raises another important question when viewed with the ruling
, below that the Tribal Court's jurisdiction is only concurrent. |
Once a court of concurrent juridiction has begun to exercise its
jurisdiction over a case, its authority to deal with the action
is, subject to appellate review, exclusive until it is completely.
disposed of, and no other court of concurrent jurisdiction may |
Rio Grande R. Co.
Gomila. 132 U.S. 478, 33 LEd. 400, 10 S.ct. 155.
v. How can the
Tribal Court fully exercise its powers as guardian of Ivan ee
in the pending dependant child proceedings, if the State Court
at the same time may take jurisdiction of an adoption petition.
It could possibly be argued that the adoption matter would not .
necessarily affect custody or guardianship, but it would serve no
good purpose for the Runsabove couple to adopt the child in the
State Court and then fail to obtain custody by order of the Tribal
Court. Such a resolution of this jurisdiction problem would not
only lead to endless confusion but would make the child a
jurisdictional "football" and thus adversely affect his welfare.
4. The ruling of the Court below finding concurrent jurisdiction
over Indian adoptions, appears to be without a precedent among |
the decisions of this Court.
The petitioner can find no case among the past decisions
of this Court allowing concurrent jurisdiction over Indian matters,
It appears that to do so would abrogate the principle often stated,
by this Court that Indians have been a “weak and defenseless
people who are the wards of the nation, dependent upon it for
State Tax Commission
protection and good faith." McClanahan v.
of Arizona, 411 W.S. 164, 36, L.Ed.2d, 93 S.ct. 1257, 1263.
o)3-<
1 5. The cases cited by the Court below as authcrity for finding 1 jurisdiction or has exercised jurisdiction in such a
2 | that State jurisdiction exists are not proper authority for the 2 SERROET 68 CO preenpt state jurieciction.© |
: { ss ‘ 512 P.2d at p. 1299, |
4 The Montana Supreme Court found state jurisdiction by 4) See also 517 P.2d at p. 896. The petitioner herein contended |
(etal its own decisions so holding. State ex rel. Iron Bear v. 5 | below that under these interpretations of Williams, and in consid-|
6 District Court, 162 Mont. 335, 512 P.2d 1292; Bad Horse v. Bad 6 | eration of the facts of the present case, the State Court lacked
7 Horse, 163 Mont. 445, 517 P.2d 893, 31 St. Rep. 22. Petitioner's 7 subject matter jurisdiction. In both Iron Bear and Bad Horse
8 review of these opinions fails to reveal that such decisions so e the Montana Supreme Court based its rulings upholding state
9 hold. The subject matter in both cases is divorce; no dicta nor | 9) jurisdiction over reservation divorce matters upon tribal ordinances
10 citations refer to adoption matters. The petitioner respectfully 10 | indicating tribal intent to refrain from exercising tribal
ll questions whether there is a Montana precedent for state court 11) jurisdictions over divorce actions. Thus, under its criteria (2) |
12 jurisdiction under the facts here presented. 12) and (3) the Montana Supreme Court found that state jurisdiction
13 | 13 || over divorce did not interfere with reservation self-government,
14 6. The decision below, fails to follow other decisions of the , 14) and that the Tribal Court was not currently exercising juris-
15 Montana Supreme Court interpreting the Williams Rule. 15 || diction, nor had it exercised jurisdiction in such a way as to
16| In the case of Kennerly v. District Court, 400 U.S.C. 16| preempt state jurisdiction. 7
7 423, 27 L.Ed. 2d 509, 91 S.ct. 480, this court reversed the 17 In the present case consideration of criteria (2) and
18 Montana Supreme Court holding that a unilateral conferral of 18] (3) would call for a completely different result. The Northern
19 jurisdiction by an Indian tribe to the State Courts was consistant 19! Cheyenne Tribe (not like the divorce ordinances examined in Iron
20, with the exercise of tribal powers of self-government, and there- 20| Bear and Bad Horse) has an ordinance calling for exclusive juris-
21 fore, state jurisdiction was reconciled with the rule laid down 21 diction over adoptions where the petitioner, child and parents
22 in the Williams case. 400 U.S. at p. 426. 22| are enrolled members residing on the Reservation. See Article
23 Subsequent to that reversal, the Montana Supreme Court “| III, Section 2, Revised Law and Order Ordinances of the Northern |
24 again interpreted the Williams rule. State ex rel. Iron Bear v. %| Cheyenne Tribe of the Northern Cheyenne Reservation. See also |
25 District Court, 162 Mont. 335, 512 P.2d 1292; Bad Horse v. Bad | 25 | Advisory Opinion of the Appellate Court of the Northern Cheyenne |
268 Horse, 163 Mont. 445, 517 P.2d 893, Cert. den., 419 U.S. 847. | 26 | Tribe of Indians, Appendix C. infra, p. 25. Here state court :
27° In both these cases the Montana Court laid down the 97 | jurisdiction would interefere with reservation self government,
98 | rule that: 28 | and even more importantly, the Tribal Court is exercising juris-
2 Soren,» enetie. sass ote vaties Justeseanten, be ap| diction over reservation adoptions 40 a8 to proenpt stato juris:
30 Geter paige pt Borrego, a adc ol Re yoo: : 390, diction. It is confusing that the Montana Supreme Court, in the
31 pple ems Phi ac Page Riser, Ag Mee ao te 0 3] present case ignored its own prior method for anaylsis. Instead
32. and (3) whether the Tribal Court is currently exercising 32) it speaks in terms of historically exercising jurisdiction over
el aide f -14- scumnniacnanial -15-
mene en (tl : erveever of tae
eee | pty by
1 adoptions, concurrent jurisdiction and of its concern that the
2 would be adoptive parents be afforded equal access to Montana
3 courts. Why doesn't the Williams Rule apply to the present case?
4 | Apparently the Montana Court balanced equal protection rights
5 against Indian rights. If this is proper, what is the test for
6 | 60 balancing? It seems that if Williams is to be ignored, this
7 Court ought to define the conditions under which this is proper,
8 and formulate the test for balancing the Indian rights under
9 Williams with Constitutional rights.
10
1l 7. The impact of the decision below on tribal self-government
12 is enormous.
13 | In effect, the ruling below will allow any reservation
14 Indian who cannot gain an adoption according to tribal laws,
1s procedure, or customs, to petition the State Court for the adop-
16. tion and thus effectively skirt tribal jurisdiction.
17| In addition, if such a practice were to be allowed, the
18 tribal interest in the welfare of reservation Indian children
0! could not be protected according to tribal laws, procedure and
20. customs, because state courts would assume a number of these
21. cases.
22 | Also, as shown above, children made wards of the Tribal
23 Court could, by state court adoptions, be in fact, released from
24 tribal guardianship without the permission of the Tribal Court.
25. Finally, although it does not appear in the facts of
26 this case, it is a fact that a custom oxists within the Northern
en | Cheyenne Tribe and other tribes whereby a family or clan often
on | sits in council and decides to allow the adoption of one child of
29. one couple to another couple, who for medical or other reasons
so! are childless. The Tribal Court is in a better position to give
31 deference to this and other tribal customs when entertaining an
32 adoption petition than the State Court which must proceed strictly
serncek Ff were
sore at tam
eee 48
ro. ere ®
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arroenen at taw
wer rower «
weet, ME, Beene
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15
sF¥SBRBRBRRERBBR ES
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|
according to the law and procedure of the legislature. Deference
to such a customwas guaranteed by Congressand the Northern
Cheyenne Tribe when they established the Tribe's constitution,
bylaws and ordinances providing for exclusive tribal jurisdiction
over this matter.
CONCLUSION
For the foregoing reasons, a writ of certiorari should
issue to review the judgment of the Opinion of the Supreme Court
of the State of Montana.
Respectfully submitted.
a \
. CLARENCE T. BELUE
201 West 4th Street
Hardin, Montana 59034
Attorney for Petitoner
August 26, 1975
sth
a
ooaonrkton&kteek»wew#ten &
~
~~ oOo
12
~
”o
SRXRRERL
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oO
held the
APPENDIX A
The opinion of the Supreme Court of the State of
Montana is reported as STATE of Montana ex rel. In the Matter of
the ADOPTION OF Ivan FIRECROW, a minor by Leroy Runsabove and
The DISTRICT COURT OF the
Josephine Runsabove, Petitioners, v.
SIXTEENTH JUDICIAL DISTRICT of the State of Montana, IN AND FOR
the COUNTY OF ROSEBUD, and the Honorable Alfred B. Coate, Judge
Thereof, Respondents, No. 13025. 536 P.2d 190. The full text
of this opinion is as follows:
CASTLES, Justice.
This a petition for a writ of supervisory control or
other appropriate writ seeking relief from an order of the district
court of the sixteenth judicial district, Rosebud County, which
district court had no jurisdiction in this adoption
proceeding and ordered the case dismissed.
On August 20, 1974, petitioners Leroy and Josephine
Runsabove filed in the district court a petition for the adoption
of Ivan Firecrow, a minor child, born May 10, 1965. Consent to
the adoption and waiver of further notice, executed by the natural
father, was filed with the petition for adoption. Petitioners,
the child, and the natural mother are all enrolled members of the
Northern Cheyenne Tribe and have resided on the Northern Cheyenne
Reservation at all times pertinent to this matter.
Previously, on July 1, 1969, Ivan Firecrow was made a
An order was entered
ward of the Northern Cheyenne Tribal Court upon a finding that
the natural mother had neglected the child.
that day giving petitioners temporary custody of the child. They |
have had custody of the child since that time. On August 30, 1974,
the tribal court ordered the natural mother be granted temporary
custody of the child for six weeks during the summer months.
Revised Law and Order Ordinances
Article III, section 2,
of the Northern Cheyenne Tribe of the Northern Cheyenne Reservation,
-lL7A-
2 eo a fF CA NF
8
|
10
11
~
wo
|
il
|
32)
es8S 8 FSRRRBRES
(TAMENCE T. HELUB
sTrORNEY af baw
weer rourra er.
VsROIY, MT. Boone
reads, in pertinent part:
“The Tribal Court of the Northern Cheyenne Reservation
shall have juristiction to hear, pass upon, and approve
applications for adoptions among members of the Northern
Cheyenne Tribe.
"Upon proper showing and decision by the court, such
adoptions shall be binding upon all concerned and here-
after only adoptions so approved by the Tribal Court
shall be recognized.”
The district court held a hearing upon the petition for
1974.
adoption on October ll, Ivan was present at the hearing,
|
|
|
|
i
|
having come from Oregon where he attends school under the auspices |
of the Mormon Church, during the school year. The natural mother
objected to the hearing alleging the district court had no juris-
diction to hear and grant the petition for adoption and, that the
matter was within the exclusive jurisdiction of the tribal court. |
Following submission of briefs on the issue of jurisdiction and
receipt of an advisory opinion from the appellate court of the
Northern Cheyenne Tribe, the district court issued its order
holding that it had no jurisdiction over the adoption and sedoced
the case dismissed.
{1-3} We are presented with a single issue for review:
Whether, upon the facts outlined above, the district court has
subject matter jurisdiction over the instant petition for adop-
tion? We hddit does have such jurisdiction.
Montana's statutes regarding adoption are in Chapter 2,
Title 61, R.C.M. 1947. Section 61-202 reads:
"Any child present within this state at the time the
petition for adoption is filed, irrespective of place
of birth or place of residence, may be adopted.”
Section 61-204 reads:
"Proceedings for adoption must be brought in the district
court of the county where the petitioners reside.”
Montana, at
The statutes have been complied with. Ivan was within
home with petitioners during summer vacation when the petition was
filed. Petitioners' place of residence is the town of Lame Deer,
county of Rosebud, state of Montana. While the residence of
etanenet yr mete
. owner
at ta?
omerw OF
|
s and Ivan is within the exterior boundaries of the
pet itioner
worthern Cheyenne Peservation, that residence is also within the
state of Montana. organized Village of Kake V- Egan, 369 U.S.
60, 92 S.Ct. 5662, 7L.Ed.2¢ 573.
The Northern Cheyenne Tribe is incorporated pursuant to
the whee ler-Howard Act, 2° u.s.c. § 461 et seq- It is organized
and existing under 4 constitution and by-laws ratified by the tri
“November 2, 1935, and approved by the Secretary of the Interior |
|
t time the courts of this state |
;
ving Indians. State |
|
on
1
2
3
“
5
6
7
8
9
on November 23. 1935. Prior to tha
er adoption matters invol
10 nad jurisdiction ov
162 Mont. 335, 512 p.2d 1292; |
ll °* rel. Iron Bear y. District Court,
12 Bad Horse V- Bad Horse, 163 Mont. 445, 517 p.2da 893, 31 St.Rep- 22
ts of the state of Montana
The jurisdiction of the cour
13)
14,35 not dive
sted by the subsequent, unilateral action of the North-
15, erm Cheyenne Tribe in enacting Article Iil, section 2, of its
16 | revised Law and Order Ordinances, heretofore quoted. Assuming
17. that the tribal court has jurisdiction over adoptions involving
ncurrent with that of the district
Indians, it is a jurisdiction co
18,
19, court: It is not an exclusive jurisdiction. The United States
that state courts have concurren
ns in 25 U.S.C- § 372a.-
20 Congress has implicity recognized
s involving India
;
jurisdiction over adoptions |
jurisdiction over adoption
The district court having always had
involving Indians, 25 U.S.C. §1322 is not applicable.
This Court in Bad Horse ys. Bad Horse, 163 Mont. 445,
31 St. Rep- 22, 25, stated:
“rpnrolled members of Indian tribes within Montana are
nited States and citizens °
s any other citizen,
517 P.2d 993, 895,
€ the 1889 Montana Constitutio
Sec. 16 of the 1972 Montana Constitution ;
g3-102, R- 126 Mont. 24,
29) 243 P.2d 317."
22
23
24
25
26
28
30 compare McCrea V- pusch, 164 Mont. 442. 524 P.
31 551, where an Indian sued a non-Indian in a state court for
ent on a reservation.
damages arising out of an accid
-19-
CLAMENCE T mitre
slr eeer af taw
wrest Fowrre ef.
meme
way. SE. Beewee
(4)
II, Secti
ion 4, 1972 Montana Constitution
Petitioners are entitled
ES
—
na
a ff Ww ND
—=
citizens rega
rdle
gee ss of the fact that they are enroll
ndian tribe and se mde
. . *
reside within the exterior bound . |
aries of tha
t
7 *
Indian reservation.
. .
benefit of Montana's adoptio
ns
tatues, as are all Montana citi
izens,
r Gg y i
18 . .
, , d
i)
FS$BBepeRBRRERRE S
It
and DALY, JJ., concur
-20-
e * ON IIEIIIED EEE
1 APPENDIX B a In Kennerly vs. District Court, 300 U.S. 423, 426, 91 S.Ct. 480,
: |
3) The opinion of the District Court of the Sixteenth 2 482, 27 Led 2d 507, the United States Supreme Court said:
3 Judicial District of the State of Montana, in and for the County 3 The Court in Williams, in the process of discussing the
. soa general question of state action impinging on affairs !
4 of Rosebud is unreported, and the full text of the opinion is 4 of reservation Indians, noted that "[e] essentially,
absent governing Acts of Congress, the question has |
5 as follows: | 5 always been whether the state action infringed on the
right of reservation Indians to make their own laws |
6 Petitioners are the daughter and son-in-law of the Oo and be ruled by them.” 358 U.S., at 220, 79 S.Ct.,
at 271.
7 Respondent and have petitioned to adopt one of the Respondent's 7
By this test, this court now holds that the Montana Constitution |
8 children. The natural father of the child has consented to the ' 8 |
and the legislative enactments of this state, insofar as the
9 adoption. All of the parties to this proceeding are members of 9 |
ae jurisdiction of state courts over adoption proceedings is concern-|
10 the Northern Cheyenne Indian Tribe and reside within the exterior | ~ 10 | |
oe . ed, does not infringe on the right of reservation Indians to make
ll boundaries of that reservation. Petitioners reside within Rose- | 11}
| their own laws.
12 bud County, State of Montana. 12
i — This court further finds that jurisdiction over Indian
a At the hearing on the Petition the Respondent moved to 13
adoptions, if there be such, could only be conferred by an enact-
14 dismiss the petition on the ground that the state court lacked 14 a
oy ment of the Northern Cheyenne Tribe. Their Ordinance, Chapter
15 jurisdiction over members of an Indian tribe who were residing 15
4 III, section 2, provides:
16 within an Indian reservation. There is no question that this 16
ers a yee a Adoptions.
17 court is the proper court to hear the petition, if it has juris- 17
i aa ae The Tribal Court of the Northern Cheyenne Reservation
18 dicticn over Indians who are members of and residing within the 18 shall have jurisdiction to hear, pass upon, and approve
i | | ; applications for adoptions among members of the Northern
19 boundaries of their reservation. 19 Cheyenne Tribe.
d
20 | Jurisdiction cannot be conferred upon a court by the 20 Upon proper showing and decision by the court, such
| adoptions shall be binding upon all concerned and here-
21 consent of the parties. In re Vincent's Estate, 133 Mont. 424, 21 after only adoptions so approved by the Tribal Court
<i ewes | shall be recognized. |
22 324 P.2d 403. A decree rendered by a court without jurisdiction | 22 |
; On all adoptions involving non-members of the Northern |
a member of the Northern Cheyenne Tribe, the Tribal Court
24 pP.2d 241. Therefore it is most important that this court deter- | 24 of the Northern Cheyenne Reservation shall have con- |
a current jurisdiction to hear, pass upon and approve
25 mine its jurisdiction and render a decision in this matter. 25 applications for adoption and upon written consent of
m ; the court, adoption proceedings affecting members of the
26 Congress, in 1940, recognized that state courts could | 26 | Northern Cheyenne Tribe of the Northern Cheyenne Reserva-|
| ' tion may be taken up and consummated in the State Courts,
27 have jurisdiction to grant Indian adoptions. 25 U.S.C. 372 A. 27 (Emphasis added) .
28 That statute was not repealed by the Indian Civil Rights Act of 2g This Ordinance is subject to more than one construction; therefore,
99 1968, 25 U.S.C. section 1320 et seq. Congress has never conferred 99) this court now certifies the following questions to the highest
390 adoption jurisdiction upon the states by specific legislative 39 court of that tribe, the Northern Cheyenne Supreme Court, for its
3] enactment; therefore, jurisdiction to grant adoptions over Indian 31 interpretation:
32 people by a state court must have been conferred by tribal action. 32 1. Does this Ordinance confer jurisdiction on the
District Court of the Sixteenth Judicial District of
; ‘LAWENCE T. BPLUS
err at to s ;TOSeeET a? Law ~22-
20) Wwrer Fotrra «*
wee ee. MT. Bees
es
5 Se a
the State of Montana to grant adoptions, to and over,
members of the Northern Cheyenne Tribe? 1
2. If the Ordinance confers such jurisdiction on the 2
state court, is there any restrictions on the exercise z
of that jurisdiction?
In the event that the Northern Cheyenne Supreme Court does not 4
5 |
desire to certify answers to these questions within thirty days, 5
6
this court will render its final decision at the expiration of | 6
7 7
that time.
Dated this 25th day of March, 1975.
9 | 9
10 | |
/s/ Alfred 8B. Coate | 20
ll. DISTRICT JUDGE 11
12) 12
13 SUPPLEMENATRY ORDER 13
14) This court certified a question of Indian law to the 14
15 Appellate Court of the Northern Cheyenne Tribe of Indians concern- 15
{
16 ing the jurisdiction of this court to grant adoptions to Indians 16
i
17. of that tribe residing within the exterior boundaries of that 17
{
18. reservation. 18
19| That court has issued its Opinion on the question and 19
20 has held: 20
21 | It is the opinion of this Court, and this Court so 21
rules, that the Tribal Court has exclusive jurisdiction
22. of all adoptions of members of the Northern Cheyenne 22
Tribe of Indians where it appears that the minor who is
23 being adopted and all other parties to the adoption 23
proceedings, which is to say, the parent and/or parents |
24 of » Minor and the person and/or persons adopting 24
said minor are each and all members of the Northern
25 Cheyenne Tribe and each and all reside within the 25
exterior boundaries of the Northern Cheyenne Indian
26 | Reservation. 26
27 Therefore, the court now Orders, and this does Order, 27
that:
28 | 28
29 l. The above entitled court has no jurisdiction in -
this proceeding; and
30 30
31 2. The petition in this cause be denied and the case be -
dismissed.
352 32
-23-
wert at teow
erer oreera OF
. we
CLANENCE TFT. BDILUS
arroeser af tiw
#0) wrert roewvern ef.
Mehory., MT. Bevae
Dated this 18th day of April, 1975.
/s/ Alfred B. Coate
——“pISTRICT JUDGE
-24-
4
4
a
Judicial District of the State of Montana in and for the County °
116 of said District Court)
APPENDIX C
The Advisory Opinion of the Appellate Court of the
Northern Cheyenne Tribe of Indians is unreported and the full |
text of the opinion is as follows:
This is an extra-ordinary opinion of the Appellate
Court of the Northern Cheyenne Tribe and the same is ad@Visory only
Since this Court does not have any jurisdiction over the proceed- |
ings of the District Court of the Sixteenth Judicial District of |
the State of Montana, in and for the County of Rosebud. |
It appears to this Court from the information and facts |
presented to this Court by Judge Thomas Gardner, Tribal Judge of
the Northern Cheyenne Tribal Court, that the Honorable Alfred B.
Coate, District Judge of the District Court of the Sixteenth
of Rosebud, filed with said Tribal Judge a copy of an Order
said District Court which was made and entered on the 25th day
of March, 1975, by said District Judge and which is entitled, “In
the Matter of Adoption of Ivan Firecrow, a minor." (Adoption No.
A copy of said Order is annexed to this Opinion for the
purpose of reference to the same.
It appears to this Court that adoption proceedings are |
pending in said District Court and that all of the parties to the
adoption proceedings are members of the Northern Cheyenne Indian
Tribe and reside within the exterior boundaries of the Northern
Cheyenne Indian Reservation. In said Order, his honor, the presid-
ing Judge of said District Court, sets forth the following:
"This court further finds that jurisdiction over
Indian adoptions, if there be such, could only be
conferred by an enactment of the Northern Cheyenne
Tribe. Their Ordinance, Chapter III, section 2,
provides:
Adoptions.
The Tribal Court of the Northern Cheyenne Reserva~
tion shall have jurisdiction to hear, pass upon,
o2$<
1 and approve applications for adoptions among member
of the Northern Cheyenne Tribe. 1
2
Upon proper showing and decision by the court, |
3 such adoptions shall be binding upon all concerned |
and hereafter only adoptions so approved by the
4 Tribal Court shall be recognized. '
|
5 On all adoptions involving non-members of the
Northern Cheyenne Tribe or non-Indians or both who |
6 wish to adopt a member of the Northern Cheyenne
Tribe, the Tribal Court of the Northern Cheyenne
7 Reservation shall have concurrent jurisdiction to
hear, pass upon, and approve applications for
8 adoption and upon written consent of thy court,
adoption proceedings affecting members of the
9 Northern Cheyenne Tribe of the Northern Cheyenne
Reservation may be taken up and consummated in the
10 State Court. (Emphasis added.)
ll This Ordinance is subject to more than one construction; |
therefore, this court now certifies the following
12 questions to the highest court of that tribe, the
Northern Cheyenne Supreme Court, for its interpretation:
13
lL. Does this Ordinance confer jurisdiction on
14 the District Court of the Sixteenth Judicial Distrig¢t
of the State of Montana to grant adoptions, to and
15 Over, members of the Northern Cheyenfie Tribe?
16 2. If the Ordinance confers such jurisdiction on
the state court, is there any restrictions on the
17 exercise of that jurisdiction?
18 In the event that the Northern Cheyenne Supreme Court
does not desire to certify answers to these questions
19 within thirty days, this court will render its final
decision at the expiration of that time.”
20
Under the amended Constitution and By-laws of the North-
21
ia Cheyenne Tribe which was approved by the Assistant Secretary
22 ;
: the Interior on July 8, 1960, by Article V, certain Enumerated
23
— were provided for and authorized to be carried out as
24
‘eer and duties of the Northern Cheyenne Tribal Council.
25 |
Among the Enumerated Powers by the Sub-section (i) of Section l
26
jee Article IV, the Tribal Council, subject to any limitations
27 | :'
' imposed by applicable statutes of the United States, and subject
further to all express restrictions upon such powers contained in
‘beggag amended Constitution, was authorized to promulgate and enforce
30 | .
, ordinances, * ich are subject to review by the Secretary of the
31
Interior. Said Sub-section (i) reads as follows, to-wit:
32
*LAWENCE TF. pies
sor ery a? taw
se: wre rowrra er.
‘
a
@26<
a ee ee
oe
—e
o ont fof fF f- fC NY fF
~ ~ ~~ ~~ w we
a + FA NO YF OC
SSeeaes
n
@
Tribal Court of adoptions among members of the Northern Cheyenne
Tribe.
to-wit:
"(i) To promulgate and enforce ordinances, which shal]
be subject to reveiw by the Secretary of the Interior,
governing the conduct of members of the Northern
Cheyenne Tribe and any other person or persons coming
within the jurisdiction of the reservation, and provid-
ing for the maintenance of law and order and the admin-
istration of justice by establishing a reservation
court and defining its duties and powers."
Pursuant to said constitutional Enumerated Powers of the
Northern Cheyenne Tribal Council, the Revised Law and Order Ordi-
nances of the Northern Cheyenne Tribe of the Northern Cheyenne
Reservation, Montana was passed and adopted by Tribal Resolution
23
No. (66)
and the same was approved by the Commissioner of
Indian Affairs on June 9, 1966.
Chapter III of said Revised Law
and Order Ordinances provides for granting of jurisdiction in the
Section 2 of said revised ordinances reads as follows,
“SECTION 2: Adoptions:
The Tribal Court of the Northern Cheyenne Res-
ervation shall have jurisdiction to hear, pass upon, and
approve applications for adoptions among members of the
Northern Cheyenne Tribe.
Upon proper showing and decision by the court,
such adoptions shall be binding upon all concerned and
hereafter only, adoptions so approved by the Tribal
Court shall be recognized.
On all adoptions involving non-members of the
Northern Cheyenne Tribe or non-Indians or both who wish
to adopt a member of the Northem Cheyenne Tribe, the
Tribal Court of the Northern Cheyenne Reservation shall |
have concurrent jurisdiction to hear, pass upon, and
approve applications for adoption and upon written
concent of the court, adoption proceedings affecting
members of the Northern Cheyenne Tribe of the Northern
Cheyenne Reservation may be taken up and consummated in
the State Courts.”
His Honor,
Judge Alfred B. Coate, as set forth in his
said Order of the District Court, finds that only persons who are
members of the Northern Cheyenne Tribe and who reside within the
exterior boundaries of the Northern Cheyenne Indian Reservation
are
involved in the adoption proceedings pending before the
District Court. Therefore, this Opinion will be confined to the
o27<
*LAMENCE TF wetve
sTToesre af
'
20) Wet rowe:u er. 4
eeae |
Memes. Me.
“oe
1 status of the parties involved in the subject State Court proceed-
2 | ings.
3 In other words, non-members of the Northern Cheyenne
| Tribe or non-Indians or both non-members of the Northern Cheyenne
5 Tribe and members of the Tribe as parties to the adoption proceed- |
bi jae pending in said adoption matter before said District Court,
7 are not involved. |
8 Therefore, the minor, Ivan Firecrow, and all other per-
9 sons appearing in the State District Court adoption proceedings
|
10 are members of the Northern Cheyenne Tribe of Indians and reside
12! within the exterior boundaries of the Northern Cheyenne Indian
12! Reservation.
13 From the factual situation found to exist by Judge
14! coate, as set forth in his Order, a copy of which is hereto annex-¢
ied, it appears that the first two paragraphs of section 2 of Chap-
16/ ter III of the Tribal Code sets forth the Tribal law applicable to
17 | adoptions where the adoptive minor and all other parties involved
18) in an adoption proceeding are members of ti: > Northern Cheyenne
19 Tribe and reside within the exterior boundaries of the Northern
Therefore, in the matter at bar
21
22
25
i it is not necessary for this
20) cheyenne Indian Reservation.
ee the State District Court,
Appellate Court to interpret or make any opinion as to the pro-
|
visions of the third paragraph of said section 2 of Chapter III
_of the Tribal Code.
and this Court so rules,
It is the opinion of this Court,
that the Tribal Court has exclusive jurisdiction of all adoptions
of members of the Northern Cheyenne Tribe of Indians where it
appears that the minor who is being adopted and all other parties
to the adoption proceedings, which is to say. the parent and/or
parents of the minor and the person and/or persons adopting
said minor are each and all members of the Northern Cheyenne Tribe
and each and all reside within the exterior bcundaries of the
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of the Northern Cheyenne Tribe at the request of the Honorable
mission as “in rem” or “in personam" jurisdiction by the Courts
Northern Cheyenne Indian Reservation,
This Court has not been called upon to decide any issue
involving non-members of the Northern Cheyenne Tribe or non-
Indians or both, who wish to adopt a member of the Northern
Cheyenne Tribe. Therefore, this Court does not make any opinion
or interpretation as to the provisions of the last (3rd) paragraph
of said Section 1 of Chapter III of the Tribal Code.
It must be understood that in making this Opinion this
Court recognizes the limitations of its jurisdiction. The con-
fines of the jurisdiction of this Court are fixed by section 6
of Chapter I of the Tribal Code, which provides that the rn
Judge --- “will act as Appellate Judge for the Northern Cheyenne
Tribal Court.”
Therefore, the Opinion is made by the Appellate Court
Alfred B. Coate, District Judge, as foresaid, and this extra-
ordinary Opinion is not to be in any manner construed as an ad-
of the State of Montana in the case at bar which is pending in the
Sixteenth Judicial District before the Honorable Alfred B. Coate
entitled, "In the Matter of the Adoption of Ivan Firecrow, a
minor®.
Since this Opinion was requested the Trial Judge of the
Northern Cheyenne Tribe it is hereby ordered that a copy of |
this Opinion be forthwith mailed by United States mail to the
Honorable Alfred B. Coate, District Judge at Forsyth, Montana and |
a duplicate copy be mailed to Judge Thomas Gardner, Tribal Judge.
DATED this l2th day of April, 1975.
Appellate Judge Of the Northern
Cheyenne Tribe of Indians.
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This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.