# Petition — Fisher v. District Court of Sixteenth Judicial Dist. of Mont.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition
- **Published:** January 1, 1976
- **Citation:** 424 U.S. 382

## Text

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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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Constitutional Provisions, Treaties, Statutes,

Ordinances, Regulations Involved........

Statement of POON 66h ee eseeeeeseeeeseses

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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.

eoccccccccccses 6,8

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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

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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."

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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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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.

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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

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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,

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(TAMENCE T. HELUB
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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,

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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

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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 |
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t time the courts of this state |

;

ving Indians. State |
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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

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CLAMENCE T mitre
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meme
way. SE. Beewee

(4)

II, Secti
ion 4, 1972 Montana Constitution

Petitioners are entitled

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citizens rega
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gee ss of the fact that they are enroll
ndian tribe and se mde
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reside within the exterior bound . |
aries of tha
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Indian reservation.

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benefit of Montana's adoptio
ns
tatues, as are all Montana citi
izens,

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18 . .
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FS$BBepeRBRRERRE S

It

and DALY, JJ., concur

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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
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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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385003_2053%3A1. Public record. Not legal advice.