Petition for Writ of Certiorari — Vielle v. Baisley

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

CHERYL ANN VIELLE,

Petitioner,

v.

WILLIAM JOSEPH BAISLEY,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE COLORADO COURT OF APPEALS

M. JULIA HOOK

(Counsel of Record)

SUSAN N. HARRIS DIXON

HOLLAND & HART

555 Seventeenth Street

Suite 2900

Denver, Colorado 80202

(303) 295-8000

Counsel for Petitioner

Cheryl Ann Vielle

August 8, 1988

QUESTION PRESENTED

Did the Colorado Court of Appeals

err in affirming the Colorado district

court's exercise of jurisdiction of a

dispute involving the custody of two

minor children who are enrolled members

of the Blackfeet Tribe living on the

Blackfeet Reservation in Montana?

LIST OF PARTIES

All parties to the proceeding in the

Colorado Court of Appeals are listed in

the caption. Petitioner, Cheryl Ann

Vielle, was Appellant before the Colorado

Court of Appeals. Respondent, William

Joseph Baisley, was Appellee.

TABLE OF CONTENTS

Page

QUESTION PRESENTED... ccccccccccces i

i Sr rT 6 one cea ccceseseeeee i

-, | 9° Be BP ns 6 (4) - vi

CT (I, 6666600060666 6068 6680 2

TEs 6p asece Cece seccececes 3

py pyiy. Ge eo A) . : I erry +

STATEMENT OF THE CASE. .cccccccccce 9

REASONS FOR GRANTING THE

yg AR ee #wffeeee#s### # @ 16

ie FEDERAL LAW PREEMPTS

THE ASSERTION OF

JURISDICTION OF THIS

CASE BY A STATE COURT....... 20

A. The Blackfeet

Code By Itself

Cannot Grant

Jurisdiction Of

This Case to a

DS cs cccccecess 23

B. The Court of

Appeals

Misunderstood

the Application

of Preemption

afta

Analysis in the

Field of Indian

Due neoedtdeesseeocce so oe

II. THE COURT OF APPEALS

MISINTERPRETED THE

PROVISIONS OF THE

BLACKFEET CODE AT

ISSUE IN THIS CASE.......... 39

CONCLUSION... ccccccsccccccccces oe SL

Appendix A: Minute Order,

undated, by Colorado

district court,

stating that on

2/10/86 a determina-

tion was made that

Colorado court is the

appropriate court to

exercise jurisdiction...... A-l

Appendix B: Findings of

Fact, Conclusions of

Law, and Decree of

Dissolution of Mar-

riage, entered

3/5/86, by District

Court of 9th Judicial

District of Montana....... . B-l

Appendix C: Emergency

Protective Order,

dated 7/15/86, by

Blackfeet Tribal

COU Cc cs cos eecreseresseeebese C-l

Appendix D: Order, dated

7/25/86, by Blackfeet

Tribal Court, denying

petition to vacate

Emergency Protective

OPEC co ccccccccccccccccccces D-1

Appendix E: Minute Order,

entered 7/31/86, by

District Court of

Boulder County,

Colorado, regarding

permanent custody.......... E-1

Appendix F: Resolution

Number 285-87 of

Blackfeet Tribal

Business Council,

denying Respondent's

request to disenroll

Petitioner's children...... F-1

Appendix G: Opinion,

filed 11/5/87, by

Colorado Court of

Appeals, affirming

judgment of District

Court of Boulder

Appendix H: Order, dated

12/3/87, by Colorado

Court of Appeals,

Genying Petitioner's

petition for rehear-

Page

Appendix I: Order of

Court, dated 5/9/88,

by Colorado Supreme

Court, denying Peti-

tioner's petition for

writ of certiorari......... I-1

TABLE OF AUTHORITIES

CASES: Page

California v. Cabazon Band of

Mission Indians, 107 S.Ct.

oo ot ee a re 35

D. Ginsberg & Sons v. Popkin,

. =e * OEE: ) eer 41

Fisher v. District Court, 424

J Mee | Sy. } err 37

Gainsville v. Brown-Crummer

Investment Co., 277 U.S.

Eee eas Ons bos a 6000 08 8 408 17

Iowa Mutual Ins. Co. v.

LaPlante, 107 S.Ct. 971

CL OTR iaisdas errs es Tee eC eee ee 37, 48

Kennerly v. District Court of

Montana, 400 U.S. 423

oo | a ee Sa eee ar 22

MacEvoy v. United States, 322

RB at re ee ee rr 41

McClanahan v. Arizona State Tax

Comm'n, 411 U.S. 164

eS ee ee ee ee eee 36

Merrion v. Jicarilla Apache

Tribe, 455 U.S. 130 (1982)... 45, 46

amgtie

CASES CONT:iNUED: Page

National Farmers Union Ins. Co.

v. Crow Tribe, 471 U.S.

CE ee cas cc cccc ccc 37, 48

New Mexico v. Mescalero Apache

Beem, @e2 U.S. 324 (1983)....... 35

R. J. Williams Co. v. Fort

Belknap Housing Auth., 719

paaeeowee aetn Cir. 1983)..... 47, 48

Santa Clara Pueblo v. Martinez,

SE PC SIO) ccc ccc ccc ccc ces 9

Three Affiliated Tribes of the

Fort Berthold

Reservation v. Wold Engi-

neering, 476 U.S. 877

IS Ce 34

United States ex rel. Cobell v.

Cobell, 503 F.2d 790 (9th

TT. «cco bcsceccecee 43, 44, 45

White Mountain Apache Tribe v.

Bracker, 448 U.S. 136

|) ia i So 6 6 ose 66 a2, 33, 35

Worcester v. Georgia, 3l U.S.

Sk 2) 36

CONSTITUTIONAL PROVISIONS: Page

Dae aeenacucion, Art. I, $ 8,

te tcc ce este c ccc. 36

-vVil-

STATUTES: Page

p, BR Se Sees Re) ee rrrere 4, 18

res eee CUCU E CTE CTU TEU OE Le ai, a0

re Sn ee ef + br erree Paes

Teorey eT Te ERATE CRC TERT TTL ESS 28

Montana Code Ann. § 2-1-301

fo. ee a er ae 7, ae

Montana Code Ann. § 2-1-302

a | Se ae 7-8, 29

Public Law 280, Act of

August 15, 1953, Pub. L.

No. 83-280, §$ 7 (67 Stat.

te ee ads kak ke 68 6S 66 te 6

Se re Te CRORE RCE TERE CETTE 23-24

Blackfeet Tribal Law and Order

Come, Cmeeter 2, SS de ccadasss + a

SPs a ee a a ee 25, 40

Blackfeet Tribal Law and Order

Coase, Cmeecer 3, 3S Liwessces 6-7, 20

tea Awd bo hh sé Wee eee 40, 41, 42

Blackfeet Tribal Law and Order

ce ee ae Fae a ee ee 7

ey ee ee ee ee or Ee ee ee Te 20-21

eas APPS eT Pee Serre Sr | Pie! ee

“Viii-

No.

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

CHERYL ANN VIELLE,

Petitioner,

Vv.

WILLIAM JOSEPH BAISLEY,

Respondent.

ON PETITION FOR A WRIT OF CERTIORARI

TO THE COLORADO COURT OF APPEALS

Petitioner, Cheryl Ann Vielle,

respectfully prays that this Court grant

a writ of certiorari to review the judg-

ment of the Colorado Court of Appeals

entered on November 5, 1987. The

Colorado Court of Appeals affirmed the

Colorado district court's award of cus-

tody of Petitioner's two minor children

to Respondent. The Colorado Court of

Appeals denied Petitioner's petition for

rehearing on December 3, 1987. The

Colorado Supreme Court denied Peti-

tioner's petition for writ of certiorari

on May 9, 1988.

OPINIONS BELOW

The July 31, 1986 Minute Order of

the District Court, Boulder County,

Colorado is reproduced and appended

hereto as Appendix E.

The November 5, 1987 Opinion of the

Colorado Court of Appeals is reproduced

and appended hereto as Appendix G.

The December 3, 1987 Order of the

Colorado Court of Appeals denying Peti-

tioner's Petition for Rehearing is repro-

duced and appended hereto as Appendix H.

The May 9, 1988 Order of the

Colorado Supreme Court denying

Petitioner's Petition for Writ of Certio-

rari is reproduced and appended hereto as

Appendix I.

JURISDICTION

| Petitioner seeks review of the judg-

| ment of the Colorado Court of Appeals,

entered November 5, 1987, affirming the

Colorado district court's minute order of

July 31, 1986. That order denied Peti-

tioner’s motion to dismiss or, in the

alternative, to hear testimony in the

Blackfeet Tribal Court, and awarded per-

manent custody of Petitioner's children

to Respondent. The Colorado Court of

Appeals denied Petitioner's petition for

rehearing on December 3, 1987. Peti-

tioner’s subsequent petition for writ of

certiorari was denied by the Colorado

Supreme Court on May 9, 1988. This

petition is filed within 90 days of the

decision by the Colorado Supreme Court.

Jurisdiction of this Court is conferred

by 28 U.S.C. § 1257(3) (1970).

STATUTES INVOLVED

The Indian Civil Rights Act, 25

U.S.C. § 1322(a):

Assumption by State of Civil

Jurisdiction

(a) Consent of United States;

force and effect of civil laws.

The consent of the United

States is hereby given to any

State not having jurisdiction

over civil causes of action

between Indians or to which

Indians are parties which arise

in the areas of Indian country

situated within such State to

assume, with the consent of the

tribe occupying the particular

Indian country or part thereof

which would be affected by such

assumption, such measure of

jurisdiction over any or all

such civil causes of action

arising within such Indian

country or any part thereof as

may be determined by such State

to the same extent that such

State has jurisdiction over

-4-

other civil causes of action,

and those civil laws of such

State that are of general

application to private persons

r private property shall have

the same force and effect

within such Indian country or

part thereof as they have else-

where within that State.

Indian Civil Rights Act, 25

U.8.C. § i386:

Special Election.

State jurisdiction acquired

pursuant to this title with

respect to criminal offenses or

civil causes of action, or with

respect to both, shall be

applicable in Indian country

only where the enrolled Indians

within the affected area of

such Indian country accept such

jurisdiction by a majority vote

of the adult Indians voting at

a special election held for

that purpose. The Secretary of

the Interior shall call such

special election under such

rules and regulations as he may

prescribe, when requested to do

so by the tribal council or

other governing body, or by 20

per centum of such enrolled

adults.

Public Law 280, Act of August 15,

1953, Pub. L. No. 83-280, § 7 (67

Stat. 588, 590):

The consent of the United

States is hereby given to any

other State not having juris-

diction with respect to

criminal offenses or civil

causes of action, or with

respect to both, as provided

for in this Act, to assume

jurisdiction at such time and

inssuch manner as the people of

the State shall, by affirmative

legislative action, obligate

and bind the State to assump-

tion thereof.

Blackfeet Tribal Law and Order Code,

Chapter 2, § l:

The Tribal Court and the

State shall have concurrent and

not exclusive jurisdiction of

all suits wherein the defendant

is a member of the Tribe which

is brought before the Courts.

Blackfeet Tribal Law and Order Code,

Chapter 3, §$ l:

All members of the

Blackfeet Indian Tribe shall

hereafter be governed by State

Law and subject to State juris-

diction with respect to mar-

riage hereafter consummated.

Commonlaw marriages and Indian

Custom marriages shall not be

-6-

recognized within the Blackfeet

Reservation.

Blackfeet Tribal Law and Order Code,

Chapter 3, § 2:

All divorces must be

consummated in accordance with

the state Law of Montana.

Indian custom divorces are from

this time on illegal and will

not be recognized as lawful

divorces on the Blackfeet Res-

ervation.

Montana Code Ann. § 2-1-3301:

Assumption of criminal juris-

diction of Flathead Indian

country. The State of Montana

hereby obligates and binds

itself to assume, as herein

provided, criminal jurisdiction

over Indians and Indian terri-

tory of the Flathead Indian

reservation and country within

the state in accordance with

the consent of the United

States given by the Act of

August 15, 1953 (Public Law

280, 83rd Congress, lst Ses-

sion).

Montana Code Ann. § 2-1-302:

Resolution of Indian tribes

requesting state jurisdiction

-- governor's proclamation --

consent of county commis-

Ssioners. (1) Whenever the

-7-

governor of this state receives

from the tribal council or

other governing body of the

Confederated Salish and

Kootenai Indian tribes or any

other community, band, or group

of Indians in this state, a

resolution expressing its

desire that its people and

lands be subject to the

Criminal or civil jurisdiction,

or both, of the state to the

extent authorized by federal

law and regulation, he shall

issue within 60 days a procla-

mation to the effect that such

jurisdiction applies to those

Indians and their territory or

reservation in accordance with

the provisions of this part.

(2) The governor may not issue

the proclamation until the res-

olution has been approved in

the manner provided for by the

charter, constitution, or other

fundamental law of the tribe or

tribes, if said document pro-

vides for such approval, and

there has been first obtained

the consent of the board of

county commissioners of each

county which encompasses any

portion of the reservation of

such tribe or tribes.

=z i el

STATEMENT OF THE CASE

At issue in this case is the perma-

nent custody of two enrolled members of

the Blackfeet Tribe of Montana:

Kristopher L. Baisley, age 5, and

Willy B. Baisley, age 4.' These children

were born of a common law marriage

between their parents, Cheryl Ann Vielle,

Petitioner, also an enrolled member of

the Blackfeet Tribe, and William Joseph

. Kristopher and Willy Baisley were

enrolled in the Blackfeet Tribe on May l,

1986. Blackfeet Tribal Business Council

Resolution No. 179-86. The Tribal Coun-

cil denied a subsequent request by

Respondent to disenroll both children

from membership in the Blackfeet Tribe.

Blackfeet Tribal Business Council Resolu-

tion No. 285-87. See Appendix F.

Tribal determinations on the member-

ship of individuals in the tribe are the

exclusive province of the tribe, and are

not subject to challenge in state court.

See Santa Clara Pueblo v. Martinez, 436

U.S. 49, 55-56 (1978).

Baisley, Respondent. *

Petitioner and Respondent lived

together with the children until the time

of their separation in June 1985.

Respondent then moved to Boulder,

Colorado with the children, pursuant to

an oral understanding between himself and

Petitioner that the children would be

returned to her in Browning, Montana at

the end of that summer.’ However,

Respondent refused to return the children

to the Blackfeet Reservation at the end

of August 1985.

: Petitioner was enrolled in the

Blackfeet Tribe in 1964 with Blackfeet

Enrollee No. 201-12609. Respondent is a

non-Indian.

' Although Browning was incorporated

under the laws of Montana, it is located

within the exterior boundaries of the

Blackfeet Reservation.

-10-

Respondent repeatedly ignored Peti-

tioner's pleas for the return of her two

sons to Browning, Montana. Consequently,

on January 7, 1986, she filed a Petition

for Dissolution of Marriage and Motion

for Temporary Custody Ex Parte in the

Ninth Judicial District of Montana.” The

Montana court issued an Order for Tempo-

rary Custody Ex Parte on that same day,

and scheduled a show cause hearing for

January 22, 1986. After being served

with process, Respondent filed a petition

for custody of the children in the Boul-

der County District Court of Colorado

under the Uniform Child Custody Jurisdic-

tion Act.

+

Petitioner selected this forum on

the mistaken assumption that the

Blackfeet Tribal Court would not have

jurisdiction of the case.

oljl@-

The Colorado and Montana courts con-

ferred by telephone on January 31, 1986,

and determined that, because in their

opinion Colorado was the "home state" of

the two children, jurisdiction of the

children's custody properly belonged with

the Colorado court. This conference was

not recorded, and neither party's counsel

was pr°sent. The Colorado court issued a

summary order asserting its jurisdiction

of the custody dispute, but neither court

ever issued an explanation of the factual

or legal bases that led to their deci-

sion. The Montana court retained juris-

diction of the dissolution proceeding,

and ordered the marriage of Petitioner

and Respondent dissolved on March 5,

1986.

Following a temporary custody hear-

ing on April 30, 1986, the Colorado court

-12-

awarded temporary custody of the children

to both Petitioner and Respondent, each

for a period of six weeks. Respondent

was awarded custody from April 30, 1986

to June ll, 1986, and Petitioner was

awarded custody from June ll, 1986 until

July 28, 1986. A permanent custody hear-

ing was scheduled for July 28, 1986.

After Respondent's six week custody

period ended, and pursuant to the

Colorado court's order, he returned the

children to Petitioner, on the Blackfeet

Reservation, in June 1986.

On July 15, 1986, Petitioner filed

for and received an emergency protective

custody order from the Blackfeet Tribal

Court, prohibiting the removal of the

children from the Blackfeet Reservation

until it was determined whether jurisdic-

tion to hear the dispute over their

-13-

custody properly rested with the tribal

court.

The Colorado court demonstrated a

disturbing lack of respect for the tribal

court's order when it conducted its per-

manent custody hearing on July 28, 1986.

At the insistence of Petitioner's coun-

sel, the Colorado court telephoned the

tribal court, but when the tribal court's

line was busy, the Colorado court deter-

mined that it could properly ignore the

tribal court's emergency protective cus-

tody order.* The Colorado court denied

Petitioner's motion to dismiss or, in the

. The Colorado court held that because

the jurisdictional dispute ha. veen "Lit-

igated," the emergency protective custody

order of the tribal court had "expired."

See Appendix E. This despite the fact

that three days earlier the tribal court

had denied Respondent's Petition to

Vacate the Emergency Protective Order.

See Appendix D.

-l14-

alternative, to hear testimony in the

Blackfeet Tribal Court. The court then

unilaterally affirmed its exercise of

jurisdiction and awarded permanent cus-

tody of the children to Respondent. ®

The Colorado Court of Appeals

affirmed the decision of the lower court

on November 5, 1987. Petitioner's peti-

tion for rehearing was denied on

December 3, 1987. Petitioner's petition

for writ of certiorari was denied by the

Colorado Supreme Court on May 9, 1988.

. Petitioner, a college student, was

unable to attend the July 28, 1986 hear-

ing due to her financial inability to

travel from Montana to Colorado. There

were no witnesses present at that hearing

on her behalf. Refusing to postpone its

decision until it could confer with the

Blackfeet Tribal Court on the issue of

jurisdiction, the Colorado court awarded

custody of the children to Respondent

solely on the basis of evidence presented

by Respondent.

-15-

REASONS FOR GRANTING THE WRIT

Because the dispute in this case

relates to the custody of two minor chil-

Gren who are enrolled members of the

Blackfeet Tribe, and who were living on

the Blackfeet Reservation at the time the

jurisdictional dispute arose, exclusive

jurisdiction to hear the case resides in

the Blackfeet Tribal Court. The tribal

court attempted to exercise that juris-

diction by issuing its emergency protec-

tive custody order of July 15, 1986, but

that order was ignored by the Colorado

district court during the permanent cus-

tody hearing it conducted on July 28,

1986. Instead of consulting with the

tribal court on the jurisdictional dis-

pute, the Colorado court summarily

affirmed its own jurisdiction and awarded

-16-

custody of Kristopher and Willy Baisley

to Respondent.

The Colorado Court of Appeals

affirmed the district court's exercise of

jurisdiction. The court of appeals did

not base its decision on any findings of

fact made by the district court on the

issue of jurisdiction.’ Instead, it

assumed that the tribal court had juris-

diction of the case. It then proceeded

to justify the state court's assertion of

concurrent jurisdiction on the basis of

, It should be noted that because Pe-

titioner is challenging the jurisdiction

of the Colorado district court to hear

this case, neither the parties to this

dispute nor this Court are bound by the

factual findings made by the Colorado

district court at the permanent custody

hearing it conducted on July 28, 1986, as

reflected in the opinion of the Colorado

Court of Appeals. See Gainsville v.

Brown-Crummer Investment Co., 277 U.S. 54

(1928) (jurisdictional challenge may be

raised at any time).

Ste

legal conclusions regarding the federal

Indian law applicable to this case.*® It

held that the Blackfeet Tribal Law and

Order Code ceded concurrent jurisdiction

"over divorce and custody matters arising

incident thereto” to the state courts.

Appendix G at G-15. The court of appeals

found that the Indian Civil Rights Act,

25 U.S.C. § 1322 (1982), “cannot be

interpreted to preempt state court juris-

diction in such matters.” Id. at G-l?7.

The court went on to note that it was

unaware “of any other federal authority

. The court of appeals' reliance on

legal grounds, instead of factual

grounds, to resolve this case is demon-

strated by its reference to Petitioner as

"an alleged enrolled member of the

Blackfeet Indian Tribe.” Appendix G

at G-2. The court of appeals obviously

felt that it could resolve the case with-

out determining whether Petitioner and

her two children were enrolled members of

the Blackfeet Tribe.

-18-

governing child custody in a dissolution

proceeding in which a tribal member was a

party that would preempt state court

jurisdiction.” Id.

These legal conclusions are in

direct conflict with the holdings of this

Court and lower federal courts on tribal

court jurisdiction and on tribal sover-

eignty in general. The legal errors

contained in the opinion of the Colorado

Court of Appeals warrant the reversal of

that opinion by this Court, accompanied

by a determination that jurisdiction to

hear this case lies exclusively with the

Blackfeet Tribal Court. The error of

each of the Colorado Court of Appeals'

conclusions is discussed below.

-1|9-

I. FEDERAL LAW PREEMPTS THE ASSERTION

OF JURISDICTION OF THIS CASE BY A

STATE COURT.

In affirming the jurisdiction of the

Colorado district court to hear this

case, the Colorado Court of Appeals

relied on three provisions of the

Blackfeet Tribal Law and Order Code. ?

The three provisions are as follows:

Chapter 2, § 1 provides:

The Tribal Court and the State

shall have concurrent and not exclusive

jurisdiction of all suits wherein the

defendant is a member of the Tribe which

is brought before the Courts.

Chapter 3, §$ 1 provides:

All members of the Blackfeet

Indian Tribe shall hereafter be governed

by State Law and subject to State juris-

diction with respect to marriage hereaf-

ter consummated. Common law marriages

and Indian custom marriages shall not be

recognized within the Blackfeet Reserva-

tion.

Chapter 3, § 2 provides:

All divorces must be

-20-

The court interpreted these three provi-

sions to grant concurrent jurisdiction to

Montana of divorces and "custody matters

arising incident thereto” among the mem-

bers of the Blackfeet Tribe. Id. at

G-15. The court of appeals determined

that the Montana court that handled the

dissolution of Petitioner's marriage had

the authority, under Montana state law,

to defer jurisdiction of the custody dis-

pute to Colorado, and, thus, held that

the Blackfeet Code could be read to sanc-

tion the Colorado district court's asser-

tion of jurisdiction of this case. This

conclusion has two fundamental flaws.

(Footnote Continued)

consummated in accordance with the State

Law of Montana. Indian custom divorces

are from this time on illegal and will

not be recognized as lawful divorces on

the Blackfeet Reservation.

-2l1-

First, even if the language of the Code

could be read to support the court of

appeals' conclusion that the three provi-

sions of the Code appear to constitute a

cession of concurrent jurisdiction to

Montana of divorces and "custody matters

arising incident thereto" among the mem-

bers of the Blackfeet Tribe, this Court,

in a case involving the very same

Blackfeet Code at issue in this case, has

held that a mere tribal ordinance or

tribal code provision is insufficient

under applicable federal statutory enact-

ments to vest jurisdiction of tribal

affairs in a state court. Kennerly v.

District Court of Montana, 400 U.S. 423

(1971). Second, the language of the

Blackfeet Code cannot be read to support

the court of appeals' conclusion.'°®

10 This argument will be discussed,

infra, in Section II of this Petition.

-22-

A. The Blackfeet Code By Itself

Cannot Grant Jurisdiction Of

This “>= a State Court.

The Blackfeet Tribal Law and Order

Code was adopted in 1967, one year before

Congress enacted the Indian Civil Rights

Act in 1968. At the time the Code was

enacted, state assumption of jurisdiction

of the affairs of Indian tribes and their

members was governed by Public Law 280

(Act of Aug. 15, 1953, Pub. L.

No. 83-280, 67 Stat. 588). Section 7 of

that statute provided:

The consent of the United

States is hereby given to any

other state [not granted juris-

diction under this statute] to

assume jurisdiction at such

time and in such manner as the

people of the State shall, by

affirmative legislative action,

obligate and bind the State to

assumption thereof.

67 Stat. at 590 (emphasis added).'!

ne Public Law 280 mandated that five

States assume jurisdiction over the civil

o23=

In Kennerly v. District Court of

Montana, 440 U.S. 423 (1971), this Court

held that a unilateral cession of juris-

diction by a tribe to a state is insuffi-

cient to vest jurisdiction in the state

under Public Law 280. In Kennerly, the

petitioners, members of the Blackfeet

Tribe residing on the Reservation, pur-

chased food on credit from a grocery

store located in Browning, Montana. A

suit was brought in state court on the

debt which arose from that transaction,

and the petitioners moved to dismiss the

(Footnote Continued)

and criminal affairs of Indian tribes.

The five states were California,

Minnesota, Nebraska, Oregon and

Wisconsin. Section 7 applies to states,

such as Montana, which were not granted

such jurisdiction by the statute, but

which might want to assume such jurisdic-

tion at some point following the stat-

ute"s enactment.

og

case on the ground that the state court

lacked jurisdiction because (1) the peti-

tioners were members of the Blackfeet

Tribe, and (2) the transaction at issue

took place on the Blackfeet Reservation.

The state countered that § 1 of Chapter 2

of the Blackfeet Code had specifically

granted it jurisdiction of civil cases

involving a defendant member of the

Blackfeet Tribe.'?

This Court held that Montana's

failure to assume civil jurisdiction of

the Blackfeet Reservation by affirmative

legislative action rendered ineffective

the tribal code provision purporting to

cede jurisdiction of civil cases

12 Chapter 2, § 1 of the Blackfeet Code

is also one of the provisions of the Code

relied upon by the Colorado Court of

Appeals in this case. See note 9, supra.

-26-

involving a Blackfeet defendant to the

state. Id. at 427. This Court noted

that Montana had passed a statute

assuming criminal jurisdiction of the

Flathead Reservation,'* and held that its

failure to assume civil jurisdiction of

the Blackfeet Reservation meant that it

had no jurisdiction of that Reservation.

The Blackfeet Tribe and Montana did not

have the authority to work out an infor-

mal arrangement on jurisdiction among

themselves. Any such arrangement had to

comply with the mandates of federal law,

as embodied in Public Law 280, in order

to be effective.

One year after the adoption of the

Blackfeet Code, Congress repealed

13 Id. at 425. The Montana statute

referenced by the Court can be found at

Mont. Code Ann. § 2-1-301 (1979).

-26-

Section 7 of Public Law 280, and enacted

provisions of the Indian Civil Rights Act

of 1968 (the "Act") in its place. See 25

U.S.C. §$§ 1322, 1326. In order for a

state to validly assume jurisdiction of

an Indian reservation after 1968, both

the state and the Indian Tribe must com-

ply with the provisions of this Act.’”

Two mandates of the Act are particularly

relevant.

First, the Indian Civil Rights Act

requires a state "to assume" jurisdic-

Sign, 22 U.8.C. $ 1322(a). This

requires an affirmative act by the state.

A state may not sit back passively and

receive a grant of jurisdiction from a

tribe.

'* Jurisdiction assumed lawfully prior

to the enactment of the Act in 1968 need

not comply with the Act in order to

retain its validity.

my

Second, the Indian Civil Rights Act

requires that a tribe assent to the

assumption of jurisdiction by a state.

This assent must take the form of a ma-

jority vote of the adult members of the

tribe. 25 U.E.C. $$ 1322(a),' 1326.

Thus, subsequent to the enactment of the

Indian Civil Rights Act in 1968, a refer-

endum among the tribe’s members is the

exclusive method by which a tribe may

manifest its assent to a state's affirma-

tive assumption of jurisdiction of that

tribe's reservation.

Montana's alleged assumption of

jurisdiction of child custody disputes

arising on the Blackfeet Reservation is

invalid under both Public Law 280 and the

Indian Civil Rights Act. Montana has

never validly assumed jurisdiction of the

Blackfeet Reservation.!°

‘5 Montana did adopt a statute allowing

Indian tribes to petition the governor

-28-

Montana's state legislature demon-

strated its familiarity with the mandates

of Public Law 280 when it passed a stat-

ute assuming jurisdiction of criminal

affairs on the Flathead Reservation. The

only logical inference is that the

Montana legislature did not intend for

the state, including the state courts, to

have Public Law 280-authorized jurisdic-

tion of the Blackfeet Reservation. In

any event, Kennerly establishes conclu-

Sively that Montana did not validly

assume jurisdiction of the Blackfeet Res-

ervation under Public Law 280.

Because Montana had no jurisdiction

of the Blackfeet Reservation when the

(Footnote Continued)

for an assumption of jurisdiction by the

State. See Mont. Code Ann. § 2-1-302

(1979).

—

Indian Civil Rights .t was enacted in

1968, its current alleged assumption of

jurisdiction of child custody disputes

arising on the Reservation, to be valid,

must comply with the provisions of the

Act. Under the Indian Civil Rights Act,

Montana's alleged assumption of jurisdic-

tion fails for two reasons: (1) Montana

failed to enact a statute assuming such

jurisdiction, and, therefore, has not

satisfied the 25 U.S.C. § 1322(a)

requirement that a state "assume" juris-

diction; and (2) the Blackfeet Tribe has

never assented to the state's assumption

of jurisdiction by a majority vote of its

adult members, as required by 25 U.S.C.

§§ 1322(a) and 1326.

Thus, the statement by the Colorado

Court of Appeals that the Indian Civil

Rights Act "cannot be interpreted to

-30-

BESS ERSRSERERRRESEZEE

preempt state court jurisdiction” of

child custody disputes arising on the

Blackfeet Reservation is mistaken. In

the Act, Congress provided a clear and

unequivocal road map for a state and an

Indian tribe to follow to permit the

state to assume jurisdiction of disputes

arising on the tribe's reservation.

Montana and the Blackfeet Tribe have

never followed this road map. Thus, fed-

eral law has preempted the right of the

Blackfeet Tribe to make, and the right of

the State of Montana to accept, a unilat-

eral grant of jurisdiction. The Colorado

Court of Appeals’ reliance on provisions

of the 1967 Blackfeet Code to sustain the

Colorado district court's exercise of

jurisdiction of this case is unfounded,

and in direct conflict with the holding

of this Court in Kennerly.

BREEREERE ERS RERRESES

B. The Court of Appeals

Misunderstood the Application

of Preemption Analysis in the

Field of Indian Law.

The Colorado Court of Appeals demon-

strated a fundamental misunderstanding of

the operation of preemption analysis in

the field of federal Indian law when it

held that the district court's exercise

of jurisdiction was not preempted by the

provisions of the Indian Civil Rights

Act, and when it stated that it was

unaware of "any other federal authority

governing child custody in a dissolution

proceeding in which a tribal member was a

party that would preempt state court

jurisdiction." Appendix G at G-l17. The

court of appeals failed to heed the warn-

ing of this Court in White Mountain

Apache Tribe v. Bracker, 448 U.S. 136

(1980), that:

o32<

(t]he unique historical

Origins of tribal sovereignty

make it generally unhelpful to

apply to federal enactments

regulating Indian tribes those

standards of pre-emption that

have emerged in other areas of

the law. Tribal reservations

are not states, and the differ-

ences in the form and nature of

their sovereignty make it

treacherous to impart to one

otions of pre-emption that are

properly applied to the other.

Id. at 143.

The court of appeals' statements

were based on the premise that standard

state-federal preemption analysis was

properly applied to this case. The stan-

dard analysis holds that states, in the

exercise of their general police powers,

may enforce their laws so long as they do

not contravene federal statutes or

policies adopted pursuant to one of the

enumerated powers granted to the federal

government in the United States

-33-

Constitution. After deciding, without

explanation, that the district court's

exercise of jurisdiction was not pre-

empted by the Indian Civil Rights Act,

the court of appeals proceeded on the

theory that Congress' failure to

explicitly prohibit state court jurisdic-

tion of custody disputes involving tribal

members Signalled that the district

court's exercise of jurisdiction was not

preempted by federal law. This analysis

is not the law.

Two recent cases decided by this

Court make this very point. In Three

Affiliated Tribes of the Fort Berthold

Reservation v. Wold Engineering, this

Court noted that its decisions have

"rejected the proposition that

pre-emption requires ‘an express

congressional statement to that effect.'"”

-34-

476 U.S. 877, 885 (1986). Last year, in

California v. Cabazon Band of Mission

Indians, this Court stated that, absent

express congressional consent, states may

assert jurisdiction of tribes and their

members only in “'exceptional circum-

stances.'* 107 &.Ct. 1063, 1091 (1987)

(quoting New Mexico v. Mescalero Apache

Tribe, 462 U.S. 324, 331-32 (1963)). In

a footnote, the Court pointedl: *e* ected

the analytical approach adopted by the

Colorado Court of Appeals: "the ... pre-

Sumption ... that state laws apply on

Indian reservations absent an express

congressional statement to the

contrary ... 'is simply not the law.'"

Cabazon at 1092 n.18 (quoting Bracker,

448 U.S. at 151).

In most circumstances, the converse

presumption applies: the failure of

-35-

Eas ote ——

P Sega as 4

:

“

eo

Congress to affirmatively grant jurisdic-

tion to a state connotes that state

authority has been preempted. This is so

because, under the Indian Commerce Clause

of the United States Constitution, feder-

al control over the affairs of Indians is

plenary. Worcester v. Georgia, 31 U.S.

(16 Pet.) 515 (1832). See U.S. Constitu-

tion, Art. I, § 8, cl. 3. The federal

government traditionally has been very

zealous in guarding this power, and this

Court has been very reluctant to allow

any intrusion into the unique rela- on-

ship that exists between the United

States and Indian tribes. See, e.q.,

McClanahan v. Arizona State Tax Comm'n,

411 U.S. 164, 165 (1973) ("by imposing [a

personal income] tax ... the state has

interfered with matters which the rele-

vant treaty and statutes leave to the

-36-

exclusive province of the Federal Govern-

ment and the Indians themselves.").

This presumption most definitely

applies when a state attempts to infringe

on the jurisdiction of a tribal court, as

this Court has repeatedly demonstrated a

particular concern for protecting the

sovereign power of tribal courts to

resolve disputes involving their members

and arising on their reservations. See,

e.g., Iowa Mutual Ins. Co. v. LaPlante,

107 S.Ct. 971 (1987); National Farmers

Union Ins. Co. v. Crow Tribe, 471 U.S.

845 (1985); Fisher v. District Court, 424

U.S. 382 (1976).

The present case does not require a

detailed preemption analysis exploring

the implications of the Colorado district

‘court's exercise of jurisdiction on the

sovereignty of the Blackfeet Tribe.

‘WRSRE RR SERB SCRE ZEZE

Congress has clearly and unequivocally

outlined the steps whereby Montana may

assume jurisdiction of child custody dis-

putes arising on the B.uackfeet Reserva-

tion. The most important step requires

the Tribe's assent to Montana's assump-

tion of jurisdiction by a majority vote

of its adult members. Such assent would

presumably remove any concerns about

Montana's action infringing on the

Tribe's sovereignty.

Contrary to the statement by the

Colorado Court of Appeals, the district

court’s exercise of jurisdiction is pre-

empted by federal law, even absent an

explicit congressional prohibition of

Montana's (and therefore Colorado's)

exercise of jurisdiction in this case.

The failure of Montana and the Blackfeet

Tribe to follow the mandates of the

Indian Civil Rights Act precludes state

exercise of jurisdiction. Absent compli-

ance with the mandates of the Indian

Civil Rights Act, federal preemption of

jurisdiction remains intact.

II. THE COURT OF APPEALS MISINTERPRETED

THE PROVISIONS OF THE BLACKFEET CODE

AT ISSUE IN THIS CASE.

Even if the Blackfeet Tribal Law and

Order Code could unilaterally grant the

State of Montana concurrent jurisdiction

of child custody disputes arising on the

Blackfeet Reservation,'® the Colorado

Court of Appeals erred in holding that

the Code accomplishes such a grant.

The court of appeals held that "(bly

the express terms of the Blackfeet Code,

the state court was given jurisdiction

AG Section I of this Petition demon-

Strates that this is not possible.

-39-

PRESSE RE RE RRR RE EBE SE

over divorce and custody matters arising

incident thereto." Appendix G at G-15.

As discussed above, the "express terms"

relied on by the court are contained in

Chapter 2, § 1, and Chapter 3, §§ 1 and 2

of the Blackfeet Code. An examination of

each of these provisions reveals that the

Code in no way purports to make any grant

of jurisdiction of this case to the state

courts of Montana or any other state.

First, the court of appeals stated

that Chapter 2, § 1 of the Code "gives a

State court and the tribal court concur-

rent, nonexclusive jurisdiction of all

Sults concerning a member of the tribe."

Id. at G-13. This is a misstatement of

the language of this provision. The

actual text of this provision reads as

follows:

-40-

t tis a i 4 i | ae Tt z : r

v : o. 4 ‘ ; a

’ ~_

The Tribal Court and the

State shall have concurrent and

not exclusive jurisdiction of

all suits the defendant is a

member of the Tribe which is

brought before the Courts.’’

This provision applies only to suits

involving a defendant member of the

Tribe, and has no application whatsoever

to a case, such as this one, involving a

Blackfeet plaintiff.'®

Second, the court of appeals held

that $$ 1 and 2 of Chapter 3 of the Code

allow "a state court to exercise

17 Emphasis added.

ve It should also be noted that Chapter

2 applies to "Civil Actions," whereas

Chapter 3 governs "Domestic Relations".

Under the rule that the specific governs

the general in interpreting a statute,

Chapter 2 has no applicability to a

domestic dispute involving the custody of

Blackfeet children. See MacEvoy v.

United States, 322 U.S. 102, 107 (1944)

(citing D. Ginsberg & Sons v. Popkin, 285

U.S. 204 (1932)).

BERET EEE

jurisdiction over marriage and divorce

and provides that marriage and divorce

shall be governed by state law."'? Id.

This represents another misstatement of

the language of the Code. Section l

(marriage) and § 2 (divorce) provide that

State law governs marriage and divorce of

tribal members; however, only § l,

relating to marriage, provides that mem-

bers of the tribe are subject to state

jurisdiction. The provision of

Chapter 3, § 2, relating to divorce,

makes no reference to state jurisdiction.

Further, none of the provisions

cited by the court of appeals mentions

child custody proceedings. The court of

appeals glossed over the Code's silence

by stating that "({t]hese provisions have

13 Emphasis added.

ian

been interpreted to allow a state court

to make determinations of issues that are

incident to divorce such as child cus-

tody.” Id. In making this assertion,

the court of appeals relied on a 1974

Ninth Circuit opinion, United States

ex rel. Cobell v. Cobell, 503 F.2d 790

(9th Cir. 1974). While Cobell does stand

for the proposition for which it is cited

by the court of appeals, it is of limited

precedential value.

First, the Ninth Circuit in Cobell

failed to consider, or even cite, this

Court's opinion in Kennerly, supra.

Thus, the Ninth Circuit conducted its

entire analysis of the jurisdictional

provisions of the Blackfeet Code without

ever considering the possibility that

those provisions were irrelevant to a

determination of a state court's subject

matter jurisdiction of a case.

-43-

pS eee EEE EEE:

Second, the Ninth Circuit either

failed to notice, or decided to ignore,

the fact that the Blackfeet Code's provi-

sion on divorce does not grant jurisdic-

tion of Blackfeet divorces to state

courts, but instead mandates that state

law governs the dissolution of Blackfeet

marriages.*° Thus, the Cobell court made

the same mistake as the Colorado Court of

Appeals. It conducted a detailed analy-

sis of whether jurisdiction of a child

custody dispute attaches to jurisdiction

of a divorce without noting that the

Blackfeet Code does not grant jurisdic-

tion of Blackfeet divorces to the state.

Finally, even if the Code had

granted jurisdiction of Blackfeet

20 "Chapter 3 of the [Blackfeet Code]

explicitly disclaims jurisdiction

over .... divorce ...." 503 F.2d at 795.

~44-

divorces to the state, nowhere does it

mention jurisdiction of child custody

disputes. Nevertheless, the Ninth Cir-

cuit “interpret(ed] thle] relinquishment

of jurisdiction [of divorce] to encompass

a surrender of jurisdiction over custody

determinations incident to divorce as

well.” Id. This construction of the

Code’s silence on the issue of child cus-

tody suits rested on nothing more than

the Cobell court's intuition, but this

did not prevent the Colorado Court of

Appeals from adopting the Ninth Circuit's

reasoning without question.

The Cobell court's reason‘ng is

undercut by subsequent holdings of this

Court and the Ninth Circuit. Cobell is

inconsistent with this Court's opinion in

Merrion v. Jicarilla Apache Tribe, 455

U.S. 130 (1982), which holds that the

PEQETTEaaS

relinquishment of sovereign authority by

a tribe is not to be presumed lightly.

"Without regard to its source, sovereign

power, even when unexercised, is an

enduring presence that will remain intact

unless surrendered in unmistakable

terms.” 455 U.S. at 148.*' Merrion

addressed the issue of whether the

Jicarilla Apache Tribe could tax the pro-

duction of oil and gas by non-Indian com-

panies on tribal lands. The tribal con-

Stitution did not specifically authorize

this type of taxation. Nevertheless,

this Court held that "[bJecause the tribe

retain[ed] all inherent attributes of

sovereignty that had not been divested by

the federal government, the proper infer-

ence from [the tribal constitution's]

21 Emphasis added.

~46-

SERRE GRE REESE

Silence on this point was that the sover-

eign power to tax remain[ed] intact."

Id. at 148 n.14. Thus, any ambiguity

created by the silence of the Blackfeet

Code on the issue of jurisdiction of

child custody disputes must be resolved

in favor of the retention of jurisdiction

by the Blackfeet Tribe.

Since Cobell, the Ninth Circuit

itself has expressed the opinion that

ambiguities in tribal codes or ordinances

must be resolved by tribal courts. In

R. J. Williams Co. v. Fort Belknap Hous-

ing Auth., 719 F.2d 979 (9th Cir. 1983),

a non-Indian contractor brought suit in

federal district court against a tribal

housing authority over a contract dis-

pute. The contract had been executed and

performed on the reservation. The tribal

ordinance governing the tribal court's

i

SEPP ea

jurisdiction to hear civil disputes was

somewhat ambiguous on whether the court

had jurisdiction to hear the case.??

Instead of interpreting the tribal code

on its own, the Ninth Circuit remanded

the case to tribal court for a determina-

tion of the jurisdictional question. ?*?

This holding has been confirmed by

recent decisions of this Court. See Iowa

Mutual Ins. Co. v. LaPlante, 107 S.Ct.

971 (1987); National Farmers Union Ins.

Co. v. Crow Tribe, 471 U.S. 845 (1985).

The Colorado Court of Appeals failed to

consider these post-Cobell cases on the

interpretation of tribal codes, and

22 The exact issue involved whether the

housing authority would qualify as a

"person" as that term was used in the

tribal code.

ae "Interpretation of a tribal ordi-

nance is one of the duties of a tribal

Court.” if. @t 963.

-48-

interpreted § 2 of Chapter 3 of the

Blackfeet Code on its own.

Merrion, LaPlante, National Farmers

Union and R. J. Williams demonstrate that

the court of appeals' reliance on Cobell

was unfounded. It is also worth noting

that the court of appeals made much of

the integral relationship it saw between

divorce proceedings and child custody

proceedings, when in fact the Montana

state court had retained jurisdiction of

the dissolution of Petitioner's marriage

even as that court proceeded to transfer

jurisdiction of the custody dispute to

Colorado. The Montana court obviously

did not attach the same degree of

interconnectedness to divorce and child

custody that the Colorado Court of

Appeals did in its opinion.

~49-

Thus, when the provisions of the

Blackfeet Code are considered on their

face, the opinion of the Colorado Court

of Appeals is not in accord with the

Clear language of the Code, the Ninth

Circuit's decision in R. J. Williams, and

most importantly, this Court's holdings

in Merrion, LaPlante, and National

Farmers Union.

-50-

CONCLUSION

The opinion of the Colorado Court of

Appeals is in direct conflict with numer-

ous Opinions of this Court on the proper

exercise of state court jurisdiction of

the affairs of Indian tribes and their

members. For that reason, a Writ of Cer-

tiorari should issue to review the judg-

ment of the Colorado Court of Appeals in

this case.

Respectfully submitted,

M. JULIA HOOK

(Counsel of Record)

SUSAN N. HARRIS DIXON

HOLLAND & HART

555 Seventeenth Street

Suite 2900

Denver, Colorado 80202

(303) 295-8000

Counsel for Petitioner

Cheryl Ann Vielle

-5l-

Appendix A

DISTRICT COURT, BOULDER COUNTY,

COLORADO

Case No. 86DR117 Division 2

MINUTE ORDER

In re the Marriage of:

WILLIAM JOSEPH BAISLEY, Petitioner,

and

CHERYL ANN VIELLE, Respondent.

DISTRICT COURT OF GLACIER COUNTY,

STATE OF MONTANA

Case No. DR86-004

CHERYL ANN VIELLE,

Petitioner,

and

WILLIAM JOSEPH BAISLEY,

Respondent.

On February 10, 1986, the following

actions were taken in the above-captioned

case. The Clerk is directed to enter

these proceedings in the register of

actions:

A-1l

BEREEEEEREERERSEE EB!

APPEARANCES :

Pursuant to C.R.S. 14-13-107, Judge

R.D. McPhillips of the District Court of

the Ninth Judicial District of the State

of Montana has consulted with this Judge.

We have concluded that there is no basis

for Montana exercising jurisdiction in

this matter. Therefore, although a peti-

tion relating to the subject children was

filed in Montana prior to the action

being filed in Colorado, Colorado is the

appropriate Court to exercise jurisdic-

tion pursuant to C.R.S. 14-13-104(1)(a)

and (1)(b).

s/Murray Richtel

MURRAY RICHTEL, DISTRICT JUDGE

cc: Nancy Terrill (R. Box)

Judge R.D. McPhillips (Mail)

Appendix B

IN THE DISTRICT COURT OF THE

NINTH JUDICIAL DISTRICT OF

THE STATE OF MONTANA,

IN AND FOR THE COUNTY OF GLACIER

IN RE THE MARRIAGE OF: NO. DR 86-004

OF MARRIAGE

)

. )

CHERYL ANN VIELLE, )

)

Petitioner, ) FINDINGS OF

) FACT,

and ) CONCLUSIONS

) OF LAW, AND

WILLIAM JOSEPH BAISLEY) DECREE OF

) DISSOLUTION

)

)

)

Respondent.

THIS CAUSE came on regularly for

hearing in Open Court this 5th day of

March, 1986. Petitioner, Cheryl Vielle,

appeared with counsel, Kathleen E. Marx

of Montana Legal Services. The Respon-

dent has entered an appearance as to the

custody of the minor children, but he has

failed to enter an appearance as to the

p~i

ee ee Oe lo

dissolution of the parties' marriage, and

Respondent's Default has been entered.

Based on the evidence presented, the

Court makes the following:

FINDINGS OF FACT

Li The parties entered into a

common-law marriage in September, 1982,

at Bozeman, Montana.

r Petitioner was a domiciled res-

ident of the State of Montana for ninety

days preceding the commencement of this

action, and the domicile has been main-

tained.

The marriage is irretrievably

broken in that there is serious marital

discord which adversely affects the atti-

tude of the parties towards the marriage,

and there is no reasonable prospect of

reconciliation; and the parties have

lived separate and apart for a period of

B-2

more than 180 days prior to the filing of

this petition.

4, There are two minor children

born of the parties’ marriage:

Kristopher Landon, born April 15, 1983;

and Willy Brett, born May 24, 1984.

Issues of custody, visitation and child

Support as to the minor children will not

be adjudicated at this hearing.

3. The parties have accumulated

property during the marriage including a

1978 Chevrolet Silverado pickup truck,

Vehicle No. CKR148F347130 [initialed

"R.D.M."], 1978 SR 500 Honda, 1978 VW

Rabbit, children's car seats, household

appliances and furniture, in which Peti-

tioner requests the Court to divide

equitably between them.

6. The parties have incurred debts

during the marriage, and Respondent is

B-3

capable of paying them, and include, but

are not limited to:

First Security Bank $2500.00

Bozeman TVs Appliances 165.00

Kirby Company 750.00

Encyclopedia Book Co. 350.00-500.00

From the foregoing Facts, the Court

makes the following:

CONCLUSIONS OF LAW

he The Court has jurisdiction over

this cause.

a Petitioner is entitled to have

the marriage dissolved.

36 Petitioner's request that she

be awarded the 1978 Chevrolet Silverado

pickup truck, the children's car seats

and a Pendleton blanket, acquired during

the marriage, is reasonable and should be

granted.

4. Respondent should resume full

responsibility for the payment of the

debts incurred during the marriage.

B-4

DECREE OF DISSOLUTION OF MARRIAGE

l. The marriage of the parties is

dissolved as of the date of this Decree.

2. The Conclusions of Law

contained in Paragraphs 5 and 6 above,

concerning the division of marital prop-

erty and debts are incorporated herein in

their entirety, and made a part of this

Decree.

LET JUDGMENT ENTER ACCORDINGLY.

DATED this Sth day of March, 1986.

s/R.D. McPhillips

R.D. MCPHILLIPS

District Court Judge

Appendix C

IN THE BLACKFEET TRIBAL COURT

FOR THE BLACKFEET INDIAN RESERVATION

IN THE MATTER OF: No. J-4l

KRISTOPHER LANDON BAISLEY,

D.O.B. 4-15-83,

WILLY BRETT BAISLEY, EMERGENCY

D.O.B. 5-24-84, PROTECTIVE

ORDER

Minor Children,

CHERYL VIELLE,

Petitioner,

and

WILLIAM BAISLEY,

Respondent.

ed

THIS MATTER, having come before this

Court, and good cause having been shown;

IT IS HEREBY ORDERED:

1. That it is in the above-named

minor children's best interests that the

C=}

Petitioner is granted custody of the

minor children pending Litigation of the

jurisdictional issue of which forum is

more appropriate to determine the custody

placement of enrolled members of the

Blackfeet Indian Tribe who are residing

orm the Blackfeet Indian Reservation;

as That the two above-named minor

children are not allowed to leave the

exterior boundaries of the Blackfeet

Indian Reservation pending litigation of

this jurisdictional issue.

DATED this 15 day of July, 1986.

s/Marqie Merchant

BLACKFEET TRIBAL COURT JUDGE

Appendix D

IN THE BLACKFEET TRIBAL COURT

FOR THE BLACKFEET INDIAN RESERVATION

IN THE MATTER OF: No. J-4l

KRISTOPHER LANDON BAISLEY,

D.O.B. 4-15-83,

WILLY BRETT BAISLEY,

D.O.B. 5-24-84,

ORDER

Minor Children,

CHERYL VIELLE,

Petitioner,

and

WILLIAM BAISLEY,

Respondent.

me ee ee ee ee ee ee”

THIS MATTER having come before the

Court on Respondent's Petition to Vacate

Emergency Protective Order, and having

considered the Petitioner's Motion and

Brief to Dismiss Respondent's Petition,

and having reviewed the files and records

and. otherwise being advised,

IT IS HEREBY ORDERED:

9 ao |

That the Respondent's Petition to

Vacate the Emergency Protective Order is

denied;

And further, that the Emergency Pro-

tective Order issued on July 15, 1986

will remain in effect pending resolution

of all jurisdictional issues concerning

the custody of the two above-named minor

children.

Dated this 25 day of July, 1986.

s/Margie Merchant

MARGIE MERCHANT

BLACKFEET TRIBAL JUDGE

Appendix E

DISTRICT COURT, BOULDER COUNTY, COLORADO

Case No. 86DR117, Division 2

MINUTE ORDER

WILLIAM JOSEPH BAISLEY, Petitioner,

and

CHERYL ANN VIELLE, Respondent,

and Concerning the Custody of:

WILLY BRETT BAISLEY and

KRISTOPHER LANDON BAISLEY.

On July 31, 1986, the following

actions were taken in the above-captioned

case. The Clerk is directed to enter

these proceedings in the register of

actions:

APPEARANCES :

Nancy Terrill for the Petitioner.

Andrew Littman for the Respondent.

This matter came on for trial on

July 28, 1986 and the following actions

were taken by the Court:

E-1

he The Respondent's Motion To Dis-

miss, Or, In The Alternative, To Hear

Testimony In The Blackfeet Tribal Court

was denied.

r The Respondent's Motion To Con-

tinue was denied.

3 Permanent custody of the

parties’ minor children, Kristopher

Landon Baisley and Willy Brett Baisley,

was awarded to the Petitioner. No visi-

tation schedule was fixed. The Respon-

dent will be afforded visitation only

after she has appeared in the Court for

purposes of advising the Court regarding

her views on visitation.

4. Respondent was ordered to

return to the State of Colorado with the

parties’ minor children no later than

noon on July 31, 1986. Because the

jurisdictional issue has been litigated,

the Emergency Protective Order of the

Blackfeet Tribal Court of July 15, 1986

has expired.

s/Murray Richtel

MURRAY RICHTEL, DISTRICT JUDGE

cc: Nancy Terrill (R. Box)

Andrew Littman (R. Box)

WHEREAS

WHEREAS

WHEREAS

Appendix F

BLACKFEET NATION

P.O. Box 850

Browning, Montana 59417

(406) 338-7179

R_E SOUL U_T_I_ON

NUMBER: _ 285-87

The Blackfeet Tribal Business

Council is the duly constituted

governing body within the exte-

rior boundaries of the

Blackfeet Indian Nation, and

The Blackfeet Tribal Business

Council has been organized to

represent, develop, protect and

advance the views, interests,

education and resources of the

Blackfeet Indian Nation, and

The Enrollment Department of

the Blackfeet Tribe has

received information and a Pro-

test of Inclusion from Nancy

Terrill, Attorney at Law, Boul-

der, Colorado for William

Joseph Baisley, Non-Member

stating that his two (2) sons

namely, Kristopher Landon

Baisley, Blackfeet Enrollee No.

201-U18735 and Willy Brett

Baisley, Blackfeet Enrollee No.

201-U18736 have been unlawfully

enrolled in the Blackfeet Tribe

and thereby requests that said

F-1

WHEREAS:

THEREFORE

children be removed from the

rolls of the Blackfeet Tribe,

and

The Blackfeet Tribal Business

Council has throughly reviewed

all information and has heard

objections from the Natural

mother of said children,

namely, Cheryl Ann Vielle,

Blackfeet Enrollee No.

201-12609, now

BE IT RESOLVED: That the

Blackfeet Tribal Business Coun-

cil, acting for in behalf of

the Blackfeet Tribe of the

Blackfeet Indian Nation, does

hereby deny the request from

William Joseph Baisley to

disenroll minor children,

namely, Kristopher Landon

Baisley, Blackfeet Enrollee No.

201-U18735 and Willy Brett

Baisley, Blackfeet Enrollee No.

201-U18736, and that said chil-

dren shall remain on the

Blackfeet Tribal membership

Rolls, with all rights and

benefits thereof.

THE BLACKFEET TRIBE OF THE

BLACKFEET INDIAN NATION

s/Earl Old Person

Earl Old Person, Chairman

ATTEST:

s/Marvin D. Weatherwax

Marvin D. Weatherwax, Secretary

CERTIFICATION

I hereby certify that the foregoing reso-

lution was adopted by the Blackfeet

Tribal Business Council during a duly

called, noticed and convened Special Ses-

sion held the 17th day of February, 1987

with Seven (7) members present to consti-

tute a quorum and by a vote of Seven (7)

members For and None Opposed.

s/Marvin D. Weatherwax

Marvin D. Weatherwax, Secretary

Blackfeet Tribal Business

Council

F-3

APPENDIX G

COLORADO COURT OF APPEALS

No. 86CA1110

=

In re Marriage of

WILLIAM JOSEPH BAISLEY,

Appellee,

and

CHERYL ANN VIELLE,

mm ee ee ee ee eee

ma =. a

Appellant.

Appeal from the District Court

of Boulder County

Honorable Murray Richtel, Judge

DIVISION I JUDGMENT AFFIRMED

Opinion by JUDGE PIERCE

Metzger and Criswell, JJ., concur

Edwards, Terrill & Mygatt, P.C.

Nancy Terrill

Boulder, Colorado

Attorneys for Appellee

Holland & Hart

Julia Hook

Susan N.H. Dixon

Denver, Colorado

Attorneys for Appellant

G-l

Cheryl Ann Vielle, mother, appeals a

trial court order awarding permanent cus-

tody of her two minor children to their

father, William Joseph Baisley. We

affirm.

The father and mother, an alleged

enrolled member of the Blackfeet Indian

tribe, lived as husband and wife outside

the boundaries of the Blackfeet Indian

Reservation in Montana from September

1982 until their separation in June 1985.

During that time, they had two children.

In June 1985, father moved to Boul-

der, taking the children with him with

mother's consent. During the next six

months, mother called to speak to the

children only three or four times and

visited them in Boulder once, but she did

not seek their return.

In January 1986, mother filed for

dissolution of marriage and sought cus-

tody of the children in a Montana state

court. On January 21, 1986, father,

after having been served with process in

the Montana dissolution proceeding, filed

a verified petition for custody under the

Uniform Child Custody Jurisdiction Act,

§ 14-13-101, et seq., C.R.S. (UCCJA) in

the Colorado court. The Colorado court

contacted the Montana court by telephone

to determine which forum should exercise

jurisdiction over the custody issue.

Concluding that Colorado was the home

state of the children and that it had the

most significant connections with the

children, the Montana court declined to

exercise jurisdiction over the custody

issue. An oral report of this conference

was put on record by the Colorado court.

On April 30, 1986, a temporary cus-

tody hearing was held in the Colorado

court with both parties present. Pursu-

ant to the parties’ agreement, father was

given physical custody of the children

from April 30 through June 11, and mother

was given physical custody from June ll

until the time of the permanent custody

hearing. The custody hearing was then

set for the end of July.

Father returned the children to

mother in June. On July 15, 1986, mother

sought and received an ex parte emergency

protective order from the Blackfeet

tribal court prohibiting removal of the

children from the reservation until the

question of the proper jurisdiction on

the custody issue as between the

Blackfeet tribal court and the Colorado

court was determined. The tribal court

G-4

did not contact the Colorado court at

that time or at any time thereafter. On

July 18, 1986, counsel for mother filed

in the Colorado court a motion to dis-

miss, Or in the alternative, to hear tes-

timony in the Blackfeet tribal court but

did not inform the Colorado court of the

ex parte order until July 24.

On the morning of the permanent cus-

tody hearing, July 28, the trial court

denied mother's motions, affirming the

propriety of its exercise of jurisdiction

and determining that the ex parte emer-

gency protective order issued by the

Blackfeet tribal court was not an exer-

cise of jurisdiction in substantial con-

formity with the UCCJA and that, in any

event, that order had expired. Mother's

ensuing request for a continuance was

denied by the Colorado court. Without

G-5

, —— =—_ = —= ——— = — E_ —— a eal EE —_ —_—_— aaeeiataee

mother present, the hearing proceeded

with her counsel participating. Evidence

was presented, and permanent custody of

the children was awarded to father.

I.

A.

Mother first contends that the

Colorado court improperly exercised

jurisdiction under the UCCJA. She argues

that Colorado was not the children's home

state. We disagree. The record com-

pletely refutes this contention.

Sections 14-13-103 and 14-13-104, C.R.S.,

were complied with. See Barden v. Blau,

712 P.2d 481 (Colo. 1986); McCarron v.

District Court, 671 P.2d 953 (Colo.

1983); In re Marriage of Severn, 44 Colo.

App. 109, 608 P.2d 381 (1980).

B.

Mother also contends that the

Colorado court's exercise of jurisdiction

was improper because custody proceedings

were pending in Montana. Again, we dis-

agree.

The UCCJA provides that, in general,

if two states have concurrent jurisdic-

tion over custody proceedings, exclusive

jurisdiction is conferred on the court in

which the matter was first raised.

McCarron v. District Court, supra; In re

petition of Edilson, 637 P.2d 362 (Colo.

1981). However, pursuant to § 14-13-107,

C.R.S., the state in which the initial

custody proceeding is pending may stay

proceedings if it determines that another

state is the more appropriate forum. In

re Petition of Edilson, supra. Under

Montana law, the decision to decline

G-7

exercise of jurisdiction is entirely

within the discretion of the trial court.

In Re Marriage of Bolton, 690 P.2d 401

(Mont. 1984).

The Colorado court contacted the

Montana court to determine the most

appropriate forum. See § 14-13-1007,

C.R.S. Although a contemporaneous record

of this consultation was not made, the

Colorado court, in denying mother's

motion to dismiss, made findings which

reflect that the Montana court declined

to exercise jurisdiction. Under these

circumstances, the Colorado court did not

abuse its discretion by exercising juris-

diction.

Because the Colorado court properly

exercised home state jurisdiction under

§ 14-13-104(1)(a), C.R.S., we need not

address mother's contentions concerning

G-8

jurisdiction under § 14-13-104(1)(b),

C.R.8.

a

Mother contends that the trial court

abused its discretion in failing to con-

fer with the Blackfeet tribal court and

in denying her motion to hear testimony

in the Blackfeet tribal court. We reject

these contentions.

Section 14-13-119, C.R.S., permits a

party to adduce testimony of witnesses by

deposition or otherwise in another state.

Section 14-13-120, C.R.S., allows the

trial court to request a court of another

State to conduct a hearing, to order a

party to give evidence under the proce-

dures of that state, or to have social

studies made concerning custodial

arrangements for a child. Fry v. Ball,

190 Colo. 128, 544 P.2d 402 (1975).

@ 8B eg 8 2 eB 2S EBS

Mother knew in May that the custody

hearing had been set for the end of July.

On July 18, 1986, she filed the motion

asking the trial court to allow teszimony

to be heard in the Blackfeet tribal

court. Because her attempt to gather

evidence in Montana was not undertaken in

a timely manner, there was no abuse of

discretion in the Colorado court's denial

of her motion.

IIl.

Mother also contends that the trial

court abused its discretion in denying

her motion for a continuance of the cus-

tody seatins, She argues that she was

denied due process of law because she was

unable to attend the hearing and because

the Montana Department of Social Services

had not completed a custody evaluation

with respect to her. Again, we disagree.

The grant or denial of a continuance

is a matter entrusted to the sound dis-

cretion of the trial court, and its deci-

sion will not be disturbed on review

absent a clear abuse of that discretion.

Butler v. Farner, 704 P.2d 853 (Colo.

1985); In Re Marriage of Lorenzo, 721

P.2d 155 (Colo. App. 1986).

One of the reasons given for the

Montana Department of Social Service's

failure to complete its custody evalua-

tion was that the evaluators had tried

for two days, but were unable to contact

the mother. Mother did not seek a con-

tinuance until the morning of the custody

hearing. Thirteen days prior to that

date, she had sought and received a tem-

porary protective order from the

Blackfeet tribal court which prohibited

removal of the children from the

G-ll

Blackfeet Indian reservation and pur-

ported to raise in the Blackfeet tribal

court the question of the Colorado

court's jurisdiction. On July 24, 1986,

the Colorado court ordered her to appear

at the custody hearing on July 28, but

she did not comply.

On the basis of these facts, the

Colorado court concluded that mother's

request for a continuance was interposed

solely for delay, see Butler v. Farner,

Supra, and that it was mother's voluntary

absence, not the denial of the continu-

ance or the lack of a completed custody

evaluation, which prevented presentation

of witnesses and evidence on her behalf.

Accordingly, there was no abuse of dis-

cretion in the Colorado court's denial of

a continuance.

-

- >

ai

IV.

Mother next contends that the

Colorado court erred in refusing to rec-

ognize the Blackfeet tribal court's ex

parte emergency protective order. We

disagree.

The Blackfeet Tribal Law and Order

Code, Ch. 2, $l (Blackfeet Code) gives a

state court and the tribal court concur-

rent, nonexclusive jurisdiction of all

Suits concerning a member of the tribe.

The Blackfeet Code, Ch. 3, $$1 & 2,

allows a stat2 court to exercise juris-

diction over marriage and divorce and

provides that marriage and divorce shall

be governed by state law. These provi-

Sions have been interpreted to allow a

State court to make determinations of

issues that are incident to divorce such

as child custody. See United States

G-13

(9th Cir. 1974); Application of

th

Bertelson, 189 Mont. 524, 617 P.2 121

Mother voluntarily invoked tne

Montana court's jurisdiction for divor

and, incident thereto, sought determin

tion of the children's custody There

ter, the Montana court determined that

Colorado was the proper state in which

the custody issue should be decided, an

the Colorado court properly assumed

jurisdiction.

Under §14-13-107(1), C.R.S.,

Colorado courts may not proceed on ap

tition for custody if another court 1s

"exercising jurisdiction substantially

conformity with [the UCCJA]" and that

court refuses to stay its proceedings.

However, a Colorado court is free to

@@=

,

co

mss

2 g@S ses a&2& 2 2 8 =|

determine whether the other court is pro-

ceeding in substantial conformity with

the jurisdictional requirements of the

UCCJA. Bakke v. District Court, 719 P.2d

313 (Colo. 1986).

By the express terms of the

Blackfeet Code, the state court was given

jurisdiction over divorce and custody

matters arising incident thereto. See

United States ex rel. Cobell v. Cobell,

supra. Thus, by failing to contact the

trial court where the custody matter was

pending, the Blackfeet tribal court did

not act in substantial conformity wit!

the UCCJA. See § 14-13-1007, C.R.S.;

McCarron v. District Court, supra.

Accordingly, we find no error in the

Colorado court's refusal to recognize the

ex parte temporary protective order. See

Bakke v. District Court, supra.

G-15

Even if there had been jurisdiction

properly exerted by the tribal court, the

petition for the ex parte order and,

implicitly, the order itself acknowledged

that the jurisdictional question was

being considered in the Colorado court.

The order states only that the children

were to be confined on the rese:vation

until the jurisdictional problem was

resolved. This jurisdictional dispute

was determined by the Colorado court, and

therefore, once it had determined the

jurisdictional issue, the trial court

properly declared that the tribal order,

even if valid, had expired.

We reject mother's contention that

federal law preempts state court juris-

diction over custody disputes arising in

the context of a Native American divorce

proceeding. Mother concedes that the

G-16

/

q

Indian Child Welfare Act, 25 U.S.C.

§1901, et seq., iS not applicable to a

divorce proceeding in which child custody

is in dispute. 25 U.S.C. $1903; In re

Custody of S.B.R., 43 Wash. App. 622, 719

P.2d 154 (1986). Moreover, 25 U.S.C.

§1322 cannot be interpreted to preempt

state court jurisdiction in such matters.

Nor are we aware of any other federal

authority governing child custody in a

dissolution proceeding in which a tribal

member was a party that would preempt

State court jurisdiction. See generally

Estate of Standing Bear v. Belcourt, 63l

P.2d 285 (Mont. 1981).

Judgment affirmed.

JUDGE METZGER AND JUDGE CRISWELL

concur.

Appendix H

THE COURT OF APPEALS OF THE

STATE OF COLORADO

Case Number 86CA1110

In re the Marriage of:

WILLIAM JOSEPH BAISLEY,

Appellee,

ORDER

and

CHERYL ANN VIELLE,

tl

Appellant.

Upon consideration of the Petition for

Rehearing filed by the Appellant herein,

said Petition is hereby DENIED. It is

ordered that issuance of the Mandate

hereby be, and the same hereby is, stayed

to and including 1-4-88, provided that if

Petition for Writ of Certiorari is timely

filed with the Supreme Court of the State

of Colorado, the stay shall remain in

effect until disposition of the within

Cause by the Supreme Court.

H-i

DATED:

Appendix I

SUPREME COURT, STATE OF COLORADO

Case No. 87SC495

Certiorari to the Colorado

Court of Appeals 86CA1110

Boulder County District Court

86DR117-2

ORDER OF COURT

In re the Marriage of:

CHERYL ANN VIELLE,

Petitioner,

and

WILLIAM JOSEPH BAISLEY,

Respondent.

Upon consideration of the Petition

for Writ of Certiorari to the Colorado

Court of Appeals, and after review of the

record, the briefs, and the opinion of

said Court of Appeals,

IT IS THIS DAY ORDERED that said Pe-

tition for Writ of Certiorari shall be,

and the same hereby is, DENIED.

BY THE COURT, EN BANC, MAY 9, 1988.

ee a a ee a on

CC:

Gary Sonke, Clerk

Colorado Court of Appeals

Holland & Hart

M. Julia Hook

Susan N.H. Dixon

555 17th Street, Suite 2900

P.O. Box 8749

Denver, CO 80201

Edwards, Terrill & Mygatt, P.C.

Nancy Terrill

1227 Spruce Streete

Boulder, CO 80302

Honorable Murray Richtel

Boulder County District Court

Civil Courts Building

2025 Fourteenth Street

Box 471

Boulder, CO 80306

i-2