Opposition Brief — Vielle v. Baisley

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No. 88-220

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

CHERYL ANN VIELLE,

Petitioner,

Vv.

WILLIAM JOSEPH BAISLEY,

Respondent.

BRIEF IN OPPOSITION TO

PETITIONER FOR

WRIT OF CERTIORARI

TO THE COLORADO COURT OF APPEALS

Nancy S. Terrill

EDWARDS, TERRILL & PIZZI

1227 Spruce Street

Boulder, Colorado 80302

Attorney for Respondent

William Joseph Baisley

September 22, 1988

QUESTION PRESENTED

Respondent disputes the phrasing of the

question by Petitioner. The question should

be as follows: 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 non-Indian

children born to an Indian mother and a non-

Indian father, in which the parents had

married off the reservation and had always

resided off the reservation?

LIST OF PARTIES

Respondent has no dispute with Petitioner’s

list of parties.

TABLE OF CONTENTS

QUESTION PRESENTED . . «© © «© «© «© «© «© «© « « i

LIST OF PARTIES . . >. 7 7 . >. . . >. * . . . i

TABLE OF AUTHORITIES . . - - + «© © «© «© «© « iii

JURISDICTION . . .* J 7 . . >. . . . * * .* >. 2

= T S Oo V D > J J . . . J >. >. . .* >. 2

STA NT O HE CAS ae. ae «€ «6 8 e 3

REASONS FOR NOT GRANTING THE

WR O he R A . J — * a . . >. > .* >. >. is)

I. COLORADO PROPERLY TOOK JURISDICTION IN

THIS CASE . * * .* — oo >. >. . >. . - . J 10

A. Montana and Colorado State Courts

have Jurisdiction over Divorce and

Custody Matters Involving State

ni. sis « « « « « « « se

B. Federal Law Does not Preempt the

Assertion of State Court Jurisdic-

tion in this Case nor is Federal

Preemption Analysis even Applicable

to the Facts of this Case. ss 12

Cc. The Infringement Test, if Ap-

plicable, Would Allow the State

Court’s Exercise of

PCE: - « 5» 6 « «6 6 « « aa

Abe = (@) (@) PEALS CORRECTLY

NTERPR D THE BLAC T TRIBAL CODE IN

CTIONA NALYSIS s¢6¢ «& = 26

EE Se ee 30

> I

Cases

Indians,

Con

ss & Em

v. Knowlton,

26 L.Ed.

Fisher v. District ONE.

TABLE OF AUTHORITIES

ia v. Cab

107 S.Ct.

e S$

oard of

1083 (1987)

347 (1880).

~~ Sit) ee

439 U.S.

Iowa Mutual Ins.

Vv is

572 (1979)

Co.

103 U.S. 49,

424 U.S.

do,

Vv.

LaPlante, 107 S.Ct.

(1987).

Montana,

han v. Ari

167 S.Ct.

Comm’n, 411 U.S. 16

(1973)

Tribe,

455 U.S.

7. ic

iii

971

Cou

{e)

971 (1987)

ona

tate

che

130 (1982).

ibe v. Jones,

145 (1973).

15,

i7,

19,

17,

20,

a7;

Cases Continued:

National Farmers Union Ins.

So. —y.Crow Tribe, 471 U.S. 845

(1985)... « ° Se

Egan, 369 U.S. 60 (1962).

R.J. Williams Company v.

Ft. Belknap Housing Auth.,

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

State ex rel. Ironbear v.

District Court

, 512 P.2d 1291

(Mont. 1973). .«. « « « « «

Wold Engineering, 476 U.S.

i. Taegan ee

Three Affiliated Tribes of

Fort Berthold Reservation v.

Wold Engineering, 467 U.S.

BOO Guana es bh eté es «

, 503 F.2d 790

(9th Cir. 1974) .. 2 «

United Staes v. Kagama,

118 U.S. 375, 6 S.Ct. 1109,

30 L.Ed. 228 (1886) ..

20,

16,

22,

28,

Cases Continued:

v. Bracker, 448 U.S. 136

(1980). . . >. . . . . . . . . .

Williams v. Lee, 358 U.S. 217

(1959). i . .* . >. . . .* . .* .

Statutes

Blackfeet Tribal Law and Order

Code, Chapt. 3, §8. . . +. « «

Colorado Uniform Child Custody

Jurisdiction Act, .. eee

C.R.S. §14-13- 101 et seq.

Indian Child Welfare Act,

25 U.S.C. §1901 et seq. ....

Indian Civil Rights Act,

25 U.S.C. §1322 et seq.

(1982). . . * . . . . . .

Public Law 280 (Act. of Aug. 15,

1953, Pub. L. No. 83-280,

67 Stat. 588) . . . . . . .

BS@ESR ER RRR REESE S

Treatis«

F. Cohen,

Handbook of Federal

Indian Law (1945) ... .

BERERERERREREESES

No. 88-220

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1988

CHERYL ANN VIELLE,

Petitioner,

Vv.

WILLIAM JOSEPH BAISLEY,

Respondent.

BRIEF IN OPPOSITION TO PETITION FOR

WRIT OF CERTIORARI TO THE COLORADO

COURT OF APPEALS

Respondent, William Joseph Baisley,

respectfully prays that this Court deny

Petitioner’s Writ of Certiorari to review the

judgment of the Colorado Court of Appeals

entered on November 5, 1987. The Respondent

has no corrections or additions to Petition-

er’s recitation of the procedural history and

lower opinions in this case.

BESREREERER FRE RRR EEES

JURISDICTION

Respondent submits that 28 U.S.C.

§1257(3) (1970) does not confer jurisdiction

on this Court in that there are no rights or

privileges conferred by any federal statute or

regulatory scheme which are implicated by the

Court of Appeals’ decision. Further, pursuant

to Supreme Court Rule 17, the Colorado Court

of Appeals’ decision is not in conflict with

any Supreme Court decision in this area of

law.

STATUTES INVOLVED

The Respondent has the following

statutes to add to those included by Petition-

er:

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

§1901 et seq.

as Colorado Uniform Child Custody

Jurisdiction Act, C.R.S. §14-13-101 et

seq.

Be Blackfeet Tribal Law and Order Code,

Chapt. 3, §8:

SRERRRSESRERREE i

All members of the Blackfeet Indian

Tribe shall hereafer be governed by

state law and subject to state jurisdic-

tion with respect to adoptions hereafter

consummated.

STATEMENT OF THE CASE

Petitioner is bound by the trial court

record in this case. “The Supreme Court

cannot consider facts not brought to its

notice by the record.” Congress & Empire

Spring Co. v. Knowlton, 103 U.S. 49, 26 L.Ed.

347 (1880). Yet the uncontradicted evidence

in the record in this case fails to establish

many of Petitioner’s statements under her

Statement of the Case. Given these misstate-

ments and the importance of the facts mis-

stated, i.e. that the parties’ children are

Indians, the Respondent has requested the

Clerk of the Colorado Court of Appeals to

certify the record to the Court.

In 1982, the parties began living

together in Montana off the Blackfeet Reserva-

tion, thereby establishing a common law

marriage under Montana law. Two sons were

born to the parties, one in April, 1983 and

one in May, 1984. Both births took place off

the reservation and the parties never resided

on the reservation during the time that they

were together. The trial court record

establishes that the Respondent and the

children moved to Colorado, with the Petition-

er’s consent, in mid-July of 1985. On January

7, 1986, the Petitioner initiated a divorce

action in Montana State Court. On January 21,

1986, the Respondent petitioned the Boulder,

Colorado District Court to take jurisdiction

over child custody under the Uniform Child

Custody Jurisdiction Act, C.R.S. §14-13-101

et seq. (hereinafter ”"U.C.C.J.A.”) On January

31, 1986, there was a telephone conference

between the Montana and the Colorado judges

concerning U.C.C.J.A. jurisdiction, which

resulted in the Colorado judge retaining

jurisdiction over child custody. On April

30, 1986, the parties appeared in Boulder

District Court for a temporary custody hearing

and stipulated to joint custody pending the

final custody hearing. The parties further

stipulated that the father would have the

children for the following six weeks and would

be responsible for transporting the children

to the Petitioner in mid-June, 1986 and that

the Petitioner would have the children with

her from mid-June, 1986 until the time of the

custody hearing, July 28, 1986. The Petitio-

ner was specifically ordered to bring the

children to Boulder for the permanent custody

hearing in July and she acquiesced in that

order. The Respondent delivered the children

to the Petitioner in mid-June, 1986. On July

15, 1986, Petitioner obtained an emergency

protective custody order from the Blackfeet

EERGEEEEEEEEEE

Tribal Court. Prior to issuing the emergency

order, the Blackfeet Tribal Judge gave no

notice to the Respondent or to the Boulder

District Court, and made no attempt to obtain

a conference with the Colorado Court, despite

knowing of the pending custody case in that

court. On July 24, 1986, the Boulder District

judge, having been informed informally of the

Tribal Court order, attempted to reach the

Tribal Court judge on the telephone, but

failed to get through to the Tribal Court

judge. On July 28, 1986, the Petitioner

failed to appear for the permanent custody

hearing and failed to produce the children as

ordered. The Boulder District Court entered

an order for sole permanent custody to the

Respondent.

It is critical to the Court’s considera-

tion of this Writ to understand that the trial

court judge had no evidence that the children

SER RRERE ERP RR RE SRE EE SG

were enrolled members of the Blackfeet Tribe.

In fact, the only evidence concerning enroll-

ment in the trial court was from an Indian

witness, Karen Whiteman, who testified that

the Petitioner had told her that the children

were not eligible for enrollment in the tribe

because of lack of sufficient Blackfeet blood,

and that the Petitioner intended to fraudu-

lently c tain the childrens’ enrollment.

However, there was no evidence as to whether

the enrollment had been obtained. Therefore,

the trial judge had before him a case involv-

ing non-Indian children, a non-Indian father

and all relevant actions occurring off the

reservation. The only contact with the

Blackfeet Tribe was that the mother was

apparently an enrolled member of the Blackfeet

Tribe.

Petitioner showed total disregard for

the state court’s jurisdiction and lawfully

BHREERER SES SERBERSEREESEESES

entered orders by the following actions:

voluntarily invoking state court jurisdiction

in Montana, following through and obtaining a

divorce decree from the Montana State Court,

voluntarily appearing in the Colorado custody

action, stipulating to a temporary visit with

the children from mid-June to the end of July,

1986, stipulating to return the children to

the Boulder District Court for the permanent

custody hearing and then seeking refuge in the

tribal court when she did not like the result

of the proceedings in Montana and Colorado,

shows her total disregard for the state

court’s jurisdiction and lawfully entered

orders. The Petitioner had an opportunity to

be heard, had notice of all proceedings,

agreed to participate in the proceedings in

Colorado, and then blatantly sought the

protection of a third forum in an attempt to

obtain the results she wanted.

REASONS FOR NOT GRANTING THE

WRIT OF CERTORIARI

This case involves a non-Indian father,

non-Indian children and a family who never

lived on the reservation. The Blackfeet

Tribal Court in this case has a very minor

interest in the custody dispute between the

parties. Conversely, the state courts have

strong state interests in resolving the

custody dispute involving four of its citizens

in an action based on marriage, birth and

residency which had occurred totally within

state boundaries and off the Blackfeet

Reservation. Given the lack of impact on the

Tribe, there is no federal interest, right or

policy affected by this case.

The Colorado Court of Appeals properly

found that state courts have at least concur-

rent jurisdiction over divorce and custody

matters on the facts of this case and that

SaebGPSeSSsREEESESEE

given such state interests and the facts of

the case, there was no preemption by federal

law. This opinion by the Colorado Court of

Appeals is in complete accordance with

previous holdings of this Court and of lower

federal courts concerning tribal court

jurisdiction. There were no legal errors

contained in the opinion of the Colorado Court

of Appeals.

I. COLORADO PROPERLY TOOK JURISDICTION IN

TH AS

A. Montana and Colorado State Courts

have Jurisdiction over Divorce and

Custody Matters Involving State

Residents.

It cannot be denied that state courts have

jurisdiction over residents of the state.

There is a strong state interest in aiding in

the resolution of disputes between its

residents. This is true even for state

residents who happen to be Indians, wher they

are living off the reservation.

Absent express federal law

to the contrary, Indians

going beyond reservation

boundaries have generally

been held subject to

nondiscriminatory state

law otherwise applicable

to all citizens of the

state.

Mescalero ache ibe v. Jones, 411 U.S.

145, 149 (1973); Accord, Organized Village of

Kake v. Egan, 369 U.S. 60 (1962). F. Cohen,

Handbook of Federal Indian Law, p. 119 (1945).

In the area of divorce and custody

proceedings, this Court has held that:

The whole subject of the

domestic relations of

husband and wife, parent

and child, belongs to the

laws of the state and not

to the laws of the United

States.

Hisquierdo v. Hisquierdo, 439 U.S. 572 (1979).

There is a marked lack of federal laws

in the child custody area. In fact, in only

one area of Indian domestic relations has

Congress deemed it important to preempt the

BEEBEEEREERE RB EBEEEEEE

states. The Indian Child Welfare Act, 25

U.S.C. §1901 et seg. establishes comprehensive

standards for tribal versus state jurisdiction

in dependency and neglect cases and cases

involving termination of parental rights. The

Act specifically exempts from its coverage

child custody proceedings as part of divorce

cases. 25 U.S.C. 1903(1). In so doing,

| Congress has clearly left to the states

jurisdiction of private custody cases.

B. Federal Law Does not Preempt the

Assertion of State Court Jurisdic-

tion in this Case nor is Federal

Preemption Analysis even Applicable

to the Facts of this Case.

Petitioner bases her preemption argument on

federal policy as expressed in the Indian

Civil Rights Act, 25 U.S.C. §1322 (1982) and

its predecessor Public Law 280 (Act of Aug.

15, 1953, Pub. L. No. 83-280, 67 Stat. 588).

Neither Act applies to this case; preemption

analysis is therefore irrelevant.

itera

BEER ER EEEREER ESSE

The Indian Civil Rights Act, 25 U.S.C.

§1322 (1982) provides that the state may, with

the consent of the tribe, assume jurisdiction

over civil matters “which arise in the areas

of Indian country situated within such state”.

25 U.S.C. §1322 (1982). Thus, clearly, that on

its face, the Act does not apply to causes of

action which arise beyond the boundaries of

the reservation. In Section 1322(a) of the

Act, the language in part is as follows:

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

Indian country situated

within such state. .

(Emphasis added)

The Act addresses lack of state court juris-

7 diction over actions involving two Indians, or

an action in which an Indian was a party which

arose in the area of Indian country. Neither

VV eee

of these facts are present in this case.

Also, §1326 of the Act provides that state

jurisdiction pursuant to this title shall be

applicable in Indian country where the Indians

have accepted such jurisdiction in accordance

with the Act. Again, Respondent stresses the

fact that the marriage between the parties

took place off the reservation, the children

were born off the reservation and never lived

there until they were allowed to go there by a

Colorado district court order. The parties

and children never resided on the reservation

during the marriage. The parties’ divorce and

custody action was filed by Petitioner in

state court. There is absolutely no cause of

action in this case which arose in Indian

country. Further, the fact that the Respon-

dent is not a member of the tribe who has no

connections with Indian country mitigates

against any application of the Civil Rights

Act.

Montana’s divorce and custody code

predated and survived the passage of Public

Law 280, supra and the Indian Civil Rights

Act. State ex rel. Ironbear v. District

Court, 512 P.2d 1291 (Mont. 1973). In iron-

bear, the Montana Supreme Court decided, after

applying the infringement test set forth in

Williams v. Lee, 358 U.S. 217 (1959) to apply

state divorce law in state court to Indian

parties living on the reservation. The court

found no exclusive control by the United

States nor any interference with tribal self-

government. Under the Ironbear analysis,

Public Law 280 and the Indian Civil Rights Act

- are not even applicable to this case.

Petitioner argues that the Tribal Code’s

grant of jurisdiction to the state court is

insufficient in light of Kennerly v. District

Court of Montana, supra. Respondent is not

arguing that these Tribal Code sections comply

with the consent to jurisdiction requirement

of either Public Law 280 or 28 U.S.C. 1322.

Rather, Respondent argues that these Code

provisions do not even apply to state exercise

of jurisdiction in this case.

Petitioner cites no other federal

policy, statute or regulatory scheme in

support of her preemption argument, but

asserts, incorrectly, that she need not

present an express congressional statement of

intent upon which to predicate preemption.

She improperly cites California v. Cabazon

Board of Indians, 107 S.Ct. 1083 (1987) and

Three Affiliated Tribes of the Fort Berthold

Reservation v. Wold Engineering, 476 U.S. 877

(1986) for this proposition. In fact, those

cases hold that some federal law or regulatory

scheme is vital to preemption analysis.

Cabazon, supra clearly states that there is no

inflexible per se rule precluding state court

jurisdiction over tribes and their members in

the absence of an express congressional grant.

Petitioner’s reliance on vague sovereignty

language is outdated. In McClanahan v.

Arizona State Tax Comm’n, 411 U.S. 164 (1973),

this Court stated:

Finally, the trend has

been away from the idea of

inherent Indian sover-

eignty as a bar to state

jurisdiction and toward

reliance on federal

preemption. (Citing

Mescalero Apache Tribe v.

Jones, 411 U.S. 145). The

modern cases thus tend to

avoid reliance on platonic

notions of Indian sover-

eignty and to look instead

to the applicable treaties

and statutes which define

the limits of state power.

Compare, e.g., United

States v. Kagama, 118 U.S.

aaa, © Bi. CE. 2109, 30

L.Ed. 228 (1886), with

Kennerly v. District

Court, 400 U.S. 423, 90

S.Ct. 480, 27 L.Ed.2d 507

(1971).

SERRE SERRE RREER SESS

It is clear that the language of the

Indian Civil Rights Act itself is not ap-

plicable to the case at bar and there is no

other federal policy in place which would

recognize exclusive Indian jurisdiction based

on self-determination or sovereignty in a case

involving a non-Indian defendant in actions

that occurred off the reservation.

Petitioner also relies on the importance

of tribal court jurisdiction as part of her

preemption argument. However, the facts of

this case all undermine such reliance. Every

relevant action occurred off the reservation:

the parties’ marriage, the birth of their

children, their residency during the marriage,

and their divorce. The only action which

occurred on the reservation was the Petition-

er’s temporary visit with the children for one

month prior to the filing of her Tribal Court

action. Petitioner cannot be allowed to argue

that the domicile of the children was on the

reservation. The most Petitioner can properly

argue is that the children were physically

present on the reservation on a grant from the

Colorado court at the time of her filing.

Five of the preemption cases cited by

Petitioner actually contradict her position:

they all turned on the fact that all relevant

actions occurred on the reservation, not off

of it. The remaining cases cited by her, the

state taxation cases, are inopposite. Fisher

v. District Court, 424 U.S. 382 (1976)

(domestic relations matter, both parties were

members of the Crow Tribe, the dispute arose

on the reservation, and no important facts had

occurred off the reservation); Merrion v.

Jicarilla Apache Tribe, 455 U.S. 130 (1982)

(tribe’s taxation of Indian mining activities

on the reservation); National Farmers Union

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

Willi Vv si

Auth., 719 F.2d 979 (9th Cir. 1983); and Iowa

utu Ss. - Vv , 107 S.Ct. 971

(1987) (transactions occurring solely on the

reservation).

The remaining cases Petitioner cites to

support her preemption argument dealt with

issues of state taxation over a non-Indian

doing business on a reservation in Arizona.

In White Mountain Apache Tribe v. Bracker, 448

U.S. 136 (1980) the non-Indian was asserting

sovereignty to try to bar state taxation

resulting from its business relationship

within the tribe. It was held that the state

tax was invalid. The court reasoned that the

state’s generalized interest in raising

revenue in this case was insufficient to

permit intrusion into the federal regulatory

scheme. In McClanahan v. Arizona State Tax

Commission, supra the narrow question was if

the state may tax a reservation Indian for

income earned exclusively on the reservation.

It was held that by the state imposing the tax

in question the state interfered with matters

which relevant treaty and statute left to

regulation by the federal government.

McClanahan at 165, 168. State taxation

preemption cases cannot be used as a precedent

to support preemption in this case. State

taxation and regulation of Indian land has

consistently held to be preempted by federal

law. Unlike the power to tax which is

inherent in sovereignty, state jurisdiction to

decide the custody of children whose parents

are both Indian and non-Indian is not one

which will interfere with tribal sovereignty.

Petitioner has cited no case in support

of tribal court jurisdiction involving facts

Similar to this case. In fact, there are many

decisions of this Court which support the

spa & & BERR ERR GES &

decision of the Colorado Court of Appeals. In

Williams v. Lee, supra the Court described the

history of federal protection of tribal

jurisdiction. The Court stated:

Over the years this court

has modified these

principals in cases where

essential tribal relations

were not involved and

where the rights of

Indians would not be

jeopardized. .. . Thus

suits by Indians against

outsiders in state courts

have been sanctioned.

In Three Affiliated Tribes v. Wold Engineer-

ing, 467 U.S. 138 (1984), this Court held that

state jurisdiction over non-Indian claims

against Indians was an impermissible intrusion

on self-government but that state jurisdiction

over the claims of an Indian plaintiff against

a non-Indian defendant was lawful since there

was no interference with the right of tribal

Indians to govern themselves.

This Court’s decisions in Williams v.

E_ fe SSeS eee eee aS Sl

Lee, supra; Three Affiliated Tribes v. Wold

Engineering, supra; and Mescalero, supra all

make it clear that the Court does not consider

the interests of the Indian Tribal Court

sufficient to give it exclusive Jairtedistion

in a case such as the one at bar. Petitioner’s

arguments simply confuse this Court’s de-

cisions in different areas of Indian law.

This would be a far different case if it

involved two Indian parties, facts which

occurred on the reservation or an area of law

in which Congress has undertaken regulation or

statutory preemption. In the absence of those

facts, Petitioner’s arguments are not rele-

vant.

2. The Infringement Test, if Applicable,

Would Allow the State Court’s Exercise

of Jurisdiction.

As Respondent has established, pre-

emption analysis is not applicable in this

case. The next level of analysis is the

“infringement test” first enunciated by the

Supreme Court in Williams v. Lee, supra which

Petitioner has chosen to ignore.

In Williams the issue was whether a non-

Indian trader who operated a store on the

reservation could bring an action in stats

court to collect a bill owed him by Indians

who lived on the reservation and who had

purchased goods on credit. This Court set

forth the infringement test as follows:

Essentially, absent

governing acts of Con-

gress, the question has

always been whether the

state action infringed on

the right of reservation

Indians to make their own

laws and be ruled by then.

Williams at p. 220. On those facts, the

Williams Court found that state court juris-

diction would undermine the authority of the

tribal court. The court relied heavily on the

fact that the Navahoes had a functioning court

system which could handle the controversy.

The Williams inf ngement test has been

limited primarily to attempted exercises of

jurisdiction over non-Indians. Indeed, the

facts in the present case all point toward the

minimal tribal interest and the substantial

state interest in the controversy. McClanahan

v. Arizona State Tax Commission, supra makes

it clear that the infringement test should be

used in cases involving a non-Indian defendant

in which all of the relevant transactions

occurred outside the reservation in that in

these situations both the tribe and state

could fairly claim an interest in asserting

their respective jurisdictions. McClanahan

at i29.

In this case, the state is merely

providing a forum for the non-Indian defendant

and the Indian plaintiff. There is no

interference with tribal self-government

because the tribe has no governmental interest

in protecting non-Indian defendants.

Where the parties are

Indian and non-Indian and

the transaction occurred

off the reservation, the

interest of the tribe in

adjudicating the matter

would necessarily be small

and the possibility of

interference with tribal

self-government negligi-

ble.

F. Cohen, Handbook of Federal Indian Law,

pages 94-98 (1945).

II. THE COLORADO COURT OF APPEALS CORRECTLY

INTERPRETED THE BLACKFEET TRIBAL CODE IN

ON NA

The Blackfeet Code does not specifically

address the matter of child custody proceed-

ings. Where the Code does deal with the issue

of domestic relations such as marriage and

adoption, it specifically grants state courts

jurisdiction. Chapter 3, Sec. 1 of the Code

provides that all members of the Blackfeet

Indian Tribe shall hereafter be governed by

state law and subject to state jurisdiction

with respect to marriages. It also provides

that common law marriages will not be recog-

nized. Chapter 3, Sec. 8 of the Code provides

that all members of the Blackfeet Indian Tribe

shall hereafter be governed by state law and

subject to state jurisdiction with respect to

adoptions hereafter consummated. Chapter 2,

Sec. 1 of the Tribal Code grants concurrent

civil jurisdiction to state courts when the

defendant is a member of the tribe. Although

this section does not have direct application

to this case, it indirectly suggests that the

Blackfeet Tribe wish to obtain some ability to

protect its members who are brought into court

by a non-Indian plaintiff. Because this

section of the Code only mentions Indian

defendants in civil matters, it acknowledges

the fact that an Indian court does not have

jurisdiction over a non-Indian defendant in

matters not connected with the reservation.

Further, the fact that the Code does not

even recognize common law marriages coupled

with the fact that the parties established

their marriage through Montana common law,

means that parties could not have filed the

divorce action in the Tribal Court. In the

absence of a remedy in the Tribal Court, state

courts would have to provide a forum to the

parties to resolve their case. See, Three

Affiliated Tribes of Fort Berthold Reservation

v. Wold Engineering, 476 U.S. 877 (1986);

William v. Lee, supra.

The Colorado Court of Appeals relied on

United States ex rel. Cobell v. Cobell, 503

F.2d 790 (9th Cir. 1974). In Cobell, the

Court held that the Blackfeet Code of Montana

gave jurisdiction over divorce and related

custody matters to the state courts in cases

involving Indian parties. The Colorado court

properly relied on the Cobell case, in that it

is directly on point on this issue and it has

not been overturned. In fact it has been

cited and relied on by many later cases.

Petitioner argues that Cobell is no longer

good _— in that it ignores the decisions of

this Court in Kennerly, supra; Merrion v.

Jicarilla Apache Tribe, supra and R.J.

Williams Co. v. Fort Belknap Housing Author-

ity, supra. The language which Petitioner

takes from those cases in order to urge this

Court to overturn the Cobell decision is

general in nature, and does not represent

holdings of those cases. As discussed

previously, each of those cases involved

transactions which occurred solely on the

Indian reservations, and such facts were

central to the Court’s reasoning in the cases.

CONCLUSION

The opinion of the Colorado Court of Appeals

is in full accord with numerous opinions of

this Court on the proper exercise of state

court jurisdiction in cases involving non-

Indian defendants in transactions occurring

off the reservation. For that reason, this

Court should deny the Petition for Writ of

Certiorari.

Respectfully submittec,

AQ MN LA he A LAM

NANCY S. TERRILL

Counsel of Record

EDWARDS, TERRILL & PIZZI

1227 Spruce Street

Boulder, Colorado 80302

(303) 442-0600

Counsel for Respondent

William J. Baisley

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.