# Opposition Brief — Vielle v. Baisley

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1988
- **Citation:** 488 U.S. 917

## Text

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

or

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

Hi

439 U.S.

Iowa Mutual Ins.

Vv is
572 (1979)

Co.

Co.

103 U.S. 49,

424 U.S.

do,

Vv.

LaPlante, 107 S.Ct.
(1987).

Montana,

M

han v. Ari

Vv
167 S.Ct.

Comm’n, 411 U.S. 16
(1973)

Tribe,

455 U.S.

7. ic

h

iii

971

Cou

{e)

971 (1987)

ona

4

a

tate

che

130 (1982).

.

ibe v. Jones,
145 (1973).

19

11

20

15,
29

i7,

19,

ee
23

17,

20,

25

29

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) ..

iv

19

11

20,

15

16,

22,

28,

17

29

28

23

29

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) . . . . . . .

Vv

BS@ESR ER RRR REESE S

Treatis«

F. Cohen,

Handbook of Federal

Indian Law (1945) ... .

vi

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-

3

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.

10

.
:

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

11

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.

12

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

13

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

14

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

iS

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.

16

a

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).

17

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

18

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);

19

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

20

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

21

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.

22

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

23

“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.

24

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

25

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

26

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

27

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

28

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

30

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385019_2154%3A2. Public record. Not legal advice.