No. 91-425
IN THE SUPREME COURT OF THE STATE OF MONTANA
1993
IN RE THE MARRIAGE OF
RAMONA MAE WELLMAN,
Petitioner and Respondent,
and
ROBERT W. WELLMAN,
Respondent and Appellant.
APPEAL FROM: District Court of the Ninth Judicial District,
In and for the County of Glacier,
The Honorable R.D. McPhillips, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
James D. Moore; Moore & Doran, Kalispell
Montana
For Respondent:
Emilie Loring; Hilley & Loring, Missoula
Montana
For Amicus:
Brenda C. Desmond, Attorney at Law, Missoula,
Montana; John St. Clair, Attorney at Law, Fort
Washakie, Wyoming (Montana-Wyoming Tribal Court
Judges Association)
Submitted on Briefs: March 26, 1992
Decided: May 4, 1993
~usticeKarla M. Gray delivered the Opinion of the Court.
This is an appeal from an order of the Ninth Judicial District
Court, Glacier County, dismissing an action for equitable
apportionment of a marital estate for lack of subject matter
jurisdiction. We affirm.
Ramona Mae Wellman (Ramona) and Robert W. Wellman (Robert)
were married in Cardston, Alberta, in November 1951 and lived for
the duration of their marriage on the Blackfeet Reservation near
Browning, Montana. Ramona is a member of the Blackfeet Tribe;
Robert is not an Indian. They have six children, all born before
1960. The parties accumulated substantial real and personal
property duringtheir marriage, including approximately 4,000 acres
of Indian trust land with legal title in the United States and
beneficial ownership in Ramona.
In December 1979, Ramona filed a petition for dissolution in
state district court, stating that the marriage was irretrievably
broken. She did not ask the court to divide the marital assets.
Robert responded in March 1980, seeking an equitable distribution
of the real and personal property accumulated by the parties during
their marriage or, if the property could not be equitably
distributed, a monthly award for his support, care, and maintenance
from the income produced from the property.
The court issued a final decree of dissolution on November 18,
1981, amended in December 1981 to state as a conclusion of law that
the court had jurisdiction over the marital status. All other
jurisdictional questions and all matters concerning support,
2
maintenance, and equitable distribution of property were reserved
for later determination.
A pre-trial conference on the reserved issues originally was
set for January 20, 1982, but was vacated for the convenience of
Robert's counsel. The court, apparently on its own initiative, re-
set the conference for October 17, 1984, but continued it so that
Robert's counsel could complete discovery. Discovery efforts
continued through 1987, and trial eventually was set for June 5,
1990.
On May 16, 1990, Ramona moved to dismiss on the grounds that
the District Court lacked jurisdiction to apportion property and
debts on the Blackfeet Reservation. On May 24, 1990, the court
issued an order postponing the trial indefinitely; on May 29, after
reviewing the file, it set the matter for trial on June 5, 1990,
requesting briefs on the jurisdiction issue by June 4.
On June 5, Ramona's lawyer told the court that she had not had
an opportunity to read Robert's brief. The court suggested that
the parties produce their evidence on the merits of the dispute
that day, while it took the matter of jurisdiction under
advisement. At the close of the hearing, after Robert and Ramona
had testified at length on the property they had accumulated during
their marriage, the court announced that it would rule on the issue
of jurisdiction before proceeding further with matters concerning
the marital estate.
The District Court ultimately granted Ramona's motion to
dismiss, concluding that "this Court has no jurisdiction to
adjudicate the disposition of the only significant asset of the
parties, the Indian Trust Land." Robert appealed.
The sole issue on appeal is whether a Montana district court
has jurisdiction to adjudicate the disposition of Indian trust land
in a marital dissolution action filed in that court by a member of
the Blackfeet Tribe against her non-Indian husband.
Because the District Court ruled only on the issue of
jurisdiction, Robert's assertions of error regarding the contents
and valuation of the marital estate are not properly before us.
For purposes of reviewing the jurisdictional issue, however, we
assume that the Indian trust land is the Wellmans' only significant
marital asset. Even if the Wellmans did have other assets at the
time of the divorce, as Robert contends, the parties agree that the
Indian trust land was their most substantial asset: therefore, the
District Court could not have apportioned the marital estate
without exercising jurisdiction over the trust land.
I
In contending that the District Court has subject matter
jurisdiction to apportion the marital estate, Robert relies on the
Blackfeet Tribal Law and Order Code, which provides that "all
divorces must be consummated in accordance with the State Law of
Montana." Robert argues that with this provision the Blackfeet
Tribe "expressly ceded jurisdiction relative to dissolutions to the
Courts of Montana." We disagree.
We held in 1973 that a similar provision enacted by the
Assiniboine-Sioux Tribe in 1938 did cede jurisdiction to the state.
Our decision was based on the evidence before us, which showed that
the tribal court had granted no divorces in the intervening period
and had itself interpreted the provision as ceding jurisdiction
over divorce matters to the state of Montana. State ex rel. Iron
Bear v. District Court (1973), 162 Mont. 335, 512 P.2d 1292. Here,
the record indicates that the Blackfeet Tribal Court has
consistently exercised jurisdiction over the dissolution of
Blackfeet marriages. We conclude, therefore, that this provision
does not cede jurisdiction to the state but merely governs the
tribal court's choice of law.
Our approach is consistent with the Ninth Circuit's
determination that a similar provision in the Northern Cheyenne Law
and Order Code does not confer jurisdiction on Montana but instead
incorporates Montana law as tribal law. Sanders v. Robinson (9th
Cir. 1988), 864 F.2d 630, cert. denied, 490 U.S. 1110 (1989). Like
the case before us, Sanders involved a tribal member married to a
non-Indian and marital residence on an Indian reservation. Unlike
Ramona Wellman, however, the Indian spouse in Sanders filed an
action for divorce in the tribal court. Her non-Indian husband
challenged the tribal court's jurisdiction in federal district
court, and the district court granted summary judgment in favor of
the tribal court. In affirming that decision, the Ninth Circuit
held that in a divorce case involving an Indian "plaintiffn and a
non-Indian "defendant," the tribal court has "at least concurrent"
but not necessarily exclusive jurisdiction. 864 F.2d at 633.
Where an Indian tribe has asserted jurisdiction over marriage
and divorce actions between two of its members, we have deferred to
that assertion. In In re Marriage of Limpy (1981), 195 Mont. 314,
636 P.2d 266, we deferred to an advisory opinion of the Northern
Cheyenne Appellate Court, holding that the Northern Cheyenne Tribal
Court has exclusive jurisdiction over dissolution of marriage
actions between members of the tribe residing on the reservation.
Similarly, in State ex rel. Stewart v. District Court (1980), 187
Mont. 209, 609 P.2d 290, we determined that the Crow Tribal Code
gives the Crow Tribal Court exclusive jurisdiction over dissolution
of marriage actions between tribal members living on the
reservation.
Here, the dissolution action was brought by a tribal member
against her non-Indian husband. No precedent suggests that in such
a case the Blackfeet Tribal Court has exclusive jurisdiction over
the dissolution, or that exercise of concurrent jurisdiction by a
state district court interferes with tribal self-government. The
specific issue before us, however, is whether the District Court,
having dissolved the Wellmans' marriage, had subject matter
jurisdiction to apportion their marital estate.
II
Indian tribes are self-governing political entities whose
powers can be circumscribed only by Congress, as the United States
Supreme Court made clear in United States v. Wheeler (1977), 435
U.S. 313, 323, 9 8 S.Ct. 1079, 1086, 55 L.Ed.2d 303, 313: "[Ulntil
Congress acts, the tribes retain their existing sovereign powers.
. . . Indian tribes still possess those aspects of sovereignty not
withdrawn by treaty or statute, or by implication as a necessary
result of their dependent status."
When Wheeler was decided, Congress already had authorized
state governments to assume jurisdiction over civil causes of
action to which Indians are parties and which arise on Indian
reservations within their boundaries. Public Law 280 (P.L. 280),
codified at 28 U.S.C. 5 1360. Six states assumed jurisdiction
under the express t e n s of the statute; other states, including
Montana, could "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." Pub.
L. No. 280, 5 7, 67 Stat. 588, 590 (1953). The 1968 Indian Civil
Rights Act repealed 5 7, however, and thereafter the consent of the
enrolled Indians on the reservation, expressed as a majority vote
of the adult Indians voting at a special election, was required
before a state could assume jurisdiction over a civil action
arising on a reservation and involving a tribal member. 25 U.S.C.
5 5 1322 and 1326.
With regard to the matter before us, it is undisputed that
Montana has not assumed jurisdiction under P.L. 280 and the Indian
Civil Rights Act. Absent such an assumption of jurisdiction, civil
jurisdiction over activities of non-Indians as well as Indians on
reservation lands presumptively lies in the tribal court. Fisher
v. District Court (l976), 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d
106. To overcome that presumption, a party seeking to bring such
an action in state court must show that state jurisdiction is not
preempted by federal statute or treaty and does not unlawfully
infringe on the right of reservation Indians to make their own laws
and be ruled by those laws. White Mountain Apache v. Bracker
(1980), 448 U.S. 136, 142, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665,
672. We adopted the White Mountain Apache test in First v. State
Dep't of Social & Rehabilitation Servs. (1991), 247 Mont. 465, 471,
808 P.2d 467, 470.
In White Mountain Awache, the Supreme Court emphasized that
traditional standards of preemption do not apply, for "the
tradition of Indian sovereignty over the reservation must inform
the determination whether the exercise of state authority has been
pre-empted by operation of federal law. 448 U.S. at 143.
Consequently, the Court required a "particularized inquiry into the
nature of the state, federal, and tribal interests at stake," to
determine whether, "in the specific context, the exercise of state
authority would violate federal law.' 448 U.S. at 145.
In conducting that inquiry here, we will address the federal,
tribal and state interests involved in an apportionment of the
Indian trust land that constitutes the Wellmans' only significant
marital asset.
I11
Indian trust property cannot be conveyed without the consent
of the Secretary of the Interior. Tooahnippah v. Hickel (1970),
397 U.S. 598, 609, 90 S.Ct. 1316, 1323, 25 L.Ed.2d 600, 609.
Further, the Quiet Title Act, 28 U.S.C. 5 2409, gives the United
States sovereign immunity as to Indian trust land; therefore,
actions to adjudicate title to trust land are barred in state and
federal courts. Ducheneaux v. Secretary of Interior (8th Cir.
1988), 837 F.2d 340, 342-343, cert. denied, 486 U.S. 1055 (1988).
Thus, an assertion of state court jurisdiction to apportion a
marital estate consisting primarily of Indian trust land appears on
its face to be in conflict with the federal government's direct
interest in Indian trust property.
Robert attempts to circumvent this barrier by arguing that
even though the District Court has no authority to transfer title
to the trust land to a non-Indian, it has the power to value the
marital estate and the obligation to apportion it equitably, either
by awarding him a monetary judgment equal to his equitable share of
the estate or by ordering the land to be sold to other tribal
members and the proceeds divided. We disagree.
It is true that 5 40-4-202(1), MCA, provides, in pertinent
part, that in a proceeding for dissolution of marriage the court
"shall . . . equitably apportion between the parties the property
and assets belonging to either or both, however and whenever
acquired and whether the title thereto is in the name of the
husband or wife or both" (emphasis added). We note that here,
neither party holds legal title to the Indian trust land. In any
event, however, the strong federal and tribal interests in trust
property mandate our conclusion that 5 40-4-202(1), MCA, cannot be
construed to require or allow adjudication of Indian trust land by
a state district court. As the Blackfeet Tribal Law and Order Code
provides for consummation of divorce in accordance with Montana
law, we presume that the Blackfeet Tribal Court will equitably
apportion the Wellmans' marital assets as prescribed by 5 40-4-
202(1), MCA.
Any state action that affects ownership of Indian trust land
is closely circumscribed by 28 U.S.C. g 1360(b), even where state
jurisdiction has been acquired pursuant to P.L. 280. Section
1360(b) provides that:
Nothing in this section [P.L. 2801 shall authorize the
alienation, encumbrance, or taxation of any real or
personal property . . .
belonging to any Indian or any
Indian tribe . .
. that is held in trust by the United
States; ...or shall confer jurisdiction upon the State
to adjudicate, in probate proceedings or otherwise, the
ownership or right to possession of such property or any
interest therein.
On its face, this statute precludes state jurisdiction to
adjudicate any interest in Indian trust land. In light of this
statutory circumscription even where the state has assumed
jurisdiction, we infer the complete absence of Congressional intent
to authorize or allow a state that has not assumed jurisdiction to
adjudicate Indian trust land in any way whatsoever. See Sheppard
v. Sheppard (Idaho 1982), 655 P.2d 895, 921 (Bistline, J.,
dissenting).
Robert argues that Sheppard authorizes state jurisdiction over
Indian trust land in a marital estate. He cites its conclusion
that in a dissolution involving an enrolled tribal member and a
non-Indian, the Indian spouse must compensate the non-Indian spouse
for "his or her share of the community contributions that have gone
into property that is held in trust or subject to a restraint on
alienation by the federal government." Sheppard, 655 P.2d at 914.
The majority in Sheppard affirmed a district court order
requiring the Indian wife to pay the non-Indian husband a
substantial sum to offset the bulk of the real and personal
property, including Indian trust land, awarded to the wife. The
majority pointed out that the district court had done nothing to
affect title to the property, which remained in the wife's name,
and that it had determined the size of the monetary award by the
amount of community funds used to pay for the property. Under
these circumstances, the Idaho court held, the district court's
action did not infringe on the authority of the federal government
or on tribal sovereignty. Sheppard, 655 P.2d at 914-15.
We distinguish S h e ~ ~ a ron several grounds.
d First, Idaho,
unlike Montana, assumed jurisdiction over enforcement of certain
state laws and regulations in Indian country within the state,
including laws and regulations concerning domestic relations,
pursuant to P.L. 280. Sheo~ard,655 P.2d at 907 (citing Idaho Code
$ 67-5101 (1963)).
5 Second, Idaho is a community property state;
Montana is not.
Finally, and more importantly, the decision of the Idaho court
does not support Robert's position in the case before us. In
Sheppard, neither the trial court nor the Idaho Supreme Court
exercised jurisdiction over the Indian trust property by bringing
the property before it for valuation. Instead, the Idaho court
merely ordered the Indian spouse to reimburse the non-Indian spouse
for his share of the community funds used to purchase the land.
Here, we are urged to assert state court jurisdiction over
Indian trust land by figuratively bringing it into state court for
valuation prior to an ordered sale and division of proceeds or a
monetary award equal to Robert's equitable share of the value of
the land. Based on our discussion of 28 U.S.C. 5 1360(b), above,
we conclude that any of these actions would result in a prohibited
adjudication of interests in Indian trust land. See She~oard,655
P.2d at 923 (Bistline, J., dissenting).
Robert also relies on Conroy v. Conroy (8th Cir. 1978), 575
F.2d 175, suggesting that it authorizes the District Court to order
the "sale of beneficial title in the said Trust lands to
permissible beneficiaries . . . e.g., other Blackfeet Indians."
Robert misreads Conroy.
Conroy involved a divorce action between two members of the
Oglala Sioux Tribe, who had accumulated, during their marriage,
1,700 acres of land held in trust by the United States in the name
of the husband. The divorce action was filed in the Pine Ridge
Indian Reservation Tribal Court, which granted the divorce and
awarded the wife roughly half the land and cattle accumulated
through the parties' joint efforts. The Eighth Circuit, affirming,
upheld tribal court jurisdiction to divide the trust land. 575
F.2d at 183. Thus, Conroy provides authority for a tribal court to
apportion beneficial interests in trust land in conjunction with a
dissolution action between tribal members. It has no bearing on
the issue of state court jurisdiction over Indian trust land.
Notwithstanding Robert's failure to present authority
requiring us to reverse the District Court's decision, we conclude
by returning briefly to the White Mountain Apache test, which
required us to conduct I1aparticularized inquiry into the nature of
the state, federal, and tribal interests at stake" in determining
whether, "in the specific context, the exercise of state authority
would violate federal law.l1 White Mountain Apache, 448 U.S. at
145.
There is no question but that the United States has a
significant interest in matters relating to Indian tribes and
reservations. Apart from its direct interest as legal owner of
Indian trust land, the United States has a strong goal of
encouraging tribal self-government. Numerous federal statutes
express this goal. See New Mexico v. Mescalero Apache Tribe
(1983), 462 U.S. 324, 335, 103 S.Ct. 2375, 2387, 76 L.Ed.2d 611,
621, citing the Indian Reorganization Act of 1934, the Indian civil
Rights Act of 1968, the Indian Self-Determination and Education
Assistance Act of 1973, and the Indian Financing Act of 1974.
Nor can the interest of the Blackfeet Tribe in this matter be
overstated. In general, of course, Indian tribes retain the power
to regulate the domestic relations of their members, by virtue of
their status as sovereign entities; in addition, a tribal court
specifically has jurisdiction to adjudicate disputes over Indian
trust land. Conrov, 575 F.2d at 181-182. Here, the Blackfeet
Tribal Court has, and exercises, concurrent jurisdiction over the
dissolution of Blackfeet tribal members1 marriages, while the
Blackfeet Tribe has a strong interest in safeguarding its members'
beneficial interest in trust lands.
Unless the state interests at stake are sufficient to justify
the assertion of state authority, state jurisdiction that is
inconsistent or interferes with federal and tribal interests is
preempted by operation of federal law. Mescalero Apache, 462 U.S.
at 334. It is true that the State of Montana has an interest in
ensuring the existence of a forum in which marital property located
within its borders may be apportioned upon a dissolution of
marriage. In the usual case, the state achieves this goal by
providing access to its courts. Here, however, the state*s
interest is met by the availability of an alternative forum in the
Blackfeet Tribal Court. In short, the state's interest in the
property and proceedings at issue is inconsequential compared with
the federal and tribal interests at stake.
We hold that, under the facts of this case, the District Court
did not err in concluding that it lacked jurisdiction to adjudicate
the disposition of the Indian trust land that was the parties* only
significant marital asset.
Af finned.
i
We concur:
L c/ 4 5 - 44
Chief Justice