Application of Bertelson

No. 14885

I N THE SUPREME COURT O F THE STATE O F MONTANA

1980

I N THE MATTER O F THE A P P L I C A T I O N GF
I R E N E BERTELSON ON BEHALF O F LYNNETTE
STANLEY FOR A WRIT O F HABEAS CORPUS.

O R I G I N A L PROCEEIIING:

C o u n s e l of R e c o r d :

For A p p e l l a n t :

F r a n c i s X. L a m e h u l l a r g u e d , H a r l e m , M o n t a n a

For R e s p o n d e n t :

R i c h a r d G a n u l i n argued, G r e a t F a l l s , M o n t a n a

Submitted8 December 10, 1 9 7 9

Decided: SEP ? %@
,
,

Filed: SEF - -
Mr. Justice Daniel J. Shea delivered the Opinion of the
Court.

On June 4, 1980, this Court entered its decision reversing
the District Court and holding that jurisdiction of this
child custody dispute was properly with the Chippewa Cree
Tribe. Irene Bertelson, the mother of the child involved,
promptly petitioned this Court for a rehearing.
The petition alleged that the Court relied on erroneous
facts in vacating an order of the Hill County District Court
directing Mr. and Mrs. Martin Stanley, the paternal grandparents
of Lynette Stanley, to return the girl to the mother, the
petitioner. This Court found, based on undisputed material
facts before it, that the Chippewa Cree Tribal Court was a
more appropriate forum for settling the private custody
dispute presented in this case, involving an Indian child
and Indian parties.
With respect to the allegations that this Court relied
on facts not supported by the record, each of the alleged
erroneous facts (with the exception of one) were taken from
appellant's brief, as they were not refuted by the respondent
in her own brief. The factual assertions by the Stanleys,
that due to Irene Bertelson's neglect, her children had been
placed in foster care in Spokane and that she had been in
trouble with the police, were not disputed by Irene Bertelson
in her brief. We, as an appellate court, are not required
to ignore factual assertions that stand unrefuted. Cf., Lasky
v. American Indemnity Co. (1929), 102 Cal.App. 192, 282 P.
974, 976; also see Saint v. Beal (1923), 66 Mont. 292, 213
P. 248, 250. This Court did state, however, that the Stanleys
were not able to speak English, and this statement may not
have any support. The Stanleys did not really participate
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in either of the two hearings held in District Court, and it
appears that a social worker spoke on their behalf. From
this, we surmised that they did not speak English.
Because of the paucity of the trial court record before
us, and because of the importance of this case to a claim
we
of Indian tribal jurisdictionJdetermine that the best course
of action is to remand this case to the trial court so that
it can develop a complete evidentiary record and make complete
findings of fact and conclusions of law.
This custody dispute concerns a child born during the
marriage of James Stanley and Irene Bertelson. On February
20, 1975, the natural mother was granted a divorce decree in

Cascade County, and, as part of that decree obtained custody
of Lynette and her sister Brenda Lee. Only Lynette's custody
is involved in the present litigation. After the divorce,
the mother retained custody until April 1977. At that time
the grandmother went to Spokane where the mother was living
and, with the mother's consent, obtained physical custody of
Lynette. Since that time, the child has been living with
the grandparents on the Rocky Boy Indian Reservation near
Havre, Montana. Both grandparents are enrolled members of
the Chippewa Cree Tribe.
Lynette is also an enrolled member of the tribe and
attends school on the reservation. Although the mother went
to the reservation occasionally to visit her daughter, she
did not attempt to regain custody of Lynette until March
1979, when she asked the paternal grandparents to return the
child to her.
The grandparents refused to return the child, and on
April 4, 1979, apparently without personal notice to the
mother, they obtained a temporary custody order from the
Chippewa Cree Tribal Court appointing them as special guardians.
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I n r e s p o n s e , t h e mother on A p r i l 17, 1979, f i l e d a p e t i t i o n

i n H i l l County D i s t r i c t C o u r t f o r a w r i t o f habeas c o r p u s .

The D i s t r i c t C o u r t h e l d a show c a u s e h e a r i n g on t h e w r i t on

A p r i l 30, 1979.

The r e c o r d b e f o r e u s c o n s i s t s s o l e l y o f t h e D i s t r i c t

C o u r t f i l e ( w i t h n o t h i n g of any h e l p t o u s ) and t h e t r a n s c r i p t

o f t h e A p r i l 30, 1979 show c a u s e h e a r i n g h e l d t o compel t h e

S t a n l e y s t o show c a u s e why t h e y s h o u l d n o t b e r e q u i r e d t o

r e t u r n t h e d a u g h t e r t o I r e n e B e r t e l s o n , t h e mother. A t hearing,

t h e t r i a l c o u r t was t o l d of t h e S t a n l e y s ' i n a b i l i t y t o

procure counsel. The h e a r i n g c o n t i n u e d n o n e t h e l e s s . Bertelson

p r e s e n t e d e v i d e n c e i n s u p p o r t of h e r p e t i t i o n . The S t a n l e y s

d i d n o t cross-examine B e r t e l s o n n o r d i d t h e y p r e s e n t e v i d e n c e

i n t h e i r own b e h a l f . The t r i a l c o u r t t h e n c o n t i n u e d t h e

h e a r i n g u n t i l s u c h t i m e as i t c o u l d r u l e on a r e q u e s t by t h e

S t a n l e y s f o r t h e appointment of c o u n s e l .

On May 1, 1979, t h e t r i a l c o u r t i s s u e d an o r d e r s t a t i n g

t h a t t h e g r a n d p a r e n t s w e r e n o t e n t i t l e d t o t h e appointment

of c o u n s e l and t h a t t h e h e a r i n g would resume on May 9, 1979

t o p e r m i t t h e S t a n l e y s t o respond f u r t h e r t o B e r t e l s o n ' s

p e t i t i o n . But t h e May 9 h e a r i n g n e v e r t o o k p l a c e . The C o u r t

deemed t h e m a t t e r s u b m i t t e d on b r i e f s . I t i s from t h i s

s p a r c e r e c o r d t h a t t h e t r i a l c o u r t e n t e r e d i t s o r d e r commanding

t h e S t a n l e y s t o r e t u r n t h e i r g r a n d c h i l d t o h e r mother.

I n i t s o r d e r , o f J u n e 7, 1979, t h e t r i a l c o u r t made

t h r e e b a s i c conclusions of l a w : (1) t h e I n d i a n C h i l d

Welfare A c t , 2 5 U.S.C. S1901, e t s e q . , d i d not apply; (2)

t h e D i s t r i c t C o u r t , and n o t t h e t r i b a l c o u r t had j u r i s d i c t i o n ;

and, ( 3 ) t h e mother w a s e n t i t l e d t o c u s t o d y of t h e c h i l d .

I n reaching i t s decision, t h e t r i a l c o u r t set f o r t h n e i t h e r

t h e c o n t r o l l i n g f a c t s nor t h e applicable l a w . In short, we

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do not know how this decision was reached. A trial court
must set forth reasons for its rulings. Ballantyne v.
Anaconda Co. (1978), - Mont . -, 574 P.2d 582, 35 St.Rep.
171.
Because the welfare of an innocent young child is at
stake, we are concerned that a final decision of the juris-
dictional questions presented be based on accurate factual
information. The question of whether the District Court
should assume jurisdiction or determine that jurisdiction is
more properly with the Chippewa Cree Tribe is not an easy
one. For the guidance of the trial court in conducting its
hearing and entering its findings of fact and conclusions of
law, we include a discussion of the principles which must be
considered, and we also set forth what we deem an appropriate
test for determining whether the District Court should
accept jurisdiction in this case or defer to the tribal
court.
We first address the issues raised by the grandparents
in their appeal from the District Court order. They argue
that the state cannot exercise subject matter jurisdiction
over this custody dispute because: (1) the Chippewa Cree
Constitution and its Law and Order Code, enacted by the
Tribe pursuant to the Indian Reorganization Act of 1934 (Act
of June 18, 1934, 48 Stat. 984-988, - amended, 25 U.S.C.
as
S S 461-79) preempt state jurisdiction under the rationale of
Fisher v. District Ct. (1976), 424-U.S. 382, 96 S.Ct. 943,
47 L.Ed.2d 106; and United States v. Mazurie (1975), 419 U.S.

544, 95 S.Ct. 710, 42 L.Ed.2d 706; (2) state jurisdiction
would impermissibly interfere with the tribe's inherent
right of self-government contrary to the doctrine of Williams
v. Lee (1959), 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251;
(3) the Chippewa Cree Tribal Court has exclusive jurisdiction
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pursuant to the Indian Child Welfare Act of 1978, 25 U.S.C.
881901, et seq.; and (4) the state has not assumed, nor has
the tribe ceded to the state, jurisdiction over custody
matters pursuant to either Pub. L. No. 83-280 (Act of Aug.
15, 1953, 67 Stat. 588-90) or Title IV of the 1968 Federal
Indian Civil Rights Act (Act of Apr. 11, 1968, 82 Stat. 79-
80, 25 U.S.C. SS1321-1326.) We resolve these issues against
the grandparents.
The Stanleys' argument that Congress has preempted
state jurisdiction by delegating authority to the tribe in
S16 of the Indian Reorganization Act to enact a constitution
and bylaws is misplaced. Generally, that doctrine is liberally
applied only when actions clearly arise on the reservation.

- United States v. Mazurie, supra; Fisher v. District
See,
Ct., supra.; and Mescalero Apache Tribe v. Jones (1973), 411
U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114. Here, a number of
significant events relating to the child's custody apparently
occurred off the reservation. Bertelson and Stanley voluntarily
invoked state court jurisdiction to dissolve their marriage.
Bertelson, whom the state court awarded custody, apparently
is not a member of the Chippewa Cree Tribe and does not
reside on the reservation. Her daughter, Lynette, resided
with her for a period of time off of the reservation. When

substantial activities giving rise to a dispute arise within
the state but outside of the reservation boundaries, the
state may assume jurisdiction. Crawford v. Roy (1978), -
Mont . -, 577 P.2d 392; - De Coteau v. District County
see,
Ct. (1975), 420 U.S. 425, 428-30 & n. 3, 95 S.Ct. 1082, 43
L.Ed.2d 300, reh.den. 421 U.S. 939, 95 S.Ct. 1667, 44 L.Ed.2d
95.
Nor does Williams v. Lee, supra, prohibit state juris-
diction in this matter. The test which the United States
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Supreme Court set forth in Williams was whether in litigation
arising - - conduct on an Indian reservation and in the
out of --

absence of a governing federal law, state jurisdiction
"infringed" on the right of the Indian tribe to be self-
governing. 358 U.S. at 220, 79 S.Ct. 269, 3 L.Ed.2d 251.
The situs of the events giving rise to the litigation must
therefore be on the reservation before Williams need apply.
As this Court held in its original opinion of June 4,
1980, the dispute does not fall within the ambit of the
Indian Child Welfare Act. The Act is not directed at disputes
between Indian families regarding custody of Indian children;
rather, its intent is to preserve Indian culture values
under circumstances in which an Indian child is placed in a
foster home or other protective institution. The House
Report sets forth the essential thrust of the act:
". . .to protect the best interests of Indian
children and to promote the stability and security
of Indian tribes and families by establishing
minimum Federal Standards for the removal of Indian
children from their families and the placement of
such children in foster or adoptive homes or insti-
tutions which will reflect the unique values of
Indian culture ..." H. R. Rep. No. 95-1386, 95th
Cong., 2d Sess. 21, reprinted in [I9781 U.S. Code
Cong. & Ad. News 7530.
The issue here is not which foster or adoptive home or
institution will best "reflect the unique values of Indian
culture . . ." Rather, the present case involves an internal
family dispute between the mother and the paternal grandparents
over the custody of the child.
We do agree with the Stanleys, however, in their con-
tention that the provisions of the Chippewa Cree Law and
Order Code have not ceded jurisdiction over custody matters
to the State of Montana. The fact is 25 U.S.C. S1326
requires that a tribe hold an election to determine whether
its members would consent to the assumption of civil jurisdiction
by a particular state. In this case, there has been no such
election. Furthermore, Pub. L. 83-280, 67 Stat. 588-590,
prior to 1968, and its amended version, as codified in 25
U.S.C. SS1322, 1324, subsequent to 1968, requires that the
particular state involved also act to accept jurisdiction.
This has not been done. Absent compliance by the state and
by the tribe with the current federal enabling statutes, 25
U.S.C. SS 1321-1326, regulating the extension of state civil
and criminal jurisdiction to Indian country, the claim that
the tribe has generally ceded jurisdiction over all child
custody matters to the state cannot prevail. Blackwolf v.
District Ct. (1972), 158 Mont. 523, 493 P.2d 1293, Kennerly
v. District Ct. (1971), 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d
507.
We see no impediments in Acts of Congress which would
ipso facto prevent a state court from assuming jurisdiction
in this case. Nonetheless, we do not believe that the state
courts should, in a case of this nature, automatically
assume jurisdiction. That a state c0llrt nay kssume

jurisdiction in a case of this nature is not to say that it
should. Here we cannot ascertain how the trial court reached
its jurisdictional decision. It appears, however, it merely
concluded that the mother had not abandoned the child and,
therefore, that ipso facto she was entitled to the child's
return. This is not a proper basis for jurisdiction where
the issue is a choice between state and tribal jurisdiction.
Otherwise, a finding of nonabandonment would invariably defeat
a claim by the tribe that it should have jurisdiction. The

remainder of this opinion discusses the factors that a state
District Court must consider before deciding the jurisdictional
issue.
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 We consider first the doctrine of forum non conveniens
in the limited context of Indian jurisdictional cases. The
doctrine generally gives a court discretionary authority to
decline jurisdiction. - e.g., Koster v. Lumbermens
See,
Mutual Casualty Co. (1947),330 U.S. 518, 527, 67 S.Ct. 828,
91 L.Ed. 1067; Gulf Oil Corp. v. Gilbert (1947), 330 U.S.
501, 507, 67 S.Ct. 839, 91 L.Ed. 1055. Ordinarily, courts
apply the doctrine to refuse jurisdiction and to transfer
the action to an alternate forum. - e.g., Herbst v. Able
See,
(S.D.N.Y. 1967), 278 F.Supp., 664, 666; Grubs v. Consolidated
Freightways, Inc., (D. Mont. 1960), 189 F.Supp. 404, 408.
Section 40-7-108, MCA, expressly grants a court of this
state authority to decline to exercise its jurisdiction if
it finds that it is an inconvenient forum to make a custody
determination in a particular case or that the court of
another forum is more appropriate. We also note that the
legislative history of the Indian Child Welfare Act specifies
that state courts are to apply a "modified doctrine of forum
non conveniens, in appropriate cases, to insure that the
rights of the child as an Indian, the Indian parents or
custodian, are fully protected." H. R. Rep. No. 1386, 95th
Cong., 2d Sess. 21, reprinted in [I9781 U.S. Code Cong. &

Ad. News 7530, 7544. Although we have already stated that
the Act does not apply to this case, we believe a state
court should respect federal policy and consider the rights
of the child and the tribe in deciding whether to accept or
to decline jurisdiction.

In a case where state courts and tribal courts are
competing for jurisdiction, a state court must consider conflict
of law principles in making a final jurisdictional determination.
Even though the welfare of the child is the primary considera-
tion, obviously the interest of the jurisdiction where the
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child is physically present, or where the child is domiciled
must be considered. - Restatement (Second) of Conflict of
See
Laws 579, Comment a (1971). A possible change in the relation-
ship between parent and child is so important that the
change should be made only by the jurisdiction which has
significant ties and interests in the child and which will
be best able to determine what the best interests of the
child are with regard to custody. H. Goodrich & E. Scoles,
Conflict of Laws 271 (4th ed. 1964). Writers in this field
generally agree that any choice of law rules with regard to
jurisdiction must give way to the child's welfare as the
determinative touchstone for jurisdiction even though it is
also the basis for deciding custody disputes on the merits.
R. Leflar, American Conflicts of Law 492 (3rd. ed. 1977);
Restatement (Second) of Conflict of Laws 579, Comment a (1971);
See Sampsell v. Superior Ct. (1948;, 32 Cal.2d 763, 197 P.2d
739, 748-750. Indeed, courts do not unanimously ascribe to
any choice of law rule precisely for the reason that each
court tends to apply its own view of the universal rule that
the prime jurisdictional consideration is the best interests
of the child. H. Goodrich & E. Scoles, Confict of Laws

272 (4th ed. 1964).
In personam jurisdiction over the parents, physical
presence of the child within the forum, and the place of the
child's domicile are all well-recognized bases for asserting
jurisaiction in child custody cases. Restatement (Second) of
Conflict of Laws 979 (1971); Cobell v. Cobell (9th Cir.
1954), 503 F.2d 790, 794, cert.den. Sharp v. Cobell (19751,
421 U.S. 999, 95 S.Ct. 2396, 44 L.Ed.2d 666. If a court has
in personam jurisdiction over all parties to a custody
dispute and the child is both physically present and domiciled
in that state, all of the elements of the above tests are
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satisfied, and this, of course, is the most substantial
basis for assuming jurisdiction. But difficulties arise
when one or more of these elements are missing. No doubt a
jurisdictional determination would be facilitated if one of
these tests were adopted as the exclusive test, but such an
escape hatch ignores the primary question of the best interests
of the child. See generally, Sampsell v. Superior Ct., supra,
32 Cal.2d at 777-778, 197 P.2d at 749.
I. PERSONAL JURISDICTION
In Cobell, supra, the court held that two enrolled
members of the Blackfeet Tribe submitted the question of
their children's custody to the judgment of the Montana
state courts by voluntarily invoking the state court's
jurisdiction for divorce purposes. Although the case has no
precedential value in application to the present case, the
court expressly recognized "the possibility that two sovereigns
may enjoy concurrent jurisdiction in a custody situation."
The court went on to hold, however, that concurrent juris-
diction did not exist because the Blackfeet Tribal Law and
Order Code explicitly disclaimed jurisdiction over marriage,
divorce and adoption, and indeed explicitly deferred to
state court jurisdiction for proceedings in those areas.
503 F.2d at 795. The court determined therefore that it was
faced with neither a question of the appropriate choice of
law nor a question of the more convenient forum.
Unlike Cobell, this case does not involve a continuing
custody dispute between the parties to divorce proceedings.
Rather, we are concerned here with a dispute between a parent
and the grandparents of the child. In short, this is not the
type of factual situation ordinarily dealt with under the
continuing jurisdiction of divorce courts.
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11. PRESENCE OF - CHILD
- THE
The question thus remains whether either "presence" or
"domicile" by itself should be a sufficient basis for the
state's asserting jurisdiction over a child custody proceeding
where the tribe is also asserting jurisdiction.
The basis judicial policy of protecting the child (the
"parens patriae" doctrine) has led several courts to indicate
that jurisdiction can be based on the "substantial presence"
of the child within the state. - e.g., In Re Duryea
See,

E. Scoles, Conflict of Laws 272 (4th ed. 1964). In Finlay
v. Finlay (1925), 240 N.Y. 429, 431, 148 N.E. 624, 625,
Justice Cardozo explained the "parens patriae" rationale:
"The jurisdiction of a state to regulate the custody
of infants found within its territory does not depend
upon the domicile of the parents. It has its origin
in the protection that is due to the incompetent or
helpless . .
. (Citations omitted. ) For this, the resi-
dence of the child suffices, though the domicile be
elsewhere ..
. (Citations omitted.)"
In the case of In Re Cantrell (1972), 159 Mont. 66, 495
P.2d 179, this Court essentially followed this doctrine by
declaring an Indian child temporarily off the reservation to
be "dependent and neglected" and authorizing his adoption
after an Indian tribal court on the Fort Peck Indian Reservation
had already found the child to be neglected, but had later
returned the child to the custody of the mother approximately
one year before the state assumed jurisdiction. Cases in
this area are often sui generis, but in light of recent
developments of law at the federal level, we do not believe
that this same result would necessarily follow today.
In its legislative findings to the Indian Child Welfare
Act, Congress found that the states in exercising jurisdiction
over Indian child custody matters have often failed to
consider the unique cultural and social standards of the
Indian community. 25 U.S.C. S1901(5). Courts following the
presence standard, on the other hand, assume that the court
having the most ready access to the child can best protect
the child and can best promote the child's welfare. Finlay
v. Finlay, supra. Although this assumption may be generally
valid, in the context of an Indian child custody dispute,
"it ignores the inherent bias of a non-Indian society against
Indian culture, and fails to protect the Indians' right of
self-government." Note, 21 Ariz.L.Rev. 1123, 1131 (1979);
see also, 25 U.S.C. §1901(5). Our goal should be to resort
to the most appropriate forum rather than to the most easily
accessible forum. Note, 21 Ariz.L.Rev. 1123, 1133 (19'19) .
Furthermore, adherence to the "presence" test will undoubtedly
encourage forum-shopping and thus invite contradictory
decisions. It is not at all difficult to imagine that a
nonprevailing party in a custody dispute tried in tribal
court would be sorely tempted to relitigate the matter in
state court by filing suit in state court should the child
be temporarily off the reservation.
111.
- DOMICILE OF - CHILD AS - BASIS OF JURISDICTION:
- THE - THE -
Several courts have declared that they will not assume
jurisdiction unless the Indian child is domiciled off the
reservation. In Re Adoption of Buehl (1976), 87 Wash.2d 649,
555 P.2d 1334; Wakefield v. Little Light (1975), 276 Md. 333,
347 A.2d 228, 238; Wisconsin Potowatomies v. Houston (W.D.
Mich. 1973), 393 F.Supp. 719, 731. In Wakefield, the Court
declared that the domicile theory insures that "the Indian
tribe is afforded significant protection from losing its
essential rights of child-rearing and maintenance of tribal
identity." 276 Md. at 350, 347 A.2d at 238. But we are not
told how this protects the interest of the tribe if the
child is living on the reservation but has domicile off the
reservation. The logical upshot of such a holding is that
if the Indian child is domiciled off the reservation, state
jurisdiction is exclusive regardless of the family and
social ties which the child has to the tribe. Note, 21
Ariz.L.Rev. 1123, 1134 (1979).
Aithough the presence and domicile are handy jurisdiction-
al rules, these tests largely ignore the ethnic identity of
the child and cultural ties to the tribe. Indian tribes
retain an inherent "quasi-sovereignty" which provides a
safeguard against state interference in the internal tribal
affairs. Thus, where the interests of an Indian tribe are
involved in a custody dispute, a state court must consider
the unique status which Indian tribes occupy under the law.
Long ago the United States Supreme Court in Georgia v.
,
-

Worchester (1832), 31 U.S. (6 Pet.) 515, developed what is
essentially a three-part analysis to determine the extent of
tribal sovereignty: (1) Indian tribes originally possessed
the inherent sovereignty of any independent nation; (2) the
sovereignty of the Indian nations was necessarily lessened
after conquest and had to yield to conflicting plenary
federal authority; and (3) Indian tribes now possess the
same measure of internal sovereignty they possessed before
conquest except where Congress has expressly withdrawn such
powers by Congressional treaty or statute. 31 U.S. (6 Pet.)
at 559-561. At the same time, Indians who reside off the
reservation, as a general rule have the same rights and
responsibilities and are subject to the jurisdiction of
state courts in the same manner as state citizens. Mescalero
Apache Tribe v. Jones (1973), 411 U.S. 145, 93 S.Ct. 1267,
36 L.Ed.2d 114.
The problem is to decide what the dual sratus of the Indian
as a state citizen, on the one hand, and as a quasi-independent
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sovereign, on the other, means in the context of a parti-
cular dispute between tribal and state jurisdiction. In
Wisconsin Potowatomies, supra, the Court stated the essential
query :
"If then, Indians are to be accorded such inde-
pendence and sovereignty within the limits of their
reservation, and if on the other hand, they subject
themselves to the benefits and obligations of state
law when without, the question becomes at what point
the transformation from one to the other is ac-
complished." 393 F.Supp. at 730.
We have found no law which strikes the balance in a
factual situation sufficiently analogous to that presented
here. Williams v. - supra, held that states were permitted
Lee,
to act only "where essential tribal relations were not in-
volved and where the rights of Indians would not be jeopardized."
358 U.S. at 219-20, 79 S.Ct. 269, 3 L.Ed.2d 251. In Wakefield,
supra, the Court held that child rearing is an "essential
tribal relation within the Williams test." 276 Md. at 343,
347 A.2d at 234. While jurisdiction over child custody
matters arising on the reservation between reservation
Indians is exclusive to the tribe, Fisher, supra, there
appears to be significant developments here relating to
custody which have occurred both off and on the reservation.
Arguably, either the state or the tribe could assert
jurisdiction. The question is to determine which forum is
better able to determine the best welfare of the child--the
controlling principle for determining jurisdiction. We
do not believe a simple arithmetic tallying of off-reservation
versus on-reservation contacts is sufficient to.
determine jurisdiction. Like the "presence" test and the
"domicile" test, it is too mechanical and formalistic and by
itself obscures the best interest of the child. This approach
also ignores significant tribal interests in custody matters
which cannot be translated into geographic terms. As the
Court stated in Wisconsin Potowatomies v. Houston, supra:
"If tribal sovereignty is to have any meaning at
all at this juncture of history, it must necessarily
include the right, within its own boundaries and
membership, to provide for the care and upbringing
of its young, a-sine qua-non to the preservation of
its identity." 393 F.Supp. at 730.
An assumption of state court jurisdiction over Indian
child custody disputes poses a substantial risk of conflicting
decisions which potentially threaten a decline in tribal
authority. Different cultural views of parental responsibility
are likely to be reflected by the ultimate custody determinations
of tribal and state courts. To assume jurisdiction based
solely on the location of the child or his parents or of
various activities is to ignore the importance of ethnic
heritage and customs. Presumably the tribal court is better
equipped to consider the ethnic identity as a factor in
determining the child's welfare than is a state court. We
note in this respect, that the jurisdictional model of the
Indian Child Welfare Act is not predicated on geographic
factors, but rather on the ethnic identity and tribal ties
of the child. 25 U.S.C. 1911.
We conclude that to properly consider tribal interests
in child custody that go beyond reservation boundaries, the
best means to arrive at a considered decision as to whether
a state court should accept or decline jurisdiction is to
balance the state interests in taking jurisdiction against
the tribal interest in assuming jurisdiction. The state may
assert jurisdiction in an Indian child custody dispute of
this sort if, upon balance, it appears that the state's
contacts with and interest in the child and the parties are
more substantial than those of the tribe. The state might,
for example, appropriately take jurisdiction of a custody
proceeding involving an Indian child whose parents have
raised him off the reservation without appreciable contacts
to tribal life. Presumably, such a child, while ethnically
an Indian, would be culturally disassociated from the tribe
by the free choice of his parents. A balancing of the state
and tribal contacts might lead a state court to conclude
that it is better able to determine the child's welfare. In
such case, the child's best interests would probably be
served by applying the concepts of parental fitness of the
culture in which the child has been immersed.
Upon rehearing of this case to determine whether or not
it should assume jurisdiction, the trial court must inquire
into the contacts of the child, and the parties to the state
and to the tribe. It should consider the tribe's interest
in deciding the custody of one of its members and must
record such inquiries of fact and make appropriate conclusions
of law directed at the question of which forum is better
suited to determine the child's welfare.
In balancing the state and tribal interests, the trial
court should look to the statutory guidelines of sections
40-4-211, 40-4-102, 40-4-107 and 40-7-108, MCA. The choice
of law principles--physical presence of the child, domicile
and in personam jurisdiction over the parties--while not
determinative in themselves, are also pertinent inquiries in
determining the ultimate question of whether or not to
assume jurisdiction.
The trial court should also inquire into the following
factual and legal matters which may affect a determination
of which is the better forum to ascertain the best interest
of the child: the existence of tribal law or tribal customs
relating to child care and custody in cases of this sort;
the nature of the child's personal relationship with her
grandparents and with her mother; the child's assimilation
into and adjustment to life in the tribe and on the reservation;
the mother's ethnic and cultural background and membership
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in or ties to the Chippewa Cree Tribe or any other tribe;
the length of the child's residence both on and off the
reservation; the domicile and residence of the child's
father and the child's personal relationship with her father.
The focus of the evidentiary hearing should be to
determine which forum is better equipped to make a deter-
mination on the merits, that is, to determine the child's
best interests. Due consideration should be given to the
child's ethnic and cultural identity.
Upon reversal or vacation of a lower court order or
judgment in a habeas corpus proceeding involving child
custody, an appellate court may remand the cause for the
determination of a particular issue by means of an evidentiary
hearing. 39A C.J.S. Habeas Corpus 5260 (1976); - -
see, e-g.,
Elmore v. Elmore (19771, 46 Ill.App.3d 504, 361 N.E.2d 615,
617-618; Slawek v. Covenant Children's Home (19721, 52
I11.2d 20, 284 N.E.2d 291, 292; Langenberiv. Steen (19581,
213 Or. 150, 322 P.2d 1087, 1088.
A remand for further proceedings accords with the
general nature of habeas corpus actions in the child custody
context. In this state, habeas corpus proceedings involving
child custody matters are essentially special proceedings of
a civil nature to enforce private rights; the petitioner is
considered the plaintiff and the adverse party, the defendant;

and the disposition made by the lower court is a final
judgment from which an appeal lies. In Re Thompson (19261,
77 Mont. 466, 470, 251 P. 163, 164-165. Because habeas
corpus proceedings involving child custody are also considered
as being equitable in nature, Conley v. Walden (1975), 166
Mont. 369, 375, 533 P.2d 955, 958, the child's welfare,
rather than the technical legal rights of the parent, is the
paramount consideration by which the court must be guided.
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C o n l e y , s u p r a , 1 6 6 Mont. a t 375, 533 P.2d a t 958; B u r n s v.

G r o s h e l l e ( 1 9 5 7 ) , 1 3 1 Mont. 1, 6 , 306 P.2d 675, 677-678;

W e l l s v. S t r a n g e r ( 1 9 4 9 ) , 1 2 3 Mont. 26, 3 3 , 207 P.2d 549,

552; Veach v. Veach ( 1 9 4 8 ) , 122 Mont. 47, 5 3 , 1 9 5 P.2d 697,

700; I n R e Thompson, s u p r a , 77 Mont. a t 475-476, 251 P. a t

166. Thus, h a b e a s c o r p u s i s m e r e l y a p r o c e d u r a l d e v i c e t o

b r i n g c u s t o d y matters b e f o r e t h e c o u r t . S m a r t v. C a n t o r

( 1 9 7 7 ) , 1 1 7 A r i z . 539, 574 P.2d 27, 29.

W e v a c a t e t h e judgment o f t h e D i s t r i c t C o u r t a n d remand

t h i s case t o t h e D i s t r i c t C o u r t f o r f u r t h e r p r o c e e d i n g s i n

accordance w i t h t h i s opinion. Our p r e v i o u s o p i n i o n i n t h i s

case ( I n t h e Matter o f B e r t e l s o n , C a u s e No. 14885, d e c i d e d

J u n e 4, 1 9 8 0 ) i s w i t h d r a w n .

Jus

W e Concur:

Chief J u s t i c e

Justices