No. 81-101 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

INTHE MATTER OF M.E.M. YOUTH INNEED OF CARE.

Appeal from: DistrictCourt of the Thirteenth Judicial District, In and for the County of Yellowstone. Honorable Diane G. Barz, Judge presiding. Counsel of Record: For Appellant: SteveBunch argued, Legal Services, Helena, Montana D. Michael Eakin argued, Legal Services, Hardin, Montana For Respondent: Harold F. Hanser, County Attorney, Billings, Montana Robert P. Morin argued, Deputy County Attorney, Billings,

Montana Olsen, Christensen and Gannett, Billings, Montana Damon Gannett argued, Billings, Montana

Submitted: September 14, 1981 Decided: November 12, 1981

Filed:

# q- /9 T<zL-L+

Y 4- ClerkMr. Justice Frank B. Morrison, 

### Jr., delivered the Opinion of the Court. This is a dependency and neglect action involving a Sioux Indian child. The case requires application of the Indian Child Welfare Act of 1978, Pub. L. No. 95-608, 92 Stat. 3069 (codified 

### at25 U.S.C.A. sections 1901-1963, West Supp. 1979). Allparties agree 

### to its application. The parental rightsof the child's mother, 

### also an enrolled tribalmember, 

### were terminated by order of the District Court February 26, 1981. She appeals from that judgment

# . M.E.M., age 5, and her natural mother aremembers of the Standing Rock Sioux IndianTribe. The mother has an IQof approximately 53 and receives supplemental security income (S.S.I.) payments. The natural father 

### is deceased. When this action

### was commenced themother and M.E.M. 

### were living inBillings, Montana. The mother now resides on the reservation. M.E.M. remains in the foster

### care of the State. Petition for temporary investigative authority and protective services 

### was filed by the county attorneyAugust 22, 1979, inthe ThirteenthJudicial District, Yellowstone County. The StateallegedM.E.M. 

### was indanger of being neglected and abused. A petition forpermanent custody and authority 

### to assent to adoption

### was subsequently filedOctober 4, 1979. A citation directing the mother to appear 

### ata hearing in the 

### ~istrict Court

on December 21, 1979 was served upon her October 18

## , 1979, at Aberdeen, South Dakota. The District Court appointed a guardian ad litemfor M.E.M. on October 11. The District Court did not appoint counsel for the mother. The StandingRock Tribal Court 

### was notified of the pending actionby a Yellowstone County 

### social worker who sent certified letters to theTribalCourt on September 12and October 15, 1979. The TribalCourt responded October 23 with a 

### letter to the social worker statingthat the tribal court would assume jurisdiction and requested arrangements be made for the return of M.E.M. 

### tothe Tribal Court. The Tribal Court was informed by 

### letters dated November 6 and 30 that the county welfare department would resist transfer of jurisdiction unless the Tribal Courtv s "plans for the disposition of the 

### case" were first stated. The Tribal Court did not respond 

### to these demands. On December 11, the welfare department sent a mailgram 

### to themother stating the show cause hearing would be held in the District Court as scheduled. The mother, then residing on the Standing Rock Reservation, sought the assistance of the Tribal Court, pro se. The Tribal Court issued an order directing the -- District Court 

### to return custodyof M.E.M. 

### to the tribe. The order of the Tribal Court was filed with the District Court December 21but shortly after the time of the hearing. Present atthe hearing 

### were the guardian ad litem, a deputy county attorney, a welfare social worker and a representative of Social and Rehabilitation Services. The mother did not appear and was not represented by counsel. The tribe was not represented either, ostensiblyassuming its order would effect the transfer of jurisdiction. The onlywitness called by the Statewas the social worker who recounted her unsuccessful efforts to assistthe mother in developing proper parenting skills. She alleged that on several occasions the mother used excessive corporal punishment and that two of the child's uncles had sexually abused the child. She further alleged the mother had been accused of prostitution by employees of the Rescue Mission inBillings, where the mother frequently sought emergency housing, and that she was unable to supportherself through any proper employment. The social worker recommended permanent removal and adoptive placement. The District Court took the 

### matter under advisement. After receiving the tribal order the Stateresisted transfer and requested a furtherhearing claiming the tribalorder contained "numerous 

### errors of 

### lawand [did] not constitute

a request to assume jurisdiction under the provisions of the Indian Child Welfare Act." The District Court set March 13, 1980, as the date for further hearing on the issue of termination of parental rights and transfer of jurisdiction. Through the assistance of the Tribal Court the mother retained Montana Legal Services (MLS) as counsel on March 1, 1980. The mother 

### was represented by MLS atthe second hearing, but the Tribal Court 

### was unable to send a representative. Over the objection of the mother's counsel, who argued the hearing should be limited solely

### to the question of jurisdiction,

a cousin of the mother testified about her discoveryof the alleged sexual abuse and her belief that if the child 

### were returned to the mother 

### or tribal authorities the child would 

### certainlybe placed in a situationon the reservation which would result in further sexual abuse by the uncles. The social worker added testimony regarding a 

### series of communications with tribal authorities. After the submission of briefs by the parties the District Court held on June 13, 1980, that it had proper jurisdiction, denied transfer of jurisdiction to the Tribal Court and ordered temporary custodyremain with the State until a final order 

### was entered. The mother made application to thisCourt for 

### writof supervisory control requesting transfer of jurisdiction, which was denied September 17, 1980. Judgment awarding permanent custody and control to the State and authority to assent to adoption

### was entered February 27, 1981. Notice of appeal 

### was timely filedMarch 3, 1981. The appellant contends the District Court erred by (1) failing to appoint counsel for the appellant, (2)refusing to transfer jurisdiction to the Tribal Court, and (3)terminating parental rightswithout testimony from a "qualified expert

# ." The appellant's challenges originate under the Indian Child Welfare Act.The Indian Child Welfare Act of 1978

### was passed by Congress inresponse 

### to a significant threat to the integrity of Indian cultures in this country. The Act represents Congressional recognition of the concomitant cultural interests of Indian tribes and Indian children; interestsfundamental to the perpetuation and preservation of theirmutual and valuable heritage. Congress found "that an alarminglyhigh percentage of Indian families 

### are broken up by the removal, oftenunwarranted, of their children from them by nontribal public and private agen

### cies and that an alarmingly high percentage of such children 

### are placed in non-Indian fosterand adoptive homes and institutions



# .

# .." 25 U.S.C.A. 

### S 1901(4). We share that concern. Each individual is an amalgam of the predominant religous, linguistic, ancestral and educational in£luences existent inhis



### or her surroundings. Indian people, whether residing on a reservation 

### or not, 

### are immersed in an environment which is inmost respects antithetical 

### to their traditions. Furthermore the cultural diversity among Indian tribes is unquestionably profound yet often not fullyappreciated 

### or adequately protected inour society. Our constitution recognizes "the distinct and unique culturalheritage of the American Indians and is committed in its educational goals to the preservation of their cultural integrity." 1972Mont.Const., Art. X, Sl(2). Preservation 

### of Indian culture is undoubtedly threatened and thereby thwarted as the sizeof any tribal community dwindles. In addition to its artifacts, language and history, the members of a tribe are 

### its culture. Absent the next generation, any culture 

### is lost and necessarilyrelegated, atbest, to anthropological examination and categorization. In applying our state 

### lawand the Indian Child Welfare Act

### we are cognizant of our responsibility to promote and protect the unique Indian cultures of our state for all future generations of Montanans. For further discussion of the act 

### see: Note, In Re D.L.L. &C.L.L., Minors: Ruling on the Constitutionality of the Indian Child Welfare Act, 26 S.D.L.Rev. 67-78 (1981); Note, The Indian Child Welfare Act of 1978: Provisions and Policy, 25 S.D.L.Rev. 98-115 (1980); Guerrero, Indian Child Welfare Act of 1978' A Response toThe Threat to Indian Culture Caused by Foster and Adoptive Placement of Indian Children, 7 Am.Indian L.Rev. 51-77 (1980);Jones, Indian Child Welfare: A ~urisdictional Approach, 21Ariz.L.Rev. 1123-1145 (1979); Barsh, The Indian Child Welfare Actof 1978: A CriticalAnalysis, 31Hastings L.J. 1287-1336 (1980);Wamser, Child Welfare under the Indian Child Welfare Act of 1978: A New Mexico Focus, 10N.M.L.Rev. 413-429 (1980). Appointment - of Counsel forthe Natural Mother 

### -- Appellant contends the District Court erred by failing to appoint counsel for the mother. The evidence presented at the December 21hearing showed the mother 

### was developmentally disabled and the recipient of S.S.I. payments; therefore under the Act the mother 

### was entitled 

### to appointment of counsel. The State concedes the mother 

### was entitled to appointment of counsel by both the Act and our own statutes, section 41-3-401(12), MCA (discretionaryappointment);however, argues the State, she never requested counsel therefore no 

### error was committed. The applicable section of the Act 

### is 25 U.S.C. S 1912(b), which 

### states: "(b) In any case in which the court determines indigency, the parent orIndian custodian shall have the right to court-appointed counsel in any removal, placement, 

### or termination proceeding

# . The court may, in its discretion, appoint counsel for the child upon a finding that such appointment is in the best interest of the child *I 

# ... The legislativehistoryof the Act supports the contention of the appellant. "The separation of Indian children from their families frequentlyoccurs in situations where one 

### or 

### more of the following circumstances exist: (1)the natural parent does not understand the nature of the documents orpro-ceedings involved; (2) neither the child nor the natural parents 

### are represented by counsel 

### or otherwise advised of their rights; (3)the agency officials involved 

### are unfamiliar with, and often disdainfulof Indian culture and society; (4)the conditions which led to the separation 

### are not demonstrably harmful or

### are remediable 

### or transitory incharacter; (5) responsible tribal authorities 

### are not consulted about 

### or even informed of the nontribal government actions." S.Rep. No. 95-597, 95th Cong. 1st Sess. (1977). 

### We interpret the Act 

### as requiring the appointment of counsel for indigent Indian parents in "child custodyproceedings" 

### as defined in the Act. 25 U.S.C. S 1903(1). The second sentenceof 1912(b)

### allows the ~istrict Court discretion in the appointment of counsel for the child. By inference the appointment of coun

### sel in the case of an indigent parent is mandatory. Our liberal interpretation 

### is congruent with the remedial character of the Act and in lightof the particular intellectual capacities of thismother 

### we must reject the State's contention that the mother should have requested counsel. Failure of the District Court to appoint counsel 

### was error. We reverse the judgment terminating parental rights and remand thiscause for a hearing denovo. In 

### -- reviewing the record 

### we note much of the testimonygiven during the firsthearing would have been excluded if proper objection had been made. The mother is entitled to a denovo hearing. 

### -- Transfer of Jurisdiction 

### - Our holding returns the parties to their respective positionsprior to the December 21, 1979, hearing with the exception that the natural mother 

### willnow be represented by counsel. Appellant urges thisCourt 

### to order immediate transfer of jurisdiction to the Tribal Court. Such a determination would be inappropriate. Because M.E.M. was domiciled inBillings, Montana at the commencement of the proceeding and not on the reservation of her tribe, the extraterritorialjurisdiction of the tribe created by the Actmust firstbe adjudicated. Section 1911(b)of the Act defines the extent of thisreferraljurisdiction. "In any Statecourt proceeding for the foster care placement of, 

### or termination of parental riqhts to, an Indian child not domiciled or residing within the reservation of the Indian child's tribe, the court, inthe absence of good 

### -- 

### -- cause tothe contrary, shall transfer such proceedinytnhejurisdiction of the tribe, absent objection by either parent, upon petitionof eitherparent 

### or the Indiancustodian

### or 

### the Indian child stribe: Provided, That

# such transfer shallbe subject to declination by the tribal court of such tribe

# ." (~mphasis added.) Upon remand the District Court must firstdecide the jurisdictional issue. The burden of showing "good cause to the contrary" must be carried by the Statewith clear and convincing evidence that the best interestsof the child would be injured by such a transfer. We direct the District Court to consider the guidelines for 

### state courts established by the Department of the Interior in its determination, although in addition thereto the best interestsof the child could prevent transfer of jurisdiction upon a "clear and convincing" showing by the State. Qua1 if ied Expert Testimony Appellant challenges the termination of the mother's parental rightsbecause the Statedid not present qualified expert testimony 

### as required by the Act. Section 1912(f)

### states: "No termination of parental rightsmay be ordered in such proceedings inthe absence of a determination, supported by evidencebeyond a reasonable doubt, includingtestimonyvaiified expertwitnesses, that the contin=dp custodyof the child by the parent 

### or Indian custodian is likelyto-result in serious 

### emotional orphysical damage 

### to the child

# ."

The Act does not define "qualified expert witness." The record shows the expert called by the State in thiscase had limited experience in the department and one year in the area of childrens' services. We do not here hold that it was error to admit thisexpert's opinion. In deciding whether there is proper foundation for an expert opinion, the trial court should consider the Department of Interior guidelines which provide: "b. Persons with the following characteristics

### are most likelyto

### meet the requirements for 

### a qualified expert witness for purposes of Indian child custodyproceedings: 

### "(i) A member of the Indian child's tribe who 

### is recognized by the tribal community as knowledgeable in tribal customs as they pertain tofamily organization and childrearing practices. "(ii)A layexpert witness having substantial experience in the deliveryof child and family services to Indians, and extensiveknowledge of prevailing 

### social and cultural standards and childrearing practices within the Indian childIs tribe. 

### "(iii)A professional person having substantial education and experience inthe area of his

### or her specialty." 44 Fed.Reg. 67593 (1979). We 

### are 

### aware that these guidelines add a dimension to expert testimony not normally required. However 

### we feel these guidelines comport with the spiritof the Indian Child Welfare Act and thereere deem them to be applicable. In conclusion, judgment terminating parental rights 

### is reversed and this

### case remanded for a hearing denovo. The -- District Courtmust firstconsider the jurisdictional issue and if transfer is denied, then proceed in accordance with thisopinion and applicable portions of the Indian Child Welfare Act of

We concur:

Chief Justice



## .............................. Justices

### Mr. Justice John C. Sheehy,dissenting:

I dissent from the result of the majority opinion. The cause should be reversed,but it should be reversed with instructions to the District Court to transfer immediately these proceedings to the Standing Rock Sioux Tribal Court of the Standing Rock Sioux Indian Reservation at Fort Yates, North Dakota. After the proceedings were instituted in the District Court of Yellowstone County, the District Court was served

on February 22, 1980,with the following instruments from the Standing Rock Sioux Tribal Court: 1. An authorization for legal representation signed by themother of the child here. 2. A letter from Thomas J. 

### Gunderson, Chief Judge of the StandingRock Sioux Tribal Court stating: 

# ".

.

# .We are requesting transfer of jurisdiction to this Court pursuant to the provisions of the IndianChild Welfare Act. 

# .."

3. 

### A copy of the motion by the mother in this case to the Standing Rock Sioux Tribal Court for a transfer proceedings to it from the YellowstoneCounty District Court. 4. An order dated December 14, 1979, signed by Isaac Dog Eagle, Jr., Tribal Judge of the Tribal Court assuming jurisdiction under the Indian Child WelfareAct. The social worker of the Departmentof Public Welfare in YellowstoneCounty onNovember 30, 

### 1979 had earlier advised the StandingRock Sioux Tribal Court that itwould not transfer jurisdiction to the Tribal Court upon the following grounds: 

### "Pleaserefer to our letter of November 6, 

### 1979 requesting advisementof your plans for the above-named child before any arrangements were made for her to return to the reservation. We

### have notheard fromyou and ourpermanent custody hearing date is threeweeks away

# ..

# ."

In determining "good cause" for refusing transfer of jurisdiction to an Indian Tribal Court, the District Court may not consider socio-economic conditions that eventually may arise out of the dispositionby the Tribal Court. The federal guidelines, contained in 

### 44 Fed. Reg. 228 

### (1979)at p. 67591, state: "(c) Socio-economic conditions and the perceived adequacy of Tribal or Bureau of IndianAffairs Social Services or judicial systemsmay not be considered in a determination that good cause exists.

### " The DistrictCourt in this case refused to transfer the proceedings to the Tribal Court upon the perceived impression that the child's custody would be given to persons on the reservationwith whom the ~istrict Court, and the Department of Public Welfare, were not satisfied. This is not the function,however, of a good-cause determination under section 1911(b) of the Indian Child Welfare Act. Those are matters for decisionby the Tribal Court and under section 1911(d) of thatAct, the United States, every state,and every Indian tribe shall give full faith and credit to the public acts, records and judicial proceedings of any Indian tribe applicable to Indian child custody proceedings to the

same extent that such entities give full faith and credit to the public acts, records and judicial proceedings of any other judicial entity. The district courtsmust be prepared to recognize that Indian tribal courts have fullpower to act inmatters of Indian child adoptions and custodial proceedings, not involving divorce, and the jurisdiction of the tribal courts is on a par in those matters with the jurisdictionof thedistrict courtsof this state. It cannot, inmy view, be "good cause," torefuse transfer of the proceedings to a tribal court on theperception that the tribal courtmay not actwith respect tothe child in the way 

### wewould wish it to act. The purpose of the Indian ChildWelfare Act isto

remove as faraspossible thewhite man's perceptions in thesematters where Indian values may conflict. I would reverse the case and directthe DistrictCourt totransfer the cause forthwith tothe Tribal Court thathas requested jurisdiction intheproceedings, before a federal court does it for us.



# / Justice 

# d