No. 81-101 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN THE MATTER OF M.E.M. 

YOUTH IN NEED OF CARE. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone. 

Honorable Diane G. Barz, Judge presiding. 

Counsel of Record: 

For Appellant: 

Steve Bunch 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- Clerk 
Mr. 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 

at 25 U.S.C.A. sections 1901-1963, West Supp. 1979). All parties 

agree to its application. The parental rights of the child's 

mother, also an enrolled tribal member, were terminated by order 

of the District Court February 26, 1981. She appeals from that 

j udgment . 

M.E.M., age 5, and her natural mother are members of the 

Standing Rock Sioux Indian Tribe. The mother has an IQ of 

approximately 53 and receives supplemental security income (S. S. I. ) 

payments. The natural father is deceased. When this action was 

commenced the mother and M.E.M. were living in Billings, 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 attorney August 22, 1979, 

in the Thirteenth Judicial District, Yellowstone County. The 

State alleged M.E.M. was in danger of being neglected and abused. 

A petition for permanent custody and authority to assent to adoption was subsequently filed October 4, 1979. A citation 

directing the mother to appear at a 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 litem for M.E.M. on October 11. The District Court did not 

appoint counsel for the mother. 

The Standing Rock Tribal Court was notified of the pending 

action by a Yellowstone County social worker who sent certified 

letters to the Tribal Court on September 12 and October 15, 1979. The 

Tribal Court responded October 23 with a letter to the social 

worker stating that the tribal court would assume jurisdiction 

and requested arrangements be made for the return of M.E.M. to 
the 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 

the mother 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 custody of M.E.M. to the tribe. The 

order of the Tribal Court was filed with the District Court 

December 21 but shortly after the time of the hearing. 

Present at the 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, ostensibly assuming its order would effect the 

transfer of jurisdiction. 

The only witness called by the State was the social worker 

who recounted her unsuccessful efforts to assist the 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 in Billings, where the mother 

frequently sought emergency housing, and that she was unable to 

support herself 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 State resisted 

transfer and requested a further hearing claiming the tribal 
order contained "numerous errors of law and [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 at the 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 discovery of the 

alleged sexual abuse and her belief that if the child were 

returned to the mother or tribal authorities the child would certainly be placed in a situation on 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 custody remain with the State until a final 

order was entered. The mother made application to this Court for 

writ of 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 

filed March 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 rights without 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 in response 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; interests fundamental to 

the perpetuation and preservation of their mutual and valuable 

heritage. Congress found "that an alarmingly high percentage of 

Indian families are broken up by the removal, often unwarranted, 

of their children from them by nontribal public and private agencies and that an alarmingly high percentage of such children are 

placed in non-Ind ian foster and 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 in his 

or her surroundings. Indian people, whether residing on a reservation or not, are immersed in an environment which is in most 

respects antithetical to their traditions. Furthermore the 

cultural diversity among Indian tribes is unquestionably profound 

yet often not fully appreciated or adequately protected in our 

society. Our constitution recognizes "the distinct and unique 

cultural heritage of the American Indians and is committed in its 

educational goals to the preservation of their cultural 

integrity." 1972 Mont.Const., Art. X, Sl(2). Preservation of 

Indian culture is undoubtedly threatened and thereby thwarted as 

the size of 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 

necessarily relegated, at best, to anthropological examination 

and categorization. In applying our state law and 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 to The 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, 

21 Ariz.L.Rev. 1123-1145 (1979); Barsh, The Indian Child Welfare 

Act of 1978: A Critical Analysis, 31 Hastings L.J. 1287-1336 

( 1980) ; Wamser, Child Welfare under the Indian Child Welfare Act 

of 1978: A New Mexico Focus, 10 N.M.L.Rev. 413-429 (1980). 

Appointment - of Counsel -- for the Natural Mother 

Appellant contends the District Court erred by failing to 

appoint counsel for the mother. The evidence presented at the 

December 21 hearing 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 (discretionary appointment) ; 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 or Indian 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 legislative history of the Act supports the contention of the appellant. 

"The separation of Indian children from 

their families frequently occurs in situations 

where one or more of the following circumstances 

exist: (1) the natural parent does not 

understand the nature of the documents or pro- 
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 disdainful of Indian culture and 

society; (4) the conditions which led to the 

separation are not demonstrably harmful or are 

remediable or transitory in character; ( 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 custody proceedings" as 

defined in the Act. 25 U.S.C. S 1903(1). The second sentence of 

1912(b) allows the ~istrict Court discretion in the appointment 

of counsel for the child. By inference the appointment of counsel in the case of an indigent parent is mandatory. Our liberal 

interpretation is congruent with the remedial character of the 

Act and in light of the particular intellectual capacities of 

this mother 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 this cause for a hearing -- 

de novo. In 

reviewing the record we note much of the testimony given during 

the first hearing would have been excluded if proper objection 

had been made. The mother is entitled to a -- de novo hearing. 

Transfer - of Jurisdiction 

Our holding returns the parties to their respective positions prior to the December 21, 1979, hearing with the exception 

that the natural mother will now be represented by counsel. 

Appellant urges this Court to order immediate transfer of jurisdiction to the Tribal Court. Such a determination would be 

inappropriate. Because M.E.M. was domiciled in Billings, 

Montana at the commencement of the proceeding and not on the 

reservation of her tribe, the extraterritorial jurisdiction of 

the tribe created by the Act must first be adjudicated. Section 

1911(b) of the Act defines the extent of this referral 
jurisdiction. 

"In any State court 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, -- in the absence -- of good 

cause to the contrary, shall transfer such proceed inytnhe jurisdiction of the tribe, absent 

objection by either parent, upon petition of 

either parent or the Indian custodian or the 

Indian child stribe : Provided, That such 

transfer shall be subject to declination by the 

tribal court of such tribe ." (~mphasis added.) 

Upon remand the District Court must first decide the 

jurisdictional issue. The burden of showing "good cause to the 

contrary" must be carried by the State with clear and convincing 

evidence that the best interests of 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 interests of 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 rights because the State did not present qualified 

expert testimony as required by the Act. Section 1912(f) states: 

"No termination of parental rights may be 

ordered in such proceedings in the absence of a 

determination, supported by evidence beyond a 

reasonable doubt, including testimonyvaiif ied expert witnesses, that the contin=dp 

custody of the child by the parent or Indian 

custodian is likely to-result in serious emotional or physical damage to the child ." 

The Act does not define "qualified expert witness." The 

record shows the expert called by the State in this case 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 this expert'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 likely to meet the requirements for a 

qualified expert witness for purposes of Indian 

child custody proceedings: 

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

recognized by the tribal community as 

knowledgeable in tribal customs as they pertain 

to family organization and childrearing 

practices. 

"(ii) A lay expert witness having substantial 

experience in the delivery of child and family 

services to Indians, and extensive knowledge of 

prevailing social and cultural standards and 

childrearing practices within the Indian child Is 

tribe. 

" ( iii) A professional person having substantial 

education and experience in the 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 spirit of 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 -- de novo. The 

District Court must first consider the jurisdictional issue and 

if transfer is denied, then proceed in accordance with this opinion 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 

the mother of the child here. 

2. A letter from Thomas J. Gunderson, Chief Judge of 

the Standing Rock Sioux Tribal Court stating: 

". . . We are requesting transfer of jurisdiction 

to this Court pursuant to the provisions of the 

Indian Child 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 Yellowstone County 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 Welfare Act. 

The social worker of the Department of Public Welfare 

in Yellowstone County on November 30, 1979 had earlier 

advised the Standing Rock Sioux Tribal Court that it would 

not transfer jurisdiction to the Tribal Court upon the 

following grounds : 

"Please refer to our letter of November 6, 1979 

requesting advisement of your plans for the 

above-named child before any arrangements were 

made for her to return to the reservation. We 
have not heard from you and our permanent custody 

hearing date is three weeks 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 disposition by 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 Indian Affairs 

Social Services or judicial systems may not be 

considered in a determination that good cause 

exists. " 

The District Court 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 

reservation with 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 decision by the Tribal Court and under section 

1911(d) of that Act, 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 courts must be prepared to recognize that 

Indian tribal courts have full power to act in matters 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 jurisdiction of the 
district courts of this state. It cannot, in my view, be 

"good cause," to refuse transfer of the proceedings to a 

tribal court on the perception that the tribal court may not 

act with respect to the child in the way we would wish it to 

act. The purpose of the Indian Child Welfare Act is to 

remove as far as possible the white man's perceptions in 

these matters where Indian values may conflict. 

I would reverse the case and direct the District Court 

to transfer the cause forthwith to the Tribal Court that has 

requested jurisdiction in the proceedings, before a federal 

court does it for us. 

/ Justice d