No. 90-057 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1990 

IN THE MATTER OF T.S. 

Youth in Need of Care. 

12 .$/ WG'L 

CLERK Of SUPREME COURT 

STA'CP: OF fi1oEirihg 

APPEAL FROM: District Court of the Tenth Judicial District, 

In and for the County of Fergus, 

The Honorable Peter L. Rapkoch, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Daniel Duame; Kawerak, Inc.; Nome, Alaska 

D. Michael Eakin; Montana Legal Services Assn.; 

Billings, Montana 

For Respondent: 

Bradley B. Parrish, Lewistown, Montana, Guardian ad 

litem 

Marc Racicot, Attorney General, Helena, Montana 

Clay R. Smith, Asst. Atty. General, Helena, Montana 

Jon A. Oldenberg, Lewistown, Montana 

Submitted on Briefs: August 23, 1990 

Filed: 

Decided: November 20, 1990 

* 
Justice Fred J. Weber delivered the Opinion of the Court. 

King Island Native Community, an Eskimo tribe located in Nome, 

Alaska, appeals from a judgment of the District Court, Tenth 

Judicial District, Fergus County, denying the Tribe's motion to 

transfer jurisdiction of child custody proceedings of an Eskimo 

child under the Indian Child Welfare Act. We affirm. 

The issues presented are: 

1. Did the District Court err when it held that there was 

good cause not to transfer jurisdiction of child custody 

proceedings to King Island Tribal Court? 

2. Did the District Court err when it failed to remove the 

guardian ad litem from the case when the guardian ad litem 

expressed misgivings about the ICWA? 

T.S. was born in Alaska to a mother who is part Eskimo and is 

eligible for membership in the King Island Native Community 

(Tribe). Neither Mother nor T.S. is a member of the Tribe and 

neither have ever resided on the reservation during the lifetime 

of T.S. The record reveals a long history of transient lifestyle 

which was punctuated with domestic violence and physical abuse 

during the marriage of Mother and Stepfather. The evidence 

indicates that Mother was abused by Stepfather and T.S. was abused 

by both Mother and Stepfather. 

Mother and Stepfather were residing in Fergus County, Montana 

on August 31, 1988, when T.S. was placed in protective custody by 

the Montana Department of Family Services (Department). T.S. was 

three and a half years old at the time. A petition for temporary 

2 
investigative authority was filed and on September 2, 1988, the 

District Court appointed a guardian ad litem for T.S. and issued 

its order for protective services and order to show cause. 

Shortly after T.S. was placed in a temporary foster home, 

Mother returned to Alaska. Mother contacted the Tribe and 

requested that the Tribe intervene in her case pursuant to the 

Indian Child Welfare Act (ICWA). On December 27, 1988, the Tribe 

filed a motion to intervene in the proceedings pursuant to 25 

U.S.C. 5 1911(c) of the ICWA and intervention was granted the 

following day. On December 29, 1988, the Department of Family 

Services filed a petition for permanent legal custody of T.S. and 

for termination of Mother's parental rights. On February 21, 1989, 

the Tribe filed a motion to transfer jurisdiction to its tribal 

court pursuant to 25 U.S.C. 5 1911(b) . Mother joined the transfer 

request on March 10, 1989. A hearing to determine the 

jurisdictional issue was held on July 19, 1989. The District Court 

denied the Tribe's motion to transfer jurisdiction, holding that 

there was good cause not to transfer because 1) it would not be in 

T.S. Is best interests to transfer jurisdiction, and 2) it would 

constitute an undue hardship to the parties and witnesses in 

Montana to appear in tribal court in Alaska. 

I 

Did the District Court err when it held that there was good 

cause not to transfer jurisdiction of child custody proceedings 

to King Island Tribal Court? 

Section 1911(a) and (b) of the Indian Child Welfare Act 
states: 

(a) Exclusive jurisdiction 

An Indian tribe shall have jurisdiction exclusive 

as to any State over any child custody proceeding 

involving an Indian child who resides or is domiciled 

within the reservation of such tribe, except where such 

jurisdiction is otherwise vested in the State by existing 

Federal law. Where an Indian child is a ward of a tribal 

court, the Indian tribe shall retain exclusive 

jurisdiction, notwithstanding the residence or domicile 

of the child. 

(b) Transfer of proceedings; declination by tribal court 

In any State court proceeding for the foster care 

placement of, or termination of parental rights to, an 

Indian child not domiciled or residinq within the 

reservation of the Indian child's tribe, the court jn the 

absence of qood cause to the contrarv, shall transfer 

such proceeding to the jurisdiction of the tribe, absent 

objection by either parent, upon the petition of either 

parent or the Indian custodian or the Indian child's 

tribe; Provided, That such transfer shall be subject to 

declination by the tribal court of such tribe. (Emphasis 

supplied.) 

25 U.S.C. 5 1911(a), (b). 

Since T.S. was not domiciled or residing within the 

reservation, subsection (b) applies which requires transferring 

jurisdiction in the absence of good cause to the contrary. This 

Court has held that in cases that fall under subsection (b): 

The burden of showing "good cause to the contrary1' 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 interest of the 

child could prevent transfer of jurisdiction upon a 

"clear and convincing" showing by the State. 

In the Matter of M.E.M. Youth in Need of Care (1981), 195 Mont. 
The guidelines for state courts referred to in M.E.M. state: 

Determination of Good Cause to the Contrary 

(a) Good cause not to transfer the proceeding exists 

if the Indian child's tribe does not have a tribal court 

as defined by the Act to which the case can be 

transferred. 

(b) Good cause not to transfer the proceeding may 

exist if any of the following circumstances exists: 

(i) The proceeding was at an advanced stage when the 

petition to transfer was received and the petitioner did 

not file the petition promptly after receiving notice of 

the hearing. 

(ii) The Indian child is over twelve years of age 

and objects to the transfer. 

(iii) The evidence necessary to decide the case 

could not be adequately presented in the tribal court 

without undue hardship to the parties or the witnesses. 

(iv) The parents of a child over five years of age 

are not available and the child has had little or no 

contact with the child's tribe or members of the child's 

tribe. 

(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. 

(d) The burden of establishing good cause to the 

contrary shall be on the party opposing the transfer. 

These guidelines were drafted by the Bureau of Indian Affairs 

(BIA) and represent the Department of Interior's interpretation of 

what grounds would establish good cause. In the introduction, the 

Department of Interior states the guidelines are "not published as 

regulations because they are not intended to have binding 

legislative effect.I1 44 Fed.Reg. 67584 (1979). Courts are "free 

to act contrary to what the Department has said if they are 

convinced that the Department's guidelines are not required by the 

statute itself.It Id. "Primary responsibility for interpreting . 

. . language used in the Act . . . rests with the courts that 

decide Indian child custody cases. For example, the legislative 
history of the Act states explicitly that the use of the term 'good 

cause1 was designed to provide state courts with flexibility in 

determining the disposition of a placement proceeding involving an 

Indian child.I1 Id. 

In exercising this flexibility, this Court has determined that 

the "best interests of the childu test will be applied in Montana 

in determining good cause not to transfer jurisdiction of custody 

proceedings of Indian children under § 1911(b). M.E.M. at 336, 635 

P.2d at 1317. This @#best interests of the childM test should not 

be confused with the "best interests of the childN test applied 

under 5 40-4-212, MCA, in custody determinations between parents 

in a dissolution. It should also not be confused with the criteria 

used to determine child abuse, neglect, and dependency and to 

terminate parent-child legal relationships under Title 41, Chapter 

3, MCA. 

In Indian child cases such as this, the first step is to 

determine the 5 1911(b) jurisdiction issue by applying the "best 

interests of the child" test and considering the BIA Guidelines to 

determine good cause. M.E.M. at 336, 635 P.2d at 1317. The next 

step is to hold a temporary dispositional hearing under 5 41-3- 

404, MCA, and a dispositional hearing under 5 41-3-406, MCA, to 

determine whether the child is abused, neglected or is a dependent 

youth. These proceedings require the appointment of a guardian ad 

litem under 5 41-3-303, MCA, to represent the child's interests. 

The final step under Title 41, Chapter 3, is for the court to 

determine whether the parent-child legal relationship should be 
terminated under the criteria listed in 3 41-3-609, MCA. This 

stage of the proceedings also requires the appointment under 3 41- 

3-607(3), MCA, of a guardian ad litem to represent the child's best 

interests. 

In this case the proceedings are still at the jurisdictional 

level and the District Court properly applied the jurisdictional 

"best interests of the childn test and considered the BIA 

Guidelines. 

The uncontroverted evidence at the hearing in this case 

strongly indicates that any transfer of T.S. from her present 

environment would lldevastatell the child and would have long-term 

harmful effects upon her. This is the longest, most stable and 

protected environment she has ever known. The District Court 

properly considered the only loving environment T.S. has ever known 

in its application of the best interests test. She resides in a 

home where the mother is Native American and fully capable and 

willing to teach T. S. about her Indian heritage. T. S. has adapted 

to her home and the family desires to adopt her as soon as 

possible. 

The Tribe argues that there is a profound difference between 

the culture of the Eskimo and the Indian culture of the foster 

mother and that difference makes it in T.S.'s best interests that 

jurisdiction be transferred. In essence the Tribe argues that 9 

1915 of the ICWA presumes that it is in the best interests of T.S. 

that jurisdiction be transferred. 25 U.S.C. 38 1915, 1303 (1) 

(iii) , (iv) . Section 1915 (b) suggests preferential foster care 
placement of an Indian child. That section states: 

(b) Foster care or preadoptive placements; criteria; 

preferences 

Any child accepted for foster care or preadoptive 

placement shall be placed in the least restrictive 

setting which most approximates a family and in which his 

special needs, if any, may be met. The child shall also 

be placed within reasonable proximity to his or her home, 

taking into account any special needs of the child. In 

any foster care or preadoptive placement, a preference 

shall be given, in the absence of good cause to the 

contrary, to a placement with-- 

(i) a member of the Indian child's extended family; 

(ii) a foster home licensed, approved, or specified 

by the Indian child's tribe; 

(iii) an Indian foster home licensed or approved by 

an authorized non-Indian licensing authority; or 

(iv) an institution for children approved by an 

Indian tribe or operated by an Indian organization which 

has a program suitable to meet the Indian child's needs. 

In this case T. S. Is maternal grandmother is unable to provide a 

home for T.S. and there are no other available family members known 

to the court. The Department of Family Services has made a good 

faith attempt to comply with the recommended preferential treatment 

by placing T.S. in a foster home within reasonable proximity to the 

child's home in Fergus County and with an Indian foster mother who 

is fully capable and willing to teach T.S. about her Indian 

heritage. This Court notes that at the time of the placement, 

Fergus County was the child's home. Mother did not move to Alaska 

until after the child was placed in the temporary foster home 

pending temporary investigative authority and protective 

proceedings under 5 41-3-402, MCA. The Tribe has not had contact 

with T.S. and never shown any interest or concern for the living 

conditions that T.S. has been subjected to. The Tribe insists that 

it has had contact with T.S. and her Mother and also insists it has 
not intervened in T.S.'s behalf because it did not know of T.S.'s 

plight. The Tribe cannot have it both ways. There was no evidence 

in the record to indicate the Tribe has had any contact with T.S. 

or her Mother until it received notice of the pending matter in 

Montana courts. The District Court pointed out: 

. . . it is obvious from testimony adduced at the hearing 

and the record that the Tribe showed little or no 

interest in [T.S.] and [her mother] prior to this action 

being filed. There is a long and sad history of abuse 

and neglect of [T. S. ] in the State of Alaska. There was 

also Social Service involvement with this family in 

Alaska with no intervention or help for [T.S.] by the 

Tribe. 

The District Court correctly concluded that it was not in the 

child's best interest to remove her from the only stable, loving 

home she had known and send her to an isolated community with which 

she had never had previous contact. The Tribe claims there has 

been an intentional delay resulting in a greater period in which 

bonding has occurred in the foster home, thus suggesting that the 

failure to immediately transfer jurisdiction has been improper. 

The record does not demonstrate any intentional delay. The record 

does demonstrate careful examination by both the Department and the 

District Court and a vital and proper concern for this Indian child 

who has been abused for the greater part of her life. While it is 

true that Mother has joined the Tribe's request for transfer, the 

evidence unfortunately shows Mother to be unable to adequately 

protect and care for this child. We note that the Tribe submitted 

no factual basis to allow the District Court to find under the BIA 

Guidelines or under the best interests of the child test other than 
that it is in the child's best interests that jurisdiction remain 

in Montana. We detect nothing in the proceedings to indicate 

animosity or lack of respect for the Tribe. Concern for the best 

interests of the child has been the motivating force for both the 

Department and the District Court. 

Under the Guidelines the District Court determined that 

subsection (b) (iii) applies, which states that good cause not to 

transfer exists if the evidence necessary to decide the case could 

not be adequately presented to the court without undue hardship to 

the parties or the witnesses. 44 Fed.Reg. 67591 (1979). The 

witnesses and evidence upon which the Department of Family Sewices 

action was filed are all located in Montana. The District Court 

concluded that it would constitute an undue hardship if the parties 

and witnesses were required to travel from Montana in order to 

appear in Tribal Court in Alaska. We conclude there is substantial 

evidence to support that conclusion. 

The Tribe argues that the court has overlooked the 

recommendation of the Department's Indian Child Welfare Specialist 

concerning transfer of jurisdiction. The Specialist's testimony 

was not presented at the jurisdictional hearing. The Tribe 

attempted to bring in the Specialist's recommendation through a 

post-hearing motion to reconsider on grounds of new evidence. No 

evidence was presented in the subsequent hearing on the motion to 

reconsider to show that the Specialist's testimony was unavailable 

at the time of the jurisdictional hearing, and therefore the 

evidence is not properly before the Court. In addition, cross 
examination of the Specialist at the hearing on the motion for 

rehearing, revealed that the Specialist had reviewed some 

unidentified file material but not the entire file or the 

transcript of the jurisdictional hearing. No evidence indicated 

the Specialist had interviewed T.S., her mother, or the foster 

parents. Without a proper foundation to support the Specialist's 

recommendation, the court would have properly not considered the 

Specialist's recommendation when applying the best interests of the 

child test had the evidence been properly before the court. The 

court correctly denied the motion for reconsideration and properly 

disregarded the Specialist's recommendation. 

The Tribe argues that a 1989 United States Supreme Court 

ruling mandates transfer of jurisdiction. Mississippi Band of 

Choctaw Indians v. Holyfield, No. 87-980, slip op. (U.S.Sup.Ct., 

Apr. 3, 1989) . Holyf ield was a 5 1911 (a) case that dealt with the 

definition of wdomiciled." Because T.S. had not been domiciled on 

the tribal reservation in Alaska, we agree with the conclusion of 

the District Court that 5 1911(a) and Holyfield do not control. 

There is a valid distinction between a 5 1911(b) case such as we 

have here and a 5 1911(a) case such as Holyfield. When the child 

has been domiciled on the reservation and has significant contacts 

with the Tribe it is reasonable to assume that jurisdiction should 

be transferred to the Tribe. In this case we have the opposite 

circumstances which 5 1911(b) is meant to address. T.S. has never 

lived on the reservation, is not a member of the Tribe and has 

never had any contact whatsoever with the Tribe. The record 
demonstrates a total absence of evidence demonstrating that it is 

in T.S.'s best interests that jurisdiction be transferred to the 

Tribe. 

We hold that the District Court did not err in determining 

that the best interests of T.S. and undue hardship on parties and 

witnesses constitutes good cause not to transfer jurisdiction. 

I1 

Did the District Court err when it failed to remove the 

guardian ad litem from the case when the guardian ad litem 

expressed misgivings about the ICWA? 

The Tribe did not request the removal of the guardian ad 

litem and may not now predicate error on the District Court's 

failure to take such action. In addition, the District Court 

admonished the guardian ad litem that his thoughts on the ICWA 

were irrelevant and would be treated as such by the court. We hold 

the District Court did not err by failing to remove the guardian 

Affirmed. 

We Concur: -/-- 

Justice John C. Sheehy, dissenting: 

It is improper and somewhat patronizing to assume that since 

the child is now placed with an Indian mother, though of a 

different tribe and territory, that the purpose of the Indian Child 

Welfare Act is fulfilled, and good cause shown for not assenting 

to the jurisdiction of the Eskimo tribe. 

The very purpose of the Indian Child Welfare Act was to enable 

the several tribes to maintain their individuality and their 

cultures in a mobile and fast-changing national society. I daresay 

without investigation that the culture, mores, religious beliefs 

and mode of life is substantially different between the Eskimo 

tribe of the King Island Native Community and the Plains Indian 

Tribe to which the foster mother presumably belongs. The majority 

has determined "best interest" of the child lacking even a smidgeon 

of information of what the King Island Native Community has to 

offer. I would hold that the Eskimo tribe has a right to reach out 

and touch us where eligible members of the Eskimo tribe are 

concerned. One thing is certain: the culture of the Eskimos will 

not be preserved or prolonged in Montana. I believe you have to 

start with whale and seal meat, and the derivatives of these 

creatures, that made Eskimo life uniquely possible. 

I would transfer jurisdiction to the Tribal Court of the 

Eskimo tribe. n 

/I I I 

Justice (1