No. 14885 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1980 

IN THE MATTER OF THE APPLICATION GF 

IRENE BERTELSON ON BEHALF OF LYNNETTE 

STANLEY FOR A WRIT OF HABEAS CORPUS. 

ORIGINAL PROCEEIIING: 

Counsel of Record: 

For Appellant: 

Francis X. Lamehull argued, Harlem, Montana 

For Respondent: 

Richard Ganulin argued, Great Falls, Montana 

Submitted8 December 10, 1979 

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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In response, the mother on April 17, 1979, filed a petition 

in Hill County District Court for a writ of habeas corpus. 

The District Court held a show cause hearing on the writ on 

April 30, 1979. 

The record before us consists solely of the District 

Court file (with nothing of any help to us) and the transcript 

of the April 30, 1979 show cause hearing held to compel the 

Stanleys to show cause why they should not be required to 

return the daughter to Irene Bertelson, the mother. At hearing, 

the trial court was told of the Stanleys' inability to 

procure counsel. The hearing continued nonetheless. Bertelson 

presented evidence in support of her petition. The Stanleys 

did not cross-examine Bertelson nor did they present evidence 

in their own behalf. The trial court then continued the 

hearing until such time as it could rule on a request by the 

Stanleys for the appointment of counsel. 

On May 1, 1979, the trial court issued an order stating 

that the grandparents were not entitled to the appointment 

of counsel and that the hearing would resume on May 9, 1979 

to permit the Stanleys to respond further to Bertelson's 

petition. But the May 9 hearing never took place. The Court 

deemed the matter submitted on briefs. It is from this 

sparce record that the trial court entered its order commanding 

the Stanleys to return their grandchild to her mother. 

In its order, of June 7, 1979, the trial court made 

three basic conclusions of law: (1) the Indian Child 

Welfare Act, 25 U.S.C. S1901, et seq., did not apply; (2) 

the District Court, and not the tribal court had jurisdiction; 

and, (3) the mother was entitled to custody of the child. 

In reaching its decision, the trial court set forth neither 

the controlling facts nor the applicable law. In short, we 

-4- 
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 jurisdictional 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, - as amended, 25 U.S.C. 

SS 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 

-5- 
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. 

- See, United States v. Mazurie, supra; Fisher v. District 

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; - see, De Coteau v. District County 

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 jurisdiction in this matter. The test which the United States 

-6- 
Supreme Court set forth in Williams was whether in litigation 

arising -- out of conduct on -- an Indian reservation and in the 

absence of a governing federal law, state jurisdiction 

"infringed" on the right of the Indian tribe to be selfgoverning. 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 institutions 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 contention 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. 

-8- 
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. - See, e.g., Koster v. Lumbermens 

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. - See, e.g., Herbst v. Able 

(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 consideration, obviously the interest of the jurisdiction where the 

- 9- 
child is physically present, or where the child is domiciled 

must be considered. - See Restatement (Second) of Conflict of 

Laws 579, Comment a (1971). A possible change in the relationship 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 

-10- 
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 jurisdiction 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 -- THE CHILD 

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. - See, e.g., In Re Duryea 

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 residence 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 -- THE CHILD AS -- THE BASIS OF - JURISDICTION: 

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 jurisdictional 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 

-14- 
sovereign, on the other, means in the context of a particular dispute between tribal and state jurisdiction. In 

Wisconsin Potowatomies, supra, the Court stated the essential 

query : 

"If then, Indians are to be accorded such independence 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 accomplished." 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. - Lee, supra, held that states were permitted 

to act only "where essential tribal relations were not involved 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 

-17- 
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 determination 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. 

-18- 
Conley, supra, 166 Mont. at 375, 533 P.2d at 958; Burns v. 

Groshelle (1957), 131 Mont. 1, 6, 306 P.2d 675, 677-678; 

Wells v. Stranger (1949), 123 Mont. 26, 33, 207 P.2d 549, 

552; Veach v. Veach (1948), 122 Mont. 47, 53, 195 P.2d 697, 

700; In Re Thompson, supra, 77 Mont. at 475-476, 251 P. at 

166. Thus, habeas corpus is merely a procedural device to 

bring custody matters before the court. Smart v. Cantor 

(1977), 117 Ariz. 539, 574 P.2d 27, 29. 

We vacate the judgment of the District Court and remand 

this case to the District Court for further proceedings in 

accordance with this opinion. Our previous opinion in this 

case (In the Matter of Bertelson, Cause No. 14885, decided 

June 4, 1980) is withdrawn. 

Jus 

We Concur: 

Chief Justice 

Justices