No. 14885 INTHE SUPREME COURT OF THE STATE OF MONTANA 1980

INTHE MATTER OF THE APPLICATION GF IRENE BERTELSON ON BEHALF OF LYNNETTE STANLEY FOR A WRIT OF HABEAS CORPUS.

ORIGINAL PROCEEIIING:

Counselof Record: For Appellant:

Francis X. Lamehull argued, Harlem, Montana

For Respondent:

Richard Ganulin argued, GreatFalls, Montana

Submitted8 December 10, 1979 

## SEP ?

## %@ Decided: ,,

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 disputewas 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 invacating 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 undisputedmaterial facts before it, that the Chippewa Cree Tribal Court was a

more appropriate forum for settling the private custody disputepresented in this case, involving an Indian child and Indianparties. With respect to the allegations that this Court relied

on factsnot supportedby the record, each of the alleged

erroneous facts (withthe exception of one)were taken from appellant's brief,as theywere not refuted by the respondent in her own brief. The factual assertions by the Stanleys, that due to Irene Bertelson's neglect, her childrenhad been placed in foster care in Spokane and that shehad been in troublewith the police, were not disputed by Irene Bertelson in her brief. We, as an appellate court, are not required to ignore factualassertions that stand unrefuted. Cf., Lasky

v. American IndemnityCo. (1929),102Cal.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 statementmay not have any support. The Stanleys did not really participate -2-in either of the two hearings held in District Court,and it appears that a socialworker 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 grandmotherwent to Spokane where the mother was living and, with themother's consent, obtained physical custody of Lynette. Since that time, the child has been livingwith 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. -3-Inresponse, themother on April 17, 1979, fileda petition inHillCounty DistrictCourt for a writof habeas corpus. The DistrictCourt held a show cause hearing on thewriton April 30, 1979. The record before us consists solely of the District Court file (with nothing of any help tous) and the transcript of theApril 30, 1979 show causehearing held tocompel the Stanleys toshow causewhy they should not be required to return the daughter toIrene Bertelson, the mother. Athearing, the trialcourtwas told of the Stanleys' inability to procure counsel. The hearing continued nonetheless. Bertelson presented evidence insupport of her petition. The Stanleys didnot cross-examine Bertelson nor did they present evidence intheirown behalf. The trialcourt then continued the hearing until such timeas it could ruleon a request by the Stanleys forthe appointment of counsel. On May 1, 1979, the trial court issued an order stating that the grandparentswerenot entitledtothe appointment of counsel and thatthe hearing would resume on May 9, 1979 topermit the Stanleys torespond further toBertelson's petition. But theMay 9hearing never took place. The Court deemed thematter submitted on briefs. Itis from this sparce record that the trialcourt entered itsorder commanding the Stanleystoreturn their grandchild toher mother. In its order, of June 7, 1979, the trialcourtmade threebasic conclusions of law: (1) the Indian Child Welfare Act, 25 U.S.C. S1901, et seq., did not apply; (2) theDistrictCourt, and not the tribal court had jurisdiction; and, (3) themother was entitled tocustody of the child. In reaching its decision, the trial court set forthneither the controlling factsnor the applicable law. In short, we -4-do not knowhow 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 questionspresented 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 forthwhat we deem an appropriate test for determiningwhether 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 DistrictCourt order. They argue that the state cannotexercise subjectmatter jurisdiction

over this custody disputebecause: (1) the Chippewa Cree Constitution and its Law and Order Code, enacted by the Tribe pursuant to the IndianReorganizationAct 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 Statesv. 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 IndianChild 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 (ActofAug. 15, 1953, 67 Stat. 588-90) or Title IV of the 1968 Federal Indian Civil Rights Act (Actof 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 jurisdictionby delegating authority to the tribe in S16 of the Indian ReorganizationAct to enact a constitution and bylaws ismisplaced. 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 significantevents 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 statebut outside of the reservationboundaries, the statemay 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. 421U.S. 939, 95 S.Ct. 1667, 44 L.Ed.2d 95. Nor doesWilliams v. Lee, supra,prohibit state jurisdiction in thismatter. The testwhich the United States -6-Supreme Court set forth inWilliams 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 litigationmust thereforebe on the reservation before Williams need apply. As this Court held in its original opinion of June 

### 4, 1980, the dispute does not fallwithin 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 inwhich 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 childrenand to promote the stability and security of Indian tribes and familiesby 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 institutionswhich 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 "reflectthe unique values of Indian culture

# ..."Rather, the present case involves an internal family dispute between themother and the paternal grandparents over the custody of the child. We do agree with the Stanleys, however, in their contention that theprovisions of the Chippewa Cree Law and Order Code have not ceded jurisdictionover custodymatters to the State of Montana. The fact is 25 U.S.C. S1326 requires that a tribe hold an election to determine whether itsmembers would consent to the assumption of civil jurisdictionby 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),158Mont. 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 inActs of Congresswhich 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 ascertainhow the trial court reached its jurisdictional decision. It appears, however, it merely concluded that themother 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 jurisdictionwhere the issue is a choice between state and tribal jurisdiction. Otherwise, a finding of nonabandonment would invariablydefeat

a claimby 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),330U.S. 518, 527, 67 S.Ct. 828, 91L.Ed. 1067; Gulf Oil Corp. v. Gilbert (1947),330 U.S. 501, 507, 67 S.Ct. 839, 91L.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 ismore 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 federalpolicy 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 lawprinciples inmaking a final jurisdictional determination. Even though the welfare of the child is the primary consideration, obviously the interestof the jurisdictionwhere the



## -9-child isphysicallypresent, orwhere the child is domiciled must be considered. - See Restatement (Second)of Conflict of Laws 579, Comment a (1971). A possible change in the relationshipbetween parent and child is so important that the change should be made only by the jurisdictionwhich has significant ties and interests in the child and which will be best able to determine what the best interests of the child arewith regard to custody. H. Goodrich & E. Scoles, Conflict of Laws 271 (4thed. 1964). Writers in this field generally agree that any choice of law rules with regard to jurisdictionmust 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 themerits. R. Leflar,American Conflicts of Law 492 (3rd. ed. 1977); Restatement (Second)of Conflict of Laws 579,Comment a (1971); See Sampsellv. 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 (4thed. 1964). Inpersonam jurisdiction over the parents,physical presence of the childwithin 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 (9thCir. 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 courthas in personam jurisdictionover 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 ormore of these elements aremissing. 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, Sampsellv. Superior Ct., supra, 32 Cal.2d at 777-778, 197 P.2d at 749. I. PERSONALJURISDICTION In Cobell, supra, the courtheld that two enrolled members of the Blackfeet Tribe submitted the question of their children's custody to the judgment of the Montana state courtsby voluntarily invoking the state court's jurisdiction for divorcepurposes. Although the case has no precedential value in application to the present case, the court expressly recognized "thepossibility that two sovereigns may enjoy concurrent jurisdiction in a custody situation." The courtwent on to hold, however, that concurrent jurisdiction did not existbecause the Blackfeet Tribal Law and Order Code explicitly disclaimed jurisdiction overmarriage, divorce and adoption, and indeed explicitly deferred to state court jurisdiction forproceedings in those areas. 503 F.2d at 795. The court determined therefore that itwas facedwith neither a question of the appropriate choice of lawnor a question of the more convenient forum. Unlike Cobell, this case does not involve a continuing custody dispute between theparties to divorce proceedings. Rather,we are concerned herewith a dispute between a parent and the grandparents of the child. In short, this is not the type of factual situationordinarily dealt with under the continuing jurisdiction of divorce courts. -11-11. PRESENCEOF THE CHILD 

### -- The question thus remainswhether either "presence"or "domicile"by itself should be a sufficientbasis for the state's asserting jurisdictionover a child custodyproceeding where the tribe is also asserting jurisdiction. The basis judicial policy of protecting the child (the "parenspatriae" doctrine)has led several courts to indicate that jurisdiction can be based on the "substantialpresence" of the child within the state. 

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

E. Scoles, Conflict of Laws 272 (4thed. 1964). In Finlay

v. Finlay (1925),240

### N.Y. 429, 431, 148 N.E. 624, 625, JusticeCardozo explained the "parenspatriae" rationale: "The jurisdictionof a state to regulate the custody of infants foundwithin its territory does not depend upon the domicile of the parents. Ithas its origin in the protection that is due to the incompetent or helpless 

# ..

# . (Citationsomitted.) For this, the residence of the child suffices, though the domicile be elsewhere 

# . .. (Citationsomitted.)" 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 "dependentand 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 resultwould 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 theIndian 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 canbest protect the child and can best promote the child's welfare. Finlay

v. Finlay, supra. Although this assumptionmay be generally valid, in the context of an Indian child custody dispute, "it ignores the inherentbias ofanon-Indian society against Indian culture, and fails to protect the Indians' right of self-government." Note, 21Ariz.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, 21Ariz.L.Rev. 1123, 1133 (19'19) 

# . Furthermore, adherence to the "presence" testwill 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 courtby 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 jurisdictionunless the Indian child is domiciled off the reservation. InRe Adoption of Buehl (1976),87Wash.2d 649, 555 P.2d 1334;Wakefield v. Little Light (1975),276 Md. 333, 347A.2d 228, 238;Wisconsin Potowatomiesv. 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 significantprotection from losing its essential rights of child-rearing and maintenance of tribal identity." 276 Md. at 350, 347A.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 thereservation. 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 courtmust 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. (6Pet.) 515, developedwhat is essentially a three-part analysis to determine the extent of tribal sovereignty: (1)Indian tribes originally possessed the inherent sovereignty of any independentnation; (2) the sovereignty of the Indiannations was necessarily lessened after conquest and had to yield to conflicting plenary federal authority; and (3) Indian tribes now possess the

samemeasure 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, Indianswho reside off the reservation,as a general rule have the same rights and responsibilitiesand are subject to the jurisdiction of state courts in the samemanner 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 disputebetween tribal and state jurisdiction. In Wisconsin Potowatomies, supra, the Court stated the essential query: "If then, Indians are to be accorded such independence and sovereigntywithin the limits of their reservation,and if on the other hand, they subject themselves to the benefits and obligations of state lawwhen 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 lawwhich 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 "whereessential 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. InWakefield, supra, the Court held that child rearing is an "essential tribal relationwithin the Williams test." 276 Md. at 343, 347A.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 significantdevelopments 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 cannotbe translated into geographic terms. As theCourt stated inWisconsin Potowatomies v. Houston, supra: "If tribal sovereignty is to have any meaning at all at this juncture of history, itmust necessarily include the right,within its own boundaries and membership, to provide for the care and upbringing of its young, a-sinequa-non to the preservation of its identity." 393 F.Supp. at 730. An assumption of state court jurisdiction over Indian child custody disputesposes 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 jurisdictionbased 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 statemay 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 statemight, for example, appropriately take jurisdiction of a custody proceeding involving an Indian childwhose parents have raised him off the reservation without appreciable contactsto 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 inwhich 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 itsmembers and must record such inquiriesof 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, 40-4-107and 40-7-108, MCA. The choice of law principles--physical presence of the child, domicile and inpersonam 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 legalmatters 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 residenceboth on and off the reservation; the domicile and residenceof 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 isbetter 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 corpusproceeding involving child custody, an appellate courtmay 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, 361N.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 accordswith the general nature of habeas corpus actions in the child custody context. In this state,habeas corpusproceedings involving child custodymatters are essentially special proceedings of

a civilnature to enforceprivate 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 fromwhich an appeal lies. In Re Thompson (19261, 77 Mont. 466, 470, 251 P. 163, 164-165. Because habeas corpusproceedings 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 considerationby which the courtmust be guided. -18-Conley, supra, 166Mont. at 375, 533 P.2d at 958; Burns v. Groshelle (1957), 131Mont. 1, 6, 306 P.2d 675, 677-678; Wellsv. Stranger (1949), 123Mont. 26, 33, 207 P.2d 549, 552; Veach v. Veach (1948), 122Mont. 47, 53, 195P.2d 697, 700; In ReThompson, supra, 77 Mont. at475-476, 251 P. at 166. Thus, habeas corpus ismerely a procedural device to bring custodymatters before thecourt. Smart v. Cantor (1977), 117Ariz. 539, 574 P.2d 27, 29. Wevacate thejudgment of theDistrictCourt and remand thiscase totheDistrictCourt for furtherproceedings in accordancewith thisopinion. Our previous opinion inthis

case (IntheMatter of Bertelson, Cause No. 14885, decided June 4, 1980) iswithdrawn.

Jus WeConcur:

Chief Justice

Justices