No. 13825 INTHE SUPREME COURT OF THE STATE OFMONTANA 

### 1975

STATE OF MONTANA, ex 

### re1 INTHE MATTER OF THE ADOPTION OF IVAN FIRECROW, 

### a minor

### by LEROY RUNSABOVE 

### and JOSEPHINE RUNSABOVE,

### Petitioners,

THE DISTRICT COURT OF THE SIXTEENTH JUDICIAL DISTRICT OF 

### THE STATE OF MONTANA, INAM) FOR THE COUNTY OF ROSEBUD; 

### and THE HONORABLE ALFRED Be COATE, JUDGE THEREOF, Respondents,

ORIGINAL PROCEEDING: Counsel

### of Record: 

### For Petitioners: Lewis E. Brueggemann, 

### argued, Rillirngs, Montana For Respondents

### : ClarenceT. Belue

### argued, Hardin, 

### Montana

Submitted: May 

### 14, 1975 Decided:

## JUk 2 -Mr. Justice Wesley Castles delivered the Opinion of the Court.

This isa petition fora 

### writ of supervisory control or other appropriatewrit seekingrelief from an order of the district court of the sixteenthjudicial district, Rosebud County, which held the district court had no jurisdiction in this adoption proceeding and ordered the case dismissed. On August 20, 1974, petitioners Leroy and Josephine Runsabove filed in the district court a petition for the adoption of Ivan Firecrow, a minor child, born May 10, 1965. Consent to the adoption and waiver of further notice, executed by thenatural father, was filedwith the petition for adoption. Petitioners, the child, and the natural mother are allenrolled members of the Northern Cheyenne Tribe and have resided on theNorthern Cheyenne Reservation a t a l ltimes pertinent to this matter. Previously, on July 

### 1, 1969, Ivan Firecrow was made a ward of theNorthern Cheyenne Tribal Court upon a finding that thenatural mother had neglected the child. An orderwas entered that day giving petitioners temporary custody of the child. They have had custody of the child since that time. On August 30, 1974, the tribal court ordered thenatural mother be granted temporary custody of the child for sixweeks during the summer months. Article 111, section

## 2Revised Law and Order Ordinances of theNorthern Cheyenne Tribe of theNorthern Cheyenne Reservation, reads, inpertinent part: "The Tribal Court of the Northern Cheyenne Reservation shallhave jurisdiction tohear, pass upon, and approve applications for adoptions among members of theNorthern Cheyenne Tribe.

It

Upon proper showing and decision by the court, such adoptions shallbe binding upon allconcerned and hereafter only adoptions so approved by the Tribal Court shallbe recognized."The district court held a hearing upon the petition for adoption on October 

### 11, 1974. Ivan was present atthe hearing, having come from Oregon where he attends school under the auspices of the Morman Church, during the school year. The natural mother objected to thehearing alleging the district court had no jurisdiction tohear and grant the petition for adoption and, that the matter was within the exclusivejurisdiction of the tribal court. Following submission of briefs on the issue of jurisdiction and receipt of an advisory opinion from the appellatecourt of the Northern Cheyenne Tribe, the district court issued its order holding that it had no jurisdiction over the adoption and ordered the case dismissed. We are presented with a single issue forreview: Whether, upon the facts outlined above, the district court has subject matter jurisdiction over the instant petition for adoption? We hold it does have such jurisdiction. ~ontana's statutesregarding adoption are in Chapter 2, Title 61, R.C.M. 1947. Section 61-202 reads:

I1Any child present within this stateatthe time the petition for adoption 

### is filed, irrespective of place of birth or place of residence, may be adopted.II Section 61-204 reads: "Proceedings foradoption must be brought in the district court of the county where the petitioners reside. II The statuteshave been complied with. Ivan was within Montana, athome with petitioners during summer vacation when the petition

was filed. Petitioners place of residence 

### is the town of Lame Deer, county of Rosebud, stateof Montana. While the residence of petitioners and Ivan 

### iswithin the exteriorboundaries of the Northern Cheyenne Reservation, that residence 

### is alsowithin the stateof Montana. Organized Village of Icake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 

### 7 L ed 2d 573.

### The Northern Cheyenne Tribe 

### is incorporated pursuant to theWheeler-Howard Act, 25 U.S.C. $ 

### 461et seq. It 

### is organized and existingunder a constitution and by-laws ratifiedby the tribe on November 2, 1935, and approved by the Secretary of the Interior on November 23, 1935. Prior to that time the courts of this statehad jurisdiction over adoption matters involving Indians. Stateex rel. Iron Bear v. District Court, 162Mont. 335, 512 P.2d 1292; Bad Horse v. Bad Horse, 163Mont. 445, 517 P.2d 893, 31 St.Rep'. 22. The jurisdiction of the courts of the stateof Montana isnot divested by the subsequent, unilateral action of the Northern Cheyenne Tribe in enacting Article 111, 

### section 2, of itsRevised Law and Order Ordinances, heretofore quoted. Assuming that the tribal court has jurisdiction over adoptions involving Indians, it 

### is a jurisdiction concurrent with that of the district court. It isnot an exclusivejurisdiction. The United States Congress has implicitly recognized that statecourts have concurrent jurisdiction over adoptions involving Indians in 25 U.S.C. § 

### 372a. The district court having always had jurisdiction over adoptions involving Indians, 25 U.S.C. 

### 5 1322 isnot applicable. This Court inBad Horse v. Bad Horse, 163Mont. 445, 517 P.2d 893, 895, 31 St.R.ep. 22, 25, stated: "~nrolled members of Indian tribeswithin Montana arecitizens of the United States and citizens of the stateof Montana. An Indian 

### isentitled, as any other citizen, tobring an action in the courts of this state. Art. 111, 

### Sec. 6, of the 1889Montana Constitution (Art. 11, 

### Sec. 16 of the 1972Montana Constitution); Section 83-102, 

### R.C.M. 1947; Bonnet v. 

### Seekins, 126Mont. 24, 243 P.2d 317." Compare McCrea v. Busch, 164Mont. 442, 524 P.2d 781, 31 St.Rep. 551, where an Indian sued a non-Indian in a statecourt for damages arising out of an accident on a reservation.Being citizens of the state of liontana, petitioners and Ivan are entitled to the equal protection of the laws. Article 11, Section 

### 4, 1972Montana Constitution. Petitioners

are entitled to theuse of Montana's court system on a par with other Montana citizens regardless of the fact that they are enrolled members of an Indian tribe and residewithin the exterior boundaries of that Indian reservation. Petitioners and Ivan are entitled to thebenefit of Montana's adoption statutes, as are allMontana citizens, regardless of the fact they are enrolled members of an Indian tribe and residewithin the exteriorboundaries of that Indian reservation. To hold that the district court does not have subject matter jurisdiction over this controversy would be to deprive petitioners and Ivan of these rights of citizenship. It would make them something less than fullcitizens. The order of the district court 

### isreversed and the matter isremanded for further proceedings consistent with this opinion.



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