NO. 82-239 

IN THE SUPREME COURT OF TEE STATE OF MONTANA 

1983 

IN THE MATTER OF : G. L. 0. C, T. J .X. , et al. , Youth in Xeed of Care. 

APPEAL FROM: District Court of the Thirteenth Judicial District, 

In and for the County of Yellowstone, 

The Honorable Diane G. Barz, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

Megan Combs & D. Michael Eakin argued, Billings, 

Montana 

For Respondent: 

Urban J. Bear Don't Walk, Billings, Montana 

Harold F. Hanser argued, County Attorney, 

Billings, Montana 

Submitted: April 22, 1983 

Decided: August 13, 1983 

Filed: A liG 1 3 1983 

P 

Clerk 
Mr. Justice Daniel J. Shea delivered the Opinion of the 

Court. 

The father of the children involved in this proceeding, 

a non-Indian, appeals an order of the Yellowstone County 

District Court that deprived him of the right to have a 

hearing and to have counsel before the cause was transferred 

to the Crow Indian Tribal Court under the provisions of the 

Indian Child Welfare Act, 25 U.S.C. § 1901, et seq. Before 

the District Court ordered the transfer pursuant to the Crow 

Tribe petition, the father had filed a request for 

appointment of counsel because he was indigent. The father, 

at the same time, did not expressly declare he would contest 

the transfer of the children to the jurisdiction of the Crow 

Tribe. Without acting on the father's request for counsel, 

the court simply ordered the transfer. The father, through 

the Yellowstone County Legal Services, filed a request for 

reconsideration. The trial court denied this, however, on 

the ground that it was too late to do anything about it--the 

court had already entered the transfer order. The Crow 

Tribe, however, did not actually take custody of the 

children. The children are still in the care of a foster 

home in Yellowstone County pending the outcome of this 

appeal. The father, after the District Court refused to 

reconsider its transfer order, filed an appeal to this Court. 

The father raises two issues. First, the father argues 

that the trial court erred in transferring the proceeding to 

Crow Tribal Court without giving him an adequate opportunity 

to be heard. Second, the father argues the trial court erred 

by failing to appoint counsel for him. We vacate the 
transfer order and remand to the District Court for further 

proceedings. 

After the trial court had entered its transfer order, 

and before it had acted on the father's request for 

reconsideration, the Yellowstone County Attorney's office 

urged the court to deny the father's request. The brief of 

the county attorney also takes this position. However, in 

oral argument, the Yellowstone County Attorney backed away 

from this position and simply took the position that the 

trial courts need guidance in this area and agreed that 

appointment of counsel was necessary for one to effectively 

assert his legal rights. The Crow Tribe, which did not 

appear for oral argument, argues in its brief that because 

the father did not actually object to the transfer, the trial 

court had a duty to transfer the matter to the tribe. On the 

counsel issue, the Crow Tribe argues that because the action 

in the trial court did not involve an action for removal, 

placement, or termination of parental rights, appointment of 

counsel was not required. 

We reverse the trial court and hold that before the 

trial court could transfer jurisdiction, a hearing was 

required. Further, because the request for appointment of 

counsel is so inextricably connected with asserting the 

rights of one who may object to a transfer, we hold that the 

trial court first had to determine whether the father was 

entitled to court-appointed counsel before it could proceed 

with a hearing and enter an order on the transfer question. 

The tragic backgrounds of these children's lives only 

emphasizes the need for procedural fairness in determining 

whether Indian children should be transferred to the 

jurisdiction of a tribe upon that tribe's removal request 
pursuant to the Indian Child Welfare Act. The procedural 

fairness was not granted here. 

The three children involved are aged 3, 7 and 8. All 

three children are enrolled members of the Crow Tribe. 

Before any legal action was started, they were living off the 

reservation with their mother who is a full-blooded Crow 

Indian. There is some question as to whether the father is 

actually the father of all three children, although that 

determination is not essential to our holding in this case. 

It is undisputed that he is the father of at least one of the 

children. The children's young lives are fraught with 

misfortune. 

While the young children were living with their mother, 

the father was in prison in Deer Lodge. After reports that 

the mother abused and neglected the children, the State of 

Montana filed a petition for temporary investigative 

authority on June 17, 1981, in District Court. The court 

granted the petition for 90 days, and on September 11, 1981, 

after the 90 day period had expired, the court placed the 

children in temporary foster care in Yellowstone County. 

They have been in temporary foster care ever since. 

Less than a month later, while the father was still in 

prison, the children's mother was murdered. The State then 

filed on October 9, 1981, a second petition for temporary 

investigative authority, and the children remained in a 

foster home. The father had by then been paroled from state 

prison and while he was at the Yellowstone County Sheriff's 

office, the State served him with a copy of the second 

petition for temporary investigative authority. The trial 

court granted this second petition and extended it twice. 
While these extensions were in effect, the father visited the 

children at the foster home from time to time. 

Later, acting in accordance with the Federal Indian 

Child Welfare Act of 1978 (25 U.S.C. S 1901, et seq.), the 

State notified the Crow Tribe of the Youths in Need of Care 

proceedings pending in the state District Court. A couple of 

months later, on April 6, 1982, the Crow Tribe responded by 

petitioning the state District Court for a transfer of the 

proceedings to Tribal Court pursuant to 25 U.S.C. § 1911 (b) 

of the Indian Child Welfare Act. The Tribe served copies of 

the petition on all attorneys of record and also served the 

father with a copy. 

On April 13, 1983, the father petitioned the District 

Court for appointment of counsel on the grounds that he was 

indigent. However, the court did not act on this petition. 

Rather, on April 14, 1982, without even acknowledging the 

father's petition or giving the father a chance to object to 

the transfer of jurisdiction, the court ordered a transfer of 

jurisdiction to the Crow Tribal Court. The father then 

obtained the services of Montana Legal Services and 

petitioned the court to reconsider its order on the grounds 

that he had not received adequate notice and had been unable 

to find an attorney to represent him. The court held a 

hearing, but on June 1, 1982, ruled that the transfer to Crow 

Tribal Court would remain in effect because the court had 

lost jurisdiction to reconsider its transfer decision. This 

appeal followed. 

We are at a loss in trying to understand why the trial 

court ignored our opinion in In Re the Matter of M.E.M. 

(19811, - Mont . - , 635 P.2d 1313, 38 St.Rep. 1895. There 

we held that the express language of the Indian Child Welfare 
Act requires appointment of counsel for an indigent parent or 

Indian custodian. The statute declares that: 

"In any case in which the court determines 

indigency, the parent or Indian custodian shall 

-- have the it to court-appointed counsel in any 

removal, place men^, or termination proceeding. The 

court may, in its discretion, appoint counsel for 

the child upon a finding that such appointment is 

in the best interest of the child . . . (Emphasis 

added.) 25 U.S.C. S 1912(b)." In the Matter of 

M.E.M., 635 P.2d at 1316, 38 St.Rep. at 1898. 

Based on this statute, we held that indigency status 

required appointment of counsel. M.E.M., 635 P.2d at 1317, 

38 St.Rep. at 1899. In requesting appointment of counsel 

based on indigency status, the father, along with his 

petition, filed an affidavit setting forth his indigency 

status. His status as an indigent was never questioned. Yet 

the trial court proceeded to rule as though the petition had 

never been filed. 

Nor can we understand how the trial court avoided a 

hearing on the question of whether jurisdiction should be 

turned over to the Crow Tribe. We also held in M.E.M., 635 

P.2d at 1317, 38 St.Rep. at 1900, that under the Indian Child 

Welfare Act, a jurisdictional hearing is required before the 

court can enter an order either granting or denying a request 

for the transfer of jurisdiction of Indian children to tribal 

custody. Such a hearing is required whenever the Indian 

children live outside of a reservation. Here no hearing was 

held, and the trial court simply entered an order 

transferring jurisdiction to Tribal Court. This order was in 

flat contravention of our holding in M.E.M. 

The trial court must have known that a hearing was 

required and appointment of counsel for an indigent was 

required--for the trial judge presiding here also presided in 

M.E.M. Nonetheless, the trial court proceeded in flat 
contravention of our holding in M.E.M. on the hearing 

requirement and on the appointment of counsel requirement. 

To avoid a hearing and the appointment of counsel to make 

that hearing meaningful by the expedient of transferring 

jurisdiction in an effort to divest itself of jurisdiction 

would defeat one of the purposes of the Indian Child Welfare 

Act--that of granting due process to those involved in the 

process. 

As we recognized in M.E.M., 635 P.2d at 1316, 38 St.Rep. 

1897, the Indian Child Welfare Act has an underlying thread 

of preventing the removal of Indian children from their 

Indian parents and culture. But that objective must be 

achieved in a manner that comports with due process for all 

those concerned. We cannot ignore here that at least one of 

the children, and perhaps all of them, have a mixed ancestry. 

The mother, who was Indian, was dead, but the father of at 

least one of the children, and possibly two of the children, 

was of Caucasion ancestry. He also claimed stepfather status 

of the third child. The father apparently wanted the state 

courts to retain jurisdiction. The children resided outside 

the reservation and may have been totally divorced from 

Indian culture and have established social and other ties 

completely divorced from tribal life. 

A transfer of jurisdiction to a Tribal Court, without 

giving a parent the right to object to a transfer of 

jurisdiction, may have the effect of plunging the children 

into circumstances that are traumatic or otherwise not in 

their best interest. That is precisely why a jurisdictional 

hearing is required before a transfer order is entered, and a 

hearing can in many instances be meaningless if an indigent 

parent is deprived of the right to have counsel appointed. 
Certainly one of the purposes of the Indian Child Welfare Act 

is to give due process to all those involved. There can be 

no due process where no hearing is held and a legitimate 

request for appointment of counsel is ignored. 

The order of the District Court is vacated, and this 

cause is remanded for proceedings consistent with this 

opinion. 

We Concur: