### No. 81-107 IN THE SUPREME COURT OF THE STATE OF MONTANA 1981

IN RE THEMARRIAGE OF RAYMOND S. LIMPY, Petitioner and Respondent, and JUDITH ROSE LIMPY, 

### Respondent and Appellant.

Appeal from: District Court of the Thirteenth JudicialDistrict, In and for the County of Big Horn. Honorable Diane G. Barz,Judge presiding. Counsel of 

### Record: ForAppellant: D. Michael Eakin argued, Legal Services,Miles City,Montana Steven Bunch argued, Legal Services, Helena,Montana For Respondent: ClarenceT. Belue argued,Hardin,Montana

Submitted: September 15, 1981 Decided: November 12, 1981 Filed:

# ov 1

?

## 1981 

# % 

# 9.

ClerkMr. Chief Justice Frank I. Haswell delivered the Opinion of the Court. The question presented in this case is whether a state District Court in Montana has subject

### matter and personal jurisdiction over a marriage dissolution action inwhich both parents and the minor child 

### are enrolled members of theNorthern Cheyenne Tribe residing on theNorthern Cheyenne Indian Reservation. The District Court held it had jurisdiction. 

### We reverse. Judith Rose Limpy and Raymond Limpy 

### are enrolled members of theNorthern Cheyenne ~ribe.They 

### were married on ~pril 15, 1980, inHardin, Montana, which is located outside the exterior boundaries of the Northern Cheyenne Indian Reservation. The minor child of the parties, Robbie Ray Limpy, and hisparents all reside within the exteriorboundaries of the Reservation. On September 10, 1980, Raymond ~impy filed a petition seeking dissolution of the marriage and custodyof the minor child in the District Court of Big Horn County. Judith Rose Limpy was served with process within the Reservation and signed

an acknowledgement of service. The case came on for trial on October 28 and thereafter the court ordered 

### a home studymade by

a social worker 

### of Rosebud County, Montana, who recommended both parents as fitand proper custodians of the minor child. Custody of the minor child 

### was awarded 

### to Raymond Limpy by a decree of the District Court, dated March 2, 1981. Judith Rose Limpy filed a notice of appeal from the District Court's decree raising the sole issue of subject 

### matter and personal jurisdiction of the 

### stateDistrict Court. Appellant wife contends that under the three-part test of Stateex rel. Iron Bear v. District Court (1973)r 162Mont. 335, 512 P.2d 1292, the Statemay not exercise subjectmatter jurisdictionover domestic relations cases involving Tribal members residing on the Reservation because (1)control of domestic 

### relations 

### is an aspect of sovereignty not withdrawn by treaty 

### or statute, and (2)exercise of State jurisdiction over domesticrelations of Reservation residents is an interference with Tribal self-government. The Tribal Court has exercised jurisdiction in likecases in such a manner as to preempt State jurisdiction. Appellant wife alsomaintains that the doctrine of abstention should be followed in domestic relations cases and that this Court should defer to the advisory opinion of the Northern Cheyenne Appellate Court inWolfblackv. Wolfblack issued June 7, 1979, because it 

### is theNorthern Cheyenne Appellate Court's interpretation of Tribal law. Appellant wife alsomaintains that the StateDistrict Court lacked inpersonam jurisdiction over her and the minor child because the necessaryminimum contacts 

### were not present. Respondent husband, on the other hand, argues thatour decision in Bad Horse v. Bad Horse (1974), 163Mont. 445, 517 p.2d 893, holding that the Statecourt had subject

### matter jurisdiction is dispositive of thiscase. He argues that the only factdistinguishing this case from 

### -- Bad Horse is the subsequent advisory opinion of theNorthern Cheyenne Appellate Court which he argues should not be followed because the Tribal Court has usurped legislativepowers reserved to the Tribal Council by the Northern Cheyenne Constitution. By way of background to our discussion a summary of the advisoryopinion of the Northern Cheyenne Court is necessary. A dissolution of marriage action was initiated by Oran Wolfblack in the Rosebud County ~istrict Court in 1979. Josephine Wolfblack then.filed a petition for dissolution of marriage in the Northern Cheyenne Tribal Court. She appeared inthe StateDistrict Court and moved todismiss that action for lackof jurisdiction. The StateDistrict Court certified the following question to the Northern Cheyenne Appellate Court: "Do Montana District Courts have jurisdiction overmembers of theNorthern Cheyenne Tribe, residingwithin the boundaries of that reservation, in actions to dissolve marriages?"The Tribal Court issued its advisory opinion on June 7, 1979, concluding that the Tribal Court has exclusive jurisdiction over divorce actions between Indians living on the Northern Cheyenne Reservation. The Tribal Court reviewed the Tribal Code and found that jurisdiction over divorces 

### was granted to the Tribal Court by Chapter 11, Section 1, which provides: "The Tribal Court of theNorthern Cheyenne Reservation shallhave jurisdiction of 

### all suits wherein the defendant is a member of the Northern Cheyenne Tribe of the Northern Cheyenne Indian Reservation or subject to the Jurisdictionof this court

# .. .I1 The Tribal Court further determined thatMontana 

### lawwas to be applied by theTribal Court tomarriage and divorce 

### cases according to Chapter 111, Section 1of the Tribal Code. The TribalCourt found that any other interpretation of the Tribal Code would conflict with the Tribal Constitution which gives the Tribe the power 

### to regulate the domestic relations of its members. Any purported cessionof jurisdiction by the Tribe 

### to the Statewould violate the Tribal Constitution and the federal statutescontrollingjurisdiction, according to the citingpublic Law 280 and the Indian CivilRights Ac S 1321etseq. The advisoryopinion 

### also discusses the history of the TribalCode, public policy, and 

### -- Bad Horse. We apply the three-part 

### test of Stateex rel. Iron Bear v. District Court, supra. Montana has not obtained jurisdiction over theNorthern Cheyenne Tribe under the appropriate Acts of Congress, eitherPublic Law 280 or its successor, the Indian CivilRights Act of 1968, 25 U.S.C. 5 1321et seq. Fisher v. ~istrict Court (1976)

## ,424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106. While it is not clear, in the lightof Fisher, whether the United StatesSupreme Court would determine that a Tribal enactment prior to 1953 which purports 

### to cede jurisdiction to the State, as 

### is the case here, would be defeated by public Law 280or the Indian Civil Rights Act of 1968. Accordingly, we follow

ourprevious determination in Iron Bear that State jurisdiction 

### -- granted by the Tribe prior to 1953remains unaffected by those federal statutes until such time as the United States Supreme Court speaks on the subject. Is the exercise of Statejurisdiction over domestic relations of Reservation residents an interference with Tribal self-government? We apply the doctrine of abstention as

### we did inStateex rel. Stewart v. District Court (1980), Mont. I 

# ,-(JYI 609 P.2d &l, 37 St.Rep. 635. Accordingly, 

### we defer to the advisoryopinion of Northern Cheyenne Appellate Court holding that the Tribal Court has exclusivejurisdiction over dissolution of marriage actions arising between members of the Tribe residing within the Reservation. We defer 

### to thatopinion on the basisof comity believing that the Tribal Court should interpretTribal lawas a matter of policy and that Statecourts should abstain from interpreting Tribal law to the contrary incases where the Tribal Court has spoken on the subject. Our 1974 

### -- Bad Horse decision is expressly overruled since the Northern Cheyenne Appellate Court advisory opinion has now interpreted Tribal law to the contrary. Although the TribalCourt has not attempted to exercise jurisdiction in thiscase, it has exercised jurisdiction in like

cases indicating a disposition to preempt Statejurisdiction. This Court has been assured by the attorney forLegal Services that the Tribal Court of the Northern Cheyenne Tribe is functioning in this area and thus providing a forum for tribal members to adjudicate domestic relations disputes so no vacuum exists in the jurisdiction of the Tribal Court in domestic relations cases. No reason exists as a

### matter of policy why this Court should assume jurisdiction to the exclusion of the Tribal Court. If there 

### were no Tribal forum, it is difficult 

### to see how the exercise of jurisdiction by a Statecourt would infringe onTribal self-government. See Sherick, State Jurisdiction Over Indians as a Subject of Federal Common Law: The InfringementPreemption Test (1979), 21Ariz.L.Rev. 85. This is essentially the same conclusion reached by this Court inLittleHorn State Bank v. Stops (1976), 170Mont. 510, 555 P.2d 211, where the Crow Tribe had provided no means of enforcing a StateCourt judgment and until it did there would be no interference with Tribal selfgovernment by the exercise of State jurisdiction in that area. Inview of our holding on subject

### matter jurisdiction, 

### we need not reach the question of personal jurisdiction over Judith Rose Limpy and the minor child. In summary, we have applied the doctrineof abstention as

a matter of comity with the Northern Cheyenne Tribe. Sound public policyrequires that the Tribal Courts should have the jurisdiction to interpret theirTribal Constitution and Tribal lawwhere the IndianTribe has established a functioning forum for themselves to ad judicate controversies a£fect ing the custody of their children. There is no basis for the State to assume jurisdiction that would interf

### ere with Tribal self-government. The judgment of the District Court is reversed and the

cause remanded to that court with directions to enterjudgment in accordance with thisopinion.

Chief Justice

We conc