No. 81-107 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1981 

IN RE THE MARRIAGE OF 

RAYMOND S. LIMPY, 

Petitioner and Respondent, 

and 

JUDITH ROSE LIMPY, 

Respondent and Appellant. 

Appeal from: District Court of the Thirteenth Judicial District, 

In and for the County of Big Horn. 

Honorable Diane G. Barz, Judge presiding. 

Counsel of Record: 

For Appellant: 

D. Michael Eakin argued, Legal Services, Miles City, Montana 

Steven Bunch argued, Legal Services, Helena, Montana 

For Respondent: 

Clarence T. Belue argued, Hardin, Montana 

Submitted: September 15, 1981 

Decided: November 12, 1981 

Filed: ov 1 ? 1981 

% 9. 

Clerk 
Mr. 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 in which both parents 

and the minor child are enrolled members of the Northern Cheyenne 

Tribe residing on the Northern Cheyenne Indian Reservation. The 

District Court held it had jurisdiction. We reverse. 

Judith Rose Limpy and Raymond Limpy are enrolled members 

of the Northern Cheyenne ~ribe. They were married on ~pril 15, 

1980, in Hardin, Montana, which is located outside the exterior 

boundaries of the Northern Cheyenne Indian Reservation. The 

minor child of the parties, Robbie Ray Limpy, and his parents all 

reside within the exterior boundaries of the Reservation. 

On September 10, 1980, Raymond ~impy filed a petition 

seeking dissolution of the marriage and custody of 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 study made by 

a social worker of Rosebud County, Montana, who recommended both 

parents as fit and 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 state District Court. 

Appellant wife contends that under the three-part test of 

State ex rel. Iron Bear v. District Court (1973)r 162 Mont. 335, 

512 P.2d 1292, the State may not exercise subject matter jurisdiction over 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 domestic 
relations of Reservation residents is an interference with Tribal 

self-government. The Tribal Court has exercised jurisdiction in 

like cases in such a manner as to preempt State jurisdiction. 

Appellant wife also maintains 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 in Wolfblack v. Wolfblack issued June 7, 

1979, because it is the Northern Cheyenne Appellate Court's 

interpretation of Tribal law. 

Appellant wife also maintains that the State District 

Court lacked in personam jurisdiction over her and the minor 

child because the necessary minimum contacts were not present. 

Respondent husband, on the other hand, argues that our 

decision in Bad Horse v. Bad Horse (1974), 163 Mont. 445, 517 

p.2d 893, holding that the State court had subject matter jurisdiction is dispositive of this case. He argues that the only 

fact distinguishing this case from -- Bad Horse is the subsequent 

advisory opinion of the Northern Cheyenne Appellate Court which 

he argues should not be followed because the Tribal Court has 

usurped legislative powers reserved to the Tribal Council by the 

Northern Cheyenne Constitution. 

By way of background to our discussion a summary of the 

advisory opinion 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 in the State District Court 

and moved to dismiss that action for lack of jurisdiction. The 

State District Court certified the following question to the 

Northern Cheyenne Appellate Court : 

"Do Montana District Courts have jurisdiction 

over members of the Northern Cheyenne Tribe, 

residing within 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 the Northern Cheyenne 

Reservation shall have 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 

Jurisdiction of this court . . .I1 

The Tribal Court further determined that Montana law was to be 

applied by the Tribal Court to marriage and divorce cases 

according to Chapter 111, Section 1 of the Tribal Code. The 

Tribal Court 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 cession of jurisdiction by the Tribe to 

the State would violate the Tribal Constitution and the federal 

statutes controlling jurisdiction, according to the 

citing public Law 280 and the Indian Civil Rights Ac 

S 1321 et seq. The advisory opinion also discusses the history 

of the Tribal Code, public policy, and -- Bad Horse. 

We apply the three-part test of State ex rel. Iron Bear v. 

District Court, supra. Montana has not obtained jurisdiction 

over the Northern Cheyenne Tribe under the appropriate Acts of 

Congress, either Public Law 280 or its successor, the Indian 

Civil Rights Act of 1968, 25 U.S.C. 5 1321 et 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 light of Fisher, whether the 

United States Supreme 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 280 
or the Indian Civil Rights Act of 1968. Accordingly, we follow 

our previous determination in -- Iron Bear that State jurisdiction 

granted by the Tribe prior to 1953 remains unaffected by those 

federal statutes until such time as the United States Supreme 

Court speaks on the subject. 

Is the exercise of State jurisdiction over domestic relations of Reservation residents an interf erence with Tribal 

self-government? We apply the doctrine of abstention as we did 

in State ex rel. Stewart v. District Court (1980), Mont. I 

,- (JYI 

609 P.2d &l, 37 St.Rep. 635. Accordingly, we defer to the advisory opinion of Northern Cheyenne Appellate Court holding that 

the Tribal Court has exclusive jurisdiction over dissolution of 

marriage actions arising be tween members of the Tribe residing 

within the Reservation. We defer to that opinion on the basis of 

comity believing that the Tribal Court should interpret Tribal 

law as a matter of policy and that State courts should abstain 

from interpreting Tribal law to the contrary in cases 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 Tribal Court has not attempted to exercise 

jurisdiction in this case, it has exercised jurisdiction in like 

cases indicating a disposition to preempt State jurisdiction. 

This Court has been assured by the attorney for Legal 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 State court would infringe on 
Tribal self-government. See Sherick, State Jurisdiction Over 

Indians as a Subject of Federal Common Law: The InfringementPreemption Test (1979), 21 Ariz. L.Rev. 85. This is essentially 

the same conclusion reached by this Court in Little Horn State 

Bank v. Stops (1976), 170 Mont. 510, 555 P.2d 211, where the Crow 

Tribe had provided no means of enforcing a State Court judgment 

and until it did there would be no interference with Tribal selfgovernment by the exercise of State jurisdiction in that area. 

In view 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 doctrine of abstention as 

a matter of comity with the Northern Cheyenne Tribe. Sound 

public policy requires that the Tribal Courts should have the 

jurisdiction to interpret their Tribal Constitution and Tribal 

law where the Indian Tribe has established a functioning forum 

for themselves to ad j udicate controversies a£ fect ing the custody 

of their children. There is no basis for the State to assume 

j urisdiction 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 enter judgment in 

accordance with this opinion. 

Chief Justice 

We conc