No. 91-425 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1993 

IN RE THE MARRIAGE OF 

RAMONA MAE WELLMAN, 

Petitioner and Respondent, 

and 

ROBERT W. WELLMAN, 

Respondent and Appellant. 

APPEAL FROM: District Court of the Ninth Judicial District, 

In and for the County of Glacier, 

The Honorable R.D. McPhillips, Judge presiding. 

COUNSEL OF RECORD: 

For Appellant: 

James D. Moore; Moore & Doran, Kalispell 

Montana 

For Respondent: 

Emilie Loring; Hilley & Loring, Missoula 

Montana 

For Amicus: 

Brenda C. Desmond, Attorney at Law, Missoula, 

Montana; John St. Clair, Attorney at Law, Fort 

Washakie, Wyoming (Montana-Wyoming Tribal Court 

Judges Association) 

Submitted on Briefs: March 26, 1992 

Decided: May 4, 1993 
~ustice Karla M. Gray delivered the Opinion of the Court. 

This is an appeal from an order of the Ninth Judicial District 

Court, Glacier County, dismissing an action for equitable 

apportionment of a marital estate for lack of subject matter 

jurisdiction. We affirm. 

Ramona Mae Wellman (Ramona) and Robert W. Wellman (Robert) 

were married in Cardston, Alberta, in November 1951 and lived for 

the duration of their marriage on the Blackfeet Reservation near 

Browning, Montana. Ramona is a member of the Blackfeet Tribe; 

Robert is not an Indian. They have six children, all born before 

1960. The parties accumulated substantial real and personal 

property duringtheir marriage, including approximately 4,000 acres 

of Indian trust land with legal title in the United States and 

beneficial ownership in Ramona. 

In December 1979, Ramona filed a petition for dissolution in 

state district court, stating that the marriage was irretrievably 

broken. She did not ask the court to divide the marital assets. 

Robert responded in March 1980, seeking an equitable distribution 

of the real and personal property accumulated by the parties during 

their marriage or, if the property could not be equitably 

distributed, a monthly award for his support, care, and maintenance 

from the income produced from the property. 

The court issued a final decree of dissolution on November 18, 

1981, amended in December 1981 to state as a conclusion of law that 

the court had jurisdiction over the marital status. All other 

jurisdictional questions and all matters concerning support, 

2 
maintenance, and equitable distribution of property were reserved 

for later determination. 

A pre-trial conference on the reserved issues originally was 

set for January 20, 1982, but was vacated for the convenience of 

Robert's counsel. The court, apparently on its own initiative, reset the conference for October 17, 1984, but continued it so that 

Robert's counsel could complete discovery. Discovery efforts 

continued through 1987, and trial eventually was set for June 5, 

1990. 

On May 16, 1990, Ramona moved to dismiss on the grounds that 

the District Court lacked jurisdiction to apportion property and 

debts on the Blackfeet Reservation. On May 24, 1990, the court 

issued an order postponing the trial indefinitely; on May 29, after 

reviewing the file, it set the matter for trial on June 5, 1990, 

requesting briefs on the jurisdiction issue by June 4. 

On June 5, Ramona's lawyer told the court that she had not had 

an opportunity to read Robert's brief. The court suggested that 

the parties produce their evidence on the merits of the dispute 

that day, while it took the matter of jurisdiction under 

advisement. At the close of the hearing, after Robert and Ramona 

had testified at length on the property they had accumulated during 

their marriage, the court announced that it would rule on the issue 

of jurisdiction before proceeding further with matters concerning 

the marital estate. 

The District Court ultimately granted Ramona's motion to 

dismiss, concluding that "this Court has no jurisdiction to 
adjudicate the disposition of the only significant asset of the 

parties, the Indian Trust Land." Robert appealed. 

The sole issue on appeal is whether a Montana district court 

has jurisdiction to adjudicate the disposition of Indian trust land 

in a marital dissolution action filed in that court by a member of 

the Blackfeet Tribe against her non-Indian husband. 

Because the District Court ruled only on the issue of 

jurisdiction, Robert's assertions of error regarding the contents 

and valuation of the marital estate are not properly before us. 

For purposes of reviewing the jurisdictional issue, however, we 

assume that the Indian trust land is the Wellmans' only significant 

marital asset. Even if the Wellmans did have other assets at the 

time of the divorce, as Robert contends, the parties agree that the 

Indian trust land was their most substantial asset: therefore, the 

District Court could not have apportioned the marital estate 

without exercising jurisdiction over the trust land. 

I 

In contending that the District Court has subject matter 

jurisdiction to apportion the marital estate, Robert relies on the 

Blackfeet Tribal Law and Order Code, which provides that "all 

divorces must be consummated in accordance with the State Law of 

Montana." Robert argues that with this provision the Blackfeet 

Tribe "expressly ceded jurisdiction relative to dissolutions to the 

Courts of Montana." We disagree. 

We held in 1973 that a similar provision enacted by the 

Assiniboine-Sioux Tribe in 1938 did cede jurisdiction to the state. 
Our decision was based on the evidence before us, which showed that 

the tribal court had granted no divorces in the intervening period 

and had itself interpreted the provision as ceding jurisdiction 

over divorce matters to the state of Montana. State ex rel. Iron 

Bear v. District Court (1973), 162 Mont. 335, 512 P.2d 1292. Here, 

the record indicates that the Blackfeet Tribal Court has 

consistently exercised jurisdiction over the dissolution of 

Blackfeet marriages. We conclude, therefore, that this provision 

does not cede jurisdiction to the state but merely governs the 

tribal court's choice of law. 

Our approach is consistent with the Ninth Circuit's 

determination that a similar provision in the Northern Cheyenne Law 

and Order Code does not confer jurisdiction on Montana but instead 

incorporates Montana law as tribal law. Sanders v. Robinson (9th 

Cir. 1988), 864 F.2d 630, cert. denied, 490 U.S. 1110 (1989). Like 

the case before us, Sanders involved a tribal member married to a 

non-Indian and marital residence on an Indian reservation. Unlike 

Ramona Wellman, however, the Indian spouse in Sanders filed an 

action for divorce in the tribal court. Her non-Indian husband 

challenged the tribal court's jurisdiction in federal district 

court, and the district court granted summary judgment in favor of 

the tribal court. In affirming that decision, the Ninth Circuit 

held that in a divorce case involving an Indian "plaintiffn and a 

non-Indian "defendant," the tribal court has "at least concurrent" 

but not necessarily exclusive jurisdiction. 864 F.2d at 633. 

Where an Indian tribe has asserted jurisdiction over marriage 
and divorce actions between two of its members, we have deferred to 

that assertion. In In re Marriage of Limpy (1981), 195 Mont. 314, 

636 P.2d 266, we deferred to an advisory opinion of the Northern 

Cheyenne Appellate Court, holding that the Northern Cheyenne Tribal 

Court has exclusive jurisdiction over dissolution of marriage 

actions between members of the tribe residing on the reservation. 

Similarly, in State ex rel. Stewart v. District Court (1980), 187 

Mont. 209, 609 P.2d 290, we determined that the Crow Tribal Code 

gives the Crow Tribal Court exclusive jurisdiction over dissolution 

of marriage actions between tribal members living on the 

reservation. 

Here, the dissolution action was brought by a tribal member 

against her non-Indian husband. No precedent suggests that in such 

a case the Blackfeet Tribal Court has exclusive jurisdiction over 

the dissolution, or that exercise of concurrent jurisdiction by a 

state district court interferes with tribal self-government. The 

specific issue before us, however, is whether the District Court, 

having dissolved the Wellmans' marriage, had subject matter 

jurisdiction to apportion their marital estate. 

I I 

Indian tribes are self-governing political entities whose 

powers can be circumscribed only by Congress, as the United States 

Supreme Court made clear in United States v. Wheeler (1977), 435 

U.S. 313, 323, 98 S.Ct. 1079, 1086, 55 L.Ed.2d 303, 313: "[Ulntil 

Congress acts, the tribes retain their existing sovereign powers. 

. . . Indian tribes still possess those aspects of sovereignty not 
withdrawn by treaty or statute, or by implication as a necessary 

result of their dependent status." 

When Wheeler was decided, Congress already had authorized 

state governments to assume jurisdiction over civil causes of 

action to which Indians are parties and which arise on Indian 

reservations within their boundaries. Public Law 280 (P.L. 280), 

codified at 28 U.S.C. 5 1360. Six states assumed jurisdiction 

under the express tens of the statute; other states, including 

Montana, could "assume jurisdiction at such time and in such manner 

as the people of the State shall, by affirmative legislative 

action, obligate and bind the State to assumption thereof." Pub. 

L. No. 280, 5 7, 67 Stat. 588, 590 (1953). The 1968 Indian Civil 

Rights Act repealed 5 7, however, and thereafter the consent of the 

enrolled Indians on the reservation, expressed as a majority vote 

of the adult Indians voting at a special election, was required 

before a state could assume jurisdiction over a civil action 

arising on a reservation and involving a tribal member. 25 U.S.C. 

55 1322 and 1326. 

With regard to the matter before us, it is undisputed that 

Montana has not assumed jurisdiction under P.L. 280 and the Indian 

Civil Rights Act. Absent such an assumption of jurisdiction, civil 

jurisdiction over activities of non-Indians as well as Indians on 

reservation lands presumptively lies in the tribal court. Fisher 

v. District Court (l976), 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 

106. To overcome that presumption, a party seeking to bring such 

an action in state court must show that state jurisdiction is not 
preempted by federal statute or treaty and does not unlawfully 

infringe on the right of reservation Indians to make their own laws 

and be ruled by those laws. White Mountain Apache v. Bracker 

(1980), 448 U.S. 136, 142, 100 S.Ct. 2578, 2583, 65 L.Ed.2d 665, 

672. We adopted the White Mountain Apache test in First v. State 

Dep't of Social & Rehabilitation Servs. (1991), 247 Mont. 465, 471, 

808 P.2d 467, 470. 

In White Mountain Awache, the Supreme Court emphasized that 

traditional standards of preemption do not apply, for "the 

tradition of Indian sovereignty over the reservation must inform 

the determination whether the exercise of state authority has been 

pre-empted by operation of federal law. 448 U.S. at 143. 

Consequently, the Court required a "particularized inquiry into the 

nature of the state, federal, and tribal interests at stake," to 

determine whether, "in the specific context, the exercise of state 

authority would violate federal law.' 448 U.S. at 145. 

In conducting that inquiry here, we will address the federal, 

tribal and state interests involved in an apportionment of the 

Indian trust land that constitutes the Wellmans' only significant 

marital asset. 

I11 

Indian trust property cannot be conveyed without the consent 

of the Secretary of the Interior. Tooahnippah v. Hickel (1970), 

397 U.S. 598, 609, 90 S.Ct. 1316, 1323, 25 L.Ed.2d 600, 609. 

Further, the Quiet Title Act, 28 U.S.C. 5 2409, gives the United 

States sovereign immunity as to Indian trust land; therefore, 
actions to adjudicate title to trust land are barred in state and 

federal courts. Ducheneaux v. Secretary of Interior (8th Cir. 

1988), 837 F.2d 340, 342-343, cert. denied, 486 U.S. 1055 (1988). 

Thus, an assertion of state court jurisdiction to apportion a 

marital estate consisting primarily of Indian trust land appears on 

its face to be in conflict with the federal government's direct 

interest in Indian trust property. 

Robert attempts to circumvent this barrier by arguing that 

even though the District Court has no authority to transfer title 

to the trust land to a non-Indian, it has the power to value the 

marital estate and the obligation to apportion it equitably, either 

by awarding him a monetary judgment equal to his equitable share of 

the estate or by ordering the land to be sold to other tribal 

members and the proceeds divided. We disagree. 

It is true that 5 40-4-202(1), MCA, provides, in pertinent 

part, that in a proceeding for dissolution of marriage the court 

"shall . . . equitably apportion between the parties the property 

and assets belonging to either or both, however and whenever 

acquired and whether the title thereto is in the name of the 

husband or wife or both" (emphasis added). We note that here, 

neither party holds legal title to the Indian trust land. In any 

event, however, the strong federal and tribal interests in trust 

property mandate our conclusion that 5 40-4-202(1), MCA, cannot be 

construed to require or allow adjudication of Indian trust land by 

a state district court. As the Blackfeet Tribal Law and Order Code 

provides for consummation of divorce in accordance with Montana 
law, we presume that the Blackfeet Tribal Court will equitably 

apportion the Wellmans' marital assets as prescribed by 5 40-4- 

202(1), MCA. 

Any state action that affects ownership of Indian trust land 

is closely circumscribed by 28 U.S.C. g 1360(b), even where state 

jurisdiction has been acquired pursuant to P.L. 280. Section 

1360(b) provides that: 

Nothing in this section [P.L. 2801 shall authorize the 

alienation, encumbrance, or taxation of any real or 

personal property . . . belonging to any Indian or any 

Indian tribe . . . that is held in trust by the United 

States; . . . or shall confer jurisdiction upon the State 

to adjudicate, in probate proceedings or otherwise, the 

ownership or right to possession of such property or any 

interest therein. 

On its face, this statute precludes state jurisdiction to 

adjudicate any interest in Indian trust land. In light of this 

statutory circumscription even where the state has assumed 

jurisdiction, we infer the complete absence of Congressional intent 

to authorize or allow a state that has not assumed jurisdiction to 

adjudicate Indian trust land in any way whatsoever. See Sheppard 

v. Sheppard (Idaho 1982), 655 P.2d 895, 921 (Bistline, J., 

dissenting). 

Robert argues that Sheppard authorizes state jurisdiction over 

Indian trust land in a marital estate. He cites its conclusion 

that in a dissolution involving an enrolled tribal member and a 

non-Indian, the Indian spouse must compensate the non-Indian spouse 

for "his or her share of the community contributions that have gone 

into property that is held in trust or subject to a restraint on 

alienation by the federal government." Sheppard, 655 P.2d at 914. 
The majority in Sheppard affirmed a district court order 

requiring the Indian wife to pay the non-Indian husband a 

substantial sum to offset the bulk of the real and personal 

property, including Indian trust land, awarded to the wife. The 

majority pointed out that the district court had done nothing to 

affect title to the property, which remained in the wife's name, 

and that it had determined the size of the monetary award by the 

amount of community funds used to pay for the property. Under 

these circumstances, the Idaho court held, the district court's 

action did not infringe on the authority of the federal government 

or on tribal sovereignty. Sheppard, 655 P.2d at 914-15. 

We distinguish She~~ard on several grounds. First, Idaho, 

unlike Montana, assumed jurisdiction over enforcement of certain 

state laws and regulations in Indian country within the state, 

including laws and regulations concerning domestic relations, 

pursuant to P.L. 280. Sheo~ard, 655 P.2d at 907 (citing Idaho Code 

$5 67-5101 (1963)). Second, Idaho is a community property state; 

Montana is not. 

Finally, and more importantly, the decision of the Idaho court 

does not support Robert's position in the case before us. In 

Sheppard, neither the trial court nor the Idaho Supreme Court 

exercised jurisdiction over the Indian trust property by bringing 

the property before it for valuation. Instead, the Idaho court 

merely ordered the Indian spouse to reimburse the non-Indian spouse 

for his share of the community funds used to purchase the land. 

Here, we are urged to assert state court jurisdiction over 
Indian trust land by figuratively bringing it into state court for 

valuation prior to an ordered sale and division of proceeds or a 

monetary award equal to Robert's equitable share of the value of 

the land. Based on our discussion of 28 U.S.C. 5 1360(b), above, 

we conclude that any of these actions would result in a prohibited 

adjudication of interests in Indian trust land. See She~oard, 655 

P.2d at 923 (Bistline, J., dissenting). 

Robert also relies on Conroy v. Conroy (8th Cir. 1978), 575 

F.2d 175, suggesting that it authorizes the District Court to order 

the "sale of beneficial title in the said Trust lands to 

permissible beneficiaries . . . e.g., other Blackfeet Indians." 

Robert misreads Conroy. 

Conroy involved a divorce action between two members of the 

Oglala Sioux Tribe, who had accumulated, during their marriage, 

1,700 acres of land held in trust by the United States in the name 

of the husband. The divorce action was filed in the Pine Ridge 

Indian Reservation Tribal Court, which granted the divorce and 

awarded the wife roughly half the land and cattle accumulated 

through the parties' joint efforts. The Eighth Circuit, affirming, 

upheld tribal court jurisdiction to divide the trust land. 575 

F.2d at 183. Thus, Conroy provides authority for a tribal court to 

apportion beneficial interests in trust land in conjunction with a 

dissolution action between tribal members. It has no bearing on 

the issue of state court jurisdiction over Indian trust land. 

Notwithstanding Robert's failure to present authority 

requiring us to reverse the District Court's decision, we conclude 
by returning briefly to the White Mountain Apache test, which 

required us to conduct I1a particularized inquiry into the nature of 

the state, federal, and tribal interests at stake" in determining 

whether, "in the specific context, the exercise of state authority 

would violate federal law. l1 White Mountain Apache, 448 U.S. at 

145. 

There is no question but that the United States has a 

significant interest in matters relating to Indian tribes and 

reservations. Apart from its direct interest as legal owner of 

Indian trust land, the United States has a strong goal of 

encouraging tribal self-government. Numerous federal statutes 

express this goal. See New Mexico v. Mescalero Apache Tribe 

(1983), 462 U.S. 324, 335, 103 S.Ct. 2375, 2387, 76 L.Ed.2d 611, 

621, citing the Indian Reorganization Act of 1934, the Indian civil 

Rights Act of 1968, the Indian Self-Determination and Education 

Assistance Act of 1973, and the Indian Financing Act of 1974. 

Nor can the interest of the Blackfeet Tribe in this matter be 

overstated. In general, of course, Indian tribes retain the power 

to regulate the domestic relations of their members, by virtue of 

their status as sovereign entities; in addition, a tribal court 

specifically has jurisdiction to adjudicate disputes over Indian 

trust land. Conrov, 575 F.2d at 181-182. Here, the Blackfeet 

Tribal Court has, and exercises, concurrent jurisdiction over the 

dissolution of Blackfeet tribal members1 marriages, while the 

Blackfeet Tribe has a strong interest in safeguarding its members' 

beneficial interest in trust lands. 
Unless the state interests at stake are sufficient to justify 

the assertion of state authority, state jurisdiction that is 

inconsistent or interferes with federal and tribal interests is 

preempted by operation of federal law. Mescalero Apache, 462 U.S. 

at 334. It is true that the State of Montana has an interest in 

ensuring the existence of a forum in which marital property located 

within its borders may be apportioned upon a dissolution of 

marriage. In the usual case, the state achieves this goal by 

providing access to its courts. Here, however, the state* s 

interest is met by the availability of an alternative forum in the 

Blackfeet Tribal Court. In short, the state's interest in the 

property and proceedings at issue is inconsequential compared with 

the federal and tribal interests at stake. 

We hold that, under the facts of this case, the District Court 

did not err in concluding that it lacked jurisdiction to adjudicate 

the disposition of the Indian trust land that was the parties* only 

significant marital asset. 

Af f inned. i 

We concur: 

L c/ 45-4 4 

Chief Justice