96-520

No. 96-520

IN THE SUPREME COURT OF THE STATE OF MONTANA

1998 MT 43

IN RE MARRIAGE OF

SHANE COLIN SKILLEN,

Petitioner and Respondent,

and

STACEY GALE MENZ f/k/a STACEY GALE SKILLEN,

Respondent and Appellant.

APPEAL FROM: District Court of the Sixteenth Judicial District,

In and for the County of Rosebud,

The Honorable Joe L. Hegel, Judge presiding.

COUNSEL OF RECORD:

For Appellant:

Loren J. O'Toole, II; O'Toole and O'Toole;

Plentywood, Montana

For Respondent:

J. Dennis Corbin, Attorney at Law,

Miles City, Montana

Submitted on Briefs: April 4, 1997

Decided: March 3, 1998

Filed:

__________________________________________

Clerk

Justice Terry N. Trieweiler delivered the Opinion of the Court.

¶1 The petitioner, Shane Skillen, filed a petition for dissolution of his marriage to the

respondent, Stacey Skillen, in the District Court for the Sixteenth Judicial District in

Rosebud County. After a nonjury trial the District Court entered an order granting joint

custody of their child, Kinsey, to Shane and Stacey. Thereafter, the Fort Peck Tribal Court

entered a temporary joint custody order in favor of Stacey, and she filed a motion to dismiss

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in the District Court. The District Court first entered a final decree of dissolution, and then

denied the motion to dismiss. Stacey appeals. We reverse the order of the District Court and

remand this case to the District Court for proceedings consistent with this opinion.

¶2 The sole issue on appeal is whether the District Court has subject matter jurisdiction

to determine the custody of an Indian child when the child, along with his enrolled mother,

resides on a reservation, and the father, who is non-Indian, resides off the reservation.

 FACTUAL BACKGROUND

¶3 Shane Skillen and Stacey Menz married on May 13, 1993. They were both twenty

years old and students at Dawson Community College in Glendive at the time. Two days

after the marriage, Shane began work at the Rosebud County Sheriff's Department in

Forsyth, where his parents reside; Stacey, an enrolled member of the Fort Peck Tribes,

returned to the Fort Peck Indian Reservation and began temporary work at the Fort Peck

Tribal Health Office in Poplar. On approximately August 20, 1993, Stacey stopped work at

the Tribal Health Office, and on August 29, 1993, she gave birth to their son, Kinsey Charles

Skillen, in Custer County. Kinsey is also an enrolled member of the Fort Peck Tribes. Shane

is non-Indian.

¶4 The parties dispute if and when Stacey actually maintained a residence with her

grandmother on the Fort Peck Reservation. The parties also dispute where Stacey and

Kinsey maintained their residence after Kinsey's birth, although it appears clear that they

spent considerable time both in Forsyth with Shane and on the Reservation with Stacey's

grandmother. At all times throughout this matter, both Shane and Stacey have received

substantial support and assistance from their extended families in their efforts to raise

Kinsey.

¶5 In January 1994, Shane filed a petition for dissolution of the marriage in the District

Court for the Sixteenth Judicial District in Rosebud County; he brought Stacey and Kinsey

to Forsyth and served the petition on her there. The District Court conducted a hearing, and

on February 18, 1994, granted temporary custody to both parties, with physical custody

alternating every two weeks. At the time of the court's order, Shane lived in Forsyth and

Stacey, apparently, resided on the Reservation. 

¶6 In July 1995, the District Court conducted a nonjury trial. In January 1996, it ordered

that Shane and Stacey share joint custody of Kinsey, and that Shane would be the primary

residential custodian. On February 3, 1996, Stacey exercised her visitation privilege and

took custody of Kinsey from Shane. She failed, however, to return Kinsey to Shane on

February 10, as the parties had arranged. On February 9, 1996, she sought and received from

the Fort Peck Tribal Court an order awarding her temporary custody of Kinsey. A few

weeks later, Shane, with the help of the Richland County Sheriff's Department, located

Stacey and Kinsey, and had Kinsey returned to him. Shane has apparently maintained

physical custody of Kinsey since that time.

¶7 On March 11, 1996, Stacey filed a motion in the District Court pursuant to Rule 60,

M.R.Civ.P., and Rule 12(h), M.R.Civ.P., to dismiss the case for lack of subject matter

jurisdiction. She asserted that the Tribal Court had exclusive jurisdiction over the matter by

virtue of Stacey's and Kinsey's residence on the Reservation at the time that Shane originally

filed for dissolution, and that it exercised its jurisdiction when it granted the temporary

custody order. On June 18, 1996, the District Court stated that it had jurisdiction over the

case and issued its final decree of dissolution in which it granted the parties joint custody 

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and

declared Shane to be the primary residential custodian. After the parties briefed the issue,

the District Court, on July 26, 1996, found that Kinsey had significant contacts on and off

the Reservation, and that as such, the District Court shared concurrent jurisdiction with the

Tribal Court. Therefore, it denied the motion to dismiss.

 DISCUSSION

¶8 Does the District Court have subject matter jurisdiction to determine the custody of

an Indian child when the child, along with his enrolled mother, resides on a reservation, and

the father, who is non-Indian, resides off the reservation?

¶9 Whether to dismiss a claim based on lack of subject matter jurisdiction is a question

of law. We review a district court's conclusion of law to determine if it is correct. See

Poteat v. St. Paul Mercury Ins. Co. (1996), 277 Mont. 117, 119, 918 P.2d 677, 679. See also

Matter of Beneficial Water Use Permit Nos. 66459-76L, Ciotti; 64988-G76L, Starner (1996),

278 Mont. 50, 54, 923 P.2d 1073, 1076. 

¶10 A motion to dismiss based on lack of subject matter jurisdiction may be raised at any

time and by either party, or by the court itself. See Rule 12(h)(3), M.R.Civ.P.; State v.

Tweedy (1996), 277 Mont. 313, 315, 922 P.2d 1134, 1135; Wippert v. Blackfeet Tribe of

Blackfeet Indian Reservation (1993), 260 Mont. 93, 102, 859 P.2d 420, 425. Also, a party

cannot waive or confer by consent jurisdiction when there is no legal basis for the court to

exercise jurisdiction. See In re Marriage of Miller (1993), 259 Mont. 424, 427, 856 P.2d

1378, 1380. Therefore, despite the District Court's intimation in its order that Stacey waived

Tribal jurisdiction by indicating she would not invoke it, it was proper for Stacey to raise the

issue of the District Court's jurisdiction when she did.

¶11 Stacey's challenge to the District Court's jurisdiction raises a matter of first impression

before this Court: In light of Indian jurisdiction law and child custody principles, we must

determine whether a district court has jurisdiction in a custody proceeding involving an

Indian child and an Indian parent when both reside on Indian land, and a non-Indian parent

who does not reside on Indian land. It presents this Court with a significant legal and policy

question and requires that we synthesize the independently complex areas of Indian

jurisdiction and child custody jurisdiction.

¶12 The issue of jurisdiction considers a court's right to determine and hear an issue. As

such, it "transcends procedural considerations and involves the fundamental power and

authority of the court itself." Wippert, 260 Mont. at 102, 859 P.2d at 425. Accordingly, our

inquiry into the jurisdictional conflict between a tribal court and a state district court 

extends

to the even more fundamental issue of the interaction between tribal and state authority.

A. Tribal Jurisdiction in General

¶13 It is well established that Indian tribes maintain certain powers of self-government

over reservation activities, such that states may not exercise jurisdiction regarding these 

areas

of tribal government. The exclusive nature of Indian tribes' authority in this regard is based

on two distinct grounds: (1) federal supremacy, and (2) tribal sovereignty. See White

Mountain Apache Tribe v. Bracker (1980), 448 U.S. 136, 142-43, 100 S. Ct. 2578, 2583, 65

L. Ed. 2d 665, 672.

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¶14 Congress has the authority to regulate Indian tribes, and where federal law exists, state

courts lack jurisdiction. See White Mountain Apache Tribe, 448 U.S. at 142, 100 S. Ct. at

2583, 65 L. Ed. 2d at 672. "State jurisdiction is pre-empted by the operation of federal law

if it interferes or is incompatible with federal and tribal interests reflected in federal law,

unless the state interests at stake are sufficient to justify the assertion of state 

authority." 

New Mexico v. Mescalero Apache Tribe (1983), 462 U.S. 324, 334, 103 S. Ct. 2378, 2386,

76 L. Ed. 2d 611, 620 (stating that the application of state hunting and fishing laws to

nonmembers on the reservation was preempted by federal law and the tribe's own regulatory

scheme).

¶15 In the 1950s, Congress transferred to six states its civil and criminal jurisdiction over

Indian lands, and allowed other states, including Montana, to assume jurisdiction by their

own legislative action. See Pub. L. No. 53-280, Act of August 15, 1953, 67 Stat. 588. The

1968 Indian Civil Rights Act repealed that portion of P.L. 280 that permitted states like

Montana to unilaterally assume jurisdiction over Indian lands, and thereafter required the

affected tribe to consent to the state assumption of jurisdiction. See 25 U.S.C. 1321,

1322, and 1326.

¶16 Here, domestic matters are generally within the province of states (and tribes) and not

Congress. See In re Burrus (1890), 136 U.S. 586, 593-94, 10 S. Ct. 850, 853, 34 L. Ed. 500,

503 ("The whole subject of the domestic relations of husband and wife, parent and child,

belongs to the laws of the States and not to the laws of the United States."). As will be

discussed below, Congress has in recent years legislated in the area of child custody and

specifically Indian child custody. Those federal acts, however, do not govern these facts, nor

do they operate presumptively to preempt state authority in favor of the tribe's authority. 

Moreover, Montana has not assumed jurisdiction over the Fort Peck Tribes pursuant to

P.L. 280. Accordingly, the jurisdictional framework for our analysis should be based not on

preemption, but on the interaction between tribal and state courts in terms of tribal

sovereignty.

¶17 Where Congress has not exercised its authority over Indian tribes, tribes are generally

presumed to maintain their inherent tribal sovereignty over Indian land. See Fisher v.

District Court (1976), 424 U.S. 382, 96 S. Ct. 943, 47 L. Ed. 2d 106; In re Marriage of

Wellman (1993), 258 Mont. 131, 137, 852 P.2d 559, 563. Without express federal law to

declare the total lack of state authority, however, questions as to state versus tribal 

authority

naturally arise. The most commonly cited method to determine whether a state has authority

in a matter is the Williams infringement test: "Essentially, absent governing Acts of

Congress, the question has always been whether the state action infringed on the right of

reservation Indians to make their own laws and be ruled by them." Williams v. Lee (1959),

358 U.S. 217, 220, 79 S. Ct. 269, 271, 3 L. Ed. 2d 251, 254. See also Iowa Mut. Ins. Co. v.

LaPlante (1987), 480 U.S. 9, 107 S. Ct. 971, 94 L. Ed. 2d 10 (emphasizing the retained

sovereignty of Indian tribes over their members and their territory where Congress has failed

to assert its authority); State ex rel. Iron Bear v. District Court (1973), 162 Mont. 335, 342,

512 P.2d 1292, 1297 ("The guide lines are set down in Williams and as long as the state does

not violate those guide lines and does not attempt to exercise jurisdiction over areas of the

law where there is either a governing Act of Congress or an infringement on reservation selfgovernment, it may continue to exercise jurisdiction.").

¶18 The United States Supreme Court held in Montana v. United States (1981), 450 U.S.

544, 564, 101 S. Ct. 1245, 1258, 67 L. Ed. 2d 493, 509-10, that without federal

authorization, a tribe's power to exercise its sovereignty does not extend "beyond what is

necessary to protect tribal self-government or to control internal relations . . . ." See also

Oliphant v. Suquamish Indian Tribe (1978), 435 U.S. 191, 98 S. Ct. 1011, 55 L. Ed. 2d 209

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(stating that tribal sovereignty does not authorize criminal jurisdiction over non-Indians). 

¶19 More importantly, however, Montana has come to stand for the exceptions it

articulated, pursuant to which tribal sovereignty dictates that a tribe has the right to 

exercise

its jurisdiction over non-Indians and activities on Indian lands. The first exception

recognizes regulatory tribal jurisdiction over nonmembers who enter consensual relationships

with the tribe or its members. The second exception recognizes civil tribal jurisdiction over

nonmember reservation conduct that threatens or directly affects the tribe's political 

integrity,

economic security, health, or welfare. See Montana, 450 U.S. at 565-66, 101 S. Ct. at 1258,

67 L. Ed. 2d at 510-11 (citing Williams, among others). The Court in Strate v. A-1

Contractors (1997), 65 USLW 4298, 117 S. Ct. 1404, 1415-16, 137 L. Ed. 2d 661, 678-79,

interpreted the second Montana exception to apply only when the conduct at issue presents

a threat in terms of the tribe's ability to be self-governing or to control its internal 

relations.

¶20 Strate and Montana both cite the facts of Fisher to demonstrate when a state court's

exercise of jurisdiction would trigger the second Montana exception and infringe on the

tribe's sovereign ability to govern itself and to control its internal relations. Strate, 117 

S. Ct.

at 1412-13, 137 L. Ed. 2d at 674-75; Montana, 450 U.S. at 566, 101 S. Ct. at 1258, 67

L. Ed. 2d at 511. Fisher involved a child custody dispute between an Indian mother and an

Indian foster mother, each of whom resided on the reservation. The Court concluded that

the state court's exercise of jurisdiction would "plainly interfere" with the tribe's powers of

self-government and, as a result, granted the tribal court exclusive jurisdiction to determine

custody of the Indian child. In addition to some factual similarity of Fisher to the facts now

before us, we must also regard throughout our consideration of this matter two key factors

on which Fisher expressly relied: (1) the risk of conflicting adjudications to the child's

detriment; and (2) the fact that state exercise of jurisdiction "would cause a corresponding

decline in the authority of the Tribal Court." Fisher, 424 U.S. at 388, 96 S. Ct. at 947, 47

L. Ed. 2d at 112.

B. Child Custody Jurisdiction

¶21 As the facts before us suggest, disputes regarding child custody, and specifically child

custody jurisdiction, are extremely complicated and involve the interests of many parties. 

The uncertainty of an immediate change in marital and custody status is compounded by the

dual demand on courts to incorporate these varied interests and to project family

relationships many years into the future. One constant amid these uncertainties is the best

interests of the child standard. See § 40-4-212, MCA (directing courts to apply the best

interests of the child standard in a custody determination); Fort Peck Tribal Code, Title VI,

§ 304(b) (1989) ("The determination of custody shall be based on the best interests of the

child."). See also State of Arizona v. Sasse (1990), 245 Mont. 340, 348, 801 P.2d 598, 603

("The best interests of the child have always been the most salient consideration in

determining family matters where children are involved.") (Barz, J., dissenting). Although

sometimes subject to discretion in its application, the best interests of the child standard

attempts to focus the parties and courts on the most vulnerable interest in these proceedings: 

the child's well-being. Within this ambit, jurisdictional questions also now emphasize first

and foremost a determination consistent with and supportive of the best interests of the child.

¶22 The Uniform Child Custody Jurisdiction Act (UCCJA) has been adopted by all fifty

states. Montana has codified the UCCJA at 40-7-101 to -125, MCA, and incorporates

 3 of the UCCJA at 40-4-211, MCA, to determine the initial matter of child custody

jurisdiction. In conjunction with the federal Prevention of Parental Kidnaping Act (PKPA),

28 U.S.C. 1738A, the UCCJA operates to clarify which among competing jurisdictions

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shall determine matters of child custody.

¶23 As a threshold matter, the UCCJA definition of "state" includes "any state, territory,

or possession of the United States, the Commonwealth of Puerto Rico, and the District of

Columbia" and does not specifically include Indian tribes; the PKPA uses substantially the

same definition. See § 40-7-103(10), MCA; 28 U.S.C. § 1738A(b)(8). The omission,

however, is of no consequence to the policy-based analysis of the UCCJA and the PKPA that

we engage here. Accordingly, we conclude that for the limited purpose of analogizing to the

policy considerations of the UCCJA and the PKPA, to resolve the issue before us, we will

compare Indian tribes to territories within the meaning of the UCCJA and the PKPA

definition of "state." See In re Larch (4th Cir. 1989), 872 F.2d 66 (Cherokee tribe is a state

for purposes of the PKPA); Martinez v. Superior Court (Ariz. Ct. App. 1987), 731 P.2d 1244

(in a custody dispute between one Indian parent and one non-Indian parent, Indian tribes are

states within the meaning of the UCCJA). See also Day v. State Dep't Social & Rehab.

Servs., Child Support Enforcement Div. (1995), 272 Mont. 170, 175, 900 P.2d 296, 299 ("As

regards child support orders issued in Indian tribal courts, Indian tribes are deemed to be

'States,' 28 U.S.C. § 1738B(b), and are, therefore, excepted out of the definition of 'foreign

states' under the provisions of the Recognition Act. Section 25-9-602(2), MCA. 

Additionally, judgments for support in matrimonial or family matters are not considered

'foreign judgments' under the Recognition Act. Section 25-9-602(1), MCA."). But see

Desjarlait v. Desjarlait (Minn. Ct. App. 1985), 379 N.W.2d 139, 143 ("[T]he UCCJA does

not apply to jurisdictional disputes between a state court and a tribal court"); Malaterre v.

Malaterre (N.D. 1980), 293 N.W.2d 139, 144 (refusing to resolve a child custody issue

between a tribal court and a state court on the basis of the UCCJA, based on the fact that the

UCCJA "pertains to fact situations which involve jurisdictional disputes with sister states").

¶24 The purposes of the UCCJA are, in part, to:

 (a) avoid jurisdictional competition and conflict with courts of other

 states in matters of child custody which have in the past resulted in the shifting

 of children from state to state with harmful effects on their well-being; . . . .

 (c) assure that litigation concerning the custody of a child takes place

 ordinarily in the state with which the child and his family have the closest

 connection and where significant evidence concerning his care, protection,

 training, and personal relationships is most readily available and that courts of

 this state decline the exercise of jurisdiction when the child and his family

 have a closer connection with another state; 

 (d) discourage continuing controversies over child custody in the

 interest of greater stability of home environment and of secure family

 relationships for the child; . . . .

 

 Section 40-7-102(1), MCA (emphasis added). As a California case stated, "the UCCJA

seeks to limit jurisdiction rather than encourage or condone its proliferation." In re Marriage

of Hopson (Cal. Ct. App. 1980), 168 Cal. Rptr. 345, 356, 110 Cal. App. 3d 884, 899.

¶25 Likewise, the PKPA, which focuses primarily on custody modification, attempts to

isolate jurisdiction in the one court which is best able to determine the best interests of the

child. The Congressional Findings and Declaration of Purpose for the PKPA state that:

 (c) The general purposes of . . . this Act . . . are to: 

 (1) promote cooperation between State courts to the end that a

 determination of custody and visitation is rendered in the State which can best

 decide the case in the interest of the child;

 . . . .

 (4) discourage continuing interstate controversies over child custody in

 the interest of greater stability of home environment and of secure family

 relationships for the child;

 (5) avoid jurisdictional competition and conflict between State courts

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 in matters of child custody and visitation which have in the past resulted in the

 shifting of children from State to State with harmful effects on their

 well-being; . . . .

 

 28 U.S.C. 1738A (emphasis added). 

¶26 The two laws make clear that jurisdictional disputes over custody are not in the best

interest of the child. Furthermore, as will be explained more fully below, the laws seek to

certify the single "state" to which the child's best interest is connected. Finally, they

emphasize how important the initial determination of custody jurisdiction is, as subsequent

changes in custody jurisdiction run counter to the purpose of the laws and are, therefore,

presumptively disfavored.

¶27 For example, we twice recently considered the application of the PKPA in the context

of child custody determination. See In re Marriage of Shupe (1996), 276 Mont. 409, 916

P.2d 744; In re Marriage of Erler (1993), 261 Mont. 65, 862 P.2d 12. Each time we held

that the Montana district court lacked jurisdiction pursuant to the PKPA to modify the

custody determination of another state. In Erler, we recognized that "[t]he PKPA requires

full faith and credit be accorded to decisions of a jurisdiction if the court appropriately

exercised jurisdiction under the PKPA standards" and that it "vests continuing jurisdiction

in the original state as long as the child or one of the contestants continues to reside 

there." 

Erler, 261 Mont. at 69-70, 862 P.2d at 15-16. Because the PKPA gives the original court

continuing jurisdiction and requires that full faith and credit be given to the original

determination, the Act imposes a duty on any "sister 'state'" to enforce a child custody

determination that was made consistent with the UCCJA and PKPA. Thus, where a child

custody determination has already been made and where the residence of the child has not

changed, the PKPA enforces what effectively amounts to exclusive jurisdiction for the

original court. See Shupe, 276 Mont. at 414, 916 P.2d at 747 ("[T]he PKPA sets forth

standards for determining the one state with jurisdiction to modify an existing custody

order."). As such, it becomes imperative that the original determination of custody

jurisdiction be the correct one. 

¶28 Pursuant to the UCCJA, the general rule is that the "home state" of the child should

have jurisdiction to determine custody matters. See § 40-4-211(1)(a)(i), MCA. See, e.g.,

Hegler v. Hegler (Fla. Ct. App. 1980), 383 So. 2d 1134. Section 40-7-103(5), MCA, defines

"Home state" as:

 [T]he state in which the child, immediately preceding the time involved, lived

 with his parents, [or] a parent . . . for at least 6 consecutive months and in the

 case of a child less than 6 months old the state in which the child lived from

 birth with any of the persons mentioned. Periods of temporary absence of any

 of the named persons are counted as part of the 6-month or other period.

 

¶29 The UCCJA permits a court to assert jurisdiction for reasons other than the child's

residence, based on the child's best interests. Section 40-4-211(1)(b), MCA, sets out when

it would be in the child's best interests for the state to assume jurisdiction:

 (i) the child and the parents or the child and at least one contestant have

 a significant connection with this state; and

 (ii) there is available in this state substantial evidence concerning the

 child's present or future care, protection, training, and personal relationships; 

 

 However, it explicitly prohibits a state from claiming jurisdiction where only the physical

presence of the child would confer jurisdiction, except in limited situations of abuse or

abandonment. See § 40-4-211(2), MCA. If no other state has jurisdiction, or where another

state has declined to exercise jurisdiction, the state may then assert jurisdiction if it is in 

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the

best interest of the child. See § 40-4-211(d), MCA. 

¶30 By itself, the UCCJA could apparently support the exercise of jurisdiction by multiple

states. See Shupe, 276 Mont. 409, 916 P.2d 744 (concluding that both Montana and Utah

had jurisdiction pursuant to the UCCJA). However, when considered in conjunction with

the PKPA, a clear preference emerges for the child's home state, as determined by his

residence, especially in light of the interest that we recognize in avoiding future jurisdiction

shifts for the child's best interests. See, e.g., Shupe, 276 Mont. 409, 916 P.2d 744 (holding

that PKPA prevented Montana from exercising jurisdiction, even though neither state

qualified as the child's "home state" pursuant to the UCCJA). 

¶31 Of course, this says nothing about the unique status of Indian children. The case

before us ultimately turns on the jurisdictional power of a state court over an Indian parent

and an Indian child who may reside on a reservation, not just on a strict application of the

terms of the UCCJA. However, the powerful policy statements reflected in these child

custody laws and their commitment to the best interests of the child only take on enhanced

meaning when we consider the Indian Child Welfare Act (ICWA) and the reasons that

motivated Congress to enact it.

C. Indian Child Welfare Act

¶32 In 1978, Congress passed the ICWA, 25 U.S.C. §§ 1901-63, to protect the best

interests of Indian children and to promote the security of Indian tribes. See 25 U.S.C.

§ 1902. Its primary means of achieving this goal was to ensure that tribes played an

expanded role in custody proceedings that involved Indian children. This Court has

repeatedly affirmed the intent of the ICWA and sought to implement its presumptions in

favor of a tribal role in Indian child custody proceedings. See In re Adoption of Riffle

(1995), 273 Mont. 237, 902 P.2d 542 (granting the tribe, as opposed to the Bureau of Indian

Affairs, ultimate authority to determine whether a child is eligible for tribal membership, and

thus, final authority to determine whether a child satisfies the ICWA definition of Indian

child); In re Matter of Baby Girl Doe (1993), 262 Mont. 380, 865 P.2d 1090 (stating that the

ICWA is paramount to a natural parent's desire for anonymity); In re Parental Placement of

M.R.D.B. (1990), 241 Mont. 455, 787 P.2d 1219 (interpreting broadly language from the

tribal court to conclude that Indian child was a ward of the tribal court and subject to

exclusive tribal jurisdiction pursuant to the ICWA); In re M.E.M. (1986), 223 Mont. 234,

725 P.2d 212 (recognizing a family member's right to intervene pursuant to the ICWA even

after considerable steps in adoption proceeding had occurred).

¶33 The ICWA represents the federal remedy to a nationwide problem. The problem

originates from what is in the majority of cases a naturally predisposed inability of states to

consider fully the best interests of Indian children in custody proceedings, specifically in the

context of their Indian heritage. In particular, Congress found after extensive hearings that

"States, exercising their recognized jurisdiction over Indian child custody proceedings

through administrative and judicial bodies, have often failed to recognize the essential tribal

relations of Indian people and the cultural and social standards prevailing in Indian

communities and families." 25 U.S.C. § 1901(5). The concerns and resultant need for the

ICWA are based even more on the fact that, as Congress pointed out, "there is no resource

that is more vital to the continued existence and integrity of Indian tribes than their children

and that the United States has a direct interest, as trustee, in protecting Indian children who

are members of or are eligible for membership in an Indian tribe." 25 U.S.C. § 1901(3). 

¶34 The crux of the ICWA is to provide tribal courts with exclusive jurisdiction in "child

custody proceedings" that involve Indian children. However, it expressly excludes from its

definition of "child custody proceedings" custody disputes arising from an award in a

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marriage dissolution. See 25 U.S.C. § 1903(1). See also In re Bertelson (Mont. 1980), 189

Mont. 524, 531, 617 P.2d 121, 125 ("[ICWA] is not directed at disputes between Indian

families regarding custody of Indian children; rather, its intent is to preserve Indian culture

[sic] values under circumstances in which an Indian child is placed in a foster home or other

protective institution."). Regardless of its literal nonapplication to the facts before us, we

cannot ignore the fact that the ICWA "evinces an emphatic federal policy of protecting the

tribal role in proceedings involving Indian children." Barbara Ann Atwood, Fighting Over

Indian Children: The Uses and Abuses of Jurisdictional Ambiguity, 36 U.C.L.A. L. Rev.

1051, 1062 (1989).

¶35 Similar to other child custody laws, the ICWA bases a court's right to assume

jurisdiction on the residence of the child. However, the ICWA manifests an even stronger

presumption that jurisdictional disputes be determined exclusively on the basis of the child's

residence than the UCCJA and the PKPA, which permit courts to assume jurisdiction on the

additional grounds of the best interests of the child, among other things. See Mississippi

Band of Choctaw Indians v. Holyfield (1989), 490 U.S. 30, 109 S. Ct. 1597, 104 L. Ed. 2d

29 (holding that the ICWA applied because even though the Indian children had never

physically entered the reservation, their residence was officially the reservation, based on

their mother's residence there); In re Adoption of Halloway (Utah 1986), 732 P.2d 962

(elevating the federal policies of the ICWA over state law regarding abandonment and

domicile). 

¶36 In effect, Congress declared through the ICWA that a custody determination by the

tribal court is unequivocally in the best interests of the child when the child resides on 

Indian

land. It states: 

 An Indian tribe shall have jurisdiction exclusive as to any State over

 any child custody proceeding involving an Indian child who resides or is

 domiciled within the reservation of such tribe, except where such jurisdiction

 is otherwise vested in the State by existing Federal law. Where an Indian child

 is a ward of a tribal court, the Indian tribe shall retain exclusive jurisdiction,

 notwithstanding the residence or domicile of the child. 

 

 25 U.S.C. § 1911(a). Where the child does not reside on Indian land, the ICWA directs the

state court, "in the absence of good cause to the contrary, [to] transfer such proceeding to the

jurisdiction of the tribe, absent objection by either parent . . . or the Indian custodian or 

the

Indian child's tribe." 25 U.S.C. § 1911(b). Either way, the tribal court is presumed to have

jurisdiction over a custody proceeding that involves an Indian child. 

¶37 The value of the ICWA for purposes of the jurisdictional analysis before us is

three-fold. 

¶38 First, that Congress felt the need to curtail states in these matters indicates that state

courts are apt to exercise jurisdiction when the best interests of the Indian child do not

necessarily support that assumption of jurisdiction. In other words, it puts states on notice

that they are, in fact, a significant part of the problem, and that they should weigh their

potential assumption of jurisdiction very judiciously. See, e.g., In re M.E.M. (1981), 195

Mont. 329, 339, 635 P.2d 1313, 1319 ("The purpose of the [ICWA] is to remove as far as

possible the white man's perceptions in these matters where Indian values may conflict.")

(Sheehy, J., dissenting).

¶39 Second, the ICWA indicates that regardless of the child's residence, tribal courts are

uniquely and inherently more qualified than state courts to determine custody in the best

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interests of an Indian child. Relatedly, it accentuates that custody matters that involve 

Indian

children implicate a broader range of concerns than custody matters that do not involve

Indian children, and furthermore, that those interests are of great importance to the United

States, and of course, to the integrity of Indian tribes. Despite the ICWA's nonapplication

to dissolution-based custody disputes, we also recognize that the tribal court's experience and

abilities in these areas are inherent advantages over state courts and remain as such when the

custody matter before a tribal court happens to occur pursuant to a marriage dissolution. See

generally Bertelson, 189 Mont. at 539, 617 P.2d at 129 ("Presumably the tribal court is better

equipped to consider the ethnic identity as a factor in determining the child's welfare than

is a state court."). In either case, the best interests of the child standard takes on expanded

meaning to tribal courts.

¶40 Finally, the ICWA demonstrates confidence in the tribal forum, not only for the

substantive expertise of its perspective, but also for its ability to make a fair and 

appropriate

determination and to serve the interests of all the parties, including the state. See, e.g., 

In re

M.R.D.B., 241 Mont. at 463, 787 P.2d at 1224 ("We are fully confident the Tribal Court will

consider the best interest of all parties in making its . . . determination."); Halloway, 732

P.2d at 972 ("[W]e are confident that the courts of the [tribe] will give the [custody matter]

the careful attention it deserves and will act with the utmost concern for [the Indian child's]

well-being."). The ICWA also demands that state courts give full faith and credit to the

decisions of the tribal court. See 25 U.S.C. § 1911(d). Therefore, we appreciate that in

terms of our jurisdiction analysis, any disregard for the clear policy behind the ICWA

preferences for a tribal determination instead of a state determination would at least in part

provoke a "decline in the authority of the Tribal Court." Fisher, 424 U.S. at 388, 96 S. Ct.

at 947, 47 L. Ed. 2d at 112.

D. Jurisdiction of Montana State Courts Over Indian Activity

¶41 This Court has frequently recognized and upheld the sovereignty of Indian tribes to

maintain their rights of self-government and to control the internal relations of their

members. See In re Custody of Zier (1988), 230 Mont. 464, 750 P.2d 1083; In re Marriage

of Limpy (1981), 195 Mont. 314, 636 P.2d 266; State ex rel. Stewart v. District Court (1980),

187 Mont. 209, 609 P.2d 290. 

¶42 Our analysis of jurisdictional disputes between tribal courts and state courts has

followed two different lines, depending upon whether the jurisdictional dispute arose from

a regulatory matter or an adjudicatory one.

¶43 The majority of our decisions that involve adjudicatory matters, and in particular

domestic matters, follow a sovereignty analysis and apply the three-part test from State ex

rel. Iron Bear v. District Court (1973), 162 Mont. 335, 512 P.2d 1292, to determine whether

a district court can exercise jurisdiction. See, e.g., Limpy, 195 Mont. at 318, 636 P.2d at 

268;

Stewart, 187 Mont. at 212-13, 609 P.2d at 292. See also Krause v. Neuman (1997), 943 P.2d

1328, 54 St. Rep. 937 (applying Iron Bear in a dispute regarding Indian trust land); Lambert

v. Ryozik (1994), 268 Mont. 219, 886 P.2d 378 (applying Iron Bear in a dispute regarding

an on-reservation auto accident). In Iron Bear, 162 Mont. at 346, 512 P.2d at 1299, we

stated:

 Before a district court can assume jurisdiction in any matter submitted to it, it

 must find subject matter jurisdiction by determining: (1) whether the federal

 treaties and statutes applicable have preempted state jurisdiction; (2) whether

 the exercise of state jurisdiction would interfere with reservation self-government; and 

(3) whether the Tribal Court is currently exercising

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 jurisdiction or has exercised jurisdiction in such a manner as to preempt state

 jurisdiction.

 

 This Court, in Iron Bear, relied primarily on the U.S. Supreme Court analysis of Williams

and its emphasis on tribal sovereignty to develop the above test. See Iron Bear, 162 Mont.

342-43, 512 P.2d at 1297. Even in its discussion of preemption, sovereignty remained the

focus. See Iron Bear, 162 Mont. at 345, 512 P.2d at 1298 (stating that preemption must be

considered with "sovereignty as a 'backdrop against which the applicable treaties and federal

statutes must be read.'") (quoting McClanahan v. State Tax Comm'n of Ariz. (1973), 411 U.S.

164, 172, 93 S. Ct. 1257, 1262, 36 L. Ed. 2d 129, 136).

¶44 Our consideration of a jurisdictional conflict regarding a regulatory matter follows a

preemption analysis. See State ex rel. Poll v. District Court (1993), 257 Mont. 512, 851 P.2d

405 (considering state authority to regulate gambling on a reservation); Northern Border

Pipeline Co. v. State (1989), 237 Mont. 117, 772 P.2d 829 (considering state ability to tax

pipeline that traversed reservation). We apply the two-part test from White Mountain

Apache, 448 U.S. 136, 100 S. Ct. 2578, 65 L. Ed. 2d 665, which asks whether: "(1) the

assertion of subject matter jurisdiction by Montana's administrative and judicial tribunals is

preempted by federal law, and (2) the assertion of subject matter jurisdiction by Montana's

administrative and judicial tribunals would unlawfully infringe on [the tribe's] right to make

its own laws and be ruled by these laws." First v. State Dept. of Soc. & Rehab. Servs. ex rel.

LaRoche (1991), 247 Mont. 465, 471, 808 P.2d 467, 470; See also Poll, 257 Mont. at 522,

851 P.2d at 411 ("The proper test for determining whether the State of Montana has

regulatory authority over any activity committed on the [reservation], through its criminal

statutes or otherwise, is the test set forth . . . in White Mountain Apache.") (Trieweiler, J.,

dissenting). That inquiry essentially "call[s] for a particularized inquiry into the nature of

the state, federal, and tribal interests at stake, an inquiry designed to determine whether, in

the specific context, the exercise of state authority would violate federal law." White

Mountain Apache, 448 U.S. at 145, 100 S. Ct. at 2584, 65 L. Ed. 2d at 673. See also State

v. Thomas (1988), 233 Mont. 451, 453, 760 P.2d 96, 97-98. See generally Burlington N.

R.R. Co. v. Department of Pub. Serv. Regulation (1986), 221 Mont. 497, 500-01, 720 P.2d

267, 269-70 (discussing White Mountain Apache).

¶45 In First, 247 Mont. at 471, 808 P.2d at 470, this Court rejected Iron Bear and chose

to apply White Mountain Apache to the issue of whether the state could enforce an

out-of-state child support obligation against the off-reservation income of an Indian who

resided on a reservation. We determined that because the U.S. Supreme Court is the final

authority on matters involving tribes and tribal jurisdiction, and because White Mountain

Apache followed Iron Bear by seven years, we should apply the test from White Mountain

Apache, not Iron Bear. We subsequently applied the White Mountain Apache test in In re

Marriage of Wellman (1993), 258 Mont. 131, 852 P.2d 559, which considered the state

court's ability to apportion and distribute Indian trust land pursuant to the marriage

dissolution of an Indian woman and her non-Indian husband.

¶46 For purposes of our analysis here, we need not revisit our decisions in First and

Wellman to determine whether those claims represented an appropriate application of the

White Mountain Apache preemption test. See First, 247 Mont. at 473, 808 P.2d at 472

(characterizing the matter as "collection action, and accordingly, not [a domestic affair]

dominated by tribal tradition and custom."). However, to the extent that those cases create

any uncertainty about which test this Court shall apply in future disputes over jurisdiction

between tribal and state courts, we hold here that Iron Bear and a principally sovereigntybased analysis applies in the adjudicatory context, while the White Mountain Apache

preemption test shall be the starting point in a regulatory dispute. 

¶47 Although the two tests and lines of analysis appear quite similar, they are substantially

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different. Either one alone represents a sufficient basis to find that the state court lacks

subject matter jurisdiction. See Milbank Mut. Ins. Co. v. Eagleman (1985), 218 Mont. 58,

61, 705 P.2d 1117, 1119 (citing White Mountain Apache, 448 U.S. at 142-43, 100 S. Ct. at

2583, 65 L. Ed. 2d at 672). The sovereignty analysis pursuant to Iron Bear, although

phrased to focus on the state's exercise of jurisdiction, ultimately turns on the breadth with

which we define tribal sovereignty and the degree to which we recognize a tribe's exercise

of jurisdiction. On the other hand, a preemption analysis of the various interests at stake,

pursuant to White Mountain Apache, focuses less on the tribe as a sovereign nation and more

on the sufficiency of the state or federal interest in overcoming the tribe's right to govern

itself. Compare Limpy, 195 Mont. at 319, 636 P.2d at 269 (applying Iron Bear to a marriage

dissolution between reservation Indians) ("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 adjudicate

controversies affecting the custody of their children.") with Wellman, 258 Mont. at 141, 852

P.2d at 565 (applying White Mountain Apache to a state court's ability to dispose of Indian

trust land pursuant to a marriage dissolution) ("In short, the state's interest in the property 

and

proceedings at issue is inconsequential compared with the federal and tribal interests at

stake."). The fundamental difference is that in an adjudicatory situation, civil jurisdiction

over all activity on Indian land is generally presumed to rest in the tribal court, and

consequently, it requires that we analyze state exercise of jurisdiction in terms of its

infringement on the tribe's inherent sovereignty. See Strate, 117 S. Ct. at 1412-13, 137 L.

Ed. 2d at 674-75; Iowa Mut. Ins. Co., 480 U.S. at 18, 107 S. Ct. at 977-78, 94 L. Ed. 2d at

21; Fisher, 424 U.S. at 386-89, 96 S. Ct. at 946-47, 47 L. Ed. 2d at 110-13.

E. Concurrent v. Exclusive Jurisdiction

¶48 The issue of which court has jurisdiction to determine child custody matters pursuant

to a dissolution is clearly an adjudicatory matter, and as such, we apply here the traditional

sovereignty analysis of Iron Bear, Fisher, and Williams.

¶49 Limpy and Stewart both involved marriage dissolution actions, in which both parents

and their children were Indian and resided on the reservation. Our decisions in those cases

relied on statements from the tribe, through either its Tribal Code or its advisory opinions,

that the tribe had exclusive jurisdiction over dissolution actions between its members who

resided on the reservation. As such, we concluded pursuant to Iron Bear that state exercise

of jurisdiction would constitute an infringement on tribal self-government. See Limpy, 195

Mont. at 318-19, 636 P.2d at 269; Stewart, 187 Mont. at 213, 609 P.2d at 292.

¶50 In Limpy and Stewart, however, we described the district court's obligation not to

exercise jurisdiction as a matter of abstention based on comity, which implies that the district

court shares concurrent jurisdiction with the tribal court. See Limpy, 195 Mont. at 318, 636

P.2d at 269; Stewart, 187 Mont. at 213, 609 P.2d at 292. But see Fisher, 424 U.S. at 389,

96 S. Ct. at 948, 47 L. Ed. 2d at 113 (also involving two Indian parties who resided on the

reservation) ("Since the [matter] is appropriately characterized as litigation arising on the

Indian reservation, the jurisdiction of the Tribal Court is exclusive."). Although practically

no different to the relative parties, exclusive jurisdiction for the tribal court is 

substantially

different as a matter of law from a district court's decision to abstain as a matter of comity,

especially if we consider, as in Fisher, the potential decline of authority in the tribal 

court. 

Our decision here goes a step further than in Limpy and Stewart to recognize that difference.

¶51 The facts before us represent the first time that this Court has been asked to determine

the jurisdictional rights of a district court in relation to a tribal court in a domestic matter

between one Indian parent and one non-Indian parent. See Bertelson, 189 Mont. 524, 617

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P.2d 121 (involving an Indian child custody dispute between Indian paternal grandparents

who resided on a reservation with the child and a non-Indian mother). 

¶52 In Bertelson, we implicitly applied the Iron Bear test, but held that because the

mother was not an Indian and apparently did not reside on the reservation, and because the

child's custody involved significant events off the reservation, the Williams-type infringement

test did not apply and there was nothing to prevent the district court's exercise of 

jurisdiction. 

Most importantly, this Court held that although the state and tribal court shared concurrent

jurisdiction, the district court should consider and balance many unique factors regarding

Indian child custody before it decided whether or not to exercise jurisdiction. See Bertelson,

189 Mont. at 532-41, 617 P.2d 126-30. See also Zier, 230 Mont. 464, 750 P.2d 1083

(applying factors from Bertelson). 

¶53 Bertelson, however, provided a very cursory analysis of tribal sovereignty, based upon

the fact that significant events related to the child's custody had occurred off the reservation

and that Fisher and Williams applied only to actions arising on an Indian reservation. 

Bertelson, 189 Mont. at 530-31, 617 P.2d at 125. 

¶54 In Bertelson, we stated that the most significant factor for a district court's

determination of whether to exercise jurisdiction should be the best interests of the child. 

For example, in a discussion of the ICWA's applicability, we stated that "a state court should

respect federal policy and consider the rights of the child and the tribe in deciding whether

to accept or to decline jurisdiction." Bertelson, 189 Mont. at 533, 617 P.2d at 126. Later,

in a discussion of conflict of laws principles, we stated that "[w]riters in this field 

generally

agree that any choice of law rules with regard to jurisdiction must give way to the child's

welfare as the determinative touchstone for jurisdiction even though it is also the basis for

deciding custody disputes on the merits." Bertelson, 189 Mont. at 534, 617 P.2d at 127. 

Finally, it held: "Arguably, either the state or the tribe could assert jurisdiction. The

question is to determine which forum is better able to determine the best welfare of the

child--the controlling principle for determining jurisdiction." Bertelson, 189 Mont. at 538,

617 P.2d at 129. 

¶55 We reiterate here that the best interests of the child should be the predominant factor

in the determination of which court should have jurisdiction in a matter that involves an

Indian child. We further assert that in any matter so essential to tribal relations as a 

custody

matter involving an Indian parent and Indian child who reside on Indian land, we must

presume that the tribal court has jurisdiction and consider the potential state exercise of

jurisdiction in terms of its infringement on tribal sovereignty. Based on these two criteria,

we conclude as a matter of law that a more reasoned approach for the courts of this state is

to recognize exclusive tribal jurisdiction in child custody proceedings between parents where

at least one parent is an Indian and that parent resides on the reservation with an Indian 

child.

¶56 As a matter of sovereignty, tribes are presumed to have jurisdiction over the activity

of members and non-members alike within the exterior boundaries of the reservation. See

Wellman, 258 Mont. at 137, 852 P.2d at 563 ("[C]ivil jurisdiction over activities of nonIndians as well as Indians on reservation lands presumptively lies in the tribal court.") 

(citing

Fisher, 424 U.S. 382, 96 S. Ct. 943, 47 L. Ed. 2d 106); Gieger v. Pierce (1988), 233 Mont.

18, 20, 758 P.2d 279, 280 ("Generally civil jurisdiction over commercial activities

presumptively lies in the tribal courts unless affirmatively limited by a specific treaty,

provision or federal statute.") (citing Iowa Mut. Ins. Co., 480 U.S. at ___, 107 S. Ct. at 978,

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94 L. Ed. 2d at 16). 

¶57 Where a state court's exercise of jurisdiction would infringe on the tribe's right to

govern itself, the state may not exercise jurisdiction and the tribal court is recognized as

having exclusive jurisdiction. See Fisher, 424 U.S. at 389, 96 S. Ct. at 948, 47 L. Ed. 2d at

113 ("Since the adoption proceeding is appropriately characterized as litigation arising on

the Indian reservation, the jurisdiction of the Tribal Court is exclusive.").

¶58 In Eagleman, 218 Mont. at 62, 705 P.2d at 1119-20, which involved the enforcement

of a default judgment against a resident Indian, we relied on the Ninth Circuit's test to

analyze potential infringement on tribal self-government: 

 A tribe's interest in self-government could be implicated in one of two

 ways. First, if a state or federal court resolves a dispute which was within the

 province of the tribal courts or other nonjudicial law-applying tribal

 institutions, that court would impinge upon the tribe's right to adjudicate

 controversies arising within it. Second, if the dispute itself calls into question

 the validity or propriety of an act fairly attributable to the tribe as a

 governmental body, tribal self-government is drawn directly into the

 controversy.

 

 We have recognized that the tribal court is generally the exclusive

 forum for the adjudication of disputes affecting the interests of both Indians

 and non-Indians which arise on the reservation.

 

 R.J. Williams Co. v. Fort Belknap Hous. Auth. (9th Cir. 1983), 719 F.2d 979, 983 (involving

a contract dispute over work performed on the reservation) (citations omitted). In the

specific area of child custody, in Bertleson we cited another federal case to reflect the nature

of the tribe's self-governing authority: "If tribal sovereignty is to have any meaning at all 

at

this juncture of history, it must necessarily include the right, within its own boundaries and

membership, to provide for the care and upbringing of its young, a sine qua-non to the

preservation of its identity." Bertelson, 189 Mont. at 539, 617 P.2d at 129 (quoting

Wisconsin Potowatomies v. Houston (W.D. Mich. 1973), 393 F. Supp. 719, 730, which

involved the permanent custody of orphaned Indian children).

¶59 The facts before us are a variation of previously discussed situations. They present

one non-resident, non-Indian parent, and one Indian parent and an Indian child who reside

on the Reservation, which indicates that a determination by the tribal court would extend the

tribal authority to more than just its own members. More importantly, the nature of a

custody dispute between a resident Indian parent and a non-resident, non-Indian parent

means that it lacks a clear situs either on or off the reservation. Nonetheless, we are not

without guidance about how to interpret a tribe's sovereignty and its attendant right of selfgovernment in this context.

¶60 The ICWA is one source. It clearly articulates how important Indian children are to

the continued existence of Indian tribes within this country. See 25 U.S.C. 1901(3)

("[T]here is no resource that is more vital to the continued existence and integrity of Indian

tribes than their children"). Especially when Indian children reside on the reservation, they

represent the single most critical resource to the tribe's ability to maintain its identity and 

to

determine its future as a self-governing entity. As such, we cannot think of a more legitimate

and necessary manifestation of tribal self-government than the tribe's right to have a role in

a custody determination of its member children who reside on the reservation with an

enrolled parent. Any exercise of state court jurisdiction over reservation Indians in a

domestic matter, which is already recognized by this court as uniquely tribal in nature, much

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less over the tribe's legacy--its children--would clearly infringe on the tribe's sovereign 

power

to govern itself and its right to keep its internal relations free from state authority. See 

In re

M.R.D.B., 241 Mont. at 459, 787 P.2d at 1221 ("[T]hese practices seriously undercut the

tribes' ability to continue as self-governing communities. Probably in no area is it more

important that tribal sovereignty be respected than in an area as socially and culturally

determinative as family relationships.") (quoting Congressional testimony on the ICWA cited

in Mississippi Band of Choctaw Indians, 490 U.S. at 34, 109 S. Ct. at 1601, 104 L. Ed. 2d

at 37).

¶61 As the U.S. Supreme Court stated in Fisher, state exercise of authority may bring

about a corresponding decline in tribal authority. See also Bertelson, 189 Mont. at 539, 617

P.2d at 129 ("An assumption of state court jurisdiction over Indian child custody disputes

poses a substantial risk of conflicting decisions which potentially threaten a decline in tribal

authority."). We decline here to undermine the tribe's position as a sovereign entity with the

suggestion that merely because a resident Indian child also has significant off-reservation

contacts through his non-Indian parent, its authority to exercise jurisdiction in domestic

matters over its members who reside on Indian land is put in jeopardy. As the conceptual

safeguard on which tribes depend to protect their identity, sovereignty must include at least

the right to exercise authority over members within tribal boundaries.

¶62 Although it has yet to address these facts, the United States Supreme Court is another

source for how to define the tribe's sovereignty in this context. In Montana, the second

exception articulated by the Court recognized tribal jurisdiction over nonmember conduct

that threatens or directly affects the tribe's political integrity, economic security, health, 

or

welfare. See Montana, 450 U.S. at 566, 101 S. Ct. at 1258, 67 L. Ed. 2d at 511. Moreover,

in Williams, the Court held that states could act only "where essential tribal relations were

not involved and where the rights of Indians would not be jeopardized . . . . " Williams, 358

U.S. at 219, 79 S. Ct. at 270, 3 L. Ed. 2d at 253. We conclude that in a child custody dispute

which involves an enrolled tribal member and that person's enrolled child, both of whom live

within the exterior boundaries of the Reservation, state jurisdiction would threaten the tribe's

political integrity and welfare, even though another party to the dispute is a non-Indian who

resides off the Reservation.

¶63 At its core, our decision to recognize exclusive jurisdiction for the tribal court in a

child custody matter that involves an Indian child and at least one Indian parent who reside

on the Reservation is based on the best interest of the child.

¶64 We recognize in the UCCJA and the PKPA the fundamental and overwhelming

opposition to jurisdictional disputes in matters of child custody. They clearly stand for the

idea that as long as courts fight over who will eventually determine custody of the child, the

child's future hangs in the balance, and as has been well established, that delay is not in the

child's best interests. 

¶65 There are, however, other significant factors in cases regarding the custody of an

Indian child. The ICWA clearly reflects the expertise of the tribal courts to determine the

best interests of the child in the context of his or her Indian heritage, an aspect of these

children's future lives that if lost, will be difficult if not impossible to regain. This 

Court has

frequently acknowledged the tribe's expertise as identified in the ICWA, and we have no

reason now to distrust the tribal court's experience and ability to distinguish the best 

interests

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of the child just because the terms of the ICWA do not apply to the specific facts before us.

We also appreciate that domestic matters like this have the potential to be especially

contentious and divisive for families, a sad fact that often inflicts greater harm on the child

than the already difficult changes that occur after a marriage dissolution. The additional

opportunity to contest the forum that will determine the merits of their controversy has the

further potential to create animosity between the parties. Although minor in comparison to

the injury to the child, we recognize that a dispute over jurisdiction could have a similarly

detrimental effect on the relationship between courts and on the parties' perceptions of the

court that ultimately exercises jurisdiction and makes the custody determination, which is

of no advantage to either court or any of the parties. We act here, in part, to reinforce the

tribal court's authority as an arm of the tribe's sovereign power, but also to eliminate public

manipulation of the judicial system as a whole.

¶66 As mentioned above, our decision here goes a step further than the doctrine of

abstention promulgated in Limpy and Stewart, as well as Bertelson's recognition of

concurrent jurisdiction with a preference and appreciation for the attributes of tribal

jurisdiction. We are motivated in part to avoid concurrent jurisdiction because it fails to

serve the best interests of the child. We have in the past seen state courts and tribal courts

work together in the best interest of the child. For example, in Zier we stated:

 [W]e commend both the District Court and the Crow Tribal Court for the

 obvious spirit of cooperation between them. The District Court's decision to

 defer to the Tribal Court's jurisdiction avoids competition and conflict between

 the courts, promotes the purposes of the [UCCJA] as set forth in 40-7-102,

 MCA, and discourages continuing battles for custody.

 

 230 Mont. at 467, 750 P.2d at 1084 (affirming, pursuant to Bertelson, the district court's

decision to defer jurisdiction to the tribal court). Even with cooperation by the courts,

however, the ultimate custody determination was delayed significantly by the parties' ability

to appeal the issue of jurisdiction, which was not in the best interests of the child. A rule 

of

law from this Court that promotes even the threat of delay in child custody proceedings is

not in the best interests of the child. 

¶67 Seven Indian Reservations exist within Montana's boundary. As such, interracial

marriages are a fact of life, and, as with other marriages, so are interracial divorces and

custody disputes over the children of those marriages. We take seriously our obligation to

the children of these marriages, as well as our obligation to respect the sovereignty of Indian

tribes in relation to our own responsibility to uphold and enforce the laws of this state. See

generally In re Adoption of Riffle (1996), 277 Mont. 388, 922 P.2d 510 ("[W]e stated that

it was our constitutional duty to preserve the unique cultural heritage and integrity of the

American Indians."); In re M.E.M. (1981), 195 Mont. 329, 333, 635 P.2d 1313 ("In applying

our state law and the [ICWA] we are cognizant of our responsibility to promote and protect

the unique Indian cultures of our state for all future generations of Montanans."). 

¶68 We recognize here that when the child does not reside on the reservation, child

custody principles do not necessarily favor recognition of exclusive jurisdiction for the tribe

as clearly as when the Indian child resides on the reservation. In addition, the tribe's

sovereignty is less at stake, since sovereignty is implicated most seriously in matters that

involve tribal members on the reservation; although Indian children manifest a fundamental

aspect of the tribe's sovereign power, when the child does not reside on the reservation the

tribe's authority is not so clearly undermined by the exercise of state jurisdiction. 

Accordingly, we hold that when an Indian child resides off the reservation, the state court

and tribal court share concurrent jurisdiction. 

¶69 However, we note that even when tribal jurisdiction is not exclusive, this Court has

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been reluctant to suspend the tribal court's jurisdiction just because a state court may have

concurrent jurisdiction in a custody proceeding of an Indian child. See Bertelson, 189 Mont.

at 532, 617 P.2d at 126 ("[W]e do not believe that state courts should, in a case of this

nature, automatically assume jurisdiction. That a state court may assume jurisdiction in a

case of this nature is not to say that it should."). 

¶70 We held in Bertelson that prior to its choice to exercise jurisdiction, a district court

should conduct a hearing "to determine which forum is better equipped to make a

determination on the merits, that is, to determine the child's best interests." Bertelson, 189

Mont. at 540, 617 P.2d at 130. We directed the district court at the hearing to conduct a

substantive inquiry, giving due consideration to the child's ethnic and cultural identity, as 

to:

 [T]he existence of tribal law or tribal customs relating to child care and

 custody in cases of this sort; the nature of the child's personal relationship with

 [his] grandparents and with [his] mother; the child's assimilation into and

 adjustment to life in the tribe and on the reservation; the mother's ethnic and

 cultural background and membership in or ties to the [tribe]; the length of the

 child's residence both on and off the reservation; the domicile and residence

 of the child's father and the child's personal relationship with [his] father.

 

 Bertelson, 189 Mont. at 540, 617 P.2d at 130. We also directed the district court to 

consider

§§ 40-4-211, 40-4-102, 40-4-107, 40-7-108, MCA, as well as the contacts of the child and

the parents to the tribe and the state, and "the tribe's interest in deciding the custody of one

of its members . . . ." Bertelson, 189 Mont. at 540, 617 P.2d at 130. In addition to these

factors, a district court, when deciding whether to exercise concurrent jurisdiction, should

consider the policy interests described here, and whether its exercise of jurisdiction would,

for reasons specific to the facts of the case, undermine tribal authority in such a way as to

infringe on the tribe's right to self-government.

 CONCLUSION

¶71 Here, the record is unclear about where the child resided when Shane initiated the

dissolution. "Because the welfare of an innocent young child is at stake, we are concerned

that a final decision of the jurisdictional questions presented be based on accurate factual

information." Bertelson, 189 Mont. at 529, 617 P.2d at 124. Although the record indicates

that Shane served Stacey with the petition for dissolution off the reservation, and that all the

parties, including Kinsey, were present at the time, we reject the notion that their mere

presence in Forsyth at the time is enough to establish residence and, consequently,

concurrent jurisdiction for the state court. See 40-4-211(2), MCA.

¶72 Section 1-1-215, MCA, sets forth the rules that should be applied to determine a

person's residence. See generally 44 Fed. Reg. 67583, 67585 (1979) (BIA guidelines stating

that state law is to be relied upon in defining the term domicile as used in the ICWA). It

states:

 (1) It is the place where a person remains when not called elsewhere

 for labor or other special or temporary purpose and to which the person returns

 in seasons of repose.

 (2) There may only be one residence. If a person claims a residence

 within Montana for any purpose, then that location is the person's residence

 for all purposes unless there is a specific statutory exception.

 (3) A residence cannot be lost until another is gained.

 (4) The residence of a minor's parents or, if one of them is deceased or

 they do not share the same residence, the residence of the parent having legal

 custody or, if neither parent has legal custody, the residence of the parent with

 whom the minor customarily resides is the residence of the unmarried minor.

 In case of a controversy, the district court may declare which parental

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 residence is the residence of an unmarried minor.

 (5) The residence of an unmarried minor who has a parent living

 cannot be changed by either the minor's own act or that of the minor's

 guardian.

 (6) The residence can be changed only by the union of act and intent. 

 

 Accordingly, these factors should guide the District Court in its determination of 

Stacey's and

Kinsey's residence at the time that Shane filed the petition for dissolution.

¶73 We reverse the District Court's order. We remand to the District Court to determine

first the residence of Stacey and the child. If it finds that Kinsey and Stacey were residents

of the reservation, pursuant to our holding here, it can take no further action other than to

dismiss the case. See Rule 12(h)(3) M.R.Civ.P.; Gieger v. Pierce (1988), 233 Mont. 18, 21,

758 P.2d 279, 281; In re Marriage of Lance (1984), 213 Mont. 182, 186, 690 P.2d 979, 981.

¶74 We further order the District Court, if it finds that the child was not a resident of the

reservation and that it shares concurrent jurisdiction with the tribal court, to consider the

factors from Bertelson that we describe above so as to determine whether the tribal court or

the District Court would be better able to determine the best interests of the child.

 /S/ TERRY N. TRIEWEILER

We Concur:

/S/ J. A. TURNAGE

/S/ JIM REGNIER 

/S/ W. WILLIAM LEAPHART

/S/ WILLIAM E. HUNT, SR.

Justice James C. Nelson specially concurring in part and dissenting in part.

¶75 I concur with the majority that a district court, prior to assuming jurisdiction over a

child custody proceeding when such jurisdiction is shared concurrently with a tribal court,

must conduct an inquiry based on the factors enumerated in the majority opinion to

determine whether the court should accept or decline to exercise that jurisdiction. 

Furthermore, I agree that in the case at bar the District Court record is unclear as to the

residency of both Stacey and Kinsey. In this regard, due to the importance, complexity and

sensitivity of this case, I concur with the majority's decision to remand this case to the

District Court to determine Stacey's and Kinsey's residence at the time Shane filed a petition

for dissolution with the District Court. However, because this dissolution involves both an

Indian parent and a non-Indian parent who has never resided on the Reservation as well as

a child who shares each parent's heritage, I disagree with the majority that Stacey's and

Kinsey's residence either on or off the Reservation is determinative of whether the Tribal

Court has exclusive or concurrent subject matter jurisdiction. Rather, I would conclude that

regardless of Stacey's and Kinsey's residence on or off the Fort Peck Reservation, the District

Court and the Fort Peck Tribal Court share concurrent jurisdiction in this case. 

Consequently, the District Court should consider Stacey's and Kinsey's residence as only one

of the many factors set forth in the majority opinion to determine which court would provide

the most appropriate forum for determining Kinsey's custody, and, therefore, which court

should exercise jurisdiction. Upon this basis, I respectfully dissent.

¶76 The express exclusion of divorce proceedings from the ICWA's coverage illustrates

Congress' intent that state and tribal courts should share concurrent jurisdiction over Indian

child custody proceedings arising within a divorce proceeding between an Indian parent and

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a non-Indian parent. As the Fourth Circuit Court of Appeals stated:

 This statutory exclusion clearly indicates that a state court may lawfully award

 custody of an Indian child to a non-Indian parent in a divorce proceeding. The

 [ICWA] does not confer exclusive jurisdiction on either a tribal court or a state

 court to award custody of children in a divorce proceeding. Rather, the

 [ICWA] discloses that Congress recognized that there can be concurrent

 jurisdiction in state and tribal courts.

Larch, 872 F.2d at 69 (comparing Sanders v. Robinson (9th Cir. 1988), 864 F.2d 630, 633,

cert. denied, 490 U.S. 1110 (1989)). Consideration of other case law leads to the same

conclusion.

¶77 We acknowledge the exclusivity of tribal jurisdiction over dissolution actions

involving tribal members residing on the reservation. See Wellman, 258 Mont. at 135-36,

852 P.2d at 562 (citing Limpy, 195 Mont. 314, 636 P.2d 266 and Stewart, 187 Mont. 209,

609 P.2d 290). Compare Fisher, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (holding that

a tribal court exercised exclusive jurisdiction over a child custody dispute wherein all the

parties were enrolled members residing on the reservation). However, once a dissolution

action involves a non-Indian party and/or one of the parties resides off the reservation, tribal

jurisdiction is no longer considered exclusive. For example, in Wellman, a tribal member

brought a dissolution action in state court against her non-Indian husband, although they both

resided on the Blackfeet Reservation. We noted, in dicta, that "[n]o 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 selfgovernment." Wellman, 258 Mont. at 136, 852 P.2d at 562. See also Sanders, 864 F.2d 630,

633 (without reaching the question of exclusive tribal jurisdiction, the Ninth Circuit

explained that the tribal court had at least concurrent but not necessarily exclusive

jurisdiction over a divorce action brought by an Indian against a non-Indian, both of whom

resided on the reservation).

¶78 Similarly, the South Dakota Supreme Court has determined that once a divorce case

no longer involves two tribal members residing on the reservation, the state and tribal courts

exercise concurrent subject matter jurisdiction. See Wells v. Wells (S.D. 1990), 451 N.W.2d

402. In Wells, an off-reservation Indian wife brought a divorce action in state court against

her Indian husband who resided on the reservation. The Court determined that the state and

tribal courts exercised concurrent jurisdiction over this divorce action. Wells, 451 N.W.2d

at 405-06. Under the Williams infringement test, the court determined that once the wife

resided off the reservation, the state acquired an interest in the marriage and the divorce was

no longer exclusively a "reservation matter." Wells, 451 N.W.2d at 405. By adjudicating

the case, the state court was only exercising its own concurrent jurisdiction and the tribe was

not denied the right to make and enforce its own laws. Wells, 451 N.W.2d at 405. Compare

Bertelson, 189 Mont. at 537, 617 P.2d at 129 ("Indians who reside off the reservation, as a

general rule have the same rights and responsibilities and are subject to the jurisdiction of

state courts in the same manner as state citizens") (citing Mescalero Apache Tribe v. Jones

(1973), 411 U.S. 145, 93 S.Ct. 1267, 36 L.Ed.2d 114).

¶79 In a subsequent case, the court explained that under this concurrent jurisdiction, the

court which first obtained valid personal jurisdiction over the parties could adjudicate the

case. Harris v. Young (S.D. 1991), 473 N.W.2d 141, 145. In Harris, the South Dakota

Supreme Court determined that state and tribal courts share concurrent jurisdiction over

divorce actions between an Indian party domiciled on a reservation and a non-Indian party

domiciled elsewhere within the state. Harris, 473 N.W.2d at 145. The court explained that

concurrent subject matter jurisdiction in this case was even more compelling than in Wells

because one of the parties was not an enrolled member of the tribe and had never been

domiciled on the reservation. Harris, 473 N.W.2d at 145. 

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¶80 The court considered other factors in addition to who the parties were and where they

lived to affirm the trial court's exercise of jurisdiction. The court noted that the daughter

involved in the case was not yet an enrolled member and that the tribal code allowed tribal

courts to have jurisdiction over this type of suit only by stipulation of the parties. Harris,

473 N.W.2d at 145. The court said that these two factors showed that the assertion of state

concurrent jurisdiction not only passed the Williams infringement test, but that it was

"compelled" by the specific provisions of the tribal code. Harris, 473 N.W.2d at 145-46. 

Finally, the court said that because the Indian wife had previously used the state court system

to restrain the non-Indian father from exercising his visitation rights, she could not now say

that the state court lacked subject matter jurisdiction because it infringed on tribal

sovereignty. The court considered her actions "opportunistic [and] self-serving . . . ." 

Harris, 473 N.W.2d at 146.

¶81 As seen from the cases discussed above, no precedent suggests that the Fort Peck

Tribal Court would exercise exclusive jurisdiction even if the District Court finds on remand

that Stacey and Kinsey resided on the Reservation at the time Shane filed for dissolution in

District Court. Rather, these cases support a conclusion that the District Court and Tribal

Court share concurrent jurisdiction. Clearly then, a finding by the District Court that Stacey

and Kinsey did not reside on the Reservation at the time Shane filed for dissolution in

District Court provides an even more compelling basis for the same conclusion.

¶82 Having concluded that the District Court and Tribal Court share concurrent

jurisdiction in this action regardless of whether Stacey and Kinsey resided on or off the

Reservation, I would also point out that, in addition to the factors enumerated in the majority

opinion, the Fort Peck Tribal Code itself provides guidance as to which court properly

exercised jurisdiction in the present action.

¶83 First, if the District Court determines that Stacey's and Kinsey's residence was off the

Reservation, the Fort Peck Tribal Code itself would preclude the Tribal Court from

exercising jurisdiction over this divorce and child custody matter. Title VI, § 301 of the Fort

Peck Tribal Code, grants the tribal court subject matter jurisdiction over divorce actions and

related custody proceedings involving non-Indians only if certain prerequisites are met: 

 The Court shall have jurisdiction over annulment, divorce and any

 paternity, child custody, division of property, child support or alimony decree

 pursuant to such annulment or divorce, where at least one (1) party to the

 marriage is an Indian, and at least one (1) party has been a bona fide resident

 within the boundaries of the Fort Peck Reservation for a period of ninety

 (90) days immediately preceding the filing of the action. [Emphasis added.]

Here, the parties do not dispute that Shane resided off the Reservation; therefore, if the

evidence shows that Stacey and Kinsey did not reside on the Fort Peck Reservation at the

time Shane filed for dissolution in the District Court, jurisdiction of the Fort Peck Tribal

Court would not be invoked because Stacey would fail to satisfy the requisite time period. 

On the other hand, if the evidence shows that Stacey and Kinsey did reside on the

Reservation at the time Shane filed for dissolution in the District Court, the requirements of

Title VI, § 301 of the Fort Peck Tribal Code would be satisfied and the Tribal Court could

also exercise jurisdiction.

¶84 However, in the case at bar, Stacey never filed for dissolution in Tribal Court, and,

consequently, she never invoked the court's jurisdiction pursuant to Title VI, 301 of the

Fort Peck Tribal Code, and, therefore, her residency on or off the Reservation is immaterial. 

Rather, Stacey invoked the jurisdiction of the Tribal Court pursuant to Title VI, 304a of

the Fort Peck Tribal Code, by petitioning for custody of Kinsey after the District Court

determined that Shane should be primary custodian. In response to Stacey's petition, the Fort

Peck Tribal Court exercised its jurisdiction and awarded her temporary custody the same

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day. Title VI, § 304a of the Fort Peck Tribal Code provides:

 The Court shall have authority to determine custody of children as

 between parents and legal guardians, or as between parents or legal guardians

 and anyone with actual physical custody of the child, either pursuant to a court

 order or otherwise, where there is no divorce or annulment proceeding

 pending. [Emphasis added.]

¶85 Stacey's invocation of the Tribal Court's jurisdiction in this case was improper. Once

dissolution proceedings are commenced within a state district court, the state court has

jurisdiction to make child custody determinations. Section 40-4-211, MCA. Additionally,

Montana exercises continuing jurisdiction over child custody matters. See Bertelson, 189

Mont. at 534-35, 617 P.2d at 127 (citing Cobell v. Cobell (9th Cir. 1974), 503 F.2d 790, cert.

denied, 421 U.S. 999 (1975)); Cobell, 503 F.2d at 795 (citing Barbour v. Barbour (1958),

134 Mont. 317, 330 P.2d 1093). Moreover, Title VI, § 304a of the Fort Peck Tribal Code,

by its own terms, placed jurisdiction over Kinsey's custody in the District Court because the

state dissolution was already pending.

¶86 In this regard, not only did Stacey improperly petition the Tribal Court for child

custody, but the Fort Peck Tribal Court improperly jumped into this case with its interim

custody order while the District Court was still exercising jurisdiction. The point to be made

is that while one sovereign's courts are exercising jurisdiction, another sovereign's courts

should abstain until the forum court settles any attack upon its jurisdiction. Here, Stacey did

the same opportunistic, self-serving thing condemned by the South Dakota Supreme Court

in Harris. That is, Stacey happily used the District Court while things went her way, but

abandoned the District Court in favor of the Tribal Court when it served her purposes to do

so. This sort of unseemly, opportunistic forum shopping is antithetical to the principles of

deference and stability that the majority opinion espouses. In fact, we condemned this very

thing in Agri West v. Koyama Farms, Inc. (1997), 281 Mont. 167, 933 P.2d 808. If Montana

courts are required to abstain from interfering in on-going tribal court litigation until the

tribal court determines it lacks jurisdiction or until a higher court makes that determination,

Agri West, 281 Mont. at 174, 933 P.2d at 812-13, then Montana courts and litigants have the

right to expect, and do expect, the same deference from tribal courts. That is, they expect

tribal courts to adhere to the same sort of abstention principle as adopted by the United States

Supreme Court in National Farmers and Iowa Mutual. See Strate, ___ U.S. at ___, 117 S.Ct.

at 1410, 137 L.Ed.2d at 672. 

¶87 The majority concludes that a tribal court has exclusive jurisdiction over "child

custody proceedings between parents where at least one parent is an Indian and that parent

resides on the reservation with an Indian child." To support this conclusion, the majority

relies primarily on the second exception to the general rule in Montana and on inapplicable

statutory law as set forth in the UCCJA, the PKPA, and the ICWA. The majority justifies

this conclusion by explaining that "[a]t its core, our decision to recognize exclusive

jurisdiction for the tribal court in a child custody matter that involves an Indian child and at

least one Indian parent who reside on the Reservation is based on the best interest of the

child."

¶88 Yet, "[o]ur case law establishes that, absent express authorization by federal statute

or treaty, tribal jurisdiction over the conduct of nonmembers exists only in limited

circumstances." Strate, ___ U.S. at ___, 117 S.Ct. at 1409, 137 L.Ed.2d at 670 (discussing

Oliphant, 435 U.S. 191, 98 S.Ct. 1011, 55 L.Ed.2d 209, and Montana, 450 U.S. 544, 101

S.Ct. 1245, 67 L.Ed.2d 493). Here, the majority strains to "give" tribal courts exclusive

jurisdiction over nonmember parents in child custody proceedings involving Native

American children by wedging inapplicable legislation, namely, the UCCJA, the PKPA and

the ICWA, into the second Montana exception. That is, the majority awkwardly struggles

to pound a square peg into a round hole. And, in doing so, they have destroyed the line

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separating judicial and legislative authority and have improperly legislated new law to

effectuate the benevolent goal of ensuring that child custody placement as between parents

is in the best interests of Indian children.

¶89 While I agree that in any child custody proceeding the best interests of the child

standard should factor predominantly, I disagree that based on this reason alone, this Court

should disregard the fundamental concept of separation of powers. Furthermore, I disagree

that the best interests of the child standard should be used as the controlling principle to

determine whether a court possesses subject matter jurisdiction over a child custody case as

a matter of law. Rather, only after concluding that it possesses subject matter jurisdiction

should a court use the best interests of the child standard as a controlling principle to

determine whether to exercise that jurisdiction. See Bertelson, 189 Mont. at 538, 617 P.2d

at 129. 

¶90 Admittedly, we have previously looked to the policies of nonapplicable child custody

statutes which incorporate the best interests of the child standard when reviewing a court's

decision to exercise subject matter jurisdiction over custody cases involving Native

American children. See generally Bertelson, 189 Mont. at 533, 617 P.2d at 126 (asserting

that although the ICWA did not apply to the instant case, state courts should "respect federal

policy and consider the rights of the child and the tribe in deciding whether to accept or to

decline jurisdiction") and Zier, 230 Mont. at 467, 750 P.2d at 1084 (commenting that the

district court's deferral of jurisdiction to the tribal court in a child custody matter promotes

the purposes of the UCCJA). However, to rely on nonapplicable child custody statutes

which incorporate the best interests of the child standard, as the majority does, to determine

as a matter of law whether a court possesses subject matter jurisdiction is again an entirely

different matter. That is, by using the best interests of the child standard as a controlling

principle to conclude that tribal courts possess exclusive subject matter jurisdiction over

certain Indian child custody cases, the majority erroneously inserts a discretionary standard

into a fundamental question of law. Nothing in our prior case law suggests that the

majority's current analysis and decision is appropriate. Moreover, the majority has adopted

an interpretation and application of federal law here that is directly inapposite to the

provisions of the law itself and renders this rationale and the decision which incorporates it

subject to attack in the federal courts.

¶91 In its discussion of general tribal jurisdiction, the majority acknowledges the general

rule of Montana that, subject to two exceptions, Indian tribes lack civil authority over the

conduct of nonmembers on non-Indian land within the reservation, absent different

Congressional direction. Montana, 450 U.S. at 563-67, 101 S.Ct. at 1257-59, 67 L.Ed.2d

at 509-11. However, the majority submits that the second exception to the general rule in

Montana, recognizing tribal jurisdiction over nonmember reservation conduct that threatens

or directly affects the tribe's political integrity, economic security, health or welfare, 

applies

in this case. To support the application of the second Montana exception here, the majority

compares this case to Fisher, explaining that Fisher was cited as an example of the second

Montana exception in both Montana and Strate. See Montana, 450 U.S. at 566, 101 S.Ct.

at 1258, 67 L.Ed.2d at 511, and Strate, ___ U.S. at ___, 117 S.Ct. at 1415, 137 L.Ed.2d at

678. With this comparison, the majority lays the foundation for the conclusion that when

a child custody dispute between parents involves an enrolled member and that person's child,

both of whom reside within the exterior boundaries of the reservation, tribal jurisdiction must

be recognized as exclusive to avoid causing a "decline in the authority of the Tribal Court." 

See Fisher, 424 U.S. at 388, 96 S.Ct. at 947, 47 L.Ed.2d at 112.

¶92 However, Fisher is factually distinguishable from the case at bar, and, as such, the

majority's reliance on Fisher is misplaced. Fisher involved a pre-ICWA parental rights

termination and adoption proceeding in which all the parties (the foster parents, biological

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mother, and Indian child) were members of the Northern Cheyenne Tribe and residents of

the Northern Cheyenne Reservation. In recognizing the exclusive jurisdiction of the tribal

court, the United States Supreme Court explained:

 State-court jurisdiction plainly would interfere with the powers of self-government 

conferred upon the Northern Cheyenne Tribe and exercised

 through the Tribal Court. It would subject a dispute arising on the

 reservation among reservation Indians to a forum other than the one they

 have established for themselves. As the present record illustrates, it would

 create a substantial risk of conflicting adjudications affecting the custody of

 the child and would cause a corresponding decline in the authority of the

 Tribal Court. 

Fisher, 424 U.S. at 388-89, 96 S.Ct. at 947, 47 L.Ed.2d at 112 (emphasis added). 

¶93 Unlike in Fisher, the custody dispute in the case at bar does not involve a parental

rights termination and adoption proceeding between enrolled Native Americans residing on

the reservation; rather, it involves a custody dispute resulting from a dissolution proceeding

between an Indian parent and a non-Indian parent. Furthermore, unlike in Fisher, the

situation presently before us cannot be labeled exclusively as a "dispute arising on the

reservation." Here, Kinsey's non-Indian father never resided on the Reservation. Therefore,

even if Stacey did reside on the Reservation with Kinsey during the times she had physical

custody, custody and visitation of Kinsey still were split between both parents and occurred

both on and off the Reservation. Consequently, the holding in Fisher is distinguishable and

fails to provide an avenue for including the present case within the second Montana

exception, and, therefore, fails to support the majority's ultimate conclusion that the Fort

Peck Tribal Court had exclusive jurisdiction if Stacey and Kinsey did reside on the Fort Peck

Reservation.

¶94 Next, the majority "analogiz[es] to the policy considerations of the UCCJA and the

PKPA." In doing so, the majority acknowledges that the definition of "state" used in the

UCCJA and the PKPA does not specifically include Indian tribes. Despite this, the majority

characterizes the omission as "of no consequence to the policy-based analysis of the UCCJA

and the PKPA that we engage here." And with this disclaimer, the majority boldly states that

"we will compare Indian tribes to territories within the meaning of the UCCJA and the PKPA

definition of 'state.' " To support this comparison, the majority cites cases from other

jurisdictions as well as our decision in Day, 272 Mont. 170, 900 P.2d 296.

¶95 Not only does our decision in Day fail to legitimize the majority's comparison, but an

opinion issued by the Ninth Circuit Court of Appeals, Wilson v. Marchington (9th Cir.

1997), 127 F.3d 805, sets forth an analysis showing the impropriety of such a comparison. 

In Marchington, the Ninth Circuit Court of Appeals concluded that principles of comity, not

principles of full faith and credit, govern whether a district court should recognize and

enforce a tribal court judgment. Marchington, 127 F.3d at 808. To reach this conclusion,

the court noted that, by its own terms, the Full Faith and Credit Clause, Article IV, Section

1 of the United States Constitution, only applies to states. Marchington, 127 F.3d at 808. 

Furthermore, the court noted that the initial legislation implementing this constitutional

clause, 28 U.S.C. 1738, passed in 1790 and modified in 1804, was only modified to

include territories and possessions. Marchington, 127 F.3d at 808. No where were Indian

tribes referenced in either the constitutional clause or the implementing legislation. 

Marchington, 127 F.3d at 808.

¶96 The court considered many factors to conclude that Congress did not intend to include

Indian tribes under the Full Faith and Credit Clause. Marchington, 127 F.3d at 808-09. 

First, the court pointed out that subsequent statutes, including the ICWA, 25 U.S.C. 1901

et seq., expressly extended full faith and credit to certain tribal proceedings. Marchington,

127 F.3d at 809. The court concluded that such an inclusion would not have been necessary

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if full faith and credit had already been extended to the Indian tribes. Marchington, 127 F.3d

at 809. Second, the court specifically noted that Congress' separate listing of territories,

possessions and Indian tribes in the ICWA indicated that Congress did not consider these

terms as synonymous. Marchington, 127 F.3d at 809. Further, the court pointed out that if

Congress intended to include Indian tribes under 28 U.S.C. § 1738, it could have either made

specific reference to them in the 1804 amendments or made additional amendments to the

statute after ambiguous judicial constructions surfaced. Marchington, 127 F.3d at 809. The

court concluded:

 Given this history, it would be imprudent of us to now construe the

 phrase "territories and possessions" in the 1804 statute to assume the meaning

 of the language Congress used in the Indian Child Welfare Act ("every

 territory or possession of the United States, and every Indian tribe") (emphasis

 added) and the Indian Land Consolidation Act.

 Certainly, there are policy reasons which could support an extension of

 full faith and credit to Indian tribes. Those decisions, however, are within the

 province of Congress or the states, not this Court. Full faith and credit is not

 extended to tribal judgments by the Constitution or Congressional act, and we

 decline to extend it judicially. 

Marchington, 127 F.3d at 809.

¶97 We have previously recognized the distinction expressed in Marchington. See

Wippert v. Blackfeet Tribe (1982), 201 Mont. 299, 304, 654 P.2d 512, 515 (holding that

"[t]ribal court judgments are treated with the same deference shown decisions of foreign

nations as a matter of comity"). See also Day, 272 Mont. 170, 900 P.2d 296. Contrary to

the implication created by the majority's citation to Day that the majority's comparison of

Indian tribes to territories within the definition of "state" as employed by the UCCJA and the

PKPA is sound, our decision in Day did not arbitrarily include Indian tribes within the

definition of "state" as set forth in the Full Faith and Credit for Child Support Orders Act,

28 U.S.C. § 1738B (1994) (Child Support Act). Rather, we employed the provisions of the

Child Support Act in Day to resolve issues involving enforcement of tribal court child

support orders because the Child Support Act expressly defined a "state" to include "Indian

country," and, therefore, the provisions of the Child Support Act expressly applied to Indian

tribes. See Day, 272 Mont. at 175-77, 900 P.2d at 299-301 (citing 28 U.S.C. § 1738B(b)).

¶98 In Day, the Child Support Enforcement Division (CSED) brought an income

withholding action in state district court against Day for satisfaction of past due child 

support

payments based on a Fort Peck Tribal Court's order modifying Day's child support

obligation. Day, 272 Mont. at 173-74, 900 P.2d at 298-99. We first considered the issue of

whether the Fort Peck Tribal Code's statute of limitations or Montana's longer statute of

limitations applied to the action. Day, 272 Mont. at 175-77, 900 P.2d at 299-301. Initially,

we determined that the district court erred in applying the Uniform Foreign Money-Judgments 

Recognition Act (Recognition Act) to conclude that under the Fort Peck Tribal

Code's shorter statute of limitations the action was time-barred. Day, 272 Mont. at 174, 900

P.2d at 299. We explained that the Recognition Act expressly excluded from its coverage

"judgments for support in matrimonial or family matters." Day, 272 Mont. at 175 , 900 P.2d

at 299 (citing § 25-9-602(1), MCA). Furthermore, based on the applicability of the Child

Support Act as indicated by its express inclusion of Indian tribes within its definition of

"state," we concluded that Indian tribes were excepted out of the definition of "foreign

states" under the provisions of the Recognition Act as well. Day, 272 Mont. at 175, 900 P.2d

at 299 (citing § 25-9-602(2), MCA).

¶99 Accordingly, we turned to the governing federal Child Support Act to resolve the

statute of limitations issue. The Child Support Act provided that in a child support

enforcement action, " 'a court shall apply the statute of limitation of the forum State or the

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State of the court that issued the order, whichever statute provides the longer period of

limitation.' " Day, 272 Mont. at 175, 900 P.2d at 300 (quoting 28 U.S.C. § 1738B(g)(3)).

Therefore, following the directive of the Child Support Act, we held that Montana's longer

statute of limitations applied, and, consequently, CSED's action against Day was not timebarred. Day, 272 Mont. at 176-77, 900 P.2d at 300. 

¶100 We next considered the issue of whether CSED could enforce a tribal court child

support order without initiating an action in a state district court. Day, 272 Mont. at 177-79,

900 P.2d at 301-02. We again concluded that "[s]ince Indian tribes are deemed 'states' for

the purposes of child support orders under the federal Child Support Act, Montana's Child

Support Enforcement Act [, Title 40, Chapter 5, part 4, MCA,] may be employed in the

instant case as well." Day, 272 Mont. at 178, 900 P.2d at 301. Accordingly, we held that

Montana's Child Support Enforcement Act could be employed as one alternative to initiating

a state court action to enforce tribal court child support orders. Day, 272 Mont. at 178, 900

P.2d at 301-02.

¶101 Just as in Wippert and Day, the distinction made in Marchington should be recognized

and followed in this case. See Marchington, 127 F.3d at 808-09. As the majority concedes,

neither the UCCJA nor the PKPA specifically include Indian tribes within the definition of

"state," and, therefore, these statutes do not apply to the case at bar. Furthermore, even if

applicable, the statutory provisions of the UCCJA and the PKPA were not intended to confer

subject matter jurisdiction on a court, but rather only control when a court should exercise

that jurisdiction. See §§ 40-7-102, -104; 28 U.S.C. § 1738A(f). See generally Harris, 473

N.W.2d at 143 (explaining that "the UCCJA assumes, but does not create, subject matter

jurisdiction") and Shupe, 276 Mont. at 413-15, 916 P.2d at 746-48. Consequently, it is

axiomatic that these statutory provisions should not be used to determine the existence and

character of subject matter jurisdiction exercised by either the state or tribal courts.

¶102 Furthermore, in addition to considering the policies of the UCCJA and the PKPA, the

majority relies heavily on the ICWA to conclude that the tribal court should exercise

exclusive jurisdiction over child custody proceedings between parents involving an enrolled

parent who resides on the reservation with the Indian child. This, too, is improper. The

ICWA excludes from coverage "a placement based . . . upon an award, in a divorce

proceeding, of custody to one of the parents." 25 U.S.C. § 1903(1). As the Bureau of Indian

Affairs (BIA) commented in its guidelines for state courts: 

 Child custody disputes arising in the context of divorce or separation

 proceedings or similar domestic relations proceedings are not covered by the

 [ICWA] so long as custody is awarded to one of the parents. 

 . . . .

 The entire legislative history makes it clear that the [ICWA] is directed

 primarily at attempts to place someone other than the parent or Indian

 custodian in charge of raising an Indian child--whether on a permanent or

 temporary basis.

44 Fed. Reg. 228 (1979) at 67587. Many other jurisdictions share the view that, based on

the express exclusion of divorce proceedings from the ICWA's definition of "child custody

proceeding," the ICWA does not apply to child custody matters connected with divorce

proceedings. See Matter of Custody of K.K.S. (Minn.App. 1993), 508 N.W.2d 813, 816; In

re Custody of Sengstock (Wis.App. 1991), 477 N.W.2d 310, 312-13; Harris, 473 N.W.2d

at 143 (citing Application of Defender (S.D. 1989), 435 N.W.2d 717, 721-22); In re Crystal

K. (Cal.App. 3 Dist. 1990), 276 Cal.Rptr. 619, 622-24, cert. denied, 502 U.S. 862 (1991);

Marriage of Baisley (Colo.App. 1987), 749 P.2d 446, 449, cert. denied, 488 U.S. 917

(1988); and Malaterre v. Malaterre (N.D. 1980), 293 N.W.2d 139, 145. See also DeMent

v. Oglala Sioux Tribal Court (8th Cir. 1989), 874 F.2d 510, 514 and Larch, 872 F.2d at 69.

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¶103 The majority acknowledges that the ICWA expressly excludes custody disputes

arising from a marriage dissolution award. However, the majority states that "[r]egardless

of its literal nonapplication to the facts before us, we cannot ignore the fact that the ICWA

'evinces an emphatic federal policy of protecting the tribal role in proceedings involving

Indian children.' " In fact, the majority pronounces that "we appreciate that in terms of our

jurisdiction analysis, any disregard for the clear policy behind the ICWA preferences for a

tribal determination instead of a state determination would at least in part provoke a 'decline

in the authority of the Tribal Court.' " In other words, the majority requires district courts

to apply the provisions of the ICWA to dissolution proceedings involving custody disputes

over Native American children regardless of the fact that the ICWA itself expressly excludes

these proceedings from its coverage.

¶104 Certainly here, as in Marchington, tempting policy reasons exist (namely, the best

interests of the child standard) to support the application of the policies underlying the

UCCJA, the PKPA and the ICWA, to conclude that tribal jurisdiction should be exclusive. 

However, by applying these policies, the majority has unnecessarily invaded the province

of the legislature. Article III, Section 1 of the Montana Constitution provides:

 The power of the government of this state is divided into three distinct

 branches--legislative, executive and judicial. No person or persons charged

 with the exercise of power properly belonging to one branch shall exercise any

 power properly belonging to either of the others, except as in this constitution

 expressly directed or permitted.

¶105 Correspondent with this separation of powers clause is the statutory rule of

construction that "the office of the judge is simply to ascertain and declare what is in terms

or in substance contained therein, not to insert what has been omitted or to omit what has

been inserted." Section 1-2-101, MCA. Simply put, the duty of the Supreme Court in

interpreting a statute "is not to enact, but to expound, the law . . . ." Clark v. Olson 

(1934),

96 Mont. 417, 432, 31 P.2d 283, 288. As we have long stated, " '[i]t is the duty of this court

to construe the law as it finds it.' " State ex rel. Durland v. Board of County Comm'rs

(1937), 104 Mont. 21, 24, 64 P.2d 1060, 1062 (quoting Montana Beer Retailers Protective

Ass'n v. State Bd. of Equalization (1933), 95 Mont. 30, 34, 25 P.2d 128, 130). 

 "Statutes should be their own interpreter. Courts must look at the language

 used, and the whole of it, and derive therefrom the intention of the legislature. 

 Where this intention is obvious there is no room for construction. When the

 language is plain, simple, direct and without ambiguity, the Act construes

 itself, and courts must presume the legislature intended what it plainly says. 

 It is only in the case of ambiguous, doubtful and uncertain enactments that the

 rules and principles of interpretation can be brought into requisition. It is not

 allowable to interpret what has no need of interpretation."

Durland, 104 Mont. at 24-25, 64 P.2d at 1062 (quoting Smith v. Williams (1874), 2 Mont.

195, 198).

¶106 While this canon of construction is modified in federal Indian law to resolve doubtful

expressions of legislative intent in favor of Native Americans, this modified canon also "does

not permit reliance on ambiguities that do not exist; nor does it permit disregard of the

clearly expressed intent of Congress." South Carolina v. Catawba Indian Tribe, Inc. (1986),

476 U.S. 498, 506, 106 S.Ct. 2039, 2044, 90 L.Ed.2d 490, 498. In other words, " '[a] canon

of construction is not a license to disregard clear expressions of tribal and congressional

intent.' " Catawba Indian Tribe, 476 U.S. at 506 n. 16 (quoting DeCoteau v. District County

Court (1975), 420 U.S. 425, 447, 95 S.Ct. 1082, 1094, 43 L.Ed.2d 300, 315). As the First

Circuit Court of Appeals aptly explained before concluding that Maine was not subject to

the Indian Gaming Regulatory Act, 25 U.S.C. §§ 2701-2721, 18 U.S.C. §§ 1166-1168

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(IGRA), because Congress did not expressly apply the IGRA to Maine as required by the

Maine Indian Claims Settlement Act of 1980, 25 U.S.C. §§ 1721-1735:

 The rule of construction [regarding the resolution of ambiguous

 statutory language in favor of Native Americans] to which the Tribe alludes

 reflects a strong federal interest in safeguarding Indian autonomy. But the rule

 is apposite only when Congress has blown an uncertain trumpet. If ambiguity

 does not loom, the occasion for preferential interpretation never arises. When

 as now, Congress has unambiguously expressed its intent through its choice

 of statutory language, courts must read the relevant laws according to their

 unvarnished meaning, without any judicial embroidery. So it is here: since

 there is no statutory ambiguity, the principle of preferential construction is not

 triggered. 

Passamaquoddy Tribe v. State of Maine (1st Cir. 1996), 75 F.3d 784, 793 (citing Rosebud

Sioux Tribe v. Kneip (1977), 430 U.S. 584, 586-87, 97 S.Ct. 1361, 1362-63, 51 L.Ed.2d 660;

Catawba Indian Tribe, 476 U.S. at 506, 106 S.Ct. at 2044, 90 L.Ed.2d 490; and Rhode Island

v. Narragansett Indian Tribe (1st Cir. 1994), 19 F.3d 685, 691, cert. denied, 513 U.S. 919

(1994)). See also Rumsey Indian Rancheria of Wintun Indians v. Wilson (9th Cir. 1994), 64

F.3d 1250, 1257 (holding that "although statutes benefitting Native Americans generally are

construed liberally in their favor, we will not rely on this factor to contradict the plain

language of a statute"). Compare Marchington, 127 F.2d at 809 (declining to judicially

extend full faith and credit to tribal court judgments when neither the Constitution nor

Congress had done so, despite the existence of policy reasons supporting such an extension).

¶107 Consequently, because the statutory provisions of the UCCJA, the PKPA, and the

ICWA, by their own terms, are inapplicable to the case at bar, the majority's application of

these provisions to justify "giving" tribal courts exclusive jurisdiction over nonmember

parents in child custody proceedings involving Native American children creates improper

judicial legislation. Such an imprudent violation of the constitutional prohibition against

courts exercising legislative power could easily be avoided while still compelling the

recognition of the best interest of the child standard simply by recognizing that the state and

tribal courts share concurrent jurisdiction in these child custody matters and admonishing

state courts to carefully consider, on a case by case basis, whether such jurisdiction should

be assumed using the factors enunciated in the majority opinion. 

¶108 Recognition of concurrent jurisdiction would allow us to follow the more flexible

inquiry described in Bertelson in all interparental child custody disputes involving Native

American children. That is, "[t]he matter could be more rationally approached as a question

of restraint on the part of state courts in the exercise of jurisdiction, rather than an 

absolute

absence of authority." Barbara Ann Atwood, Fighting Over Indian Children: The Uses and

Abuses of Jurisdictional Ambiguity, 36 U.C.L.A. L. Rev. 1051, 1104 (1989). Such an

approach would not only respect the parens patriae role of both the state and the tribe, but

would also acknowledge each forum's competence in determining whether exercise of its

own jurisdiction would serve the best interest of the Indian child. Not to mention that such

an approach in child custody matters would also encourage the cooperation between state

and tribal courts overall.

¶109 Therefore, I would affirm the District Court's conclusion that the State Court and

Tribal Court share concurrent jurisdiction over this matter without regard to whether Stacey

and Kinsey resided on or off the Reservation. However, I would remand this case to the

District Court for consideration of the factors in Bertelson and those set forth in the majority

opinion to determine whether to accept or decline to exercise concurrent jurisdiction in this

action.

 /S/ JAMES C. NELSON

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Justice Karla M. Gray joins in the foregoing specially concurring and dissenting opinion.

 /S/ KARLA M. GRAY

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