United States ex rel. Cobell v. Cobell

OPINION TRASK, Circuit Judge: This is a unique child custody struggle involving the conflicting jurisdictional claims of the Montana state courts and the Blackfeet Tribal Court. The controversy comes before us on appeal from the granting of a writ of ha-beas corpus by the federal district court pursuant to 25 U.S.C. § 1303.1 Henry and Joan Cobell, the parents of the two minor children who are the subjects of this custody battle, are both enrolled members of the Blackfeet Tribe. In August 1971, Joan Cobell sued for a divorce in the Montana state court and Henry Cobell counterclaimed. A divorce decree was entered the following December and Henry Cobell was granted tem [792] porary custody of the children. In August 1972, however, the state court modified its original order and transferred custody of the children to their mother, pending further hearings. Acting under the authority of this revised order, Joan Cobell took the children to her mother’s home on the Blackfeet Reservation. Meanwhile, Henry Cobell successfully appealed the custody reversal to the Montana Supreme Court. The August 1972 order granting custody to Joan Cobell was vacated and temporary custody was restored to Henry. The mother, however, refused to surrender the children, and it is at this point that the Blackfeet Tribal Court intervened. On a petition from the children’s maternal grandmother (appellant Leona Conway), Tribal Judge John Sharp assumed jurisdiction over the controversy and issued, ex parte, a temporary restraining order enjoining the children’s removal from the Blackfeet Reservation.2 Service of the order was effected on Henry Cobell by mail. Shortly thereafter, Henry Cob-ell filed a petition for a writ of habeas corpus in the federal district court in order to secure the release of his two children. The District Court granted the writ and ordered that the custody of the children be restored to the father in accordance with the Montana state court rulings. The children’s grandmother, Leona Conway, and Tribal Judge John Sharp both appeal the granting of this writ.3 [793] Preliminarily, we address the appellants’ argument that the habeas corpus petition was prematurely entertained since the petitioner had not “exhausted” his tribal remedies. That is, it is urged that a principle analogous to the “exhaustion of state remedies” doctrine be applied to federal review of tribal actions. Here it is argued that Henry Cobell could have requested a hearing before Judge Sharp or could have appealed the tribal restraining order to a special tribal appellate court before he sought federal intervention. Unlike the general habeas corpus statute directed against unlawful state custody 28 U.S.C. § 2254, there is no express exhaustion requirement contained in the specialized writ which is involved in this controversy, 25 U.S.C. § 1303.4 Nonetheless, we acknowledge thé principle of comity which underlies the exhaustion doctrine, Preiser v. Rodriguez, 411 U.S. 475, 490, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973), and note that the doctrine has been applied in other non-state contexts, e. g., Gusik v. Schilder, 340 U.S. 128, 131-132, 71 S.Ct. 149, 95 L.Ed. 146 (1952) (habeas attack on military judgment). The arguments in favor of extending the exhaustion doctrine to reviews of tribal action under the Indian Bill of Rights, 25 U.S.C. §§ 1301-1303, are well summarized in Dodge v. Nakai, 298 F.Supp. 17, 25 (D.Ariz.1968): “First, this interpretation [reading an exhaustion requirement into the act] would reconcile the statute with ‘a strong Congressional policy to vest Navajo Tribal Government with responsibility for their own affairs.’ Second, this interpretation would place primary responsibility for the vindication of rights violated by Indian governmental agencies upon the tribal courts. Such responsibility may well enhance the development of an independent Indian judiciáry, thus reconciling the statute with recognized federal policy .... Third, this interpretation would insure that this Court would intervene only in those instances in which local conflicts cannot be resolved locally . . . .” The reasoning in Dodge v. Nakai has also been recently approved by the Eighth Circuit. In O’Neal v. Cheyenne River Sioux Tribe, 482 F.2d 1140, 1146 (8th Cir. 1973), the court concluded: “. . . [T]he adoption of the Indian Bill of Rights was not meant to detract from the generally recognized policy, stated in the Williams case, of preserving the ‘authority of tribal courts . . . .’ Williams v. Lee, supra, 358 U.S. [217] at 223, 79 S.Ct. 269, [3 L.Ed.2d 251]. Furthermore, we believe that the policy stated in Williams ‘would support an exhaustion requirement.’ ” See also McCurdy v. Steele, 353 F.Supp. 629 (D.Utah 1973). Our recognition of the exhaustion principle in the tribal context is not unqualified, however. We concur with the view expressed by the Eighth Circuit that “exhaustion is not an inflexible requirement.” O'Neal v. Cheyenne River Sioux Tribe, supra 482 F.2d at 1146. The court there further observed: “A balancing process is evident; that is weighing the need to preserve the cultural identity of the tribe by strengthening the authority of the tribal courts, against the need to immediately adjudicate alleged deprivations of individual rights. Thus this Court must determine whether exhaustion is appropriate in the case at bar.” Id. at 1146. Indeed, exhaustion was ultimately found to be impractical in Dodge v. Nakai, supra, and McCurdy v. Steele, supra, cases which endorsed the exhaustion principle in general. Likewise, we do not believe that the District Court here erred when it concluded that Henry Cobell lacked meaningful remedy in the tribal courts. First, the restraining order issued by Judge Sharp contained no invitation to [794] participate in tribal appellate processes. Rather, the ex parte order, although designated as “temporary,” spoke with a tone of finality. More significantly, however, is the fact that Judge Sharp testified that he had issued the restraining order to test tribal jurisdiction, and .that only a federal court order would cause him to rescind the action. Under these circumstances, we agree with the District Court’s conclusion that: “. . . [T]he petitioner had no effective remedies available to him in Tribal Court. . . . That remedies are available in theory, but not in fact, is not synonymous with failure to exhaust remedies. That ineffective and meaningless procedures were available to petitioner does not preclude his seeking a writ of habeas corpus.” C.T. at 101-102. At the outset we are confronted with the question of mootness although not urged by any of the interested parties. Following the action of Judge Sharp which vacated the Tribal Court’s restraining order and ordered Joan Cobell to release the children to Henry Cobell at his request, the children were obtained by Henry who returned with them to Billings, Montana. The parents were then involved in active litigation before Montana state courts concerning custody. Thus the order of the District Court has been fully performed. However, the determination of the issue by the District Court and compliance therewith by the interested parties does not necessarily render the cause moot. The underlying conflict still exists. Notice of appeal was filed both by Leona Conway and by the Blackfeet Tribal Court and the Honorable John Sharp, Judge. The District Court noted that it had been informed that an appeal would be taken when his final order was made. The loser in the custody battle in the Montana state courts may still return to the reservation as a sanctuary in the hope that Judge Sharp or his successor might upon reconsideration choose not to follow the existing District Court ruling. Indeed, the brief on behalf of Judge Sharp and the Tribe, in its opposition to any suggestion of mootness, frankly states that “[i]t is much more than merely possible that the childless parent will continue to use the judicial processes available to obtain custody — it is almost a certainty!” It is clear that the voluntary cessation of the conduct which has been challenged does not necessarily render the case moot. United States v. W. T. Grant Co., 345 U.&. 629, 632, 73 S.Ct. 894, 97 L.Ed. 1303 (1953); So. Pacific Terminal Co. v. I. C. C., 219 U.S. 498, 31 S.Ct., 279, 55 L.Ed. 310 (1911); Alton & So. Ry. Co. v. Int’l Ass'n of Mach. & A. W., 150 U.S.App.D.C. 36, 463 F.2d 872 (1972); Note, Mootness on Appeal in the Supreme Court, 83 Harv.L.Rev. 1672, 1682 (1970). Here the situation itself, plus the implications of the appellants’ briefs, suggests the tinder which can not only inflame the same controversy but bring the same parties before the court again. In addition, there is a public interest in having the issue now before the court resolved with some hope of finality. It affects the most sensitive of human relationships; it also directly involves the vital jurisdictional harmony of two sovereign entities. The case has not become moot either as a matter of judicial administration or of constitutional dimension under ax’ticle III. We therefoi’e turn to the primary jurisdictional issue involved in this appeal. The State of Montana’s interest in the welfare of the Cobell children is beyond dispute. The children were domiciled in the state and enrolled in the state public school system when Joan and Henry Cobell began their divoxxe proceedings. Presence, domicile and jurisdiction over the parents are well recognized bases for the assertion of jurisdiction to determine child custody. Restatement (Second) Conflict of Laws § 79 (1971). Even more pertinent is Mont.Rev.Stat. Tit. 21, § 138 (1947) which states: “In an action for divorce the coux-t or judge may, before or after judgment, [795] give such direction for the custody, care and education of the children of the marriage as may seem necessary or proper, and may at any time vacate or modify the same.” Thus, by voluntarily invoking the state court’s jurisdiction for divorce purposes, the Cobells clearly submitted the question of their children’s custody to the judgment of the Montana state courts. Moreover, Montana, like the majority of states, views its jurisdiction in custody matters as continuing, Barbour v. Barbour, 134 Mont. 317, 330 P.2d 1093 (1958), and unaffected by the removal of the children from the state, Butts v. Collins, 129 Mont. 440, 289 P.2d 949 (1955). Notwithstanding the jurisdictional claims of the Montana courts, the appellants argue that the presence of the children on the Blackfeet Reservation gave the Tribal Court a coequal interest in the children’s welfare. Although the possibility that two sovereigns may enjoy concurrent jurisdiction in a custody situation is well recognized, Restatement (Second) Conflict of Laws § 79 (1971), we do not believe that such a situation exists here. First, unlike ¡the State of Montana, the jurisdiction of the Blackfeet Tribal Court is limited and does not extend to the full range of domestic relations incidents. Chapter 3 of the Blackfeet Tribal Law and Order Code explicitly disclaims tribal jurisdiction over marriage, divorce and adoption. The Code defers to state law and state jurisdiction for proceedings in those areas.5 We interpret this relinquishment of jurisdiction to encompass a surrender of jurisdiction over custody determinations incident to divorce actions as well. The appellants, however, contend that Chapter 3, Section 6 of the Blackfeet Tribal Law and Order Code entitled “Proceedings for the Termination of the Parent-Child Relationship” gave the Tribal Court authority for its action. We disagree. The provision cited by the appellants deals with child neglect and abandonment on the Reservation. Only a strained reading can support application of that provision to this child custody struggle which is characterized by the very opposite of parental neglect. Moreover, nowhere in the detailed Code provisions is there any reference to the child custody determinations coincident with divorce. Rather, Section 6 contains the disclaimer: “This judicial action is intended primarily for those situations where other judicial remedies appear inappropriate, and is not intended to modify Sections 1, 2 and 3 of Chapter 3 of the Blackfeet Tribal Law and Order Code dealing with the applicability of State laws to marriage, divorce and the determination of paternity.” We therefore conclude that the Tribal Court lacked jurisdiction to determine the custody of the Cobell children and that the court’s order restraining the children was unlawful. The writ of ha-beas corpus was properly granted. Judgment affirmed. Footnotes [1] Section 1303 reads : “The privilege of the writ, of habeas corpus shall be available to any person, in a court of the United States, to test the legality of his detention by order of an Indian tribe.” [2] The full text of Judge Sharp’s order reads: “Upon the filing of a Petition by Leona Conway and good cause having been shown; “NOW THEREFORE, it is ordered as follows: I. “That Venetta Lynn Cobell and Rodney Dale Cobell are hereby declared to be without sufficient and adequate supervision ; and, II. “That said children are presently residing on the Blackfeet Reservation and are Indian offspring, of parents who are enrolled members of the Blackfeet Tribe and legal residents; and, III. “That said children are suffering emotionally and psychologically because of the uncertainty of their custody and adult supervision ; and, IV. “That the Court as a friend and protector of these children deems it necessary under the circumstances to assume the care, custody and control of the children, by virtue of its jurisdiction, until a hearing may be held after investigation by the Welfare Department; and, V. “That said children be, and they are hereby ordered to be under the care, custody and control of this Court; and, VI. “That the children are not to be removed from the Blackfeet Reservation by anyone without further order of this Court; and, VII. “That a copy of this order be served personally or through the mail upon the parents, Henry Cobell and Joan Cobell; and, VIII. “That the Welfare Department is ordered to provide for these children until further order of this Court, and to make periodic reports to this Court that it may request; ; [sic] and ; IX. “That this Order will be temporary until this Court is satisfied that Montana State District Court has made a final determination upon the question of custody and until this Court is further satisfied that custody provisions are accepted and for the best, interests of said children. DATED this 6th day of October, 1972.” C.T. at 4-5. [3] On January 3, 1973, Judge Sharp issued an “Order to Vacate,” as follows : “Action and compliance [sic] with the December 15, 1972, Order of the United States District Court for the District of Montana and the January 3, 1973, Order of the United States Court of Appeals for the Ninth Circuit. “IT IS ORDERED that the temporary restraining order of October 6, 1972, is hereby vacated; “IT IS FURTHER ORDERED that the custody of the two (2) children, Venetta Lynn Cobell and Rodney Dale Cobell, is hereby awarded to their father, Henry Cobell; “IT IS FURTHER ORDERED that Joan Cobell release the children to nenry Cobell at his request. “Dated this 3rd day of January, 1973. /s/ John P. Sharp JOHN P. SHARP, Chief Judge for the Blackfeet Tribe.” Brief for Appellants at Appendix A. [4] See n. 1, supra. [5] The Blackfeet Tribal Law and Order Code states at Chapter 3, as follows: “Section 1, Marriages. “All members of the Blackfeet Indian Tribe shall hereafter be governed by State law and subject to State jurisdiction with' respect to marriages hereafter consummated. Common law marriages and Indian custom marriages shall not be recognized-within the Blackfeet Reservation. “Section 2, Divorces. “All divorces must be consummated in accordance with the State law of Montana. Indian custom divorces are from this time on illegal and will not be recognized as lawful divorces on the Blackfeet Reservation.”