Indian Law Bulletins | State Courts | Matter of S.R.
In the MATTER OF: S.R. and C.R., Youths in Need of Care.
Justice Dirk Sandefur delivered the Opinion of the Court.
Whether the District Court erroneously terminated Mother’s parental rights without properly determining whether the children were Indian children?
Appellant C.C. (Mother) and P.R. (Father) are the birth parents of two children (S.R. and C.R.).1 The Child and Family Services Division of the Montana Department of Public Health and Human Services (Department) first became involved with S.R. and C.R. (then ages four and ten respectively) under Title 41, ch. 3, MCA, in October 2016 upon information that Mother and Father were using and distributing dangerous drugs (unauthorized prescription drugs, methamphetamine, and marijuana) in and out of the family home.2 The Department initially worked with the parents on a voluntary basis under a voluntary protection plan but later filed district court petitions seeking emergency protective services (EPS), adjudication of the children as youth in need of care, and temporary legal custody (TLC). The petitions essentially alleged that the children were neglected, or in danger of neglect, based on the parents’ illegal drug use and activity, and related concerns regarding the cleanliness of the family home. The Department’s supporting affidavits further alleged that, to the best of the Department’s knowledge and belief, the children were not Indian children as defined by the federal Indian Child Welfare Act (ICWA), 25 U.S.C. § 1901, et seq.
On December 21, 2016, Mother and Father respectively appeared, personally and through assigned counsel, for the initial show cause hearing.3 Through counsel, Mother asserted that S.R. and C.R. may be Indian children for the purposes of ICWA based on Mother’s belief that she may be eligible for enrollment in the Crow Indian Tribe. Father’s counsel similarly asserted that the children may be eligible for tribal enrollment. The Department social worker responded that she had no reason to believe that the children were Indian children due to the parents’ lack of cooperation and her assertion that the paternal grandparents had told her that neither parent was eligible for tribal enrollment. The Department thus moved the District Court to proceed on a non-ICWA basis pending further information.
The parents did not dispute the central allegations of neglect set forth in the Department’s petitions. However, as an alternative to proceeding to youth in need of care adjudications and TLC, Mother requested that the court instead grant the Department temporary investigative authority (TIA) pending notice and receipt of conclusive Crow Tribe determination of the enrollment eligibility of the children. The Department opposed the interim TIA proposal, asserting that it would serve no purpose other than to delay adjudication, TLC, and imposition of reunification-oriented treatment plans. The Department social worker nonetheless assured the court that she would meet with Mother after the hearing to discuss Mother’s asserted Crow Tribe affiliation and then make inquiry as appropriate. The District Court thus rejected the interim TIA proposal and instead elected to proceed with adjudications as requested by the Department. By subsequent stipulation, the court granted the Department EPS, adjudicated the children as youth in need of care as defined by § 41-3-102(34), MCA, and granted the Department TLC for a period of six months. At the subsequent dispositional hearing on February 8, 2017, the court adopted and imposed Department-proposed treatment plans for the parents.
Four months later, on June 12, 2017, the Department petitioned the court to extend TLC for an additional six months to allow the parents more time to work on their treatment plans. Inter alia, and without reference to what efforts, if any, the Department had made to obtain determinations of enrollment eligibility from the Crow Tribe, the Department’s supporting affidavit again asserted that the children were not Indian children to the best of its knowledge. The District Court subsequently granted the requested extension of TLC at hearing on July 19, 2017.
In November 2017, the Department petitioned the court for termination of the parents’ respective parental rights and permanent legal custody based on alleged treatment plan failure. At the termination hearing on February 28, 2018, the District Court admitted into evidence a March 2017 letter from the Crow Tribe informing the Department that the child C.R. was neither enrolled nor enrollable in the Tribe based on the fact that neither parent was enrolled or enrollable. The letter did not reference S.R. The Department social worker testified that the Department had received a separate letter from the Crow Tribe stating that S.R. was similarly not enrolled or eligible for tribal enrollment. However, the Department did not offer the purported letter into evidence at the hearing. The social worker explained that she did not bring the letter regarding S.R. to court because she thought the letter regarding C.R. would suffice since the children had the same parents.
On the evidence presented at hearing, the District Court issued findings of fact, conclusions of law, and judgments terminating the parents’ respective parental rights to the children due to treatment plan failure and thus granted the Department permanent legal custody. In pertinent part, the written judgments indicated that the court terminated the parents’ respective parental rights based on the non-ICWA standard of proof (clear and convincing evidence) specified by § 41-3-609(1), MCA. The court’s findings, conclusions, and judgments did not reference ICWA or include any finding regarding the tribal enrollment eligibility of either child. Mother timely appeals.
We review parental rights terminations under Title 41, ch. 3, MCA, for an abuse of discretion based on compliance with applicable Montana statutory and ICWA standards. In re L.D., 2018 MT 60, ¶ 10, 391 Mont. 33, 414 P.3d 768; In re D.B., 2007 MT 246, ¶ 16, 339 Mont. 240, 168 P.3d 691. An abuse of discretion occurs if a court exercises discretion based on a clearly erroneous finding of fact, erroneous conclusion of law, or otherwise acts arbitrarily, without employment of conscientious judgment, or in excess of the bounds of reason resulting in substantial injustice. In re D.E., 2018 MT 196, ¶ 21, 392 Mont. 297, 423 P.3d 586; D.B., ¶¶ 16-18. Findings of fact are clearly erroneous only if not supported by substantial evidence, the lower court misapprehended the effect of the evidence, or upon our review of the record we have a definite and firm conviction that the district court was mistaken. L.D., ¶ 10; In re D.H., 2001 MT 200, ¶ 14, 306 Mont. 278, 33 P.3d 616. We review conclusions of law de novo for correctness. In re M.W., 2004 MT 301, ¶ 16, 323 Mont. 433, 102 P.3d 6.
The United States Congress enacted ICWA in 1978 to “protect the best interests of Indian children and to promote the stability and security of Indian tribes and families. ...” 25 U.S.C. § 1902. ICWA manifests the Congressional determination and policy that the preservation and protection of the relationship between Indian children and related Indian tribes is in the best interests of the children and essential to the continued existence of the tribes. Miss. Band of Choctaw Indians v. Holyfield, 490 U.S. 30, 49-53, 109 S.Ct. 1597, 1609-11, 104 L.Ed.2d 29 (1989) (noting that ICWA vests Indian tribes with a right and interest in related Indian children “distinct from but on a parity with the interest of the parents”). See also 25 U.S.C. § 1901(5) (states “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. § 1902; 25 C.F.R. § 23.3. In furtherance of this clearly stated federal policy, ICWA imposes heightened federal standards for the removal of Indian children from Indian families. See, e.g., 25 U.S.C. §§ 1902, 1911, and 1912(d)-(f) (policy, tribal jurisdiction and right of intervention in state court proceedings, and over-arching requirements for active remedial efforts, qualified expert testimony, and proof beyond a reasonable doubt). ICWA broadly applies to state law “child custody proceedings,” as defined by 25 U.S.C. § 1903(1), involving “Indian child[ren],” as defined by 25 U.S.C. § 1903(3)-(8). See 25 U.S.C. § 1912.
Like all parents, Indian parents have fundamental federal and Montana constitutional rights in the custody and care of their children. In re A.R.A., 277 Mont. 66, 70-71, 919 P.2d 388, 391 (1996); In re Guardianship of Doney, 174 Mont. 282, 286, 570 P.2d 575, 577 (1977); Troxel v. Granville, 530 U.S. 57, 65-67, 120 S.Ct. 2054, 2059-60, 147 L.Ed.2d 49 (2000); Stanley v. Ill., 405 U.S. 645, 652, 92 S.Ct. 1208, 1213, 31 L.Ed.2d 551 (1972). Regardless of Montana’s compelling interest in protecting children from abuse and neglect,4 state and federal constitutional rights to due process of law at a minimum require that state legal processes for suspension or termination of parental rights be fundamentally fair and that states substantially comply with all applicable state and federal statutory requirements for suspension or termination of parental rights. See In re M.A.E., 1999 MT 341, ¶ 18, 297 Mont. 434, 991 P.2d 972; In re J.N., 1999 MT 64, ¶ 12, 293 Mont. 524, 977 P.2d 317; In re R.B., 217 Mont. 99, 103, 703 P.2d 846, 848 (1985). Thus, in suspending or terminating parental rights based on abuse, neglect, or abandonment as defined by §§ 41-3-102(1) and (3), MCA, district courts must substantially comply, and make sufficient findings of fact manifesting compliance, with applicable requirements of Title 41, ch. 3, MCA, and ICWA. L.D., ¶ 13; D.B., ¶¶ 17-18; In re J.V., 2003 MT 68, ¶ 7, 314 Mont. 487, 67 P.3d 242; M.A.E., ¶ 18; J.N., ¶ 12; R.B., 217 Mont. at 103, 703 P.2d at 848.
Whether ICWA applies to a proceeding under Title 41, ch. 3, MCA, depends on whether a child is an Indian child. See 25 U.S.C. § 1912(a). ICWA defines an “Indian child” as an unmarried person under the age of eighteen who is either “a member of an Indian tribe” or “eligible for membership in an Indian tribe and is the biological child of a member of an Indian tribe.” 25 U.S.C. § 1903(4). See also 25 U.S.C. § 1903(3), (5) (defining related terms “Indian” and “Indian child’s tribe”). The threshold determination of whether a child is an Indian child is equally critical and determinative of the governing legal standards for temporary “foster care placement” and termination of parental rights proceedings. See 25 U.S.C. §§ 1903(1)(i)-(ii) and 1912(a); 25 C.F.R. § 23.2 (“foster care placement” and termination proceedings are separate “proceedings” for purposes of ICWA).
Emergency removals,5 “foster care placement” proceedings, and termination proceedings are distinct “proceedings” under ICWA. See 25 U.S.C. §§ 1903(1)(i)-(ii), 1912(a), 1922; 25 C.F.R. § 23.2. A “foster care placement” is a temporary court-ordered placement, or proceeding therefor, of “an Indian child [away] from [a] parent or Indian custodian ... where the parent or Indian custodian cannot have the child returned upon demand. ...” 25 U.S.C. §§ 1903(1)(i), 1912(e); 25 C.F.R. § 23.2 (defining “child-custody proceeding”). Except where not involving a temporary removal and placement of the child, proceedings under Title 41, ch. 3, MCA, for EPS,6 TIA,7 and TLC8 are “foster care placement” proceedings as defined by 25 U.S.C. § 1903(1)(i) and referenced in 25 U.S.C. § 1912. See 25 U.S.C. §§ 1912(a), (d)-(f); In re H.T., 2015 MT 41, ¶¶ 36-38, 378 Mont. 206, 343 P.3d 159.9 See also §§ 41-3-109, -301(7), -422(5)(b), (6)(a), -423(2), -427(1), (2), -432, -433, -437(2), (8), -438(3)(f), -442, MCA; In re A.K.H., 502 N.W.2d 790, 792-93 (Minn. App. 1993) (temporary placement of child in physical custody of a person not a parent or Indian custodian is a “temporary placement in ... the home of a guardian or conservator” as referenced in 25 U.S.C. § 1903(1)(i)—state law definitions of guardian or conservator not determinative).
If and when the court “has reason to know that an Indian child is involved” in an EPS, TIA, or TLC proceeding not involving a temporary removal and placement of the child, the Department must immediately, by registered mail with return receipt requested, “notify ... the Indian child’s tribe” of “the pending proceedings and of [the tribe’s] right of intervention.” 25 U.S.C. § 1912(a). “If the identity or location of ... the tribe cannot be determined, such notice shall be given to the Secretary [of the Interior] in like manner, who shall have fifteen days after receipt to provide the requisite notice to ... the tribe.” 25 U.S.C. § 1912(a). The court may not thereafter proceed with any “foster care placement ... proceeding ... until at least ten days after receipt of notice by ... the tribe or the Secretary....” 25 U.S.C. § 1912(a) (emphasis added).10 However, ICWA does not prohibit district courts from continuing a pre-petition emergency removal and placement by the Department under § 41-3-301, MCA, pending tribal notice and determination of a child’s tribal enrollment eligibility. See 25 U.S.C. §§ 1903(1), 1912, 1915, 1922; 25 C.F.R. § 23.2. See also H.T., ¶¶ 36-38.
Unless a reason is manifest on the face of the Department’s petition or supporting affidavit(s), the initial show cause hearing is generally the first occasion for the court to have “reason to know that an Indian child is involved” in an EPS, TIA, or TLC proceeding. See §§ 41-3-109, -301(7), -422(1)(a), -427(4), -432, -433, -437(1), 438(3)(f), -442, MCA. At the “commencement” of the show cause hearing, the court “must ask each participant” in the proceeding “whether the participant knows or has reason to know that the child is an Indian child.” 25 C.F.R. § 23.107(a).11 See also 25 U.S.C. § 1912(a) (“[n]o foster care placement ... proceeding shall be held until at least ten days after receipt of notice by the ... tribe or the Secretary” of the Interior). The court must make this inquiry “on the record” and require record responses from “each participant.” 25 C.F.R. § 23.107(a) (emphasis added). For purposes of 25 U.S.C. § 1912, a “reason to know that an Indian child is involved” is no more than awareness of a reasonable basis upon which to believe that a child may be an Indian child. In re Gerardo, 119 Cal.App.4th 988, 14 Cal.Rptr.3d 798, 802 (2004); In re Kahlen, 233 Cal.App.3d 1414, 285 Cal.Rptr. 507, 511 (1991). See also 25 C.F.R. §§ 23.107(a), (c), -108(a). Accord In re Joseph P., 140 Cal.App.4th 1524, 45 Cal.Rptr.3d 591, 595-96 (2006).12 For example, a court “has reason to know that an Indian child is involved” if, inter alia, “[a]ny participant” or “officer of the court involved in the proceeding” either “informs the court that the child is an Indian child” or that the person has “information indicating that the child is an Indian child.” 25 C.F.R. § 23.107(c).
[c]onfirm, by way of a report, declaration, or testimony included in the record that the [Department] used due diligence to identify and work with all of the Tribes of which there is reason to know the child may be a member (or eligible for membership), to verify whether the child is in fact a member (or a biological parent is a member and the child is eligible for membership).25 C.F.R. § 23.107(b)(1) (emphasis added). When there is reason to know that an EPS, TIA, or TLC proceeding not involving a temporary removal and placement of the child may involve an Indian child, the court may proceed only after compliance with the tribal notice and enrollment eligibility requirements of 25 U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(a) and 23.111(a)-(c). In any event, the court must make findings of fact sufficient to manifest compliance with 25 U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(a), (b)(1), and 23.111(a)-(c). See L.D., ¶ 13; D.B., ¶¶ 17-18; J.V., ¶ 7; M.A.E., ¶ 18; J.N., ¶ 12; R.B., 217 Mont. at 103, 703 P.2d at 848. If unable to obtain a conclusive tribal determination of a child’s tribal enrollment eligibility upon compliance with U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(a), (b)(1), and 23.111(a)-(c), the court must thereafter “[t]reat the child as an Indian child, unless and until” it conclusively determines “on the record that the child” is not an ICWA-defined Indian child. 25 C.F.R. § 23.107(b)(2) (emphasis added).
Whether a child is eligible for tribal membership and is thus an Indian child is a question of fact for exclusive determination by the Indian tribe(s) in regard to which the court has reason to know the child may be related. L.D., ¶ 14; 25 C.F.R. § 23.108(b). A tribal determination of membership eligibility is conclusive as a matter of law. L.D., ¶ 14; 25 C.F.R. § 23.108(b). A district court may not independently determine whether a child is eligible for membership in an Indian tribe. L.D., ¶ 14; 25 C.F.R. § 23.108(b). When there is reason to know that a child may be eligible for tribal enrollment, it is the Department’s duty and burden to diligently investigate, provide formal notice to the suspected Indian tribes or the Secretary of the Interior, and obtain a conclusive tribal determination of a child’s eligibility for tribal membership. See 25 U.S.C. § 1912(a); 25 C.F.R. §§ 23.2, 23.107(a), 23.111(a)-(c), 23.112(a), (b)(2). However, in that circumstance, it is ultimately the duty of district courts to demand, ensure, and manifest, through sufficient findings of fact, Department compliance with all applicable ICWA tribal notice and enrollment eligibility requirements. See L.D., ¶¶ 15-17; 25 U.S.C. § 1912(a); 25 C.F.R. §§ 23.107(b)(1), 23.111(a)-(c). Proceeding without doing so is an abuse of discretion. See, e.g., In re L.A.G., 2018 MT 255, ¶¶ 11-29, 393 Mont. 146, 429 P.3d 629; D.E., ¶¶ 22-38; L.D., ¶¶ 13-17; In re A.G., 2005 MT 81, ¶¶ 14-18, 326 Mont. 403, 109 P.3d 756.
Here, Mother asserts that the District Court abused its discretion in failing to timely and properly confirm or dispel a reason to know that S.R. and C.R. were ICWA-defined Indian children. The Department contrarily asserts that the court did not have sufficient “reason to know” that the children were Indian children and that, even if it did, any resulting non-compliance with ICWA was harmless error in any event.
The record of the initial show cause hearing on December 21, 2016, fairly manifests that the parents separately asserted their respective beliefs that the children may qualify for enrollment in the Crow Tribe through their mother. The record further fairly reflects that the parents accordingly asserted that the Department should thus give notice and obtain a determinative response from the Tribe prior to the case proceeding beyond a grant of TIA. While the parents’ assertions were not supported by evidentiary fact and were less than certain or unequivocal, the standard for triggering ICWA’s tribal notice and enrollment eligibility determination requirements is low—the court must merely have a “reason to know,” i.e., a reasonable basis upon which to believe that a child may be an Indian child. Gerardo, 14 Cal.Rptr.3d at 802; Kahlen, 285 Cal.Rptr. at 511. See also 25 U.S.C. § 1912(a); 25 C.F.R. §§ 23.107(a), (c), 23.108(a). What constitutes a reasonable basis upon which to believe that a child may be eligible for tribal enrollment is a factual matter that will vary based on the particular record in each case.
Contrary to the Department’s assertion and the apparent corresponding view of the District Court, the “reason to know” standard does not necessarily require an evidentiary showing, and certainly not by the parents, that a child or parent may be eligible for tribal membership. See 25 U.S.C. § 1912(a); 25 C.F.R. §§ 23.107-08. Nor does ICWA require that an assertion of potential tribal eligibility be certain. Gerardo, 14 Cal.Rptr.3d at 802; Kahlen, 285 Cal.Rptr. at 511. See also 25 C.F.R. §§ 23.107(a), (c), -108(a). Any more stringent construction as suggested by the State would defeat ICWA’s manifest purpose and command. Certainly, a “reason to know” is a low standard, but not an unlimited one. In re Jeremiah G., 172 Cal.App.4th 1514, 92 Cal.Rptr.3d 203, 207-08 (2009); In re Z.H., 740 N.W.2d 648, 653-54 (Iowa App. 2007). A “reason to know” requires something more than a bare, vague, or equivocal assertion of possible Indian ancestry without reference to any identified Indian ancestors with a reasonably suspected tribal connection. See Jeremiah G., 92 Cal.Rptr.3d at 207-08; Z.H., 740 N.W.2d at 653-54. Pursuant to 25 C.F.R. § 23.107(c)(1), Mother’s asserted belief that she may be eligible for enrollment in the Crow Tribe was minimally sufficient to constitute a reason to know that the children were Indian children under the circumstances of this case.
We are further troubled by the Department’s apparent view that it has no affirmative duty to make further inquiry or provide tribal notice and inquiry when parents are not cooperative. Lack of parental cooperation is immaterial, is not a basis for equitable waiver or estoppel, and does not otherwise relieve state agencies and courts of the duty to comply with ICWA requirements. Kahlen, 285 Cal.Rptr. at 512. ICWA vests Indian children and related Indian tribes with a federal right, independent of but on par with the right of Indian parents, to specified tribal notice and eligibility determinations regardless of the conduct or disregard of the parents. Miss. Band of Choctaw Indians, 490 U.S. at 49-53, 109 S.Ct. at 1609-11; Kahlen, 285 Cal.Rptr. at 512. The practical difficulty or inability of a state agency to identify the correct tribe or substantiate an assertion of requisite Indian ancestry does not relieve the agency of its duty to comply with ICWA requirements. See Kahlen, 285 Cal.Rptr. at 512.
In addition to the parents’ assertions of possible Crow Tribe eligibility at the initial show cause hearing in this case, the considerable record colloquy between court and counsel that followed further manifests a reasonable basis upon which to believe that the children may be Indian children, regardless of whether the reason was not uncertain or based on an affirmative evidentiary showing. In disregard of that reason, the court failed to: (1) ensure that the Department promptly noticed and made inquiry of the Crow Tribe; (2) ensure that the Department then either obtained conclusive tribal enrollment eligibility determinations or made an affirmative record showing of why and on what basis it was unable to do so on due diligence; and (3) treat the children as Indian children pending tribal notice and determination of enrollment eligibility. We hold that the District Court abused its discretion in proceeding on from the show cause hearing in non-compliance with the requirements of 25 U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(b) and 23.108.
Turning to the termination stage of the proceedings, Mother asserts that the District Court further erred by terminating her parental rights to S.R. under non-ICWA standards without sufficient evidence of the child’s ineligibility for tribal enrollment and an associated finding of fact. The tribal notice and enrollment eligibility requirements of 25 U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(b) and 23.108 apply equally to preliminary “foster care placement” and termination of parental rights proceedings. See 25 U.S.C. §§ 1903(1)(i)-(ii), 1912(a); 25 C.F.R. § 23.2(2). Within that framework, Mother correctly asserts that the Department failed to present and offer into evidence a purportedly in-hand conclusive determination of S.R.’s tribal enrollment ineligibility from the Crow Tribe. Mother further correctly asserts that the District Court failed to make any finding of fact manifesting the Department’s compliance with the tribal notice and enrollment eligibility requirements of 25 U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(b) and 23.108.
However, while district courts may not substitute their judgment for a conclusive tribal determination, L.D., ¶¶ 14-17; 25 C.F.R. § 23.108(b); they may, in determining whether a child is an Indian child, nonetheless “rely on facts or documentation indicating a Tribal determination of membership or eligibility.” 25 C.F.R. § 23.108(c) (emphasis added). Here, regardless of the Department’s failure to offer into evidence a purported in-hand tribal eligibility determination for S.R. and the court’s concomitant failure to make any finding of fact regarding the tribal eligibility or Indian status of either child, prominent in the termination hearing record was a conclusive Crow Tribe determination that C.R. was not eligible for tribal membership. Based on that determination and the undisputed record fact that S.R. and C.R. were siblings with the same birth parents, the record clearly manifests that, based on a conclusive tribal determination, neither child was an ICWA-defined Indian child. Thus, the District Court’s failure to make a sufficient finding of fact regarding S.R.’s ineligibility for tribal enrollment did not substantially prejudice Mother under the circumstances of this case.
Harmless error is not reversible error. H.T., ¶ 10; In re A.N., 2000 MT 35, ¶¶ 39, 55, 298 Mont. 237, 995 P.2d 427. See also § 25-11-102(1), MCA (standard for new trial); M. R. Civ. P. 61 (“errors and defects” not affecting a “party’s substantial rights” are harmless); M. R. Evid. 103(a). Procedural or substantive error in civil proceedings is generally reversible only if it materially prejudiced the outcome of the proceeding. See H.T., ¶ 10; A.N., ¶¶ 39, 55; M. R. Civ. P. 61. However, otherwise harmless technical non-compliance with an express statutory requirement affecting a fundamental constitutional liberty interest may nonetheless be reversible if strict compliance is necessary to ensure a fundamentally fair process. See L.A.G., ¶¶ 13-19 (required ICWA “Indian child” determination); D.E., ¶¶ 22-38 (required ICWA “Indian child” determination); L.D., ¶¶ 11-17 (required ICWA “Indian child” determination); In re D.L.B., 2017 MT 106, ¶ 10, 387 Mont. 323, 394 P.3d 169 (involuntary mental health commitment criteria); In re R.M.T., 2011 MT 164, ¶ 27, 361 Mont. 159, 256 P.3d 935 (parental rights termination criteria); In re J.C., 2008 MT 127, ¶¶ 37-55, 343 Mont. 30, 183 P.3d 22 (TLC proceedings); D.B., ¶¶ 17-18 (termination proceeding findings).
Here, the termination hearing record manifests that, based on a conclusive tribal determination, S.R. and C.R. were not ICWA-defined Indian children. The District Court’s initial failure to comply with 25 U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(b) and 23.108 was thus harmless. The court’s subsequent failure, upon terminating Mother’s parental rights, to make any finding regarding S.R.’s ineligibility for tribal enrollment was likewise at most harmless error under the facts and circumstances of this case.
We hold that the District Court abused its discretion in proceeding on from the initial show cause hearing in non-compliance with the requirements of 25 U.S.C. § 1912(a) and 25 C.F.R. §§ 23.107(b) and 23.108. However, based on a subsequent and ultimately conclusive tribal determination that neither child was eligible for tribal enrollment, we hold that the abuse of discretion was harmless. We further hold that the District Court’s subsequent failure, upon terminating Mother’s parental rights, to make any finding of fact regarding S.R.’s ineligibility for tribal enrollment was at most harmless error under the facts and circumstances of this case.
Justice Laurie McKinnon, specially concurring.
I disagree with certain aspects of the Court’s legal analysis as well as its application of law to the facts of this case. I specially concur, however, because I agree with the Court’s ultimate decision to affirm the District Court. Portions of the Court’s legal analysis are unclear and overlook the fact that the interaction between ICWA and Montana’s child abuse and neglect statutes, Title 41, chapter 3, MCA (Chapter 3), depends greatly on the specific facts of each case. I further disagree with the Court’s application of the law in this case, specifically its unwarranted criticism of the Department’s actions.
While not directly at issue here, the Court’s general statements about which Montana proceedings constitute “emergency removals” and “foster care placement proceedings” under ICWA are confusing and may lead to misunderstanding. See Opinion, ¶ 14. I therefore feel the need to clarify when ICWA’s emergency removal exception applies to child abuse and neglect proceedings in Montana before addressing the specific facts of this case. The Court states that “[e]xcept where not involving a temporary removal and placement of the child,” an EPS proceeding is a “ ‘foster care placement’ proceeding.” Opinion, ¶ 14. The Court then clarifies in a footnote that “[a]n emergency removal pursuant to § 41-3-301, MCA,”—the statute entitled, “Emergency protective service,” or “EPS”—“is not an ICWA-defined ‘child custody proceeding’ subject to ICWA’s pre-hearing tribal notice and kinship placement requirements.” Opinion, ¶ 14 n.9.
I agree with the Court’s conclusion that EPS removals pursuant to § 41-3-301, MCA, are emergency removals that ICWA shall not be construed to prevent. See 25 U.S.C. § 1922. The Court’s explanation is confusing, however, because the term EPS, and the various Montana statutes explaining EPS, encompass actions that are both emergency removals and foster care placement proceedings under ICWA. The point at which an EPS removal pursuant to § 41-3-301(1), MCA, ceases to constitute an emergency removal under § 1922 varies from case-to-case. Once a foster care placement proceeding commences and the court knows or has reason to know that a child is an Indian child, the court should ensure the Department provides notice to the tribe and then wait the obligatory ten days from when the tribe received the notice before holding a foster care placement proceeding. 25 U.S.C. § 1912(a). That ICWA requirement may not be construed, however, to limit the court’s ability to make interim decisions to provide for a child’s care on an emergency basis. 25 U.S.C. § 1922.
Chapter 3 contains Montana’s child abuse and neglect statutes. Relevant to the discussion here, Chapter 3 includes part 3, “Protective Care,” and part 4, “Abuse or Neglect Proceedings.” In many cases, the Department utilizes part 3’s protective care statutes as a precursor to part 4’s abuse or neglect proceeding statutes. Part 3 provides for the emergency removal of a child in danger: if a Department social worker “has reason to believe any child is in immediate or apparent danger of harm,” she “may immediately remove the child and place the child in a protective facility.” Section 41-3-301(1), MCA.
Those types of emergency removals are not limited by ICWA’s notice and kinship placement requirements—§ 1922 provides, “Nothing in [ICWA] shall be construed to prevent the emergency removal of an Indian child ... from his parent ... or the emergency placement of such child in a foster home ... under applicable State law, in order to prevent imminent physical damage or harm to the child.” Accordingly, ICWA shall not be construed to prevent the emergency removal of a child in Montana under § 41-3-301(1), MCA.
Within five working days of the emergency removal, the county attorney must file an abuse and neglect petition. Section 41-3-301(6), MCA. In many cases, a foster care placement proceeding, as defined by ICWA, will begin once the county attorney files that petition: “Proceedings under [Chapter 3] must be initiated by the filing of a petition. A petition may request ... immediate protection and emergency protective services, as provided in 41-3-427.” Section 41-3-422(1)(a)(i), MCA (emphasis added). If the circumstances of the case meet the definition of a “foster care placement proceeding” under ICWA, and if the court knows or has reason to know that an Indian child is involved in the proceeding, the case is subject to § 1912’s notice requirement—the court must ensure the Department notifies the child’s tribe of the pending proceedings and wait the requisite ten days.
However, § 1922’s emergency removal exception does not necessarily end the moment the county attorney files a petition initiating a foster care placement proceeding. Section 1922’s emergency removal exception terminates “when such removal or placement is no longer necessary to prevent imminent physical damage or harm to the child.” 25 U.S.C. § 1922. Shortly after the Department removes a child on an emergency basis pursuant to § 41-3-301(1), MCA, the county attorney must file a petition for immediate protection and EPS. Section 41-3-301(6), MCA.
In many cases, the emergency removal and placement will still be necessary at that time to prevent imminent physical damage or harm to the child. ICWA shall not be construed to limit the court’s ability to continue to protect the child on an emergency basis after the county attorney initiates a foster care placement proceeding by filing a petition for immediate protection and EPS. The court may make decisions to ensure the child is protected and cared for after the emergency removal or placement until the removal or placement is no longer necessary to prevent imminent physical damage or harm to the child. See 25 U.S.C. § 1922. That moment will be different in each case and is, by definition, not tied to the commencement of a foster care placement proceeding. ICWA does not limit the court’s ability to make decisions while the removal or placement is still necessary to prevent imminent damage or harm to the child and the Opinion, ¶¶ 14-15, creates confusion by failing to clearly identify the court’s authority after an emergency removal.
Having clarified the way ICWA should apply in EPS removals in Montana, I turn to the facts of this case and take issue with how the Court applied the law. On October 11, 2016, the Department received a report expressing concerns with the parents’ drug use and distribution, lack of child supervision, and the cleanliness of the family’s home. The Department struggled to contact the parents for multiple days, and eventually spoke with them on October 18, 2016, after visiting S.R. at school. At that time, Mother and Father agreed to work with the Department on a voluntary basis and they both signed a protection plan. The Department placed the children in their paternal grandparents’ care. Thereafter, the Department struggled to contact the parents and Father’s drug test came back positive for amphetamines and methamphetamines. The Department tested the children’s hair follicles for substances. S.R. tested negative but C.R. tested positive for opiates, methamphetamine, morphine, and amphetamine.
The court first became aware of the possibility that the children could be Indian children when Father’s counsel cross-examined Burk. He asked, “Do you know whether either of the parents have any Indian descent?” Burk responded that she had not yet asked the parents because of her inability to contact them but that the children’s paternal grandparents indicated the children did not. When Mother’s counsel questioned Burk, she inquired, “[A]re you aware that [Mother] is eligible for enrollment in the Crow Tribe?” Burk responded, “I am not due to not being able to have that type of conversation with her,” and then further explained her problems communicating with Mother. Burk further opined that TIA would be inappropriate in this case because it would not obligate the parents to follow through on requested improvements, whereas TLC would.
Mother’s counsel subsequently argued that, because the children may be Indian children, ICWA may apply to the case and therefore the Department must provide active, not reasonable, efforts. Mother’s counsel indicated Mother would stipulate to TIA in order to give the Department more time to investigate and follow-up on certain things. The Court asked counsel whether Mother was asserting that ICWA applied in this case and counsel responded, “Yes, Your Honor. [Mother is] not enrolled in the Crow Tribe but she’s eligible for enrollment. So, again, I think that there’s always a process when ICWA possibly applies, when the Department investigates and confers with the Tribe, and I think that step needs to be taken.” After asking more questions of the Department, the Court concluded, “So the Department has not made efforts to determine whether or not ICWA applies at this point given that lack of communication, we haven’t sent notices to the Tribe or Tribes at issue. That’s a matter that would be resolved down the road if, in fact, the parents provided us with information or even an allegation that ICWA applies.” Father’s counsel stated that the children were potentially eligible for tribal enrollment based on Mother’s ancestry and that the Tribe needed to be notified.
The court then asked the Department if it wanted to proceed with a disposition hearing, the Department responded that it did, and neither parent requested the court continue the disposition pending ICWA’s notice requirement. Instead, the parents asserted that TIA was more appropriate pending tribal notice. Burk testified again, stating that the Department would develop treatment plans and that, regarding the ICWA issue, she would send notifications to the Tribe that day. The court ultimately granted the Department TLC for six months and specifically found that dismissing the petition at that time would “create an unreasonable risk of continued abuse or neglect of the children.” The court stated, “With respect to the ICWA issue, ... the parents are obligated under statute to talk with or to work with the Department, to provide information about the children’s backgrounds .... This includes any information that would relate to the children’s Indian heritage and their enrollment in or enrollability in a Native American Tribe.” The court directed the parents to “specifically cooperate and provide to the Department information about what Tribe or Tribes are at issue, what the status of the children are as far as the parents’ know, any contact information the parents may have with representatives of the Tribe or Tribes, and any other corollary information that will assist in that determination.” The court concluded, “I do want those ICWA investigation ... efforts to be part of the Department’s immediate exercise of temporary custody over the children.” Following the hearing, the Department sent notice of the pending case to the Crow Tribe. The Tribe received the notice and, in March 2017, notified the Department that the children were not eligible for enrollment.
The Court concludes the District Court abused its discretion when it did not comply with ICWA’s notice requirements before proceeding on from the show cause hearing. Opinion, ¶ 23. I agree with the Court that as soon as the parents made the District Court aware of the possibility that the children were Indian children, the court needed to ensure that the Department provided notice to the Tribe as required by § 1912(a). However, the court was within its discretion to order TLC in the interim—it found, based on substantial credible evidence, that returning the children to the parents would subject them to an unreasonable risk of continued abuse or neglect. ICWA cannot be construed as to prevent the court’s authority on an emergency basis, and I believe the Court errs when it finds the District Court abused its discretion by ordering TLC at the show cause hearing. The District Court was not precluded from making decisions to ensure the children remained safe, even if the Tribe had not yet received notice. See 25 U.S.C. § 1922.
I am further troubled by the Court’s unnecessary criticism of the Department’s actions. First, the Court criticizes the Department for not giving enough consideration to whether there was reason to know the children were Indian children at the show cause hearing. Opinion, ¶¶ 20-21. Review of the show cause hearing transcript, however, demonstrates that both the Department and the District Court thoroughly considered whether ICWA applied in these proceedings. The District Court further emphasized that the Department’s first priority needed to be an ICWA inquiry, and the Department assured the District Court that it would be. Second, the Court views the Department’s actions as perpetuating an attitude that it had “no affirmative duty to make further inquiry or provide tribal notice and inquiry when parents are not cooperative.” Opinion, ¶ 22. Review of the record however, does not support the Court’s recitation of the facts—the Department expressed frustration with the parents’ lack of cooperation but nonetheless affirmatively stated at the show cause hearing that it would send the Tribe notices that day, and it did so. Child abuse and neglect cases present sensitive, emotionally-charged, and complicated issues. This Court should not be unnecessarily critical of the Department’s actions when the record demonstrates the Department’s respect for and consideration of the applicable laws.
While identifying errors that I do not, the Court ultimately affirms the District Court on the basis that its errors were harmless. I accordingly agree with the Court’s disposition and specially concur to voice my concerns as stated above.
The children were the subjects of separately filed youth in need of care proceedings conducted in tandem in district court which are consolidated here on appeal.
The Department was previously involved with this family on a voluntary basis in 2012-13 upon the parents’ arrests for criminal possession and distribution of dangerous drugs (unauthorized prescription medication, methamphetamine, and marijuana).
The matter came on for initial show cause hearing on December 7, 2016, which was reset to December 21st when Father failed to appear due to illness.
See § 41-3-101, MCA (declaration of state policy).
An emergency removal is the removal of a child from a parent or Indian custodian for temporary protective placement “to prevent imminent physical damage or harm to the child” pending initiation of ICWA-defined “child custody proceeding[s].” See 25 U.S.C. § 1922; State ex rel. Juvenile Dep’t of Multnomah Cty. v. Charles, 70 Or.App. 10, 688 P.2d 1354, 1358 (1984) (express allowance by 25 U.S.C. § 1922 of emergency removals and placements of reservation-resident children located off-reservation implicitly allows similar emergency removal and placement of non-reservation-resident Indian children). See also 25 C.F.R. § 23.2 (defining “emergency proceeding”); § 41-3-301(1), MCA (emergency removals and placement pending hearing).
See §§ 41-3-422(1)(a)(i), -427, -432, MCA.
See §§ 41-3-422(1)(a)(ii), -432, -433, MCA.
See §§ 41-3-422(1)(a)(iii), -432, -442, MCA.
An emergency removal pursuant to § 41-3-301, MCA, is not an ICWA-defined “child custody proceeding” subject to ICWA’s pre-hearing tribal notice and kinship placement requirements. See 25 U.S.C. §§ 1903(1), 1912, 1915, 1922; 25 C.F.R. § 23.2. Accord H.T., ¶¶ 36-38.
See also 25 C.F.R. § 23.105 (if unable to obtain “accurate contact information for a Tribe” or a Tribe “fails to respond,” Department “should seek assistance in contacting the Indian Tribe from the [Bureau of Indian Affairs (BIA) ] local or regional office or the BIA’s Central Office in Washington, DC (see www.bia.gov) [https://perma.cc/GYB2-E6UL]”).
If the identity or location of the child’s parents, the child’s Indian custodian, or the Tribes in which the Indian child is a member or eligible for membership cannot be ascertained, but there is reason to know the child is an Indian child, notice of the child-custody proceeding must be sent to the appropriate Bureau of Indian Affairs Regional Director (see www.bia.gov) [https://perma.cc/GYB2-E6UL]. To establish Tribal identity, as much information as is known regarding the child’s direct lineal ancestors should be provided. The Bureau of Indian Affairs will not make a determination of Tribal membership but may, in some instances, be able to identify Tribes to contact.
25 C.F.R. § 23.111(e). Effective November 5, 2018, “where the identity and location of the child’s parent or Indian custodian or Tribe is known,” the Department must send copies of the notices required by 25 U.S.C. § 1912(a) to the “Billings Regional Director, Bureau of Indian Affairs, 316 N. 26th Street, Billings, Montana 59101” except that “[n]otices to the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Montana, must be sent to the Portland Regional Director at the address listed in” 25 C.F.R. § 23.11(b)(11). 25 C.F.R. § 23.11(a), (b)(5).
Upon this inquiry, courts must further “instruct the parties to inform the court if they subsequently receive information that provides reason to know the child is an Indian child.” 25 C.F.R. § 23.107(a).
We previously noted that reference to the discrete phrase “reason to believe” in the since-superseded 2015 BIA Guidelines inexplicably differed from the phrase “reason to know” as referenced in 25 U.S.C. § 1912(a). In re J.J.C., 2018 MT 317, ¶ 15 n.2, 394 Mont. 35, 432 P.3d 149. Without need to elaborate on the extent to which the phrases substantively differ, we clarified that our prior cases have used the phrase “reason to believe” interchangeably with the phrase “reason to know,” as referenced in 25 U.S.C. § 1912(a) and 25 C.F.R. § 23.107, without intent to deviate from the statutory standard. J.J.C., ¶ 15 n.2.
See also 25 C.F.R. §§ 23.105, 23.11(a).


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The “Plus Oultra” writing cabinet of Charles V on display at the Victoria and Albert Museum of London is an intarsia piece made by Italian craftsmen ca. 1532. This article examines the iconographic programme of the cabinet as an expression of the universal Christian empire of Charles V and the sacred imperialism of the Spanish Austrias. This programme is revealed in three scenes depicting the story of Gideon that decorate the outside of the cabinet fall front: the revelation of the angel to Gideon and the woollen fleece in allusion to the Order of the Golden Fleece of which Charles V was the grand master, the selection of the three hundred men, and the battle against the Midianites. These scenes are complemented by medallion heads of Roman emperors to portray Charles V as legitimate successor to the Ancient Roman Empire. The inside of the fall front is emblazoned with the emblems of Charles V: the Pillars of Hercules, the ‘Plus Ultra’ motto, Saint Andrew’s crosses and laurel motifs, while the allegorical figures of Temperance and Justice adorning the sides of the cabinet symbolise the virtues of a good governor. The fall front opens to reveal a set of drawers and doors decorated with one of the earliest examples of the vanitas: objects alluding to the fleeting nature of life and the pursuit of wisdom. From a stylistic standpoint, the scenes and decorative motifs of the cabinet suggest that it may have been made in the workshop of the Dominican friar Damiano da Bergamo which Charles V visited in 1529.
Marquetry – known as intarsia in the 15th century – was a technique that was widely used in Italy to decorate a broad range of furniture. The technique, which was later imported to Germany (Aguiló 2009: 15-63), consists of inlaying coloured or stained veneers of different types of wood to create pictorial compositions. Many examples of intarsia are still preserved in choir stalls, seats, pulpits, lecterns, small chests and wall panels, attesting to the widespread use of this decorative technique. Cabinets are one of the most elaborate examples of furniture of this type due to their use as personal objects of great luxury and ostentation. This paper examines one of the oldest and most unique cabinets remaining in Europe, the Plus Oultra writing cabinet, currently on display at the Victoria and Albert Museum of London. This singular piece demonstrates the importance of research into art furniture; an art form that has not been given the full attention it merits.
The Plus Oultra writing cabinet has previously been examined in catalogues. The most complete study and only monographic work published to date is that of W.A. Thorpe (The Plus Oultra cabinet at South Kensington, 1951), who gave a detailed account of the images depicted on the cabinet. This article first aims to demonstrate that the iconographic programme of the Plus Oultra cabinet was devised to glorify the sacred imperialism of the Austro-Spanish Holy Roman Empire (figure 1). Following a comparative analysis of works dating from the same period and new data taken from recent historiography, the paper then attributes the possible authorship of the cabinet to Fra Damiano da Bergamo's workshop, as well as other craftsmen who executed the scenes and decorative motifs.
Fig. 1: Front of the cabinet. © Victoria and Albert Museum, London.
One of the most outstanding and earliest cabinets to survive in Europe, this piece is known as the Plus Oultra cabinet owing to the Pillars of Hercules, the personal emblem of Charles V, and his motto 'Plus Ultra', which decorate the inside of the fall-front lid (figure 2). Although the cabinet is sufficiently large to house several drawers and compartments, furniture pieces of this kind were crafted more as objects of luxury and ostentation rather than for practical purposes (Aguiló 2009: 20).
Fig. 2: Inside of the fall-front lid. © Victoria and Albert Museum, London.
The cabinet is believed to have been offered to the emperor as a present during his stay in Mantua in 1532 as suggested, among other elements, by the two putti holding up a tablet inscribed 'D.M.' (Domus Mantuae) (Thorpe 1951: 26; Victoria and Albert Museum 2010). Indeed, such a sumptuous gift can only be explained within the context preceding the cabinet itself. In 1531 Charles V had bestowed upon Ferrante Gonzaga (1507-1537) the order of the Golden Fleece (Thorpe 1951: 26). One year earlier on his 30th birthday, the 24th of February 1530, Charles V was crowned Romanorum Imperator, becoming Monarcha Orbis or Universal Sovereign (Bosbach 2001: 363; König 2001: 590). Charles V's coronation marked the height of his conquest to rule Europe following his victory in Pavia (1525) and the Sack of Rome (1527) and after his coronation, the victory in Tunisia (1535). In just a few years Charles V had gained unprecedented power and works of art became an essential medium for glorifying his image.
The outer side of the fall front is divided into three scenes relating to the story of Gideon as told in the Book of Judges. It has been suggested that the scenes were inspired in the imperial ideology of Charles V's reign in which ancient heroes and figures were venerated and reflected the image of the good Christian prince espoused by Erasmus in his treatise to the emperor himself (Checa 1999: 195-196).
As Thorpe pointed out (1951: 24-28), the figure of Gideon was chosen for his strong military character. The first scene on the left-hand panel of the cabinet depicts Gideon invoking God for victory of Israel over the Midianites when an angel appeared before him (Judges 6:12) (figure 3). In 1526, Gattinara, Charles V´s chancellor, held that the emperor's primary task was to secure peace in Christendom and urged him to create a universal monarchy (Luttenberger 2001: 43), thus imprinting his imperial ideology with a messianic purpose (Checa 1999: 77; Bosbach 2001: 365). Just as Gideon was chosen by God to secure the safety of Israel, Charles V was appointed successor to the Davidic dynasty by the Israelite judge.
This association between the emperor and David and Solomon is also illustrated in the iconographic motifs that decorate the transept of the cathedral of Cordoba, Spain, specifically the vault of the main chapel built during the reign of Charles V and Philip II between 1562 and 1571. As Moreno (2007: 132) states in his study of the cathedral transept, Charles V, like Solomon, exercises justice; a theme that is reflected on the right-hand side of the cabinet by the mythical figure of Astraea, the personification of justice. Like the Hebrew king who led Israel, the people chosen by Yahweh to establish the messianic kingdom on Earth where justice would reign and all nations would subject their will (Isaiah 49:23), Charles V as Gideon would fight to bring justice to his territories.
While the scenes that decorate the Plus Oultra cabinet evoke two of the emperor's most outstanding personal traits, his strength and the fact that he is the chosen one (Judges 6:14), they also illustrate the story of the woollen fleece. According to Thorpe (1951: 24), the fleece hung on the branch of a tree suggests that the cabinet was inspired by both the Greek story of Jason and the Argonauts and the biblical story of Gideon. The decoration refers to the Order of the Golden Fleece as well as the authority of the House of Burgundy, and hence its master Charles V (Checa 1999: 64 and ff.) who revived the institution for its knightly pageantry rooted in medieval traditions; traditions which were much to the liking of the emperor as they were the ideal means of enhancing his knight-prince image. Indeed, the figure of the gesturing angel is a reminder to Charles V of his duty as warrior in the service of the order. This vision of Charles V as warrior-soldier was particularly prevalent in Italian circles and reflects the virtus or virtues of ancient heroes (Checa 1999: 64 and ff.).
Two different moments of the same scene are depicted on the cabinet: the revelation of the angel to Gideon and a sacrifice offered in the form of bread and the fleece. The story, however, is given a different rendering here. Gideon asks God for proof that he is the chosen one to rescue Israel, and not satisfied, asks for further proof (Judges 7: 36-37 and 39-40). The fleece is central to both accounts, but unlike previous craftsmen who had depicted the fleece laid on the ground, the craftsman of the Plus Oultra cabinet shows it being hung on the branch of a tree in keeping with the imperial ideology of the Order of the Golden Fleece rather than the biblical story.
The scene on the central panel of the cabinet depicts the armed force of three hundred men chosen to go to battle (Judges 7: 4-7) (figure 4). It shows how God makes use of the chosen ones to carry out his plans, and how He once again asks Gideon to show that victory over the Midianites was a matter of divine intervention and not due to the Midianites being outnumbered.
Fig. 4: Gideon's 300 Chosen Men. © Victoria and Albert Museum, London.
From the viewpoint of the recipient of this piece of artwork, Charles V, this scene can be interpreted as God placing his trust in the good ruler to recruit those who will help him in his endeavour, which is to battle those who question divine law. This scene and the one appearing to the right of the battle itself were fundamental in transmitting a message to those who visited the emperor and viewed the cabinet in his chambers: Charles V as Gideon, soldier of God. The emperor's staunch defence of Catholicism (in conjunction with the pope despite the Sack of Rome) in opposition to the Reformists and the Turkish incursion into Europe explains the choice of figures and scenes. In short, Charles V-Gideon depicted himself before his guests and attendants as the protector of the Church of Rome, the unifying force of Christianity and its defender against the Turkish threat and as one shepherd and one flock: ut fiat unum ovile et unus pastor (John 10:16) (Bosbach 2001: 366). This theme is further reinforced in the scene of Gideon the leader selecting his fighters to go to battle. This scene represents the image of Charles V as keeper of peace; an image espoused by the Flemish and Spanish circles whose members were influenced by Erasmus (Checa 1999: 77-78) and proponents of Charles V's messianic image. In contrast, the last scene on the far right depicting the battle between the Israelites led by Gideon and the Midianites seeks its inspiration in Italian humanism, which venerated victory through warfare (figure 5).
Fig. 5: Gideon's battle with the Midianites. © Victoria and Albert Museum, London.
The three previous scenes telling the story of Gideon are emblazoned with eight medallion busts of Roman emperors, all of whom have been identified from the accompanying inscriptions preceded by the Latin word 'DIVUS'. The top row reads 'IULIUS CAESAR', 'AUGUSTUS' (rubbed out), 'CALIGULA', 'TIBERIUS', while the lower row reads 'CLAUDIUS', 'NERO', 'TITUS', 'DOMITIANUS', clearly suggesting that the purpose of the decoration was to reinforce the image of the Catholic emperor as successor to the Ancient Roman Empire and scion of Charlemagne himself, legitimise his power and ennoble him with divine grace.
In turn, the military figure of Gideon indicates God's need for soldiers on Earth to extend his power throughout the world. This all'antica iconography, which links the image of the emperor to that of the most prestigious Roman leaders and of a military and religious hero at one and the same time, strengthens Charles V´s figure and consolidates his image as a 'classic mythical hero'. This theme takes on particular relevance following Charles V's triumph over Tunisia in 1535 and his subsequent visit to several Italian cities (Checa 1981: 238-239). The depiction of the Roman Caesars served to confirm the virtues extolled by the emperor's poets, namely the renewal of the ancient grandeur of the Roman Empire under Charles V's reign. As Checa maintains (1981: 240), the association between the emperor and mythological or historical figures of the classic tradition was the ideal way to promote the emperor's image and evoke one of the political attributes most exalted by authors such as Machiavelli and Guicciardini: dissimulation, that is, appearing to have all the virtues even when just the opposite is true.
Yet the figure of Charles V can be interpreted further: he is not only legitimate heir to the Roman emperors, but attempts to revitalise the Ancient Empire as Dante expounds in Monarchy, where the monarch, God´s will providing, must procure world peace; a peace that can only be achieved through a monarchy or an empire ruled by one man (Moreno 2007: 80).
Appearing below the three scenes depicting the story of Gideon on the fall front are three landscapes as if viewed through a palace balustrade. Although none of the landscapes have been identified and their inclusion in the cabinet has yet to be explained, it is important to note that a large number of lavish furnishings decorated with intarsia work were crafted in Italy such as Federico de Montefeltro's studiolos, or cabinet rooms, in the ducal palaces at Urbino (1472-1476) and Gubbio (1474-1476) and that of Isabella d´Este, as well as choir stalls and wall panelling. The landscapes that appear in the studiolo of the Duke of Urbino may serve to shed some light on the Plus Oultra cabinet. Devised as an invitation to a contemplative life, these studiolos were decorated with representations of rivers and lakes to evoke the locus amoenus or pleasant place that Alberti recommended for domestic furnishings due to their therapeutic and restorative properties (Cheles 1982: 23). In the same manner, when opened, the cabinet would inspire a sense of peacefulness in its owner in a play between earthly vanities and erotes in a fantasy world replete with dragons and other beasts.
Like the studiolos, the outer side of the cabinet lid is decorated with Renaissance motifs such as the candelieri, or candelabra, beastly beings, and angels bearing palms symbolising the triumph of the spirit. This display of virtuosity finds a parallel expression in the choir stalls of the Church of San Pietro in Perugia, the work of Fra Damiano da Bergamo and his brother Stefano Zambelli dating 1533-1536, and those of the Collegio del Cambio in the same town crafted by the Florentine artist Antonio Bentivegna da Mercatello in the first decade of the 16th century (Flade 1986: 61, pl. 50-52). The leaves, delicate scrolls and beastly figures which decorate these two impressive works bear the closest resemblance to the candelieri and grotesque themes adorning the Plus Oultra cabinet.
The inside of the fall-front lid is decorated with the inlaid 'Pillars of Hercules' emblem of Charles V, the crown and a wavy ribbon with the inscription 'PLUS OULTRA', all of which are surrounded by St. Andrew's crosses and adornments alluding to the standard of Burgundy (figure 2). A direct allusion to the emperor, these decorations leave no doubt as to the ownership of this piece of furniture. As stated above, Charles V deemed himself heir to the most celebrated Roman emperors. However, given that he does not portray himself as a Roman emperor and does not appear with his head crowned by laurel – in allusion to eternity – the cabinet is decorated with a laurel border symbolising his privileged position as Roman princeps. In this same manner, Alciato's CCX Laurus emblem (Sebastián 1993) referred to Charles V as being worthy of Apollo's laurel crown due to his victory over the Carthaginians.
When opened, the inside of the fall front served as propaganda for the emperor (figure 6). Its architectural and allegorical elements glorified him, while the virtues represented on either side of the cabinet, the Ancient heroes – in this case personified by Gideon – and the deified Caesars were a means for supreme exaltation. In fact, this symbolic image of the emperor as Caesar had been established during his reign and was disseminated through engravings which were the basis for this particular iconography (Wohlfeil 2001: 330); motifs that were the inspiration for many other works of art such as paintings, miniatures and sculptures, among others.
Fig. 6: Inside of the cabinet. © Victoria and Albert Museum, London.
The Plus Ultra motto was devised as a reminder that the Spanish empire stretched far beyond the Pillars of Hercules. It was used to depict Charles V as the leader of a worldwide empire where Christianity must be extended to ensure peace and order (König 2001: 595 and ff.).
The cardinal virtues, in this case Justice and Temperance, are allusions to the qualities an emperor must possess (figures 7 and 8). Indeed, these and other virtues are associated to the figure of Charles V in numerous artistic works. Educated to uphold knightly values, one of Charles V's favourite readings was The Resolute Knight by Olivier de la Marche, where the prince was distinguished not only for his wisdom but also for his virtues; traits that were very much in fashion in the Italian courts at that time (Checa 1999: 20-21). The influence of Erasmus in the education of Charles V should not be overlooked either. In 1516, Erasmus wrote Education of a Christian Prince, a sort of instruction manual for the then young prince emphasising the virtues and moral principles of a governor who should ensure peace and justice above all (Yates 1975: 19-20).
In that same year, at the Court of Ferrara near Mantua, Ariosto's Orlando Furioso was published. This romantic epic recovers the notion of an empire through the figure of Charlemagne to glorify Charles V (Checa 1999: 367). When Ariosto learned of the prophecy of Charles V's future empire, he envisaged a world under a universal monarchy in which the emperor 'should the imperial garland bear, Augustus', Trajan's, Mark's, Severus', crown', while in war for courage and in peace for justice (Canto 15, 16). The epic poem goes on to state that Astraea (Justice), like the virtues, will be re-enthroned after its long exile (Canto 15, 18) (Harington 1972: 166). Orlando Furioso seems to have been highly valued by those who devised the iconographic programme of the cabinet: Charles V-Gideon brings justice to his people by confronting the enemy and ruling with temperance according to God's plan. In short, it is the sacred messianism revealed through the Dominus Mundi or Charles V who will impose universal order under the Christian monarchy (Moreno 2007: 154-155).
Fig. 7: Justice (photo by the author).
Fig. 8: Temperance (photo by the author).
Parallelisms for the virtues represented on the cabinet can be found in traditional iconography. The cabinet depicts several iconographic elements typical of early Renaissance engravings and drawings, particularly those of the circle of Botticelli, who supplied sketches to the master wood inlayers in the last quarter of the 15th century until his death in 1510, while certain analogies can also be found in Nicoletto da Modena's engravings (figures 9-11). Although exact parallelisms for the motifs cannot be found among Nicoletto's works, the style of the cabinet is similar to this artist's work, particularly the allegorical engravings (figure 11) and a Roman soldier on horseback (figure 10) that recall the Israelites under the command of Gideon. The scenes on the cabinet, however, differ from Nicoletto's work in that they do not depict the Roman ruins of which the artist was so fond. Nonetheless, there are sufficient elements to suggest that the cabinet was inspired by Nicoletto's engravings, whose virtues and allegorical figures are similar to those of Botticelli's circle, as well as the landscape of tree trunks with branches devoid of leaves. Moreover, the breastplate and skirt, the helmet decorated with scrolls, and the details of the boots worn by the Roman rider (figure 10) appearing in Nicoletto's engraving are similar to the apparel of Gideon and his comrades. It is also interesting to note the formal similarities between Nicoletto's rearing horse and the horse that appears in the battle between the three hundred men and the Midianites. Finally, the disorderly grouping of soldiers and cavalrymen are reminiscent of Nicoletto's engraving of a battle scene (figure 9).
Fig. 9: Battle. Nicoletto da Modena (British Museum 1909).
Fig. 10: Cavalryman. Nicoletto da Modena (British Museum 1909).
Fig. 11: Victory. Nicoletto da Modena (British Museum 1909).
Returning to the front of the cabinet, the fall front opens to reveal a set of drawers and two small doors that were used to safeguard personal belongings. The doors are adorned with still lifes (figures 12 and 13): an hourglass, the scissors, the books, the fountain pen and the inkpot. They are simply fitting items for a writing cabinet.
Fig. 12: Still life with scissors (photo by the author).
These still life motifs, which were widely used in different settings and on furnishings such as cabinets, studiolos, dressing rooms, choir stalls or chapels, served as reminders that all human action is transient. The books and notes strewn carelessly on the shelves, the pen sitting in the inkpot, the open tobacco jar, the scissors ready to cut, the fresh fruit, and the sand trickling down the hourglass all give the impression that the owner will soon return, while the use of foreshortened marquetry creates the illusion that the viewer is looking at the objects themselves.
These objects served as an invitation to a cultured and contemplative life in contrast to Gideon's heroic deeds, which called for action. The choice to include decorative elements on the cabinet depicting both an active and a contemplative life cannot be simply the result of chance, but must have been intentionally designed to invite the cabinet's owner to meditation and study or, on the contrary, to act bravely in the face of battle.
While the themes represented on the cabinet are in themselves of extraordinary interest, the intarsia decoration is especially noteworthy. Sumptuous examples of such work, some of which have already been mentioned, can be found throughout Italy, particularly in the north. Among the most famous examples are the choir stalls, libraries and studiolos in palaces at Verona, Urbino and Gubbio renowned for their elaborate intarsia panelling. However, these are not the only ones; a series of earlier and subsequent works rival them in magnificence.
One of the most outstanding examples is the previously cited studiolo of Isabella d'Este in the Ducal Palace at Mantua, which is decorated with wood inlay books and musical instruments in allusion to the ideal of the educated wife. Although one might be tempted to think that the same craftsmen who worked on the studiolo – Paolo and Antonio Mola (Brown 2005: 39) – also made Charles V's cabinet (given that the cabinet was a gift from the House of Mantua), the evidence suggests otherwise. Nevertheless, it should be noted that the still lifes with questionable perspective that decorate the cabinet show certain similarities to the still lifes of both brothers (e.g. in the sacristy of San Marco in Venice and the Palazzo Ducale in Mantova).
Following a detailed study of numerous examples, we find that the Monte Oliveto Maggiore choir stall by Fra Giovanni da Verona, which is decorated with vanitas, urban landscapes and saints, also shares a specific motif with the cabinet (Brizzi 1989), hazelnuts. The hazelnut motif appears in the still lifes decorating both the cabinet and the Monte Oliveto Maggiore choir stall in an allusion to patience and perseverance (Brizzi 1989: 132). The two furnishings also have other common decorative elements: the hourglass, open spaces with candelieri and grotesque motifs as well as the wood stained green by fungal infestation (chlorociboria) (Aguiló 2009: 25; Wilmering 1999: 131). Despite these similarities, certain elements distinguish the two. However, Fra Giovanni had many disciples such as Fra Raffaele da Brescia and Fra Antonio da Venezia or others such as Fra Matteo da Trento and Fra Vincenzo Dalle Vacche, all of whom were active craftsmen belonging to the religious orders in the late 15th and early 16th century. It is also known that Fra Giovanni made his own drawings which were then used to craft his works (Wilmering 1999: 123-125). Given that the cabinet is dated ca. 1532 coinciding with Charles V's visit to Mantua, it is possible that the craftsman who designed the emperor's cabinet formed part of Fra Giovanni's circle. Moreover, it is interesting to note that Fra Giovanni was no stranger to Mantua as he had travelled there between 1493 and 1502 to select and purchase the wood needed to build the choir stalls of the Santa Maria in Organo Church in Verona (Wilmering 1999: 4); a journey that perhaps some of his young apprentices accompanied him on.
It would therefore seem logical to think that the scenes from the story of Gideon were very much in keeping with these artist monks who were familiar with such biblical accounts, especially Fra Damiano da Bergamo, who was born Francesco Zambelli (ca.1480-1549) and trained under the intarsia master Fra Sebastiano da Rovigno at the monastery of Santa Elena in Venice. This Dominican friar and his workshop, where his brother also worked (1533-1545), specialised in stories of the Old and New Testament and trained numerous master craftsmen.
However, the scenes on the cabinet are a far throw away from the complex architecture and perspectives of which Fra Damiano was so fond, as the main works of the artist cited below demonstrate. Could the cabinet be an early work? This hypothesis cannot be ruled out as the choir stalls of Saint Domenico in Bologna, his masterpiece, were finished two years after his death (Wilmering 1999: 131). Nor should we overlook the grotesques and candelieri adorning the cabinet, which share many elements in common with those found at Saint Peter's Church of Perugia, which were crafted by Fra Damiano from 1533 to 1536. In addition, the cabinet is inlaid with floor motifs which appear under the feet of both allegorical figures of the virtues; motifs that Fra Damiano used widely in the choir stalls of San Bartolomeo da Bergamo. Both pieces, the choir at Bergamo and the cabinet, are also decorated with similar figures of Roman soldiers, specifically in the scene representing the martyrdom of Saint Catherine of Alexandria (figure 14). Although the exact dates when Fra Damiano worked in San Bartolomeo are not known, it is believed that he crafted the choir stalls in the second decade of the 16th century. The Venetian Marcantonio Michiel, who travelled to Bergamo in 1525, was the first to speak of the choir of San Estefano and the painters that provided Fra Damiano with the sketches to make the choir: the artists Tonzo di Monza, Bernardino Zenale and Bartolomeo Suardi detto il Bramantino (Polli 1995: 31).
Fig. 14: The martyrdom of Saint Catherine of Alexandria. Fra Damiano da Bergamo (Wilmering 1999: 127).
Craftsmen from Fra Damiano's workshop may also have helped him to craft the cabinet as the scenes representing Gideon bear a distant resemblance to those he carved for San Domenico (Wilmering 1999: 127). Certain analogies can also be found in the soldiers on horseback that appear in an intarsia panel representing the Crucifixion inscribed with the year 1542 (figure 15).
Fig. 15: Crucifixion. Fra Damiano da Bergamo (Wilmering 1999: 129).
Moreover, Charles V visited Fra Damiano in person at his workshop in San Domenico on December 5th 1529 while in Bologna for his coronation, which was to take place about a month later (Wilmering 1999: 129). By that time, the Dominican friar had gained enormous prestige, and it is said that the emperor was astonished to see the choir panels, not believing they were inlaid work rather than paintings (Polli 1995: 131).
Although the identity of the author of the Plus Oultra cabinet has not been documented, the evidence leaves no doubt as to the artistic and cultural circle in which it was crafted. This is further supported by the fact that Fra Damiano was active in 1532, the same year in which Charles V's cabinet has been dated. This suggests that the Dominican friar, with the aid of the craftsmen from his workshop, might be the author of the piece; especially the scenes of Gideon, which are of greater technical and compositional complexity, while the still lifes are more in keeping with the work of the Mola brothers. As Rosenthal has argued (1971: 226, n. 93), different artists of the time may have produced the parts separately, or the pieces may have been crafted at different times and later assembled to make the cabinet.
This extraordinary piece on display at the Victoria and Albert Museum is an example of the excellent quality of the intarsia work being done in Italy from the late 15th century to the early 16th century, and is a paradigm of the concerns of the Renaissance man, whose intellectual, moral and military aspirations are transmitted through a seemingly inextricable iconology that makes use of symbolic language and personified motifs to unite the Christian world and pagan allegories. It is a cryptic language immersed in the Renaissance style to gain pleasure through knowledge. Undoubtedly, the cabinet's iconographic programme required the aid and advice of the circle of humanists surrounding Charles V, which made use of official images to glorify the power of the emperor of the Romans as Dominus Mundi, whose extensive dominions justified adopting and exalting the Plus Ultra motto.
1 This paper has been possible thanks to a grant from the University of Cordoba for a research stay at the University College London during the summer of 2010. The author is grateful to Mariam Rosser-Owen and Nick Humphrey from the Victoria and Albert Museum for their help, advice and reviews. This work would not have been possible without the permission of the Warburg Institute to consult its library and photographic collection.
2 The cabinet was purchased in 1891 from collector Stephano Bardini. Its dimensions are: Height: 81.3 cm, Width: 134 cm, Depth 44.4 cm (Victoria and Albert Museum 2010).
3 Further references to the cabinet include Tipping (1917), the catalogue card in Wilk (1996: 36-37), Bode (1902: 66) and Schottmüller (1921: xxv, 116).
4 Although Charles V was also in Mantua in April 1530, his visit was short compared to his stay two years later (Fernández 1973: 204-207). In reality, Charles' V motto is Plus Ultra, but appears on the cabinet as Plus Oultra.
5 Given the close diplomatic relations between Spain and the princely courts of Italy, such a lavish gift was not unusual.
6 Themes relating to Gideon formed an essential part of Charles V´s imperial iconography and were depicted not only on the cabinet, but also on triumphal arches, other types of furnishings and tapestries. The inventory drawn up in Brussels in 1536 mentions a collection of tapestries including several that tell the story of Gideon (Checa 1999: 187).
7 As we will see below, Ariosto established the image of governor as Good Shepherd in Orlando Furioso.
8 For more on the Roman image of the emperor see Checa 1999: 196 and ff.
9 For more on the notion of Charles V as renewer of the Roman Empire and his legitimacy to rule over the Universitas Christiana represented by the medallion heads of Uomini famosi see Moreno 2007: 80-84.
10 The court poets strived to depict Carlos V as the new Augustus using as their inspiration the classic texts (Römer 1999: 343-358). Moreover, Charles V's inventories listed the imperial cape which displayed the figure of Charlemagne between the Pillars of Hercules. Cf. Checa et al. 2010.
11 Checa (1999: 82-84) analyses images of the emperor depicted beside Solomon and David, which served to equate Solomon's wisdom and David's clemency with the virtues of Charles V. On the occasion of Charles V's triumphal entry into Arras in 1548, one of the triumphal arches was decorated with scenes of the life of Gideon, David, Solomon, and the Queen of Sheba. For his triumphal entry into Tournai in the same year, an arch depicted parallel stories of the biblical and mythological heroes Hercules/Samson, Gideon/Jason in clear allusion to Charles V.
12 Not only the poets, but also Pedro Ruiz de la Mata Bishop of Badajoz, who sympathised with the emperor, delivered a speech on March 31, 1520 before the courts to justify Charles V´s trip to Aachen for his coronation as emperor only two years after his arrival in Spain. In the words of the prelate, his journey recovered the country's glorious past when Hispania gave great emperors to Rome such as Trajan, Adriano and Theodosius (see König 2001: 594).
13 Made in 1476, the Urbino studiolo is thought to have been designed by Bramante, Botticelli, or Francesco di Giorgio Martini and built by Baccio Pontelli (Cheles 1982: 1).
14 The Gubbio studiolo was acquired by the Metropolitan Museum of New York in 1996 and restored to its original state using photogrammetric techniques.
15 Examples can be found in the cathedrals of Perugia, the north sacristy of the Cathedral of Florence, Santa Maria Novella Church, the Cathedral of Lodi in Pisa, the Basilica of San Domenico in Bologna, the Collegiate Church of San Quirico d´Orcia, the Basilica of Santa María Maggiore in Bergamo, the Palazzo Pubblico of Siena, Santa Maria in Organo Church in Verona, San Petronio Church in Bologna, the Church of St. John the Evangelist in Parma and the Cathedral of Todi. The list of master wood inlayers is extensive.
16 This is neither the imperial nor the royal crown. While it resembles a marquis crown, this and other details analysed by Rosenthal in his article on the motto (1971: 226-227) could be due to the artist's license; a common practice in heraldic representations.
17 Motto/device created in 1516 by Luigi Marliano during the first chapter of the order held in Brussels, which Charles V attended. For more on how the device was created see Checa 1999: 61 and ff.
18 The cross of St. Andrew - patron of Burgundy - appears numerous times as a heraldic motif associated with the imperial coat of arms. Examples include two miniatures dating ca. 1530 in the Breviarium Caroli Imperatoris at the Real Monasterio del Escorial Library which portray Charles V as one of the Wise Men and another with his portrait, as well as in a standard with Saint James the Moor Slayer in the Inventario iluminado (1544-1589) at the Real Armoury of Madrid. Later, in 1591, Paradin depicted this and the other emblems appearing on the cabinet in his work (1984: 52-53 and 32-34, 49-51). The cross of St. Andrew therefore adorns the cabinet for its heraldic value and not to commemorate St. Andrew´s day and the feast day that was held in Mantua during Charles V's visit as Wilk claims (1996: 36).
19 The two pillars draped with a wavy ribbon had already appeared on the reverse side of the ¼ escudo coin minted in 1549 although previous representations may have existed. The imperial crown, however, first appeared on coins in 1548 (Cascione 2006: 122 and 124).
20 When the emperor made his triumphal entry into Bologna on November 5, 1529 – just a few years before the cabinet is believed to have been made – the procession marched through several triumphal arches decorated with mythological scenes, several effigies of emperors and important Roman figures of Antiquity, as well as Charlemagne, the emperors Constantine and Sigismund and Ferdinand the Catholic (Domínguez 2000: 28).
21 Such as the copper engraving made by Enea Vico in 1550 (National Library, Madrid).
22 Canto 15º, 15-16 and 18.
23 Some of the emperors are also depicted on the cabinet.
24 It has been suggested that the figure of Justice depicted on the left side of the cabinet was added during restoration work carried out in the 19th century (Rosenthal 1971: 226, n. 93).
25 Nicoletto da Modena produced a great number of drawings, something that Vasari praised when he stated: "Sandro draws much more than normal" (Hind 1938-1948: 89).
26 Compare, for example, the female virtues on the cabinet to Nicolas da Modena's engraving of the Victory. Similarities can be found between their attire, the pleats of their robes, physical features, headdresses, and sandals (Bartsch 1984: 25,173; Hind 1909: s.p., fig. 19; Lambert 1999: 283; Levenson et al. 1973: 466 and 473).
27 In the Gubbio and Urbino studiolos, a round box appears with the lid ajar revealing candied fruits inside.
28 This principle governed the Urbino studiolo (see Cheles 1982: 3).
29 Examples of themes related to those appearing on the cabinet can be found in the intarsia work at the Ducal Palace of Urbino (ca. 1476), the panels of the choir stalls in the Chapel of St. John the Baptist in the Cathedral of Siena made by Antonio di Neri Barili from 1488 to 1502 and the choir stalls of the Palazzo Pubblico of Siena. Examples of similar vanitas motifs can be found in the choir stalls of Santa María in Organo Church in Verona made by Fra Giovanni da Verona from 1493-1499, or the vanitas and urban landscapes of the Church of San Petronio in Bolonia by Raffaelo de Brescia in 1521.
30 Isabella d'Este was married in 1490. Her son Federico II (1500-1540) transformed Mantua into a second Rome, while her son Ferrante (1507-1557) became counsellor to Charles V.
31 There were previous biblical stories of this type: in the tympanum of Orvieto, in the Palazzo Pubblico of Siena and in the Cathedral of Florence, where the prestigious Giuliano da Maiano did intarsia work (Wilmering 1999: 127).
32 A replica is on display at the Davia Bargellini Museum of Bologna.
33 The scenes share several elements in common. Some of them are depicted with great skill such as the 'David striking down the Philistines' (Samuel 8:1), which portrays soldiers clad as Romans on horseback. Like the cabinet, this scene is very confusing. Others include the Eleazar episode (Macc 6: 43-46), the tents and architectural elements in the background of 'The Philistines Fleeing before David' with the hero in the foreground slaying Goliath or 'Moses bringing forth water from the rock at Horeb', which is similar in composition to the scene of Gideon selecting the three hundred men.
34 'Frater Damianus de Bergomo homo pertissimus singularissimus et unicus in l'arte della tarxia conversus, receptatus fuit in filium conventus 1528.' Fra Lodovico da Prelormo's Chronicle (Wilmering 1999: 129).
Aguiló Alonso, M P 2009 En busca de la sabiduría. Un programa iconográfico en un mueble alemán de marquetería del siglo XVI. Boletín del Museo de Bellas Artes de Bilbao 5, 15-63.
Allo Manero, A 2000 Exequias del emperador Carlos V en la Monarquía Hispana. In: Zamala Rodríguez, M A and Redondo Cantera, M J (eds.) Carlos V y las Artes: promoción artística y familia imperial. Valladolid: Junta de Castilla y León, Universidad de Valladolid, 261-282.
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Bode, W 1902 Die italiensichen Hausmöbel der renaissance. Leipzig: Hermann Seemannachfolger.
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Brown, C M 2005 Isabella d´Este in the Ducal Palace in Mantua. Roma: Bulzoni.
Cascione, G 2006 Iconocrazia, Comunicazione e politica nell´Europa di Carlo V. Dipinti, emblemi e monete. Milán: Ennerre.
Checa Cremades, F 1981 Artificio y lenguaje clasicista en la Florencia Medicea. Cuadernos de trabajos de la Escuela Española de Historia y Arqueología en Roma 15, 229-240.
Checa Cremades, F 1999 Carlos V. La imagen del poder en el Renacimiento, Madrid: El Viso.
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Cheles, L 1982 The Inlaid Decorations of Federico da Montefeltro´s Urbino Studiolo: An iconographic study. Mitteilungen des Kunsthistorischen Institutes in Florenz XXVI, 1, 1-46, http://www.jstor.org/stable/27652541.
Domínguez Casas, R 2000 Fiesta y ceremonial borgoñón en la corte de Carlos V. In: Redondo Cantera, M J and Zalama, M A (eds.) Carlos V y las Artes. Promoción artística y familia imperial. Valladolid: Junta de Castilla y León, Universidad de Valladolid, 14-17.
Fernández Álvarez, M 1973 Corpus documental de Carlos V. Salamanca: Universidad.
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matches: V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V. V.


text:
G.R. No. 191566, July 17, 2013 - PEOPLE OF THE PHILIPPINES, Petitioner, v. EDGARDO V. ODTUHAN, Respondent.
PEOPLE OF THE PHILIPPINES, Petitioner, v. EDGARDO V. ODTUHAN, Respondent.
This is a petition for review on certiorari under Rule 45 of the Rules of Court filed by petitioner People of the Philippines, represented by the Office of the Solicitor General, against respondent Edgardo V. Odtuhan assailing the Court of Appeals Decision1 dated December 17, 2009 and Resolution2 dated March 4, 2010 in CA-G.R. SP No. 108616. The assailed decision granted the petition for certiorari filed by respondent, and ordered the Regional Trial Court (RTC) of Manila, Branch 27, to give due course to and receive evidence on respondent’s motion to quash and resolve the case with dispatch, while the assailed resolution denied petitioner’s motion for reconsideration.
On July 2, 1980, respondent married Jasmin Modina (Modina).3 On October 28, 1993, respondent married Eleanor A. Alagon (Alagon).4 Sometime in August 1994, he filed a petition for annulment of his marriage with Modina.5 On February 23, 1999, the RTC of Pasig City, Branch 70 granted respondent’s petition and declared his marriage with Modina void ab initio for lack of a valid marriage license.6 On November 10, 2003, Alagon died. In the meantime, in June 2003, private complainant Evelyn Abesamis Alagon learned of respondent’s previous marriage with Modina.7 She thus filed a Complaint-Affidavit8 charging respondent with Bigamy.
That on or about October 28, 1993, in the City of Manila, Philippines, the said accused being then legally married to JASMIN MODINA and without such marriage having been legally dissolved, did then and there willfully, unlawfully and feloniously contract a second or subsequent marriage with ELEANOR A. ALAGON, which second/subsequent marriage has all the essential requisites for validity.
On September 4, 2008, the RTC13 issued an Order14 denying respondent’s Omnibus Motion. The RTC held that the facts alleged in the information – that there was a valid marriage between respondent and Modina and without such marriage having been dissolved, respondent contracted a second marriage with Alagon – constitute the crime of bigamy. The trial court further held that neither can the information be quashed on the ground that criminal liability has been extinguished, because the declaration of nullity of the first marriage is not one of the modes of extinguishing criminal liability. Respondent’s motion for reconsideration was likewise denied in an Order15 dated February 20, 2009.
WHEREFORE, premises considered, the instant petition for certiorari is hereby GRANTED. The RTC, Branch 27, Manila is hereby ordered to give due course to and receive evidence on the petitioner’s motion to quash and resolve the case with dispatch.
THE INFORMATION CHARGING RESPONDENT OF BIGAMY SUFFICIENTLY ALLEGES ALL THE ELEMENTS CONSTITUTING SAID OFFENSE.
In Montañez, respondent Cipriano married Socrates in April 1976, but during the subsistence of their marriage on January 24, 1983, respondent married Silverio. In 2001, respondent filed a petition for the annulment of her marriage with Socrates on the ground of psychological incapacity which was granted on July 18, 2003. On May 14, 2004, petitioner filed a complaint for bigamy against respondent. The latter, however, moved for the quashal of the information and dismissal of the criminal complaint alleging that her first marriage had already been declared void ab initio prior to the filing of the bigamy case.
In Teves, petitioner married Thelma on November 26, 1992. During the subsistence of their marriage on December 10, 2001, he again married Edita. On May 4, 2006, petitioner obtained a declaration of her marriage with Thelma null and void on the ground that the latter is physically incapacitated to comply with her marital obligations. On June 8, 2006, an Information for Bigamy was filed against petitioner. The court eventually convicted petitioner of the crime charged.
In Antone, petitioner married respondent in 1978, but during the subsistence of their marriage, respondent contracted a second marriage in 1991. On April 26, 2007, respondent obtained a declaration of nullity of her first marriage which decision became final and executory on May 15, 2007. On June 21, 2007, the prosecution filed an information for bigamy against respondent which the latter sought to be quashed on the ground that the facts charged do not constitute an offense.
The present case stemmed from similar procedural and factual antecedents as in the above cases. As in Antone and Montañez, respondent moved to quash the information on the grounds that the facts do not charge the offense of bigamy and that his criminal liability has been extinguished both because of the declaration of nullity of the first marriage. The RTC refused to quash the information. On petition for certiorari, the CA, however, reached a different conclusion.
Here, the information contained the following allegations: (1) that respondent is legally married to Modina; (2) that without such marriage having been legally dissolved; (3) that respondent willfully, unlawfully, and feloniously contracted a second marriage with Alagon; and (4) that the second marriage has all the essential requisites for validity. Respondent’s evidence showing the court’s declaration that his marriage to Modina is null and void from the beginning because of the absence of a marriage license is only an evidence that seeks to establish a fact contrary to that alleged in the information that a first valid marriage was subsisting at the time he contracted the second marriage. This should not be considered at all, because matters of defense cannot be raised in a motion to quash.34 It is not proper, therefore, to resolve the charges at the very outset without the benefit of a full blown trial. The issues require a fuller examination and it would be unfair to shut off the prosecution at this stage of the proceedings and to quash the information on the basis of the document presented by respondent.35 With the presentation of the court decree, no facts have been brought out which destroyed the prima facie truth accorded to the allegations of the information on the hypothetical admission thereof.
Respondent’s motion to quash was founded on the trial court’s declaration that his marriage with Modina is null and void ab initio. He claims that with such declaration, one of the elements of the crime is wanting. Thus, the allegations in the information do not charge the offense of bigamy, or at the very least, such court decree extinguished his criminal liability. Both respondent and the CA heavily relied on the Court’s pronouncement in Morigo v. People36 where the accused therein was acquitted because the elements of the crime of bigamy were incomplete. In said case, the first marriage was declared null and void, because the parties only signed the marriage contract without the presence of a solemnizing officer. Considering, therefore, that the declaration of nullity retroacts to the date of the first marriage, the Court held that there was no marriage to speak of when the accused contracted the second marriage. Logically, the accused was acquitted.
In view of the foregoing, the CA erred in granting the petition for certiorari filed by respondent. The RTC did not commit grave abuse of discretion in denying his motion to quash and to allow him to present evidence to support his omnibus motion.
WHEREFORE, the petition is hereby GRANTED. The Court of Appeals Decision dated December 17, 2009 and Resolution dated March 4, 2010 in CA-G.R. SP No. 108616, are SET ASIDE. Criminal Case No. 05-235814 is REMANDED to the Regional Trial Court of Manila, Branch 27 for further proceedings.
Please take notice that on July 17, 2013 a Decision, copy attached herewith, was rendered by the Supreme Court in the above-entitled case, the original of which was received by this Office on July 26, 2013 at 10:25 a.m.

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