*1 STATE rel. MARY BEAR, IRON DIS ex Petitioner,
TRICT COURT FIFTEENTH JUDICIAL DIS TRICT IN AND FOR Stаte of Montana, COUNTY OF the Honorable M. ROOSEVELT James Respondents. Sorte, Judge, District 12405. No. May 2, Decided 1973.
Rehearing
Aug. 23,
Denied
Robert (argued), Point, T. McDermott McCann, John Wolf James respondent. Missoula,
(cid:127) Jensen, Helena, Asst. Atty. William Woodahl, Gen., L. Robert Helena, amicus curiae. (argued), Atty. Gen. Opinion delivered the HARRISON C. JOHN
MR. JUSTICE Court. original seeks a writ proceeding petitioner This is an wherein directing respondent jurisdic- take of mandamus district by peti- action filed tion and determine the merits of in that filed tioner court. Amicus Curiae briefs were Montana, Judge Attorney District General the state Court McPhillips, Attorney’s R. D. and the United office. John States University T. Montana Law filed McDermott of School respondent a brief behalf district cоurt of the fifteenth judicial county Roosevelt, Sorte, M. district, and Hon. James Judge. Mary against
Petitioner Iron filed a divorce action Bear Harry petitioner Iron Bear in 1971. Both her hus- October members Assiniboine-Sioux band are enrolled Tribes resided within the exterior boundaries of the Fort Peek have marriage April 1954, Indian Reservation since their which Harry marriage was solemnized under state law. Iron Bеar was personally process served on the reservation October 6, 1972, Subsequently, on November his was default en- *3 respondent tered the clerk of district court. Petitioner applied judgment by then default. motion, respondent 10, 1972, on its own
On November district findings fact, conclusions of law and court issued its order jurisdiction for lack of dismissing the divorce action over subject matter. court its on the conclusion The based decision juris purporting that a 1938 tribal enactment to cede certain Montana, was invalid. over divorce matters to the state of diction specifically declare the tribal enact It relied on three cases to Kennerly Court, 400 U.S. ment invalid: v. District Deernose, 158 507; Tribe v. Mont. Crow Court, 158 Mont. 1133; 487 P.2d Blackwolf v. District P.2d of the Assiniboine- the executive board
The 1938 Enactment part: in pertinent Tribe reads Sioux
* * marriage any member or no any force- or effect unless or shall be valid have Reservation granted entered or into in decreed accordance with the laws * * of the State of Montana This Enactment bears signatures of the Chairman and Sec- retary of the Fort Indian Board, Peek Reservation Executive and the approval Superintendent recommended John G. Hunter.
Respondent court noted its findings of fact the Fort Peck Indian interpreted Reservation Tribal Court has the lan- guage as ceding jurisdiction above cited over divorce matters to the state of Montana. Since 1938 granted the Tribal Court has divorces, no respondent while the granted district court has hun- dreds to members of the Assiniboine-Sioux Tribe and other In- residing dians within the exterior boundaries of the Fort Peck Reservation.
Here, two issues are involved which discus- combine for go sion inasmuch as both to the of state courts over domestic relations of enrolled Indians on the Fort Peek Reser- . vation. original issue: Do state courts have di- over brought by plaintiff
vorce actions an Indian against an Indian defendant, both enrolled members Fort Peck Tribes and re- siding on Fort Peck Indian Reservation?
The second issue: Did the аction respondent district in this cause plaintiff’s rights violate the ' protection equal the law? We answer both issues in the affirmative. twenty years ago
Some Seekins, this Court Bonnet v. 126 Mont. 243 P.2d held that the courts of this state open Later, Indian citizens. are to our State rel. Kennerly ex Court, 488, 493, 85, 88, District Mont. 466 P.2d the Court said: Montana, they whether
“Indians resident be full blood or *4 blood, unallotted, partial allotted or domiciled on the reservа- it, another, of one tribe or or whatever status, tion or off their They of Montana. citizens of the State are entitled are * * * protection of our laws.
339
person nor
“The
cannot
an Indian
can
disenfranchise
by being
simply
an
person
that Indian
disenfranchise the state
by living
of an
person
Indian
within the external boundaries
persons.
Thus,
open
Indian reservation.
our
are
courts
They
con-
many things
divorces,
use the courts of this state for
—
legal
tracts,
mat-
torts,
inheritance,
spectrum
entire
and the
Seekins,
Bonnet
Clearly, they
ters.
so do. See
v.
are entitled to
24,
126 Mont.
Kennerly Supreme Court, was reversed the United States 423, 480, 507, important 27 it is 400 U.S. L.Ed.2d but Supreme action was based to note the United States Court grounds. on other Bonnet still the law of this state. Angstman Bonnet, is not
As Mr. noted Montana Justice unique in Indian citizens have full of their holding that use Bem-Way-Bin-Ness Eshelby, 108, 87 Minn. 91 courts; v. Phillips 291; Lynn, 663, 246; N.W. Holden v. 30 120 P. v. Okl. 49 Reynolds, 626, 234; Martinez, 79 113 N.W. Martinez v. Neb. Joines, 278 484; N.M. 157 P.2d Hawk v. Or. Red Ry. Cullers, 81 Tex. 17 S.W. 572; Missouri Pac. P. Co. v. 19; Am.Jur.2d, 20; C.J.S. Indians § § right an Indian citizen to sue or be sued individual recognized by of this land was the United States Su- the courts Skelly preme recently Poafpybitty Co., Oil v. Court 1238, 1243, it 365, 370, 982, 985, where said: S.Ct. power sue af- “Nor does the existence Government’s ‘A rights of the Indian. restricted Indian is individual fect respect capacity or to sued with to his to sue be not without * * * property. Both affairs, including his restricted * * * in and the decision Heckman April 12, 1926 Act of L.Ed. v. United States 820] [224 * * * capacity in a Indian to sue or recognize restricted subject only behalf his own actions defend ” to intervene.’ the Government Supreme cases, Georgia, Worcester Court States Two United Lee, and Williams v. 515, 8 L.Ed. (6 Pet.) 31 U.S. 251, 254 269, 270, (1959), 220, 79 358 U.S. *5 power define the governments of Indian tribal authority and the Congress of the of the United as it jurisdic- States concerns the question. tion in Bonnet, As we noted and this state other states have long held that an rights Indian has the same as are accorded any person other to invoke the of the state courts protect rights to his affecting matters not govern- the federal ment. propriety legal by against actions nоn-
Indians in the state recognized courts has been approved by Supreme the United States Court Williams. There speaking powers-of of the states on Indian reservations laid down the test:
“Essentially, governing absent Congress, Acts of the question always been whether the state infringed right action on the of reservation Indians to make their own by laws and ruled be them.”
Using judge jurisdiction this test ease, to the instant wе first examine the two essential by elements set forth the test :
1. governing Whether is a Act Congress'? there infringe- 2. Does state action right on the of the Fort Peck their tribe make own laws and be ruled them?
As to element Enabling No. note that the Montana Act imposed requirement what is normally referred to as"a provision “disclaimer” concerning population the Indian adopted state. We the disсlaimer with identical language No. Ordinance Sec. Constitution of Montana. We have required directly never before been provision’s rule on this impact on civil Other states similar have disclaimer provisions and ruled on them. We will have consider' some of the cited cases. ' Enabling pertinent part:' Montana’s Act reads in * * * provide, by And-said shall conventions ordi- “§ nances irrevocablе without the consent of the United States' * * * people of said states: people inhabiting proposed
“Second. That said states do all agree they right forever disclaim title and declare unappropriated public lying lands within boundaries thereof, and to all lying lands within said limits owned or held by any Indian or Indian tribes; and that until the title thereto shall extinguished been have States, United the same shall subject be and remain disposition States, United and said Indian lands shall remain under jurisdic- the absolute * * tion and congress control of the United States *.”
This disclaimer of a and title to Indian is a lands diclaimer proprietary of a interest therein and control thereof, *6 and not a governmental disclaimer of Organized control. Village Egan, of Kake v. 60, 74, 369 U.S. 82 562, 570, 7 L.Ed.2d 573, 583; Paiz v. Hughes, 76 562, 417 51; N.M. P.2d County of County Beltrami v. Hennepin, of 264 406, Minn. 119 25; N.W.2d Danielson, State 438; v. 149 Mont. 427 689; P.2d Fournier v. (N.D. 1968), Roed 161 458; Sangre N.W.2d De Cristo Dev. Corp., City v. Inc. of 84 Fe, 343, Santa N.M. 503 323. P.2d As above, petitioner noted here does any not seek to assert propri etary authority over lands Indian, rather, but govern authority. mental
Most western with exception states of Dakota, South Smith Temple, 650, 547, S.D. N.W.2d seem to hold that the provision disclaimer is applicable not where the issue does not lands; concern Indian persuasive we believe are the eases hold. so Having held, just we now so decide what is the nature of that jurisdiction. Organized In Tillage Williams and Kake, Supreme the United States Court stated: <* # * on reservations may applied even state laws be application Indians unless would such interfere with reservation self-government right granted impair or reserved federal 571, 7 L.Ed.2d law.” 583. reсognize that Public Law Congress
We the 1953 Rights 588) Act (67 (82 and the Civil of 1968 Stat. Stat. 78, 1321-1326) jurisdictional problems concerned U.S.C.A. on §§ reservations, but we concern ourselves effect, what preexisting jurisdiction. have on any, those acts In if Or- Tillage ganzed Kake, post-Public ease, Law 280 this made statement: * * jurisdiction invariably ‘absolute federal is not ex- jurisdiction.” clusive appear
It would
from this statement that even after Public
Law
states had some
Several states have con-
preexisting jurisdiction
found
re-
question
sidered
some
Revenue,
mained after
Law 280.
Bureau
Public
Ghahate v.
Spotted
(N.D.
Elk
1002;
80 N.M.
Vermillion v.
P.2d
1957),
In Public reservation, only Flathead. It has not 280 on one acted Law and it concerning the other six Montana reservations still re law where areas of the there is neither tains over infringement an Congress nor with reservation Act of governing self-government. Tribes, Assiniboine-Sioux 1938 Enactment years both Public Law 280 preexists by some
which changed by not acts. The Act of is those Rights the Civil contrary Kennerly, finding Deer- based district court’s in error. nose, and Blaekwold jurisdiction remaining
Kennerly did not consider assumption government, or tribal federal action *7 after state aspects tribal procedural for consent emphasized it rather jurisdiction. long and as as down Williams guide lines are set guide and attempt lines does not those not violate does areas of the law where there is either jurisdiction over exercise infringement Congress an or reservation Act of governing a may continue to exercise it self-government, juris- the state of mind, does Montana have the above With by plaintiff brought an' Indian actions over diction residing defendant, on an Indian reserva- both Indian an against tion? any Congress Act of or the executive find cannot
We any by nor are we cited government, federal branch amicus, setting jurisdiction forth who has over divorce on an Indian regulations reservation. The Bureau of Affairs provide law and order codes but leave to the authorities of each to define what tribe сonstitutes divorce. C.F.R., 11.28. There § are no federal jurisdiction limitations on the state’s over divorce.
An examination of 1938 Tribal Enactment indicates the away jurisdiction intent was with marriages to do tribal over rely and divorces and to on the laws state Montana. find self-government We can no interference with reservation by the state of Montana here. III, provides:
Article Sec. 6 the Montanа Constitution justice open every “Courts of shall be person, speedy and remedy every injury person, property, afforded for or char- justice ; acter and and that shall be administered without denial, delay.” sale, 83-102, 1947, concerning R.C.M. pro-
Section jurisdiction, : vides sovereignty jurisdiction and
‘The this state extend to all boundaries, places within its as established the constitution, excepting plaсes as such are under exclusive ’’ ** *. the United States
Here, stipulated agreed, it was and the district Mary found, plaintiff Bear and court Iron her husband are citizens of the state of resident Montana and had been for some filing Applying before the of this years juris action. the test of Williams, find set forth no diction exclusive control government nor an States the United interference tribal the district selfgovernment, therefore denying erred in seeking divorce. to the state court access cases, Apache Jones,......U.S....-.., Mescalero Tribe In two recent 115, 27, decided 93 S.Ct. March Commission, Tax ...... v. Arizona State U.S......., McClanahan decided March (1) Supreme Court considered: States United on a enterprise taxes tribal-owned impose located of a Mescalero; reservation, juris- limits of outside *8 344 impose a
diction of state to a tax on income of a tribal mem- residing wholly ber on a reservation whose income is derived sources, from reservation McClanahan. Mescalero, Supreme
In that the state of New Court held impose receipts nondiseriminatory gross Mexico tax on a could enterprise tribal-owned located outside limits of a reserva- tion, personalty tax but that the state could not which has exempt merged realty with under 465. In U.S.C. McClana- § Arizona han, Supreme held that the state of has no Court impose Navajo a tax on income of jurisdiction to residing Navajo wholly Beservation income on the and whose from reservation sources. derived authority preface to its discussion of the of the state over
As boundaries, Mescalero, еnterprises outside reservation tribal the court said: outset, reject broad
“At did state court—the —as that the Federal Government exclusive assertion purposes all and that the is therefore Tribe for State over the enforcing against any its revenue laws tribal prohibited from ‘ enterprise hether is located on or enterprise off tribal [w] subject particularly on this have become land.’ Generalizations conceptual clarity Justice Marshall’s The treacherous. of Chief Pet.) Georgia, (6 515 556-561, in Worcester v. view given way to more treat (1832), has individualized L.Ed. 483 specific statutes, treaties includ particular ment federal legislation, they, together, as taken enabling ing statehood affect Indians, rights States, and the Federal Gov respective Arizona, Tax State Commission See McClanahan ernment. Village 129; Organized ......U.S. ....3, 93 S.Ct. 71-73, 568-569, Egan, 369 U.S. Kake v. upshot repeated has been the state (1960). on reservations even this Court ments effect application would unless such may applied be lams interfere impair right granted or would self-government reservation Village Organized supra, Kake, law. reserved federal Lee, 570; Williams v. at 75, at *9 269, (1959); 251 New York ex Ray rel. Martin, v. 496, 66 S.Ct L.Ed. (1946); Draper States, 240, 17 United L.Ed. (1896). sо, special Even in the area of taxation, state absent cession of jurisdiction or other federal statutes permitting it there has satisfactory authority been no taxing Indian reservation lands or Indian income from activities carried on within the reservation, boundaries of the and McClanahan v. State Tax Commission Arizona,......U.S. ......, lays any respect to rest in by doubt holding that such congressional permissible
taxation is not absent consent.” 93 (Emphasis supplied.) S.Ct. at thus, Mescalero,
The court reiterated proposition the that application the test as to the of state laws on reservations is (1) application whether: such with would interfere reservation self-government, (2) application whether impair or such would by a preempted federal law. The state thus has residual jurisdiction in areas the preempted where federal law not activity state the and tribes have determined not to exercise jurisdiction.
In McClanahan the court indicated that test for the determin- ing jurisdiction now is whether federal treaties or statutes preempted jurisdiction using have Indian sovereignty as “backdrop against applicable which the treaties and federal read.” statutes must be The court McClanahan determined Navajos that based on the relevant treaties between the and the applying government federal federal statutes inter alia to Navajos, jurisdiction impose the state of Arizona has no to residing Navajo Navajo tax on the income res- wholly from receiving income derived ervation reservation sources. McClаnahan, holding that the on the determination of
Based by federal examining preemp- made statutes for jurisdiction is sovereignty statutes for the treaties and of the tion and federal divorces on the residual over tribe, Reservation remains valid. Fort Peck legislation grant There power is no federal to concerning deny tax, power Tribal Court. divorces Unlike sovereignty, power is inherеnt in a mar- which to terminate riage not contract is one which will interfere tribal sover- eignty. power grant pre- has not Because been government empted the federal not interfere with does (especially power granted since the self-government reservation merely residual) jurisdiction and the there is dis- state is required trict to exercise court any jurisdiction in Before a distriсt can assume subject it matter it, must find matter submitted determining: ap treaties and statutes whether federal jurisdiction; (2) whether the exer plicable preempted state have self- jurisdiction would interfere with reservation cise of state *10 currently Tribal exer and whether the Court government; jurisdiction in has such man cising jurisdiction or exercised jurisdiction. preempt state ner as to by opinion determinеd the district has Court this This petitioner’s prayer granted. relief is jurisdiction and has jurisdiction and determine assume trial court is directed to The the divorce action. the merits of HARRISON, T. and MR. JAMES MR. JUSTICE CHIEF CASTLES, concur. and DALY JUSTICES concurring) (specially : HASWELL MR. JUSTICE my result, view of the the but in the rationale I concur opinion In this will lead to no my is flawed. opinion majority jurisdictional may that Indian cases future difficulties end of this Court. before come predicated jurisdictional the opinion is on test majority
The Lee, v. S.Ct. in Williams set forth infringes action of reserva- whether 251, i. e. laws be ruled them. own and make their Indians tion Organized subsequently applied Village was test Williams 562, L.Ed.2d In one 573. Egan, v. Kake discussing test, latest cases Williams the U.S. Su preme pointed out test was useful in Court that this situations involving rights of Indians non-Indians where both the fairly Tribe and the could claim McClanahan Commission, v. State Tax ......U.S. ......, Arizona decided March In McClanahan the court said: be remembered that applying
“It must cases the Williams test principally involving have dealt situations non-Indians. Organized Village Egan, See also v. 60, 75-76, Kake 369 U.S. 562, 570-571, (1962). L.Ed.2d 573 In situations, these fairly both the Tribe the State claim could an interest in asserting respective jurisdictions. their The Williams test was designed providing resolve conflict the State protect up point self-govern- could its interest where tribal ment would be affected.” case, entirely
In instant situation is different. This respective rights case involves of two reservation acceptable in mutually divorce oase forum with no assertion antagonistic jurisdictional interests tribe, between the Indians, state, federal government. the two The Williams simply application test no this situation its contin- application jurisdictional ued to all indiscriminate ques- is a tions in this mistake. Court Continued adherence to the previously Williams test has resulted in reversals in judg- Kennerly Court, ments of this Court. See District 400 U.S. *11 L.Ed.2d 507. in controlling ease, my in opinion, consideration preempted government whether the federal the field of di- in leaving government powerless See, the tribal this area. vorce McClanahan, pages Having 1297- 1299 for rationale. been cited preemption or statutes of treaties have found no relevant power residual in none, I conclude divorce which ceded such residual remains the tribe cases deny For Montana to two reservation to state courts tbe its courts case under such use of equal protection amount to denial of would circumstances our Indian citizens. laws to tbe foregoing tbe basis. majority result of tbe
I concur tbe