*1 THREE AFFILIATED OF THE TRIBES FORT RESERVATION v.
BERTHOLD WOLD P. ENGINEERING, C., et al. Argued May
No. 82-629. November 1983 Decided *3 Raymond argued petitioner. Cross the cause for With him on the briefs was John 0. Holm.
Deputy
argued
Solicitor General Claiborne
the cause for
petitioner.
support
the United States as amicus
curiae
of
Acting
him
Lee,
With
on the brief were Solicitor General
As-
Attorney
sistant
Habicht,
General
and Edwin S. Kneedler.
Hugh
argued
respondents
McCutcheon
the cause for
and
respondent
Engineering,
filed a brief for
P.
Wold
C.*
opinion
the
delivered
of the Court.
Justice
Blackmun
litigation presents
jurisdic-
This
of
issues
state-court civil
by
tion over a claim asserted
an
tribe. The case, as it
respect:
comes to
us, is somewhat unusual
a central
the
jurisdiction,
seeks,
Tribe
rather than contests, state-court
party
opposition.
non-Indian
is in
Cf. Williams v.
Lee,
Chapter Century 27-19 the North Dakota Code entitled “Indian CivilJurisdiction.” Section 27-19-01 of that amici curiae *Briefs of urging reversal were filed for the Standing Rock Chambers; Peyton al. Reid et by Sioux Tribe and for the Turtle Mountain Chippewa Kim Jerome Gottschalk and Richard B. Band Indians Collins. provides courts of North Dakota that
Code
arise on
all civil
of action which
extend “over
causes
shall
upon acceptance
Indian citizens.”
Indian reservation
interpreted
of North Dakota
case, the
Chapter
over a
27-19 to disclaim state-court
non-Indian) by
(against
had
an Indian Tribe that
not
claim
accepted jurisdiction
deter-
under the statute. The court
ju-
Legislature
had disclaimed
mined
the North
pursuant
principal
governing
to the
federal statute
risdiction
country, namely,
Act
over Indian
§
Aug.
C.
amended,
1360,
28 U. S.
15, 1953, Stat.
commonly
con-
further
as Pub. L. 280.
court
known
jurisdictional
as it was
disclaimer,
inasmuch
cluded
run
L.
afoul of
North
authorized
did
Because the North Dakota
Dakota or Federal Constitutions.
interpretation
and its
appear
analysis
accompanying
to us to rest on
constitutional
misunderstanding
possible
L.
we vacate the
of Pub.
judgment
case to
reconsider-
and remand the
allow
court’s
light
jurisdictional questions in the
of what
of the
we
ation
meaning
proper
federal statute.
feel is
Tribes of the Fort Berthold
A. Petitioner Three Affiliated
federally recognized
with
Indian Tribe
its
is a
Reservation
Mar.
Act of
in northwestern North Dakota.
reservation
*4
City
Town
See
New
ch.
26 Stat. 1032.
1891,
543, §23,
1972).
(CA8
petitioner
In 1974,
state petitioner’s the tribal court did have filed, suit was time over a claim an Indian in non-Indian agreement by parties. Code, the absence of Tribal 1(a).1 § subject petitioner’s complaint, ch. II, matter of clearly scope however, general jurisdiction. fell within the of the state trial court’s D. Const.,
See N. Art. D. VI, §8; N. (1974 1983). § Supp. Cent. Code 27-05-06 claiming and After counter- alleged petitioner’s complete pay- for failure to its water-supply system, respondent ments moved to dis- petitioner’s complaint ground miss on the that the trial court subject-matter jurisdiction any arising lacked over claim in country. Indian point, place respondent’s jurisdic-
AtB.
this
in
to
order
argument
perspective,
tional
it is
desirable
review the
governing
somewhat erratic course of federal and state law
North Dakota’s
over the State’s Indian reser-
Long
vations.
before North Dakota became a State, this
recognized
general principle
Court had
terri-
beyond
legislative
judicial jurisdiction
tories were
and
governments.
Georgia,
(1832);
Worcester v.
143 original con- Constitution Ibid. North Dakota’s States.” required jurisdictional dis- tained, terms, identical 2 cl. Const., XVI, §203, claimers. N. D. Art. See jurisdiction over Dakota’s Federal restrictions on North substantially country, eliminated Indian were however, L. 280. 1953with of the aforementioned Pub. the enactment generally Washington Nation, Yakima Indian See (1979).3 L. 280 2 and 4 of Pub. 463, U. S. Sections excep gave jurisdiction, minor five full with stated States actions tion as over civil and criminal States, to each of two country. involving in Indian Stat. Indians and §1162 and 28 at 18 U. S. C. 588-589, codified, amended, gave respectively. all U. 6 and 7 §1360, S. C. Sections assuming jurisdiction. option other similar States the of and statutes Section 6 whose constitutions authorized States federally imposed jurisdictional like restraints, contained jurisdiction. North laws to assume to amend their Dakota’s, §1324. amended, 67 Stat. at 25 U. S. C. 590, codified, as provided other State Section 7 similar federal consent having jurisdiction, required such and criminal but civil legislative through jurisdiction States to “affirmative assume originally L. 280 enacted, action.” Pub. 67 Stat. 590. As require did not the consent of affected States to obtain assuming jurisdiction tribes over them. Title IV before Rights however, L. 280, Civil 1968amended Pub. Act of require subsequent that all assertions preceded §§401, 402, L. 90-284, tribal consent. §§ 1322, 25 U. C. Stat. codified at S. 78-80, 1326.
Even its Constitu- before moved to amend North Dakota tion and L. assume under Pub. full expansive view taken an Court had scope in Indian over Indians state-court that, with certain however, Congress Before had vested North Dakota May Reservation. Act of criminal the Devils Lake over ch. 1946. 279. Stat. 229.
country. existing jurisdic- In 1957, the court held that the Enabling tional disclaimers in the Act and the State’s Con- jurisdiction only country stitution foreclosed civil over Indian involving in in cases interests Indian lands themselves. e
V r i l l m legislature “provid[e] acceptance thorize its to for the such jurisdiction country] may delegated [over Indian as be to the Congress.” State Act of N. XIII, D. Art. Const., §1, Finally, Legislature cl. 2. in 1963, the North Dakota en- Chapter principal provides: acted 27-19, section of which provisions
“In accordance with the of Public Law 280 [the amended] juris- . . . and North Dakota constitution, diction of the state of North Dakota shall extended over all civil causes of action which arise on an Indian upon acceptance by reservation Indian citizens in a man- provided by chapter. Upon acceptance ju- ner risdiction of the state shall tobe the same extent that the state has over other civil causes action, general appli- and those civil laws this state are of that private property cation to shall have the same force and country effect within such Indian reservation or Indian they have elsewhere within this state.” N. D. Cent. §27-19-01 Code face,
On their both the 1958amendment to the North Da- Chapter expand pre- appear kota Constitution and 27-19 existing country state over Indian rather than to (1963), contract it. In In re Whiteshield, 124 N. 2d 694 W. however, the North Dakota reached the con- Chapter actually clusion that 27-19 disclaimed all arising country over claims in Indian absent Indian consent. subsequent general decisions, that court adhered to its jurisdic- view that without Indian consent “the State no has tion over civil cause an Indian reservation Eagle Dorgan, this State.” White 209 N. 2d W. (1973).4 In each case which the North jurisdiction, recognize the de- however, Court declined squarely held the court never had Indian; was an fendant a non-Indian an action could not maintain an Indian country.5 arising in Indian court for a claim Respondent’s restric- rested on motion to dismiss C. jurisdictional principles succes- and its of Whiteshield tive point petitioner has consented Tribe at no Because the sors. Fort over the under to state-court respondent argued court the trial Reservation, Berthold *7 petitioner’s under claim lacked over provisions L. 280. Peti- of Pub. amended 27-19 and the ground, opposed respondent’s to dismiss motion tioner requirements the Civil consent that the tribal alia, inter brought apply to a suit Rights meant to Act of 1968were petitioner. government The trial court like a tribal granted arguments to petitioner’s motion rejected and jurisdiction, did so without lack of but the suit for dismiss compliance following prejudice of the action to a renewal App. requirements. federal consent the state and with la. Pet. for Cert. appeal, affirmed. Court the North
On juris- argued Petitioner that 2d 510 N. W. extinguished recognized had not been in Vermillion diction possessed altogether Dakota courts the North and that “residuary jurisdiction” Indian a claim an over following L. 280 and the enactment of non-Indian argument, rejected Rights this The court of 1968. Act Civil Dubois, v. adhering in Nelson conclusion instead to its ex (1973), the court Smith, 207 N. W. 2d In Gourneau v. . . . applied longer states the rule that Vermillion “no pressly held on an highways public arising of use of the out Indians in a case between Indian reservation.” Hansen, 2d Hall 303 N. W. ex rel. States United In trial court that a in dictum however, did state (1981), the court n. 3 arising in non-Indian against a Indian claim an jurisdiction over a lacked country. (1975), any residuary N. W. 2d 54 pre- was empted by requirements the tribal consent contained in the Rights Civil reviewing Act of history 1968. After North country, Dakota’s over Indian the court prior holdings, observing reaffirmed its that “we have no arising over civil causes of action within the exterior boundaries of an Indian reservation, unless the In- dian accept jurisdiction.” citizens of the reservation vote to 321 N. W. at 512. 2d, rejected petitioner’s argument
The court
pro-
also
that to
plaintiff
suing
hibit an Indian
from
non-Indian
state court
for a claim
on an Indian reservation would violate the
Equal Protection Clause of the Fourteenth Amendment and
deny petitioner equal access to the
courts,
violation of the
Washing-
Constitution.6 The court relied on
ton v.
(1979),
Yakima Indian Nation,
stitution was amended a discrimination 2d, result, N. at 513. As 321 W. litigants or violate the State Federal did not Ibid. Constitutions. importance complexity the issue of the
Because Supreme posed decision, we Dakota Court’s the North (1983). granted 461 U. S. certiorari.
H-1 I-H dispute petitioner Respondent s comes claim does not recognized by scope civil within the ruling in 1957. Re- in its Vermillion Dakota court North arguments support spondent the North advances two jurisdic- conclusionthat state-court longer federal law far. first is that no extends so tion asserting jurisdiction precludes over the state courts from regardless petitioner’s of federal is that, claim. The second held the trial Court has the North Dakota law, matter law. of state We lacked court arguments in turn. address these
A departed rigid Although demarca- has from this Court authority Wor- laid down and tribal tion of state authority Georgia, Pet. the assertion state cester subject independent to “two remains tribal reservations over Apache Tribe v. Mountain White related barriers.” but particular ex- First, S. Bracker, 448 U. authority may it would be foreclosed because of state ercise “ right Indians to make their ‘the of reservation undermine quoting Williams Ibid., them.’” and be ruled own laws authority may Second, S., 220. Lee, 358 U. v. pre-empted by incompatible Mountain, federal law. White Apache v. Mescalero Accord, 142. New Mexico atS., 448 U. (1983); Navajo 16n. Ramah 334, and Tribe, 462 U. S. S. *9 Revenue, 832, 458 U. Board, v. Bureau Inc. School (1982); Comm’n, Tax v. Arizona State McClanahan 837-838 148 do not
411
We
believe that
179
either
164,
U. S.
precludes North Dakota courts from
these barriers
entertain-
against
ing
an Indian
tribe
non-Indian for a
a civil action
arising
an Indian reservation.
claim
arguments,
respondent’s
Despite
we fail to see how ex-
jurisdiction in
state-court
this case would interfere
ercise of
govern
right
tribal
Indians to
with the
themselves under
To be sure,
laws.
the full breadth
their own
of state-court
recognized
squared
in Vermillion cannot be
with
autonomy;
principles of tribal
to the extent that Vermillion
permitted
North Dakota state courts to exercise
against
over claims
non-Indians
Indians or over claims
impermissibly
Indians, it intruded
between
on tribal self-
governance. See Fisher v. District Court, 424 U.
382
S.
(1976);
supra.
v. Lee,
Williams
Court,
This
re
however,
peatedly
approved
jurisdiction by
has
the exercise of
against
claims
courts over
Indians
non-Indians, even when
country.
those claims arose
Indian
See
v.
McClanahan
(dictum);
Arizona State Tax
411
Comm’n,
S.,U.
at 173
Poafpybitty Skelly
(1968);
v.
Co.,
Oil
149 persons against equal other to seek relief terms with country. concerning in a claim Indian non-Indian compatible particularly The exercise of state brought autonomy when, the suit is here, tribal as with jurisdiction over the tribal lacked the tribe itself and court time the suit instituted. the claim the was juris- persuaded are the exercise of state Neither we that the and tribal here would be inconsistent with diction Enabling Act or Pub. reflected North Dakota’s interests Enabling provisions of As L. 280. for disclaimer jurisdictional presence specific dis- or absence of Act, rarely controlling significancein this Court’s has had claimers past or over Indian affairs decisions about state Apache lands. Arizona v. San activities on Indian Carlos (1983); F. Handbook Cohen, 463 562 see Tribe, 545, U. S. ed.).8 (1982 case, 268 In this Law of Federal Indian Enabling only sparse legislative suggests record that the [congressional] jurisdiction phrase con- and “absolute Act’s regulation of taxation was meant to foreclose state and trol” prohib- be lands, not that Indians were to Indians and their judicial entering pursue remedies from state courts to ited Cong., Rep. against 50th H. No. non-Indians. See R. (1888). disclaimer that the 24 the extent Sess., To 8-9, 1st ambiguous, Enabling may regarded language Act be statutory principle construction moreover, is a settled dependent passed for the benefit that statutes expressions liberally doubtful with construed, tribes are be g., Bryan being See, e. v. Indians. in favor of the resolved (1976); County, Alaska 426 U. S. Itasca Pacific (1918). U. S. It would States, v. Fisheries United contrary ambiguity principle in the to resolve to this (1962), this Kake Organized Village Egan, 369 U. S. was not control” phrase “absolute held authority concerning Indian completely all from intended oust States Comm’n, 411 See, however, Arizona State Tax McClanahan v. lands. 164, 176, n. 15 U. S. language Enabling of a Act favor construction under provide judicial which North Dakota could not forum for Indian to obtain relief a non-Indian.
We also cannot to the L. 280 subscribe view required jurisdic- either North Dakota to disclaim the basic recognized in tion Vermillion or authorized it to do so. This previously recognized *11 has that Pub. L. 280 was in- impede ju- tended to facilitate than rather to the transfer of authority Washington risdictional to the States. v. Yakima Bryan Indian Nation, S., 490; 439 U. at see also v. Itasca County, Nothing language 426 at S.,U. 383-390. or legislative history of Pub. L. 280 indicates that it was meant pre-existing lawfully to divest States of and otherwise as- jurisdiction.9 sumed Section 6 of the federal statute author- enabling ized a State whose Act and constitution contained jurisdictional any legal impediment disclaimers “to remove to assumption jurisdiction” (emphasis of civil and criminal added). 67 590, codified, Stat. at 25 amended, U. S. C. § § Similarly, gave congressional 1324. 7 consent to the as- sumption jurisdiction by any having juris- other State “not By §6 diction.” 67 590. terms, Stat. their therefore, both § designed assump- and 7 were to eliminate obstacles to the require pre-existing juris- tion of rather to than Although Rights diction to be disclaimed. the Civil Act of by adding require- 1968amended Pub. L. 280 tribal consent requirements ments, those were not made retroactive;10 displace jurisdiction pre- 1968amendments therefore did not 9Although Vermillion was decided after the enactment of Pub. L. Supreme Court made clear that it confirming pre was existing jurisdiction rather establishing previously ju than unavailable Elk, Spotted See Vermillion category. risdictional 2d, N. 85 W. 435-436. 25 1321(a), 1322(a), 1326; §§ 10 See U. S. Rep. Cong., C. S. No. 90th (1967) (additional Sess.,
1st Ervin); Goldberg, views of Sen. Public Law 280: The Limits of Indians, State Jurisdiction Over Reservation UCLA L. Rev. jurisdiction as-
viously L. much less under Pub. assumed Similarly, apart prior while Pub. L. 280. from to and sumed partial rather than to assume authorized States L. 280 Pub. Washington jurisdiction, v. Yakima see full civil pur- nothing in L. 280 Pub. 493-499, atS., Nation, U. jurisdiction. pre-existing ports to to authorize States disclaim granted Rights the au- States Act of the Civil Indeed, acquired L. 280 thority under Pub. retrocede such precisely did not authorize L. 280 itself because jurisdictional disclaimers.11 required policy the North no federal law or then,
In sum, recognized forgo in Vermil- courts to Dakota Dakota Court’s If the North in this case. lion ruling rest on jurisdictional it must shown to to stand, federal law. rather than
B
authority
concededly
revise the North
has no
This Court
jurisdictional
interpretation
of state
*12
Apache
Only
v. San Carlos
in Arizona
Term,
last
law.
a claimed bar
supra,
the extent that
noted that “to
we
Tribe,
respective
premised
State
on the
...
is
to state
question
state law over which
a
of
Constitutions, that is
authority.”
binding
at 561.
S.,
463 U.
have
state courts
respect
applicable,
equally
principle
course, with
of
is
That
grounded
If the North
jurisdictional
in state statutes.
bars
lacked
that the trial court
decision
Court’s
Dakota
only
solely
law,
on state
in this case rested
argu-
petitioner’s
remaining
would be
before this Court
issue
11
Interior,
of the
Dept.
Opinions
1323(a);
§
2
of
U. S.
25 U. S. C.
See
(1979);
1917-1974,
Affairs,
pp. 1951-1952
see
Relating to Indian
Solicitor
jurisdic
any assumption of
Goldberg, supra, at 558-562.
Although
also
procedural
comply with that statute’s
L. 280 must
pursuant
tion
to Pub.
Montana,
ment that the disclaimer rights.12 federal tioner’s constitutional equally that this re- established, however, It is well interpretation state law tains role when a state court’s accompanying interpretation been has influenced may In instances, federal law. some a state court construe narrowly perceived state law statutory conflict federal to avoid with requirements. g.,
or e. See, constitutional United (1973); Lines, Air Mahin, Inc. v. 410 U. S. 630-632 State (1939); Tax Comm’n v. 306 513-515 Red Cott, Van U. S. (1924); Line Co., Cross v. Atlantic Fruit 264 U. S. Diego Building see also San Trades Council v. Garmon, (1957). may U. S. 26 contrast, In in the state court others, broadly poses construe state law in the belief that federal law authority. g., no barrier See, to the exercise of state e. Standard Oil In Johnson, Co. U. S. both categories ques- cases, this Court has reviewed appears tion on which the state-law determination to have premised. proceeded been If the state court has on an incor- perception prac- rect of federal it has been this law, judgment tice to vacate the of the state court and remand may question case so that the court reconsider the state-law misapprehensions scope free of about of federal law.13 12The Indians, Chippewa United States and the Turtle Mountain Band of each of whom filed a brief amicus curiae support petitioner, sug has gest that Chapter may § violate 42 U. C. 1981 to the extent that it S. precludes petitioner maintaining action in state from its court. Section provides part: persons relevant “All within the United right every Territory States shall have the same State and . . . to sue ... enjoyed by appear white citizens.” Petitioner does not § have relied on Supreme Court, nor before North has done so here. light disposition case, of our of this we need not decide *13 § whether the or, so, properly issue is before us if whether a violation § 1981 of has been Supreme free, made out. Court of North Dakota is course, of applicability § consider the of 1981 on remand if it deems the properly issue to be it. before Lines, Mahin, Air Inc. § See 28 U. S. C. 2106. United In v. for exam justices ple, Supreme two of the Illinois Court had construed a tax state Supreme reading of the North Dakota a careful Here, opinion that the court’s far from certain leaves us Court’s interpretation a present does not rest on of determining played misconception In the role of law. federal guided understanding are law, federal we that court’s govern principles jurisdictional our that have come to grounds. independent adequate and calculation (1983), Long, ruled Michigan Court v. U. S. fairly appears ... to be a state court decision that “when... adequacy and and when law, interwoven with the ground any possible independence is not clear state law accept opinion, most rea- will as the the face of the we from explanation the case the that the state court decided sonable required way it to that federal law it did because believed Although petitioner’s consti- 1040-1041. Id., at do so.” Supreme challenge to the North Dakota tutional question judgment of our own that we do not face means jurisdiction, S., at Johnson, v. U. see Standard Oil Co. prin- interpretive general that the same we believe 482-483, properly apply ciples The North Dakota here. Legislature opinion Dakota that the North does state Court’s “totally aris- civil causes of action over disclaimed legislature ing it adds that the reservation,” but on an Indian authority “[u]nder “pursuant Law 280,” to Public did so authority granted explicit “under 280,” Law of Public power over Indians.” Congress in the exercise of its federal respects at least two There are at 513. 2d, 321 N. W. language in the court’s and other references in which these opinion clear that the North far less than leave it Clause. the dormant Commerce perceived conflict with to avoid a statute Illinois forgone by the interpretation held that This Court Clause, re- and therefore run afoul of the Commerce would not have which decision of ‘an affirmance case “to avoid the risk manded the free, had felt under differently if court below might decided have been Benguet quoting Perkins S., decisions, do so.’” 410 U. our 437, 443 Co., Mining Consolidated 342 U. S. *14 interpretation Chapter Supreme not was 27-19 understanding influenced its of federal law. petitioner’s
First, the court’s treatment of constitutional strongly suggests interpre- underlying claims that the court’s tation of have been different if the court would in- had realized not from the outset that federal law does present jurisdictional sulate disclaimer from state scrutiny. express federal no view constitutional While we petitioner’s equal protection about chal- the merits of lenge, Supreme re- we note that the North Dakota Court jected petitioner’s state and federal constitutional claims as meritless, because viewed them otherwise but because people legislature acting “the of North Dakota and the were explicit authority granted by Congress in under the exercise juris- power disclaiming its federal over Indians” proceeded The court had on 2d, diction. 321 N. W. at 513. assumption Smith, before; a similar Gourneau (1973), example, rejected In- for the court N. W. 2d jurisdictional “open plaintiff’s claim based on the courts” dian § provision I, 9, D. Art. of N. Const. because the tribal con- Rights requirements sent of the Civil Act of 1968were taken jurisdiction: to foreclose open
“The courts of the State of North Dakota are to persons. prohibits all But. . . Federal law State courts assuming jurisdiction involving from of civil actions Indi- ans which arise on an Indian reservation, until such time as the Indians of that reservation have consented to such jurisdiction. Thus the courts of the Da- State of North open they if Indians, kota are consent to the courts’ provided by 259. 2d, as law.” 207 N. W. Rights assumption Act that Pub. L. 280 and the Civil jurisdic- of 1968 either authorized North Dakota to disclaim affirmatively jurisdiction ab- tion or forbade exercise given above. incorrect, for reasons sent tribal consent is assumption, appears have been sole however, That to avoid relied the North Dakota basis jurisdictional holding disclaimer unconstitutional applied in this Because case. *15 construing consistently policy of adhered the
Court has potential state to avoid and federal constitu- state statutes g., problems, Kottenbroch, v. N. e. 319 W. see, tional State (1982); County Comm’rs, v. Paluck Board 307 465, 2d 473 (1981); Lutheran Church v. North 856 Grace 852, N. W. 2d Security Employment N. 294 W. 2d Bureau, Corp. (1980); N. v. 268 W. Huber, North American Coal (1978); Tang Ping, 209 N. W. 2d v. 2d (1973), entirely possible that the court would have it is construing Chapter question avoided constitutional possi- equally it is here, and 27-19 not to disclaim way if 27-19 that reconstrue that the court will ble opportunity given an do so. is rejected avail- manner in which the court the the Second, jurisdiction” open possibility ability “residuary leaves despite the court law, the court’s references to that, regarded bar to exercise of as an affirmative federal law jurisdiction here. The court stated: argues [petitioner] North Dakota re- essence,
“In brought by residuary jurisdiction over actions tained wrongs committed for civil non-Indians Indians argument . would be more . . That on Indian lands. pur- legislature convincing not, of North Dakota had totally Law disclaimed to Public suant an reserva- on of action over civil causes (N. 1963). 694 D. 124 N. 2d Whiteshield, In re W. tion. (N. 1975), . . D. . Dubois, v. 232 N. W. 2d Nelson ‘residuary’ jurisdiction. concept rejected We we today.” 2d, N. at 511 321 W. to that decision adhere added). (emphasis suggestive be- Nelson Dubois reliance on court’s attempt to invoke state- itself turned aside Dubois
cause country ground on over Indian court Specifically, jurisdiction. barred the exercise federal law the court held that it did not have “residuary jurisdiction” over a suit by non-Indians against Indians, even if the ex- ercise of jurisdiction were assumed not to infringe tribal self-governance under Williams v. Lee, because the tribal consent provisions of the Civil Rights Act of 1968 pre-empted any exercise of state accordance except with the terms of that Act. 2d, N. W. at 57-59. The court recognized that its holding deprived the plaintiffs of any forum for suit, their but added: “The solution to this most serious lies problem not with the State. Congress may amend statutes; its Indian tribes of this State may begin to assert their jurisdiction. own This State cannot exercise jurisdiction that it does not possess.” Id., at 59.14
As noted above, Civil Act Rights of 1968 no bars way *16 the exercise of this case. The court’s reliance on Nelson v. Dubois to dismiss petitioner’s jurisdictional
14The court has made even more clear in other cases its view that Pub. L. 280, by as Rights Act, amended the 1968 Civil is an affirmative constraint jurisdiction. on state example, For Lightning, Schantz v. White (1975), N. 2dW. 815-816 the court stated: “[A]ny change present [jurisdictional] from the require case law would ac- tion Congress. the United appellants States The asking are this court to assume the responsibilities duties and which solely are vested in the Congress. arguments United States The presented should be addressed body. to that Congress “The has mandatory procedure set out the be followed Indian Tribes and the may State before the States jurisdiction.. assume . . Indians, having accepted Sioux State permitted provided congressional for Chapter 27-19, mandate and we conclude have,
that the acquire, jurisdiction” State did not nor did it (emphasis added). Hansen, See ex ret. 2d, United States Hall v. 350; 303 N. W. at Nelson v. Dubois, 2d, (dissenting opinion); 232 N. W. at 61 Smith, Gourneau v. 2d, 259; (CA8 N. Demarrias, W. at see also Poitra v. 502 F. 2d 1974), denied, (1975); cert. 421 U. Agricultural S. American Indian Consortium, Fredericks, Credit Inc. Supp. 1020, v. 551 F. (Colo. 1982). proceeding suggests, that the court was on a however, claim may adopted contrary premise. event, In that well have Chapter per- interpretation of 27-19 to avoid a a restrictive jurisdictional state and federal man- between ceived conflict suggests By token, Nelson v. Dubois itself the same dates.15 might recognize “residuary some measure of that the court jurisdiction” for here but the mistaken belief that a federal impediment jurisdictional exists. Because we cannot ex- any degree possibility with confidence, clude give Supreme prudent is to the North Dakota course express opportunity to its views on 27-19 and thereby “avoid the risk of ‘an affirmance of a decision which differently might if have been decided the court below had ” Air decisions, Lines, under our to do so.’ United free, felt quoting Benguet Perkins v. Mahin, S., 410 U. Inc. Mining 342 U. Co., S. Consolidated conclusion that the North Dakota Our may decision well have rested on federal law is but- state-law by prudential give considerations. Were we not to tressed opportunity to recon- North Dakota Court an proper understanding of federal its conclusionswith sider required to we would be decide whether law, petitioner equal protection the Fourteenth under has denied by excluding courts in a circum- it from state Amendment maintain a would be allowed to stance which non-Indian judicial restraint, however, rule of It is fundamental suit. questions in reach constitutional ad- that this Court will not *17 g., necessity deciding Leroy e. See, the of them. vance of 15 instance, Supreme the North Dakota Court took care In at least one jurisdictional holdings to the in its situation which not to extend restrictive brought suit a non-Indian defendant in state plaintiff an Indian Lightning, 2d, 814, v. White (reject 231 N. n. 1 court. See Schantz W. jurisdictional require it “would ing formulation of issue because broad non-Indian”). if an Indian could sue a question of a consideration flatly right that “Indians have the to sue non-Indians court also once stated (1974). County Eltobgi, 645, 221 courts.” Rolette v. N. W. 2d 648 in State 5, supra. But see n.
158 (1979); Corp., 178, 443 U. S. v. Great Western United (1977); Al- Westcott, 322, v. 431 U. S. Massachusetts (1972); Ashwander Louisiana, exander v. 405 U. S. (1936)(concurring opinion); A, 346-348 v. TV 297 U. S. (1980) States, see also v. United U. S. Whalen dissenting). This Court has relied on J., (Rehnquist, principle in to resolve doubts about the similar circumstances interpreta- independence in state-law decisions favor of an of question. g., Black See, tion that avoids a constitutional e. (1956). Laboratories, v. 351 U. S. The same Cutter properly employed prudential in rule is this case. If the Supreme reinterprets Chapter 27-19 permit petitioner or courts, to maintain its claim the state Chapter if it concludes that 27-19 Con- violates State’s jurisdiction in case, stitution insofar as it bars neither required finally peti- that court nor this one will be to reach challenge. tioner’s federal constitutional Under these cir- responsibility unnecessary cumstances, our to avoid constitu- adjudication uncertainty tional demands that we resolve Supreme in favor of over the North Dakota Court’s decision possibility by misunderstanding that it was influenced a of law.16
16 addition, concluding practical mistakenly In cost of that federal law Chapter influenced the North Dakota Court’s treatment 27-19 reaching outweighed by mistakenly opposite far is the cost of conclu L. 280 in misunderstanding sion. If the court’s fact did not con interpretation law, the court is free tribute to its of state its reinstate Lines, g., Air Mahin, e. United Inc. See, judgment former on remand. contrast, 431, 298 N. if 54 Ill. 2d E. 2d 161 the court’s under interpretation standing play of federal law did a role its proceed contrary assumption, depriving but we were to we would be petitioner judicial forum that the North Dakota Court would only given opportunity if it were another make available to address erring negligible issue. the cost of in one and the When direction so uncertainty erring great, cost of about the other is so we think properly is resolved in favor the federal basis for the state-law decision played of the conclusion that federal law a material role.
hH I—I I—I recognize m important decided we have not what It is ruling Chapter today. no that have made this case We by assigned meaning any it the one other than has Supreme have we decided Court. Neither Supreme assuming Court that the North Dakota whether, appli- Chapter interpretation 27-19, to its current adheres deny petitioner petitioner federal will the statute to cation of federally any protected equal protection other or violate concerning right. Finally, no view we have intimated respondent’s counterclaim over state trial court’s Supreme the trial decide that Dakota Court should the North petitioner’s In- claim. over court does have merely Dakota vacate the North we stead, proceedings judgment not further remand the case for opinion. inconsistent with
It is so ordered. joins, Stevens with whom Justice Rehnquist, Justice dissenting. highest made a deci- Dakota has court North
The state jurisdiction, scope a decision based of state-court on the sion following passed of the State amendment statute on a state clearly question im- law, of state is one The Constitution. might pre- except in so far as review mune from our by States empted with the United law or conflict federal say today does Court Constitution. interpreted Court, the North
27-19, find pre-empted the Court law. Nor does judg- vacates the Yet unconstitutional. statute nor “authorized” L. 280 neither ment below because jurisdiction. pre-existing “required” disclaimer of purpose essay disagree I with the Court’s do not its relevance I to see But fail L. 280. and effect of Pub. Accord- below. the court to the state-law issues decided judgment Dakota court North ingly, I would affirm *19 only actually question before us—the because constitutionality ju- of North Dakota’s refusal to exercise brought over a lawsuit an Indian risdiction tribe —is insubstantial. opinion, argues
In II-A Part of its the Court that state- jurisdiction proper, over this case have as a court would been prior law, matter of both federal and North Dakota to the passage nothing L. 280 in L. of Pub. and that 280 should changed par- In have lays that situation. Part II-B, Court eclipse jurisdiction” of this “residual into a reason concluding may that the North Dakota for interpreted Chapter have Pub. L. 280 misunderstood when it linchpin argument 27-19. of the entire is the 1957case Spotted of Vermillion v. 85 N. 2d in Elk, W. which the expansive scope North Dakota court took an view of the jurisdiction state-court over suits in Indians country. today correctly Indian The Court states that the jurisdiction in claimed Vermillion—over all civil actions aris-
ing
country, except
involving
in Indian
those
interests in In-
dian lands—would embrace this case. Ante, at 147. But
argument
for residual
which the Court con-
wholly
simple
structs around Vermillion is
untenable for the
expansive jurisdiction
reason that the
of Vermillion was
years
discredited, two
after it was claimed,
our decision
(1959).
in
v. Lee,
Williams
after Vermillion was Lee, Williams v. “lawfully jurisdiction,” ante, law. The assumed *20 L. 280 Pub. which must have survived both the Court thinks unlawfully Chapter and assumed and in fact 27-19, was appears Chapter The fact that therefore invalid. country expand jurisdiction than to rather over Indian light Vermillion, in not of understood, contract it must be superseding light intervening, decision of this in but Legislature Dakota Court in v. Lee. The North Williams asserting juris- “square effectively starting in one” was from passed country in Indian when diction over civil actions jurisdiction assumption Chapter Thus, since 27-19. predicated consent, which in on tribal 27-19 was forthcoming, Court Dakota has not the North been properly naturally there was no state- could concludethat court in this ease.2 argu- difficulty glosses in its this obvious Court over by recasting simply needs. to fit its
ment Vermillion of state-court “To be sure the full breadth princi- recognized squared with in cannot Vermillion ples autonomy; extent that Vermillion to the tribal juris- permitted exercise courts to Dakota state North against by Indians or diction non-Indians over claims (1979), Nation, Washington v. Yakima Indian In 439 U. S. jurisdic assumption of full “any option we held that State can condition to do so though required tribe” even tion on consent of an affected L. 280. Pub. impermissibly Indians, it intruded
over claims between self-governance. Court, however, . . . This on tribal jurisdiction by repeatedly approved the has exercise against non-Indians, claims Indians state courts over country.” in Indian Ante, those claims arose even when at 148. with its view of what the North courts accordance compatibly pro- law,
could have done with federal only if ceeds to treat it had fact claimed Vermillion Thus, over suits Indians non-Indians. nothing says “required L. 280 the Court North jurisdiction recognized in Dakota to disclaim the basic Ver- it to so,” ante, million or authorized do and that “no policy required federal law or the North Dakota courts to jurisdiction recognized forgo in Vermillion in case,” at 151. The Court even refers to the ante, lawfully jurisdiction.” assumed Vermillion as “otherwise Ante, at 150. being nonplussed by
I must confess to the Court’s treat- suppose strange, It indeed, ment of Vermillion. seems good that Vermillion is some sense law—when neither its holding reasoning acceptable nor its under federal law— *21 merely opinion acceptable if because the would be it had been differently altogether opposite and reached an written result. differently The fact remains that it was not written and did opposite reach the result. not improperly juris
The North Dakota court tried to assert country, except in diction over all civil actions involving attempt in those interests Indian lands. That hav ing failed, there is no indication that North would one-way jurisdiction sought by petitioner accepted have the whereby in this Indians can sue non-Indians but case, not permit cases would vice versa. And the fact that our have assumption jurisdiction simply ted the of such is beside the point. Nothing Enabling Act, in the the Constitution, State compelled grant the
or Pub. L. 280 North Dakota to Indians right in in where to sue non-Indians state court situations specula non-Indians could not sue Indians. And is sheer suppose tion to that the State would have done so.3 argument in II-B Without Vermillion the Part plausible simply sort of “resid- crumbles. For without some jurisdiction” L. 280 this Pub. con- case, ual that would cover jurisdiction assumption of stitutes an affirmative bar to the Any by jurisdiction over Indian the court. following passage country by option assumed an State require- in with the L. 280 must be assumed accordance by af- is, assumed, ments of Pub. L. 280. It must be legislative powerless to act action; firmative state courts are provides subsequent Dakota court’s treatment of Vermillion North law, never, strong a matter of state indication that the court would permit recognized jurisdiction sought petitioner and have the one-sided noted, jurisdiction in under by federal law. As claimed Vermillion ted pre-empted by law. law was invalid under Williams Lee as jurisdiction was also disclaimed as a matter of state law That same (N. 1982). Chapter 321 N. W. 2d passage of 27-19. See D. “jurisdiction provides that of the state of North Dakota Chapter 27-19 action an Indian shall extended over all civil causes of which arise on provided upon acceptance by Indian citizens a manner reservation provision §27-19-01 A chapter.” N. D. Cent. Code later lands. excepts involving interests in Indian from this suits ready Thus, § 27-19-08. which North Dakota stands exactly accept Chapter under 27-19 is coterminous with that claimed Vermillion. law, Chapter en- good If had 27-19 would have been Vermillion been therefore, 27-19, Following passage
tirely superfluous. had reasonably legislature could conclude that the the North Dakota court (i. to) wrongfully e., renounced claim disclaimed And the tribes. usurped except on consent of the affected Vermillion had jurisdiction of Vermillion the court concluded that all the fact that law, views that, the court as a matter of state been disclaimed indicates reciprocal proposition. all-or-nothing, of Vermillion as the State to as- -permitted have Again, it irrelevant that our cases would obliged accept one-sided, jurisdiction.' The State was sert residual the invitation.
164 Kennerly on their own initiative. As we stated v. District (1971): Montana, Court 400 U. S. 427 requirement legislative “[T]he [was of affirmative action legislative not] history an idle choice of words; the requirement 1953 statute shows that the was intended jurisdiction to assure that state would not be extended jurisdictions responsible portion until the to be for the country by political of Indian concerned manifested ac- willingness ability discharge tion their responsibilities.” and their new legislative passing North Dakota took affirmative action in assumption jurisdiction 27-19, but conditioned its on tribal consent. Since that consent has not been forth coming, juris North Dakota has not assumed additional country diction over Indian under Pub. L. 280. See Wash ington v. Yakima Indian Nation, U. S. authority
North Dakota courts therefore have no
to unilat
erally
augment
by entertaining
their
suits either
arising
or
Indians
actions
on Indian lands.
Kennerly,
Fisher v.
Court,
District
at
S.,U.
388-389;
supra,
at 427.4 Unless, therefore, such
was “as
prior
apart
sumed
to and
from Pub. L. 280,” ante,
at
assumption
given,
I find untenable for the reasons
Pub. L.
precludes
the exercise of
in this case.5
Dubois,
reason,
Nelson v.
For this
reliance on
232 N. W. 2d
(N.
Lightning,
1975),
(N.
Schantz White
D.
165 might finally posit I that even if one did a add truncated providing the residual Vermillion as somehow argument eclipsed by necessary until the to Legislature, there is still no indication and the good the North no reason to believe that Court offers Supreme any interpreted Chapter 27-19 under mis- apprehensions L. 280. The Dakota court about Pub. North perfectly appreciation pur- clear of both the in fact shows pose L. of Pub. 280. and effect purpose facilitate the
“The of Public Law was to jurisdictional responsibility to the states. transfer Washington Bands and Tribes, v. Confederated (1979). permitted It states to amend 463, U. S. existing any or statutes to remove their constitutions assumption legal impediments to the of civil and criminal thereby unilaterally jurisdic- jurisdiction, and assume the exterior tion over criminal and civil matters within of Indian reservations within the states tak- boundaries ing 321 N. such action.” W. 2d unexceptionable. Indeed, statement of the law is This purpose and effect of Pub. L. Court’s own statement of the paraphrase at reads like a of the above ante, see passage. remotely implies Dakota court never even
The North any pre- “required” L. to eliminate State lawfully jurisdiction. existing, assumed The focus is rather legislature. passage the state See on the may supra. And as to whether the court have mistak- 3,n. enly thought L. 280 “authorized” such a disclaimer that Pub. question I cannot see how that is State, pre-existing jurisdic- relevant at all. Either disclaimer If not, federal or it was not. tion was forbidden law subject-matter areas on Indian jurisdiction over Indian lands some handling equal also follow that the lower court’s consent. It would it, ante, not, have reflect claim does as the Court would protection misunderstanding of federal law. imply majority was, that it then no there is addi- does not affirmatively requirement sanctioned. A tional may obliged play I” “Mother, with the Federal State is not retroceding jurisdiction under our that, before Government retained. have been could cases, only question presented my therefore, view, permit whether North Dakota’s failure to In- this case non-Indians circumstances under which non- to sue
dians *24 Equal not sue Indians could violates Indians Protection the Fourteenth Amendment to the United States Clause Washington After our decision Constitution. Yakima question supra, that Nation, is not a substantial one. supra. to the Access See n. courts within petitioner. merely power The Tribe need consent pursuant civil North Dakota, to the full which ready to L. stands offer them. Petitioner wants Pub. enjoy plaintiff full benefits state courts as without running appearing Equal the risk of ever as defendant. The Clause mandates no such result. Protection respectfully I dissent.