No. 12405 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

Petitioner, 

DISTRICT COURT OF THE FIFTEENTH JUDICIAL 

DISTRICT OF THE STATE OF MONTANA, IN AND 

FOR THE COUNTY OF ROOSEVELT AND THE HONORABLE 

M. JAMES SORTE, District Judge, 

Respondents. 

PROCEEDING : 

Coun.se1 of Record: 

For Petitioner: 

Robert L. LaRoche argued, Wolf Point, Montana. 

For Respondents : 

James McCann, County Attorney, Wolf Point, Montana. 

John T. McDennott argued, Missoula, Montana 

Amicus Curiae 

Hen. Robert L. Woodahl, Attorney General, Helena, 

Montana. 

William Jensen argued, Assistant Attorney General, 

Helena, Montana. 

Submitted : December 21, 1972 

Decided : MAY - 2 19n 
Mr. Justice John Conway Harrison delivered the Opinion of 

the Court. 

This is an original proceeding wherein petitioner seeks 

a writ of mandamus directing respondent district court to take 

jurisdiction and determine the merits of a divorce action filed 

by petitioner in that court. Amicus Curiae briefs were filed 

by the Attorney General of the state of Montana,District Court 

Judge R. D. McPhillips, and the United States ~ttorney's office. 

John T. McDermott of the University of Montana Law School filed 

a brief on behalf of the respondent district court of the fifteenth 

judicial district, county of Roosevelt, and Hon. M. James Sorte, 

Judge. 

Petitioner Mary Iron Bear filed a divorce action against 

Harry Iron Bear in October 1971, Both petitioner and her husband 

are enrolled members of the Assiniboine-Sioux Tribes and have 

resided within the exterior boundaries of the Fort Peck Indian 

Reservation since their marriage in April 1954, which marriage 

was solemnized under state law, Harry Iron Bear was personally 

served with process on the reservation in October 1971. Subsequently, on November 6, 1972, his default was entered by the clerk 

of the respondent district court. Petitioner then applied for 

judgment by default, 

On November 10, 1972, on its own motion, respondent district court issued its findings of fact, conclusions of law and 

order dismissing the divorce action for lack of jurisdiction over 

the subject matter. The court based its decision on the conclusion th.at a certain 1938 tribal enactment purporting to cede 

jurisdiction over divorce matters to the state of Montana, was 

invalid. It relied specifically on three cases to deslare the 

tribal enactment invalid: Kennerly v. District Court, 400 U.S. 

423, 91 S.Ct. 480, 27 L ed 2d 507; Crow Tribe v. Deernose, 158 

Mont. 25, 487 P,2d 2133; Blackwolf v. District Court, 158 Mont. 

523, 493 P.2d 1293. 
The 1938 Enactment by the executive board of the Assiniboine-Sioux Tribe reads in pertinent part: 

'I* * * no marriage or divorce of any member 

of this Reservation shall be valid or have 

any force or effect unless entered into or 

granted or decreed in accordance with the laws 

of the State of Montana * * *.It 

This Enactment bears the signatures of the Chairman and Secretary 

of the Fort Peck Indian Reservation Executive Board, and the 

recommended approval of Superintendent John G, Hunter. 

Respondent court noted in its findings of fact that the 

Fort Peck Indian Reservation Tribal Court has interpreted the 

language above cited as ceding jurisdiction over divorce matters 

to the state of Montana. Since 1938 the Tribal Court has granted 

no divorces, while the respondent district court has granted 

hundreds to members of the Assiniboine-Sioux Tribe and other 

Indians residing within the exteribr boundaries of the Fort Peck 

Reservation. 

Here, two issues are involved which we combine for discussion inasmuch as both go to the jurisdiction of state courts 

over domestic relations of enrolled Indians on the Fort Peck 

Resew vation. 

The original issuer Do state courts have jurisdiction 

over divorce actions brought by an Indian plaintiff against an 

Indian defendant, both enrolled members of Fort Peck Tribes and 

residing on the Fort Peck Indian Reservation? 

The second issue: Did the action of the respondent district 

court in this cause violate the Indian plaintiff's rights to the 

equal protection of the law? 

We answer both issues in the affirmative. 

Some twenty years ago this Court in Bonnet v. Seekins, 

126 Mont, 24, 243 P.2d 317, held that the courts of this state 

are open to our Indian citizens. Later, in State ex rel. Kennerly 

v, District Court, 154 Mont, 488, 493, 466 P.2d 85, the Court 

said: 
I1 Indians resident in Montana, whether they be full 

blood or partial blood, allotted or unallotted, 

domiciled on the reservation or off of it, of one 

tribe or another, or whatever their status, are citizens of the State of Montana, They are entitled to 

the protection of our laws, * * * 

11 The state cannot disenfranchise an Indian person 

nor can that Indian person disenfranchise the state 

simply by being an Indian person or by living within 

the external boundaries of an Indian reservation. 

Thus, our courts are open to Indian persons. They 

use the courts of this state for many things--divorces, 

contracts, torts, inheritance, and the entire spectrum 

of legal matters, Clearly, they are entitled to so 

do, See Bonnet v. Seekins, 126 Mont. 24, 243 P.2d 317." 

Kennerly was reversed by the United States Supreme Court, 

400 U.S, 423, 91 S.Ct. 480, 27 L ed 2d 507, but it is important 

to note that the United States Supreme Court action was based on 

other grounds, Bonnet is still the law of this state. 

As Mr. Justice Angstman noted in Bonnet, Montzna is not 

unique in holding that Indian citizens have the full use of their 

state courts: Bem-Way-Bin-Ness v. Eshelby, 87 Minn. 108, 91 N,W. 

291; Holden v. Lynn, 30 Okl, 663, 120 P, 246; Phillips v, Reynolds, 79 Neb, 626, 113 N.W. 234; Martinez v, Martinez, 49 MOM, 

83, 157 P.2d 484; Red Hawk v. Joines, 129 Ore. 620, 278 P. 572; 

Missouri Pac, Ry, Co, w. Cullers, 81 Tex. 382, 17 S.W. 19, 41 Am, 

Jur.2~3, Indians, 520; 42 C.J.S. Indians, 58, 

The right of an individual Indian citizen to sue or be 

sued in the courts of this land was recognized by the United States 

Supreme Court recently in Poafpybitty v, Skelly Oil Co., 390 U.S. 

365, 88 Sect, 982, 19 L ed 2d 1238, 1243, where it said: 

"Nor does the existence of the Government's 

power to sue affect the rights of the indiviI dual Indian. A restricted Indian is not without capacity to sue or to be sued with respect to 

his affairs, including his restricted property * * * Both the Act of April 12, 1926 and the 

decision * * * in Heckman v. United States * * * 

recognize capacity in a restricted Indian to sue 

or defend actions in his own behalf subject only 

to the right of the Government to intervene."' 

Two United States Supreme Court cases, Worchester v. 

Georgia, 31 U,S, (6 Pet.) 515 (1832) and Williams v, Lee, 358 

U.S, 217, 79 S.Ct. 269, 3 L ed 2d 251, 254, (1959), define the 

power of Indian tribal governments and the authority of the Congress 

of the United States as it concerns the jurisdiction question. 

As we noted in Bonnet, this state and other states have long held 
that an Indian has the same rights as are accorded any other 

person to invoke the jurisdiction of the state courts to protect 

his rights in matters not affecting the federal government, 

The propriety of legal actions by Indians against nonIndians in the state courts has been recognized and approved by 

the United States Supreme Court in Williams. There the court 

speaking of the powers of states on Indian reservations laid 

down the test: 

"~ssentially, absent governing Acts of Congress, 

the question has always been whether the state 

action infringed on the right of reservation Indians 

to make their own laws and be ruled by them." 

Using this test to judge jurisdiction in the instant case, 

we first examine the two essential elements set forth by the test: 

1. Whether there is a governing Act of Congress? 

2, Does state action infringe on the right of the Fort 

Peck tribe to make their own laws and be ruled by them? 

As to element No. 1, we note that the Montana Enabling Act 

imposed the requirement of what is normally referred to as a 

"disclaimer" provision concerning the Indian population of the 

state. We adopted the disclaimer with identical language in 

Qrdinance No, 1, Sec.2, Constitution of Montana. We have never 

before been required to rule directly on this provision's impact 

on civil jurisdiction, Other states have similar disclaimer provisions and have ruled on them, We will consider some of the cited 

cases. 

~ontana 's Enabling Act reads in pertinent part: 

"$4. * * * And said conventions shall provide, by 

ordinances irrevocable without the consent of the 

United States and the people of said states: * * * 

"second. That the people inhabiting said proposed 

states do agree and declare that they forever disclaim all right and title to the unappropriated public lands lying within the boundaries thereof, and to 

all lands lying wi.thin said limits owned or held by 

any Indian or Indian tribes; and that until the title 

thereto shall have been extinguished by the United 

States, the same shall be and remain subject to the 

disposition of the United States, and said Indian 

lands shall remain under the absolute jurisdiction and 

control of the congress of the United States * * *." 
This disclaimer of a right and title to Indian lands is 

a disclaimer of a proprietary interest therein and control thereof, 

and not a disclaimer of governmental control, Organized Village 

of Kake v. Egan, 369 U.S. 60, 82 Sect. 562, 7 L ed 2d 573,583; 

Paiz v. Hughes, 76 N.M, 562, 417 P,2d 51; County of Beltrami v. 

County of Hennepin, 264 Minn. 406, 119 N,W.2d 25; State v. Danielson, 149 Mont. 438, 427 P.2d 689; Fournier v. Roed, (N.D, 1968), 

161 N,W,2d 458; Sangre De Cristo Dev,Corp,, Inc. v. City of 

Santa Fe, 84 N.M. 343, 503 P.2d 323, As noted above, here 

petitioner does not seek to assert any proprietary authority over 

lands of the Indian, but rather, governmental authority. 

Mast western states with the exception of South Dakota, 

Smith v, Temple, 82 S,D, 650, 152 N.W.2d 547, seem to hold that 

the disclaimer provision is not applicable where the issue does 

not concern Indian lands; we believe the cases are persuasive and 

we so hold. 

Having so held, we now decide just what is the nature of 

that state jurisdiction. In Williams and Organized Village of 

- Kake, the United States Supreme Court stated: 

"* * * even on reservations state laws may be 

applied to Indians, unless such applicatian would 

interfere with reservation self -government or impair a right granted or resewed by federal law," 

7 L ed 2d 583.. 

We recognize that Public Law 280 of the 1953 Congress 

(67 Stat. 588) and the Civil Rights Act of 1968 (82 Stat, 78, 

25 U,S.C.A. $5 1321-1326) concerned jurisdictional problems on 

Indian reservations, but we concern ourselves with what effect, 

if any, those acts have on preexisting state jurisdiction. In 

Organized Village of Kake, a post-Public Law 280 case, the court 

made this statement: 

"* * * 'absolute' federal jurisdiction is not 

invariably exclusive jurisdiction, " 

7 L ed 2d 579. 

It would appear from this statement that even after Public Law 

280, states had some jurisdiction. Several states have considered 

this question and found some preexisting jurisdiction remained 
. . 

after Public Law 280. Ghahate v. Bureau of Revenue, 80 N.M. 98, 

451 P,2d 1002; Vermil.lion v, Spotted Elk, (N.D. 19571, 85 N.W.2d 

In Montana, the state asstuned jurisdiction after Public 

Law 280 on only one reservation, Flathead. It has not acted concerning the other six Montana reservations and it still retains 

jurisdiction over arezs of the law where there is neither a 

governing Act of Congress nor an infringement with reservation 

self-government. 

The 1938 Enactment of the Assiniboine-Sioux tribes, which 

preexists by some years both Public Law 280 (1953) and the Civil 

Rights Act of 1968, is not changed by those acts. The district 

court's finding to the contrary based on Kennerly, Deernose, and 

Blackwolf is in error, 

Kennerly did not consider the jurisdiction remaining in 

the state after federal action or tribal assumption of government, 

rather it emphasized the procedural aspects for tribal consent for 

jurisdiction. 

The guide lines are set down in Willi.ams and as long as 

the state does not violate those guide lines and does not attempt 

to exercise jurisdiction over areas of the law where there is 

either a governing Act of Congress or an infringement on reservation self-government, it may continue to exercise jurisdiction, 

With the above in mind, does the state of Montana have 

jurisdiction over divorce actions brought by an Indian plaintiff 

against an Indian defendant, both residing on an Indian resewation? 

We cannot find any Act of Congress or the executive branch 

of the federal government, nor are we cited any by amicus, setting 

forth who has jurisdiction over divorce on an Indian reservation. 

The Bureau of Indian Affairs regulations provide law and order 

codes but leave to the authorities of each tribe to define what 

constitutes divorce, 25 C.F.R., 5 11.28, There are no federal 

limitations on the state's jurisdiction over divorce, 
-. . . i 

An examination of the 1938 Tribal Enactment indicates 

the intent was to do away with tribal jurisdiction over marriages 

and divorces and to rely on the laws of the state of Montana. 

We can find no interference with reservation self-government by 

the state of Montana here. 

Article 111, Sec, 6 of the Montana Constitution provides: 

I l Courts of justice shall be open to every person, 

and a speedy remedy afforded for every injury of 

person, property or character; and that right and 

justice shall be administered without sale, denial 

or delay. If 

Section 83-102, R.C.M. 1947, concerning jurisdiction, 

provides : 

"The sovereignty and jurisdiction of this state 

extend to all places within its boundaries, as 

established by the constitution, excepting such 

places as are under the exclusive jurisdiction 

of the United States * * *.It 

Here, it was stipulated and agreed, and the district court 

found, that plaintiff Mary Iron Bear and her husband are resident 

citizens of the state of Montana and had been for some years before the filing of this action. Applying the test of jurisdiction set forth in Williams, we find no exclusive control by the 

United States government nor an interference with tribal selfgovernment, therefore the district court erred in denying access 

to the state court in seeking a divorce, 

In two recent cases, Mescalero Apache Tribe v. Jones, No, 

71-738, decided March 27, 1973, 41 L.W. 4451, and McClanahan v. 

Arizona State Tax Commission, No. 71-834, decided March 27, 1973, 

41 L.W. 4457, the United States Supreme Court considered: (1) 

the jurisdiction of a state to impose taxes on a tribal-owned 

enterprise located outside the limits of a reservation, Mescalero; 

and (2) the jurisdiction of a state to impose a tax on the income 

of a tribal member residing on a reservation whose income is 

wholly derived from reservation sources, McClanahan, 

In Mescalero, the Supreme Court held that the state of 

New Mexico could impose a nondiscriminatory gross receipts tax on 

a tribal-owned enterprise located outside the limits of a reservation, but that the state could not tax personalty which has merged 
with realty exempt under 25 U.S.C. 465. In McClanahan, the 

Supreme Court held that the state of Arizona has no jurisdiction 

to impose a tax on the income of Navajo Indians residing on the 

Navajo Reservation and whose income is wholly derived from reservation sources. 

As a preface to its discussion of the authority of the 

state over tribal enterprises outside reservation boundaries in 

Mescalero, the court said: 

"At the outset, we reject--as did the state court-- 

the broad assertion that the Federal Government has 

exclusive jurisdiction over the Tribe for all purposes 

and that the State is therefore prohibited from enforcing its revenue laws against any tribal enterprise ' [wlhether the enterprise is located on or off tribal 

1 land. Generalizations on this subject have become 

mission of Arizona, ante, Organized Village of 

Kake v. Egan, 369 U.S. 607L73 (1960). The upshot 

has been the repeated statements of this Court to the 

effect that even an reservations state laws may be 

applied unless such application would interfere with 

reservation self-government or would impair a right 

ranted or reserved b federal law, Organized Village 

ff Kake, supra, at 753 Williams v. Lee, 358 U.S. 217 (19 

New York ex rel. Ray v. Martin, 326 U,S, 496, 499 (1946) 

Draper v, United States, 164 U.S, 240 (1896). Even so, 

in the special area of state taxation, absent cession 

of jurisdiction or other federal statutes permitting it, 

there has been no satisfactory authority for taxing 

Indian reservation lands or Indian income from activitie 

carried on within the boundaries of the reservation, and 

McClanahan v. State Tax Commission of Arizona, ante 9- 

lays to rest any doubt in this respect by holding that 

such taxation is not permi-ssible absent congressional 

consent ." 41 L,W, at 4452, (Emphasis supplied), 

The court thus, in Mescalero, reiterated the proposition 

that the test as to the application of state laws on reservations 

is whether: (1) such application would interfere with reservation 

self-government, or (2) whether such ap~l~catian would impair a 

right preempted by federal law. The state thus has residual jurisdiction in areas where the federal law has not preempted state 

activity and the tribes have determined not to exercise jurisdiction, 
In McClanahan the court indicated that the test for determining jurisdiction i s now whether the federal treaties or 

scatutes have preempted state jurisdiction using Indian sovereignty 

as a "backdrop against which the applicable treaties and federal 

statutes must be read." The court in McClanahan determined that 

based on the relevant treaties between the Navajos and the federal 

government and federal statutes applying inter alia to the Navajos, 

the state of Arizona has no jurisdiction to impose a tax on the 

income of Navajo Indians residing on the Navaja reservation and 

receiving income derived whozly from reservation sources. 

Based on the holding in McClanahan, that the determination 

of jurisdiction is made by examining federal statues for preemption and federal treaties and statutes for the sovereignty of 

the tribe, the residual jurisdiction of the state over divorces 

on the Fort Peck Indian Reservation remains valid. 

There is no federal legislation concerning the power to 

grant or deny divorces in Tribal Court. Unlike the power to tax, 

which is inherent in sovereignty, the power to terminate a marriage contract is not one which will interfere with tribal sovereignty. Because the power to grant a divorce has not been preempted by the federal government and does not interfere with 

reservation self-government (especially since the power granted to 

the state is merely residual) there is jurisdiction and the 

district court is required to exercise that jurisdiction. 

Before a district court can assume jurisdiction in any 

matter submitted to it, it must find subject matter jurisdiction 

by determining: (1) whether the federal treaties and statutes 

applicable have preempted s tete jurisdiction; (2) whether the 

exercise of state jurisdiction would interfere with reservation 

self-government; and (3) whether the Tribal Court is currently 

exercising jurisdiction or has exercised jurisdiction in such 

a manner as to preempt state jurisdiction. 
This Court by this opinion has determined the district 

court has jurisdiction and petitioner's prayer for relief is 

granted, The trial court is directed to assume jurisdiction 

and determine the merits of the divorce action. 
Mr. Justice Frank I. Haswell specially concurring: 

I concur in the result, but in my view the rationale 

of the majority opinion is flawed. In my opinion this will 

lead to no end of difficulties in future Indian jurisdictional 

cases that may come before this Court. 

The majority opinion is predicated on the jurisdictional 

test set forth in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 

3 L ed 2d 251, i.e. whether state action infringes on the right 

of reservation Indians to make their own laws and be ruled by 

them. The Williams test was subsequently applied in Organized 

Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L ed 2d 

573. In one of the latest cases discussing the Williams test, 

the U.S. Supreme Court pointed out that this test was useful 

in situations involving the rights of Indians and non-Indians 

where both the Tribe and the state could fairly claim jurisdition. McClanahan v. Arizona State Tax Commission, No. 71-834, 

decided March 27, 1973, 41 L.W. 4457. 

In McClanahan the court said: 

"It must be remembered that cases applying the 

Williams test have dealt principally with 

situations involvinq non-Indians. See also 

Organized Village of Kake v. Egan, 369 U.S. 60, 

75-76 (1962). In these situations, both the 

Tribe and the State could fairly claim an 

interest in asserting their respective jurisdictions. The ~illiams test was designed to 

resolve this conflict by providing that the 

State could protect its-interest up to the 

point where tribal self-government would be 

affected." 

In the instant case, the situation is entirely different, 

This case involves the respective rights of two reservation 

Indians in a divorce case in a mutually acceptable forum with no 

assertion of antagonistic jurisdictional interests between the 

tribe, the state, the two Indians, or the federal government. 

The Williams test simply has no application to this situation 

and its continued indiscriminate application to all Indian jurisdictional questions in this Court is a mistake. Continued ad- 
herence to the Williams test has previously resulted in reversals in the judgments of this Court. See Kennerly v. District 

Court, 400 U.S. 423, 91 S.Ct. 480, 27 L ed 2d 507. 

The controlling consideration in this case, in my 

opinion, is whether the federal government has preempted the 

field of divorce leaving the tribal government powerless in this 

area. See McClanahan, pages 8-11 for rationale. Having been 

cited no relevant treaties or statutes of preemption and having 

found none, I conclude that residual power and jurisdiction in 

divorce cases remains in the tribe which ceded such residual 

jurisdiction to state courts in 1938. For Montana to deny two 

reservation Indians the use of its state courts in a dkvorce 

case under such circumstances would amount to a denial of equal 

protection of the laws to our Indian citizens. 

I concur in the result of the majority on the foregoing 

basis. 

Associate Justice