No. 12405 INTHE SUPREME COURT OF THE STATE OF MONTANA

Petitioner,

DISTRICT COURT OF THE FIFTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, INAND FOR THE COUNTY OF ROOSEVELT AND THE HONORABLE M. JAMES SORTE, District Judge, Respondents.

PROCEEDING: Coun.se1of 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'soffice. 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. PetitionerMary 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 inApril 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.ata 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: Kennerlyv. 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 executiveboard of the Assiniboine-Sioux Tribe reads inpertinent part:

'I* 

# ** no marriage or divorce of any member of this Reservation shallbe valid orhave any force or effect unless entered into or granted or decreed inaccordance 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 cedingjurisdiction over divorce matters tothe state of Montana. Since 1938 the Tribal Court has granted

no divorces, while the respondent district court has granted hundreds tomembers 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 asboth go to the jurisdiction of statecourts

over domestic relations of enrolled Indians on the Fort Peck Resewvation. The original issuer Do statecourts 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 inBonnet 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, 154Mont, 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 Indianperson disenfranchise the state simplyby being an Indianperson or by livingwithin the external boundaries of an Indianreservation. 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 actionwas based on other grounds, Bonnet is still the law of this state. As Mr. Justice Angstman noted in Bonnet, Montzna is not unique inholding that Indian citizens have the fulluse of their state courts: Bem-Way-Bin-Nessv. Eshelby, 87Minn. 108, 91N,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, 81Tex. 382, 17 S.W. 19, 41Am, Jur.2~3,Indians, 520;42C.J.S. Indians, 58, The right of an individual Indian citizen to sue or be sued in the courts of this landwas recognizedby the United States Supreme Court recently in Poafpybittyv, Skelly Oil Co., 390U.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 suedwith respect to his affairs, includinghis 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 inhis 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 heldthat an Indian has the same rights as are accorded any other person to invoke thejurisdiction of the statecourts toprotect hisrights in matters not affecting the federal government, The propriety of legal actionsby Indians against nonIndians in the statecourts has been recognized and approved by the United States Supreme Court inWilliams. 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 tomake their own laws and be ruled by them." Using this test tojudge jurisdiction in the instant case,


### we first examine the two essential elements set forthby the test: 1. Whether there isa governing Act of Congress? 2, Does state action infringe on the right of the Fort Peck tribe tomake 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 isnormally referred to as a "disclaimer" provision concerning the Indian population of the state. We adopted the disclaimerwith identical language in QrdinanceNo, 

### 1, Sec.2, Constitution of Montana. We have never before been required to rule directly on this provision's impact

on civiljurisdiction, Other stateshave similar disclaimer provisions and have ruled on them, We willconsider some of the cited

cases. ~ontana 's Enabling Act reads in pertinent part: "$4. 

# * * * And said conventions shallprovide, 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 allright and titleto the unappropriated public lands lyingwithin the boundaries thereof, and to alllands lying wi.thin said limitsowned orheld by any Indian or Indian tribes; and that until the title thereto shallhave been extinguished by the United States, the same shallbe and remain subject to the disposition of the United States, and said Indian lands shall remain under the absolutejurisdiction and control of the congress of the United States

# * *

# *."This disclaimer of a right and titletoIndian 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 Led 2d 573,583; Paiz v. Hughes, 76 N.M, 562, 417 P,2d 51; County of Beltrami 

### v. County of Hennepin, 264 Minn. 406, 119N,W.2d 25; Statev. Danielson, 149 Mont. 438, 427 

### P.2d 689; Fournier v. Roed, (N.D, 1968), 161N,W,2d 458; Sangre De CristoDev,Corp,, Inc. v. City of Santa Fe, 84 N.M. 343, 503 P.2d 323, Asnoted above, here petitioner does not seek toassert any proprietary authority over lands of the Indian, but rather, governmental authority. Mast western stateswith the exception of South Dakota, Smithv, Temple, 82 S,D, 650, 152N.W.2d 547, seem tohold that the disclaimer provision isnot applicablewhere the issue does not concern Indian lands; we believe the cases arepersuasive and

we sohold. Having soheld, we now decidejust what is the nature of that statejurisdiction. InWilliams and Organized Village of Kake, the United States Supreme Court stated: 

# - 

# "**

# * even on reservations state laws may be applied toIndians, unless such applicatian would interferewith 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 1953Congress (67 Stat. 588) and the Civil Rights Act of 1968 (82 Stat, 78, 25 U,S.C.A. 

### $5 1321-1326) concernedjurisdictional problems on Indian reservations, but we concern ourselveswith what effect, ifany, those actshave on preexisting statejurisdiction. In Organized Village of Kake, a post-Public Law 280 case, the court made this statement: 

# "*

# ** 'absolute' federaljurisdiction isnot invariably exclusivejurisdiction, " 7 L ed 2d 579. It would appear from this statement that even after Public Law 280, stateshad some jurisdiction. Several stateshave considered this question and found some preexisting jurisdiction remained

### . 

## . afterPublic 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

InMontana, the stateasstuned jurisdiction after Public Law 280 on only one reservation, Flathead. It has not acted concerning the other sixMontana reservations and itstill retains jurisdiction over arezs of the law where there 

### isneither 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, isnot changed by those acts. The district court's finding tothe contrarybased on Kennerly, Deernose, and Blackwolf is inerror, Kennerly did not consider thejurisdiction remaining in the stateafter federal action or tribal assumption of government, rather it emphasized the procedural aspects for tribal consent for jurisdiction. The guide lines are set down inWilli.ams and as long as the statedoes not violate those guide lines and does not attempt to exercisejurisdiction over areas of the law where there is either a governing Act of Congress or an infringement on reservation self-government, itmay continue toexercisejurisdiction, With the above in mind, does the stateof Montana have jurisdiction over divorce actionsbrought by an Indian plaintiff against an Indian defendant, both residing on 

### an Indian resewation? We cannot find any Act of Congress or the executivebranch of the federal government, nor arewe cited any by amicus, setting forthwho hasjurisdiction over divorce on an Indian reservation. The Bureau of Indian Affairs regulations provide law and order codes but leave tothe authorities of each tribe to define what constitutes divorce, 25 C.F.R., 

### 5 11.28, There areno federal limitations on the state's jurisdiction over divorce,

### -.

. . i An examination of the 1938 Tribal Enactment indicates the intentwas todo away with tribaljurisdiction over marriages and divorces and torely 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 lCourts of justice shallbe open toevery person, and a speedy remedy afforded for every injury of person, property or character; and that right and justice shallbe administered without sale, denial or delay. If Section 83-102, R.C.M. 1947, concerningjurisdiction, provides: 

### "The sovereignty and jurisdiction of this state extend toallplaces within 

### itsboundaries, as establishedby the constitution, excepting such places as areunder the exclusivejurisdiction of the United States

# ** *.It Here, itwas stipulated and agreed, and the district court found, that plaintiff Mary Iron Bear and her husband areresident citizens of the stateof Montana and had been for some years before the filingof this action. Applying the test of jurisdiction set forth inWilliams, we find no exclusive controlby the United States government nor an interferencewith tribal selfgovernment, therefore the district court erred indenying access to the statecourt in seeking a divorce, In two recent cases, Mescalero Apache Tribev. Jones, No, 71-738, decided March 27, 1973, 41

### L.W. 4451, and McClanahan v. Arizona StateTax Commission, No. 71-834, decided March 27, 1973, 41L.W. 4457, the United States Supreme Court considered: (1) thejurisdiction of a stateto impose taxes on a tribal-owned enterprise located outside the limitsof a reservation, Mescalero; and (2) thejurisdiction of a state to impose a tax on the income of a tribalmember residing on a reservation whose income is wholly derived from reservation sources, McClanahan, InMescalero, 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 limitsof a reservation, but that the statecould not tax personalty which has mergedwith realty exempt under 25 U.S.C. 465. InMcClanahan, the Supreme Court held that the stateof Arizona has no jurisdiction toimpose a tax on the income of Navajo Indians residing on the Navajo Reservation and whose income iswholly derived from reservation sources. As a preface to

### itsdiscussion of the authority of the state over tribal enterprises outsidereservation boundaries in Mescalero, the court said: "At the outset, we reject--as did the statecourt-- thebroad assertion that the Federal Government has exclusivejurisdiction over the Tribe for allpurposes and that the State 

### is therefore prohibited from enforcing itsrevenue 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 applicationwould interferewith reservation self-government orwould impair a right

ranted or reserved b federal law, Organized Village ff Kake, supra, at 753Williams 

### v. Lee, 

### 358 U.S. 217 (19 New York ex rel. Ray 

### v. Martin, 326 U,S, 496, 499 (1946) Draper v, United States, 164U.S, 240 (1896). Even so, in the special area of statetaxation, absent cession of jurisdiction or other federal statutespermitting it, there has been no satisfactory authority for taxing Indian reservation lands or Indian income from activitie carried on within theboundaries of the reservation, and McClanahan v. StateTax Commission of Arizona, ante 9- lays to rest any doubt inthisrespect by holding that such taxation isnot permi-ssibleabsent congressional consent

# ." 41L,W, at4452, (Emphasis supplied), The court thus, inMescalero, reiterated the proposition that the test as tothe application of state laws on reservations iswhether: (1) such application would interferewith reservation self-government, or (2) whether such ap~l~catian would impair a right preempted by federal law. The statethus has residualjurisdiction in areaswhere the federal lawhas not preempted state activityand the tribeshave determined not toexercisejurisdiction,

### In McClanahan the court indicated that the test for determining jurisdiction is now whether the federal treaties or scatutes have preempted statejurisdiction using Indian sovereignty

as a "backdrop against which the applicable treaties and federal statutes must be read." The court inMcClanahan determined that based on the relevant treaties between the Navajos and the federal government and federal statutes applying inter alia tothe Navajos, the stateof Arizona has no jurisdiction to impose a tax on the income of Navajo Indians residing on theNavaja reservation and receiving income derivedwhozly from reservation sources. Based on theholding inMcClanahan, that the determination of jurisdiction is made by examining federal statues forpreemption 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 isno federal legislation concerning the power to grant or deny divorces inTribal Court. Unlike the power to tax, which isinherent in sovereignty, the power toterminate 

### a marriage contract isnot one which willinterferewith tribal sovereignty. Because the power togrant a divorce has not been preempted by the federal government and does not interferewith reservation self-government (especially since the power granted to the state ismerely residual) there isjurisdiction and the district court isrequired toexercise thatjurisdiction. 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 applicablehave preempted stetejurisdiction; (2) whether the exercise of statejurisdiction would interferewith reservation self-government; and (3) whether the Tribal Court is currently exercisingjurisdiction orhas exercisedjurisdiction 

### in such

a manner as to preempt statejurisdiction.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 themerits 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. Inmy 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: "Itmust 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 circumstanceswould 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