No. 12519 

IN THE 3UPREME COURT OF THE STATE OF MONTANA 

1973 

ALFRiiD BAD HORSE, 

Plaintiff and Appellant, 

-vs - 

JEKLYN BAD HORSE, 

Defendant and Respondent. 

Appeal from: District Court of the Sixteenth Judicial District, 

Honorable Alfred B. Coate, Judge presiding. 

Courlsel of Record : 

For Appellant : 

Thomas J. Lynaugh argued, Billings, Montana 

Kenneth M. Reese, Hardin, Montana 

For Respondent: 

Kelly and Carr, Miles City, Montana 

Thomas K. Schoppert argued, New Town, North Dakota 

Submitted: November 26, 1973 

Decided : JAN - 4 7974 

Clerk 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This is an appeal from an order of the district court of 

Rosebud County granting defendant's motion to dismiss for lack 

of jurisdiction over the person and subject matter of plaintiff's 

divorce action. 

Plaintiff is an enrolled member of the Northern Cheyenne 

Indian Tribe and resides at Lame Deer, Montana, located within 

the exterior boundaries of the Northern Cheyenne Indian R.eservation. Defendant is an enrolled member of the Three Affiliated 

Tribes of the Fort Berthold Reservation in North Dakota. The 

parties applied for and obtained a state marriage license and 

were married on September 17, 1971, in Forsyth, Montana, which 

is located outside the boundaries of any Indian reservation. 

The state district court in Forsyth has been issuing marriage 

licenses and granting divorces to Indian people since at least 

1937, when the Northern Cheyenne Tribal Council accepted and 

approved a provision in the tribal code which required that a11 

marriages and divorces be consummated in accordance with the laws 

of the state of Montana. 

Plaintiff filed for divorce in the state district court 

of Rosebud County in December 1972. Defendant was served with 

process by a state process server on January 24, 1973, in Poplar, 

Montana, located within the exterior boundaries of the Fort Peck 

Indian Reservation in Montana. The daughter of the parties was 

residing with her mother when service of process was effectuated. 

Plaintiff's complaint asked for custody of such child. After 

service was made, defendant and her daughter left Poplar, Montana 

and have been residing within the Fort Berthold Reservation at 

Parshall, North Dakota. 

Defendant filed a motion to dismiss the divorce action 

on the grounds the state court lacked both subject matter and 

personal jurisdiction in the matter. The district court in its 

findings of fact and conclusions of law issued on March 20, 1973, 
granted the motion to dismiss on both counts. From this order, 

plaintiff appeals. 

Two issues are presented for review: 

1) Do Montana courts have subject matter jurisdiction 

over a divorce action involving an Indian couple living within 

the boundaries of an Indian reservation? 

2) Is an Indian defendant who was served with process 

on the Fort Peck Reservation beyond the personal jurisdiction of 

the state's courts? 

The first issue is the principal issue in this appeal. 

~efendant's position is that (1) Montana has not acted pursuant to 

federal statute in order to assume civil jurisdiction within the 

Northern Cheyenne Reservation, (2) an assumption of subject matter 

jurisdiction in this case would severely restrict self-government 

by the Northern Cheyenne Tribe, (3) access to state courts because 

Indians are citizens of the state is not a transfer of subject 

matter jurisdiction, and (4) a denial of subject matter jurisdiction is not a denial of equal protection of the laws. Along with 

several federal cases defendant cites three particularly relevant 

and recent Montana cases: 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 1133; Blackwolf v. District Court, 158 Mont. 

523, 493 P.2d 1293. 

We do not believe that these decisions cited above by 

defendant in support of her position warrant such a broad application. These cases were distinguished in State ex rel. Iron Bear 

V. Iron Bear, - Mon t . , 512 P.2d 1292, 30 St.Rep. 482, a 

recent opinion of this Court accepting jurisdiction of an Indian 

couple seeking a divorce in the courts of this state. (We note 

that Iron Bear was decided after the district court's order here.) 

Defendant maintains that a denial of subject matter jurisdiction is not a denial of equal protection of the laws because 

federal law prohibits state courts from assuming jurisdiction of 

civil actions involving Indians which arise on an Indian Reservation 
except as provided by federal law. Gourneau v. Smith, (N.D. 1973), 

207 N.W.2d 256. More specific is the language of Section 402(a) 

of the Civil Rights Act of 1968, 82 Stat. 73,79, which grants 

to the states jurisdiction over civil causes of action between 

Indians. Public Law 90-284, Title IV., §402(a), provides: 

"The consent of the United States is hereby 

given to any State not having jurisdiction over 

civil causes of action between Indians or to 

which Indians are parties which arise in the 

areas of Indian country situated within such 

State to assume, with the consent of the tribe 

occupying the particular Indian country or part 

thereof which would be affected by such assumption, such measure of jurisdiction over any or 

all such civil causes of action arising within 

such Indian country or any part thereof as may 

be determined by such State to the same extent 

that such State has jurisdiction over other civil 

causes of action, and those civil laws of such 

State that are of general application to private 

persons or private property shall have the same 

force and effect within such Indian country or 

part thereof as they have elsewhere within that 

State. I I 

In addition it must be noted that the cases relied upon 

by defendant deal with acts or transactions within the exterior 

boundaries of the reservation. The parties involved in this 

divorce proceeding were married outside the Indian reservation 

in Forsyth, Montana, pursuant to the laws of this state. 

The cases cited by defendant deal with arguments concerning 

tribal self-government and assumption of jurisdiction by the 

state over the Northern Cheyenne Reservation. Here we are concerned with protecting the equal rights of a person under the 

Montana Constitution to maintain an action in the courts of this 

state. 

Art. 111, Sec. 3, of the 1889 Montana Constitution, this 

state's equivalent to the "equal protection" clause of the United 

States Constitution, provides: 

"All persons are born equally free, and have 

certain natural, essential, and inalienable 

rights, among which may be reckoned the right 

of enjoying and defending their lives and 

liberties, of acquiring, possessing and protecting property, and of seeking and obtaining 

their safety and happiness in all lawful ways. 11 
Equal protection of the laws of a state is extended to 

persons within its jurisdiction when its courts are open to them 

on the same conditions as to others in like circumstances. 16 

Am Jur 2d, Constitutional Law, $ 533; 1 Antieau, Modern Constitutional Law, $ 7:13. 

Enrolled members of Indian tribes within Montana are 

citizens of the United States and citizens of the state of Montana. 

An Indian is entitled, as any other citizen, to bring an action 

in the courts of this state. Art.111, Sec. 6, of the 1889 Montana 

Constitution (Art. 11, Sec. 16 of the 1972 Montana Constitution); 

Section 83-102, R.C.M. 1947; Bonnet v. Seekins, 126 Mont. 24, 243 

P.2d 317. 

As a general rule an Indian may sue in a state court the 

same as all other persons, irrespective of race or color, at least 

with respect to any matter over which Congress has not expressly 

retained jurisdiction in the United States, particularly if the 

Indian is a citizen and the matter does not interfere with tribal 

self-government. 42 C.J.S. Indians 1 8; 41 Am Jur 2d, Indians, 

1 20. 

~efendant's position 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, subsequently applied in Organized Village of Kake 

v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L ed 2d 573. The Williams 

test essentially directs its attention to whether the state action 

infringed on the right of reservation Indians to make their own 

laws and be ruled by them. In McClanahan v. Arizona State Tax 

Commission, 411 U.S. 164, 36 L ed 2d 129, 93 S.Ct. 1257, the 

United States Supreme Court pointed out that cases applying the 

Williams test have dealt principally with situations involving 

non-Indians. In these situations, both the tribe and the state 

could fairly claim an interest in asserting their respective jurisdictions. The Williams 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 action in a forum not antagonistic to the tribe, the 

state, or the federal government. There is no interference with 

the operation of the tribal court since the Northern Cheyenne Tribal 

Court has not attempted to exercise jurisdiction over marriage and 

divorce since 1937. At that time the tribe enacted a provision in 

its law and order code which has been embodied in the present code, 

revised in 1966, which reads: 

"Chapter 3, Section 1: 

"All Indian marriages and divorces must be 

consummated in accordance with the laws of 

the State of Montana, except that no commonlaw marriages shall be recognized within the 

bounds of the Northern Cheyenne Reservation. I I 

Domestic relations may well be one of those concerns that 

are peculiar to Indian culture and tradition and best administered 

by tribal officials who understand Indian marriage and divorce 

customs although our holding here is not predicated thereon. Here 

the Northern Cheyenne Tribe has not sought to govern these domestic 

relations, but rather has left them to the state government by 

its 1937 enactment and the state has actually exercised jurisdiction since. 

Art, IIg See. 6 of the 1889 Montana Constitution provides: 

11 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. I I 

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

I I 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". 

As stated in Bonnet, reiterated in State ex rel. Kennerly 

v. District Court, 154 Mont. 488, 466 P.2d 85 (reversed by the 

United States Supreme Court on other grounds, 400 U.S. 423, 91 

S.Ct. 480, 27 L ed 2d 507), and in State ex rel. Iron Bear v. 

Iron Bear, - Mon t . , 512 P.2d 1292, 30 St.Rep. 482, the 
courts of this state are open to our Indian citizens. As citizens 

of the state of Montana they are entitled to the protection of our 

laws and utilization of our courts. As we pointed out 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. 

Recent federal legislation has been specifically enacted 

to guarantee the reservation Indian the same rights as all citizens. 

Public Law 280 (Act of 1953), 67 Stat. 589, and the Civil Rights 

Act of 1968, 82 Stat. 73, while not attempting to culturally 

assimilate the Indian, are efforts to place the Indian in a legal 

status similar to that of all citizens, and abolish laws which 

adversely discriminate against the Indians. To deny plaintiff 

access to Montana courts here would leave him without a remedy as 

a practical matter and deny to him that which other persons of this 

state are entitled under ~ontana's Constitution. 

The second issue ancems the effect of service of process 

on an Indian defendant within the exterior boundaries of an Indian 

reservation. 

A divorce is generally considered an action in rern as far as 

it affects the status of the parties but in personam as to other 

matters. A court may have jurisdiction to grant a divorce even 

though the defendant has not been served personally in the state 

and has not appeared in the case. 

Service was obtained pursuant to Rule 4, Montana Rules 

of Civil Procedure. Once the district court has assumed jurisdiction over the subject matter and process has been properly 

served, the defendant cannot throw up a shield around herself 

by claiming that the state process server cannot pierce the exterior 

boundaries of an Indian reservation and serve civil process therein. 

11 In the instant case the marriage contract" took place off 

the reservation. There has been no preemption by the federal 

government which could prevent the transfer of jurisdiction to 
the state. There is no disclaimer made and there is no infringement on the right of the tribe to govern itself. Indian country 

is not a federal enclave off limits to state process servers. 

Service of process extends to an Indian defendant served within the 

Fort Peck Reservation. State Securities, Inc. v. Anderson, 84 N.M. 

629, 506 P.2d 786. 

The myth of Indian sovereignty has pervaded judicial 

attempts by state courts to deal with contemporary Indian problems. 

Such rationale must yield to the realities of modern life, both 

on and off the reservation. As Judge Russell Smith recently 

observed in United States v. Blackfeet Tribe, (D.C.Mont.), 364 F. 

Supp. 192, 194: 

"The blunt fact, however, is that an Indian 

tribe is sovereign to the extent that the 

United States permits it to be sovereign-- 

neither more nor less. I I 

Only by throwing off the strictures of Indian sovereignty can 

state courts enter the arena and meet the problems of the modern 

Indian. If Congress and the federal appellate courts have a better 

solution, let them come forward. 

Until then, the order of the district court is vacated and 

the cause remanded to the district court of Rosebud County for 

further proceedings consistent herewith. 

Justice 

Concur : 

Justices. '