No. 12519 INTHE 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 SixteenthJudicial 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

ClerkMr. Justice Frank I. Haswell delivered the Opinion of the Court.
This isan 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 atLame Deer, Montana, locatedwithin the exteriorboundaries of the Northern Cheyenne Indian R.eservation. Defendant is an enrolled member of the Three Affiliated Tribes of the Fort Berthold Reservation inNorth Dakota. The parties applied forand obtained a statemarriage license and

were married on September 17, 1971, inForsyth, Montana, which is located outside theboundaries of any Indianreservation. The statedistrict court inForsyth has been issuing marriage licenses and granting divorces to Indian people since atleast 1937, when theNorthern Cheyenne Tribal Council accepted and approved a provision inthe tribal code which required that a11 marriages and divorces be consummated inaccordancewith the laws of the stateof Montana. Plaintiff filed for divorce inthe statedistrict court of Rosebud County inDecember 1972. Defendant was servedwith process by a stateprocess server on January 24, 1973, inPoplar, Montana, located within the exteriorboundaries of the Fort Peck Indian Reservation inMontana. The daughter of the partieswas residing with her mother when serviceof process was effectuated. Plaintiff's complaint asked forcustody of such child. After servicewas 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 statecourt lackedboth subject matter and personal jurisdiction inthe 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 livingwithin the boundaries of an Indianreservation? 2) Is an Indian defendant who was servedwith process
on the Fort Peck Reservationbeyond the personal jurisdiction of the state's courts? The first issue is the principal issue in this appeal. ~efendant'sposition is that 

### (1) Montana has not acted pursuant to federal statute in order to assume civil jurisdictionwithin 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 subjectmatter 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 positionwarrant such a broad application. These caseswere distinguished in State ex rel. Iron Bear
V. Iron Bear, Mont

# . - , 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 Reservationexcept as provided by federal law. Gourneauv. Smith, (N.D. 1973), 207N.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 actionbetween Indians. Public Law 90-284,Title IV., §402(a), provides: "The consent of the United States is hereby given to any Statenot having jurisdiction over civil causes of action between Indians or to which Indians are partieswhich arise in the areas of Indian country situatedwithin such State to assume,with the consent of the tribe occupying the particular Indian country or part thereofwhich would be affected by such assumption, suchmeasure 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 shallhave the same force and effectwithin such Indian country or part thereof as they have elsewhere within that State.II In addition itmust be noted that the cases relied upon by defendant dealwith acts or transactionswithin 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 dealwith arguments concerning tribal self-governmentand assumption of jurisdictionby the state over the Northern Cheyenne Reservation. Herewe are concernedwith 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 1889Montana Constitution, this state's equivalent to the "equal protection" clause of the United States Constitution,provides: "All persons are born equally free,and have certainnatural, essential, and inalienable rights,amongwhich 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 lawfulways.11Equal protection of the laws of a state is extended to persons within its jurisdictionwhen its courts are open to them
on the same conditions as to others in like circumstances. 16 Am Jur 2d, ConstitutionalLaw, $ 533; 1Antieau, Modern Constitutional 

### Law, $ 7:13. Enrolled members of Indian tribeswithinMontana 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 1889Montana Constitution (Art. 11, Sec. 16 of the 1972Montana Constitution); Section 83-102,R.C.M. 1947;Bonnet v. Seekins, 126Mont. 24, 243 P.2d 317. As a general rule an Indianmay sue in a state court the
same as all other persons, irrespectiveof race or color,at least with respect to any matter overwhich Congress has not expressly retained jurisdiction in the United States,particularly if the Indian is a citizen and the matter does not interferewith tribal self-government. 42C.J.S. Indians 1

### 8;

### 41Am Jur 2d, Indians, 1 20. ~efendant'sposition is predicated on the jurisdictional test set forth inWilliams v. Lee, 358U.S. 217, 79 S.Ct. 269, 3 

### L ed 2d 251, subsequently applied in Organized Village of Kake
v. Egan, 369U.S. 60, 82 S.Ct. 562, 

### 7L ed 2d 573. TheWilliams 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. InMcClanahan v. Arizona StateTax 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 principallywith situations involving non-Indians. In these situations,both the tribe and the state could fairly claim an interest in asserting their respective jurisdictions. TheWilliams test was designed to resolve this conflict by providing that the state could protect its interestup 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 forumnot antagonistic to the tribe, the state, or the federal government. There is no interferencewith 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 accordancewith the laws of the State of Montana, except that no commonlaw marriages shallbe recognizedwithin the bounds of the Northern Cheyenne Reservation.II Domestic relations may well be one of those concerns that
are peculiar to Indian culture and tradition and best administered by tribal officialswho understand Indianmarriage 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:

11Courts of justice shallbe open to every 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.II Section 83-102,R.C.M. 1947, concerning jurisdiction,provides:

IIThe sovereigntyand jurisdiction of this state extend to all places within its boundaries, as establishedby 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, 154Mont. 488, 466 P.2d 

### 85 (reversed by the United States Supreme Court on other grounds, 400U.S. 423, 91 S.Ct. 480, 27 

### L ed 2d 507), and in State ex rel. IronBear v. Iron Bear, 

## - Mont

# . , 512 P.2d 1292, 30 St.Rep. 482, thecourts 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 stateshave long held that an Indianhas the same rights as are accorded any other person to invoke the jurisdiction of the state courts to protect his rights inmatters not affecting the federal government. Recent federal legislation has been specificallyenacted 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'sConstitution. The second issueancems 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 rernas 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. Servicewas 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 stateprocess server cannot pierce the exterior boundaries of an Indian reservationand 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 governmentwhich could prevent the transfer of jurisdiction tothe state. There isno disclaimer made and there isno infringement on the right of the tribe togovern itself. Indian country isnot a federal enclave off limitsto stateprocess servers. Service of process extends to an Indian defendant served within the Fort Peck Reservation. State Securities, Inc. v. Anderson, 84N.M. 629, 506 P.2d 786. The myth of Indian sovereignty has pervaded judicial attempts by statecourts todeal 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 inUnited 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 tobe sovereign-- neither more nor less.I I Only by throwing off the strictures of Indian sovereignty can statecourts 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 isvacated and the cause remanded to the district court of Rosebud County for further proceedings consistent herewith.

Justice

Concur:

Justices.

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