No. 12589 INTHE SUPREME COURT OF THE STATE OF MONTANA 1974

ROBERT McCREA, Administrator of the Estate of Bradley Arthur McCrea, Deceased, Plaintiff and Appellant,

LARRY BUSCH, Defendant and Respondent.
Appeal from: District Court of the Fourth JudicialDistrict, Honorable Jack L. Green, Judge presiding. Counsel of Record: For Appellant: Goldman, McChesney and Datsopoulos, Missoula, Montana Harold L. McChesney appeared, Missoula, Montana R, Anthony Rogers argued, Washington, D. C. For Respondent: Garlington, Lohn and Robinson, Missoula, Montana Larry E. Riley argued, Missoula, Montana

Submitted: April 24, 1974 Decided:

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## j$F4Mr. Justice Gene 

### B. Daly delivered the Opinion of the Court, This appeal is froman order of the district court of the fourth judicial district, county of Lake, dismissing plaintiff's wrongful death action for lack of jurisdiction. Plaintiff Robert McCrea is a member of the Confederated Salish and Kootenai Tribes of the Flathead Reservation, Defendant Larry Busch is a nonIndian. The allegedwrongful death of plaintiff's sixteenyear old son took place on 

### U.S. Highway 

### 93 inRavalli, Montana which is within the exterior boundaries of the Flathead Reservation. There isno fact dispute before the Court. The sole issue presented for review is whether the courts of Montana have jurisdiction to accept a civil action forwrongful death resulting from an automobile accidentwithin the exterior boundaries of the Flathead Reservation brought by an enrolled member of the Confederated Salish and Kootenai Tribes against a nonIndJan defendant. The jurisdiction of state courts as it pertains to Indian problems has been placed in issue, Each party argued a different application of the problem and its relation to the jurisdictional question. Defendant has approached it from the premise that this is an attempted extension of the Montana courts' limited civil jurisdiction over Indians and Indian affairswithin the exterior boundaries of the Flathead Reservation. For his principal authority defendant relies on this Court's holding in Security State Bank v. Pierre, Mont

# . , 511 P.2d 

### 325, 30 St.Rep, 

### 647. That case stands for the principle that Montana courts are limited in the exercise of jurisdiction over Indianaffairs when it interfereswith their self-governmentor impairs the rights granted, reserved or preempted by the United States Congress, as interpretedby the United States Supreme Court. The natural result as stated in Pierre was that because of federal limitations the state of Montana was unable toguarantee equal protection to the nonIndianplaintiffwho was attempting to enforce a commercial transaction obligation against
an Indian defendantwhich arosewithin the exterior boundaries of the Indian reservation controlled by the federal government. This resulted in a recognized and inequitable legal vacuum. The instant case,however, is just the opposite of Pierre and related cases. Herewe are concernedwith an Indianperson seeking redress in Montana courts against a nonIndian person. Although defendant urges the subject matter to be without the jurisdiction of the Montana courts as an interferencewith Flathead tribal self-governmentand impairs a right granted,reserved or preempted by Congress, he offers no citation and it does not appear to this Court to be an invasion of any of the areas protected by the federalgovernment. Therefore, this case fallswithin the class of cases that Montana courtsmust and traditionallyhave given free access to its courts and equal protection of its laws to allpersons. The foundationcase is Bonnet v. Seekins, 126Mont. 24, 243 P.2d 317, relying onArt. 111, Sec. 6 of the 1889Montana Constitution. Bonnet has been recently followed and affirmed in State ex rel. Iron Bear v. District Court, Mont

# . , 512 P.2d 1292, 30 St. Rep. 482;Bad Horse v. Bad Horse, Mont

# . , 517 P.2d 893, 31 St.Rep. 22, relying onArt. 11, Sec. 16, 1972Montana Constitution. This legal distinction that we meet here has been recognized and approved by the federal government as farback as Williams v, Lee, 358U.S. 217, 3 L ed 2d 251, 79 S.Ct. 269,and as recent as Confederated Salish and Kootenai Tribes v. Moe, F.S~PP. 

### , 31 St. Rep. 408. We have in recent cases cited herein fully discussed all aspects of this jurisdictionalproblem and since then nothing has changed in the federal sector to warrant burdening this opinionwith more than the comments made herein.The order of the trialcourt isreversed and the cause remanded for further proceedings.

Justice

i Me Concur:

Chief ~ustice