No. 14586 

## mTHE SUP- COUKCOFTHE STATEOFrnNTANA 1979

NOELK. 

### LARRIVEE, Plaintiff and Respondent,

-VSDOUGLAS E. rnRIGEAU, Defendant andAppllant.

Appeal from: DistrictCourtof theFourthJudicialDistrict, HonorableE. GardnerBrownlee, Judgepresiding. Counsel of Record: ForAppellant: StevenBunch, Legal Services, argued, Helena, mntana ForRespondent: Smith,Connor, VanValkenburgandLarrivee, Missoula, Wntana Noel K. Larrivee argued, Missoula, Pllontana

ForAmicusCuriae: Victor F. Valgenti argued,Missoula, Mntana EvelynM. Stevenson, Pablo, Wntana

Sul=Prcitted: April 27, 1979 Decided: 

### dCi

## 121979

.- ,372. 

### I - Filed:Mr. Justice John C. Sheehy delivered the Opinion of the Court

# . his is an appeal by Douglas E. Morigeau arising out of a default judgment taken against him in the District Court, Fourth Judicial District,Missoula County, for the

sum of $9,417.70, exclusive of interest and costs. The facts in the case indicate thatNoel K. Larrivee was driving his automobilewest on Montana Highway 200 toward its intersectionwith Montana Highway 212, in Sanders County on February 22, 1978. It further appears that Morigeau, traveling in an automobile in an easterly direction on Highway 200, attempted to turn left onto Highway 212when his vehicle and that of Larrivee collided. Larrivee filed his action against Morigeau in the Fourth Judicial District Court,Missoula County, on March 10, 1978. A summonswas served upon the defendantpersonally in Sanders County, on March 15, 1978. On April 20, 1978, Larrivee requested the Clerk to enter default of the defendant Morigeau because Morigeau had failed to appear or answer the complaint. On the samedate, the District Court entered default judgment against Morigeau for the amounts above set forth. On May 1, 1978,Morigeau, through his counsel, filed several instruments in the District Court. One was amotion to set aside the entry of the default judgment upon the grounds of the defendant'smistake, inadvertence, and excusable neglect. The affidavit in support of the motion recites thatMorigeau after serviceupon him, delivered his copy of the complaint to the Tribal Court of the Confederated Salish and Kootenai Tribes on March 20, 1978. Morigeau believed that the Tribal Court, or the tribal attorney,would take stepstoward the handling of the complaint, amistaken assumption. On April 13, 1978,the tribal attorney delivered the summons and complaint to Morigeau's attorney, but shewas not authorizedby Morigeau to act on his behalf until April 19, 1978. Therewere some telephone conversations between Morigeau's attorney and Larrivee. Apparently therewas an oral agreement between them that Larrivee would not take default judgment against Morigeau before April 19 or 20, 1978. Excusable neglect is alleged in that Morigeau's attorneywas absent from the state during thisperiod and he did not authorizeher to act on his behalf until the afternoon of April 19, 1978. It is contended that the defendant's motions were mailed to Larrivee (though not filed in the court) on April 20, 1978. The affidavit furthers recites that the place where the accident occurred iswithin the exterior boundaries of the Flathead Indian Reservation; that the defendant Morigeau is

an enrolled member of the Confederated Salish and Kootenai Tribes of that reservation; thatMorigeau, living within the exterior boundaries of the reservation,was not subject to service of state courtprocess; and, that the subject matter of the controversywas notwithin the jurisdiction of the state DistrictCourt. Also on May 1, 1978,Morigeau filed hismotion to changevenue and dismiss the action. The motion for change of venue was made upon the ground that the accident had occurred in SandersCounty where the defendant had been served. Themotion to dismiss the action contended that the District Court lacked subject matter jurisdiction because the defendant was an enrolled member of the Confederated Salish and Kootenai Tribes, livingwithin the exterior boundaries of the Flathead Indian Reservation. -3-On May 11, 1978,oral argumentwas heard, evidence taken, and thereupon the District Court denied the motion to set aside the default judgment. Defendant did not appeal from the order denying his motion to vacate the default judgment. Instead,on August 22, 1978,he filed amotion to vacate the default judgment and dismiss the same for lack of subject matter jurisdiction, again upon the grounds that the actionwas one between a non-Indianplaintiff and an Indian defendant over an accident which occurred within Indian country and was therefore subject only to the exclusive jurisdictionof the Tribal Court of the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation. The District Court refused to set aside the default judgment on October 10, 1978, saying in denying the motion: "Both parties are citizens of the State of Montana and each claim all the rights of such citizenship. The public highway was opened to public use and provides a further reason for holding that the State Courts have jurisdiction. The Federal Courts will not take the action holding that there is no diversity of citizenship, as there is not. The simple fact is that the defendant desires to be relieved of responsibilities of citizenship because of his race. The equality of our constitution,both state and federal,abhor any discrimination because of race or any showing of favortism [sic] because of race. "Thedefendant is a citizen of the State of Montana and subject to the jurisdiction of its courts. I' Appeal from the order of the District Court of October 11, 1978,denying the motion to dismiss for lack of subject matter jurisdiction was taken by Morigeau onNovember 6, 1978. Confederated Salish and Kootenai Tribes of the Flathead Reservation have filed a brief in thismatter asamicus curiae, contending that the state District Court does not have subject matter jurisdiction in this case. From the recitation of the procedures followed in the District Court, as we have set forth above, it will be seen thatno proper or timely appealwas taken from the order of the District Court denying themotion to set aside the default judgment on the grounds of excusable neglect, inadvertenceormistake; and no appeal was taken from the order of the District Court denying the motion for change of venue. Whether or not these motions have merit, since timely appealwas not taken from the denial of suchmotions, this Court is without jurisdiction to consider the issues covered by those motions on appeal. See Flathead Hay Cubing, Inc. v. Rex Moore (1978), 35 St.Rep. 1260 (CauseNo. 14327,unpublished); Zellv. Zell (19771, Mont

# . , 565 P.2d 311, 34 St.Rep. 492;First Nat. Bank of Lewistown

### v. Fry (1978), Mont

# . , 575 P.2d 1325, 35 St-Rep.276. Inhismotion to set aside the default judgment,Morigeau did not precisely rely upon the lack of subjectmatter jurisdiction as a ground for setting aside that default, although reference to this ismade in the affidavits supporting his motion as part of his contention that he had ameritorious defense. It appears from the record that the District Court ruled on the ground that therewas no mistake, inadvertence or excusable neglect in denying thatmotion. We do not consider therefore that the question of subject matter jurisdictionwas ruled upon by the District Court when it denied the motion to set aside the default judgment. The appeal here taken is from the denial of the separate motion filed onAugust 22, 1978. An attack on subject matter -5-jurisdictionmay be raised at anytime. Sincewe find in this case that the question of subject matter jurisdiction was not precisely ruled upon by the court in its order denying the firstmotions, the appeal taken by Morigeau from the order denying the motion of August 22, 1978 to vacate and dismiss for lack of subject matter jurisdiction is properly before us for consideration. The single issue to be decided by us in this appeal therefore iswhether the District Court had subject matter jurisdiction onwhich to sustain the default judgment. In treading ourway through the ever more complicated field of Indian relationships and responsibilities,we find and hold that the Confederated Salish and Kootenai Tribes ceded concurrent civil jurisdiction to the state District Courts of controversies arising out of the operation of motor vehicles within the exterior boundaries of the Flathead Reservation. The federal Act ofAugust 15, 1953 (Pub.L. 83-280, 83rd Cong., 2d. Sess.), 67 Stat. 588, amended Publication 90-284, 82 Stat. 73, 78, 25 U.S.C. 1321, et seq. (1968),provided for the permissive extension of civil jurisdiction over Indians residing on Indian Reservations to the states where such reservations were located. In conformance with the federalAct of 1953,the Montana Legislatureprovided that the governor of Montana, upon receipt of a resolution from

a tribal council or other governing body of the Confederated Salish and Kootenai Indians,expressing its desire as a people to be subject to criminal or civil jurisdiction in the State of Montana, should issue a proclamation to that effect. Ch. 81, Laws of Montana (1963).We are not disposed in this case to get into an esoteric discussion of Indian rights and responsibilities vis-a-vis state jurisdiction. It is not necessary here because under

an ordinance adopted by the Confederated Salish and Kootenai Tribes, and proclaimed by the governor of this state in accordancewith Ch. 81, Laws of Montana (1963),the Confederated Salish and Kootenai Tribes consented to concurrent jurisdiction with state courts of tort claims arising from highway accidents occurring within the exterior boundaries of the Flathead Reservation. The pertinent provisions of Tribal Ordinance 40-A (Revised) adopted by the Tribal Council of the Confederated Salish and Kootenai Tribes, is as follows: "Be it enacted by the Tribal Council of the Confederated Salish and Kootenai Tribes of the Flathead Reservation,Dixon,Montana: "ThatChapter 1, 52 Jurisdiction,of the official code of ordinancesbe and the same ishereby amended to add subsections 1 and 2 of this ordinance followingparagraph 3 to read as follows: "'Subsection1. Subject to the conditions and limitations expressed in Subsection 2 hereof, the laws and jurisdictionof the State of 

### --- -- Montana, including the judicial system

### of -- the State, are hereby extended pursuant to, and subject to the conditions in, the Act of the Montana Legislature of February 27, 1963,Laws of Montana, 1963,Vol. 1,Chap. 81, P. 170, to Indians within the Flathead Reservation 

### -- to the extent such laws and jurisdictionrelate to the 

### --- -- subjects following: 

### "'(a) Compulsory School Attendance "

### ' (b) PublicWelfare

I'

### ' (c) Domestic Relations (exception adoptions) "'(d) Medical Health, Insanity,Care of the Infirm,Aged and Afflicted 

### "'(e) Juvenile Delinquency and Youth Rehabilitation

### "

### ' (f) Adoption Proceedings (With consent of the Tribal Court) "I (g) Abandoned, Dependent, Neglected, Orphaned or Abused Children 

### "'(h) Operation of -- Motor Vehicles upon the Public Streets, Alleys, Roads and Highways i All Criminal Laws of the State of Montana; and all Criminal Ordinances of Cities and Towns with the Flathead IndianReservation. "'Subsection2. The effectiveness of Subsection 1 hereof is conditioned upon the following:' 

### " (a) Concurrent jurisdiction remains (Where applicable with federal courts) with a Tribal Court and in the Tribal government of allmatters referred to Subsection 1; and any matter initiated in either state or federal government court or the tribal court shall be completed and disposed of in that court and shall not be subject to re-examination in the courts of the other jurisdiction. "(b) No person, once convicted of a crime falling within the jurisdiction of the state or federal government or the tribes pursuant to this ordinance, shall be punished for the identical acts of the courtsof the other jurisdiction, but shall be accorded the doctrine of former jeopardy as if the separate jurisdiction were one.

"(c) This ordinance is subject to possible referendum of the eligible voters of the Confederated Tribespursuant to Article 9 of the Constitution of Confederated Tribes 

# .

# . . "(d) All jurisdiction of the Confederated Tribes under the Constitutional bylaws and ordinancesenacted pursuant thereto under the federalgovernment of the United States Criminal Code, to the extent not expressly transferredby Subsection 1 hereof, remains the Confederated Tribes and in the federalgovernment respective to the same extent as if this ordinance had not been adopted. "(el If any provision of the act of the Montana Legislature of February 27, 1963 Laws of Montana 1963,Vol. 1,Chapter 81, or of this ordinance shall be held invalid, or if this ordinancebe held to extend the jurisdiction more extensive than set forthherein, or any conditionherein not be complied with or be held invalid or ineffective, then this entire ordinance shall be held to be void and of no effect from the beginning." (Emphasisadded.) The foregoing ordinance was adopted by the Tribal Council of the Confederated Salish and Kootenai Tribes on May 5, 1965. The governor of the State, the Honorable Tim Babcock, on October 8, 1965proclaimed under the provisions of Ch. 81,Laws of Montana (1963),as follows: "Nowtherefore,by the power vested in me. as the aovernor of the State of Montana, I,'Tim ~abcock, hereby proclaim that criminal and civil jurisdiction 

### -- in the State of Montana, and its subdivisionsdoes extend to the Confederated Salish and Kootenai Tribes as expressed in their approved OrdinanceNo. 40-A (revised)

# . .

# . and I further declare that 60days from the date of October 8, 1965, such criminal and civil jurisdiction as previously described shallbe in full force and effect." (Emphasisadded.) TheMontana legislativeaction authorizing the governor to proclaim jurisdiction and the adoption of Tribal Ordinance 40-A (Revised)occurred under and while Section 7 of Pub.L. 83-280was in effect. It should be noted that this section was repealed in Pub.L. 90-284 (1968),Title IV, Section 403(b). However the repealer expressly provided that the repeal did not affect any cessionmade prior to the repeal. For any viewpoint of construction, Tribal Ordinance 40- A (Revised), as accepted and proclaimed by the governor of Montana, includes a broad grant of concurrent jurisdiction. The key language is that "[tlhe laws and jurisdiction in the State of Montana, including the judicial system of the State" are extended to "(h) Operation of Motor Vehicles upon the Public Streets, Alleys, Roads, and Highways". Yet Morigeau contends,as does amicus, that this language is intended to grant only criminal jurisdiction over the operation of motor vehicles and not civil jurisdiction.Nothing can be found within the tribal ordinance consenting to state jurisdiction or the governor's proclamation assuming the same that limits or excludes state civil jurisdiction over the operation of motor vehicles on state highways. Morigeau also contends,and again so does amicus, that subdivision (h) of the tribal ordinance is governed by subdivision (i)of the same ordinance, which consents to concurrent jurisdictionwith the state as to all "criminal laws of the State of Montana". However, the legislative language of Tribal Ordinance 40-A (Revised),and its history does not comportwith this argument. Tribal Ordinance 40-A of the Confederated Salish and Kootenai Tribeswas firstpassed on May 15, 1964. In the originalversion, subdivision (i)of subsection 1 read as follows: "(i) Laws of the State of Montana and ordinances and regulations of a criminal nature applicable within incorporated cities and towns." Less than a year later onMay 5, 1965,Tribal Ordinance 40-A (Revised)was passed by the Tribal Council amending subdivision (i) so that it reads aswe have set it forth above in the first instance. It is obvious that the tribes, in examining Tribal Ordinance 40-A, as itwas first adopted, decided that subdivision (i)was a broad grant of concurrent jurisdiction to all the laws of the State of Montana, both civil and criminal. That particular subdivisionwas amended so that only criminal laws of the State of Montana were included in subdivision (i). At the same time, however, the language of subdivision (h)was leftuntouched. In other words, the broad consent to concurrent jurisdictionby the tribes as expressed in subdivision (h) remained and still remains. -10-It is also obvious from the history of the act that the whole subject of Tribal Ordinance 40-A, is a conkraversal

one on the reservation. We noted its stormy progress in State ex rel. McDonald v. District Ct. of Fourth J. D. (19721, 159Mont. 156, 496 P.2d 78, 80, where we said: "Tribalconsent to the assumption of criminal jurisdictionby the state courts of Montana over Indians committing crimes on the Flathead Indian Reservationwas granted by the enactment of Tribal Ordinance 40-A,dated May 16, 1964. The governor of Montana thereafter issued the required proclamation on June 30, 1964. Almost a year later on May 5, 1965 Tribal Ordinance 40-A (Revised)was enacted. This Ordinancewas similar to the odginal Ordinance 40-A except for clarifying language limiting its scope to criminal laws and repealing the original Ordinance 40-A. The governor of Montana thereafter issued another proclamation accordingly dated October 8, 1965. "Several months later on June 22, 1966,Tribal Resolution 1973 was enacted expressly rescinding Tribal Ordinances 40-A and 40-A (Revised). There is no evidence that this Tribal Resolutionwas ever transmitted to or received by the governor of Montana; nor was any proclamation of the governor made in connection with this Resolution. On June 30, 1966 Tribal Resolution 1997 was enacted which expressly rescinded Tribal Resolution 1973 enacted eight days previously. Again no governor's proclamation was issued concerning Tribal Resolution 1997. "On September 15, 1967 Tribal Resolution 2318 was enacted requesting the governor of Montana to extend the time limit for withdrawal from state jurisdiction for an additional year after October 7, 1967,and withdrawing its consent to such state jurisdiction. It furtherprovided that this Tribal Resolutionwas null and void if the governor extended such time limit as requested. On October 8, 1967 the governor issued a third proclamation extending the time limit for the Tribe's withdrawal of their consent to state jurisdiction for an additional year from October 7, 1967. "Finally,onApril 30, 1971, the Tribal Council passed amotion 'to seek retrocession on State Concurrent Jurisdiction'. The record discloses no further action in conformitywith thismotion." 159 Mont. at 160, 161, 496 P.2d at 80. One of the featuresof Ch. 81, Laws of Montana (1963), the legislative actwhich provided for the consent on the part of the State of Montana to extend jurisdiction to theFlathead Reservation is that statute provided that any consent by an Indian tribe could be withdrawn within two years of the date of the governor'sproclamation. Such a withdrawal has not occurred. Morigeau and amicus contend flatly that Tribal Ordinance 40-A (Revised)does not extend state jurisdiction in tort actions arising from the operation of motor vehicles on the highway. They argue (1) the Tribal Court has exclusive jurisdiction when a non-Indian sues an Indian on a reservationbased claim; (2)that the tribes agreed only to limited concurrent state civil jurisdiction not including tort claims of the kind here in question; (3)tribal interpretation Tribal of/Ordinance 40-A (Revised)is against concurrent jurisdiction; and (4) construction of Tribal Ordinance 40-A (Revised)to include civil jurisdiction in tort-highway cases would constitute an infringement upon tribal sovereignty. In support of their arguments on the first contention, that the tribe has exclusive jurisdiction, Morigeau and amicuspoint out that this accident occurred in Indian country; that the highways exist by virtue of easements granted by the tribal authorities to the state and federal governments; that the Flathead Tribal Court is a forum for actions in tort available to non-Indians aswell as to Indians,and that the Tribal court has jurisdictional scope to include tort actions such as the one here. Those points, while significant in determining that the Tribal Court has jurisdiction,do not necessarily point to exclusive jurisdiction in the Tribal Court. None of the cases cited by Morigeau and amicus in support of those points hold or require that only the Tribal Court of the Flathead Indian Reservation, after the cession under Pub.L. 83-280, has -12-exclusive jurisdiction of tort actions arising out of the

use of the highways on the reservation. As a matter of fact, it appears that the Council of the Confederated Salish and Kootenai Tribes voluntarily found it in their interest to consent to such jurisdictionby the adoption of Tribal Ordinance 40-A (Revised). Another consideration argued by Morigeau and amicus is that assumption of the State of civil jurisdiction in this

casewould constitute an infringementon the tribes of selfgovernment. Again, this argument overlooks the point that the Confederated Salish and Kootenai Tribes granted and the State assumed civil and criminal jurisdiction to matters involving the use of the highways within the borders of the reservation. It isno more an infringement upon the tribal sovereignty to grant civil and criminal jurisdiction in highway cases than it is to grant civil and criminal jurisdiction over cases of public welfare, domestic relations, juvenile delinquency, and care of the infirmed, aged and afflicted, all of which subjects involve tribal sovereignty and for all of which the tribe granted consent to civil aswell as criminal jurisdiction in Tribal Ordinance 40-A (Revised). As the tribal ordinance states, if the consent to civil and criminal jurisdiction is ineffective as to one part, it is ineffectiveas to all parts of the tribal ordinance. It is too late now to pick and choose which parts of Tribal Ordinance 40-A (Revised) will be binding and which parts will not be binding. There are many economic, financial and social advantages accruing to the tribes by virtue of their consent. Those advantages have accompanying responsibilities which, tomake the system workable, must also be faced and accepted.What we have said in the foregoing paragraphs concerning the tribal claim of exclusive jurisdiction, touches and controlsalso the tribal claims that the tribes agreed only to limited concurrent state civil jurisdiction,not including tort claims of the kind here in question, and that construction of Tribal Ordinance 40-A (Revised)to include civil jurisdiction in tort-highway cases, constitutes an infringement upon tribal sovereignty. There remains for discussion the claim of Morigeau and amicus that tribal Tribal interpretationof/Ordinance 40-A (Revised)is against state court jurisdiction. In support of their contention,Morigeau and amicus point to our holding in Security State Bank v. Pierre (19731, 162Mont. 298, 300, 511 P.2d 325, 327. Therewe said, quoting State ex rel. Iron Bear v. District Court (19731, 162Mont. 335, 512 P.2d 1292: "Before a district court can assume jurisdiction in anymatter submitted to it, it must find subject matter jurisdictionby determining: (1) whether the federal treaties and statutesapplicable have preempted state jurisdiction; (2)whether the exercise of state jurisdiction would interferewith reservation self-government; and (3) whether the Tribal Court is currently exercising jurisdiction or has exercised jurisdiction in such amanner as to preempt state jurisdiction." With respect to the first test stated in 

### -- Iron Bear, the federal treaties and statuteshave not in this case preempted state jurisdiction, because Pub.L. 83-280provided particularly for the cession to and assumptionby states of criminal and/or civil jurisdiction on Indian lands within the state's borders. With respect to the second 

### -- Iron Bear test, it is true that the assumption of either criminal or civil jurisdiction by the state of matters arising within theexterior boundariesof the Flathead Indian Reservation constitutes an interferencewith the powers of self-government conferred upon the tribes, see Fisher v. District Court (1976),424 U.S. 382, 387, 96 S.Ct. 943, 47 L.Ed.2d 106. Again, Pub.L. 83-280 contemplated such interference when it provided for the assumption of criminal or civil jurisdictionby the states. It iswith respect to the third test under 

### -- Iron Bear whether the Tribal Court has preempted jurisdiction,that Morigeau and amicus have concentrated their attack. Amicus has supplied us, through its briefs,with various certificates showing the establishment of a judicial system on the Flathead Reservation;the existence of a Tribal Court comprised of one Chief Judge, one full time associate, and two parttime associate judges; the Tribal Court has adjudicated claims arising from automobile accidents involving nonIndians versus Indian defendants relating to accidents occurring on the reservation;the Tribal Court keeps records, and that since 1975, 460non-Indian plaintiffs have sued Indiandefendants in civil actions in the Tribal Court, involving tort and contract claims against Indian defendants; and various excerpts from the minutes of meetings of the Tribal Council relating to the progress through the legislature of House Bill 55,which became Ch. 81,Laws of Montana

(1963). Yet, all of thismaterial shows not that the Tribal Court is exercising exclusive jurisdiction,but rather is exercising concurrent jurisdiction in these matters, insofar

as they are covered by Tribal Ordinance 40-A (Revised). The Tribal Ordinance itself specifically speaks of concurrent jurisdiction and it is important to note that Tribal Ordinance 40-A (Revised) includes the provision that any action commenced and completed either in the Tribal Court or in the state on a matter is covered by the ordinance becomes res judicata as to the other court. -15-The record therefore does not support the application of the third test under 

### -- Iron Bear,preemption by the Tribal Court,because when the Tribal Court acts with respect to causes covered by Tribal Ordinance 40-A (Revised),it is acting concurrently, and not exclusively. Both Morigeau and amicus point to Kennerly v. District Court of Montana (1971),400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507, as controllingprecedent for the present case. Kennerly,however, is not in point because the legislature there had not taken affirmative action as required under Pub.L. 83-280. Nor does our decision in Security State Bank v. Pierre, supra, control this case because in Security State -- Bank, the action was for the collection of a note entered into on the Flathead Reservation between an Indian member of the tribes residing on the Reservation and a nonmember bank. Such a commercial transaction is not one of the subjects over which the state assumes jurisdiction through Tribal Ordinance 40-A (Revised). One other suggestion contained in Morigeau's reply brief should be discussed. Morigeau contends that this case involves an interpretation of tribal law and that therefore, under principles of comity, this Court should abstain from a decision until the Tribal Court on the Flathead Reservation has interpreted the extent of civil jurisdiction ceded under subdivision (h)of Tribal Ordinance 40-A (Revised). Abstention,Morigeau contends,would reduce "intergovernmental friction" likening the "competing interests" both of the state and the tribes to a "Pullman-type abstention situation" (RailroadComm'nv. Pullman Co. (1941),312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.2d 971). Florigeau also points out that in Fisher, 424 U.S. 382, 384, the United States Supreme Court noted that the Montana DistrictCourt had first referred the jurisdictionalquestion to the Appellate Court of the Northern Cheyenne Tribe for decision. -16-Of course, in Fisher, supra, the disputewas completely between Indian members of the Northern Cheyenne Tribe. Moreover, the Appellate Court of the Northern Cheyenne Tribe, in Fisher, specificallydid not decide whether the tribal courthad jurisdiction of adoption by nonmembers of a member of a tribe. (See424 U.S. at 384,n. 6.) We are not disposed to follow the federal system of abstention in thismatter. First, such abstention would in this case simply leave the parties as they were at the close of the District Courtproceedings. Morigeau is entitled to

a final decision by this Court as to the validity of the judgmentheld by Larrivee against him. Secondly, the sovereign state of Montana is entitled in the least to an equal say in the interpretation of an agreement to which its full consentwas necessary. Itwould be strange indeed if the state should agree to be bound by such interpretation of its consent as the other party chose to give it. We therefore hold that the District Court had subject matter jurisdiction in this case through Tribal Ordinance 40-A (Revised);Ch. 81,Laws of Montana (1963),and Pub. L. 83-280, 67 Stat. 588 (1953). This ruling is limited in effect, of course, to the Flathead Indian Reservation. This holding has no reference to the reasons cited by the District Court for upholding jurisdiction. Affirmed.We Concur:

Chief Justice



## .............................. Justices

Mr. Justice Daniel J. Shea will file his dissent at a later time

# .