No. 14586 

m THE SUP- COUKC OF THE STATE OF rnNTANA 

1979 

NOEL K. LARRIVEE, 

Plaintiff and Respondent, 

-VSDOUGLAS E. rnRIGEAU, 

Defendant and Appllant. 

Appeal from: District Court of the Fourth Judicial District, 

Honorable E. Gardner Brownlee, Judge presiding. 

Counsel of Record: 

For Appellant: 

Steven Bunch, Legal Services, argued, Helena, mntana 

For Respondent : 

Smith, Connor, Van Valkenburg and Larrivee, Missoula, Wntana 

Noel K. Larrivee argued, Missoula, Pllontana 

For Amicus Curiae: 

Victor F. Valgenti argued,Missoula, Mntana 

Evelyn M. Stevenson, Pablo, Wntana 

Sul=Prcitted: April 27, 1979 

Decided: dCi 12 1979 .- ,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 that Noel K. Larrivee 

was driving his automobile west on Montana Highway 200 

toward its intersection with 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 212 when 

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 summons was served upon the defendant personally 

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 same date, 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 a motion 

to set aside the entry of the default judgment upon the 

grounds of the defendant's mistake, inadvertence, and excusable 

neglect. The affidavit in support of the motion recites 

that Morigeau after service upon 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 steps 
toward the handling of the complaint, a mistaken assumption. 

On April 13, 1978, the tribal attorney delivered the summons 

and complaint to Morigeau's attorney, but she was not 

authorized by Morigeau to act on his behalf until April 19, 

1978. There were some telephone conversations between 

Morigeau's attorney and Larrivee. Apparently there was 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 

attorney was absent from the state during this period and he 

did not authorize her 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 is within 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; that Morigeau, living within the 

exterior boundaries of the reservation, was not subject to 

service of state court process; and, that the subject matter 

of the controversy was not within the jurisdiction of the 

state District Court. 

Also on May 1, 1978, Morigeau filed his motion to 

change venue and dismiss the action. The motion for change 

of venue was made upon the ground that the accident had 

occurred in Sanders County where the defendant had been 

served. The motion 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, living within the exterior 

boundaries of the Flathead Indian Reservation. 

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On May 11, 1978, oral argument was 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 a motion to vacate the default judgment 

and dismiss the same for lack of subject matter jurisdiction, 

again upon the grounds that the action was one between a 

non-Indian plaintiff and an Indian defendant over an accident 

which occurred within Indian country and was therefore 

subject only to the exclusive jurisdiction of 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. 

"The defendant 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 on November 

6, 1978. Confederated Salish and Kootenai Tribes of the 

Flathead Reservation have filed a brief in this matter as 
amicus 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 that no proper or timely appeal was taken from 

the order of the District Court denying the motion to set 

aside the default judgment on the grounds of excusable 

neglect, inadvertence or mistake; 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 appeal was not taken from the denial 

of such motions, 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 (Cause No. 14327, unpublished); Zell v. 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. 

In his motion to set aside the default judgment, Morigeau 

did not precisely rely upon the lack of subject matter 

jurisdiction as a ground for setting aside that default, 

although reference to this is made in the affidavits supporting 

his motion as part of his contention that he had a meritorious 

defense. It appears from the record that the District Court 

ruled on the ground that there was no mistake, inadvertence 

or excusable neglect in denying that motion. We do not 

consider therefore that the question of subject matter 

jurisdiction was 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 on August 22, 1978. An attack on subject matter 

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jurisdiction may be raised at anytime. Since we find in 

this case that the question of subject matter jurisdiction 

was not precisely ruled upon by the court in its order 

denying the first motions, 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 is whether the District Court had subject matter 

jurisdiction on which to sustain the default judgment. 

In treading our way 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 of August 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 

federal Act of 1953, the Montana Legislature provided 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 

accordance with 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: 

"That Chapter 1, 52 Jurisdiction, of the 

official code of ordinances be and the 

same is hereby amended to add subsections 

1 and 2 of this ordinance following paragraph 

3 to read as follows: 

"'Subsection 1. Subject to the conditions and 

limitations expressed in Subsection 2 hereof, 

--- the laws and jurisdiction of -- 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 jurisdiction relate -- to the 

subjects following: 

"' (a) Compulsory School Attendance 

" ' (b) Public Welfare 

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 

Indian Reservation. 

"'Subsection 2. 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 all matters 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 

courts of 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 Tribes pursuant to Article 

9 of the Constitution of Confederated 

Tribes . . . 

"(d) All jurisdiction of the Confederated 

Tribes under the Constitutional bylaws 

and ordinances enacted pursuant thereto 

under the federal government of the United 

States Criminal Code, to the extent not 

expressly transferred by Subsection 1 

hereof, remains the Confederated Tribes 

and in the federal government 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 ordinance be held to extend the 

jurisdiction more extensive than set forth 
herein, or any condition herein 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." (Emphasis added.) 

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, 1965 proclaimed under the provisions 

of Ch. 81, Laws of Montana (1963), as follows: 

"Now therefore, 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 subdivisions does extend to the 

Confederated Salish and Kootenai Tribes as 

expressed in their approved Ordinance No. 

40-A (revised) . . . and I further declare 

that 60 days from the date of October 8, 

1965, such criminal and civil jurisdiction 

as previously described shall be in full 

force and effect." (Emphasis added.) 

The Montana legislative action authorizing the governor to 

proclaim jurisdiction and the adoption of Tribal Ordinance 

40-A (Revised) occurred under and while Section 7 of Pub.L. 

83-280 was 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 cession made 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 jurisdiction with 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 comport with this argument. 

Tribal Ordinance 40-A of the Confederated Salish and 

Kootenai Tribes was first passed on May 15, 1964. In the 

original version, 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 on May 5, 1965, Tribal Ordinance 

40-A (Revised) was passed by the Tribal Council amending 

subdivision (i) so that it reads as we have set it forth 

above in the first instance. It is obvious that the tribes, 

in examining Tribal Ordinance 40-A, as it was 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 subdivision was 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 left untouched. In other 

words, the broad consent to concurrent jurisdiction by the 

tribes as expressed in subdivision (h) remained and still 

remains. 

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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, 

159 Mont. 156, 496 P.2d 78, 80, where we said: 

"Tribal consent to the assumption of criminal 

jurisdiction by the state courts of Montana 

over Indians committing crimes on the Flathead 

Indian Reservation was 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 Ordinance was 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 Resolution was 

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 further provided 

that this Tribal Resolution was 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, on April 30, 1971, the Tribal Council 

passed a motion 'to seek retrocession on State 

Concurrent Jurisdiction'. The record discloses 

no further action in conformity with this motion." 

159 Mont. at 160, 161, 496 P.2d at 80. 

One of the features of Ch. 81, Laws of Montana (1963), 

the legislative act which provided for the consent on the 

part of the State of Montana to extend jurisdiction to the 
Flathead Reservation is that statute provided that any 

consent by an Indian tribe could be withdrawn within two 

years of the date of the governor's proclamation. 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 

amicus point 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 as well 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 

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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 jurisdiction by 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 

case would constitute an infringement on 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 is no 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 as well 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 ineffective as 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, to make 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 controls also 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 

interpretation of/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, 

162 Mont. 298, 300, 511 P.2d 325, 327. There we said, 

quoting State ex rel. Iron Bear v. District Court (19731, 

162 Mont. 335, 512 P.2d 1292: 

"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 applicable have 

preempted state jurisdiction; (2) whether 

the exercise of state jurisdiction would 

interfere with reservation self-government; 

and (3) whether the Tribal Court is currently 

exercising jurisdiction or has exercised 

jurisdiction in such a manner as to preempt 

state jurisdiction." 

With respect to the first test stated in -- Iron Bear, the 

federal treaties and statutes have not in this case preempted 

state jurisdiction, because Pub.L. 83-280 provided particularly 

for the cession to and assumption by 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 boundaries 
of the Flathead Indian Reservation constitutes an interference with 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 jurisdiction by the 

states. 

It is with 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, 460 non-Indian plaintiffs have sued 

Indian defendants 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 this material 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. 

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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 controlling precedent 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" (Railroad Comm'n v. 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 District Court had 

first referred the jurisdictional question to the Appellate 

Court of the Northern Cheyenne Tribe for decision. 

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Of course, in Fisher, supra, the dispute was completely 

between Indian members of the Northern Cheyenne Tribe. 

Moreover, the Appellate Court of the Northern Cheyenne 

Tribe, in Fisher, specifically did not decide whether the 

tribal court had jurisdiction of adoption by nonmembers of a 

member of a tribe. (See 424 U.S. at 384, n. 6.) 

We are not disposed to follow the federal system of 

abstention in this matter. First, such abstention would in 

this case simply leave the parties as they were at the close 

of the District Court proceedings. Morigeau is entitled to 

a final decision by this Court as to the validity of the 

judgment held 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 consent was necessary. It would 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. 

Af f irmed. 
We Concur: 

Chief Justice 

.............................. Justices 

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

time .