No. 12981 INTHE SUPREME COURT OF THE STATE OF MONTANA

CEDRIC WOODTICK, a/k/a CEDRIC PLBINFEATHER, Plaintiff and Appellant,

RODNEY TJ. CROSBY

## , Defendant and Respondent.

Appeal from: District Court of the Thirteenth Judicial District, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellant: Towe, Neely and Ball, Billings, Montana Thomas E. Towe argued, Billings, Montana For Respondent: Hibbs, Sweeney and Colberg, Billings, Montana William T. Wagner argued, Billings, Montana

Submitted: September 29, 1975 Decided: "I;%F!~ a;, ; JL A/ -Mr., Justice Gene B. Daly delivered the Opinion of the Court.
This 

### is an appeal from the district court, Big Horn County, from a finaljudgment dismissing plaintiff's complaint for lack of subject matter jurisdiction. Plaintiff, a competent Crow Indian, was issued a patent in fee simple on October 13, 1971toland situatewithin the exteriorboundaries of the Crow Indian Reservation. Subse-- quently, by warranty deed dated October 29, 1971, plaintiff conveyed this land toRodney L. Crosby, a non-Indian. By his complaint, filed July 23, 1974, plaintiff seeks cancellation of the deed given Crosby alleging that bythis deed Crosby became the non-Indian owner of more acreage of land within the Crow Indian Reservation than permitted under the provisions of Section 2, Act of June 4, 1920 (41 Stat. 751), and, therefore, pursuant to the explicit language of that Act, the deed was void. By motion on August 

### 30, 1974, defendant Crosby moved to dismiss the complaint on grounds that the courts of this state are without jurisdiction over the subject matter of this controversy. By order dated December 6, 1974, the district court granted defendant's motion to dismiss. The land which is the subject matter of this case lies entirelywithin the exteriorboundaries of the Crow Indian Reservation. As such, Montana statecourts have jurisdiction over it only to the extent granted by Congress. Section 4(2) of Montana's Enabling Act (25 Stat. 676), under which P4ontana was admitted to the Union and its Constitution adopted, provides: 

### h hat the people

# *

# ** [of ~ontana] 

# **

# * do agree and declare that they forever disclaimallright and titleto the unappropriated public lands lying within the boundaries thereof, and to alllands lying within said limits owned or held by any Indian or Indian tribes; and that until titlethereto shalll~ave been extinguished by the United States

# *** said Indian lands shallremain under the absolute jurisdiction and control of the Congress oi- the United States J; 9: 9c." (Emphasis supplied.) Identical language 

### is contained inOrdinance No. 1, 52, Montana Constitution of 1889. Article I, 1972 Montana Constitution provides that both the Enabling Act and Ordinance No. 1are to "continue in fullforce and effect until revoked by the consent of the United States and the people of Montana. II By the Crow Indian Allotment Act of June 4, 1920 (41 Stat. 751), as amended by the Act of May 26, 1926 (44 Stat. 6581, Congress undertook allotment of Crow Reservation lands among members of the Crow Tribe. Section 1of the Act provides for allotments in severalty to be evidenced by "patents in fee to competent Indians +: 

# ** but by trust patent tominors and incompetent Indians, the force and legal effect of the trust patents tobe as 

### isprescribed by the General Allotment Act of February 

### 8, 1887,
as amended. (Twenty-fourth Statutes atLarge, page 388)", now 25 United States Code, 

### 55 348,349. Section 348 essentially provides that the United States 

### is to hold legal titletothe allotted lands "in trust" and continue to exercise its exclusive guardianship duties over the allottee and his lands for a period of 25 years. Section 349 further provides that atthe expiration of the 25 year period, or
sooner if the Secretary of the Interior determines that a given

11 allottee 

### is competent and capable of managing his or her affairsf1,
a feepatent 

### is to issuewhereupon 

# "*

# ** each and every allottee shallhave the benefit of and be subject to the laws, both civil and criminal, of the State JC 

# * inwhich they may reside

# *

# * ;kl'. The United States Supreme Court has held that upon issuance of a fee patent tothe Indian, questions arising thereafterpertaining totitle fallwithin thejurisdiction of the state courts. Dickson v. Luck Land Co., 242 U.S. 371, 

### 37 S.Ct. 167, 61 Led 371; Larkin v.laugh, 276 U.S. 431, 48 S.Ct. 366, 72 Led 640,644, 645. Asobserved inLarkin: "F7ith the issue of the patent, the titlenot only passed from the United Statesbut the prior trust and incidentalrestriction against alienation were terminated. This put an end to the authority theretofore possessed by the Secretary of the Interiorby reason of the trust and restriction

# -- so that thereafter allquestions pertaining to the titlewere subject to examination and determination by the courts, appropriately those inNebraska, the land being there. 

# * >k

# *

"t7e areof the opinion therefore that therewas nothing inthe congressional statutes to prevent the local court from taking and exercisingjurisdiction of the administrator's suit Jc 

# * brought after the issue of the fee simple patent. 

# * a" Plaintiff has received a patent in fee simple. Atthis point it appears that the parties agree thatjurisdiction generally
as it applies to Indians resides in the statecourts. However, the point of difference and the legal issuepresented to this Court concerns the effect, if any, the Crow Indian Allotment Act of June 4, 1920 (41 Stat. 751) has on statejurisdiction. the pertinent part of Section 2 of the Act prohibits and declares void any conveyance of feepatent land by a Crow Indian to any person, company or corporationwho owns more than 1,280 acres of grazing land, orwho by such conveyance would become the owner of more than 1,920 acres of grazing land, within theboundaries of the Crow Indian Reservation. Act of June 4, 1920, Sec. 2 (41 Stat. 751). By theAct of June 

### 8, 1940, only those conveyances tonon-Indians owning in excess of the prohibited acreages arenow prohibited. (54 Stat. 252). Defendant argues that because of the Crow Indian Allotment Act the federal restrictionshave simply not been terminated. Thus, the cases above cited arerecognized by defendant but distinguished
on the grounds that the additionalrestrictions of the Crow Allotment Act were not involved in those cases. Defendant goes on toargue that in this event plaintiff must meet the conditions ofStateex rel. Iron Bear v. District Court, 162Mont. 335, 512 P.2d 1292 and related cases, or failinhis attempt to establish jurisdiction in the statecourt. A case citedby plaintiff as principal authoritybut not discussed by defendant 

### is Dillon v. Antler Land Company, 341F. Supp. 734, 740, 741, (D.C. Mont. 1972), affirmed 507 F.2d 940 (9th Cir. 1974). In Dillon the Crow Indian attempts to set aside
a conveyance of Indian lands conveyed in 1955 afterreceiving a patent and the elements of the fraud complained of were known
as early as 1956. Judge Russell E. Smith, aftermentioning other grounds and recognizing an alleged violation of the Crow Indian Allotment Act, held the claim forrelief barred by theMontana statute of limitations. Judge Smith held directly that there 

### is
no conflict with 25 U.S.C., 

### 5 349, which declares allrestrictions, etc. shallbe removed with issue of patent. He stated 

### "*

# * fc the effect of Section 2 of the Crow Act was to limitthe power of a buyer tobuy. The Indian was not forbidden to sell; the penalty


### was directed solely atthebuyer." In his discussion Judge Smith comments that the market was limitedbut this istrue inother comparable instances aswell. Further, the Court held: "The General A.llotmentAct throughout itshis tory has and the Crow Act does distinguish the competent from the incom~etent Indian and the trust lands from the fee lands. State law controls here because Congress has explicitly said that it does. The language of 25 U.S.C. 

### 5 349 is ;? 

# * when the lands have been conveyed to the Indians by patent in fee

# *** then each and every allottee

shallhave the benefit of and be subject to the laws, both civiland criminal, of the State

# *

# **'. "The patent exists. It has not been cancelled." (Emphasis supplied.) Judge Smith further commented in Dillon: "The issuance of the feepatent had a broader effect than merely to freeplaintiff tosellher land--it freed the United States from 

### its trustee duties and altered the relationship of the land and plaintiff to the State of Montana. 11 He cited the Montana Enabling Act (25 Stat. 676), and Montana Power Co. v. Rochester, 127 F.2d 189 (9th Cir. 1942).The Ninth Circuit affirmed Judge Smith in allparticulars and alsocited Montana Power Co. v. Rochester, 127 F.2d 189, 192, which states in relation tothe statute on the issue of feepatents:
I1

The obvious purpose of the provision istodefine the status of the individual Indians intheir relation tothe state. Having been released from tutelage, the Indians are thereafter tobe regarded asmembers of the community with the privileges and duties incident to citizenship. r1 The issuebefore this Court has been directlyruled upon and decided by the federal courts, therefore further discussion 

### isunnecessary particularly sinceboth firms of attorneys in this matter appeared in the federal district court in the proceeding inDillon. The judgment of the district court isreversed and the
cause remanded for further proceedings on the merits not inconeistent with this opinion,

We Concur: Y 

## 4 @( I" i:*!,+#f>' d /$ *f .2df

, tt, ,".La i.***,. : Chief Justice