### No. 13338 

### INTHE SUPREME COURT OF 

### THE STATE OF MONTANA 1976

LITTLE HORN 

### STATE BANK, 

### Plaintiff and 9



### ROBERT STOPS AND NORMA 

### STOPS, Defendants and Respondents.

Appeal from: 

### District Court of the Thirteenth JudicialDistrict, Honorable Charles Luedke, Judge presiding. Counsel of Record: For Appellants

### : Clarence 

### T. Belue argued, Hardin, Montana For Respondent

### : Cate, Lynaugh, Fitzgerald and Huss, Billings, Montana Thomas 

### J. Lynaugh argued, Billings, Montana

Submitted: September 9, 1976

Decided: 

## ~ICT -7

# 291'6 Filed: 

### '. ' 7 ' icj/\;Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This 

### is an appeal from an order entering a permanent injunction against levying or executing upon the property of respondents within the Crow Indian Reservation. The injunction



### was ordered inthe districtcourt of Big Horn County. This appeal adds another chapter to the never ending story of Indian jurisdiction. The relevant facts are

### as follows: Respondents, members of the Crow Indian Tribe residing

on the Crow Indian Reservation, obtained a loan from appellant bank located inHardin, Montana, and failed torepay the loan. This commercial transaction took place atthe bank which 

### is located outside the exterior boundaries of the Crow Indian Reservation. Process 

### was served upon respondents on the reservation. Thereafter appellant obtained a judgment inthe districtcourt of the thirteenth judicial district inthe amount of $3,541.24. Following thisjudgment on February 18, 1976, execution 

### was issued by the districtcourt on February 23, 1976. The 

### writof execution

was directed tothe sheriff of Big Horn County, who proceeded to garnish the wages of respondents earned on thereservation but within Big Horn County. Respondents sought and obtained injunctive relief against the

### writof execution. Appellant seeks to dissolve the permanent injunction and be allowed to levy upon the respondents' property and wages within the reservation. Respondents did not attack the district court's subject matter jurisdiction or personal jurisdiction atthe district court level or before this Court. Both of these issues have been laid to rest by Mescalero Apache Tribe v. Jones, 411U.S. 145, 93 S.Ct. 1267, 36 L Ed 2d 114, 119, and Bad Horse v. Bad Horse, 163 Mont. 445, 517 P.2d 893, cert. den. 419 U.S. 847, 95 S.Ct. 83,

A review of the districtcourt's jurisdiction had noIndian jurisdictional dispute been involved, 

### isuseful tothis decision. It has been a long standing doctrine that any court having jurisdiction torender a judgment alsohas the power to enforce thatjudgment through any order or

### writnecessary to carry itsjudgment into effect. U.S. ex 

### rel. Riggs 

### v. Johnson County, 6 Wall. 166, 18 L.Ed 768 (1868); Pam-to-Pee v. United States, 187 U.S. 371, 23 S.Ct. 142, 47 L.E~ 221 (1902); Hamilton

v. Nakai, 453 F.2d 152, 

### cert. den. 406 U.S. 945, 92 S.Ct. 2044,

The United States Supreme Court defined "jurisdiction" atp. 773 inRiggs: 

### " 

## * * 

## * Jurisdiction isdefined tobe thepower tohear and determine the subjectmatter in controversy in the suitbefore thecourt, and the rule is universal, that if thepower 

### is conferred torender thejudqment or enter the decree, 

### it also includes thepower to issue proper process toenforce such judqment or decree. 

## * * * "Express determination of this court is that the jurisdiction of a court 

### is not exhausted by the rendition of the judgment, but continuesuntil that judgment shall be sati:ified. 

## * 

## * *" (~mphasis added.) The Montana legislature enacted section 93-1106, R.C.M. 1947, which contains language analagous to thisprinciple. We have interpreted section 93-1106 toconfer upon a court, having proper jurisdiction, allthemeans necessary tocarry the same into effect, and if the court has thepower tomake an order, 

### it has jurisdiction toenforce that order. Stateex 

### rel. Eisenhauer

v. District Court, 54 Mont. 172, 168 P. 522. The districtcourt initially sought to enforce itsjudgment by a writof execution pursuant to section 93-5801 et seq., R.C.M. 1947. A 

### writof execution against property of a judgment debtor may be issued by the districtcourt tothe sheriff of any county in the state. Section 93-5809, R.C.M. 1947. Thus, a districtcourt has statewide enforcement power under that section.However, the

### writmust issue tothe proper sheriff, sincea sheriff has no authority to serve the

### writoutside of his county. Merchants Credit Service v. ChJteau Co. Bank, 112 Mont. 229, 114P.2d 1074. Absent the existence of the Crow Indian Reservation, there 

### is no question that this

### writof executionwould be a valid means of enforcing thejudgment of thedistrictcourt. The property subject tothe

### writwas located within Big Horn County, the

### writ

### was directed tothe sheriff of Big Horn County, and allother essential elements of a valid 

### writof execution existed.Respondents urge us tohold that a court having jurisdiction torender a judgment does not have thepower to enforce that judgment because the property subject to such 

### writis located

on the Crow Indian ~eservation. In effect, they ask that the reservation be treated on an even par with our 

### sister states. Such a situationwould not be feasible, since the Crow Tribe does not provide for the honoring of statecourt judgments, nor 

### is the full-faith and credit clause applicable tothe tribe. Had the judgment debtor's property been located ina 

### sister state, appellantbank could have obtained a judgment inthat stateby pleading theMontana judgment and showing the jurisdictional requirements. Such a conclusion is not available in our situation. The task tobe performed by this Court is todetermine whether or not the State action taken in this case 

### is acceptable under the doctrines concerning statejurisdiction over Indian reservations. The United States Supreme Court has applied different rationale from 

### timeto

### time, and the recent court decisions must be read asa whole toarrive atthe proper 

### test tobe applied in this case. The initial 

### test was propounded inWilliams v. Lee,358 U.S. 217, 79 S.Ct. 269, 3 L Ed 2d 251, 254, which stated: 

### " 

## * * *Essentially, absent governing Acts of Congress, the question has always been whether the stateaction infringed on the right of reservation Indians tomake their own laws and be ruled by them." This 

### test was apparently overruled by Kennerly v. DistrictCourt of Montana,'&@U.S. 423, 91S.Ct. 480, 27 L Ed 2d 507. However, inMcClanahan v. Arizona Tax Commission, 

### 411U.S. 164, 93 S.Ct. 1257, 36 L Ed 2d 129, 140, 141, the Court revived theWilliams test stating: 

### " 

## * 

## * * Itmust be remembered that cases applying the Williams testhave dealt principallywith situations involving non-Indians. [Citations omitted.] In these situations, both the tribe and the State could fairly claim an interest in asserting their respective jurisdictions. The Williams 

### test was designed toresolve this conflict by providing that the Statecould protect 

### its interest up tothe point where tribal self-government would be affected.



### " 

## * * 

## * This Court has therefore held that 'the question has always been whether the stateaction infringed on the right of reservation Indians to make their own laws and be ruled by them.'" The Court 

### still adheres totheWilliams 

### test as evidenced by the recent decision of Fisher v. District Court of Montana, 44 U.S.L.W. 3940 (U.S. March 1, 1976), when the court applied the Williams test, even though allparties 

### weremembers of theNorthern Cheyenne Tribe, and the litigation arose on the reservation. The Williams

### test is appropriate toreview this appeal. The litigation involves a member of the Crow Tribe residing on the Crow Indian reservation and a nonmember, located off the reservation. It is important to note that the transaction in dispute arose off the reservation. Therefore, we must determine whether stateaction, in the form of a 

### writof execution toenforce a judgment rendered on a transaction arising outside the reservation, interfereswith the tribe's right tomake 

### its ownrules and be governed by them. We hold that it does not. that The cases holding/such interference has occurred present

a combination of the transaction occurring on the reservation and the tribal court providing jurisdiction over such matters. In Williamsthe tribal court exercised jurisdiction over disputes

over commercial transactions arising on the reservation between members and nonmembers. In Security StateBank v. Pierre, 162 Mont. 298, 511 P.2d 325, the tribal court provided for civil litigation between members and nonmembers. InFisher, themost recent United States Supreme Court case so holding, the facts relating to the child custody dispute allarose on the reservation, and the Crow Tribe provided for custody litigation among members (allparties were members of the Crow Tribe). We note that in the situation athand the Crow Tribal Court only exercises jurisdiction over civil litigation between members and nonmembers if both parties so stipulate. However, what is in issue in this case 

### isthe enforcement of a valid judgment, not the proper court to initiate the litigation. The transaction did not occur on the reservation as in the above

cases but outside the reservation boundaries. The subjectmatter jurisdiction was within the statecourt, not the tribal court. The Crow Tribe provides no means of enforcing statecourt judgments,

no method of attaching property of a 

### statejudgment debtor, and is not subject to the full faithand creditclause as sister states

are. Until the Crow Tribe has provided a means of such enforcement or acted in some manner within this area, we failto 

### see how tribal self-government is interfered with by assuring that reservation Indians pay for their debts incurred off the reservation. The crucial fact of this appeal is that the subjectmatter jurisdiction 

### lies with the statecourt, not the tribal court. Inthiscase the tribal members elected to leave the reservation and conduct their affairswithin the jurisdiction of the state courts. When they do so they are submitting themselves to the laws of this state. They cannot violate those laws and then retreat tothe sanctuary of thereservation for protection. The cases analagous to the situationpresented here are: State Securities, Inc. v. Anderson, 84 N.M. 629, 506 P.2d 786, 789; Natewa v. Natewa, 84 N.M. 69, 499 P.2d 691, 693; and Stateex rel. Old Elk v. District Court, Mont

# . , 552 P.2d 1394, 33 St.Rep. 637 (1976). In allof these cases the statecourt properly had jurisdiction over the dispute athand and process was allowed on the reservation tobring the Indian defendant before the 

### state court. In Natewa, the wife, a Zuni Indian living inWisconsin, brought a URESA action against her ex-husband, a Zuni Indian 

### residing on the Zuni Indian Reservation inNew Mexico. The New Mexico Supreme Court upheld the New Mexico District Court's order directing the ex-husband topay child support, saying: 

### " 

## * * 

## * Appellant cannot interpose his special status as an Indian as a shield toprotect him from obligations that result from his marriage toappelleewhich had been entered into off the reservation. 

## * * *" In State Securities, a corporation brought suittorecover
on notes contracted off the reservation by Navajo Indians. The New Mexico Supreme Court allowed service upon the Indians while they were on the reservation, stating atp. 789: "State jurisdiction does not eliminate Indian jurisdiction, it exists concurrently with it. There is no interferencewith Indian selfgovernment. 

## * * *

. 

### " 

## * 

## * * Exclusive jurisdiction in Indian courts, which do not necessarily apply statelaw, may result in shielding Indians from obligations incurred off the reservation." Wehave taken a similar position inOld Elk, holding thata sheriff of this statemay serve a warrant for the arrest of an Indian on the reservation, when the crime has occurred off the reservation. The respondents elected tobe governed by the 

### laws of this statewhen they leftthe boundaries of the reservation to obtain the loan from the appellant. This was not 

### a case of a nonmember choosing to transact his business within the boundaries of the Indian reservation as inWilliams, Kennerly, and Pierre. The United States Supreme Court stated inMescalero Apache Tribe v. Jones, 

### 411

### U.S. 145, 93 S.Ct. 1267, 36 L Ed 2d 

### 114, 

### 119: 

### " 

## * 

## * * Absent express federal law tothe contrary, Indians going beyond reservation boundaries have generally been held subject tonondiscriminatory 

### state lawotherwise applicable toallcitizens of the state." [Citationsomitted.] Here the respondents did go beyond the boundaries of the Crow Indian reservation and the execution statutes arenondiscriminatory and 

### are otherwise applicable toallcitizensof Montana. This appeal essentiallyboils down towhether the jurisdiction granted inMescalero is the same as that defined by the United States Supreme Court inRiggs and Pam-to-Pee, or 

### is it merely the opportunity torender a judgment incapable of enforcement. The latterwould be absurd. As the Court said inPam-to- Pee, atp. 226: - "The award of execution is a part, and an essential part, of every judgment passed by a court exercising judicial power. It is no judgment, in the legal sense of the 

### term, without 

### it. Without such an award thejudgment would be inoperative and nugatory, leaving the aggrieved party without a remedy. It would be merely an opinion, which would remain a dead letter, and without any operation upon the rights of the parties 

## * 

## * *.I" To avoid such an illogical situationwe hold that a writ of execution from a statecourt is valid within the Indian 

### reservation when such 

### is a means of enforcing a valid judgment of that court. AS we stated inOld Elk at643:"Individual rights, due process, impartial and effectivemaintenance of justice and the public confidence inand respect for the courts 

### are paramount inthe resolution of these kinds of matters. However, these rights and duties are owed toallcitizensnot only those residing within the exterior boundaries of an Indian reservation. The citizens of Montana generally and Big Horn County particularly would be grossly deprived if under the guise of individual due process they not only had no speedy, adequate remedy, but 

### - no remedy atall." As stated earlier, the state court was the only forum available to the appellant. The tribal court lacked subject matter jurisdiction. No federal jurisdiction could be invoked, sincetherewas no federal question, no diversity of citizenship, and the amount incontroversy was 

### less than $10,000. The 

### state court had the jurisdiction torender itsjudgment, not even the respondents contest this. Such would not be a judgment without the power toenforce the same. The only available and peaceful

means of enforcement to the appellant was the 

### writof execution from the statecourt. Without such, the result would be a "catchus-off-the-reservation" situation, which could possibly lead to breaches of the peace. In Old Elk 

### we held that an Indian may not violate the criminal laws of this statewhile off the reservation, and then return to the sanctuary of the reservation and throw up his Indian status asa shield against enforcement of those criminal laws. We now hold the same 

### is true for the civil laws of this state. We arenot unmindful of Annis v. Dewey County Bank, 335 F.Supp. 133 (1971) cited by respondents. The federal court cited authority from South Dakota and Minnesota inholding that state officials had no jurisdiction on Indian reservations either to

serveprocess on an enrolled member or to enforce a statejudgment. The law of this state isdirectlycontrary and in accord with New Mexico, asevidenced by Old Elk. Wedo not agree with the law cited by the federal court inAnnis, nor do 

### we agree withtheir rationale. The decision of the districtcourt 

### is reversed and the injunction dissolved and vac

Chief Justice Weconcur:

Hon. Robert 

## , District Judge, sitting n place of Mr. Justice Gene B. Daly.