### No. 84-507 INTHE SUPREME COIJRT OF THE STATE OF 

### MONTANA 1985

MILBANK MUTUAL INSURANCECOLWANY 

## , a corporation, Plaintiff and Respondent,

-vsMELVIN EAGLEMAN,JR. Defendant and Appellant.

APPEAL FROM: District Court of the Fifteenth Judicial District, In and for the County 

### of Roosevelt, The Honorable M. 

### James Sorte,Judgepresiding.

COUNSEL OF RECORD: For Appellant: Carol C. Johns,Nontana Legal Services,Wolf Point, Montana

For Respondent: 

### Cannon & 

### Sheehy;Edmund F. 

### Sheehy,Jr., Helena, Montana

Submitted on Briefs: June 13, 1985 Decided: September 12, 

### 1985



### Filed:

ClerkMr. JusticeFred J. Weber delivered the Opinion of theCourt. The Roosevelt County District Court entered a default judgment in favor of Milbank Mutual Insurance Company (Milbank) on December 9, 1983. Appellant, Melvin Eagleman, 

### Jr. (Eagleman), appeals. Wereverse. The issues are: 1. F7as Eagleman's notice of appeal timely filed with thisCourt? 2. Did the District Court have subject matter jurisdiction? Eagleman 

### is an enrolled member of the Fort Peck Sioux and Assiniboine Tribes and resides on the Fort Peck Reservation. Eagleman took a 1981 Ford Thunderbird without the permission of the owner, plaintiff's insured, Lawrence F. Blackdog. Eagleman damaged the vehicle within the exterior boundaries of theFort Peck Reservation. Milbank paid 

### its insured $7,400 and brought a civil action against Eagleman in District Court seeking $7,400 in damages. Eagleman did not appear and a default judgment was entered. In April 1983, the Department of ,Justice, Motor Vehicle Division, notified Eagleman that his driver's license was suspended for failure tosatisfythe judgment. On September 

### '11, 1984, Eagleman filed a motion to 

### set aside the default judgment on thegrounds that 

### it was void under Rule 60(b)(4), M.R.Civ.P. The motion was deemed denied by operation of law on September 21, 1984. On October 26, 1984, the DistrictCourt granted a motion for an extension of time for filingnotice of appeal to this Court on a showing of excusable neglect. Eagleman filed notice of appeal on October 26, 1984.

### Was Eagleman's notice of appeal timely filed with this Court? On September 11, 1984, Eagleman filed a 

### motion to set aside the default judgment. Rule 59(d)

## ,M.R.Civ.P. requires that a hearing on themotion be had within 10days. Since no hearing was held within 10 days,Eagleman's motionwas deemed denied on September 21, 1984. Eagleman filed notice of appeal on October 26, 1984, thirty-five days after hismotion was deemed denied. Milbank contends the notice of appealwas not timely filed. Under Rule 5,M.R.App.Civ.P., the time to file a notice of appeal may be extended. In Zell v. Zell (1977),172Mont. 496, 499-500, 565 P.2d 311, 313, we discussed excusable neglect and the extension of time to file a 

### notice of appeal. We believe that allowing a party to request such an extension of time before or after the expiration of the original time prescribed by Rule 5, M.R.App.Civ.P., is the better procedure and we adopt thisview. This does not, however, give a party an unlimited amount of time to request an extension of time from the district court. Rule 5provides: "Upon showing of excusable neglect, the district court may extend the time for filing the noticeofappeal by any party for a period not to exceed 30 days from the expiratioro'-?- the 

## origins1 

### time =scribed 

# 3 -- this Rule." (Emphasis supplied.) On 

### October 26, 1984, Eagleman was granted an extension of time for filing a 

### notice of appeal upon a showing of excusableneglect. The notice of appeal was filed within the 30-day extension of time authorized by Rule 5,M.R.App.Civ.P. The appealwas timely filed.Did theDistrictCourt have subjectmatterjurisdiction? There 

### is no dispute that Eagleman 

### is an enrolledmember 

### of the Fort Peck Sioux and Assiniboine Tribes and that the accident occurred within the exterior boundaries of the Fort Peck Reservation. Subject matter jurisdiction over civil litigation in Montana between Indians and non-Indians arising out 

### of conduct on an Indian reservation 

### is governed by the three-part 

### test of Stateexrel. Iron Bear v. 

### DistrictCourt (1973), 162 Mont. 335, 346, 512 P.2d 1292, 1299: Before a districtcourt can assume jurisdiction inany matter submitted to

### it,it must find subject matter jurisdiction by determining: (1) whether the federal treaties and statutes applicable have preempted statejurisdiction; (2)whether the exercise of statejurisdiction would interfere with 

# . .

# . [tribal] self-government; and (3)whether theTribal Court 

### is currently exercising jurisdiction or has exercised jurisdiction in such a manner as topreempt statejurisdiction. The first and second elements of the 

### test were adopted fromWilliams v. Lee (1959), 358 U.S. 217. The United States Supreme Court has interpreted these two elements tobe disjunctive; if either 

### is present, the state lacks subject matter jurisdiction. Congress has broad power to regulate tribal affairs under the Indian Commerce Clause, Art. 1, 58, cl. 3. This congressional authority and the "semi-independent position" of Indian tribes have given rise totwo independentbut related barriers tothe assertion of state regulatory authorityover tribalreservations and members. First, theexerciseof such authority may be pre-empted by federal law. Second, 

### it may unlawfully infringe "on the right of reservation Indians to make their own laws and be ruled by them." Williams v. Lee, 358 U.S. 217, 220 (1959). The two barriers are independent because either, standing alone, can be a sufficient basis for holding state law inapplicable to activityundertaken on the reservation or by tribalmembers. White Mountain Apache Tribe 

### v. Bracker (1980), 448 U.S. 136, 142-43 (citationsomitted). Has state jurisdiction been preempted by federal trea

### ties or relevant statutes? The 1851 Treaty of Fort Laramie reserved land for the Sioux and Assiniboine Tribes. J,and reserved by tribes through.treaties, agreements ratified by Congress, orexecutive orderswas originallybeyond thereach of stategovernmental authority. However, subsequent federal lawpermitted statestoassume jurisdiction, with thetribe's consent, over civil causes of action arising within Indian country. Montana has not obtained civil jurisdiction over the Fort Peck Sioux and Assiniboine Tribes under either Public Law 280 or the Civil Rights Act of 1968. See 28 U.S.C. § 1360(a); 25 U.S.C. § 1322(a). As

### we stated in Iron Bear:In Montana, the state assumed jurisdiction after Public Law 280 on only one reservation, [the] Flathead [Reservation]

# . It has not acted concerningtheother sixMontana reservations

# .. . ironRear, 162Mont. at342, 512 P.2d at1297. 

## -- Because Montana has not obtained jurisdiction under the above laws and the Tribes have decided toexercise jurisdiction in this area, 

### it may be argued that federal preemption 

### is ineffect. Because recent federalcases arenot clear, 

### we choose not toruleon thepreemption issue. Would the exercise of state jurisdiction interferewith tribal self-government? The Ninth Circuit Court of Appeals, which uses a similar 

### test, recently analyzed infringement of tribal sovereignty and stated: A tribe's interest in self-government could be implicated in one of two ways. First, if 

### a state or federal court 

### resolves a dispute which was within the province of thetribalcourts orof other

### nonjudicial law-applying tribal institutions, that court would impinge upon the tribe'sright to adjudicate controversies arising within it. Second, if the dispute itself calls into question the validity or propriety of an act fairly attributable to the tribe as a governmental body, tribal self-government is drawn directly into the controversy. We have recognized that the tribal court is generally the exclusive forum for the adjudication of disputes affecting the interestsofboth Indians and non-Indians which arise on the reservation 

# .

# ..

We emphasize that the Indians in the Fort Belknap community are, and always have been, entitled to assume exclusive jurisdiction over civil controversies within the reservation. However, if the dispute itself does not implicate the tribal government and the tribe has decided not to exercise its exclusive jurisdiction, it does not follow that the state courts are without power to resolve a controversy occurringwithin the state but on a reservation

# . . . R.J. Williams Co. v. Fort Belknap Housing Auth.. (9th Cir. cert. denied, U.S. 

### 105 S.Ct. 3476 (1985) (citationsomitted). Subchapter 1,5 107 of the Fort Peck Tribes Comprehensive Code Of Justice (1983)defines the extent of the Tribal Court's jurisdiction as follows: The [Tribal] Court shall have jurisdiction over any action where one party to the action shall be an Indian,

# ... and

(a) the cause of action arises under the Constitution or laws of 

### the Tribes; or

(b) 

### an Indian party to the action resides on the Fort Peck Reservation. Likewise, the 1965 Tribal Code stated that the Tribal Court had jurisdiction over all civil actions "where the plaintiff is not a member of the Tribes and the defendant is an Indian.

### " Chap. 

### I,S 2

### (b)

## ,Fort Peck Tribal Code (1965)

# .

### The dispute between Milbank and Eagleman, an enrolled member of the tribes, 

### is a civil controversy arising within the exterior boundaries of the reservation. The Fort Peck Sioux and Assiniboine Tribesare entitled to and have assumed exclusive jurisdiction. Under the facts of this case, it would be an infringement of tribal self-governmentto allow a non-Indian to sue a tribal member in a forum other than one the Fort Peck Sioux and Assiniboine Tribes have established for themselves. The Fort Peck Code further establishes that the Tribal Court is currently authorized to exercise jurisdiction over this type of a case. Thismeets the third test of 

## -- Iron Bear. We hold that the District Court's exercise of jurisdiction interferes with tribal sovereignty and the right to self-government of the Fort Peck Sioux and Assiniboine Tribes. We reverse the judgment of the District Court for lack of subjectmatter jurisdiction and direct the court tovacate its judqment against the defendant.

We concur: