Opposition — Stops v. Little Horn State Bank

In The

Supreme Court of the Ruited States

October Term, 1976

—_

No. 76-931

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ROBERT STOPS AND NORMA STOPS,

Petitioners,

vs.

LITTLE HORN STATE BANK,

Respondent.

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RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT

OF CERTIORARI

.

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CuiarENcE T. BELUE

Cuiarence T. BELve

Attorney at Law

201 West 4th Street

Hardin, Montana 59034

Counsel for Respondent

COCKLE PRINTING CO., 1622 St. MARY'S AVE., OMAHA

i

INDEX

Pages

Opinions Below 2

Jurisdiction 2

Question Presented 2

Statement of the Case 3

Argument:

I. There is no conflict with the decisions of this

Court. 3

II. The decision below does not interfere with tribal

self-government. - 4

III. Inconsistency with other holdings does not neces-

sitate granting the writ. 6

Conelusion 0... : 6

CITATIONS

CASES:

Fisher v. District Court, 424 U.S. 382 (1976) — . 8

Hamilton v. Nakai, 453 F.2d 152, cert. den. 406

U.S. 945, 92 S. Ct. 2044, 32 L. Ed. 2d 332 3

Kennerly v. District Court, 400 U.S. 423 (1971) Ww. 3

Little Horn State Bank v. Robert Stops and

Norma Stops, 555 P.2d 211 (Mont. 1976) a

McClanahan v. Arizona State Tax Comm’n, 411

U.S. 164, 177-178 (1975) 3,5

ii

CITATIONS—C. tinued

CASES—Continued :

Pages

Mesealero Apache Tribe v. Jones, 411 U.S. 145,

93 S. Ct. 1267, 1270, 36 L. Ed. 2d 114, 119 ww

Pam-to-Pee v. United States, 187 U.S. 371, 23

S. Ct. 142, 47 L. Ed. 221 (1902) 22. 3

Riggs v. Johnson County, 6 Wall. 166, 18 L. Ed.

TE A iiteiaieaieaan 3

Utah and Northern R. v. Fisher, 116 U.S. 28 (1885). 4

Williams v. Lee, 358 U.S. 217 (1959) .20 8

STATUTE:

BD. re We Te TE GID. ancercceexenninsensetstitioiaiossiangeniamnamians , oe

REGULATIONS:

28 A SS & | eee 4

5S Sf nm ec ln. BER 4

In The

Supreme Court of the Auited States

October Term, 1976

nh.

—

No. 76-931

va*

Ww

ROBERT STOPS AND NORMA STOPS,

Petitioners,

vs.

LITTLE HORN STATE BANK,

Respondent.

RESPONDENT’S BRIEF IN OPPOSITION

TO PETITION FOR WRIT

OF CERTIORARI

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Little Horn State Bank, respondent, opposes the peti-

tion for writ of Certiorari.

OPINIONS BELOW

The judgment of the Supreme Court of the State of

Montana is reported as Little Horn State Bank v. Rober!

Stops and Norma Stops, 555 P. 2d 211 (Mont. 1976), and

is reproduced as Petitioners’ App. A. The Order and

Memorandum of the District Court of the Thirteenth Judi-

cial District of the State of Montana in and for the County

of Big Horn is unreported and is reproduced as Petition-

ers’ App. B.

i)

JURISDICTION

The judgment of the Supreme Court of the State of

Montana was entered on October 7, 1976. The jurisdic-

tion of this court is invoked under 28 U.S. C. § 1257 (3).

>...

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QUESTION PRESENTED

Whether the Montana state courts and the sheriff of

Big Horn County have jurisdiction to enforce an order of

execution within the exterior boundaries of the Crow In-

dian Reservation on personal property owned and on

wages earned by enrolled members of the Crow Tribe who

earn their income and reside within the Reservation, when

the judgment was rendered off the Reservation.

— '

—

—_——-———

3

STATEMENT OF THE CASE

The facts of the case are stated fully in the decision

of the Supreme Court of the State of Montana (Petition-

ers’ App. A.)

There is no conflict with the decisions of this

Court.

Petitioners claim the decision below conflicts with Wil-

liams, Kennerly, McClanahan and Fisher. But, none of

these cases rule upon the question here presented—whether

the state can enforce its judgment within the reservation.

The decisions which do touch upon the question support

the decision below.

Riggs v. Johnson, 6 Wall. 166 (1868), established the

long standing doctrine of this court that any court having

jurisdiction to render a judgment also has the power to en-

force that judgment through any order or writ necessary

to carry the judgment into effect.?

| Williams v. Lee, 358 U.S. 217 (1959). + og A District Court,

400 U.S. 423 (1971). McClanahan v. Arizona State Tax Comm'n,

411 U.S. 164, 177, 178 (1973). Fisher v. District Court, 424 U.S.

382 (1976).

2 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.Ed. 221 (1902). Hamilton v. Nakai, 453 F.2d 152, cert. den.

406 U.S. 945, 92 S. Ct. 2044, 32 L. Ed. 2d 332.

4

Utah & Northern R. v. Fisher, 116 U. S. 28 (1885) up-

holds the power of states to protect legitimate interests in

the affairs of non-Indians within the reservation. This de-

cision generally approved the doctrine that process of state

courts may run into an Indian reservation where the sub-

ject matter or controversy is otherwise with their cog-

nizance.’ Petitioners concede subject matter jurisdiction

and the validity of the state judgment. The state cannot

enforce the judgment except by its own processes.* It is

absurd to uphold the validity of the judgment, but to ren-

der it ineapable of enforcement.5

II.

The decision below does not interfere with

tribal self-government.

The concept of tribal self-government includes the

corollary that off reservation activities are not a proper

3 Utah & Northern R. v. Fisher, 116 U.S. 28, 31 (1885).

4 The full faith and credit clause is not applicable to the tribe. Peti-

tioners imply that the judgment may be enforced by the tribal

court pursuant to 25 C.F.R. § 11.24C. This is not possible for two

reasons, (1) the non-Indian has no access to the tribal court without

the consent of the Indian litigant, (See 25 C.F.R. § 11.22C) and

(2) § 11.24C applies to enforcement of tribal court judgments only.

The C.F.R. provides no means of enforcing the state court judg-

ment by tribal court.

5 See the decision below (Petitioners’ App. A, p. 9a) quoting Pam-to-

Pee, at p. 226 as follows:

"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 the judgment 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 * * *."

5)

subject of that government. The history of the concept

as reviewed by this court in McClanahan v. Arizona State

Tax Comm’n, 411 U. S. 164, 177-178 (1973), also acknowl-

edges that the concept is limited to “when they preserved

their tribal relations.” McClanahan v. Arizona State Tax

Comm’n, 411 U. S. 164, 93 S. Ct. 1257, 1263, 36 L. Ed. 2d

129 (1973). It follows that when an Indian ‘eaves the

reservation to enter commerce with the rest of the state,

he also leaves this preserve for tribal ways and customs.

Tribal self-government no longer applies, not because he

has stepped outside the reservation so much as because he

has freely chosen not to preserve his tribal ways and cus-

toms, and in their place has submitted himself to state

laws. It follows, then, that his submission to state law,

once done, is not retracted by merely stepping back into

the reservation. The consequences of such a submission

are not so easily shed. Thus, the decision below does not

interfere with tribal self-government.’

6 Mescalero Apache Tribe v. Jones, 41! U.S. 145, 93 S.Ct. 1267,

1270, 36 L. Ed. 2d 114, 119, stating:

"* * * Absent express federal law to the contrary, Indians

going beyond reservation boundaries have generally been held

subject to nondiscriminatory state law otherwise applicable to

all citizens of the state.”

7 Petitioners argue that tribal self-government is interfered with

because, in their opinion, the respondent did not avail itself of

available tribal or federal remedies. The court below correctly

found that no such remedies exist. (See Petitioners’ App. A, pp.

6a, 7a, 9a, 10a.) But more importantly, this argument of the peti-

tioners does not address itself to the issue—does execution on reser-

vation property to satisfy a valid state judgment interfere with

tribal self-government. We argue that submission to state law by

leaving the reservation subjects the Indian to state court remedies;

therefore, issues of whether tribal remedies are available or not, are

irrelevant.

6

IT.

Inconsistency with other holdings does not

necessitate granting the writ.

Respondent admits that the decisions cited on pages

14 and 15 of the petition are in conflict with the decision

below. But these decisions, like the petitioners, argue that

mesne processes of the state court require a second juris-

dictional analysis under the Williams case, as if these

processes constitute subject matter questions independent

of the one considered at the outset of the suit. Their

proposed second analysis is in error. To uphold it, is to

in effect void the state judgment which the petitioners ad-

mit, and which this court acknowledges is valid.

st

“

CONCLUSION

For the reasons set forth above, the petition for cer-

tiorari should be denied.

Respectfully submitted,

CiarENcE T. BELUE

Cuarence T. BELUE

Attorney at Law

201 West 4th Street

Hardin, Montana 59034

Counsel for Respondent

January 1977.