Petition — Morigeau v. Larrivee

es

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-

DOUGLAS E. MORIGEAU,

Petitioner,

V.

NOEL K. LARRIVEE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF MONTANA

RICHARD ANTHONY BAENEN

FOSTER DE REITZES

GLENN P. SUGAMELI

1735 New York Avenue, N.W.

Washington, D.C. 20006

(202) 883-9800

Counsel for Petitioner

WILKINSON, CRAGUN & BARKER

Washington, D.C.

Montana Legal Services Assn.

STEVEN L. BUNCH

Helena, Montana

EVELYN CASE STEVENSON

Pablo, Montana

Of Counsel

See al inet oe pata RTT AA BO 0 SE EAN BA AEA ROPER AS

WILSON - EPES PRINTING Co., INC. - 789-0096 - WASHINGTON, D.C. 20001

OPINIONS BELOW ...........................

JURISDICTION .............

QUESTION PRESENTED

SO eee eee eee em ee eeeee

Pe TO i seseemsenee

STATEMENT OF THE CASE

Background ........

Proceedings Below ..............

REASONS FOR GRANTING THE WRIT

i.

II.

III.

IV.

THE DECISION OF THE SUPREME COURT

OF MONTANA INFRINGES ON TRIBAL

Se

THE STATE COURT’S DECISION, IF LEFT

TO STAND, WOULD LEAVE THE TRIBES

VIRTUALLY DEFENSELESS AGAINST UN-

LIMITED STATE EXPANSIONS OF JURIS-

LEE a) EEA SY

THE DECISION WILL DISCOURAGE IN-

DIAN TRIBES FROM INITIALLY CONSENT-

ING TO LIMITED STATE JURISDICTION

OR EXPANDING A PRIOR GRANT OF JUR-

ia cas eA wares cheensctncoceesceee

THE STATE COURT’S DECISION WAS

BASED ON AN ERRONEOUS READING OF

TRIBAL INTENT AND DISREGARDED

FUNDAMENTAL CANONS OF CONSTRUC-

TION ESTABLISHED BY THIS COURT ........

Se SEER SE AE ROR Cn OO

11

ii

INDEX—Continued

APPENDICES: Page

A. Opinion of the Supreme Court of Montana ........ la

B. Order of the District Court of the Fourth

Judicial District, State of Montana ................ 19a

C. Public Law 280 (67 Stat. 588, 18 U.S.C. § 1162,

_ ie tele 5 Seaeenneemnn ier sere 2la

D. Title IV of the Indian Civil Rights Act of 1968

(82 Stat. 78, 25 U.S.C. §§ 1821 to 1826) ......... 25a

E. Mont. Rev. Code Ann. §§ 83-801 to 83-806

(1947), recodified as Mont. Code Ann. §§ 2-1-

Ss at ts) SR nana ee seen nee 29a

F. Tribal Ordinance 36-A (Revised) (Excerpts)... 32a

G. Tribal Ordinance 40-A (Revised) ......................... «84a

H. Teles Gemeanes SOR 2s 38a

+ nee ©

iii

TABLE OF AUTHORITIES

CASES:

Alaska Pacific Fisheries v. United States, 248 U.S.

i a leh a le

Bryan V. Itasca County, 426 U.S. 373 (1976) .........

Carpenter v. Shaw, 280 U.S. 363 (19380) -.............

Cherokee Intermarriage Cases, 203 U.S. 76

RINE ae ERS SS 1S ERS ca Ee A riggs

Choate v. Trapp, 224 U.S. 665 (1912) 2.000020.

Colorado Water Conservation Dist. v. United

States, 424 U.S. 800, rehearing denied, 426 U.S.

Be ESS Re eer a

Enriquez Vv. Superior Court, 115 Ariz. 342, 565

ee ee es I PE ce

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

Jones V. Meehan, 175 U.S. 1 (1899) -....0000eee ee.

Kennerly v. District Court of Montana, 400 U.S.

a, pt GE eer aan ee ct eA RO RnR ae oye 6,.9,

McClanahan v. Arizona State Tax Comm’n., 411

IY I MIE Sk scat rence ckacaschdghinip cain Giana dicbiase

Menominee Tribe of Indians v. United States,

UN re AI UI alii ae

Santa Clara Pueblo v. Martinez, 486 U.S. 49

5 RPEPR ERASE Rice Pret ae OS Ce ae

Schantz v. White Lightning, 502 F.2d 67 (8th Cir.

BG ARS Es POR ie k EOE oe, Se ae

Schantz v. White Lightning, 231 N.W. 2d 812

fo ER | CRATE TI Al ee RE Wega ODE? Sa ee :

Sigana Vv. Bailey, 282 Minn. 367, 164 N.W. 2d 886

9 ARRAS Hi Sewer ce eens COREA Son ae

Smith v. Temple, 82 S.D. 650, 152 N.W. 2d 547

Af PASS SMa ay SE a a tr MEALS a

Squire v. Capoeman, 351 U.S. 1 (1956) 0.000...

The Kansas Indians (Wan-zop-e-ah v. Board of

Comm’rs of the County of Miami), 5 Wall. 737

Bs RRR SR ERRT EA oe i hae CS eS eR

United States v. Santa Fe Pacific R. Co., 314 U.S.

| ERMRREEPpeaerien Ca eCIaRD Stveet ROC Oe Nps ACE CORO ER

Valdez v. Johnson, 68 N.M. 476, 362 P.2d 1004

SESS ES Tei TA Re eae OMEN. WP ERP?

9,10

13

10, 12

14

14

iv

TABLE OF AUTHORITIES—Continued

Page

Washington v. Yakima Indian Nation, 439 U.S.

Ge Et cece ites 7,138

Wauneka Vv. Campbell, 22 Ariz. App. 287, 526 P.2d

1085 (Ct. App. 1974) _... uf, sia 6

Williams v. Lee, 358 U.S. 217 (1959) —.....-2-22200.... 6,9

Worcester v. Georgia, 6 Pet. 515 (1882) ................ 13

STATUTES:

Federal:

Indian Reorganization Act of June 18, 1934,

48 Stat. 984, 25 U.S.C. §§ 461 et seq. .......... 3

Act of August 15, 1953, Pub. L. 83-280, 67

Stat. 588, 18 U.S.C. § 1162, 28 U.S.C. § 1360

(“Public Law 280”) (Appendix C).............. passim

Title IV of the Indian Civil Rights Act of

1968, 82 Stat. 73, 25 U.S.C. §§ 13821 to 1826

5 OAR SA 2, 4, 10

Be ae | RR nt aoe wee a ec mee 2

State:

Idaho Code § 67-5101 (1978) -..........22222.ee 13

Mont. Code Ann. Ch. 6, Tit. 61 (1979) _......... 12

Mont. Rev. Codes Ann. §§ 83-801 to 83-806

(1947), recodified as Montana Code Ann.

§§ 2-1-8301 through 2-1-307 (1979) (Ap-

III TO ici 2,3, 4

Utah Code Ann. § 68-36-15 (1958) _....00000... 10

Wash. Rev. Code § 37.12.010 (1976) 0.0.0.0... 13

Tribal:

Confederated Salish and Kootenai Tribes of

the Flathead Reservation, Montana:

Tribal Ordinance 30-A (Appendix H) ............ 12, 13

Tribal Ordinance 36-A (Revised) (Appendix

|p pe ene enReD S| he Se re as BS FERRE 2,11, 12,18

Tribal Ordinance 40-A a ... 3

Tribal Ordinance 40-A (Revised) (Appendix

RI Saas siosdeic ink seneinbscsiceehelides tighten ee a passim

MISCELLANEOUS:

United States Department of Commerce, Federal

and State Indian Reservations (1974) ................ 13

IN THE

Supreme Court of the United States

OCTOBER TERM, 1979

No. 79-

DouGLAs E. MORIGEAU,

Petitioner,

V.

NOEL K. LARRIVEE,

Respondent.

PETITION FOR A WRIT OF CERTIORARI

TO THE SUPREME COURT OF MONTANA

The petitioner, Douglas E. Morigeau, respectfully prays

that a writ of certiorari issue to review the judgment

and opinion of the Supreme Court of Montana issued

October 12, 1979.

OPINIONS BELOW

The opinion of the Supreme Court of Montana is un-

reported and appears as Appendix A hereto. The order

of the District Court of the Fourth Judicial District of

the State of Montana, in and for the County of Missoula,

is unreported and appears as Appendix B hereto.

JURISDICTION

The opinion of the Supreme Court of Montana was

entered October 12, 1979, with a notation that Mr.

Justice Shea would file a dissent at a later time. When

2

the dissenting opinion was not forthcoming, petitioner

applied for an extension of time within which to file a

petition for a writ of certiorari. Mr. Justice Rehnquist,

in a December 28, 1979, order, extended petitioner’s

time to and including February 22, 1980.1 This Court

has jurisdiction under 28 U.S.C. § 1257(3).

QUESTION PRESENTED

Where a state’s assumption of jurisdiction over In-

dians on a reservation depends on tribal consent, may

a state court expand its jurisdiction to areas in which

the tribe never gave consent by interpreting a limited

tribal grant of consent more broadly than the tribe?

STATUTES INVOLVED

Federal

Act of August 15, 1953, Pub. L. 83-280, 67 Stat. 588, 18

U.S.C. § 1162, 28 U.S.C. § 1860 (Appendix C).

Title IV of the Indian Civil Rights Act of 1968, 82 Stat.

73, 25 U.S.C. §§ 1821 to 1826 (Appendix D).

State .

Montana Rev. Codes Ann. §§ 83-801 to 83-806 (1947),

recodified as Montana Code Ann. §§ 2-1-301 to 2-1-307

(1979) (Appendix E).

Tribal

Confederated Salish and Kootenai Tribes of the Flathead

Reservation, Montana, Tribal Ordinances 36-A (Re-

vised) (Appendix F) and 40-A (Revised) (Appendix

G).

1 Subsequently, on January 16, 1980, petitioner received a letter

from Mr. Justice Shea stating that, in light of other pressing

court business, he would not be filing a dissent in this case.

3

STATEMENT OF THE CASE

Background

The Confederated Salish and Kootenai Tribes of the

Flathead Reservation (the “Tribes”) are organized under

a constitution and bylaws adopted pursuant to the In-

dian Reorganization Act of June 18, 1934, 48 Stat. 984,

25 U.S.C. §§ 461 et. seg. They govern a reservation en-

compassing 1,243,968 acres of land in the state of

Montana.

By the Act of August 15, 1953, Pub. L. 83-280, 67 Stat.

588, 18 U.S.C. § 1162, 28 U.S.C. § 1860 (“Public Law

280”) (App. C), Congress initially extended state crimi-

nal and civil jurisdiction over most Indian country in five

states, and authorized the remaining states, including

Montana, to assume jurisdiction by affirmative legislative

action.

The Montana Legislature in 1963 implemented Public

Law 280 by authorizing the governor by proclamation

to assume such civil or criminal jurisdiction over the

Tribes as the Tribal Council might request.2 On June

30, 1964, the governor accepted Tribal Ordinance 40-A,

dated May 16, 1964, as a limited grant of jurisdiction

by the Tribes. Subsequently, on May 5, 1965, the Tribes

repealed Ordinance 40-A and enacted Ordinance 40-A

(Revised) (App. G). The governor accepted Tribal Ordi-

nance 40-A (Revised) on October 8, 1965.

By Ordinance 40-A (Revised), the Tribes, subject to

certain conditions and limitations designed to prevent the

exercise by the state of jurisdiction in excess of the

grant,’ consented to the extension of state laws and juris-

diction over Indians within the Reservation

2 Mont. Rev. Codes Ann. §§ 83-801 to 83-806 (1947), recodified

as Mont. Code Ann. §§ 2-1-301 to 2-1-307 (1979) (App. E.).

3 See App. G at 35a-36a.

4

“to the extent such laws and jurisdiction relate to

the subjects following:

“(a) Compulsory School Attendance

“(b) Public Welfare

“(¢e) Domestic Relations (except adoptions)

“(d) Mental Health, Insanity, Care of the Infirm,

Aged and Afflicted

“(e) Juvenile Delinquency and Youth Rehabilitation

“(f) Adoption Proceedings (With consent of the

Tribal Court)

“(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 within the Flathead Indian Reserva-

tion.” (App. G; emphasis added. )

In 1968, Congress amended Public Law 280 to require

that any further extensions of jurisdiction by any state

over Indians in Indian country be conditioned upon tribal

consent,* thus placing all such extensions of jurisdiction

on essentially the same basis as the State of Montana’s

assumption of jurisdiction over the Tribes.®

4 Title IV of the Indian Civil Rights Act of 1968, 82 Stat. 73, 25

U.S.C. §§ 1821, 1822 (App. D.).

5The 1968 Indian Civil Rights Act requires tribal consent to

be expressed through a referendum of tribal members, 25 U.S.C.

§ 1326 (App. D.), while the 1963 Montana law sought the consent

of the Tribes’ “tribal council or other governing body.” Mont.

Code Ann. § 83-802 (App. E). For purposes of the issue here pre-

sented, however, the precise manner of giving tribal consent is not

important.

5

Proceedings Below

Petitioner is an enrolled member of the Tribes. He

was involved in an automobile accident with the respond-

ent, a non-Indian, on February 22, 1978, at the inter-

section of Montana Highways 200 and 212 on the Flathead

Reservation. Respondent filed suit for damages in state

court. A default judgment was entered on April 20, 1978,

after petitioner failed to respond to a summons and com-

plaint which were served on him at his residence located

on tribal trust land on the Reservation. Subsequent pro-

ceedings, including the state district court’s refusals to

set aside the default judgment and petitioner’s appeal to

the Supreme Court of Montana on grounds of lack of

jurisdiction, are summarized in the Supreme Court of

Montana’s opinion. (App. A at 2a-6a.)

The Supreme Court of Montana’s decision sustaining

state court jurisdiction rests on the court’s interpretation

of clause 1(h) of Tribal Ordinance 40-A (Revised)

(App. G at 35a) as constituting tribal consent to state

jurisdiction over tort suits brought by non-Indians against

tribal members arising from motor vehicle accidents on

the Reservation. This interpretation directly contradicts

the Tribes’ interpretation that the consent to state juris-

dicion in clause 1(h) was intended by the Tribes to re-

late only to certain specific state safety laws, not to

common law tort actions. The Montana Supreme Court,

in reaching its conclusion, relied on its view of the intent

of the Tribal Council at the time it enacted the ordi-

nance.”

6 The Tribes conveyed their interpretation to the Supreme Court

of Montana in an amicus brief filed with that court.

™Neither the Montana Supreme Court nor the district court,

however, held any hearing to he!p it determine what this intent

in fact was.

6

REASONS FOR GRANTING THE WRIT

I, THE DECISION OF THE SUPREME COURT OF

MONTANA INFRINGES ON TRIBAL SOVEREIGNTY.

Absent full compliance with the requirements of the

governing Acts of Congress,* states may not exercise any

jurisdiction which infringes on tribal authority over res-

ervation affairs, even where one of the parties involved

is not an Indian.® This prohibition clearly applies to

state jurisdiction over tort actions arising from reserva-

tion automobile accidents, especially where, as here,!

tribal courts exercise such jurisdiction."

Under Montana’s implementation of Public Law 280,

it could assume only such jurisdiction over Indians on the

Flathead Reservation as the Tribes consented to. (App.

8 See Kennerly v. District Court of Montana, 400 U.S. 423 (1971).

® Williams v. Lee, 358 U.S. 217, 223 (1959). In a series of de-

cisions by this Court, “[t]ribal courts have repeatedly been recog-

nized as appropriate forums for the exclusive adjudication of dis-

putes affecting personal and property interests of both Indians

and non-Indians.” Santa Clara Pueblo v. Martinez, 436 U.S. 49, 65

(1978).

10 The court below recognized the extensive exercise of jurisdic-

tion of the Tribal Court. Since 1975, 460 non-Indian plaintiffs have

brought tort and contract actions—including automobile accident

claims—against Indian defendants in Tribal Court. App. A. at 15a-

16a.

11 Two recent state appellate court decisions have held that state

courts lacked jurisdiction over a non-Indian’s tort claim against

an Indian arising out of a motor vehicle accident on a state highway

within an Indian Reservation, even though the record did not

indicate that tribal courts provided a forum. Enriquez v. Superior

Court, 115 Ariz. 342; 565 P.2d 522 (Ct. App. 1977); Schantz v.

White Lightning, 231 N.W. 2d $12 (N.D. 1975). See also Schantz

Vv. White Lightning, 502 F.2d 67 (8th Cir. 1974); Wauneka v.

Campbell, 22 Ariz. App. 287, 526 P.2d 1085 (Ct. App. 1974) ; Sigana

v. Bailey, 282 Minn. 367, 164 N.W. 2d 886 (1969); Smith v. Temple,

82 S.D. 650, 152 N.W. 2d 547 (1967) ; Valdez v. Johnson, 68 N.M.

476, 362 P.2d 1004 (1961).

7

E.) Similarly, since 1968, no state has been allowed to

expand its jurisdiction over Indians on reservations with-

out the consent of the affected tribe. (App. D). The

Supreme Court of Montana infringed on tribal sover-

eignty by interpreting a limited grant of consent more

broadly than the tribal government which gave the con-

sent. By doing so, it effectively eliminated the require-

ment, in this instance imposed by the Montana legislature,

for the Tribes to consent to the state’s assumption of

jurisdiction.** Even more serious, the state court simply

ignored the interpretation which the Tribes proffered as

to the meaning of the tribal ordinance, i.e., what the

Tribal Council’s intent had been when Ordinance 40-A

(Revised) was enacted, and substituted its own judgment

for that of the Tribes. For a state court to so contradict

a tribal interpretation and make itself the final arbiter

of the meaning of tribal legislation seems as flagrant a

violation of triba: sovereignty as can be imagined. That

function, in the case of a disagreement over tribal intent,

cannot properly be undertaken by the states any more

than states should contradict the federal courts’ inter-

pretations of federal laws, or of Congress’ intent in

enacting them.’* If states are free to contradict tribes

on questions of what the tribal legislatures intended, the

12In Washington v. Yakima Indian Nation, 439 U.S. 468 (1979),

this Court reiterated its adherence “to the principle that the pro-

cedural requirements of Pub. L. 280 must be strictly followed” (id.

at 484), and specifically held “that any option State can condition

the assumption of full jurisdiction on the consent of an affected

tribe.” Id. at 495.

18 Although the Montana Supreme Court noted that “the sover-

eign state of Montana is entitled in the least to an equal say in the

interpretation of an agreement to which its full consent was neces-

sary” (App. A at 17a), it was the state legislature which, by

accepting Ordinance 40-A (Revised), chose to make its jurisdiction

dependent on the meaning of a tribal ordinance, enacted by the

tribal legislature. It therefore should be bound by the tribal inter-

pretation.

8

tribes would be carrying out their legislative functions,

as sovereigns, merely at the pleasure of the states.”

Indeed, the Tribal Council in Ordinance 40-A (Revised)

sought to protect the Tribes against precisely the type

of infringement on tribal sovereignty as has occurred

here. The Ordinance protected tribal jurisdiction through

provisions limiting state jurisdiction only to that which

was expressly granted ** and voiding the entire grant if

it was “held to extend a jurisdiction more extensive than

that set forth herein.” (App. G at 36a.) To allow to

stand a state court decision which ignored the Tribes’

interpretation of the scope of the ordinance would gut

the effect of these carefully constructed savings clauses

and allow the state to assume jurisdiction more extensive

than the Tribes intended.

Il. THE STATE COURT’S DECISION, IF LEFT TO

STAND, WOULD LEAVE THE TRIBES VIRTU-

ALLY DEFENSELESS AGAINST UNLIMITED

STATE EXPANSIONS OF JURISDICTION.

The ruling of the Montana Supreme Court, if not re-

viewed and reversed by this Court, would allow the state

courts to proceed further to transform a limited consent

14 At the very least, state courts should be precluded from con-

tradicting a tribe’s reasonable interpretation of its own ordinance.

Here, the tribal interpretation clearly is reasonable. (See pp. 11-

14, infra.) This case therefore does not involve an attempt by a

tribe to escape from jurisdiction it clearly granted, perhaps by

adopting some excessively limited interpretation of its earlier

grant. In this case, therefore, the state court should be allowed at

most to inquire into the reasonableness of the Tribes’ interpretation.

If it finds it to be at all reasonable or supportable, it should not be

permitted to inquire further, and should be bound by the tribal

interpretation.

15 Ordinance 40-A (Revised) provides: “All jurisdiction of the

Confederated Tribes . . . and of the Federal Government .. . to

the extent not expressly transferred by Subsection 1 hereof, remains

in the Confederated Tribes and in the Federal Government re-

spectively as if this ordinance had not been adopted.” (App.

G at 36a.)

9

to state jurisdiction into a virtual carte blance embracing

many areas that the Tribes never intended be covered.

If the state court unilaterally can contradict the Tribes’

interpretation of Ordinance 40-A (Revised) and decide

that the grant of jurisdiction over the “[o]peration of

Motor Vehicles upon the Public Streets, Alleys, Roads

and Highways” includes automobile tort actions, could it

not also take jurisdiction over probate proceedings in-

volving an Indian killed while operating a motor vehicle

on a public highway? Similarly, could not the grant of

jurisdiction, in clause (b) of Ordinance 40-A (Revised),

over “Public Welfare” be construed to include not just

public assistance programs, but a vast variety of matters

involving promotion of public welfare? And while the

accident in this case happened to be between an Indian

and non-Indian, nothing in the ruling or reasoning of

the Montana Supreme Court would preclude future ex-

pansions of jurisdiction where only Indians were involved.

The possibilities for abuse here are virtually unlim-

ited,** and abuses surely would occur. Twice already

this Court has issued per curiam rejections of decisions

of the Supreme Court of Montana which had violated

Wiliams v. Lee, 358 U.S. 217 (1959), by incorrectly

construing legislation to expand state jurisdiction at the

expense of tribal sovereignty. In Kennerly v. District

Court of Montana, 400 U.S. 423 (1971), the Court sum-

marily vacated and remanded a state decision on the

grounds that it ignored the affirmative legislative action

prerequisite to Public Law 280 jurisdiction. In Fisher v.

16 The potential for abuse at the lower state court level is par-

ticularly great. In the instant case, for example, the state district

court reasoned that it had jurisdiction over citizens of the State of

Montana, and therefore also over Indian citizens, because “[t]he

equality of our constitution, both state and federal, abhor any

discrimination because of race or any showing of favoratism be-

cause of race.” (App. B at 20a.) The Montana Supreme Court,

while affirming the lower court, at least did not adopt the same oft-

discredited reasoning.

10

District Court, 424 U.S. 382 (1976), this Court reversed

another decision that incorrectly interpreted a federal

statute to confer ‘urisdiction over Indian adoptions upon

the Montana courts. Jd. at 388-89. Even more important

is Fisher’s rejection of the state supreme court’s holding

that tribal consent to limited concurrent jurisdiction over

certain adoptions constituted broad acquiescence to state

court jurisdiction over all adoptions.

The fears expressed above would be equally justified

with respect to further assumptions of jurisdiction by

any state under Title IV of the Indian Civil Rights Act,

25 U.S.C. §§ 1821-26, under which, since 1968, all states

have been allowed to expand jurisdiction over Indians

only with tribal consent. If state courts are not bound

by a tribe’s interpretation of its own consent, any lim-

ited grant of jurisdiction by a tribe could be seized upon

by a state and used to open the door to a much wider

assumption of jurisdiction.

Moreover, the lower court’s decision here, if left to

stand, would force the Tribes repeatedly to turn to this

Court for protection of their tribal sovereignty. As in

Kennerly and Fisher, the Supreme Court of Montana

again has sought improperly to expand state jurisdiction

at the expense of tribal government. In Colorado River

Water Conservation Dist. v. United States, 424 U.S. 800,

812-13, rehearing denied, 426 U.S. 912 (1976), this

Court assured Indian tribes that, since final state court

decisions affecting federally protected Indian water rights

are reviewable by this Court, subjection to legal chal-

lenge in state court would not imperil such rights. Here,

unless this Court now exercises its review function, the

Tribes, and other tribes in many other states, having no

other available remedy in the face of improper state

court “interpretations” of tribal consents to jurisdiction,

17 Montana does not presently provide for a retrocession pro-

cedure under which it must return jurisdiction upon tribal request.

Cf. Utah Code Ann. § 68-36-15 (1953).

ill

will have to come before this Court time and time again

for rulings on the meaning of specific tribal grants of

jurisdiction.

Ill. THE DECISION WILL DISCOURAGE INDIAN

TRIBES FROM INITIALLY CONSENTING TO

LIMITED STATE JURISDICTION OR EXPANDING

A PRIOR GRANT OF JURISDICTION.

In addition, if the state court’s decision stands, Tribes

throughout the United States will be dissuaded from

consenting to limited state jurisdiction for fear that a

limitec grant of jurisdiction will be twisted by state

courts and expanded to other areas, all under the guise

of “interpreting” the tribal grant of consent. Nor will

tribes wish to expand any limited jurisdiction previously

given. Unless the Montana court is instructed to follow

the Tribes’ interpretation of its consent, the chilling ef-

fect of the threat of state expansion of jurisdiction will

be pervasive. With tribal consent a prerequisite to all

further extensions of state jurisdiction, such jurisdiction

could be frozen at the present level, ending the limited

consents which Congress sought to encourage by the 1968

amendment to Public Law 280.

IV. THE STATE COURT’S DECISION WAS BASED ON

AN ERRONEOUS READING OF TRIBAL INTENT

AND DISREGARDED FUNDAMENTAL CANONS

OF CONSTRUCTION ESTABLISHED BY THIS

COURT.

The “legislative history” of Ordinance 40-A (Revised)

clearly demonstrates that the Tribes’ consent to concur-

rent state highway jurisdiction related only to specific

state safety laws previously incorporated into the Tribes’

own official Code of Ordinances, Ordinance 36-A (Re-

vised) (App. F), and did not extend to tort suits arising

out of automobile accidents on the Reservation.

12

In 1959, after state representatives disclaimed all re-

sponsibility for enforcing traffic violations by Indians on

the Reservation, the Tribes enacted Ordinance 30-A

(App. H), adopting as part of the Tribes’ Official Code

of Ordinances lengthy sections from the chapters of state

law dealing with “Highway Patrol,” “Obstructions,”

“Speed and Traffic Regulations,” “Uniform Accident Re-

porting Act,” and “Uniform Act Regulating Traffic and

Highways.” '* The actual language of these sections was

later incorporated into Ordinance 36-A (Revised) (App.

F), under the chapter establishing the Code of Indian

Tribal Offenses.

Subsequently, when the state enacted legislation allow-

ing the Tribes to grant it whatever jurisdiction the

Tribes consented to,'’*® the Tribal Council continued to dis-

play a fundamental concern with highway safety, while

also expressing the desire to avoid the “great burden on

the resources of our reservation if [the Tribes] had to

foot the bill” for such problems as “compulsory school

attendance, public assistance, domestic relations, mental

illness, juvenile delinquency, dependent children, and

enforcement of the law on the highways.”

18 Significantly, Ordinance 30-A omitted any reference to state

provisions relating to adequate security for damages from accidents

and establishing liability of vehicle owners for damages inflicted

by other drivers of their vehicles. See Mont. Code Ann. Ch. 6,

Tit. 61 (1979), entitled “Responsibility of Vehicle Users and

Owners” and comprised of sections on “Financial Responsibility,”

“Liability of Vehicle Owner,” and “Mandatory Liability Protection.”

19 The ordinances passed prior to this could not unilaterally con-

sent to state jurisdiction. Kennerly v. District Court of Montana,

400 U.S. 423 (1971).

»0 As indicated by the minutes of Council meetings in 1963, the

Council members repeatedly discussed the need to enforce safety

laws curbing “drunkenness,” “recklessness,” and speeding in con-

nection with the possible extension of concurrent state jurisdiction

over the “operation of motor vehicles upon the public streets, alleys,

road and highways.” Amicus Brief at 27-28, App. A-IX-10.

*1 Id. at 23-24, App. A-IX-1 to 4. (Emphasis added.)

13

Ultimately the Tribes, by Ordinance 40-A (Revised),

agreed to grant the state concurrent civil jurisdiction in

specific enumerated areas, as well as general criminal

jurisdiction. (App. G.) Clause 1(h) of the Ordinance, in

granting the state concurrent jurisdiction as to the “op-

eration of motor vehicles” by Indians on the Reservation,

was thus intended by the Tribal Council to refer to the

specific sections of state law governing traffic law en-

forcement which already had been incorporated into

tribal law as part of Ordinances 30-A and 36-A

(Revised) .””

Finally, to the extent the precise jurisdiction consented

to in Ordinance 40-A (Revised) is ambiguous, the Mon-

tana decision also conflicts with the firmly established

rule, dating back well over 100 years, that ambiguities in

legislation, treaties and documents be construed in favor

of retained tribal sovereignty.** Questions of ‘the scope

22 See Amicus Brief, App. A-VI-1 to 28. The shorthand reference

in clause 1(h) was necessary because the traffic laws referred to,

as reprinted in Ordinance 36-A (Revised), run some 69 pages.

The actual language used in 40-A (Revised) came from the

recent Public Law 280 mandatory jurisdiction statutes of the

neighboring states of Washington and Idaho, covering virtually

the same subject matter as Ordinance 40-A (Revised). See Wash.

Rev. Code § 37.12.010 (1976) and Idaho Code § 67-5101 (1973).

See also Washington v. Yakima Indian Nation, 439 U.S. 463 (1979).

Because the language on motor vehicles used in the Washington

and Idaho statutes is so similar to clause 1(h) of Ordinance 40-A

(Revised), the ruling of the Montana Supreme Court would apply

to those statutes as well, thus affecting thousands of Indians on the

17 reservations covering over 2.4 million acres in the three states.

U.S. Department of Commerce, Federal and State Indian Reserva-

tions (1974).

°3 F'.9., Worcester Vv. Georgia, 6 Pet. 515, 580-82 (1832) (McClean,

J., concurring); The Kansas Indians (Wan-zop-e-ah v. Board of

Comm'rs of the County of Miami), 5 Wall. 737, 760 (1867); Jones

v. Meehan, 175 U.S. 1, 11-12 (1899) ; Cherokee Intermarriage Cases,

203 U.S. 76, 94 (1906) ; Choate v. Trapp, 224 U.S. 665, 675 (1912) ;

Alaska Pacific Fisheries v. United States, 248 U.S. 78, 89 ( 1918) ;

Carpenter v. Shaw, 280 U.S. 368, 366-67 (1930); United States v.

14

of the exclusive jurisdiction of tribal courts go to the

very heart of tribal sovereignty. Since the reference in

Ordinance 40-A (Revised) to the “Operation of Motor

Vehicles Upon the Public Streets” is hardly an unam-

biguous reference to tort suits, the Supreme Court of

Montana should have interpreted the ambiguity in favor

of the Indians. Its failure to do so, in light of the re-

quirements established by this Court, was clearly in error.

CONCLUSION

For the foregoing reasons, the petition for a writ of

certiorari should be granted. Alternatively, petitioner

suggests that this Court summarily reverse the decision

of the Supreme Court of Montana.

Respectfully submitted,

Of Counsel

RICHARD ANTHONY BAENEN

FOSTER DE REITZES

GLENN P. SUGAMELI

1735 New York Avenue, N.W.

Washington, D.C. 20006

(202) 833-9800

Counsel for Petitioner

WILKINSON, CRAGUN & BARKER

Washington, D.C.

Montana Legal Services Assn.

STEVEN L. BUNCH

Helena, Montana

EVELYN CASE STEVENSON

Pablo, Montana

Sante Fe Pacific R. Co., 314 U.S. 389, 353-54 (1941); Squire v.

Capoeman, 351 U.S. 1, 6-7 (1956); Menominee Tribe of Indians v.

United States, 391 U.S. 404, 406 n.2 (1968) ; McClanahan v. Arizona ~

State Tax Comm’n., 411 U.S. 164, 173-75 and n.13 (1978) ; Bryan v.

Itasca County, 426 U.S. 373, 392-93 (1976).

Appendices

la

APPENDIX A

IN THE SUPREME COURT

OF THE STATE OF MONTANA

1979

No. 14586

NOEL K. LARRIVEE,

Plaintiff and Respondent,

-Vs-

DOUGLAS E. MORIGEAU,

Defendant and Appellant.

Appeal from: District Court of the Fourth Judicial Dis-

trict, Honorable E. Gardner Brownlee,

Judge presiding.

Counsel of Record:

For Appellant:

Steven Bunch, Legal Services, argued, Helena, Mon-

tana

For Respondent:

Smith, Connor, Van Valkenburg and Larrivee, Mis-

soula, Montana

Noel K. Larrivee argued, Missoula, Montana -

For Amicus Curiae:

Victor F. Valgenti argued, Missoula, Montana

Evelyn M. Stevenson, Pablo, Montana

Submitted: April 27, 1979

Decided: Oct. 12, 1979

Filed: Oct. 12, 1979

/s/ Thomas J. Kearney

Clerk

2a

Mr. Justice John C. Sheehy delivered the Opinion of the

Court.

This 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 ap-

pears 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 per-

sonally 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, de-

livered 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 18,

1978, the tribal attorney delivered the summons and

3a

complaint to Morigeau’s attorney, but she was not au-

thorized 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 Mori-

geau’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 further 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

bi not within the jurisdiction of the state District

ourt.

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 de-

fendant had been served. The motion to dismiss the

action contended that the District Court lacked subject

matter jurisdiction because the defendant was an en-

rolled member of the Confederated Salish and Kootenai

Tribes, living within the exterior boundaries of the Flat-

head Indian Reservation.

On May 11, 1978, oral argument was heard, evidence

taken, and thereupon the District Court denied the mo-

tion to set aside the default judgment.

4a

Defendant did not appeal from the order denying his

motion to vacate the default judgment. Instead, on Au-

gust 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 defend-

ant 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 pro-

vides 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 re-

sponsibilities 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.”

Appeal from the order of the District Court of October

11, 1978, denying the motion to dismiss for lack of sub-

ject matter jurisdiction was taken by Morigeau on No-

vember 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 Dis-

trict Court does not have subject matter jurisdiction in

this case.

5a

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 mo-

tions have merit, since timely appeal was not taken from

the denial of such motions, this Court is without juris-

diction 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 (1977), ——- 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 affi-

davits 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

‘» “enying that motion. We do not consider therefore

thai 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 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

6a

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 opera-

tion 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 Publica-

tion 90-284, 82 Stat. 73, 78, 25 U.S.C. 1821, 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

Ta

tort claims arising from highway accidents occurring

within the exterior boundaries of the Flathead Reserva-

tion.

« The pertinent provisions of Tribal Ordinance 40-A (Re-

vised) adopted by the Tribal Council of the Confederated

Salish and Kootenai Tribes, is as follows:

“Be it enacted by the Tribal Council of the Con-

federated Salish and Kootenai Tribes of the Flat-

head Reservation, Dixon, Montana:

“That Chapter 1, § 2 Jurisdiction, of the official code

of ordinances be and the same is hereby amended

to add subsections 1 and 2 of this ordinance follow-

ing paragraph 8 to read as follows:

“Subsection 1. Subject to the conditions and limita-

tions 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

“*(e) Domestic Relations (exception adoptions)

““(d) Medical Health, Insanity, Care of the In-

firm, Aged and Afflicted

““(e) Juvenile Delinquency and Youth Re-

habilitation

“*(f) -Adoption Proceedings (With consent of

the Tribal Court)

““(g) Abandoned, Dependent, Neglected, Or-

phaned or Abused Children

8a

““(h) Operation of Motor Vehicles upon the

Public Streets, Alleys, Roads and Highways

“*(j) All Criminal Laws of the State of Mon-

tana; 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 mat-

ters 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 fall-

ing within the jurisdiction of the state or fed-

eral 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.

“(¢e) This ordinance is subject to possible refer-

endum 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 gov-

ernment of the United States Criminal Code,

to the extent not expressly transferred by Sub-

section 1 hereof, remains the Confederated

Tribes and in the federal government respective

9a

to the same extent as if this ordinance had not

been adopted.

“(e) If any provision of the act of the Mon-

tana Legislature of February 27, 1963 Laws of

Montana 1963, Vol. 1, Chapter 81, or of this

ordinance shall be held invalid, or if this or-

dinance 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 be-

ginning.” (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 Hon-

orable 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

governor of the State of Montana, I, Tim Babcock,

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 crimi-

nal and civil jurisdiction as previously described shall

be in full force and effect.” (Emphasis added.)

The Montana legislative action authorizing the gover-

nor 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.

10a

For any viewpoint of construction, Tribal Ordinance

40-A (Revised), as accepted and proclaimed by the gov-

ernor of Montana, includes a broad grant of concurrent

jurisdiction. The key language is that “[t]he laws and

jurisdiction in the State of Montana, including the ju-

dicial svstem of the State” are extended to “(h) Opera-

tion 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 ve-

hicles and not civil jurisdiction. Nothing can be found

within the tribal ordinance consenting to state jurisdic-

tion 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 “crimi-

nal laws of the State of Montana”. However, the legisla-

tive 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 with-

in incorporated cities and towns.”

Less than a year later on May 5, 1965, Tribal Ordi-

nance 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

lla

grant of concurrent jurisdiction to all the laws of the

State of Montana, both civil and criminal. That par-

ticular subdivision was amended so that only criminal

laws of the State of Montana were included in sub-

division (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.

It is also obvious from the history of the act that the

whole subject of Tribal Ordinance 40-A, is a controversial

one on the reservation. We noted its stormy progress in

State ex rel. McDonald v. District Ct. of Fourth J. D.

(1972), 159 Mont. 156, 496 P.2d 78, 80, where we said:

“Tribal consent to the assumption of criminal juris-

diction by the state courts of Montana over Indians

committing crimes on the Flathead Indian Reserva-

tion was granted by the enactment of Tribal Ordi-

nance 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 original 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 Reso-

lution 1973 was enacted expressly rescinding Tribal

Ordinances 40-A and 40-A (Revised). There is uo

evidence that this Tribal Resolution was ever trans-

mitted 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

12a

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 ex-

tend the time limit for withdrawal from state juris-

diction for an additional year after October 7, 1967,

and withdrawing its consent to such state jurisdic-

tion. It further provided that this Tribal Resolu-

tion 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 con-

sent 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 Con-

current Jurisdiction’. The record discloses no fur-

ther 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 con-

sent 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

prociamation. Such a withdrawal has not occurred.

Morigeau and amicus contend flatly that Tribal Ordi-

nance 40-A (Revised) does not extend state jurisdiction

in tort actions arising from the operation of motor vehi-

cles on the highway. They argue (1) the Tribal Court

has exclusive jurisdiction when a non-Indian sues an

Indian on a reservation-based claim; (2) that the tribes

agreed only to limited concurrent state civil jurisdiction

13a

not including tort claims of the kind here in question;

(3) tribal interpretation of Tribal Ordinance 40-A (Re-

vised) is against concurrent jurisdiction; and (4) con-

struction 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 exclu-

sive 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 Flat-

head Indian Reservation, after the cession under Pub.L.

83-280, has 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 Con-

federated 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 Morigea. and amicus

is that assumption of the State of civil jurisdiction in

this case would constitute an infringement on the tribes

of self-government. Again, this argument overlooks the

point that the Confederated Salish and Kootenai Tribes

granted and the State assumed civil and criminal juris-

diction 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

144

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 ineffectve 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 ac-

companying responsibilities which, to make the system

workable, must also be faced and accepted.

What we have said in the foregoing paragraphs con-

cerning 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, consti-

tutes an infringement upon tribal sovereignty. There

remains for discussion the claim of Morigeau and amicus

that tribal interpretation of Tribal Ordinance 40-A (Re-

vised) is against state court jurisdiction.

In support of their contention, Morigeau and amicus

point to our holding in Security State Bank v. Pierre

(1973), 162 Mont. 298, 300, 511 P.2d 325, 327. There

we said, quoting State ex rel. Iron Bear v. District Court

(1973), 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 pre-

15a

empted 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 pre-

empted 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 with-

in the state’s borders.

With respect to the second Jron Bear test, it is true

that the assumption of either criminal or civil jurisdic-

tion by the state of matters arising within the exterior

boundaries of the Flathead Indian Reservation constitutes

an interference with the powers of self-government con-

ferred 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. 838-280 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 Jron 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 asso-

ciate, and two parttime associate judges; the Tribal

Court has adjudicated claims arising from automobile

accidents involving non-Indians 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

1 BEN Dy Ae nt SOT eT

16a

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 re-

lating 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 exercis-

ing concurrent jurisdiction in these matters, insofar as

they are covered by Tribal Ordinance 40-A (Revised).

The Tribal Ordinance itself specifically speaks of concur-

rent jurisdiction and it is important to note that Tribal

Ordinance 40-A (Revised) includes the provisions 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.

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 (Re-

vised), it is acting concurrently, and not exclusively.

Both Morigeau and amicus point to Kennerly v. Dis-

trict Court of Montana (1971), 400 U.S. 4238, 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 Reserva-

tion between an Indian member of the tribes residing on

the Reservation and a nonmember bank. Such a commer-

cial 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

17a

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 Ordi-

nance 40-A (Revised).

Abstention, Morigeau contends, would reduce “inter-

governmental friction” likening the “competing interests”

both of the state and the tribes to a “Pullman-type ab-

stention situation” (Railroad Comm’n v. Pullman Co.

(1941), 312 U.S. 496, 61 S.Ct. 643, 85 L.Ed.2d 971).

Morigeau 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 jurisdic-

tional question to the Appellate Court of the Northern

Cheyenne Tribe for decision.

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 en-

titled 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.

18a

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 Flat-

head Indian Reservation. This holding has no reference

to the reasons cited by the District Court for upholding

jurisdiction.

Affirmed.

/s/ John C. Sheehy

Justice

We Concur:

/s/ Frank I. Haswell

Chief Justice

/s/ Gene B. Daly

/s/ John Conway Harrison

Justices

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

later time.

19a

APPENDIX B

IN THE DISTRICT COURT

OF THE FOURTH JUDICIAL DISTRICT

OF THE STATE OF MONTANA

IN AND FOR THE COUNTY OF MISSOULA

No. 47644/14

[Filed Oct. 11, 1978]

NOEL K. LARRIVEE,

Plaintiff,

—vs—

DOUGLAS E. MORIGEAU,

Defendant.

ORDER

The essence of this action is a denial by the defendant

of this courts jurisdiction to render judgment against

him.

The defendant alleges he is a member of the Confeder-

ated Salish and Kootenai Tribes and that he resides on

the Flathead Indian Reservation. He further alleges that

the accident in question took place on a public highway

built and maintained by the State and Federal govern-

ment and lying within the boundaries of the Flathead

Indian Reservation.

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 jurisdic-

20a

tion. The Federal Courts will not take the action holding

that there is no diversity of citizenship, a3 there is not.

The simple fact is that the defendant desires to be re-

lieved 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 because of race.

The defendant is a citizen of the State of Montana

and subject to the jurisdiction of its courts.

The motion to vacate and dismiss is denied, the judg-

ment stands.

Dated this 10th day of October, 1978.

/s/ E. Gardner Brownlee

STATE OF MONTANA )

) 8s.

COUNTY OF MISSOULA )

I, LEA D. LaFRINIERE, Clerk of the District Court

of the Fourth Judicial District of the State of Montana

in and for the County of Missoula do hereby certify this

[illegible].

WITNESS MY HAND and the Seal of this Court this

24th day of January, 1980.

: LEA D. LAFRINIERE

Clerk

By /s/ Bonnie J. Henri

Deputy

21a

APPENDIX C

PUBLIC LAW 280

(67 Stat. 588, 18 U.S.C. § 1162, 28 U.S.C. § 1360)

AN ACT

To confer jurisdiction on the States of California, Minne-

sota, Nebraska, Oregon, and Wisconsin, with respect

to criminal offenses and civil causes of action com-

mitted or arising on Indian reservations within such

States, and for other purposes.

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress as-

sembled, That chapter 53 of title 18, United States Code,

is hereby amended by inserting at the end of the chapter

analysis preceding section 1151 of such title the following

new item:

“1162. State jurisdiction over offenses committed by or

against Indians in the Indian country.”

SEC. 2. Title 18, United States Code, is hereby

amended by inserting in chapter 53 thereof immediately

after section 1161 a new section, to be designated as sec-

tion 1162, as follows:

“$1162. State jurisdiction over offenses committed by

or against Indians in the Indian country

“(a) Each of the States listed in the following table

shall have jurisdiction over offenses committed by or

against Indians in the areas of Indian country listed

opposite the name of the State to the same extent that

such State has jurisdiction over offenses committed else-

where within the State, and the criminal laws of such

22a

State shall have the same force and effect within such

Indian country as they have elsewhere within the State:

“State of Indian country affected

California.......... All Indian country within the State

Minnesota.......... All Indian country within the State, except the Red

Lake Reservation

Nebraska........... All Indian country within the State

| SERRE All Indian country within the State, except the

Warm Springs Reservation

Wisconsin.......... All Indian country within the State, except the

Menominee Reservation

“(b) Nothing in this section shall authorize the aliena-

tion, encumbrance, or taxation of any real or personal

property, including water rights, belonging to any In-

dian or any Indian tribe, band, or community that is

held in trust by the United States or is subject to a

restriction against alienation imposed by the United

States; or shall authorize regulation of the use of such

property in a manner inconsistent with any Federal

- treaty, agreement, or statute or with any regulation made

pursuant thereto; or shall deprive any Indian or any

Indian tribe, band, or community of any right, privilege,

or immunity afforded under Federal treaty, agreement,

or statute with respect to hunting, trapping, or fishing

or the control, licensing, or regulation thereof.

“(ce) The provisions of sections 1152 and 1153 of this

chapter shall not be applicable within the areas of Indian

country listed in subsection (a) of this section.”

SEC. 3. Chapter 85 of title 28, United States Code,

is hereby amended by inserting at the end of the chapter

analysis preceding section 1331 of such title the follow-

ing new item:

“1360. State civil jurisdiction in actions to which In-

dians are parties.”

SEC. 4. Title 28, United States Code, is hereby

amended by inserting in chapter 85 thereof immediately

a at a a I a ti

23a

after section 1359 a new section, to be designated as sec-

tion 1360, as follows:

“$ 1360. State civil jurisdiction in actions to which In-

dians are parties

“(a) Each of the States listed in the following table

shall have jurisdiction over civil causes of action between

Indians or to which Indians are parties which arise in

the areas of Indian country listed opposite the name of

the State to the same extent that such State has juris-

diction over other civil causes of action, and those civil

laws of such State that are of general application to pri-

vate persons or private property shall have the same

force and effect within such Indian country as they have

elsewhere within the State:

“State of Indian country affected

California.......... All Indian country within the State

Minnesota.......... All Indian country within the State, except the Red

Lake Reservation

Nebraska........... All Indian country within the State

Oregon............... All Indian country within the State, except the

Warm Springs Reservation

Wisconsin.......... All Indian country within the State, except the

Menominee Reservation

“(b) Nothing in this section shall authorize the aliena-

tion, encumbrance, or taxation of any real or personal

property, including water rights, belonging to any_Indian

or any Indian tribe, band, or community that is held in

trust by the United States or is subject to a restriction

against alienation imposed by the United States; or shall

authorize regulation of the use of such property in a

manner inconsistent with any Federal treaty, agree-

ment, or statute or with any regulation made pursuant

thereto; or shall confer jurisdiction upon the State to

adjudicate, in probate proceedings or otherwise, the

ownership or right to possession of such property or any

interest therein.

24a

“(¢) Any tribal ordinance or custom heretofore or

hereafter adopted by an Indian tribe, band, or community

in the exercise of any authority which it may possess

shall, if not inconsistent with any applicable civil law

of the State, be given full force and effect in the deter-

mination of civil causes of action pursuant to this

section.”

SEc. 5. Section 1 of the Act of October 5, 1949 (63

Stat. 705, ch. 604), is hereby repealed, but such repeal

shall not affect any proceedings heretofore instituted

under that section.

Sec. 6. Notwithstanding the provisions of any En-

abling Act for the admission of a State, the consent of the

United States is hereby given to the people of any State

to amend, where necessary, their State constitution or

existing statutes, as the case may be, to remove any legal

impediment to the assumption of civil and criminal juris-

diction in accordance with the provisions of this Act:

Provided, That the provisions of this Act shall not be-

come effective with respect to such assumption of juris-

diction by any such State until the people thereof have

appropriately amended their State constitution or statutes

as the case may be.

Sec. 7. The consent of the United States is hereby

given to any other State not having jurisdiction with

respect to criminal offenses or civil causes of action, or

with respect to both, as provided for in this Act, to as-

sume jurisdiction at such time and in such manner as

the people of the State shall, by affirmative legislative

action, obligate and bind the State to assumption thereof.

Approved August 15, 1953.

a ee ee

0:62 Meee Sean aes > Se LE as St ee tan

25a

APPENDIX D

Title IV of the Indian Civil Rights Act of 1968

(82 Stat. 73, 25 U.S.C. §§ 1321 to 1326)

AN ACT

To prescribe penalties for certain acts of violence or

intimidation, and for other purposes.

Be it enacted by the Senate and House of Representa-

tives of the United States of America in Congress

assembled,

TITLE IV—JURISDICTION OVER CRIMINAL AND

CIVIL ACTIONS

ASSUMPTION BY STATE

SEc. 401. (a) The consent of the United States is

hereby given to any State not having jurisdiction over

criminal offenses committed by or against Indians in the

areas of Indian country situated within such State to

assume, with the consent of the Indian tribe occupying

the particular Indian country or part thereof which could

be affected by such assumption, such measure of juris-

diction over any or all of such offenses committed within

such Indian country or any part thereof as may be deter-

mined by such State to the same extent that such State

has jurisdiction over any such offense committed elsewhere

within the State, and the criminal laws of such State

shall have the same force and effect within such Indian

country or part thereof as they have elsewhere within

that State.

(b) Nothing in this section shall authorize the aliena-

tion, encumbrance, or taxation of any real or personal

property, including water rights, belonging to any Indian

or any Indian tribe, band, or community that is held in

trust by the United States or is subject to a restriction

26a

against alienation imposed by the United States; or shall

authorize regulation of the use of such property in a

manner inconsistent with any Federal treaty, agreement,

or statute or with any regulation made pursuant there-

to; or shall deprive any Indian or any Indian tribe, band,

or community of any right, privilege, or immunity af-

forded under Federal treaty, agreement, or statute with

respect to hunting, trapping, or fishing or the control,

licensing, or regulation thereof. (25 U.S.C. § 1321.)

ASSUMPTION BY STATE OF CIVIL JURISDICTION

Sec. 402. (a) The consent of the United States is

hereby given to any State not having jurisdiction over

civil causes of action between Indians or to which, In-

dians are parties which arise in the areas of Indian

country situated within such State to assume, with the

consent of the tribe occupying the particular Indian

country or part thereof which would be affected by such

assumption, such measure of jurisdiction over any or

all such civil causes of action arising within such Indian

country or any part thereof as may be determined by

such State to the same extent that such State has juris-

diction over other civil causes of action, and those civil

laws of such State that are of general application to

private persons or private property shall have the same

force and effect within such Indian country or part there-

of as they have elsewhere within that State.

(b) Nothing in this section shall authorize the aliena-

tion, encumbrance, or taxation of any real or personal

property, including water rights, belonging to any Indian

or any Indian tribe, band, or community that is held in

trust by the United States or is subject to a restriction

against alienation imposed by the United States; or shall

authorize regulation of the use of such property in a

manner inconsistent with any Federal treaty, agreement,

or statute, or with any regulation made pursuant there-

Tt ieee! anne Neti

Se ee ees

27a

to; or shall confer jurisdiction upon the State to adjudi-

cate, in probate proceedings or otherwise, the ownership

or right to possession of such property or any interest

therein.

(ec) Any tribal ordinance or custom heretofore or here-

after adopted by an Indian tribe, band, or community in

the exercise of any authority which it may posses shall,

if not inconsistent with any applicable civil law of the

State, be given full force and effect in the determination

of civil causes of action pursuant to this section. (25

U.S.C. § 1322.)

RETROCESSION OF JURISDICTION BY STATE

SEC. 403. (a) The United States is authorized to ac-

cept a retrocession by any State of all or any measure of

the criminal or civil jurisdiction, or both, acquired by

such State pursuant to the provisions of section 1162 of

title 18 of the United States Code, section 1360 of title

28 of the United States Code, or section 7 of the Act of

August 15, 1953 (67 Stat. 588), as it was in effect prior

to its repeal by subsection (b) of this section.

(b) Section 7 of the Act of August 15, 1953 (67 Stat.

588), is hereby repealed, but such repeal shall not affect

any cession of jurisdiction made pursuant to such section

prior to its repeal. (25 U.S.C. § 1323.)

CONSENT TO AMEND STATE LAWS

SEC. 404. Notwithstanding the provisions of any en-

abling Act for the admission of a State, the consent of

the United States is hereby given to the people of any

State to amend, where necessary, their State constitution

or existing statutes, as the case may be, to remove any

legal impediment to the assumption of civil or criminal

jurisdiction in accordance with the provisions of this

title. The provisions of this title shall not become effec-

tive with respect to such assumption of jurisdiction by

28a

any such State until the people thereof have appropriately

amended their State constitution or statutes, as the case

may be. (25 U.S.C. § 1824.)

ACTIONS NOT TO ABATE

Sec. 405. (a) No action or proceeding pending before

any court or agency of the United States immediately

prior to any cession of jurisdiction by the United States

pursuant to this title shall abate by reason of that ces-

sion. For the purposes of any such action or proceeding,

such cession shall take effect on the day following the

date of final determination of such action or proceeding.

(b) No cession made by the United States under this

title shall deprive any court of the United States of

jurisdiction to hear, determine, render judgment, or im-

pose sentence in any criminal action instituted against

any person for any offense committed before the effective

date of such cession, if the offense charged in such action

was cognizable under any law of the United States at the

time of the commission of such offense. For the purposes

of any such criminal action, such cession shall take effect

on the day following the date of final determination of

such action. (25 U.S.C. § 1825.)

SPECIAL ELECTION

SEc. 406. State jurisdiction acquired pursuant to this

title with respect to criminal offenses or civil causes of

action, or with respect to both, shall be applicable in

Indian country only where the enrolled Indians within

the affected area of such Indian country accept such

jurisdiction by a majority vote of the adult Indians vot-

ing at a special election held for that purpose. The Sec-

retary of the Interior shall call such special election under

such rules and regulations as he may prescribe, when

requested to do so by the tribal council or other govern-

ing body, or by 20 per centum of such enrolled adults.

(25 U.S.C. § 1826.)

Ae idee ae a ai eats Mlk

Na. alls A eee aE -

29a

APPENDIX E

(Mont. Rev. Code Ann. §§ 83-801 to 83-806 (1947), re-

codified as Mont. Code Ann. §§ 2-1-8301 to 2-1-307 (1979) )

CHAPTER 8

JURISDICTION OF INDIAN COUNTRY

Section 83-801. Criminal jurisdiction of Flathead Indian

country to be assumed.

83-802. Resolution of Indian tribes requesting

state jurisdiction — governor’s procla-

mation — consent of county commis-

sioners.

83-803. Date of assumption of jurisdiction — ap-

plication of state law in Indian coun-

try.

83-804. Rights, privileges and immunities re-

served to Indians.

83-805. Indian culture protected.

83-806. Withdrawal of consent to state jurisdic-

tion.

83-801. Criminal jurisdiction of Flathead Indian coun-

try to be assumed. The state of Montana hereby obligates

and binds itself to assume, as herein provided, criminal

jurisdiction over Indians and Indian territory of the

Flathead Indian reservation and country within the state

in accordance with the consent of the United States given

by the act of August 15, 1953 (Public Law 280, 83rd

Congress, 1st session).

83-802. Resolution of Indian tribes requesting state

jurisdiction—governor’s proclamation—consent of county

commissioners. Whenever the governor of this state shall

80a

receive from the tribal council or other governing body

of the Confederated Salish and Kootenai Indian tribes,

community, band or group of Indians in this state, a

resolution, expressing its desire that its people and lands

be subject to the criminal and/or civil jurisdiction of

the state of Montana to the extent authorized by federal

law and regulation, he shall issue within sixty (60) days

a proclamation to the effect that such jurisdiction shall

apply to those Indians and their territory, or reservation

in accordance with the provisions of this act; provided,

that he shall not issue such proclamation until such reso-

lution has been approved in the manner provided for by

the charter, constitution or other fundamental law of the

tribe or tribes, if said document provides for such ap-

proval; provided further that he shall not issue such

proclamation until there has been first obtained the con-

sent of the board of county commissioners of each county

which encompasses any portion of the reservation of such

tribe or tribes.

83-803. Date of assumption of jurisdiction—applica-

tion of state law in Indian country. Sixty (60) days

from the date of issuance of the proclamation of the gov-

ernor as provided for by section 83-802, the state of

Montana shall assume jurisdiction over offenses com-

mitted by or against Indians in the lands prescribed in

the proclamation to the same extent that this state has

jurisdiction over offenses committed elsewhere within this

state, and the criminal and/or civil laws of this state

shall have the same force and effect within such lands as

they have elsewhere within this state.

83-804. Rights, privileges and immunities reserved to

Indians. Nothing in this act shall authorize the aliena-

tion, encumbrance or taxation of any real or personal

property, including water rights, belonging to any Indian

or any Indian tribe, band or community that is held in

trust by the United States; or shall authorize regulation

Akh Ak RR le iw tte ee a ott nll et a

nn ee ee en nn LY

la

of the use of such property in a manner inconsistent —

with any federal treaty, agreement, or statute or with

any regulation made pursuant thereto; or shall confer

jurisdiction upon the state of Montana to adjudicate, in

probate proceedings or otherwise, the ownership or right

to possession of such property or any interest therein;

or shall deprive any Indian or any Indian tribe, band or

community of any right, privilege or immunity afforded

under federal treaty, agreement, statute, or executive

order with respect to hunting, trapping, fishing or the

control, licensing or regulation thereof.

83-805. - Indian culture protected. Nothing in this act

shall deprive, the Indian tribe, band or community from

carrying on its age-old tribal dances, feasting or custom-

ary Indian celebrations or in any way try to destroy the

Indian culture.

83-806. Withdrawal of consent to state jurisdiction.

Any Indian tribe, community, band or group of Indians

that may consent to come within the provisions of this

act may, within two (2) years from the date of the

governor’s proclamation, withdraw their consent to be

subject to the criminal and/or civil jurisdiction of the

state of Montana, by appropriate resolution, and within

sixty (60) days after receipt of such resolution the gov-

ernor shall issue a proclamation to that effect.

82a

APPENDIX F

ORDINANCE OF THE TRIBAL COUNCIL

OF THE CONFEDERATED SALISH AND

KOOTENAI TRIBES OF THE

FLATHEAD RESERVATION, MONTANA

No. 36-A (Revised)

BE IT ENACTED BY THE TRIBAL COUNCIL OF THE

CONFEDERATED SALISH AND KOOTENAI TRIBES:

1. Chapter 1, 2, 3, 4, and 5 of the Official Code of

Ordinances of the Confederated Salish and Kootenai

Tribes of the Flathead Reservation, Montana, as adopted

pursuant to the authority vested in the Tribal Council

of the Confederated Salish and Kootenai Tribes of the

Flathead Reservation, Montana, by paragraph (L), Sec-

tion 1, Article 6 of the Constitution of said Tribes on

October 27, 1937, is hereby repealed.

2. The following Law and Order provisions pertaining

to the Official Codes of Ordinances, designated as Chap-

ters 1 through 5 inclusive, is hereby adopted as the

Official Code of Ordinances of the Confederated Salish

and Kootenai Tribes of the Flathead Reservation, Mon-

tana:

LAW AND ORDER

Chapter 1

RESERVATION COURT

Section 1: Establishment of Court:

An Indian Court is established to be known as the

Tribal Court of the Flathead Reservation, and the Council

will by Ordinance define and establish a Law and Order

Code for the maintenance of law and order and the ad-

ministration of justice among the people of the Con-

federated Salish and Kootenai Tribes of the Flathead

Reservation, Montana.

A oS ret itr: tebe

33a

Section 2: Jurisdiction:

The Court shall have jurisdiction over enforcement of

offenses against Tribal Council Ordinances which are

promulgated under authority of Article 6, Section 1,

Paragraph L, of the approved Constitution and by-laws

of the Confederated Salish and Kootenai Tribes of the

Flathead Reservation, Montana, or the enforcement of any

other ordinances which the Tribal Council may see fit to

place under the jurisdiction of this court which they have

heretofore at this time or at any future time, enacted

under the provisions of their approved Constitution.

The lawful jurisdiction of the Flathead Tribal Court

shall be concurrent and not exclusive with respect to any

offenses over which Federal and State courts may have

lawful jurisdiction.

It shall be the duty of the said Tribal Court of the

Flathead Reservation to order delivery to the proper au-

thorities of the State or Federal Government, or of any

other Tribe or reservation for prosecution, any offender

there to be deait with according to law or regulations

authorized by law where such authorities consent to exer-

cise jurisdiction lawfully fixed in them over the said

offender.

For the purpose of the enforcement of these regula-

tions an Indian shall be deemed to be any person-of In-

dian descent who is a member of the Confederated Salish

and Kootenai Tribes or any person of Indian descent who

is a member of any recognized Tribe under Federal Ju-

risdiction. The Flathead Reservation shall be taken to

include all territory within the original reservation boun-

daries, including fee patented lands, roads, bridges, water,

and lands used for Agency purposes, including townsites,

incorporated towns and cities, as well as all alienated

lands within the original boundaries of said reservation.

34a

APPENDIX G

CONFEDERATED SALISH AND KOOTENAI TRIBES

OF THE

FLATHEAD RESERVATION, MONTANA

Tribal Ordinance 40-A (REVISED)

ORDINANCE OF THE TRIBAL COUNCIL OF THE CONFEDERATED

SALISH AND KOOTENAI TRIBES OF THE FLATHEAD INDIAN

RESERVATION, AMENDING SECTIONS AND CHAPTERS OF

THE “ORDINANCE OF THE TRIBAL COUNCIL OF THE CON-

FEDERATED SALISH AND KOOTENAI TRIBES OF THE FLAT-

HEAD RESERVATION, MONTANA, NO. 386-A_ (Revised)

ADOPTED MAY 23, 1962”, HEREINAFTER REFERRED AS

THE “OFFICIAL CODE OF ORDINANCES”, 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, Section 2, 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 three to read as follows:

“Subsection 1: Subject to the conditions and limita-

tions expressed in Subsection 2 hereof, the laws and ju-

risdiction 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 re-

late to the subjects following:

(a) Compulsory School Attendance

(b) Public Welfare

35a

(c) Domestic Relations (except adoptions)

(d) Mental Health, Insanity, Care of the Infirm, Aged

and Afflicted

(e) Juvenile Delinquency and Youth Rehabilitation

(f) Adoption Proceedings (With consent of the Tribal

Court)

- (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-

in the Flathead Indian Reservation.

Subsection 2. The effectiveness of Subsection 1 hereof is

conditioned upon the following:

(a) Concurrent jurisdiction remains (where appli-

cable with Federal Courts) with the Tribal Court

and in the Tribal Government of all matters referred

to in Subsection 1; and any matter initiated in either

a 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 Gov-

ernment, or the Tribes pursuant to this ordinance,

shall be punished for the identical act in the courts

of the other jurisdiction, but shall be accorded the

benefit of the doctrine of former jeopardy as if the

separate jurisdictions were one.

(ce) This ordinance is subject to possible referendum

of the eligible voters of the Confederated Tribes pur-

36a

suant to Article IX of the Constitution of the Con-

federated Tribes, and if a referendum is authorized

and this ordinance disapproved by a majority under

the conditions set forth in Article IX this ordinance

shall be void and of no effect to transfer any juris-

diction to the State of Montana and its judicial sys-

tem.

(d) All jurisdiction of the Confederated Tribes

under their Constitution and Bylaws, and ordinances

enacted pursuant thereto, and of the Federal Gov-

ernment under the United States Criminal Code, to

the extent not expressly transferred by Subsection 1

hereof, remains in the Confederated Tribes and in

the Federal Government respectively to the same ex-

tent as if this ordinance had not been adopted.

(e) If any provision of the Act of the Montana Leg-

islature of February 27, 1963, Laws of Montana

1968, Vol. 1 Chap. 81, or of this ordinance shall be

held invalid, or if this ordinance be held to extend a

jurisdiction more extensive than set forth herein, or

if any condition herein be not 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.

(f) In the event of any alleged violation of the Civil

Rights of Tribal members by operation of this ordi-

nance, the Tribal Council reserves the right to con-

duct an independent investigation of the alleged act;

to seek redress in a court of competent jurisdiction;

and to review the ordinance upon the validation of

any such alleged offense.

Provided further that any sentences or convictions,

lawfully inflicted under the provisions of this ordinance,

shall not be affected by subsequent cancellation or void-

ance of this ordinance.”

ee ne eens eee

ee ee

37a

All ordinances and parts of ordinances in conflict here-

with are hereby repealed (specifically Tribal Ordinance

40-A approved May 19, 1964).

CERTIFICATE

The foregoing ordinance was adopted by the Tribal

Council of the Confederated Salish and Kootenai Tribes

of the Flathead Reservation, Montana pursuant to the

Act of the United States Congress of August 15, 1953;

67 Stat. 588, as amended (18 U.S. Code Section 1162;

28 U.S. Code Section 1360); the Act of the Legislature

of Montana, February 27, 1963, Laws of Montana 1963,

Vol. 1, Chap. 81, p. 170; and Article VI, Sec. 1, subsec-

tions (c), (n) and (q) of the Constitution of the Con-

federated Tribes, pursuant to Section 16 of the Indian

Reorganization Act of June 18, 1934, 48 Stat. 984, the

5th day of May, 1965, by a vote of 7 for, 0 against, and

0 not voting.

/s/ Walter W. McDonald

WALTER W. MCDONALD

Chairman, Tribal Council

ATTEST:

/s/ Alvin E. Sloan

ALVIN E. SLOAN

Secretary

88a

APPENDIX H

ORDINANCE

OF THE TRIBAL COUNCIL OF THE

CONFEDERATED SALISH AND KOOTENAI TRIBES

OF THE FLATHEAD RESERVATION, MONTANA

No. 30-A

BE IT ENACTED BY THE COUNCIL OF THE CON-

FEDERATED SALISH AND KOOTENAI TRIBES:

1. To the extent the State of Montana and its political

subdivisions may not have jurisdiction thereof, the use

of all roads and highways within the Flathead Reserva-

tion by Indians, including members of the Confederated

Salish and Kootenai Tribes, shall be subject to the laws

and regulations of the State of Montana as hereinafter

set forth. Such Sections of the Revised Codes of Mon-

tana, 1947, and amendments thereto, are hereby adopted

as a part of the Official Code of Ordinances of the Con-

federated Salish and Kootenai Tribes of the Flathead

Reservation, Montana. Minor changes in wording as may

be necessary to make subject Sections applicable to the

Official Code of Ordinances of the Confederated Tribes

are approved.

2. The following Sections of the Revised Codes of

Montana, 1947, and amendments thereto, are hereby in-

corporated as a part of the Official Code of Ordinances of

the Confederated Salish and Kootenai Tribes of the Flat-

bed Reservation, Montana, with the same effect as if

they were set forth word for word in their entirety:

Volume 8, Revised Codes of Montana, 1947, and

amendments thereto, as follows:

Title 31, Chapter 1, “Highway Patrol”, Sections

31-110, 31-118 through 31-138 inclusive, and

31-140 through 31-162 inclusive;

Ame sey

39a

Title 32, Chapter 10, “Obstructions”, Section 32-

1014;

Title 32, Chapter 11, “Speed and Traffic Regula-

lations”, Sections 32-119, 32-1121 through 32-

1131 inclusive, and 32-1143 through 32-1145

inclusive;

Title 32, Chapter 12, “Uniform Accident Re-

porting Act”, Sections 32-1201 through 32-1213

inclusive; and

Title 32, Chapter 21, “Uniform Act Regulating

Traffic on Highways”, Sections 32-2101 through

32-21-165, inclusive.

3. All persons subject to the provisions of the Official

Code of Ordinances of the Confederated Salish and

Kootenai Tribes of the Flathead Reservation, Montana,

who operate motor vehicles on roads and highways with-

in the Flathead Reservation must possess at all times a

valid Montana Driver’s License and all vehicles operated

by such persons, both on and off the Reservation, must

display a currently valid vehicle license plate as required

and issued by the State of Montana.

4. The Chairman of the Tribal Business Council is

hereby authorized to commission as Indian Service High-

way Police such members of the Montana State Highway

Patrol as may be required for the proper enforcement

of the foregoing traffic laws and regulations.

5. A monthly report of all arrests, convictions, sen-

tences, and such other data as may be required concern-

ing violations of the Montana Motor Vehicle Code, will

be forwarded by the Tribal Court to the Montana State

Highway Patrol, Helena, Montana, through the Business

Council.

6. It is the intent of this Ordinance to insure the

proper regulation of the use of public highways within

the exterior boundaries of the Flathead Indian Reserva-

40a

tion by all persons, Indian and non-Indian. Concurrent

jurisdiction over all offenses enumerated above when

committed by any Indian within the exterior boundaries

of the Flathead Reservation is hereby expressly vested,

but not exclusively, in the various State courts of the

State of Montana.

7. If this Ordinance shall be found invalid in any ap-

plication, that shall not affect its validity in other ap-

plications or in other circumstances; but it shall remain

in full force and effect to the maximum extent consistent

with law.

CERTIFICATE

This Ordinance is adopted pursuant to Article VI, Sec-

tion 1, paragraphs (L) and (E) of the Constitution of

the Confederated Salish and Kootenai Tribes of the Flat-

head Reservation, and subject to the jurisdiction accorded

to the State of Montana by Section 2 of the Act of March

4, 1915, 38 Stat. 1188, 1189. Adopted by unanimous

vote, by the Tribal Council of the Confederated Salish

and Kootenai Tribes on June 29, 1959.

/s/ Walter W. McDonald

WALTER W. MCDONALD

Chairman

Tribal Council

/s/ Robert A. McCrea

ROBERT A. MCCREA

Secretary-Treasurer

APPROVED: June 30, 1959

/s/ Charles S. Spencer

CHARLES S. SPENCER

Superintendent

Flathead Indian Agency

[Illegible]