# Opposition — Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, PC

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition
- **Published:** January 1, 1984
- **Citation:** 467 U.S. 138

## Text

[Office - Suprene Court, US
FIL wi
No. 82-629 4 7 *

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In the Supreme Court of the United States

October Term, 1982

THREE AFFILIATED TRIBES OF THE
FORT BERTHOLD RESERVATION,
Petitioner,

VS

WOLD ENGINEERING, PC., A NORTH DAKOTA
PROFESSIONAL CORPORATION,
Respondent,

vs

SCHMIDT, SMITH & RUSH,
Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT
OF CERTIORARI FROM THE SUPREME COURT
OF NORTH DAKOTA

HuGH McCutTcHEon
(Counsel of Record)
P.O. Box 939
Minot, North Dakota 58702
(701) 852-3578

Attorney for Respondent
Wold Engineering

E. I. Mexpenmatt, Ivc., 926 Cherry Street, Kansas City, Mo. 64106, (816) 421-3036

I. QUESTION PRESENTED FOR REVIEW

Whether the North Dakota State District Courts have
subject matter jurisdiction to hear a civil action arising
within the exterior boundaries of an Indian Reservation,
and involving Indian litigants, where the Indian tribe
within that reservation has failed to consent to the assump-
tion of civil jurisdiction by the state courts.

II. PARTIES TO THE PROCEEDINGS

The parties to this proceeding are:
Three Affiliated Tribes of the Fort Berthold Reser-
vation, Petitioner;

Wold Engineering, P.C., a North Dakota Professional
Corporation, and Schmidt, Smith & Rush, Respon-
dents.

11

III. TABLE OF CONTENTS AND AUTHORITY

A. Contents.

I. Question Presented for Review ....................
II. Parties to the Proceedinggs sss
III. Table of Contents and Authority ..................

Tc

1 998 cence III
OE 111

Federal Statutory Law and Rules
111
Other Statutory Law and Rules

9 © we

IV. Opinions and Judgments Delivered in the
1 ..

Jurisdictional Statement!
VI. Constitutional Provisions and Statutes ........
A. United States Constitutional Provisions

II EF er TS

C. State Constitutional Provisions and
See ee see

<

VII. Statement of the Cage
VIII. Summary of the Argument

?•çẽ?⸗?]?“24%)Q]9av n

A. Grounds for Granting Certiorari ............

B. There Was No Discriminatory Applica-
tion of a Valid Statute in the North

C. There Was No Erroneous Exercise of
Authority Under a Valid Statute by
the North Dakota Court 12

1. Consistency of State Court decisions
is not an important consideration
Oy I GD —T0——— 12
2. The decision of the North Dakota
Supreme Court is consistent with

this Court’s decisions .......................... 15
ER CES SSeS aa se IW oe 18
Appendix ...................... — —— 19
B. Authority.
Federal Case Law
Charleston Federal Savings and Loan Ass’n
v. Alderson, 324 U.S. 182 (19459) 7
Felix v. Patrick, 145 U.S. 317 (189272727 15, 16
Hanson v. Denckla, 357 U.S. 235 (1958) 7
Kennerly v. District Court of Montana, 400
I 9, 11, 14,17
Lonewolf v. Hitchcock, 187 U.S. 553 (1903)
McClanahan v. Arizona Tax Comm., 411 US.
KK 8, 9, 11
Morton v. Mancari, 417 U.S. 535 (1974 10
United States v. Candelaria, 271 US. 432
rr 15, 16
Washington v. Yakima Indian Nation, 439 U.S.
A eee eee 10, 14

Worcester v. Georgia, 31 U.S. (6 Pet.) 515
J 3 8

Iv

Federal Statutory Law and Rules:

25 US.C. Section 1301 et seq. .............. 10, 11, 14, 16
25 U.S.C. Section 1322 (a) 2, 3, 7, 8, 9,

10, 14, 16, 17
25 U.S.C. Section 132 3, 7, 8, 9, 10, 14, 16, 17
28 U.S.C. Section 1287 (9 2,7
SD Weis MIS TCD eececcencccscnctsccncncrsrcnecenens 2

Enabling Act of February 22, 1889, Chapter
180, 25 Statutes at Large 676, Section 4,
r 13

cc 13, 14

Rule 17.1 Rules of the Supreme Court of the
r B 12

State Case Law:
Gourneau v. Smith, 207 N. W. 2d 256 (N. D.
A 9
Nelson v. Dubois, 232 N. W.2d 54 (N. D. 1975) 9
Unie States ex rel. Hall v. Hansen, 303

N. W. 2d 349 (N. D. 1981) 9
In re Whiteshield, 124 N. W. 2d 694 (N. D.
—— . tess 8, 14
Other Statutory Law and Rules:
eB OD |) + + 2, 4, 7, 8, 10
. — 8

Article 16, Section 203, North Dakota Con-
stitution (Constitution of 18899999 13

No. 82-629
E the Supreme Court of the United States

October Term, 1982

THREE AFFILIATED TRIBES OF THE
FORT BERTHOLD RESERVATION,
Petitioner,

VS.

WOLD ENGINEERING, P. C., A NORTH DAKOTA
PROFESSIONAL CORPORATION,
Respondent,
vs.

SCHMIDT, SMITH & RUSH,
Respondent.

BRIEF IN OPPOSITION TO PETITION FOR WRIT
OF CERTIORARI FROM THE SUPREME COURT
OF NORTH DAKOTA

IV. OPINIONS AND JUDGMENTS DELIVERED
IN THE COURTS BELOW

The Opinion and Judgment of Dismissal from the
North Dakota District Court, Northwest Judicial District,
in Ward County, Civil No. 46392, is an unreported decision.

Judgment of the North Dakota Supreme Court af-
firming the decision of the North Dakota District Court
is reported at: Three Affiliated Tribes v. Wold Engineer-
ing, et al., 321 N.W.2d 510 (N.D. 1982).

V. JURISDICTIONAL STATEMENT

Petitioner asserts that jurisdiction of this Court to
review this case by Writ of Certiorari is conferred by 28
U.S. C. Section 1257(3). Petitioner asserts that the final
judgment of the North Dakota Supreme Court draws into
question the validity of 25 U.S.C. Section 1322(a). It
further asserts that the validity of Chapter 27-19, NDCC,
Indian Civil Jurisdiction, is called into question as being
repugnant to the United states Constitution, treaties or
laws.

A Writ of Certiorari is timely if filed within 90 days
after the issuance of the decision being appealed. 28
U.S.C. Section 2101(c). The decision of the North Dakota
Court was issued on July 1, 1982, and became final on
July 23, 1982. Petitioner’s Petition for Writ of Certiorari
was docketed in the United States Supreme Court on
September 28, 1982.

VI. CONSTITUTIONAL PROVISIONS AND
STATUTES

A. United States Constitutional Provisions:

Article 1, Section 8, Clause 3.

“The Congress shall have power: Io regulate
commerce with foreign nations, and among the sev-
eral states, and with the Indian tribes.”

Amendment 14, Section 1.

“All persons born or naturalized in the United States,
and subject to the jurisdiction thereof, are citizens of
the United States, and of the state wherein they reside.
No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the

—_ ~

3

United States, nor shall any state deprive any person
of life, liberty or property, without due process of
law, nor deny to any person within its jurisdiction
the equal protection of the laws.“

B. Federal Statutes:
25 U.S.C. Section 1322(a).

“(a) Consent of United States—Force and effect of
civil laws. 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 Indians
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 de-
termined by such State to the same extent that such
State has jurisdiction 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 thereof as they have elsewhere
within that State.”

25 U.S.C. Section 1326.

“State jurisdiction acquired pursuant to this title [25
USCS §§1321-1326] with respect to criminal offenses
or civil causes of action, or with respect to both, shall
be applicable in Indian country only where the en-
rolled Indians within the affected area of such Indian
country accept such jurisdiction by a majority vote
of the adult Indians voting at a special election held for
that purpose. The Secretary of the Interior shall call

4

such special election under such rules and regulations
as he may prescribe, when requested to do so by the
tribal council or other governing body, or by 20 per
centum of such enrolled adults.”

C. State Constitutional Provisions and Statutes:

Chapter 27-19, NDCC, Indian Civil Jurisdiction. (Set
forth in Appendix 1.)

VII. STATEMENT OF THE CASE

Petitioner, an Indian tribe, and hereafter referred to
as Three Tribes, contracted with Respondents, hereafter
referred to as Wold Engineering, for the purposes of de-
signing a water system for the Four Bears Village. Four
Bears Village is located entirely within the exterior
boundaries of the Fort Berthold Indian Reservation. The
enrolled members of Three Tribes have not voted to con-
sent to the assumption of civil jurisdiction by the State
Courts of North Dakota.

After the water system was completed, Three Tribes
initiated a lawsuit against Wold Engineering alleging the
system was negligently designed. Suit was commenced
in North Dakota District Court.

After submitting its Answer and asserting a counter-
claim against Three Tribes, Wold Engineering moved to
dismiss the case for lack of subject matter jurisdiction.
The Honorable Wallace D. Berning, District Judge, ac-
cepted briefs from all parties, and after due consideration
dismissed the case for lack of subject matter jurisdiction.

Three Tribes appealed this decision to the North
Dakota Supreme Court which affirmed Judge Berning’s
ruling. Three Tribes makes this petition for Writ of
Certiorari to seek review of the North Dakota Supreme
Court Decision.

VIII. SUMMARY OF THE ARGUMENT

A petition for certiorari may be allowed when there
is drawn into question the validity of a United States stat-
ute, or when there is drawn into question the validity of a
state statute which may be repugnant to the Constitution,
or to a United States statute. Certiorari is granted as a
matter of discretion. Factors which this Court may con-
sider when deciding to grant certiorari are that a state
court decision is not consistent with decisions in other
states, or that the state court decision is not consistent
with the decisions of the United States Supreme Court.
These factors are neither controlling nor complete.

Congress has plenary power over Indian tribes. When
Congress directs a statute to that subject, the Indian tribes,
the states, and the courts are absolutely bound thereby.
A state response to a federal Indian statute which is
consistent with the plain meaning and tenor of that statute
is not violative of due process and equal protection.

The response of the United States to particular prob-
lems presented by Indian tribes to the Federal Govern-
ment, and to the states in which they reside, has swung
the pendulum from assimilation to self-determination and
isolation. Depending upon the various attitudes taken by
the states at different points of time along the swing of
this pendulum, the response of the many individual states
to the Indian tribes residing therein will be substantially
different. Having an ever changing federal policy, and no
uniform state response to that policy, has created a patch-
work quilt of jurisdictional problems and judicial responses.
The fact then that different states may assert varying
claims to jurisdiction over the Indian tribes within those
states is not significant. This variance was created by
Congress, and should not give rise to Supreme Court.

review of a state decision which differs from the deci-
sions reached in other states.

The swing of the pendulum has been reflected in this
Court’s Indian decisions as well. While the Supreme
Court has stated that state courts are generally open to
Indians, those statements were made in relation to the
then current Congressional response to Indian problems.
When Congress, in the exercise of its plenary authority,
changed its position to Indian matters this Court’s re-
sponse to that change in position was also reflected. This
Court has held that unless the Indian tribes comply com-
pletely with the requirements set forth by Congress in
regards to state civil jurisdiction over Indian matters on
the reservation, the states can exercise no such jurisdic-
tion, and the tribes cannot confer such jurisdiction. This
Court’s decision reflects the current federal response to
state assumption of jurisdiction over Indians and Indian
territory. Thus, a decision by a state court which is con-
trary to earlier cases, but which fully comports with the
current federal position on Indian tribes is not inconsistent
with this Court’s decisions and will not give rise to Su-
preme Court review of that decision.

The Indian tribes in North Dakota have the keys to
the State Courthouses in their hands. When the Indians
elect to use these keys to unlock those doors, they may
make use of the State’s judicial system.

IX. ARGUMENT

A. Grounds for Granting Certiorari.

Final judgment from the highest court of a state in
which a decision may be heard can be reviewed in the
Supreme Court either by appeal, or by certiorari. Review
by certiorari may be granted where:

7

„. . the validity of a treaty or statute of the United
States is drawn in question or where the validity of
a State statute is drawn in question on the ground of
its being repugnant to the Constitution, treaties or laws
of the United States, or where any title, right, priv-
ilege or immunity is specially set up or claimed under
the Constitution, treaties or statutes of, or commission
held or authority exercised under, the United States.”
28 U.S.C. 1257(3).

Three Tribes alleges the decision of the North Dakota
Supreme Court is subject to review by certiorari. It states
that the North Dakota Court's strict application of the re-
quirements of 25 U.S.C. Section 1322(a), 25 U.S.C. Section
1326, and Chapter 27-19, NDCC, denying Indians living on
an Indian reservation a civil cause of action in state courts
has denied those Indians equal protection of the law.
Three Tribe’s argument would require this Court to find
a valid statute was given a discriminatory application, or
that there was an erroneous exercise of authority under
a valid statute. In either instance, the decision might be
subject to review by this Court under a Writ of Certiorari.
Charleston Federal Savings and Loan Ass’n v. Alderson,
324 U.S. 182 (1945); Hanson v. Denckla, 357 U.S. 235 (1958).

B. There Was No Discriminatory Application of
a Valid Statute in the North Dakota Court.

Three Tribes argues that the North Dakota Supreme
Court’s ruling requiring Indian tribes to strictly adhere to
the requirements set forth in 25 U.S.C. Section 1322(a)
and 25 U.S.C. Section 1326, and also to State requirements
in Chapter 27-19, NDCC, Indian Civil Jurisdiction, will un-
fairly deny Indians access to the State’s judicial system,
and to the equal protection of the law.

The United States Congress has plenary power over
Indian tribes. Lonewolf v. Hitchcock, 187 U.S. 553 (1903).

A state law is generally of no effect in Indian country lo-
cated within its boundaries. Worcester v. Georgia, 31 U.S.
(6 Pet.) 515 (1832). In discussing briefly the history and
relationship of the states to Indian tribes and Indian
country, this Court has stated:

“State laws generally are not applicable to tribal In-
dians on an Indian reservation except where Congress
has expressly provided that state law shall apply.
U.S. Department of Interior, Federal Indian Law 845
(1958).” McClanahan v. Arizona Tax Comm., 411
U.S. 164, at 170 and 171 (1973).

Insofar as state civil jurisdiction in North Dakota
over Indian lands within this State is concerned, Congress
has expressly provided when state laws apply to Indians
and Indian country. It has also provided a means by
which state laws will be made applicable to Indians and
Indian country. Those provisions, 25 U.S.C. Section
1322(a) and 25 U.S.C. Section 1326 require state and tribal
bilateral action in accordance with the conditions and
procedures laid out in those sections. Altbough the State
of North Dakota has followed these requirements and has
provided a mechanism by which Indian tribes may consent
to state court assumption of civil jurisdiction, Section 27-
19-02, NDCC, Three Tribes has failed to follow the guide-
lines laid out by Congress and also by the North Dakota

legislature.

The North Dakota Supreme Court has ruled that In-
dian tribes must follow the requirements of Chapter 27-
19, NDCC, absolutely before the state may take any juris-
diction in Indian country, and that Chapter 27-19, NDCC,
is a complete disclaimer of all State jurisdiction in Indian
country. In re Whiteshield, 124 N.W.2d 694 (N.D. 1963).
The North Dakota Court also held the requirements of 25
U.S.C. Section 1322 (a) and 25 U.S.C. Section 1326 must

9

be followed absolutely before the state courts may assume
any civil jurisdiction in Indian country. Gourneau v.
Smith, 207 N.W.2d 256 (N.D. 1973); Nelson v. Dubois, 232
N.W.2d 54 (N.D. 1975); and United States ex rel. Hall v.
Hansen, 303 N.W.2d 349 (N.D. 1981). These cases, which
were the precedents relied upon by the North Dakota
Court in its decision in this case, are consistent with this
Court’s decisions in McClanahan v. Arizona Tax Comm., 411
U.S. 164 (1973); and Kennerly v. District Court of Mon-
tana, 400 U.S. 423 (1971). Those two cases affirm this
Court’s consistent position that when Congress exercises its
authority and controls an Indian question, neither the
states nor the Indian tribes are free to disregard that di-
rective. Therefore, when Congress directs the states and
tribes to take affirmative legislative action before a state
may assume jurisdiction, that direction is not simply an
idle choice of words. Kennerly, 400 U.S. at 427. Action by
a tribe which does not explicitly comport with the exact
requirements of a governing Act of Congress will not be
sufficient to confer jurisdiction. Kennerly, 400 U.S. at 429.

In this case, Three Tribes has chosen to not follow the
explicit course required by Congress. From this choice
has followed, as a direct result, the State Court’s refusal to
allow Indians access to the state court system for acts oc-
curring in Indian country. This consequence is entirely
consistent with the plain meaning and obvious intention
of 25 U.S.C. Section 1322 (a), and 25 U.S.C. Section 1326.
25 U.S.C. Section 1322(a) is directed to all cases between
Indians, or to which Indians are parties. The decisions
of this Court which address this issue support the State
Court's ruling.

It is from this consequence that Three Tribes objects,
stating that such a consequence singles them out, and de-
nies to them a forum which is available to all others within

10

the State of North Dakota. This, it declares, is a denial
of equal protection.

This Court has held, however, that every piece of
legislation pertaining to Indians of necessity singles those
people out. This legislation creates special preferences or
disabilities, but in no event is this special treatment a form
of discrimination. These legislative preferences are polit-
ical, and stem from the unique relationship which the
Indians enjoy with the United States. Morton v. Mancari,
417 U.S. 535 (1974). The fact then that 25 U.S.C. Section
1322(a) singles Indians out for special treatment is not
a novel problem, nor is it one which will give rise to a
complaint.

Three Tribes declares however, that by singling the
Indians out in this instance, Indians are denied access to
state courts, and that this is a denial of equal protection.
The State Court’s reading of the requirements of Chapter
27-19, NDCC, and of 25 U.S.C. Section 1322(a) and 25
U.S.C. Section 1326 is consistent with the plain meaning
and intention expressed in those statutes. This reading is
fairly calculated to further the state’s interest in provid-
ing in a uniform and orderly fashion civil jurisdiction in
Indian country while at the same time allowing for tribal
self government and justice in Indian country. Such state
court considerations of Indian policies and federal laws
are not denials of equal protection. Washington v. Yakima
Indian Nation, 439 U.S. 463 (1979). Following these pol-
icies and laws may cause hardship for an Indian or an
Indian tribe in a particular case, but such hardship is not
a denial of equal protection.

Three Tribes further argues the intent of 25 U.S.C.
Section 1301 et seq. was to protect individual Indians from
the involuntary fvisting of state court jurisdiction upon

11

them. From this, Three Tribes argues it is clear that the
tribe itself is free to make use of the State’s courts, and
that it was wrong to deny it access, and this thereby
denies the tribe, as an entity, equal protection.

This argument is wrong. This chapter of Title 25
U.S.C. was designed to prevent the states from unilater-
ally asserting their control over Indians and Indian tribes,
and thereby destroying a tribe’s power to make its own
rules and be governed by them. Kennerly v. District Court
of Montana, 400 U.S. 423 (1971). If 25 U.S.C. Section 1301
et seq. is to apply only to individual Indians, a state would
then be free to approach Indian questions arising within the
state by dealing with them on a tribal level: for example,
while individual Indians would remain free from state
taxation (McClanahan v. Arizona Tax Comm., 411 USS.
164 (1973).) a strictly tribal enterprise would not be
exempt and could be freely taxed, just as any other cor-
porate entity. Quite clearly, such an approach is far more
devastating to a tribe’s power to regulate its own internal
affairs than a similar action taken against the individual.
Such an approach is not what was intended when Con-

gress passed this Act.

Further, in its argument to the North Dakota Court
Three Tribes asserted the tribe itself is not subject to con-
trol by the state. Rules of procedure and substantive law
could be used by the tribe to compel discovery, subpoena
witnesses, and enforce its judgment. On the other hand,
it argued that Wold Engineering would not be allowed to
do the same on the reservation, nor could Wold Engineer-
ing maintain in state court its counterclaim. Fence Three
Tribe’s position is not consistent, and is patently unfair to
non-Indian litigants.

The keys to the state courthouse have been placed
in the hands of the Indian tribes in North Dakota by

12

virtue of the various state and federal laws. Three Tribes
has had possession of these keys for nearly 20 years.
Its failure to use these keys to unlock the courthouse doors
is not an adequate reason to allow it to now enter the
North Dakota Courthouse from the rear door while leav-
ing the front door eternally locked.

The North Dakota Supreme Court did not apply a valid
statute in a discriminatory fashion.

C. There Was No Erroneous Exercise of Authority
Under a Valid Statute by the North Dakota
Court.

As stated above, this Court may grant certiorari if
there appears to have been an erroneous exercise of au-
thority under a valid statute. When determining whether
or not to grant review by certiorari this Court may take
into consideration the factors listed in Rule 17.1, Rules of
the Supreme Court of the United States. That list, while
neither controlling nor conclusive, contains two factors for
consideration which Three Tribes asserts will support the
grant of a Writ of Certiorari in this case. Three Tribes
asserts the decision of the North Dakota Court is not con-
sistent with the decisions of other state supreme courts,
and that the decision of the North Dakota Court is not con-
sistent with the rulings of the United States Supreme
Court. (See pages 8 and 10 of Petition).

1. Consistency of State Court decisions is not an
important consideration in Indian cases.

The problem of havirg sovereign dependent nations
located within the boundaries of this country has been a
longstanding and difficult one. From the earliest Cherokee
cases the policy of the United States has never been en-

13

tirely clear except in one facet, that is, Indians, while
sovereign, are a conquered and dependent people and as
such are subject to the plenary authority of Congress.
Lonewolf v. Hitchcock, 187 U.S. 553 (1903).

Depending upon the attitude of the times, Congres-
sional policy has ranged from either total assimilation of
the Indian people into the non-Indian culture, or a total
isolation of the Indian people from the non-Indian culture,
thereby allowing the Indians to be totally self-governing
of their destiny.

This ambivalent course of policy has created its own
problem. That is, this ambivalence has swung like a
pendulum from one policy directive to another. Depend-
ing upon where states have chosen to act along that policy
pendulum, the relationship of the Indian tribes to the
various states in which they are located will differ from
state to state.

At the time North Dakota and many other western
states entered the Union the policy of the federal govern-
ment had swung into the area of isolation. Indians were
placed on reservations and these western states, prior to
entering the Union, had to constitutionally disclaim for-
ever all jurisdiction to Indian lands. North Dakota was
required to make such a disclaimer. Enabling Act of Feb-
ruary 22, 1889, Chapter 180, 25 Statutes at Large 676, Sec-
tion 4, Clause 2, and North Dakota Constitution Article 16,
Section 203 (Constitution of 1889).

As time passed, Congressional policy swung and
changes were adopted which allowed assimilation of the
Indian nations into the non-Indicn world. This assimila-
tion policy was most clearly apparent in what is commonly
known as Public Law 280, Chapter 505 U.S. Statutes at
Large 67. By that law in 1953, Congress granted to some

14

states total jurisdiction over the Indian tribes within their
boundaries. Other states were given the power to amend
their constitutions and unilaterally assume some or all
jurisdiction over the Indian tribes within their boundaries,
regardless of tribal consent to such assumption. Washing-
ton v. Yakima Indian Nation, 439 U.S. 463 (1979). De-
pending upon the various state reactions to Public Law
280, some states assumed jurisdiction while others de-
clined it. North Dakota amended its constitution, but
never assumed jurisdiction. In re Whiteshield, 124 N.W.2d
694 (N.D. 1963). Hence, the option created by Congress
created different results in different states.

As time passed, the pendulum swung back to the no-
tions of self determination. 25 U.S.C. Section 1301 et seq.
is the evidence of that decision. That chapter prohibits
states which had not assumed jurisdiction under Public
Law 280 from unilaterally assuming jurisdiction in Indian
country. It is now established that the Indian tribes must
comply with the requirements of 25 U.S.C. Section 1322(a)
and 25 U.S.C. Section 1326 before any assumption of ju-
risdiction in Indian country by the states may occur. Ken-
nerly v. District Court of Montana, 400 U.S. 423 (1971).

Hence, depending upon the actions taken by the various
states as the pendulum swung, the status of state jurisdic-
tion in Indian country will differ. Three Tribes points to
the state court decisions in other states, including North
Dakota’s neighbor Montana, and makes the point that the
decision of the North Dakota Court is inconsistent with
the decisions in those cases. Such a point is not significant.
These differences exist as a result of the local reaction
to the options made available by Congress throughout time.
Congress has created a local problem in each state and
at each Indian reservation. The response to those local
problems will, of necessity, reflect local policy. As these

15

policies differ, so will the solutions. North Dakota’s solu-
tion to the Indian jurisdictional problems within this state
are not consistent with the solutions of its neighbors, but
such an inconsistency is not grounds for review of the
decision. The inconsistency simply reflects a fact Congress
created. The local decision by the local court is not an
erroneous exercise of authority.

2. The decision of the North Dakota Supreme
Court is consistent with this Court’s decisions.

Three Tribes asserts that the decision of the North
Dakota Supreme Court is in conflict with the decisions
of this Court as found in Felix v. Petrick, 145 U.S. 317
(1892), and United States v. Candelaria, 271 U.S. 432
(1926). These decisions cannot be pointed to with any
conviction as being the final word from this Court on
Indians using state courts. The language which Three
Tribes relies upon in Felix is simply dictum, to which no
great value as precedent can attach. Candelaria must
likewise be given but slight value as precedent. That de-
cision concerns the effect of a state court judgment on
the United States as guardians for an Indian tribe, and
does not deal directly with the question presented in this
case.

—

However, it must also be recognized that these cases
are now of only historical significance. The cases can
not be taken out of their historical context to give mean-
ing to today’s decisions.

It must again be stated that it is Congress which
has absolute plenary power over the Indian tribes. Any
judicial decree or ruling must reflect the current Con-
gressional will. Rulings from this Supreme Court made
over 50 years ago must give way to later Acts of Congress
which will reflect the prevalent national policy towards

16

Indians. Hence, the rulings of Candelaria and Felix must
give way to the later expressions of Congress as stated in
25 U.S.C. Section 1301 et seq. Those expressions will
require this court to disregard any rulings or dicta of
those earlier cases and focus instead upon what Congress
has declared to be the current status of the Indian law.

The current status of the law in reference to civil
jurisdiction in Indian country is found at 25 U.S.C. Section
1301 et seq. 25 U.S.C. Section 1322(a) states that any
state not already having jurisdiction (North Dakota is
one such state) may only assume jurisdiction upon tribal
consent to such assumption. The procedure for consent
by a tribe is set out in 25 U.S.C. Section 1326. That
statute requires a special election of the entire tribe to
vote on this jurisdiction.

Three Tribes would urge this Court to rely upon
Felix and Candelaria to completely ignore the provisions
of this Act. It urges this Court to allow individual Indians,
or Indian tribes, to use the state courts for any legal
actions in which they are plaintiffs. An Indian tribe
would then need to conduct tribal elections and comply
with Section 1322(a) and Section 1326 of Title 25, only
if they determined that they wished to allow themselves
to be brought into state courts as defendants. In other
words, the language of Section 1322(a) which refers to
“actions between Indians or to which Indians are parties”
would be interpreted by Three Tribes to mean “actions
in which Indians are defendants.” Indians and Indian
tribes would be free to use state courts as plaintiffs
without following the formalities of a tribal election out-
lined in 25 U.S.C. Section 1326. This reading is not con-
sistent with the Court’s rulings on these statutes, nor is
it consistent with the plain meaning of the statute.

17

In interpreting this Congressional action, this Court
has held that the meaning of the provisions of 25 U.S.C.
Section 1322(a) and 25 U.S.C. Section 1326 is clear.
That is:

“We think the meaning of these provisions is clear:
the tribal consent that is prerequisite to the assump-
tion of ‘ste jurisdiction under the provisions of Title
IV of the Act mus: be manifested by majority vote
of the enrolled Indians within the affected area of
Indian country.” Kennerly v. District Court of Mon-
tana, 400 U.S. 423 at 429 (1971).

This Court in Kennerly further held that any action
by a tribe which does not comport with the explicit re-
quirements of the Act will not be sufficient to confer
jurisdiction on the states.

The meaning of the federal statutes is clear. This
Court has held that the obvious meaning of the words in
those statutes must be explicitly followed or else an as-
sumption by state courts of Indian civil jurisdiction will
be of no avail. Further, the Indians themselves are not
free to disregard the clear and explicit requirements of
that Act. The North Dakota Supreme Court has followed
the federal statutory mandate to the letter, and has ruled
consistently with this Court on the meaning of the cur-
rently existing federal policy. Three Tribes now asserts
that it should be free to ignore the currently stated federal
policy, and the clear meaning of that policy. However,
since the North Dakota Court has followed all federal
mandates, there exists no reason why the decision of
the North Dakota Supreme Court should be overruled.
There was no erroneous exercise of authority.

18

X. CONCLUSION

A Writ of Certiorari will only be granted in the
sound discretion of this Court. Failure by Three Tribes
to reveal a valid reason why a state court decision should
be reviewed is sufficient to deny a Writ of Certiorari.
Wold Engineering requests therefore that Three Tribe’s
petition for Writ of Certiorari be denied.

Respectfully submitted this 26th day of October, 1982.

Bosa, McCutcuton & Rau, Lo.
Attorneys for Respondent
Wold Engineering
200 Heritage Place
P.O. Box 939
Minot, North Dakota 58702

By: Hugh McCutcheon

19

APPENDIX 1

CHAPTER 27-19

INDIAN CIVIL JURISDICTION

27-19-01. Assumption of jurisdiction.—In accord-
dance with the provisions of Public Law 280 of the 83rd
Congress and section 203 of the North Dakota constitution,
jurisdiction of the state of North Dakota shall be extended
over all civil causes of action which arise on an Indian res-
ervation upon acceptance by Indian citizens in a manner
provided by this chapter. Upon acceptance the jurisdiction
of the state shall be to the same extent that the state has
jurisdiction over other civil causes of action, and those
civil laws of this state that are of general application to
private property shall have the same force and effect with-
in such Indian reservation or Indian country as they have
elsewhere within this state.

27-19-02. Method of acceptance.—Acceptance of
jurisdiction may be by either of the following methods:

1. Upon petition of a majority of the enrolled resi-
dents of a reservation who are eighteen years of
age or older; or

2. The affirmative vote of the majority of the enrolled
residents voting who are eighteen years of age or
older, at an election called and supervised by the
North Dakota Indian affairs commission upon peti-
tion of fifteen percent of those eligible to vote at
such an election.

27-19-03. Acceptance proclamation.—Upon accep-
tance of civil jurisdiction by either method provided in
section 27-19-02 the executive director of the Indian af-

fairs commission shall certify such acceptance to the gov-
ernor. Upon such certification the governor shall, within
ten days, issue a proclamation proclaiming that thirty days
from the date of the issuance of such proclamation the pro-
visions of this chapter shall be in effect.

27-19-04. Effective date.—The provisions of this
chapter shall affect only those causes of action which arise
after the effective date of state jurisdiction as provided
in section 27-19-03.

27-19-05. Individual acceptance.—An individual
Indian may accept state jurisdiction as to himself and his
property by executing a statement consenting to and de-
claring himself and his property to be subject to state
civil jurisdiction as herein provided. Such jurisdiction
shall become effective on the date of execution of such
statement. The statement accepting state jurisdiction shall
be filed in the office of the county auditor of the county
in which the person resides and when so filed shall be
conclusive evidence of acceptance of state civil jurisdiction
as provided herein. (This section has been held ineffective
under the supremacy clause of the United States Constitu-
tion and Public Law 90-284, 25 U.S.C. section 1322. Nelson
v. Dubois, 232 N.W.2d 54 (N.D. 1975).)

27-19-06. Acceptance by guardian.—A guardian
appointed by the tribal court or court of Indian offenses
may consent to state civil jurisdiction for his ward pro-
vided he is authorized to do so by the tribal court or court
of Indian offenses. (Public Law 90-284 changed the method
by which states could assume civil jurisdiction over actions
involving Indians and occurring within Indian country. No
action has been taken in North Dakota in compliance with
Public Law 90-284 and, consequently, North Dakota does
not have jurisdiction over Indians residing within the ex-
terior boundaries of an Indian reservation. Some pro-

21

visions of this chapter such as section 27-19-05 and possibly
section 27-19-06 are no longer effective because of Public
Law 90-284. Malaterre v. Malaterre, 293 N.W.2d 139 (N.D.
1980) .)

27-19-07. Contempt powers.—In addition to other
authority conferred by this chapter, the courts of this state
shall have the power to hold persons in civil or criminal
contempt of court in order to maintain the dignity of the
courts and enforce their orders.

27-19-08. Limitations upon jurisdiction.—Nothing
in this section shall authorize the alienation, encumbrance,
or taxation of any real or personal property belonging to
any Indian or 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 owner-
ship or right to possession of such property or any interest
therein. The civil jurisdiction herein accepted and as-
sumed shall include but shall not be limited to the de-
termination of parentage of children, termination of
parental rights, commitments by county mental health
boards or county judges, guardianship, marriage contracts,
and obligations for the support of spouse, children, or
other dependents.

27-19-09. Tribal ordinances and customs pre-
served.—Any tribal ordinance or custom heretofore
or hereafter adopted by any Indian tribe, band, or com-
munity, in the exercise of any authority which it may
possess shall, if not inconsistent with the applicable civil
law of this state, be given full force and effect in the

22

determination of civil causes of action pursuant to this
section.

27-19-10. Other benefits not affected.—The pro-
visions of this chapter shall not be construed as requiring
the extension of any health, welfare, educational or other
governmental service to Indian reservations or Indian
country, not otherwise required by the laws or constitu-
tion of this state.

27-19-11. Petition for withdrawal.—Civil jurisdic-
tion as herein provided over an Indian reservation may be
terminated by petition of three-fourths of the enrolled
residents of a reservation who are eighteen years of age
or older. Such petition shall be filed with the North
Dakota Indian affairs commission.

27-19-12. Withdrawal proclamation.—Upon the
filing of a petition for withdrawal from the civil jurisdic-
tion of the state, the executive director of the North Dakota
Indian affairs commission after substantiating that the pro-
visions of section 27-19-11 have been complied with shall
certify such withdrawal to the governor. Upon such cer-
tification the governor shall, within ten days, issue a proc-
lamation proclaiming that thirty days from the date of the
issuance of such proclamation the civil jurisdiction of the
state shall be terminated except as to those causes of ac-
tion which arose prior to the effective date of such ter-
mination or to those contractual obligations which were
incurred prior to the effective date of such termination
of state civil jurisdiction.

27-19-13. Individual withdrawal.—An individual
who has accepted state civil jurisdiction under the pro-
visions of section 27-19-05 may withdraw upon filing with
the county auditor a statement declaring his withdrawal.
Such withdrawal shall not affect causes of action which
arose prior to such withdrawal or contractual obligations
which were incurred prior to such withdrawal.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385009_0972%3A03. Public record. Not legal advice.