Petitioners Brief — Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, PC

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No. 82-629 ALEXANDER L. STEVAS&:

In The

- Supreme Court of the United States

October Term, 1983

THREE AFFILIATED TRIBES OF THE

FORT BERTHOLD RESERVATION,

Petitioner,

vs.

WOLD ENGINEERING, P.C., and

SCHMIDT, SMITH & RUSH, P.C.,

Respondents.

On Certiorari to the Supreme Court of North Dakota

fh».

“~

PETIiTIONER’S BRIEF

—_— *

——

Joux O. Hotm,*

17 Second Avenue West

Dickinson, North Dakota 58601

(701) 225-6066

CuaistorpHer D. Quae

Raymonp Cross ‘

Bex 220

New Town, North Dakota 58763 |

(701) 627-3621

— Counsel for Petitioner

*Counsel of Reeord

SS COCKE PRINTING OO. 2111 Deeg S Ome GHGS

QUESTIONS PRESENTED

1. Whether Public Law 280 authorizes a state to

enact a statute barring an Indian’s claim for damages,

due to the negligent design of a water intake system on-

reservation, against a non-Indian engineering firm, unless

the affected Indians vote to accept state jurisdiction

under state law.

2. Whether federal policy embodied? in decisional

law and in Public Law 280, as amended, providing, among

other things, for the orderly transfer of limited federal

authority over Indian affairs to the states, should be

understood as prohibiting state judicial jurisdiction over

suits brought by Indians against non-Indian defendants

under state law where no interference with tribal or fed-

eral regulatory interests is involved.

3. Whether Chapter 27-19 of the North Dakota judic-

ial code, consistent with the Equal Protection and Due

Process clauses of the Fourteenth Amendment, should be

regarded as depriving Indian plaintiffs of a forum for

enforcement of state-created rights.

~o—

PARTIES TO THE ACTION

The parties to this proceeding are the Three Affili-

ted Tribes of the Fort Berthold Reservation, Petitioner;

Wold Engineering, P.C., a North Dakota professional

corporation, Respondent; and, Schmidt, Smith & Rush,

Respondent.

~ , — |

TABLE OF CONTENTS

Page

Questions Presented ~ i

Parties to the Action i

Table of Authorities iv

Opinions Below 1

Jurisdiction 1

Constitutional and Statutory Provisions 0000... _ 2

Statement of the Case 2

Summary of Argument 5

Argument:

I. North Dakota has no state policy barring Indian

suits based on state law nenvena non-Indians in

State Court.

A. Introduction

B. State law authorized Indian suits against

non-Indians before the enactment of Chap-

ter 27-19 of the North Dakota Century Code.

C. The State Court construed Chapter 27-19 of

the State Judicial Code as constituting a fed-

erally authorized disclaimer of state jurisdic-

— over all Indian claims arising on-reser-

on.

II. Federal policy does not require an absolute bar

against state judicial jurisdiction over suits by

Indians against non-Indian defendants under

state law where no interference with federal or

tribal interests is involved.

A. North Dakota has adopted federal law as the

ogg limit on its judicial power over

ITI.

Conclusion

Appendix

iii

TABLE OF CONTENTS—Continued

Page

B. North Dakota’s failure to accept Public Law

280 jurisdiction does not bar the Tribe’s neg-

ligence action against a non-Indian in state

court.

C. There is no federal decisional rule barring

petitioner’s action in state court.

Congress did not consent to, or authorize, North

Dakota’s enactment of Chapter 27-19 of its judi-

cial code.

A. Congress imposed, through Section 7 of Pub-

lic Law 280, strict requirements that North

Dakota failed to meet. ...

B. Congress by its 1968 amendments to Public

Law 280, has rendered moot the state court’s

assumption that petitioner must consent, as

a matter of federal law, under Chapter 27-

19 of the state judicial code as a prerequisite

to state court’s jurisdiction over petitioner’s

action.

Chapter 27-19 of the North Dakota Judicial Code,

as construed by the State Supreme Court, vio-

lates the Due Process and Equal Protection

Clauses of the Fourteenth Amendment. ....__..

A. Introduction

B. The State Statute clearly conilicts with the

Petitioner’s Due Process rights

C. The appropriate standard of judicial review

of this state legislation is strict scrutiny...

D. The state law in question does not represent

the least restrictive solution to any jurisdic-

tional concerns the state may have.

: & &&

A. 1

TABLE OF AUTHORITIES

Pages

UNITED STATES SUPREME COURT CASES:

Arizona v. San Carlos Apache Tribe, 51 U.S. L. W.

5095 (U.S. June 28, 1983) sanmwneny 14 26, 27

Breisch v. Central R. R., 312 U.S. 484 (1941) 200

Brinkerhoff-Faris Trust & pares Co. v. Hill,

281 U.S. 673 (1930) a

Bryan v. [thasca County, 426 U.S. 373 3 (1976) . atin

The Civil Rights Cases, 109 U.S. 3 (1883) 200000 8D

Felix v. Patrick, 145 U.S. 317 (1982) 0000

Fisher v. District Court, 424 U.S. 382 (1976) 200. »=—-29

Kennerly v. District Court, 400 U.S. 423 (1971) —passim

Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982). 43

Loving v. Virginia, 388 U.S. 1 (1967) . saltieneaiaaiiie

Lynch v. Household Finance Corporation, 4 405 U.S.

538 (1971) nite ooh 2, 43

McClanahan v. Arizona State Tax senile.

411 U.S. 164 (1973) . 26, 28, 29, 31

Mobile & S. Ohio R. R. v. . Tennessee, 153 U.S.

486 (1894) SEE TO

Morton v. Mancari, 417 U. 8. 535 (1974) .. bien ae

Murry’s Lessee v. Hoboken Land and siiesieg.

ment Co., 18 U.S. (How.) 272 (1856) 20000

Plyer v. Doe, 457 U.S. 202 (1982) 44, 45, 46

Sniadich v. Family Finance Corp., 395 U.S. 337

(1969) 42, 43

Tipton v. Atchison T. & 8S. F. Ry., 298 U.S. 141

(1936) 15

TABLE OF AUTHORITIES—Continned

Pages

United States v. O’Brien, 391 U.S. 367 (1968) .. ose

United States v. Carolene ene 304 U.S. 144

(1938) a 40, 43

United States v. Chicago R.1.& P. R. Co., 282 U.

S. 311 (1931) 32

United States v. Kagama, 118 U.S. 375 (1886) —....19, 45

Warren Trading Post v. Arizona State Tax Com-

mission, 380 U.S. 685 (1965) rs ..80, 31

ae v. Yakima Indian neuen 439 U.S.

463 (1979) passim

Williams v. Lee, 358 U.S. 217 (1959) ee passim

Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). = «6

OTHER FEDERAL CASES:

Agua Caliente Band of Mission Indians v. Palm

Springs, 347 F. Supp. 42 (C. D. Cal. 1974) 200000.)

Anderson v. Gladden, 293 F. 2d 463 (9th Cir. 1961) —. 20

Bird v. Terry, 129 F. 472 (C.C. W. D. Wash. 1903)..... 25

City of New Town v. U.S., 454 F. 2d 121 (8th Cir.

1972) 2

Corfield v. Coryell, Case No. 3230, 4 Wash. at 371

(C.C. E. D. Pa. 1823) 40

Deere v. New York, 22 F. 2d 851 (N. D.N. ¥Y. 1927) —. 25

Omaha Tribe v. Walthill, 334 F. meek 823 (D.

Neb. 1971), affirmed, 460 F. 2d 1327 (8th Cir.

1972) 27

Poitra v. Demarrias, 502 F. 2d 23 (8th Cir. 1974),

reversing, 369 F. Supp. 257 (D. N. D. 1973). a oe

Quechan Tribe v. Rowe, 531 F.2d 408 (9th Cir.

1976) 31

TABLE OF AUTHORITIES—Continued

Pages

Robinson v. Wolff, 349 F.Supp. 514 (D. Neb.),

affirmed, 468 F.2d 438 (8th Cir. 1972) 0.2.

Schantz v. White sAguining, | 502 F. 2d 67 wna Cir.

1974) sadisinaaebanatiel 41

STATE CASES:

Gourneau v. Smith, 207 N. W. 2d 256 (N. D. 1973) 12, 13, 30

Lohnes v. Cloud, 254 N. W. 2d 430 (N. D. 1977) WW... 41

Morgan v. Colorado River Indian Tribe, 7 Ariz.

App. 92, 436 P. 2d 484, vacated on other grounds,

103 Ariz. 425, 443 P. 2d 421 (1968) ... 34

Nelson v. Dubois, 232 N. W. 2d 64 (N.D. 1975) —W-.- 387

Robinson v. Sigler, 187 Neb. 144, 187 N. W. 2d 756,

appeal dismissed, 404 U.S. 987 (1971) 21

Rolette County v. Eltobgi, 221 N. W. 2d 645 (N. D.

1974) siidlhdbdamitteed | 13, 39, 46

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

(N. D. 1975) ~ 12

State v. Molash, 86 S.D. 558, 199 N. W.2d 591

(1972) 34

Three Affiliated Tribes v. Wold Engineering,

321 N. W. 2d 510 (N. D. 1982) 1, 14, 22, 45

Vermillion v. Spotted Elk, 85 N. W. 2d 342 (N.D

1957) 10, 12

White Eagle v. Dorgan, 209 N. W. 2d 621 (N.D.

1973) 13

In re White Shield, 124 N. W. 2d 694 (N. D. 1963) —.... 12

Whyte v. District Court, 140 Colo. 334, 346 P. 2d

1012 (1959), cert. denied, 363 U.S. 829 (1960) .... 34

vii

TABLE OF AUTHORITIES—Continued

Pages

UNITED STATES CONSTITUTION:

U.S. Const., art. XIV, $1 passim

UNITED SIATES STATUTES:

North Dakota’s Enabling Act, § 4, 25 Stat. 677 00. = 1

8 U.S.C. $1401 (2) 19

28 U.S.C. § 1257 (3) 1

Public Law 280 of 1953, Ch. 505, Sections 6 and 7,

67 Stat. 589. Section 7 was repealed by Section

403 (b) of P. L. 90-284, 82 Stat. 79. Section 6

was reenacted by Section 404 of that same stat-

ute and is now codified at 25 U.S.C. 41324.

Section 402 (a) is codified at 25 U.S.C. § 1322

(a). Section 406 is codified at 25 U.S. C. 4 1326 _passim

NORTH DAKOTA CONSTITUTION:

N. D. Const., art. 1, § 22 2, 24, 39

N.D. Const., art. XVI, § 203, amended and re-

numbered as art. XIII, $1 ..... 2,5, 11

NORTH DAKOTA STATUTES:

N. D. Cent. Code § 27-19-01 passim

N. D. Cent. Code 4 27-19-02 (1) 37

N. D. Cent. Code § 27-19-02 (2) 2, 35

N. D. Cent. Code § 27-19-05 2, 37

FEDERAL REPORTS AND HEARINGS:

Background Report on Public Law 280, Commit-

tee on Interior and Insular Affairs, U.S.

Senate, 94th Cong., Ist Sess. (1975) —__.20, 21, 34, 35

viii

TABLE OF AUTHORITIES—Continued

Pages

Hearings on H.R. 1519, Before the House Sub-

committee on Indian Affairs, 90th Cong., 2d

Sess. (March 29, 1968) 35

H. Rep. No. 848, 83rd Cong., Ist Sess. (1953) 17, 19

S. Rep. No. 699, 83rd Cong., Ist Sess. (1953) 17, 18, 19

S. Rep. No. 841, 90th Cong., Ist Sess. (1967) 0-4-2 35

Hearings on H. R. 1063, Before the Subcommittee

on Indian Affairs of the House Committee on

Interior and Insular Affairs, 83rd Cong., Ist

Sess. (June 29, 1953), Trenseript I 17,18

Hearings on H. R. 1063, Before the Subcommittee

on Indian Affairs of the House Committee on

Interior and Insular Affairs, 83rd Cong., Ist

Sess. (July 15, 1953), Transeript II . 17, 23

SECONDARY SOURCES:

Burnette, An Historical Analysis of the 1968

Indian Civil Rights Act, 9 Harv. J. on Legis.

557 (1972) 35, 36

Cohen, Handbook of Federal Indian Law (Uni-

versity of New Mexico Press, 1971 Reprint)

Deaby, The Growth of American State Cons! itu-

tions, (DeCapo Press, 1972) 39

Goldberg, Public Law 280: The Limits of State

Jurisdiction over Reservation Indians, 22

U.C.L. A. L. Rev. 535 (1975) 18, 36

Hale, Unconstitutional Conditions and Constitu-

tional Rights, 35 Col. L. Rev. 321 (1935) 37

Kutner, Can Federal Courts Remain Open when

State Courts are Closed? Erie Tompkms on the

Indian Reservation, 52 N.D. L. Rev. 647 (1975). 13

—

TABLE OF AUTHORITIES—Continued

Pages

Linde, Due Process of Law Making, 55 Neb. L.

Rev. 197 (1976) 47

Schwartz, Statutory History of the United

States: Civil Rights, Part 1 .. 40

No, 82-629

ty.

_—

In The

Supreme Court of the United States

October Term, 1983

THREE AFFILIATED TRIBES OF THE

FORT BERTHOLD RESERVATION,

Petitioner,

vs.

WOLD ENGINEERING, P.C., and

SCHMIDT, SMITH & RUSH, P.C.,

Respondents.

ra’

—<—

On Certiorari to the Supreme Court of North Dakota

PETITIONER’S BRIEF

OPINIONS BELOW

The judgment of dismissal of North Dakota for the

Northwest Judicial District in Ward County, Civil No.

46392, is an unreported decision. The judgment of the

North Dakota Supreme Court affirming the district court’s

dismissal of petitioner’s action is reported at 321 N. W. 2d

510 (1982).

— CX

mm 4

JURISDICTION

The decision and judgment of the Supreme Court of

North Dakota was entered on July 1, 1982. This Court

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

va%

[a ve |

CONSTITUTIONAL AND

STATUTORY PROVISIONS INVOLVED

The text of the following constitutional provisions and

statutes relevant to the determination of the present case

are set forth in the Appendices:

Federal: U.S. Const. art. XIV, § 1; Section 4 of North

Dakota’s Enabling Act, 25 Stat. 677; Sections 6 end 7 of

Public Law 280, 67 Stat. 589; Sections 402(a), 408(b), 404,

and 406 of Public Law 90-284, 82 Stat. 79. Section 403(b)

repealed Section 7 of Public Law 280. Section 404 re-

enacted Section 6 of that same statute and is now codified

at 25 U.S.C. $1324 (1983). Section 402(a) is codified

at 25 U.S.C. §1322(a) (1983). Section 406 is codified at

25 U.S.C. 4 1326 (1983).

State: North Dakota Const. art. XVI, § 203, amended

and renumbered as art. XIII, §1; art. 1, § 22; N. D. Cent.

Code §§ 27-19-01, 27-19-02(2), and 27-19-05.

STATEMENT OF THE CASE

This case concerns an action for damages brought by

the Three Affiliated Tribes, a federally-recognized Indian

tribe, against a non-Indian engineering firm. This case

arose on the Fort Berthold Indian Reservation in North

Dakota. ‘That reservation had been set aside for the use

and occupancy of the Mandan, Gros Ventre, and Arikara

tribes by the Act of March 3, 1891, 26 Stat. 103%. See City

of New Town v. United States, 454 F. 2d 121 (8th Cir.

1972).

Petitioner, the Three Tribes, contracted in 1974 with

respondent, Wold Engineering Company. Wold is a pro-

fessional corporation organized under the laws of North

Dakota and has its principal office off-reservation in Bot-

tineau, North Dakota. Wold was employed by petitioner

to design a public works project on the Fort Berthold In-

dian Reservation. The purpose of this project, known as

the Four Bears Water Systems Project, was to provide a

continuous, safe, and secure domestic water supply source

to serve the needs of a portion of the reservation populace.

This was to be accomplished by diverting water from Lake

Sakakawea through an intake structure and pump system

(J.A. 2).

Respondent undertook the project and had installed a

submersible pump, built to its design specifications, on a

pier of the Four Bears Bridge that crossed the Lake. That

system was completed on July 29, 1977. However, that

system was subject to continual failure and despite several

attempts at correction by respondent, the system has never

delivered a continuous supply of water as was contem-

plated by the project’s purpose (J.A. 2-3).

Despite a meeting between the Tribe and Wold Engi-

neering on March 21, 1979, there was no final resolution of

the problems with the water system. Petitioner has spent

more than $200,000.00 on this project (J.A. 3).

Petitioner commenced a negligence and breach of con-

tract action against respondent on March 20, 1980 (J.A.

3). The cause of action for damages was based on Wold’s

negligent design of the project and on its breach of its

contract with the Tribe (J.A. 2-3). Wold also sued Schmidt,

Smith & Rush, a subcontractor that worked on that project,

and brought it into the case as a third-party defendant

(J.A. 9). State court jurisdiction over petitioner’s negli-

gence action against Wold is premised both on the service

of process on respondent within the state in accordance

with North Dakota law and the fact that the conduct of re-

spondent that forms the basis of petitioner’s action oc-

eurred in North Dakota (J.A. 2).

On January 11, 1982, trial on petitioner’s complaint

was commenced in State District Court for the Northwest

Judicial District. Wold moved the court that same day

to dismiss the Tribe’s action against it (J.A. 18). That mo-

tion was based on the ground that be » * the Tribe’s

cause of action arose on-reservation the state court, as a

matter of federal! law, lacked jurisdiction over the case en-

tirely. Respondent’s motion was granted by the trial judge

on January 11, 1982 (J.A. 20).

Thus, petitioner was never accorded a hearing on the

merits of its complaint against respondent. Instead, the

trial court dismissed petitioner’s action on a preliminary

motion solely on the ground that it lacked subject matter

jurisdiction over petitioner’s cause of action. That dis-

missal was viewed by the court as required by federal law

(J.A. 19-20).

On February 23, 1982, petitioner filed his Notice of

Appeal to the Supreme Court of North Dakota (Pet. 2a).

The Supreme Court of North Dakota issued its decision

on July 1, 1982, affirming the district court’s dismissal of

petitioner’s action (Pet. 3a).

In the course of the supreme court’s decision it re-

viewed the history of state judicial jurisdiction over In-

dian claims arising on-reservation. The state supreme

court, despite the fact that there was no state policy bar-

ring Indian suits against non-Indians in state court, con-

eluded that it was compelled to affirm the dismissal of

the action because of a federal law that prohibited state

judicial authority over this type of action. This law is

the Act of August 15, 1953, 67 Stat. 588, popularly known

as Public Law 280. More particularly, the state supreme

court construed a state statute, Chapter 27-19 of the state

judicial code, to require that state courts close their doors

to Indian claims arising on-reservation. This state law

was held to be authorized by Public Law 280.

The state had amended its state constitution in 1958

to remove the federally-imposed disclaimer over Indian

lands within the state. N.D. Const. Art. XVI, § 203,

amended and renumbered as art. XIII, 41 (A. 3a). The

state legislative assembly then enacted, in 1963, Chapter

27-19 of the North Dakota Century Code (A. 4a). It was

this state law, as adopted under Public Law 280, that the

supreme court deemed closed the state courts to Indians

who sued on claims that arose on-reservation. The court

construed the state statute, enacted under ostensible fed-

eral consent, as prohibiting civil jurisdiction over peti-

tioner’s claim until he consented to the exercise of state

jurisdiction over the reservation.

The Tribe filed its Petition for Writ of Certiorari on

September 28, 1982. This Court granted that Petition on

April 25, 1983. 103 S. Ct. 1872 (1983). The T'.ree Affil-

iated Tribes’ Constitution, Chapter Ll, §1(a), does not

authorize the tribal court to exercise jurisdiction over non-

Indians for civil jurisdictional purposes absent the non-

Indian's consent to such jurisdiction.

st.

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SUMMARY OF ARGUMENT

The fundamental! issue is whether the Supreme Court

of North Dakota erred in affirming the dismissal by the

state district court of the Three Affiliated Tribes’ negli-

gence action against a non-Indian engineering firm based

on the ground that federal law either authorized or com-

pelled the adoption of a state statutory disclaimer, Chapter

27-19 of the state judicial code, of civil jurisdiction of suits

by Indians against non-Indians arising on an Indian reser-

vation.

Congress’ authority and jurisdiction over the subject

matter of Indian affairs was established early in this coun-

try’s history. Worcester v. Georgia, 31 U.S. (6 Pet.) 515

(1832). Worcester has also been recognized as standing,

at one time, for the principle of the virtually absolute inde-

pendence of Indians on-reservation from state regulation.

Arizona v. San Carlos Apache Tribe, 51 U.S. L.W. 5095,

5100 (U.S. June 28, 1983). However, this Court’s more

recent decisions have rejected the arbitrary and rigid con-

cepts of jurisdiction based on territorial sovereignty in

favor of an analysis of the interests underlying the com-

peting jurisdictional claims of Indian tribes and states.

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

The state supreme court concluded in its decision be-

low that the implications of Congress’ intent in enacting

the jurisdictional statute known as Public Law 280 re-

quired North Dakota to close its courts’ doors to suits by

Indians against non-Indians if the suits arose on an Indian

reservation within the state. Alternatively, the state court

viewed Congress as consenting, under Public Law 280, to

the adoption of a state statute implementing an amend-

ment to the state constitution removing its congressionally-

imposed disclaimer clause regarding Indian lands (A. 4a).

This is the statute the state court construed as prohibiting

state court jurisdiction over Indian claims arising on-

reservation.

Petitioner considers as dispositive on this issue this

Court’s recent decision holding that, as a matter of federal

.—P —.

law, the presence or absence of a congressionally-required

disclaimer clause in a state constitution is largely irrele-

vant as an analytic tool in deciding whether a state has

jurisdiction over a specific Indian case or subject matter.

Arizona v. San Carlos Apache Tribe, 51 U,S.L.W. 5095,

5100 (U.S. June 28, 1983). However, because this Court,

in that decision, also indicated that deference should

be paid to the construction that state courts place on the

disclaimer clauses in their own constitutions, petitioner

considers it necessary to show in some detail that North

Dakota has no independent state law or policy barring

Indian suits against non-Indians in state court. Arizona

v. San Carlos Apache Tribe, 51 U.S.L.W. 5095, 5099 (U.S.

June 28, 1983). Additionally, petitioner considers it neces-

sary to show that there is no express or implied con-

gressional intent behind the enactment of Public Law 280

that prohibits state jurisdiction over petitioner’s action.

Further, petitioner views the state supreme court’s conclu-

sion that Congress consented under that federal statute to

the adoption of Chapter 27-19 of the state judicial code as

equally erroneous in light of the plain terms of Public

Law 280 and the decisions of this Court interpreting that

act.

Petitioner submits that based on the repeated decla-

rations by the North Dakota Supreme Court that the state

has no independent state law or policy barring Indians

from state court, that the sole issue for determination by

this Court on review is whether federal law bars peti-

tioner’s action against respondent in state court. There

is no explicit or implicit congressional intent behind Public

Law 28 prohibiting states that did not accept the federal

jurisdiction offered under that statute from adjudicating

suits by Indians against non-Indians in state court where

no significant federal or tribal interests are implicated.

Further, Congress did not intend to consent to, or author-

ize, under Public Law 280, the adoption of state statutes

such as Chapter 27-19 of the North Dakota judicial code

that has been interpreted by the state supreme court as

completely barring Indian access to state courts if their

claims arise on-reservation.

Federal law, and the decisions of this Court, have

recognized the right of Indians to sue a non-Indian in state

court to obtain a remedy for the wrongs done to them.

There do exist special legal principles, based primarily

on federal Indian treaties and statutes, that are intended

to protect from state intrusion the unique cultural and po-

litical arrangements that define Indians as Indians. How-

ever, these principles have never precluded an Indian from

suing a non-Indian in state court based on a state-created

cause of action. It is equally clear that this Court has

never allowed a non-Indian to use as a defense to an In-

dian’s claim for relief against him federal principles of

law intended solely to protect Indians in their unique status

as Indians.

The state jurisdictional rule, embodied in its judicial

code, closing its state courts entirely to Indians if their

claims stem from an on-reservation transaction ‘s not re-

quired by federal law as is supposed by the North Dakota

Supreme Court. Indeed, this Court has recognized that

where the wrongful conduct of a non-Indian is involved

in a case it is entirely appropriate for a state court to as-

sert its interest in regulating the conduct of that person

under its state law. Further, while the state supreme

court is entirely correct in its observation that a complex

relationship exists—one that cannot be adequately de-

scribed or summarized by a single criterion—between the

Indian and the federal government, that relationship

neither requires nor justifies the state’s exclusion of In-

dians from state court.

This state jurisdictional rule, by implication, would

allow non-Indians to injure Indians without being answer-

able in state court. Such a rule would have grave conse-

quences for the protection of the tribes’ proprietary inter-

ests, especially in commercial transactions. Here, re-

spondent received large sums of monies under a contract

with the petitioner to build a public works project on-reser-

vation.

This state jurisdictional rule, purportedly authorized

or required by federal law, clearly is inconsistent with the

decisions of this Court that have recognized that Indians

can sue non-Indians in state court if no federal or tribal

interests are violated by such an action. If the state juris-

dictional rule is construed as being an independent state

law barrier to petitioner’s action, then that state law is

clearly in violation of the due process and equal protec-

tion clauses of the Fourteenth Amendment to the United

States Constitution.

— *

ARGUMENT

I. North Dakota Has No State Policy Barring Indian

Suits Based On State Law Against Non-Indians In

State Court

A. Introduction

The state supreme court held in the decision below

that North Dakota courts are barred as a matter of fed-

eral law from adjudicating Indian claims against non-In-

dians if those claims arise on a federal Indian reservation

in the state. The federal law cited by the state court that

ostensibly compels or authorizes the state courts to dis-

claim subject matter jurisdiction over these suits is the

Act of August 15, 1953, 67 Stat. 588, popularly known as

Public Law 280.'

B. State Law Authorized Indian Suits Against Non-

Indians Before The Enactment Of Chapter 27-19

Of The North Dakota Century Code

The Supreme Court of North Dakota had, prior to

the enactment of Chapter 27-19, declared a state jurisdic-

tional rule that allowed state courts to hear Indian suits

arising from reservation transactions as long as the suits

did not involve Indian lands held in trust by the United

States. See Vermillion v. Spotted Elk, 85 N. W. 2d 342

(N. D. 1957). The decision in Vermillion reflects the state

supreme court’s consistent opinion that the disclaimer

provision in the state’s constitution, reading that “Indian

lands shall remain under the absolute jurisdiction and con-

trol of the Congress of the United States,” did not limit

state court jurisdiction as long as the litigation did not

affect Indian lands. /d., at 438. But see, William v. Lee,

358 U.S. 217 (1959)

Therefore, the state supreme court found that its ad-

judicative authority, absent federal law to the contrary,

extended to Indian suits on-reservation because Indians,

as state citizens, were entitled to sue in state courts on

the same terms as other ci*izens.

C. The State Court Construed Chapter 27-19 Of The

State Judicial Code As Constituting A Federally

Authorized Disclaimer Of State Jurisdiction Over

All Indian Claims Arising On-Reservation

'This case involves only Sections 6 and 7 cf Public Law 280.

Section 7 was repealed by Section 403(b) of Public Law 90-284,

Act of April 11, 1968, 82 Stat. 79. Section 6 was reenacted by

Section 404 of that Act and is now codified at 25 U.S.C. § 1324.

(The full text of the relevant provisions of Public Law 280, in-

cluding its amendments, is set forth in the ix.) (Here-

Public Law 280 shall be referred to as Pub. L. 280.)

The State of North Dakota amended Sect!» 203? of

its constitution in 1958 in an effort to conform to what it

perceived to be the federal jurisdictional requirements

contained in Pub. L. 280. The disclaimer provision of the

state constitution, after amendment, provided “for the ac-

ceptance of such jurisdiction as may be delegated to the

State by Act of Congress .. .” N. D. Const. Art. XIII, $1

(A. 3a). That amendment enabled the North Dakota state

legislative assembly to enact such legislation as deemed

proper and necessary to conform to the further federal

requirements for state assumption of jurisdiction over

[Indians contained in Section 7 of Pub. L. 280.

The state legislative assembly, in 1963, enacted Chap-

ter 27-19 of the North Dakota Century Code, reciting in

the Preamble that the statute was passed in accordance

with the provision of Pub. L. 280 “and providing that the

jurisdiction of the State of North Dakota shall be extended

over all civil causes of action which arise on Indian reser-

vation upon acceptance by Indian citizens in a manner

2North Dakota was both a so-called “optional” and a dis-

claimer state under Pub. L. 280’s classification scheme. There-

fore, not only was it required under Section 6 of that statute to,

by appropriate action under state law, remove the disclaimer

clause in its state constitution, it was also required to take “af-

firmative legislative action” concerning either civil or criminal

jurisdiction over Indian affairs in order to comply with Section 7

of Pub. L. 280. (A. 5a.)

Section 7 of Pub. L. 280 controls, as a matter of federal law,

the issue of what state legislation is sufficient to qualify for ad-

equate acceptance of the federal jurisdictional offer. Ken-

nerly v. District Court, 400 U. S. 423, 425 (1971). North Dakota

clearly failed, as a matter of federal law, to accept of the

jurisdictional responsibilities over Indians that wasn etend to

it by Congress under Section 7 of that federal jurisdictional stat-

ute. See Washin v. Yakima Indian Nation, 439 U.S. 463,

493 (1979). Dakota is now precluded from asserting

unilateral at over Indian affairs within the state by the

repeal of ion 7 by Congress in 1968 and the enactment of

25 U.S.C. §§ 1322(a) and 1326. (A. 6a, 8a.)

provided by this section.” N.D. Cent. Code 4 27-19-01

(A. 4a).

The North Dakota Supreme Court interpreted the

jurisdictional effect of the state legislative steps stemming

from what the court perceived as federal authorization

contained in Pub. L. 280 in Jn re White Shield, 124 N. W.

2d 694 (N.D. 1963). There, the court held that state

courts have no jurisdiction over a proceeding for the ter-

mination of parental rights of Indian parents residing on

an Indian reservation within North Dakota. The court’s

rationale for declining jurisdiction in that case was that

the state legislature, through the exercise of the authority

delegated to it by Congress in Sections 6 and 7 of Pub. L.

280, had disclaimed jurisdiction over that class of actions.

The state supreme court’s decisions subsequent to

In re White Shie'd expanded what the court perceived to

be a federally imposed jurisdictional bar against state

court jurisdiction over Indian eases. The jurisdictional

rule as elaborated by that court’s decision in Gourneau v.

Smith, 207 N. W. 2d 256 (N. D. 1973)' and Schantz v. White

Lightning, 231 N. W. 2d 812 (N. D. 1975), amounted to a

complete bar against state court jurisdiction of civil ac-

tions arising on-reservation when the defendant happens

to be an Indian.

The Supreme Court of North Dakota repeatedly added

in these decisions that North Dakota has no independent

policy barring Indian suits by Indian plaintiffs availing

themselves of the state’s courts as a forum for their ac-

tions. However, the court added, federal law, as accepted

through the medium of state legislation, closed the state

5The North Dakota Supreme Court in this decision also ex-

pressly overruled Vermillion v. Spotted Elk, 85 N.W.2d 342

(N. D. 1957).

courts to suits against Indian defendants. Cf., Rolette

County v. Eltobgi, 221 N. W. 2d 645 (N.D. 1974).4

Despite these decisions by the state supreme court

barring state court adjudication of actions involving In-

dian defendants, it had been presumed that there was no

jurisdictional bar against Indian plaintiffs suing non-In-

dian defendants in state .ourts regardless of the situs of

the action.’ See generally, Rolette County v. Eltobgi, 221

N. W. 2d 645, 648 (N.D. 1974): White Eagle v. Dorgan,

209 N. W. 2d 621 (N.D. 1973). However, the North Da-

kota Supreme Court in the decision on review here extend-

ed its rationale regarding the perceived federal bar to

state jurisdiction over any actions arising on-reservation

to the new fact situation wherein an Indian plaintiff sues

a non-Indian defendant in a civil cause of action arising .

from a reservation transaction.

The Nort Dakota Supreme Court relies directly on

Pub. L. 280 in reaching its result in this case:

Likewise the people of North Dakota and the Legis-

lature were acting under explicit authority granted by

‘The Eighth Circuit Court of Appeals in Poitra v. Demar-

rias, 502 F.2d 23 (8th Vir. 1974), reversing, 369 F.Supp. 257

(D.N.D. 1972), relied on the repeated declarations by the state

of North Dakota Supreme Court that North Dakota had no state

policy against the Indians suing in state court. On the contrary,

the court of appeals found that, absent the perceived federal

bar contained in Pub. L. 280, the North Dakota Supreme Court's

opinion is that state courts are open to Indians. Poitra, at 27.

Therefore, the appeals court found that no state ~~

would be offended by allowing a diversity suit

Indians stemming from a reservation transaction and with tacts

similar to those presented in Gourneau v. Smith, 207 N. W.

2d 256 (N.D. 1973).

5See Kutner, Can Federal Courts Remain Open when State

Courts are Closed? Erie Tompkins on the Indian Reservation.

52 N.D. L. Rev. 647 (1975).

Congress in the exercise of its federal power over

Indians when our Constitution was amended and

Chapter 27-19 N.D.C.C. was enacted. We therefore

find no equal protection violation of the Constitution

of either the State or the United States, and for the

reasons stated in this opinion, affirm the judgment of

the district court. 321 N. W. 2d at 513.

The general jurisdictional rule after this decision is

that the North Dakota courts lack jurisdiction over any

case arising on a federal Indian reservation in North Da-

kota and involving an Indian as either party. This bar

to state court jurisdiction arises, according to the state

supreme court, as a matter of federal law. There is no

independent state policy barring state court jurisdiction

over Indian suits in state court.

II. Federal Policy Does Not Require An Absolute Bar

Against St: .e Judicial Jurisdiction Over Suits By In-

dians Against Non-Indian Defendants Under State

Law Where No Interference With Federal Or Tribal

Interests Is Involved

A. North Dakota Has Adopted Federal Law As The

Governing Limit On Its Judicial Power Over In-

dians

The North Dakota Supreme Court regarded federal

Indian law, particularly Pub. L. 280 and the decisions of

this Court interpreting that statute, as compelling or au-

thorizing the result below. According to the supreme

court’s rationale, the state legislature, in enacting Chap-

ter 27-19 of the Century Code, adopted directly whatever

jurisdictional limitations Pub. L. 280 imposed directly, or

as a matter of interpretation by this Court, as a substan-

tive jurisdictional rule binding on the state courts.

The commendable intent of the North Dakota legisla-

ture to achieve judicial administration consistent with

federal law by requiring the state courts to read the mean-

ing of Chapter 27-19 through this Court’s interpretation

of Pub. L. 280 cannot be denied. However, once the state

legislature chose to link, by statute, its judicial jurisdic-

tion directly to the federal law in that area as the appli-

cable limitation on state power, then the state statute’s

validity and the permissible scope of its interpretation is

a matter of federal law. See Breisch v. Central R.R., 312

U.S. 484, 491 (1941); Tipton v. Atchison T. & S. F. Ry.,

298 U.S. 141, 151-152 (1936).

The state supreme court’s construction of Chapter 27-

19 of the state judicial code imposes an absolute jurisdie-

tional bar against Indian suits arising on-reservation.

That bar, according to the state court, is derived from the

federal authority contained in Pub. L. 280. That court,

in its decision below, construed Pub. L. 280 as the federal

statute authorizing North Dakota to adopt the jurisdic-

tional rule represented by Chapter 27-19 of the North Da-

kota Century Code. Additionally, the state supreme court

also read that federal statute as imposing, through the

derived state statute, an absolute bar against state juris-

diction over Indian causes of action arising on-reservation

until the Indians consent as a matter of state law to such

state jurisdiction.

However, petitioner submits that neither the plain

terms of Pub. L. 280 or its legislative history establishes

a federal jurisdictional rule prohibiting the state courts

of North Dakota from exercising jurisdiction over peti-

tioner’s private cause of action against a non-Indian en-

gineering firm. Nor does the statute or a reading of its

legislative history support the state court’s conelusion that

Congress consented under Pub. L. 280 to the state’s enact-

ment of Chapter 27-19 of the state judicial code.

B. North Dakota's Failure To Accept Public Law 280

Jurisdiction Does Not Bar The Tribe's Negligence

Action Against A Non-Indian In State Court

The state supreme court, in its decision below, rea-

soned that because North Dakota failed to accept the fed-

eral government’s offer of jurisdiction over Indian affairs

contained in Pub. L. 280—coupled with the state legisla-

ture’s enactment of Chapter 27-19 of the state judicial

code—that the state’s courts are compelled to disclaim

any jurisdiction over Indian claims arising on an Indian

reservation in North Dakota. The state court’s construc-

tion of the state law can be sustained only if Congress

meant, in Pub. L. 280, to radically limit the territorial ex-

tent of state law. Additionally, Congress would have to

have intended to deprive states that did not accept Pub.

L. 280 jurisdiction of any jurisdictional authority at all

over Indian claims if they arose within the boundaries of

a reservation within those states.

However, both the legis': ©e purpose of Congress in

enacting Pub. L. 280, as well as the context of that statute,

shows that the phrase “civil jurisdiction” as used in that

statute has a clear and unmistakable referent quite apart

from the existing state civil jurisdiction over actions such

as the one at issue here. The underlying legisiative his-

tory of the act emphasizes that it was intended to serve

two larger goals of Congress: the termination throughout

the United States of the subjection of Indians to special

federal laws applicable only to Indians and the withdrawal

of federal responsibility for Indian affairs wherever prac-

tice dle.

The legislative documents show that Congress con-

sidered, as a necessary step prior to the transfer of any

jurisdiction to the states by way of a federal transfer

agreement, the repeal of the existing federal statutory

status of Indians by eliminating the existing federal stat-

utes referring specially to them and thereby setting them

apart from other citizens. The purpose of such a repeal

was the abolishing of certain restrictions deemed dis-

eriminatory. H. Rep. No. 848, at 5.

Subsequent to this repeal, Congress would then be

free to transfer its special authority over lidian affairs,

in the civil law area as well as criminal, by permitting

state courts to adjudicate civil controversies arising on-

reservation and to extend to those reservations the sub-

*The documents referred to are:

(1) H. Rep. No. 848, accompanying H.R. 1064, A Bill

Amending Title 18, United States Code, Entitled, “Crimes and

Criminal ure,” with Respect to State Jurisdiction over Of-

fenses Committed by or against Indians in Indian Country and

to Confer on the State of California Civil Jurisdiction over In-

dians in the State, 83rd Congress, 1st Sess. (July 16, 1953) (here-

inafter cited as H. Rep. 848).

(2) Senate Report No. 699, accompanying H.R. 1063, A

sota, Nebraska, , and Wisconsin, with Respect to Crim-

inal Offenses and Civil Causes of Action Arising within Such

States, 83rd Con Ss, Ist Sess. (July 29, 1953) (hereinafter cited

(3) Transcript of Hearings on H.R. 1063 before the Sub-

committee on Indian Affairs of the House Committee on Inter-

ior and Insular Affairs, 83rd en Ist 4, (1953). Those

hearings have not been published, but py pied =

stantive civil laws of the respective states.’ S. Rep. No.

699, at 5.

The testimony at the hearings on H.R. 1063, that as

amended would become the basis for Pub. L. 280, was un-

abashedly in support of the proposed legislation as repre-

senting

... @ definite step forward in the inclusion into the

general body of the Indians of that state with respect

to civil and criminal jurisdiction so that they would

be subject to the same laws and the same rules as other

citizens. Transcript I, at 5 (statement of Harry A.

Sellery, Jr., Chief Counsel, Bureau of Indian Affairs).

Testimon; —it appears that no Indian leaders testi-

fied on the merits of this bill—was virtually unarimous

that the limited relinquishment of the special federal power

over Indian affairs and the general subjection of the In-

dians to state civil and criminal authority of the states

would contribute directly to assimilation of the Indian

into the larger social and political society of the United

States. The bulk of the legislative record is concerned

with one identified evil—the problem of inadequate law

enforcement on reservations. Go'dberg, at 555-558.

Congress hoped to enlist the states, via the exercise

of their newly conferred authority over Indian affairs

within their states, to assist the federal government both

in the eure of the inadequate law enforcement on reserva-

'The history of H.R. 1062 also reflects its evolu-

intended to accomplish the limited purpose of

a ee ee ae eee

general covering states them

with certain important restrictions on

[

tions and accomplishment of the broader goal of assimila-

tion of the Indian into American society. Bryan v. Ithasca

County, 426 U.S. 373, 387 (1976).

The phrase, civil jurisdiction, as used in the context

of the legislative history of Pub. L. 280, refers directly to

that special constitutional power conferred on Congress

to legislate with respect to Indians in their status as In-

dians. That power exists in the federal government as

a matter of constitutional necessity. United States v.

Kagama, 118 U.S. 375, 384-385 (1886). Congress has ex-

ercised its power over Indian affairs on numerous occa-

sions to enact a special body of statutory law to regulate

Indian affairs. However, at the same time, Congress also

has enacted statutes conferring general citizenship status

on Indians so as to secure to them the general rights

available to all other citizens under the Constitution and

laws. 8 U.S.C. § 1401(2) (1978).

The legislative history of Dub. L. 280 clearly refers

to the special statutory status of Indians created by Con-

gress in the exercise of its authority over Indian affairs.

It is this special body of law that witnesses before the

Interior Committee thought should be abolished because

the laws were discriminatory. H. Rep. No. 848, at 3.

Therefore, the proposed repeal of these ostensibly

discriminatory statutes is closely correlated with the pro-

posed transfer of federal jurisdiction to the states “per-

mitting the state courts to adjudicate civil controversies

arising on Indian reservations, and to extend to those res-

ervations the substantive civil laws of the respective

states.” S. Rep. No. 699, at 5. The reason for this close

correlation of the repeal of the federal statutes peculiar

to Indians and the grant to the states of civil authority

within that area seems clear enough: Congress wanted to

remove the preemptive effect of statutes or treaties that

might conflict with the states’ exercise of jurisdiction in

that limited area of delegation.

That the grant of civil jurisdiction Congress intended

to confer on the states via Pub. L. 280 must be read in

parta materia with the existing federal Indian law and

treaties so as to define the federal subject matter juris-

diction being transferred to the states is made clear from

the Ninth Cireuit Court of Appeals decision in Anderson

v. Gladden, 293 F. 2d 463 (9th Cir. 1961). Although that

decision deals with the criminal jurisdictional section of

Pub. L. 280, the same underlying principles of statutory

construction govern the nature of the federal civil juris-

diction grant offered to states such as North Dakota:

The power over Indians was deemed not so inher-

ently or exclusively federal as to apply beyond the

extent to which the federal government has preempted

the field, and the federal government could thus with-

draw from the field and turn the subject matter back

to the states when it chose to do so. /d., at 468.

Public Law 280 has been construed as effecting only

a limited withdrawal of federal control or preemption in

specific subject matter areas so that the states accepting

jurisdiction under that statute would be free to exercise

their legislative er judicial jurisdiction in those same areas.

The major congressional study of the results of Pub. L.

280 confirms that both lower federal courts and state

courts have construed the purpose of that statute the same

way as did the appeals court in the Gladden decision. Back-

ground Report on Public Law 280, prepared at the request

of Henry M. Jackson, Chairman, Committee on Interior

and Insular Affairs, United States Senate, 94th Cong., Ist

Sess., at 38 (hereinafter cited Background Report on Pub.

L. 280), citing Robinson v. Wolff, 349 F. Supp. 514, aff’d.,

468 F. 2d 438 (Sth Cir. 1972); Agua Caliente Band of Mis-

sion Indians v. Palm Springs, 347 F. Supp. 42 (C.D. Cal.

1974); Robinson v. Sigler, 187 N. W. 2d 756 (Neb. 1971),

appeal dismissed, 404 U.S. 987 (1971). Public Law 280

has consistently teen construed as not intending to affect

the existing state jurisdiction over actions under state law

where non-Indians are the defendants. Background Re-

port on Pub. L. 280, at 43.

This Court has held that states that accepted such

special subject matter jurisdiction under Pub. L. 280 were

thereby empowered to exercise their legislative and ju-

dicial jurisdiction in certain areas where the Constitution,

statutes, treaties, and federal Indian common law had pre-

viously preempted such state authority. Washington v.

Yakima Indian Nation, 439 U.S. 463, 479 (1979). (This

Court rejected the tribe’s claim that Pub. L. 280 had

not abrogated the tribe’s right to self-government under

treaty.)

By contrast, however, the state court below read the

phrase “civil jurisdiction,” as used in Pub. L. 280, as en-

compassing not only such special federal jurisdiction, but

as encompassing all jurisdiction over civil causes of action

arising on a reservation and involving Indian parties as

either pleintiff or defendant. Congress, according to the

state court’s view, intended either a broad grant or terri-

torial jurisdiction over the reservation under Pub. L. 280

to the states if they accepted such authority or to prohibit

entirely the state’s exercise of jurisdiction over Indians if

the states failed to accept that transfer of authority.

Thus, the state court reads Pub. L. 280 in its decision

below as offering to the states a broad grant of jurisdic-

tion conceived of in terms of territorial extent as against

a limited grant of jurisdiction relating to a specific sub-

ject matter. Further, the court concludes that the state

stacute, Chapter 27-19, amending its judicial code, consti-

tuted a rejection of Pub. L. 280 jurisdiction and a pro-

hibition against the exercise of state civil jurisdiction over

all causes of action arising on a reservation and involving

Indians in any way. 321 N. W. 2d 510, at 512 (N. D. 1982).

However, the legislative record of Pub. L. 280 reveals

that state action under Pub. L. 280, either in accepting or

rejecting the federal offer of jurisdiction, was not intended

to have such a disruptive effect on the existing state law

systems. The Chief Counsel, Mr. Abbott, proposed to the

House Committee on Interior and Insular Affairs, certain

amendments to H. R. 1063 so that the proposed legislation

could be transformed into a general statute whereby all

states could acquire federal power to control some aspect

of Indian affairs within their respective states. The pur-

pose of such amendments was to provide a general statu-

tory mechanism whereby the United States could cede its

authority, subject to restrictions not relevant here, to the

states. Such a procedure, however, had to take into ac-

count certain historical an’ legal factors that set some

of the Western states apart from other states. Th. Com-

mittee’s Chief Counsel pointed out that these states had

so called diselaimer provisions, both in the enabling acts

admitting them to the Union and in their own state con-

stitutions. Therefore, counsel recommended that certain

procedural amendments be adopted to meet their situa-

tion and to enable them to participate in the Pub. L. 280

program. Consequently,

. . . the bill as acted upon by the Committee makes

provision for eight states which have constitutional

organic impediments for accepting state jurisdiction,

the enabling acts for Arizona, Montana, New Mexico,

North Dakota, South Dakota, Oklahoma, Utah, and

Washington, provided that exclusive federal jurisdic-

tion would be retained. Transcript II, at 2-3.

Such state disclaimers, the Chief Counsel concluded,

would disable those eight states from accepting the con-

templated federal offer of jurisdiction under the proposed

act and would consequently defeat the general applicability

of the act. Therefore, the Chief Counsel advocated cer-

tain procedural amendments to the legislation that would

avoid that result. Congress, under the proposed amend-

ments, would consent to any of those eight states remov-

ing the disclaimers in their constitutions so as to enable

them to accept the offered federal jurisdiction. That the

purpose of these amendments was solely to authorize the

removal of a perceived federal barrier to the acceptance

of such jurisdiction as would be offered by the Act is made

clear in the exchange regarding the effect of the proposed

amendments :

Mr. Dawson: One thing you can be assured of, the

state would not be harmed by this provision, because

you are simply giving them the right to pass legisla-

tion if they see fit to do so. (emphasis added)

Mr. Pillion: It would not imcrease their jurisdiction

automatically. (emphasis added)

Mr. Dawson: No, anymore than it will Nevada’s. If

Nevada does not want to take this expense, they cer-

tainly do not need to pass any legislation to take it

on. Transcript II, at 13.

Petitioner submits Congress’ desire to achieve nation-

wide generality in the application of the new statute, Pub.

L. 280, explains fully the procedural amendments to that

Act allowing disclaimer states such as North Dakota to

amend their state constitutions and thus remove a feder-

ally-imposed disability. It was not intended, as the state

court interprets it, to have a substautive effect, as a con-

gressional prohibition of state civil jurisdiction over state

court actions that are outside the limited, special Indian

subject matter areas controlled by Congress.

Such a construction of that statute would be in direct

conflict with the statute’s larger purpose: to assimilate

the Indian into the general society. Allowing the state

to completely eut off Indian access to state court through

legislative action under Pub. L. 280 would be inconsistent,

to say the least, with that federal goal. Additionally, Con-

gress did not intend to diminish the existing rights of

Indians to state court under state law through any action

purportedly authorized by Pub. L. 280.*

Therefore, the state court’s result below depends on

a number of interlocking assumptions that, viewed in light

of the legislative history of Pub. L. 280, turn out to be

false. The first assumption that the phrase “civil juris-

diction,” as used in the statute, refers to all and any exer-

cise of state judicial authority over all Indian claims aris-

Article |, § 22 of the North Dakota Constitution provided

that all the courts shall be “open to every man” and that he

shall have a remedy by due process of law “for any injury done

to him.” (A. 2a.) This state-declared right of access to the

state’s courts is presumably protected and secured to Indian

citizens by the due process clause of the Fourteenth Amend-

ment of United States Constitution. C.f., Mobile & Ohio

Railroad v. Tennessee, 153 U.S. 486, 506 (1894).

The er to regulate jurisdiction is the power to late

rights. if Congress had intended by Pub. L. 280 to raw

utely from state cognizance all subject matter jurisdiction

over claims without creating any federal forum for the

vindication of those same rights, then serious constitutional is-

sues would arise. Murray’s Lessee v. Hoboken Land and Im-

provement Co., 18 U.S. (How.) 272, 284 (1856).

ing on-reservation is patently false. The legislative record

makes clear that the phrase “civil jurisdiction” refers to

state authority that could not have been previously exer-

cised by the state courts because federal authority had

pre-empted the subject matter jurisdiction of the state

courts in that area. The joint repeal of such federal stat-

utes or treaties and the grant to the state of federal civil

authority would authorize the state to exercise jurisdic-

tion in certain subject matter areas where it would other-

wise be preempted from doing so. Washington v. Yakima

Indian Nation, 439 U.S. 463, 479 (1979).

The state court’s second assumption that North Da-

kota, by refusing to assume jurisdiction of Indian affairs

under Pub. L. 280, was then enabled by congressional con-

sent to enact Chapter 27-19 of its judicial code and thereby

remove all jurisdiction over any Indian claims arising on

a reservation in that state is not supported by any con-

gressional intent at all. The Indian, as an aspect of his

citizenship rights protected by the Fourteenth Amendment,

is entitled along with other state citizens to sue im state

court to protect his property rights. See Bird v. Terry,

129 F. 472, 477 (C.C.W.D. Wash. 1903) ; Deere v. New York,

22 F. 2d 851, 853 (N. D. N. Y. 1927). There is not a shred

of evidence in the legislative record of Pub. L. 280 that

Congress intended as a consequence of a state’s nonaccept-

ance of the federal civil jurisdiction offered under that

statute that its Indian citizens could be deprived of their

right to access to state court to protect their rights on the

same terms as other state citizens.

On the contrary, this Court’s decisions support the

proposition that state action, either accepting or rejecting

the grant of Pub. L. 280 jurisdiction, must be read with

reference to what Congress intended to grant to the states

under that statute. This Court, in McClanahan v. Arizona

Tax Commission, 411 U.S. 164 (1973), held that Pub. L.

280, as ame’ ded, conferred upon the states “the right to

disregard enabling acts which limit their authority over

Indians,” McClanahan, at 177. Since Arizona, like North

Dakota here, never complied with the Act, it had no author-

ity to impose its income tax statutes on a reservation In-

dian. However, this Court also pointed out that Indians,

as citizens, have the right of access to state courts. Mc-

Clanahan, at 173. Thus, there is no relationship between

—— failure to accept Pub. L. 280 jurisdiction

and ian’s right of access to state court as a citizen.

This conclusion is confirmed by this Court’s recent decision

holding that Pub. L. 280, aside from the specific sections

prohibiting state jurisdiction over particular subject mat-

ter, has little bearing on whether a state has jurisdiction

over a particular Indian case or subject matter. Arizona v.

San Carlos Apache Tribe, 51 U.S. L.W. 5095, 5099 (U.S.

June 28, 1983).

Further, the state court’s interpretation of Pub. L.

280 imposes new and novel conditions not contemplated

by Congress. These conditions, far from being author-

ized by that federal statute or consistent with its purpose,

is in fact an unauthorized attempt to defeat the clear Con-

gressional purpose expressed in Pub. L. 280. Recently, the

State of Nebraska sought to deny the effectiveness of its

prior state consent to the retrocession by the state of the

special federal jurisdiction it had received over a reserva-

tion under Pub. L. 280 by imposing subsequent state con-

ditions on that consent. The federal district court held

that it was impermissible for a state to attempt to defeat

or interfere with the workings of the federal retrocession

process established by Section 403 of Pub. L. 280, 25 U.S.

C. § 1323, as amended, through the imposition of addition-

al state conditions intended to defeat its earlier consent.

Omaha Tribe v. Walthill, 334 F.Supp. 823, 831 (D. Neb.

1971), aff’'d., 460 F. 2d 1327 (8th Cir. 1972).

Here, the state condition that defeats Pub. L. 280’s

larger purpose is the requirement that Indians consent to

full jurisdiction by the state over the reservations before

they can sue to protect any on-reservation property in-

terest in state court. That state condition conflicts with

Pub. L. 280’s larger purpose of assimilating the Indian

into state society. Congress, through Pub. L. 280, wanted

the states to affirmatively act to assume jurisdictional re-

sponsibilities over the Indian that would foster his ac-

culturation—not to impose barriers to state court by way

of consent requirements that operate to take away his

existing rights under state law. See generally, Kennerly

v. District Court, 400 U.S. 423 (1971). Also, this Court

has held that the limited civil jurisdictional effect of Pub.

L. 280 was to allow Pub. L. 280 states to apply their own

rules of decision in suits involving reservation Indians.

Bryan v. Ithasca County, 425 U.S. 373, at 384, 385 (1976).

Public Law 280 is therefore simply irrelevant to the

determination as to whether the North Dakota state courts

have jurisdiction over petitioner’s negligence action. Ari-

zona v. San Carlos Apache Tribe, 51 U.S.L.W. 5095, 5099

(U.S. June 28, 1983).

C. There Is No Federal Decisional Rule Barring Peti-

tioner’s Action In State Court

State court is the proper forum for the adjudication

of this action. The appropriate analytic approach in de-

termining whether a North Dakota state court can hear

the Tribe’s claim against a non-Indian was established by

this Court in William v. Lee, 358 U.S. 217 (1959). This

Court disallowed, in Williams, state court jurisdiction over

a non-Indian claim for a debt against a Navajo Indian.

The proper forum for adjudication of that claim was tribal

court, not state court. This Court found that the federal

policy of encouraging and strengthening tribal courts, as

well as the fact that the Navajo Court of Indian Offenses

was open to non-Indians and could hear debt actions,

tipped the jurisdictional balance in favor of tribal court

jurisdiction and against state court jurisdiction. Williams,

358 U.S. at 222.

Conversely, this Court has held that where a non-

Indian’s conduct is at stake, as it is here, a state may as-

sert both its legislative and judicial jurisdiction to regu-

late such behavior as loug as it does not infringe on pro-

tected tribal or federal interests. McClanahan v. Arizona

State Tax Commission, 411 U.S. 164, 172-173 (1973).

There is no federal decisional rule that bars petition-

er’s action in state court. On the contrary, generally in

matters not affecting the federal government or tribal

regulation, an Indian has the same status to sue in state

court as any other citizen. F. 3. Cohen, Handbook of

Federal Indian Law (1971 Reprint, University of New

Mexico Press), at 379. This rule has been maintained by

this Court over the years without fundamental alteration.

Felix v. Patrick, 145 U.S. 317 (1982); Williams v. Lee,

358 U.S. 217 (1959).

Felia v. Patrick involved a suit by Indians to recover

scrip allegedly taken by fraud. The action was not brought

until 27 years after the fact. In response to the defense

of laches, plaintiffs argued that as Indians they were not

United States citizens and therefore not able to sue in

federal courts. This Court rejected that contention:

It is searcely necessary to say in this connection that,

while until this time they were not citizens of the

United States, capable of suing in the Federal Courts,

the Courts of Nebraska were open to them as they are

to all persons irrespective of race or color. IJd., 145

U.S. at 332.

This early decision holding that Indians are presumed

to have access to state courts as part and parcel of those

citizenship rights that they share with other state citizens,

has many times been reaffirmed by this Court. Only re-

cently this Court, in McClanahan v. Arizona State Tax

Cmmission, 411 U.S. 164 (1973), declared its position that

there is no federal barrier to suits brought by Indians

against non-Indians in state court. McClanahan, 411

U.S. at 172-173.

There is not one decision of this Court that supports

the state supreme court’s decision below barring, as a

matter of federal law, suits by Indians against non-In-

dians in state courts on essentially state-created rights

of action. Instead, this Court has indicated that state

courts have an important role to play in providing both

right and remedy for Indian plaintiffs who sue non-In-

dian defendants.

The present principles _ pplied by this Court in cases

involving non-Indians reflect a rejection of arbitrary and

rigid jurisdictional limits based on claims of territorial

sovereignty by either states or tribes. Instead, this Court

has favored jurisdictional principles that are based on

considerations of fairness and the furtherance of legiti-

mate interests of both the state and tribe that are assert-

ing jurisdiction over the action. Wiliams v. Lee, 358

U.S. 217 (1959); Fisher v. District Court, 424 U.S. 382

(1976).

The state court’s decision here on review represents

a wooden approach to state jurisdiction in Indian affairs

based on a territorial concept of jurisdiction. That con-

cept is used here to defeat absolutely Indian claims against

non-Indians in state court. The governing jurisdictional

principles that this Court has declared are far more flex-

ible by comparison and are adapted to the protection of

Indian and non-Indian litigants’ rights in the most ap-

propriate forum for their resolution:

... cases applying the Williams test have dealt prin-

cipally with situations involving non-Indians. (cita-

tions omitted) In these situations, both the tribe and

the state could fairly claim an interest in asserting

their respective jurisdictions. The Williams test was

designed to resolve this conflict by providing that the

state could protect its interest up to the point where

the tribal government would be affected. /d., at 179.

The state court below cites this Court’s decision in

Williams as requiring the imposition of an absolute jur-

isdictional bar against state jurisdiction over Indian

claims arising on-reservation. Gourneau v. Smith, 207

N. W. 2d 256, 259 (N.D. 1973). The Williams principle

did not prohibit state jurisdiction over Indians or their

claims. The Williams principle, as elaborated by this

Court, has as its purposes the protection of two important

interests. First, that rule is intended to prevent the opera-

tion of state law that would interfere with the effective

discharge of responsibilities that Congress has assumed

with respect to Indians and Indian affairs. Consequently,

this Court has disallowed the imposition by the State of

Arizona of its income tax on the sales to Indians of an In-

dian trader on the Navajo Indian Reservation. Warren

Trading Post v. Arizona’s State Tax Commission, 380

U.S. 685 (1965). This Court emphasized the federal in-

terest involved as evidenced by the historical control and

regulation of Indian traders on-reservation. The imposi-

tion of a state tax, and its collection especially, could,

this Court held, burden or frustrate the congressional in-

terest in ensuring that no burden was placed on Indian

tribes under federal supervision. /d., at 691.

Second, the Williams rule is intended to protect In-

dian tribes and their members from the possibility of

abusive state legislative action. Thus, this Court has re-

jected the efforts of state tax authorities to impose their

income tax laws on an Indian who received all his income

on-reservation. McClanahan v. Arizona State Tax Com-

mission, 411 U.S. 164 (1973).

Nonetheless, the state court below has inferred from

the decisions of this Court that it must automatically dis-

miss any Indian claim arising on a reservation. The court

below has seriously misread the meaning of this Court's

decisions. Those considerations that required the results

in Williams, Warren Trading Post, and McClanahan are

absent here. There are no competing federal or tribal in-

terests that would defeat state judicial jurisdiction over

petitioner’s claim against a non-Indian. The tribe here

has not asserted, through its tribal constitution, civil jur-

isdiction over non-Indians. Quechan Tribe v. Rowe, 531

F. 2d 408 (9th Cir. 1976). Presumably, the State of North

Dakota has an interest in regulating a non-Indian’s con-

duct where it is at issue in a case. Further, respondent

here is defending this action in the state court under state

law standards that generally govern the conduct of his

business dealings.

The state supreme court has misapplied the federal

standard developed in Williams in interpreting that rule

as to require an absolute bar against Indian claims when

those claims implicate no overriding federal or tribal in-

terests in any way.

III. Congress Did Not Consent To, Or Authorize North

Dakota’s Enactment Of Chapter 27-19 Of Its Judicial

Code

A. Congress Imposed, Through Section 7 Of Public

Law 280, Strict Requirements That North Dakota

Failed To Meet

Congress consented, under Section 7 of Pub. L. 280,

to the ‘‘affirmative assumption of state jurisdiction’’ over

Indian affairs within the subject matter areas outlined

by that federal statute. Washington v. Yakima Indian

Nation, 439 U.S. 463, 486, ft. n. 30 (1979). Chapter 27-19

of the state judicial code does not constitute an assump-

tion of jurisdiction at all (A. 4a). Instead, that legisla-

tion requires tribal consent, and in some instances the in-

dividual’s consent, prior to the state’s assumption of any

jurisdiction under Pub. L. 280. This is expressly the kind

of state legislative scheme that this Court has identified

as failing to meet the strict federal requirements of

“affirmative state legislation” under Section 7 of the

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

Congress imposed, in Section 7 of Pub. L. 280, a clear

standard that states such as North Dakota had to comply

with in order to receive any delegated powers from the

federal legislature. l/nited States v. Chicago R1I.dP.R.

Co., 282 U.S. 311, 324 (1931).

This Court has ruled, in the enforcement of that

standard, that the eligible states must, in order to com-

ply with the strict requirements of Section 7, manifest

by political action their willingness and ability to dis-

charge their new responsibilities. Washington v. Yakima

Indian Nation, 439 U.S. 463, 486-487. This political action

must be evidenced by ‘‘affirmative legislative action’’

binding the state to accept jurisdiction over Indian af-

fairs within its state. Kennerly v. District Court, 400 U.

S. 423, 427 (1971).

The state supreme court, construing Chapter 27-19

of its state judicial code, concluded that North Dakota,

far from affirmatively accepting any delegated jurisdic-

tion under Pub L. 280, intended by the state act to reject

any jurisdiction it may have had prior to Pub. L. 280’s

date. Therefore, the state court’s interpretation of this

Court’s decision in Washington v. Yakima Indian Nation,

439 U.S. 463, 500 (1979), as impliedly sanctioning the

jurisdictional rule or pattern declared in the decision be-

low is seriously in error. This Court found there that

Washington had effectively accepted the jurisdictional

offer contained in Pub. L. 280 and had partially assumed

the jurisdictional responsibilities of the federal govern-

ment in Indian affairs as intended by that statute. This

Court further held in Yakima that Washington, in the

exercise of its federally-delegated authority, could shelter

under the plenary authority Congress enjoys over Indian

affairs against the Tribe’s equai protection challenge to

Washington’s jurisdictional scheme. J/d., at 501.

Here, North Dakota has attempted to repudiate any

jurisdictional responsibilities under the federal statute.

The state court concludes that such a repudiation has

been consented to by Congress in Pub. L. 280. However,

its scheme, as represented by Chapter 27-19 of its judi-

cial code, is of the express type disapproved by this Court

as being insufficient to meet the standards contained in

Section 7 of the Act in Kennerly v. District Court, 400

U.S. 423 (1971). State courts have likewise recognized

that Section 7 of Pub. L. 280 requires affirmative state

legislation in order to confer any federal jurisdictional

authority on the states under that federal statute. See

generally, State v. Molash, 199 N.W.2d 591 (S.D. 1972);

Morgan v. Colorado River Indian Tribe, 436 P.2d 484 (Az.

1968), vacated on other grounds, 443 P.2d 421 (1968);

Whyte v. District Court, 346 P. 2d 1012 (Colo. 1959), cert.

denied, 363 U.S. 829 (1960).

Consequently, the fundamental condition for the va-

lidity of the state jurisdictional pattern—set forth at

Chapter 27-19 of the state judicial code—as a federally

delegated exercise of jurisdiction over Indians is that

the state comply with Section 7 of Pub. L. 280. This

Court’s decision in Kennerly contirms that North Dakota

did not. The state’s failure to comply with the plain

requirement of Section 7 of the federal statute defeats

the state court’s contention that the state statute is a fed-

erally-sanctioned jurisdictional rule compelling the In-

dians to consent to state jurisdiction before they can have

access to state courts. Washington v. Yakima Indian

Nation, 439 U.S. 463, 500 (1979).

The stcte statute, Chapter 27-19 of the N.D.C.C., giv-

en that it represents neither a federally-compelled or

authorized federal judicial rule over Indian affairs, then

did not alter, as a matter of federal law, the existing state

judicia! authority before the enactment of Pub. L. 280. That

Congress did not intend to disrupt the underlying state

judicial authority to hear Indian claims against non-Indi-

ans by the passage of that federal statute is confirmed by

later congressional assessment of Pub. L. 280’s purpose

and impact. Background Report on Public Law 280, at 38.

B. Congress by its 1968 amendments to Public Law 280,

has rendered moot the state a me oe

aaiieaie cen oad a a matter of federal law,

under Chapter 27-19 of the state judicial code as a pre-

requisite to state court’s jurisdiction over petitioner’s

action.

The state statute cannot serve as a_ federally-

approved jurisdictional rule to control Indian access to

state court in the light of the 1968 amendment to Pub. L.

280. See Background Report on Public Law 280, at 27-37.

The reason Congress changed Pub. L. 280 radically

in 1968 is clear from the legislative history of the 1968

amendments. Pub. L. 280, by all accounts, proved to be

a total failure. Congress had hoped that many of the so-

alled ‘‘optional”’ states such as North Dakota would come

forward and take over where the federal government

would leave off in the affirmative governance of Indian

affairs, especially in the law enforcement area.’ Com-

%In any event, the lack of success in Pub. L. 280’s assimila-

tion of the American Indian into the broader civil society was

due, at least in part, to the states’ unwillingness to accept the

burden of law enforcement on the reservations. Burnette, An

Historical Analysis of the 1968 Indian Civil Rights Act, 9 Harv.

J. on Legislation 557, 587 (1972) (hereinafter cited as Burnette).

By the early 1960s it became increasingly clear to some con-

gressmen that Pub. L. 280 had failed as a tool to resolve the

problems that it was intended to resolve. About that time, in

1961, Senator Sam Ervin began a series of congressional field

hearings, through the Senate Judiciary Subcommittee, on the

al status of the Indian and the problems he encountered

n he asserted his constitutional rights in his relations with

state, federal, and tribal governments. See S. Rep. No. 841, ac-

companying S. 1843, 90th Cong., 1st Sess. (Dec. 6, 1967) (This

report distills the essence of the testimony received in the ser-

ies of the field hearings and also summarizes the legislative

history of predecessor bills to S. 1843.)

The ny that included extensive tribal test , con-

vinced Senator Ervin of the need for the amendment of Pub. L.

280—especially the imposition of a tribal consent requirement

as a matter of ral law prior tu any assumption of state juris-

diction under that law. See S. Rep. 841, at 10-11. See also

Hearings before the House Subcommittee on Indian Affairs, on

H.R. 1519, 90th Cong., 2d Sess. (March 29, 1968).

Although Senator Ervin had proposed tentative bills aimed

at amending Pub. L. 280 prior to 1968, those bills were marked-

ly unsuccessful before House Committee on Interior and

jee od wee One yn epee —— that the reason

s of success can be assigned to presence of -

erful opposition from representatives from some western States

(Continued on next page)

mentators suggested that one reason for the failure of

Pub. L. 280, though by no means the only reason, was the

states’ reluctance to assume the associated costs attrib-

utable to becoming the primary authority responsible for

governance of Indian affairs in the jurisdictional areas

covered by that federal statute. See Goldberg, at 551-558.

Whether this factor entered into North Dakota’s decision

not to accept any Pub. L. 280 jurisdiction over the Indian

reservations within its buundaries is not clear from the

scanty legislative record behind that state’s constitution-

al amendment or its legislative enactment, Chapter 27-19

of its judicial code in 1963.

The new indian Civil Rights Act, enacted as a title

of a larger general civil rights act, repealed Section 7

of Pub. L. 280 and replaced it with an exclusive federal

procedure requiring Indian consent, whereby states in the

future could acquire jurisdiction over Indian affairs. 25

U.S. C. §§ 1321-1326 (1983) (A. Ga, 7a, 8a).

Subsequent to these amendments, a state may acquire

delegated federal jurisdiction in the special subject mat-

ter areas covered by Pub. L. 280 only by strict compliance

(Continued from previous page)

who wished to see Pub. L. 280 remain intact so as to provide

a tool for state control of certain aspects of reservation activ-

ity. See Burnette, at 606.

Therefore, Senator Ervin was unable to realize his goal of

a Ss constitutional rights of Indians and amendin

b. L. 280 until 1968, when he was able to tack his Indian bill,

S. 1843, onto the ny 1968 Civil Rights Act, H.R. 2516.

The — clamor, both for and against the broader civil rights

legislation, provided an opportunity for Senator Ervin to ei

amend H.R. 2516 into defeat, counting on strong western op-

ition in the House against the Indian Rights Bill, or to have

t pass the House with his Indian bill of rights attached. Un-

fortunate broader historical and social events, such as the slay-

ing of Dr. Martin Luther King, compelled Congress to act on

the broad 1968 Civil Rights Act without undue delay, and the

opposition to the Indian rider on H.R. 2516 was simply over-

whelmed. See Burnette, at 604-611.

with 25 U.S.C. §§ 1321-1326. Kennerly v. District Court,

400 U.S. 423 (1971). Tribal consent to such a proposed

state assumption of jurisdiction is effective only if mani-

fested in accordance with the provisions of 25 U.S.C.

§1322(a). Kennerly, at 427. Consequently, tribal consent

under Section 27-19-02(1) or (2) of the North Dakota

judicial code to the state’s assumption of jurisdiction over

the reservation under Pub. L. 280 would be entirely mean-

ingless (A-4a). Cf., Nelson v. Dubois, 232 N.W.2d 64

(N.D. 1975) (The state supreme court held that the 1968

amendments to Pub. L. 280 had preempted Section 27-19-

05 of the state judicial code which had authorized indi-

vidual Indians to confer, by consent, civil jurisdiction

upon the state) (A4-a).

Petitioner has shown that, as a matter of federal law,

Pub. L. 280 is no barrier to state court jurisdiction over

an Indian’s claim against a non-Indian based on a state-

created cause of action. Further, tribal consent under

state law has likewise been rendered irrelevant by the

1968 ameidments to Pub. L. 280 as a condition for the

extension of state jurisdiction under Pub. L. 280 to the

reservations.

There has never been a federal jurisdictional prin-

ciple, contrary to the assumption of the state court below,

requiring Indian consent to state jurisdiction under Pub.

L. 280 as a condition of his right to sue a non-Indian in

state court on a state-created right of action. The state

statute in question, when read in this light, that requires

tribal consent to Pub. L. 280 jurisdiction as a condition

of access to state courts, represents an indefensible con-

dition on the exercise of a fundamental constitutional

right. See Hale, Unconstitutional Conditions and Consti-

tutional Rights, 35 Col. L. Rev. 321 (1935). Congressional

—s ?

consent, under Pub. L. 280, to such a state statute was

never given. Kennerly v. District Court, 400 U.S. 423,

425 (1971). Consequently, North Dakota cannot defend

its statute as a derived exercise of federally delegated

authority under Pub. L. 280. Compare Washington v.

Yakima Indian Nation, 439 U.S. 463, 501 (Washington

effectively accepted the jurisdiction under Pub. L. 280, and

therefore, state legislation enacted under the express au-

thority granted by Congress under that federal statute

was immunized from the strict scrutiny on judicial review

that otherwise might be applicable to such legislation.)

IV. Chapter 27-19 Of The North Dakota Judicial Code, As

Construed By The State Supreme Court, Violates The

Due Process And Equal Protection Clauses Of The

Fourteenth Amendment

A. Introduction

Chapter 27-19 of the state judicial code bars the ad-

judication by state courts of cases involving Indian par-

ties and arising ~m an Indian reservation in the state.

The state supreme court concluded that the state legisla-

tive assembly intended to deprive the Indians of access

to state court to adjucicate their claims unless those In-

dians consented under Chapter 27-19 to state jurisdic-

tion over their reservations. Petitioner submits that this

exclusion of a discrete, insular minority from state court

by state legislative action violates the equal protection

and due process clauses of the Fourteenth Amendment.’

This Court has confirmed that the state citizen’s right to

sue in state courts, on the same terms as other under

state law, is protected by the Fourteenth

. « « an individual cannot deprive a man of his right to

vote, to hold perty, to buy and to sell, to sue in the

(Continue. on next page)

North Dakota, in common with other Western states,

established a constitutional judicial administration that

assured every man that the state courts were available

to nim for the redress of any injury he might suffer. N. D.

Const. Art. I, § 22."' (A. 2a). Indians, along with other

people, are entitled to seek judicial relief in state court.

Rolette County v. Fitobgi, 221 N. W. 645 (1974). None-

theless, the state supreme court has construed Chapter

27-19 as singling out cases, based in the constant factors

of Indian identity and reservation origin, that cannot be

heard by state courts. There are two reasons why this

state legislative action is invalid under the Fourteenth

Amendment: First, this statute deprives petitioner of

liberty and property without the due process of law; and,

second, this statutory classification is invalid under the

equal protection clause of the Fourteenth Amendment.

The liberty to sue in state courts is one that has been

acknowledged as so fundamental to the democratic proc-

ess as to be worthy of protection under the due process

clause of the Fourteenth Amendment.” Therefore, this

(Continued from previous page)

. [the] abrogation and denial of rights . . . ior

which the states alone were or could be responsible, was

the great seminal and ea Bann Ay which ‘-— ~

tended to be remedied . . phasis added

Civil Rights Cases, 109 U.S. 3, at 1" 17-18 (1883).

“North Dakota, like other states, has a constitutional bill of

guaranteeing, among other things, open courts. Deaby,

L Growth of pa State Constitutions (DeCapo Press:

1972), at 1

"%Congress, in debating the merits of the proposed Four-

teenth Amendment to the Constitution, contemplated

that state-crevted rights, such as open and lable courts for

SOE Se Sere. Maze @ hp CaNES te Se eee

on the basis of equality.

(Continued on next page)

. * = | a 2 Nee

Court, from early on, has adopted a three-part test to de-

termine if state legislation that seeks to curtail these

rights is valid:

First, such legislation is assumed to be unconstitu-

tional unless the state effectively rebuts that presumption;

Second, the state must show that the legislation ad-

vances a “compelling state interest”; and,

Third, the legislation must be narrowly drawn so as

to represent the least rest’.ctive alternative solution to

the problem. See generally, United States v. Carolene

Products, 304 U.S. 144, 152-153, n. 4 (1938).

B. The State Statute Clearly Conflicts With The

Petitioner’s Due Process Rights

(Continued from previous page)

The congressional debate on the resolution offered by

Congressman Thadeus Stevens on December 4, 1865—that was

leer, as amended, to become the Fourteenth Amendment—fo-

cused on what rights were to be protected by this amendment.

nenresentative Stevens, himself, viewed as fundamentai the re-

quirement that all laws—state and national—operate impartial-

ly and equally on all persons without regard to race or color.

onsequently, the result was the inclusion in section one of the

amendment of language prohibiting the states from abridging

the rights accorded under law generally. Thus, Congressman

Stevens described the intended reach of this section in these

terms: “Whatever law protects the white man shall afford

‘equal’ protection to the black man. Whatever means of re-

dress is afforded to one shall be afforded to all.” The Debate,

House of Rep., 39th Cong., 1st Sess. (May 8-10, 1866), reprinted

at Schwartz, Statutory History of the United States: Civil Rights,

Part 1, at 222-223.

Senator Howard jacob, referring to the federal courts’ in-

terpretation of what rights are pene one SP ae

and immunities oth = the Constitution, viewed ioe

Coryell, Case No. 3230, 4 Wash. 371 (C.C.E.D. Pa. 1823), as se-

curing to the state citizens the right to sue in state courts on

the = _ ier 23-June On? m. Debate, Senate, 39th

Cong., 1st , -june 8, ), nted at

Bernal, at 257-259. = —

The legislative history of Section 1 of the Fourteenth

Amendment clearly secures the right to petitioner to sue in

state courts on the same terms as everyone else under state law.

The state supreme court has construed Chapter 27-19

of the state judicial code as imposing a complete bar to

the state district court’s jurisdiction over Indian claims

arising on-reservation. The court’s application of that

jurisdictional rule to the Tribe’s claim against a non-In-

dian engineering firm means its claim, based on a state-

created right and seeking a state-created remedy, has

been terminated without any opportunity for a hearing

on the merits.

As has been pointed out, the federally-approved con-

stitution of the Tribe does not provide for jurisdiction

over non-Indians, unless they consent to suen jurisdiction.

Even if a tribal court forum existed, any tribal judgment

would have to be enforced through the state courts, and

recent decisions of the state supreme court have cast seri-

ous Coubts as to whether these tribal judgments would be

accorded full faith and credit or comity by the state courts.

Lohnes v. Cloud, 254 N. W. 2d 430 (N.D. 1977). There

is no federal jurisdiction over this action in federal dis-

trict court. Schante v. White Lightning, 502 F. 2d 67 (8th

Cir. 1974).

Therefore, the considerations presented by the facts

of this case are similar to those that were at stake in

this Court’s decision in Brinkerhoff-Faris Trust & Savings

Co. v. Hill, 281 U.S. 673 (1930). There, the plaintiff sued

to enjoin the county treasurer from collecting an alleged-

ly discriminatory tax. The plaintiff had failed to present

his claim that the tax, as applied to him, was discrimina-

tory before the state tax commission. The Missouri Su-

preme Court affirmed the trial court’s dismissal of the

taxpayer’s action without a hearing on the merits. This

Court concluded that the practical effect of the Missouri

court’s judgment was to deprive the plaintiff of property

without affording him any opportunity to be heard in his

defense. The court also found that the plaintiff had no

alternative forum in which to present his claim. /d., at

679.

This Court, on review, found that controlling issue

to be one of procedural due process: ‘‘whether it (the

plaintiff) had had an opportunity to present its case and

be heard in its support.” Jd., at 681. The Supreme

Court then evaluated whether the plaintiff had been ac-

corded any meaningful due process. The Court left no

doubt on this issue:

But, while it is for the state courts to determine the

adjective as well as the substantive law of the state,

they must, in so doing, accord the parties due process

of law. Whether acting through its judiciary or

through its legislature, a state may not deprive a

person of all existing remedies for the enforcement

of a right, which the state has no power to destroy,

unless there is, or was, afforded to him some real

opportunity to protect it. (citations omitted). ITd.,

at 682.

This Court has extended that rule to require a reason-

able opportunity for a hearing before the state may de-

prive a person of a property right under its garnishment

procedures. Sniadich v. Family Finance Corporation, 395

U.S. 337 (1969). This Court further extended this prin-

ciple by holding that among the civil rights protected from

discriminatory state action are the rights to acquire, enjoy,

use, and dispose of property. Lynch v. Household Finance

Corporation, 405 U.S. 538, 544 (1971). This Court, in

Lynch, cites as support for constitutional protection of

the property interest at stake in that case Section 1 of

the 1866 Civil Rights Act that enumerates, among other

basic civil liberties, the right “to make and enforce con-

tracts, to sue” in court to enforce those contracted rights.

Lynch, 405 U.S. 538, 543. The property interest the pe-

titioner seeks to enforce here is at least as vital and sig-

nificant to the persons affected adversely by the state

action as that complained of by the affected parties in

Lynch and Sniadich. Without the ability to recover in

contract actions many of petitioner’s programs on which

its people depend would be adversely affected. Thus, strict

serutiny of the state statute is justified under that stand-

ard declared by this Court when state legislation clearly

affects rights protected by the Fourteenth Amendment.

United States v. Carolene Products, 304 U.S. 144, 152-153,

n. 4 (1938).

The state court here, in construing Chapter 27-19 of

the state judicial code, has closed the doors of the courts

without according petitioner any opportunity for a hear-

ing. The state court deemed that state law to be author-

ized or required by federal law. However, based on the

foregoing analysis, it is clear that the federal government

has no policy or interest in precluding petitioner’s action

in state court. The state court has given no other reason

for denying petitioner the due process of law secured to

every other plaintiff by the force of the North Dakota Con-

stitution and its statutes, as well as by the Fourteenth

Amendment. This Court has recognized that claims for

relief, such as petitioner’s claim here, is a protected inter-

est under due process. Logan v. Zimmerman Brush Co.,

455 U.S. 422, 428 (1982).

Therefore, petitioner submits that the state court’s

decision below, denying it and ali other Indian plaintiffs

an opportunity to be heard on any claim arising on-reser-

vation, is clearly violative of due process.

C. The Appropriate Standard Of Judicial Review Of

This State Legislations Is Strict Scrutiny

State legislative classifications that single out for dis-

criminatory treatment, discrete and insular minorities,

such as Indians, are subject to a more severe and search-

ing standard of judicial review than is otherwise the case.

Loving v. Virginia, 388 U.S. 1. (1967). Petitioner is barred

from state court here solely because the state legislature

has enacted a state statute, Chapter 27-19, of the Century

Code, barring suits by Indians unless they consent under

state law to state jurisdiction on-reservation. The legisla-

tion singles out, on its face, Indians as the exclusive cate-

gory to be affected by this legislation.”

The petitioner has already shown that the framers of

Section 1 of the Fourteenth Amendment intended to pro-

tect the right to sue in state court on equal terms. The

state supreme court clearly regarded the state statute in

question requiring the court dismissals of Indian claims

arising on-reservation as the exclusive basis for denying

Indians access to state courts. Thus, this Court’s require-

13Petitioner does not contend that Indians constitute a dis-

tinct racial classification. Morton v. Mancari, 417 U.S. 535

(1974). However, this Court has recognized that certain minor-

ities, while not racially distinct, may in the nation’s

suffer from such prejudice and hostile treatment at the hands

of state legislatures that this Court shall protect such “classes

or castes” under the Fourteenth Amendment. P. v. Doe,

457 U.S. 202, 217, n. 14 (1982) (This Court 5-4 that a

Texas statute which withholds from local school districts any

state funds for the ion of children who were not “

admitted” into the Wnited States and which authorizes

ment that the state legislative infringement on a right be

direct and not peripheral is met here. United States v.

O’Brien, 391 U.S. 367, 385 (1968).

Strict scrutiny of state discriminatory legislation

means that, on review, this Court engages in no presump-

tion as to the validity of the legislation in question. On

the contrary, the state is required to demonstrate that its

classification serves a compelling state governmental in-

terest. Plyer v. Doe, 457 U.S. 202, 217 (1982).

Here, the state supreme court, far from identifying

any state interest that is served by the state statute in

question, explained that it was required or authorized by

federal law. Consequently, in rejecting petitioner’s equal

protection challenge to the statute, the state court asserted

that the law was immune from such attack under federal

law:

[t]he people of North Dakota and the legislature

were acting under explicit authority granted by Con-

gress in the exercise of its federal power over Indians

when our Constitution was amended and Chapter 27-

19, N.D.C.C., was enacted. We therefore find no equal

protection violation of the Constitution of either the

state or the United States and for the reasons stated

on our opinion, affirm the judgment of the district

court. 321 N. W. 2d 510, 513 (1982).

Petitioner has shown that Congress neither prohibited

state jurisdiction over claims like petitioner’s by enacting

Pub. L. 280 nor consented to the state law, Chapter 27-19,

depriving petitioner and other Indians of access to state

court. The state statute must stand on its merits as being

a necessary legislative measure to meet some compelling

state need. The state law has absolutely nothing to do

with the federal purpose or policy, explicit or implicit, be-

hind Pub. L. 280.

Regardless of whether a state borrows federal law

to act as a guide for its own policy, the Court wrote:

[that] to justify its use as a criterion for its own dis-

criminatory policy, the state must demonstrate that

the classification is reasonably adapted to ‘the pur-

poses for which the state desires to use it.’ (citations

omitted) Plyer v. Doe, 457 U.S. 202, 226 (1982).

The state supreme court has repeatedly disclaimed

any independent state legislative interest in barring In-

dian suits in state court. Rolette County v. Eltobgi, 221

N. W.2d 645, 648 (1974). Thus, the state advances no

interest at all, compelling or otherwise, as the basis for

sustaining such legislation. There is simply no good rea-

son or state interest ground for depriving petitioner of

access to state court. Federal law, in any case, prevents

Indians from consenting to state jurisdiction under state

laws such as Chapter 27-19. Kennerly v. District Court,

400 U.S. 423, 427 (1971). Indians could not comply with

this state statute even if they wished.

D. The State Law In Question Does Not

The Least Restrictive Solution To Any Jurisdic-

tional Concerns The State May Have

The state legislative classification here, even assum-

ing that the legislative purpose in enacting the statute

was an attempt at resolving some jurisdictional concerns

the state legislature had, represents an arbitrary means

to achieve thta legislative goal. Linde, Due Process of

Law Making, 55 Neb. L. Rev. 197 (1976). The power to

regulate jurisdiction is the power to regulate rights. This

Court has never allowed state legislatures t« completely

cut off access to state courts, otherwise afforded to a dis-

tinct group by the Constitution, as a legitimate means to

solve the perceived regulatory concerns of & state legis-

lature.

This Court has pointed out to state legislatures that

a clear, legitimate procedure exists for the solution of

regulatory problems that state legislatures may see aris-

ing from the presence of reservations within their state

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

(Pub. L. 280, as amended by the provisions of 25 U.S.C.

§§ 1321-1326, sets forth the manner in which state legisla-

tures and tribal governments may resolve any jurisdiction-

al issues).

This state legislation, as construed by the state su-

preme court, indiscriminately bars all Indian claims re-

gardless of whether any legitimate federal indian law or

federal jurisdictional issues are presented by the facts

of the case. Petitioner submits that the discriminatory

legislative action is just unrelated to any legitimate goal.

-0-—

CONCLUSION

For the reasons set forth above, petitioner respect-

fully requests that the judgment of the Supreme Court

of North Dakota be reversed.

Respectfully submitted,

17 Second Avenue West JOHN 0. HOLM

Dickinson, ND 58601 Counsel for the Three Affiliated

(701) 225-6066 Tribes

Legal Department CHRISTOPHER D. QUALE

Three Affiliated Tribes RAYMOND CROSS

P.O. Box 460 Counsel for the Three Affiliated

New Town, ND 58763 Tribes

(701) 627-3621

A. 1

APPENDIX

N. D. Enabling Act:

The relevant portion of Section 4 of North Dakota’s

Enabling Act, 25 Stat. 677, incorporated in N. D. CONST.

Art. XVI, § 203, reads:

The people of North Dakota agree and declare that

they forever disclaim all right and title to... all

lands . . . owned or held by any Indian or Indian

tribes; and that until the title thereto shall have been

extinguished by the United States, the same shall be

and remain subject to the disposition of the United

States, and said Indian lands shall remain under the

absolute jurisdiction and control of the Congress of

the United States... .

N.D. CONST. ART. I

Section 22. All courts shal! be open, and every man

for any injury done him in his lands, goods, person, or

reputation shall have remedy by due process of law, and

right and justice administered without sale, denial or

delay. Suits may be brought against the state in such

manner, in such courts, and in such cases, as the legisla-

tive assembly may, by law, direct.

N.D. CONST. ART. XVI, § 203, Amended

and renumbered as ART. XIII, §1

(2) reads in relevant part:

Section 1/2). The people inhabiting this state do agree

and declare that they forever disclaim all right and title

to the unappropriated public lands lying within the boun-

daries thereof, and to all lands lying within said limits

owned or held by any Indian or Indian tribes, and that

until the title thereto shall have been extinguished by the

: =

A. 2

United States, the same shall be and remain subject to

the disposition of the United States, and that said Indian

lands shall remain under the absolute jurisdiction and

control of the Congress of the United States, provided,

however, that the Legislative Assembly of the state of

North Dakota may, upon such terms and conditions as it

shall adopt, provide for the acceptance of such jurisdic-

tion as may be delegated to the state by act of Congress.

N.D. CENTURY CODE (1974)

27-19-01. Assumption of jurisdiction.—In accordance

with the provisions of Public Law 280 of the 83rd Con-

gress 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

reservation upon acceptance by Indian citizens in a man-

ner provided by this chapter. Upon acceptance the juris-

diction 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 within such Indian reservation or Indian coun-

try as they have elsewhere within this state.

27-19-02. Method of acceptance.—Acceptance of Juris-

diction 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 en-

roiled residents voting who are eighteen years of

ge or older, at an election called and supervised

by the North Dakota Indian Affairs Commission

A. 3

upon petition of fifteen percent of those eligible

to vote at such an election.

27-19-05. Individual acceptance. — An individual In-

dian 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.

SECTIONS 6 AND 7 OF PUBLIC LAW 280,

67 STAT. 589

Section 6: Notwithstanding the provisions of any

Enabling 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, remove any legal im-

pediment 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 become

effective with respect to such assumption of jurisdiction

by any such State until the people thereof have appro-

priately amended their State constitution or statutes as

the case may be.

Section 7: The consent ot 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, provided for in this Act, to assume

jurisdiction at such time and in such manner as the people

P ~~

; ED. ae

a =<-_ - | “2e

A. 4

of the State shall, by affirmative legislative action, obli-

gate and bind the State to assumption thereof.

SECTION 402(a) OF PUBLIC LAW 90-284,

82 STAT. 79, CODIFIED AT 25 U.S.C. § 1322

§ 1322. Assumption by State of civil jurisdiction

(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 oceupy-

ing 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 jurisdiction over other civil causes of

action, and those civil laws of such State that are of gen-

eral 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.

SECTION 404 OF PUBLIC LAW 90-284,

82 STAT. 79, CODIFIED AT 25 U.S.C. § 1324

§ 1324. Amendment of State constitutions or statutes to

remove legal impediment; effective date

Notwithstanding the provisions of any enabling 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 exist-

A. 5

ing statutes, as the case may be, to remove any legal im-

pediment to the assumption of civil or criminal jurisdic-

tion in accordance with the provisions of this title (25

USCS §§ 1321 et seq.). The provisions of this title (25

USCS §§ 1321 et seq.) shall not become effective with

respect to such assumption of jurisdiction by any such

State until the people thereof have appropriately amended

their State constitution or statutes, as the case may be.

SECTION 406 OF PUBLIC LAW 90-284,

82 STAT. 79, CODIFIED AT 25 U.S.C. § 1326

§ 1326. Special election

State jurisdiction acquired pursuant to this title (25

USCS $4 1321 et seq.) 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 In-

dians within the affected area of such Indian country

accept such jurisdiction by a majority vote of the adult

Indians voting at a special electon held for that purpose.

The Secretary of the Interior shall call such special elec-

tion 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 percentum of such enrolled

adults.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.