400 U.S. 423 (1971), 5370, Kennerly v. District Court of the Ninth

Docket Nº:No. 5370
Citation:400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507
Party Name:Kennerly v. District Court of the Ninth
Case Date:January 18, 1971
Court:United States Supreme Court
 
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Page 423

400 U.S. 423 (1971)

91 S.Ct. 480, 27 L.Ed.2d 507

Kennerly

v.

District Court of the Ninth

No. 5370

United States Supreme Court

Jan. 18, 1971

Judicial District of Montana

ON PETITION FOR WRIT OF CERTIORARI TO THE

SUPREME COURT OF MONTANA

Syllabus

Petitioners unsuccessfully moved to dismiss an action for a 1964 debt brought against them, on the ground that the Montana courts lacked jurisdiction because they were Blackfeet Indians and the transactions took place on the Indian reservation. Section 7 of the Act of August 15, 1953, provided in part that a State not having civil jurisdiction over Indians could

assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.

Montana took no affirmative legislative action with respect to the Blackfeet Reservation. In 1967, the Blackfeet Tribal Council adopted an act providing for concurrent jurisdiction in the Tribal Court and the state courts of any suit where the defendant is a member of the Tribe. Title IV of the Civil Rights Act of 1968 repealed § 7 of the 1953 Act and provided for the assumption of state jurisdiction

only where the enrolled Indians within the affected area of such Indian country accept such jurisdiction by a majority vote of the adult Indians voting at a special election held for that purpose.

Held: The Tribal Council's unilateral action was insufficient to vest jurisdiction in the Montana courts under either the 1953 Act, which required affirmative state legislative action, or under the 1968 Act, which calls for a majority vote of all enrolled Indians.

Certiorari granted; 154 Mont. 488, 466 P.2d 85, vacated and remanded.

Per curiam opinion.

PER CURIAM.

This case arises on petition for certiorari from a judgment of the Supreme Court of Montana. The petition for certiorari and the motion to proceed in forma pauperis are granted. For reasons appearing below, we vacate the judgment of the Supreme Court of Montana and

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remand the case for further proceedings not inconsistent with this opinion.

Petitioners are members of the Blackfeet Indian Tribe and reside on the [91 S.Ct. 481] Blackfeet Indian Reservation in Montana. The tribe is duly organized under the Indian Reorganization Act of June 18, 1934, 48 Stat. 984, 25 U.S.C. § 461 et seq. In July and August of 1964, petitioners purchased some food on credit from a grocery store located within the town limits of Browning, a town incorporated under the laws of Montana but located within the exterior boundaries of the Blackfeet Reservation.

A suit was commenced in the Montana state courts against petitioners on the debt arising from these transactions. Petitioners moved to dismiss the suit on the ground that the state courts lacked jurisdiction because the defendants were members of the Blackfeet Tribe and the transactions took place on the Indian reservation. The lower state court overruled the motion and petitioners, pursuant to Montana rules of procedure, petitioned the Supreme Court of Montana for a "writ of supervisory control" to review this lower court ruling. The State Supreme Court took jurisdiction and affirmed.

Prior to the passage of Title IV of the Civil Rights Act of 1968, 82 Stat. 78, 25 U.S.C. §§ 1321-1326 (1964 ed., Supp. V), discussed infra, state assumption of civil jurisdiction -- in situations where Congress had not explicitly extended jurisdiction1 -- was governed by § 7 of

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the Act of August 15, 1953, 67 Stat. 590. Section 7 of that statute provided:

The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act [referring to §§ 2 and 4, see n. 1, supra], to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.

Pursuant to this statute, the Montana Legislature enacted Chapter 81, Laws of 1963 (§§ 83-801, 83-806, Montana Rev.Codes Ann. (1966)), extending criminal, but not civil, jurisdiction over Indians of the Flathead Indian Reservation. But Montana never took "affirmative legislative action" -- concerning either civil or criminal jurisdiction -- with respect to the Blackfeet Reservation.

However, on November 20, 1967, the Blackfeet Tribal Council adopted Chapter 2, Civil Action, § 1, as part of the Blackfeet Tribal Law and Order Code, which provides, in relevant part:

The Tribal Court and the State shall have concurrent and not exclusive jurisdiction of all suits wherein the defendant is a member of the Tribe which is brought before the Courts. . . .

The Montana Supreme Court relied on this pre-1968 Tribal Council action as an alternative basis for the assertion of state civil jurisdiction over the instant litigation.2

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In Williams v. Lee, 358 U.S. 217 (1959), [91 S.Ct. 482] a non-Indian brought suit against a Navajo Indian for a debt arising out of a transaction which took place on the Navajo Reservation. The Arizona State Supreme Court upheld the exercise of jurisdiction, and we reversed. In the instant case, the Montana Supreme Court attempted to reconcile its result with Williams on the theory that the transfer of jurisdiction by unilateral tribal action is consistent with the exercise of tribal powers of self-government. 154 Mont. 488, 466 P.2d 85.3 The Court in Williams, in the process of discussing the general question of state action impinging on the affairs of reservation Indians, noted that

[e]ssentially, absent governing Acts of Congress, the question has always been

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whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.

358 U.S. at 220. With regard to the particular question of the extension of state jurisdiction over civil causes of action by or against Indians arising in Indian country, there was, at the time of the Tribal Council resolution, a "governing Act of Congress," i.e., the Act of 1953. Section 7 of that statute conditioned the assumption of state jurisdiction on "affirmative legislative action" by the State; the Act made no provision whatsoever for tribal consent, either as a necessary or sufficient condition to the assumption of state jurisdiction. Nor was the requirement of affirmative legislative action an idle choice of words; the legislative history of the 1953 statute shows that the requirement was intended to assure that state jurisdiction would not be extended until the jurisdictions to be responsible for the portion of Indian country concerned manifested by political action their willingness and ability to discharge their new responsibilities. See H.R.Rep. No. 848, 83d Cong., 1st Sess., 6, 7 (1953); Williams, supra, at 220-221. Our conclusion as to the intended governing force of § 7 of the 1953 Act is reinforced by the comprehensive and detailed congressional scrutiny manifested in those instances where Congress has undertaken to extend the civil or criminal jurisdictions of certain States to Indian country. See n. 1, supra.

In Williams, the Court went on to note the absence of affirmative congressional action, or affirmative legislative action by the people of Arizona within the meaning of the 1953 Act. 358 U.S. at 222-223. Here it is conceded that Montana took no affirmative legislative action with respect to the Blackfeet Reservation. The unilateral action of the Tribal Council was insufficient to vest Montana with jurisdiction over Indian country under the 1953 Act.

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The remaining question is whether the pre-1968 manifestation of tribal consent by tribal council action can operate to vest Montana with jurisdiction under the provision of the Civil Rights Act of 1968. Title IV of the 1968 statute...

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