617 P.2d 1056 (Wyo. 1980), 5242, State ex rel. Peterson v. District Court of Ninth Judicial Dist.

Docket Nº:5242.
Citation:617 P.2d 1056
Party Name:STATE of Wyoming ex rel. Alice PETERSON, Petitioner, v. DISTRICT COURT OF the NINTH JUDICIAL DISTRICT, State of Wyoming, Respondent, v. MILBANK MUTUAL INSURANCE COMPANY, a corporation, Real Party in Interest.
Case Date:September 08, 1980
Court:Supreme Court of Wyoming

Page 1056

617 P.2d 1056 (Wyo. 1980)

STATE of Wyoming ex rel. Alice PETERSON, Petitioner,




MILBANK MUTUAL INSURANCE COMPANY, a corporation, Real Party in Interest.

No. 5242.

Supreme Court of Wyoming.

September 8, 1980

Carol Herman, Wind River Legal Services, Inc., and Mike Barton, Director, Wind River Legal Services, Inc., Fort Washakie, for petitioner.

James L. Hettinger of Hettinger & Leedy, Riverton, for respondent.

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W. A. Smith and Philip Nicholas of W. A. Smith & Associates, Lander, for Milbank Mut. Ins. Co.

John D. Troughton, Atty. Gen., Peter J. Mulvaney, Deputy Atty. Gen., and Ronald P. Arnold, Asst. Atty. Gen., Cheyenne, for State of Wyo.


ROSE, Justice.

This petition for a writ of prohibition presents the issue of whether a Wyoming district court has subject-matter jurisdiction to adjudicate a claim arising out of a collision between a pickup truck and a horse on U. S. 287 within the Wind River Indian Reservation, Fremont County, Wyoming. The owners of the horse and truck were both enrolled members of the Shoshone Tribe. The truck owner's subrogee, Milbank Mutual Insurance Company, sued the horse owner, Alice Peterson, who has filed this petition. We hold that the district court is without subject-matter jurisdiction to proceed in this case.


This matter was first before us late last year when Peterson appealed the district court's denial of her motion to dismiss for lack of subject-matter jurisdiction and lack of personal jurisdiction. In an unpublished order, we dismissed the appeal on our own motion on December 14, 1979, because the denial of Peterson's motion by the district court was not a final order pursuant to Rule 1.05, W.R.A.P., from which an appeal may be taken. Catlin v. United States, 324 U.S. 229, 65 S.Ct. 631, 89 L.Ed. 911 (1945); and In re Greybull Valley Irrigation District, 52 Wyo. 168, 71 P.2d 801 (1937).

Currently, petitioner Peterson asks us to invoke our original jurisdiction under Article 5, Section 3, of the Wyoming Constitution and enter a writ of prohibition. The exercise of our original jurisdiction is discretionary. E. g., State ex rel. Pearson v. Hansen, Wyo., 409 P.2d 769, 770 (1966). However, the writ is most appropriately granted when the inferior court lacks subject-matter jurisdiction. State ex rel. Bank of Chadron v. District Court of Weston County, 5 Wyo. 227, 39 P. 749, 751 (1895). The writ of prohibition is also particularly appropriate where the wrongful exercise of jurisdiction is contrary to the law of the land. Id. and State ex rel. Mau v. Ausherman, 11 Wyo. 410, 72 P. 200, 204 (1903). The writ of prohibition is ordinarily granted only where there is no adequate remedy at law, yet we granted the writ in State v. District Court, Wyo., 399 P.2d 583, 584 (1965) to protect petitioners from an improper jury trial and subsequent appeal. In the case at bar, a writ of prohibition is, indeed, appropriate to prevent the district court from exercising subject-matter jurisdiction forbidden to it by federal law and to prevent the petitioner from having to defend this action in the state court system, as well as in the tribal court system.

In response to the Petition for a Writ of Prohibition, we issued an Order to Show Cause on January 3, 1980, therein noting that the State of Wyoming likely had an interest in the case, and, therefore, we included the Attorney General in the Show-Cause Order. The Attorney General, Milbank Mutual, and the District Court have all submitted briefs supporting the District Court's position that it has jurisdiction in the premises.


The jurisdictional facts are all stipulated. The horse owner, Alice Peterson, and the pickup truck owner and driver, Ross Duane Cady, are both enrolled members of the Shoshone Tribe of Indians of the Wind River Indian Reservation, and both reside within the reservation. 1 Cady insured his truck

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with Milbank Mutual through the latter's Lander office, which is not within the reservation. 2 In 1977, the truck was damaged and the horse killed when the two collided in the vicinity of Mile Post 83.8 of U. S. Highway 26 and 287. The accident site is a point on the highway within the boundaries of the Wind River Indian Reservation and also within Ms. Peterson's Allotment # 871. Wyoming currently holds a right-of-way permit issued by the Bureau of Indian Affairs in 1938, to build and maintain U. S. Highway 26 and 287 across Allotment # 871.

There exists at Fort Washakie the Wind River Court of Indian Offenses, operated by the Bureau of Indian Affairs. The court is a court of general criminal and civil jurisdiction for the Shoshone and Arapahoe Tribes of the Wind River Indian Reservation and has jurisdiction to adjudicate the case at bar. It is stipulated that the judges of the Indian court have had legal training but are not lawyers or members of any bar association.


All parties agree that Milbank Mutual is the real party in interest. 3 The parties opposed to the writ of prohibition would prefer to characterize the dispute as one between Peterson, an Indian, and Milbank, a non-Indian, whereas petitioner urges that the case be viewed as one between Indians. The State would concede that if the case is viewed as one between Indians, then the district court lacks jurisdiction. But the State argues that a subrogation can alter the jurisdictional nature of a case and confer a jurisdictional option that was lacking absent the subrogation. In support of this argument, the State cites Lumbermen's Mutual Casualty Co. v. Elbert, 348 U.S. 48, 75 S.Ct. 151, 99 L.Ed. 59 (1954). Although that case involved consideration of Louisiana's direct-action statute allowing a tort plaintiff to sue the alleged tortfeasor's insurer, the Supreme Court held that diversity jurisdiction existed where there was diversity between the plaintiff and the insurer, even if no diversity existed between the plaintiff and the alleged tortfeasor. Thus, by analogy to federal diversity jurisdiction, it would appear that the instant case is formally between a non-Indian and an Indian. Nonetheless, we consider it significant that trial of this case under Wyoming law 4 (e. g., our comparative-negligence

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statute, § 1-1-109, W.S.1977) would, of necessity, involve evaluation of the conduct (for purposes of ascertaining negligence) of two Reservation Indians on the Reservation.


The Code of Federal Regulations confers certain jurisdiction upon the Wind River Court of Indian Offenses. 25 C.F.R. § 11.1(a) states:

"(a) Except as otherwise provided in this part, § 11.1-11.87H apply to the following Indian reservations:

"(v) Wind River (Wyoming)."

25 C.F.R. § 11.22, under the heading "CIVIL ACTIONS (Jurisdiction)," provides:

"The Court of Indian Offenses shall have jurisdiction of all suits wherein the defendant is a member of the tribe or tribes within their jurisdiction, and of all other suits between members and nonmembers which are brought before the courts by stipulation of both parties...."

The portion of the regulations dealing with civil jurisdiction does not specify that the cause of action must arise on a reservation or in "Indian country." However, even if, arguendo, we imply this condition, the condition is satisfied. The term "Indian country" is defined by 18 U.S.C.S. § 1151:

"Except as otherwise provided in sections 1154 and 1156 of this title (18 USCS §§ 1154 and 1156), the term 'Indian country', as used in this chapter (18 USCS §§ 1151 et seq.), means (a) all land within the limits of any Indian reservation under the jurisdiction of the United States government, notwithstanding the issuance of any patent, and, including rights-of-way running through the reservation, (b) all dependent Indian communities within the borders of the United States whether within the original or subsequently acquired territory thereof, and whether within or without the limits of a state, and (c) all Indian allotments, the Indian titles to which have not been extinguished, including rights-of-way running through the same."

The United States Supreme Court has made the following comment on this definition:

"... While § 1151 is concerned, on its face, only with criminal jurisdiction, the Court has recognized that it generally applies as well to questions of civil jurisdiction. ..." DeCoteau v. District County Court for the Tenth Judicial District, 420 U.S. 425, 427, fn. 2, 95 S.Ct. 1082, 1084, fn. 2, 43 L.Ed.2d 300, reh. den. 421 U.S. 939, 95 S.Ct. 1667, 44 L.Ed.2d 95 (1975).

See, also, Mattz v. Arnett, 412 U.S. 481, 504, 93 S.Ct. 2245, 2257, 37 L.Ed.2d 92 (1973).

A dissent to this opinion seeks to avoid the literal language of 18 U.S.C. § 1151, which defines Indian country to include rights-of-way through Indian country. The dissent argues that the state highway traversing the Wind River Indian Reservation in this case is not Indian country. In Seymour v. Superintendent of Washington State Penitentiary, 368 U.S. 351, 82 S.Ct. 424, 7 L.Ed.2d 346 (1962), the Supreme Court made it quite clear that 18 U.S.C. § 1151 means what it says. In that case, an Indian was convicted in state court of attempted burglary. He sought habeas-corpus relief on the grounds that the alleged crime had occurred in Indian country, that he was an enrolled unemancipated member of the Colville Indian Tribe and that, therefore, the United States had exclusive jurisdiction. A major issue in the United States Supreme Court was the definition of Indian country. As the Supreme Court viewed the facts, the site...

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