Bad Horse v. Bad Horse
| Decision Date | 04 January 1974 |
| Docket Number | No. 12519,12519 |
| Citation | 163 Mont. 445,31 St.Rep. 22,517 P.2d 893 |
| Parties | Alfred BAD HORSE, Plaintiff and Appellant, v. Jerlyn BAD HORSE, Defendant and Respondent. |
| Court | Montana Supreme Court |
Thomas J. Lynaugh, argued, Hardin, Kenneth M. Reese, Hardin, for appellant.
Kelly & Carr, Miles City, Thomas K. Schoppert, argued, New Town, N. D., for respondent.
This is an appeal from an order of the district court of Rosebud County granting defendant's motion to dismiss for lack of jurisdiction over the person and subject matter of plaintiff's divorce action.
Plaintiff is an enrolled member of the Northern Cheyenne Indian Tribe and resides at Lame Deer, Montana, located within the exterior boundaries of the Northern Cheyenne Indian Reservation. Defendant is an enrolled member of the Three Affiliated Tribes of the Fort Berthold Reservation in North Dakota. The parties applied for and obtained a state marriage license and were married on September 17, 1971, in Forsyth, Montana, which is located outside the boundaries of any Indian reservation. The state district court in Forsyth has been issuing marriage licenses and granting divorces to Indian people since at least 1937, when the Northern Cheyenne Tribal Council accepted and approved a provision in the tribal code which required that all marriages and divorces be consummated in accordance with the laws of the state of Montana.
Plaintiff filed for divorce in the state district court of Rosebud County in December 1972. Defendant was served with process by a state process server on January 24, 1973, in Poplar, Montana, located within the exterior boundaries of the Fort Peck Indian Reservation in Montana. The daughter of the parties was residing with her mother when service of process was effectuated. Plaintiff's complaint asked for custody of such child. After service was made, defendant and her daughter left Poplar, Montana and have been residing within the Fort Berthold Reservation at Parshall, North Dakota.
Defendant filed a motion to dismiss the divorce action on the grounds the state court lacked both subject matter and personal jurisdiction in the matter. The district court in its findings of fact and conclusions of law issued on March 20, 1973, granted the motion to dismiss on both counts. From this order, plaintiff appeals.
Two issues are presented for review:
1) Do Montana courts have subject matter jurisdiction over a divorce action involving an Indian couple living within the boundaries of an Indian reservation?
2) Is an Indian defendant who was served with process on the Fort Peck Reservation beyond the personal jurisdiction of the state's courts?
The first issue is the principal issue in this appeal. Defendant's position is that (1) Montana has not acted pursuant to federal statute in order to assume civil jurisdiction within the Northern Cheyenne Reservation, (2) an assumption of subject matter jurisdiction in this case would severely restrict self-government by the Northern Cheyenne Tribe, (3) access to state courts because Indians are citizens of the state is not a transfer of subject matter jurisdiction, and (4) a denial of subject matter jurisdiction is not a denial of equal protection of the laws. Along with several federal cases defendant cites three particularly relevant and recent Montana cases: Kennerly v. District Court, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507; Crow Tribe v. Deernose, 158 Mont. 25, 487 P.2d 1133; Blackwolf v. District Court, 158 Mont. 523, 493 P.2d 1293.
We do not believe that these decisions cited above by defendant in support of her position warrant such a broad application. These cases were distinguished in State ex rel. Iron Bear v. District Court, Mont., 512 P.2d 1292, a recent opinion of this Court accepting jurisdiction of an Indian couple seeking a divorce in the courts of this state. (We note that Iron Bear was decided after the district court's order here.)
Defendant maintains that a denial of subject matter jurisdiction is not a denial of equal protection of the laws because federal law prohibits state courts from assuming jurisdiction of civil actions involving Indians which arise on an Indian Reservation except as provided by federal law. Gourneau v. Smith, (N.D.1973), 207 N.W.2d 256. More specific is the language of Section 402(a) of the Civil Rights Act of 1968, 82 Stat. 73, 79, which grants to the states jurisdiction over civil causes of action between Indians. Public Law 90-284, Title IV., § 402(a), provides:
'The consent of the United States is hereby given to any State not having jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country situated within such State to assume, with the consent of the tribe occupying the particular Indian country or part thereof which would be affected by such assumption, such measure of jurisdiction over any or all such civil causes of action arising within such Indian county 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 general application to private persons or private property shall have the same force and effect within such Indian country or part thereof as they have elsewhere within that State.'
In addition it must be noted that the cases relied upon by defendant deal with acts or transactions within the exterior boundaries of the reservation. The parties involved in this divorce proceeding were married outside the Indian reservation in Forsyth, Montana, pursuant to the laws of this state.
The cases cited by defendant deal with arguments concerning tribal self-government and assumption of jurisdiction by the state over the Northern Cheyenne Reservation. Here we are concerned with protecting the equal rights of a person under the Montana Constitution to maintain an action in the courts of this state.
Art. III, Sec. 3, of the 1889 Montana Constitution, this state's equivalent to the 'equal protection' clause of the United States Constitution, provides:
'All persons are born equally free, and have certain natural, essential, and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties, of acquiring, possessing and protecting property, and of seeking and obtaining their safety and happiness in all lawful ways.'
Equal protection of the laws of a state is extended to persons within its jurisdiction when its courts are open to them on the same conditions as to others in like circumstances. 16 Am.Jur.2d, Constitutional Law, § 533; 1 Antieau, Modern Constitutional Law, § 7:13.
Enrolled members of Indian tribes within Montana are citizens of the United States and citizens of the state of Montana. An Indian is entitled, as any other citizen, to bring an action in the courts of this state. Art. III, Sec. 6, of the 1889 Montana Constitution (Art. II, Sec. 16 of the 1972 Montana Constitution); Section 83-102, R.C.M.1947; Bonnet v. Seekins, 126 Mont. 24, 243 P.2d 317.
As a general rule an Indian may sue in a state court the same as all other persons, irrespective of race or color, at least with respect to any matter over which Congress has not expressly retained jurisdiction in the United States, particularly if the Indian is a citizen and the matter does not interfere with tribal self-government. 42 C.J.S. Indians § 8; 41 Am.Jur.2d, Indians, § 20.
Defendant's position is predicated on the jurisdictional test set forth in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251, subsequently applied in Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573. The Williams test essentially directs its attention to whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them. In McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 93 S.Ct....
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