Edwards v. Neal, (1998)

• Decision Date: 13 August 1998
• Docket Number: CIV. APP. 94-85
• Parties: RAY AND MARILYN EDWARDS, PLAINTIFFS/APPELLANTS, v. HARVEY (DOC) NEAL, DEFENDANT/APPELLEE.
• Court: Crow Court of Appeals in And For the Crow Indian Reservation Crow Agency Montana

RAY AND MARILYN EDWARDS, PLAINTIFFS/APPELLANTS, v. HARVEY (DOC) NEAL, DEFENDANT/APPELLEE.

CIV. APP. No. 94-85

Crow Court of Appeals in And For the Crow Indian Reservation Crow Agency, Montana

August 13, 1998

OPINION

¶1 This case raises the legal issue of whether Montana open range law or Crow Tribal statutory law applies in a Tribal Court negligence action involving a car-cow collision on a state highway within the Crow Reservation. This court holds that the Tribal Court erred in applying state law to grant summary judgment in favor of the livestock owner. As the first order of business on remand, however, and despite the parties' stipulation, this court directs the Tribal court to review its subject matter jurisdiction in light of the limitations imposed by the Supreme Court's decision in Strate v. A-1 Contractors. A. Facts and Proceedings Below

¶2 According to the parties' "Pre-Trial Stipulation," plaintiffs Edwards' car ran into a cow owned by defendant Neal on the night of January 6, 1994. The collision occurred on U.S. Highway 87 approximately two miles north of Wyola, Montana, within the Crow Reservation. As a result of the collision, the Edwards sustained $3,827 in damages to the car and storage costs. The cow, valued at $1,000, was killed. Plaintiff Ray Edwards was cited for a "liquor violation," apparently for possession of alcohol on the Reservation. The record does not contain a copy of the citation or any other police report from the accident.^[1]

¶3 The Edwards alleged that the wire on Mr. Neal's fence running parallel to the highway was detached from the posts in a number of places, that some of the posts had fallen down or were missing, and that a portion of the fence was completely down, allowing cattle to freely exit the pasture onto the highway (Amended Complaint ¶ 5; Response to Defendant's Interrogatory No. 13). The Edwards claim that Neal was negligent in maintaining his fences, that his conduct violated Crow Tribal Resolution No. 91-38 by allowing his cattle to wander onto a "primary highway" as defined by the Resolution, and that he is therefore liable to them for compensatory and punitive damages and costs (Amended Complaint).

¶4 In response to the Edwards' claims, defendant Neal denied any negligence in maintaining his fences, and denied that Resolution No. 91-38 applies in this case. Neal argued that under Montana's open range doctrine, a livestock owner is not liable to motorists for damages caused by livestock wandering on a state highway other than a "primary highway" as defined by Mont. Code Ann. §§ 60-7-201 and 202 (Answer; Brief in Support of Summary Judgment). Neal also raised the affirmative defense that the plaintiffs' own contributory negligence prevents them from recovering in this case, and asserted a counterclaim against the plaintiffs for the value of the animal (Id.).

¶5 The parties stipulated that the highway "in the location where the accident occurred is a State secondary highway, and is a primary highway as defined in Crow Tribal Resolution No 91-38." Pre-Trial Stipulation ¶ 3. Based on this stipulation, defendant Neal moved the Tribal Court for summary judgment of dismissal and the parties submitted the issue of the applicable law on briefs. On October 11, 1995 the Tribal Court (Arneson, J.) issued a summary order granting Neal's summary judgment motion. The Edwards timely appealed from that order. B. Subject Matter Jurisdiction

¶6 The parties also stipulated to Tribal Court jurisdiction of the parties and the subject matter of the dispute pursuant to Sections 3-2-202, 203 and 205 of the Crow Tribal Code. These provisions of the Code assert Tribal Court jurisdiction of all lands, persons and civil causes of action within the Crow Reservation.

¶7 As to subject matter jurisdiction, the Tribal Code and the stipulation reflected the prevailing interpretation of governing federal law in this Circuit at the time. See e.g., Iowa Mutual Ins. Co. v. LaPlante, 480 U.S. 9 18 (1987) (civil jurisdiction over the activities of Non-Indians on reservation lands "presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute"); Hinshaw v. Mahler, 42 F.3d 1178 (9th Cir. 1994) (Tribal court jurisdiction of Reservation automobile accident). However, the Supreme Court's opinion in Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1401 (1997), which effectively overruled Hinshaw, now requires a more rigorous analysis of Tribal Court jurisdiction in cases involving defendants who are not members of the Tribe.

¶8 First, Strate held that Tribal courts have the power to adjudicate disputes involving a non-member only if the Tribal government would also have the right to regulate the non-member's conduct. Strate, 117 S.Ct. at 1413. Next, the Strate Court held that in the absence of federal treaties or statutes providing for Tribal regulatory or adjudicatory jurisdiction, the question of whether the Tribe has retained inherent sovereign authority over the non-members depends to a large extent on the location of the nonmember conduct being regulated.

¶9 On the one hand, the Strate Court recognized that "tribes retain considerable control over nonmember conduct on tribal land." Strate, 117 S.Ct. at 1413 (emphasis added). On the other hand, the Strate Court held that if the conduct arose on non-Indian fee land, the Tribe's authority to regulate nonmembers is governed by the main rule and exceptions set forth in Montana v. United States, 450 U.S. 544 (1981) (Crow Tribe lacked authority to regulate hunting and fishing by non-Indians on reservation land owned in fee simple by non-Indians).

¶10 With respect to non-Indian fee lands, the Strate Court emphasized that the "main rule" is that Tribal civil authority "generally `do[es] not extend to the activities of nonmembers of the tribe.'" Strate, 117 S.Ct. at 1413, quoting Montana, 450 U.S. at 565 (changes in original). In order for the Tribe's inherent sovereign authority to extend to activities of nonmembers on non-Indian fee lands, the subject matter must fall within one of the two Montana exceptions: (1) "activities of nonmembers who enter consensual relationships with the tribe or its members," or (2) conduct which "threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe." Strate, 117 S.Ct. at 1415, quoting Montana, 450 U.S. at 565-566.

¶11 Applying the foregoing analysis to the facts of that case, the Court in Strate held that "tribal courts may not entertain claims against nonmembers arising out of accidents on state highways, absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers on the highway in question." Strate, 117 S.Ct. at 1408.

¶12 This court has recognized the fundamental principle that "[s]ubject matter jurisdiction may be raised at any time, by the parties or the court, and may not be waived by the parties." Estates of Red Wolf and Bull Tail v. Burlington Northern Railroad Co., Civ. App. Docket No. 97-010 (Order Re. Judicial Notice, April 22, 1998) at 3, citing Cripps v. Life Ins. Co. of North America, 980 F.2d 1261, 1264 (9th Cir. 1992). In order for a Tribal court to enter a judgment of record that will be recognized by the state and federal courts under principles of comity, the Tribal court must have competent jurisdiction of the subject matter of the dispute. Wilson v. Marchington, 127 F.3d 805, 811, 815 (9th Cir. 1997). Therefore, the parties' stipulation as to jurisdiction is ineffective.

¶13 This court has also recognized that the federal law, "including the controlling decisional law of the federal courts," limits the Tribal Court's jurisdiction. Crow Tribe v. Gregori and Big Horn County Electric Co-op., Civ. App. Docket No. 94-151 (April 2, 1998) at 15-16, citing National Farmers Union Ins. Cos. v. Crow Tribe, 471 U.S. 845, 852-53 (1985). Of course, the Tribal Code itself recognizes the limitations imposed by federal law, see, e.g., Section 3-1-104 (applicable law), Section 3-2-201 (general policy to exercise jurisdiction not otherwise enclosed by acts of Congress), and Section 3-2-204(2) (jurisdiction over property limited only by federal law). Thus, although Section 3-2-205 of the Crow Tribal Code asserts subject matter jurisdiction "over all causes of action arising within the exterior boundaries of the Crow Indian Reservation[,]" its broad wording must be read in the context of other Code provisions and subject to the United States' plenary legal power over Tribal governments.

¶14 Accordingly, in light of Strate, it is error for the Tribal Court not to analyze its jurisdiction under federal law in any case involving claims against a non-Tribal member. Gregori, supra, at 16. Although this lack of jurisdictional inquiry was understandable in light of the parties' pre-Strate stipulation, the result is that the record in this case does not disclose essential facts upon which this court can base a de novo review of subject matter jurisdiction. This court is therefore compelled to remand this case for further factual findings and a determination of whether the Tribal Court has subject matter jurisdiction.

¶15 Despite the lower federal courts' broad interpretations of Strate,^[2] the scant record which does exist convinces the court that this case is sufficiently different from Strate as to warrant a further jurisdictional inquiry by the Tribal Court. These differences stem from the basic fact that, unlike the specific question confronted in Strate, this case does not involve a "civil action against an allegedly negligent driver and the driver's employer, neither of whom is a member of the tribe[.]" Strate, 117 S.Ct. at 1407 (emphasis added).

¶16 In the first place,...