Lohnes v. Cloud

• Decision Date: 02 June 1977
• Docket Number: No. 9256,9256
• Citation: 254 N.W.2d 430
• Parties: David LOHNES, Jr., by his Guardian ad Litem, Ruth Ann Lohnes, Plaintiff and Appellant, v. Aloysius CLOUD, Defendant and Appellee. Civ.
• Court: North Dakota Supreme Court

Page 430

254 N.W.2d 430

David LOHNES, Jr., by his Guardian ad Litem, Ruth Ann

Lohnes, Plaintiff and Appellant, v. Aloysius CLOUD, Defendant and Appellee.

Civ. No. 9256.

Supreme Court of North Dakota.

June 2, 1977.

As Corrected July 11, 1977.

Syllabus by the Court

1. The statute must be construed as a whole and where a general provision conflicts with a special provision in the same statute, the two shall be construed if possible so that effect is given to both. § 1-02-07, NDCC.

2. A judgment rendered by a tribal court is not qualified for assignment to the State to be paid from the Unsatisfied Judgment Fund because it was not rendered by a district court of the State as required by § 39-17-03, NDCC.

3. Exclusion of Indian plaintiff from participation in the Unsatisfied Judgment Fund is not a denial of equal protection because it is not based on race but rather on the failure of the tribal judgment to meet the statutory requirements, as a result of the accident occurring on an Indian Reservation, the place of residence of the plaintiff and defendant who were enrolled members of the Indian tribe which had not consented to State jurisdiction in the manner provided by federal law.

Foughty, Christianson & Thompson, Devils Lake, for plaintiff and appellant; argued by Neil Thompson, Devils Lake.

Thomas W. Robb, Asst. Atty. Gen., Bismarck, for defendant and appellee.

SAND, Justice.

This appeal was taken from an order of the Ramsey County district court, second judicial district, dismissing the plaintiff's petition for payment from the Unsatisfied Judgment Fund on a tribal court judgment.

On 23 October 1971, while walking along a highway on the Fort Totten Indian Reservation, plaintiff David Lohnes was struck by a car driven by Aloysius Cloud. Both Lohnes and Cloud were enrolled members of the Fort Totten Reservation. Lohnes, a minor, was injured in that accident and brought an action by his guardian ad litem, Ruth Ann Lohnes, against Cloud.

The action was commenced in state district court but was dismissed for lack of jurisdiction; subsequently it was filed in United States District Court, where another dismissal resulted. Lohnes then brought the matter before the Fort Totten tribal court which entered a judgment for Lohnes in the amount of $10,000.

After execution was issued and returned unsatisfied, Lohnes first obtained an order from the tribal court for payment from the Unsatisfied Judgment Fund. Payment was refused.

Lohnes then filed the tribal court judgment with the clerk of court of Benson County district court and applied to the district court for an order directing payment from the Unsatisfied Judgment Fund. The application was dismissed and this appeal resulted.

The main issue is whether or not the tribal court judgment qualifies to be assigned to the State for payment from the Unsatisfied Judgment Fund.

The pertinent provision relating to the Unsatisfied Judgment Fund in this appeal is § 39-17-03, North Dakota Century Code, which reads, in part:

"Where any person who is a resident of this state, recovers in any court in this state a judgment for an amount exceeding three hundred dollars in an action for damages resulting from bodily injury to, or the death of, any person occasioned by, or arising out of, the ownership, maintenance, operation or use of a motor vehicle by a judgment debtor in this state, upon such judgment becoming final, such judgment creditor may, in accordance with the provisions of this chapter, apply to the judge of the district court in which such judgment was rendered, upon notice to the attorney general, for an order directing payment of the judgment out of said fund. . . ." (Emphasis ours.)

The principal argument made by Lohnes is that the statute authorizes payment of his judgment from the Unsatisfied Judgment Fund. He admits that the statute is ambiguous but contends that it can be, and should be, interpreted to include a tribal court judgment, based upon the language referring to any person who recovers "in any court in this state." He places some importance on the fact that the statute uses the words "any court in this state" as distinguished from "of this state." The former, he proposes, potentially encompasses any court physically located in the state of North Dakota.

The phrase relied upon by Lohnes is followed later in the same statute by a reference to "the district court in which such judgment was rendered." The judgment here, although filed with the clerk of court for Benson County, was not rendered by the district court, but, rather, by the tribal court. Whether or not it was nevertheless intended for participation in the Unsatisfied Judgment Fund is a question that must be answered by interpreting the statute.

It should be noted that we have not addressed this precise question in prior opinions. Schantz v. White Lightning, 231 N.W.2d 812 (N.D.1975); Gourneau v. Smith, 207 N.W.2d 256 (N.D.1973); and Nelson v. Dubois, 232 N.W.2d 54 (N.D.1975), involved claims on the Unsatisfied Judgment Fund where one or more parties were Indians, but in none of those cases had a judgment been obtained from tribal court. The first two were brought in state district court, so that the primary question on appeal was the existence of state jurisdiction. In the third, that question was certified to this court and we held that there was no state jurisdiction.

Standing alone, the phrase "any court in this state" is subject to various interpretations ranging from narrow to broad. It must, however, be construed in light of the entire section in which it appears rather than in isolation. The subsequent reference to judgment of district court illuminates and clarifies the earlier language by limiting it to any district court which issued the judgment in the State. Lohnes suggested that the two phrases are inconsistent and that it would thus be proper to give a broad interpretation to the earlier phrase "any court in this state." The rules of construction, however, lead us to a different result. The rule stated in § 1-02-07, NDCC, is that if the general provision conflicts with the special provision in the same statute, the two shall be construed, if possible, so that effect is given to both. Were we to adopt the analysis suggested by Lohnes, that is, interpreting the earlier phrase to include any court located in the state, the latter provision on district courts would be left inoperative.

In addition, § 1-02-07 states that if two provisions, one general and one specific, are irreconcilable, the special provision shall prevail. The provision referring to district courts is the more specific of the two because it particularly identifies a category of courts within the state. This view is further sustained by the rule that where several irreconcilable clauses appear in the same statute, the clause last in order of position We do not, however, think the language is inconsistent. The latter clause referring to district court does not invalidate the earlier language but simply defines and limits it. By reading the two phrases together in this manner neither one is rendered invalid. Thus the two clauses can be harmoniously construed.

shall prevail. See § 1-02-08, NDCC. In addition to these rules of construction, we are aided by the jurisprudential maxim that "particular expressions qualify those which are general." Section 31-11-05(25), NDCC.

Notwithstanding the "district court" language, Lohnes urges us to include the tribal judgment within the Unsatisfied Judgment Fund provisions by virtue of either the full faith and credit clause of Article IV, § 1, of the United States Constitution or under the principle of comity.

The full faith and credit clause is applicable by its express terms only between States. Indian tribes are not States, but rather hold a unique legal status as "quasi-sovereign entities" over whom Congress has plenary power. See, Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974); and United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886). They are dependent political nations and wards of the United States with only those characteristics of sovereignty not assumed by Congress. Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1971).

Even in Begay v. Miller, 70 Ariz. 380, 222 P.2d 624 (1950), where a county court was held bound to recognize a tribal divorce decree, the court was careful to point out that recognition was not made under the full faith and credit clause, which applies only between States. Its recognition was based only upon the general rule that a divorce valid where granted is recognized as valid everywhere. That principle, of course, does not apply here.

Lohnes cites Jim v. C. I. T. Financial Services Corp., 87 N.M. 362, 533 P.2d 751 (1975), as a case where full faith and credit was given to the laws of an Indian tribe. In that case, however, the action was brought in state district court under the tribal code. The court held that pursuant to 28 U.S.C. § 1738 the tribal laws were entitled to full faith and credit in state courts and that the complaint had been dismissed erroneously because the real issue was one of choice of law.

We recognize that under 28 U.S.C. § 1738 a judgment rendered in a territory is entitled to full faith and credit. However, no greater credit need be given to the judgment than it was accorded in the forum where it was rendered. Holm v. Shilensky, 388 F.2d 54 (C.A.N.Y. 2 Cir. 1968). Here, the judgment was not qualified for participation in the Unsatisfied Judgment Fund in the forum where it was rendered, and its treatment should be no different in state court. Recognition of this federal statute, however, does not end the matter, for in reality this is not a full faith and credit issue. We do not question the validity of that judgment, we are simply required to determine whether it comes within the provisions of the Unsatisfied Judgment Fund statute. Not all valid judgments are...