Nelson v. Dubois

• Decision Date: 10 July 1975
• Docket Number: No. 9047,9047
• Citation: 232 N.W.2d 54
• Parties: Einer NELSON and Olga Nelson, Plaintiffs, v. Violet Mae DUBOIS, Defendant. Civ.
• Court: North Dakota Supreme Court

Page 54

232 N.W.2d 54

Einer NELSON and Olga Nelson, Plaintiffs, v. Violet Mae DUBOIS, Defendant.

Civ. No. 9047.

Supreme Court of North Dakota.

July 10, 1975.

Syllabus by the Court

1. Acceptance of state jurisdiction by an Indian residing on an Indian reservation pursuant to § 27--19--05, N.D.C.C., does not confer upon the state courts jurisdiction to adjudicate a civil action in which that Indian is the defendant.

2. State jurisdiction over civil actions which arise i Indian country and which involve Indian defendants may be obtained only by state and tribal compliance with Public Law 90--284, § 402 (25 U.S.C. § 1322) and § 406 (25 U.S.C. § 1326).

Kenneth M. Moran, Jamestown, for plaintiffs.

Robert P. Brady, Asst. Atty. Gen., Bismarck, for defendant.

PAULSON, Judge.

This case comes to us upon the certification of certain questions of law by the Benson County District Court.

On December 31, 1971, a motor vehicle collision occurred on North Dakota Highway 57 within the exterior boundaries of the Fort Totten Indian Reservation, between the plaintiffs, Einer and Olga Nelson, and the defendant's son, Edwin Charles Dubois. An action was commenced by the Nelsons against the Estate of Edwin Charles Dubois, but was voluntarily dismissed. Suit was then commenced against the defendant, Violet Mae Dubois, as owner of the vehicle driven by Edwin Charles Dubois, under the family purpose doctrine. At all times pertinent to this action, Violet Mae Dubois was an enrolled member of the Turtle Mountain Band of Chippewa Indians and was residing on the Fort Totten Reservation.

On June 20, 1973, Mrs. Dubois signed a document entitled 'Consent to Civil Jurisdiction' in which she consented as to all matters to the civil jurisdiction of the state courts of North Dakota. Thereafter, the Nelsons obtained a default judgment against Mrs. Dubois and, on July 20, 1973, Notice of Default was served upon the North Dakota Highway Commissioner and the North Dakota Attorney General to initiate action against the Unsatisfied Judgment Fund.

Counsel for the Unsatisfied Judgment Fund, appearing for Mrs. Dubois, moved to dismiss this action for lack of jurisdiction on the grounds that Mrs. Dubois is an enrolled member of an Indian tribe residing on the Fort Totten Indian Reservation. This motion was denied by Judge James H. O'Keefe, of the Second Judicial District, but renewal of the motion was allowed by Judge O'Keefe's successor in this action, Judge Ray R. Friederich. Judge Friederich concluded that the issue of the state court's jurisdiction would be determinative of the action and, finding that the issue of jurisdiction was in doubt, certified the following questions to this court:

1. Is § 27--19--05, N.D.C.C., valid under the Supremacy Clause of the United States Constitution and pursuant to Public Law 90--284, 25 U.S.C. § 1322?

2. If § 27--19--05, N.D.C.C., is valid, does the District Court of Benson County acquire jurisdiction over a claim for relief, which arose prior to the date of execution of the individual acceptance statement?

Section 27--19--05, N.D.C.C., provides:

'Individual acceptance.--An individual Indian may accept state jurisdiction as to himself and his property by executing a statement consenting to and declaring himself and his property to be subject to state civil jurisdiction as herein provided. Such jurisdiction shall become effective on the date of execution of such statement. The statement accepting state jurisdiction shall be filed in the office of the county auditor of the county in which the person resides and when so filed shall be conclusive evidence of acceptance of state civil jurisdiction as provided herein.'

Subsequent to the initial certification of questions in this case, the Eighth Circuit Court of Appeals decided the case of Poitra v. Demarrias, 502 F.2d 23 (8th Cir. 1974) and this court decided the case of Rolette County v. Eltobgi, 221 N.W.2d 645 (N.D.1974). These two opinions contained language that was thought to bear upon this action and, in light of Poitra and Eltobgi, the district court made supplemental findings of fact and conclusions of law, and certified an additional question to this Court:

'SUPPLEMENTAL FINDINGS OF FACT

'11. Neither Plaintiff is an Indian.

'12. The amount in controversy in this suit exceeds $300.00.

'13. Neither Plaintiff is a resident of the Fort Totten Indian Reservation in North Dakota.

'14. Neither Plaintiff has done business on said Fort Totten Indian Reservation for at least one year prior to the institution of these proceedings.

'SUPPLEMENTAL CONCLUSIONS OF LAW

'The Code of Laws of the Devils Lake Sioux Tribe of the Fort Totten Indian Reservation of North Dakota provides as follows:

'Chapter I, Section 1.2(c): 'The court shall have jurisdiction (1) over all civil matters where all parties are Indians within the jurisdiction of the court, and (2) over all civil proceedings brought by a non-Indian, resident or doing business on the reservation for at least one year prior to the institution of the proceedings, against an Indian within the jurisdiction of the court, where the amount or value in controversy, including interest, does not exceed $300.00.'

'Chapter VIII, Section 8.1(a): 'No person shall drive a motor vehicle on the public highways without a valid driver's or chauffeur's license.'

'Chapter VIII, Section 8.3: 'No person shall operate a motor vehicle on the roadways within the Reservation unless such vehicle is in safe condition and complies with the registration laws of the state.'

'SUPPLEMENTAL CERTIFICATION OF QUESTIONS OF THE SUPREME

COURT

'Does the district court have residuary jurisdiction over this case?'

The district court concluded that it had no jurisdiction to hear this action and answered the three questions certified to us in the negative.

Except to the extent that this action differs factually from Gourneau v. Smith, 207 N.W.2d 256 (N.D.1973), our decision today is governed by our holding in that case. In Gourneau we held that the state courts of North Dakota had no jurisdiction over a dispute arising from a motor vehicle collision which occurred between two Indian drivers on a state highway within the confines of an Indian reservation. The only material factual distinction between the case at bar and Gourneau is that, in the instant case, the Indian defendant consented to the jurisdiction of the state courts. The first question certified to us is whether such individual acceptance of civil jurisdiction by an Indian, pursuant to § 27--19--05, N.D.C.C., effectively confers jurisdiction upon our state courts. We hold that it does not.

With the passage, in 1968, of Public Law 90--284, § 402 (25 U.S.C. § 1322) and § 406 (25 U.S.C. § 1326), the United States Congress clearly established the method by which States could assume civil jurisdiction over actions involving Indian parties and occurring within Indian country. Jurisdiction is to be obtained by a State only if, in a separate election, a Tribe votes to consent to the State's assertion of jurisdiction. Kennerly v. District Court of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971). Thus, a State may no longer unilaterally assert its jurisdiction. McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 93 S.Ct. 1257, 36 L.Ed.2d 129 (1973); nor may a tribal council, acting for the Tribe, cede jurisdiction to a State. Kennerly, supra.

In Eltobgi, supra 221 N.W.2d at 647, we suggested that the federal statutes and case law may have rendered our individual consent statute invalid:

'We accept as facts that the mother and child reside on the reservation, although temporarily absent, and that they have not accepted jurisdiction over themselves by the State. In fact, they could not individually accept general jurisdiction under current law. The passage of Public Law 90--284, Section 406 (25 U.S.C. § 1326), probably makes our statute, Section 27--19--05, N.D.C.C., ineffective for the purpose of allowing individual general acceptance of jurisdiction.'

We now conclude that state jurisdiction over Indian country may be obtained only by state and tribal compliance with Public Law 90--284, §§ 402 and 406. An individual defendant is no more able to confer jurisdiction upon the state than is a tribal council or a State, acting unilaterally. Section 27--19--05, N.D.C.C., enacted pursuant to Public Law 83--280, § 7 (1953), 67 Stat. 588, must now yield to the new federal doctrine. Our answer to the first certified question being no, consideration of the second certified question is obviated.

The last question certified to us is whether the district court has 'residuary' jurisdiction over the present action. This question is asked because of the language contained in a recent Eighth Circuit Court opinion, Poitra v. Demarrias, 502 F.2d 23 (8th Cir. 1974), wherein, at page 29, n. 10, the Eighth Circuit Court of Appeals stated:

'10. Inasmuch as the Standing Rock Sioux Tribe has indicated in its tribal code that a state license and registration are necessary prerequisites for driving on the reservation, The Code of Justice of the Standing Rock Sioux Tribe §§ 8.1, 8.3 (July 1973), a persuasive argument can be made that the tribe has waived any 'interference' claims with regard to suits in which the Unsatisfied Judgment Fund is involved. This is supported by the fact that each driver in North Dakota contributes, through his or her annual car registration fee, one dollar to the fund. North Dakota Century Code § 39--17--01 (1972). Furthermore, by acquiescing to the state regulations in this manner, the tribe may have left such fund cases to the 'residuary' jurisdiction of the state. See State ex rel. Iron Bear v. District Court, 512 P.2d 1292, 1298 (Mont.1973).'

The concept of 'residuary' jurisdiction is a novel one, originating, to the best of our knowledge, with the Montana case of State ex rel. Iron Bear v. District Court, 512 P.2d 1292 (Mont.1973), the case cited in Poitra. In Iron...