North Pacific Ins. Co. v. Switzler

• Decision Date: 28 August 1996
• Citation: 143 Or.App. 223,924 P.2d 839
• Parties: NORTH PACIFIC INSURANCE COMPANY, an Oregon corporation, Respondent, v. Cindy SWITZLER, in her representative capacity as Guardian Ad Litem for Keegan Kalama, a minor, Respondent, and Angelina DeLaTorre, conservator and guardian ad litem for Joaquin MacNeil, a minor; Andrea and Gilbert Kalama, conservators and guardians ad litem for Gilbert Kalama, Jr.; and Celeste Whitewolf, estate administrator for the Estate of Rupert Kalama, deceased, Appellants. 9306-03899; CA A84345.
• Court: Oregon Court of Appeals

Page 839

924 P.2d 839

143 Or.App. 223

NORTH PACIFIC INSURANCE COMPANY, an Oregon corporation, Respondent, v. Cindy SWITZLER, in her representative capacity as Guardian Ad Litem for Keegan Kalama, a minor, Respondent and Angelina DeLaTorre, conservator and guardian ad litem for Joaquin MacNeil, a minor; Andrea and Gilbert Kalama conservators and guardians ad litem for Gilbert Kalama, Jr. and Celeste Whitewolf, estate administrator for the Estate of Rupert Kalama, deceased, Appellants.

9306-03899; CA A84345.

Court of Appeals of Oregon.

Argued and Submitted March 15, 1996.

Decided Aug. 28, 1996.

[143 Or.App. 225-A] Kathryn H. Clarke, Portland, argued the cause and filed the briefs for appellants.

Thomas W. Brown, Portland, argued the cause for respondent North Pacific Insurance Company. With him on the brief was Cosgrave, Vergeer & Kester.

No appearance for respondent Cindy Switzler.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

De MUNIZ, Judge.

Defendants appeal from a declaratory judgment in plaintiff's favor, ORS 28.010, challenging the trial court's subject matter and personal jurisdiction. We reverse.

Defendants are three Native American youths who were involved in a single-car accident on the Warm Springs Indian Reservation. Plaintiff is an insurance company that had issued a liability policy to the grandparents of the vehicle's driver. Defendants claimed that the driver was covered under the policy, but plaintiff disagreed.

The accident occurred on June 26, 1990. Keegan Kalama, a minor, was driving his father's pickup truck on the reservation when it overturned. In the truck were passengers Joaquin MacNeil, Gilbert Kalama and Rupert Kalama, all minors. Joaquin and Gilbert were injured and Rupert was killed. At the time of the accident, Rupert and Gilbert were Warm Springs members living on the reservation. Joaquin was a Colorado resident visiting the reservation. Keegan was also a Warm Springs member, but he lived off the reservation on a 10-acre parcel in Sandy, Oregon. On that parcel were a trailer where Keegan lived with his mother, Cindy Switzler, as well as a house occupied by Jerry Lawson Sr., and his wife, Doris Lawson. The Lawsons are Switzler's parents and Keegan's grandparents.

Before the accident, the Lawsons had purchased an insurance policy from plaintiff in Portland, where plaintiff's headquarters are located. The policy provided liability coverage for any "family member" of the insured, which the policy defined as "a person related to you by blood, marriage or adoption who is a resident of your household."

On June 26, 1992, Joaquin, Gilbert and Rupert's estate filed a negligence action against Keegan in Warm Springs tribal court. Switzler, Keegan's mother, was eventually appointed his guardian ad litem. On June 15, 1993, plaintiff filed this declaratory action against Keegan in state court, seeking a declaration that Keegan was not covered under the Lawson policy. Joaquin, Gilbert and Rupert's estate then filed a separate declaratory action in tribal court, arguing that Keegan was covered. In the state court action, Keegan then moved under ORCP 29A to compel joinder of Joaquin, Gilbert and Rupert's estate, all of whom opposed the joinder and moved to dismiss on the grounds that the court lacked subject matter and personal jurisdiction. The trial court allowed Keegan's motion and also granted plaintiff summary judgment, ruling that the policy did not cover Keegan. Only defendants Joaquin, Gilbert and Rupert's estate appealed. ¹

We first address defendants' contention that the trial court lacked subject matter jurisdiction by virtue of Gilbert and Rupert's status as Warm Springs members living on the reservation. ² Although Native American tribes retain attributes of sovereignty, the United States Supreme Court long ago departed from the notion that state laws have no force within reservation boundaries. White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 141-42, 100 S.Ct. 2578, 2582-83, 65 L.Ed.2d 665 (1980). Nonetheless, Congress's power over tribal affairs under the Indian Commerce Clause ³ and the semi-independent status of the tribes themselves give rise to two independent barriers to the assertion of state authority over tribal members and their reservations. First, federal law may pre-empt the exercise of state authority. Id. Second, that authority may unlawfully infringe " 'on the right of reservation Indians to make their own laws and be ruled by them.' " Id., quoting Williams v. Lee, 358 U.S. 217, 220, 79 S.Ct. 269, 270-71, 3 L.Ed.2d 251 (1959). These barriers are independent in the sense that either, standing alone, can prevent a state from exerting authority over tribal members or their land. 448 U.S. at 143, 100 S.Ct. at 2583-84.

We first consider whether federal law pre-empts the exercise of subject matter jurisdiction. 28 U.S.C. § 1360(a) grants Oregon state courts jurisdiction over civil actions "to which Indians are parties which arise in the areas of Indian country" in Oregon, "except the Warm Springs Reservation." Defendants contend that the federal statute bars state jurisdiction over any civil action involving Warm Springs members domiciled on the reservation, regardless of where it arose. Plaintiff argues that jurisdiction is pre-empted only in actions arising on the Warm Springs Reservation. We are aware of no Oregon or U.S. Supreme Court cases resolving this question. However, the statute's plain language does not support defendants' position.

When the resolution of a question of federal law turns on a statute and the intention of Congress, courts first look to the statutory language and then to the legislative history if that language is unclear. Blum v. Stenson, 465 U.S. 886, 896, 104 S.Ct. 1541, 1547-48, 79 L.Ed.2d 891 (1984). ⁴ 28 U.S.C. § 1360(a) provides, in part:

"Each of the States listed in the following table shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian Country listed opposite the name of the 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 as they have elsewhere within the State[.]"

In the referenced table, listed opposite "Oregon" are the words "All Indian country within the State, except the Warm Springs Reservation." Inserting that language into the operative text, the statute reads:

"Oregon shall have jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in all Indian country within Oregon, except the Warm Springs Reservation."

We conclude from that language that Congress intended to grant Oregon subject matter jurisdiction over all civil cases that (1) involve Native Americans as parties and (2) arise in the areas of Indian Country within the state's boundaries, except those cases arising on the Warm Springs Reservation. The phrase "except the Warm Springs Reservation" modifies the words "Indian country within Oregon," and thus represents a geographic limit to the exemption from jurisdiction. It is therefore not merely a party's status as a Warm Springs member that determines jurisdiction, but also where the action arose.

This is consistent with our interpretation of Congress's parallel grant of criminal jurisdiction in 18 U.S.C. § 1162(a), which was passed as part of the civil jurisdiction statute, Public Law 280. Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138, 143, 104 S.Ct. 2267, 2271-72, 81 L.Ed.2d 113 (1984); Bryan v. Itasca County, 426 U.S. 373, 377-81, 96 S.Ct. 2102, 2105-07, 48 L.Ed.2d 710 (1976); Williams, 358 U.S. at 221 n 6, 79 S.Ct. at 271 n. 6. 18 U.S.C. § 1162(a) provides, in part:

"Each of the States or Territories listed in the following table shall have jurisdiction over offenses committed by or against Indians in the areas of Indian country listed opposite the name of the State or Territory[.]

" * * * * *

"Oregon ............ All Indian country within the State, except the Warm Springs Reservation."

Under that statute, we have held that Oregon has no jurisdiction over crimes committed by Native Americans on the Warm Springs Reservation, but does have jurisdiction over such crimes committed off the reservation. State v. McGill, 115 Or.App. 122, 124, 836 P.2d 1371 (1992); see also State v. Smith, 277 Or. 251, 560 P.2d 1066 (1977) (same); Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148-49, 93 S.Ct. 1267, 1270-71, 36 L.Ed.2d 114 (1973) ("Absent express federal law to the contrary, Indians going beyond reservation boundaries have generally been held subject to non-discriminatory state laws otherwise applicable to all citizens of the State.").

We conclude that 28 U.S.C. § 1360(a) does not pre-empt the state's exercise of subject matter jurisdiction over civil actions arising off the Warm Springs Reservation, even though Warm Springs members residing on the reservation are parties. ⁵ The question now before us is whether the declaratory action arose on or off the Warm Springs Reservation.

A declaratory action does not accrue unless and until a justiciable controversy exists. State Farm Fire & Cas. v. Reuter, 294 Or. 446, 449, 657 P.2d 1231 (1983); Brown v. Oregon State Bar, 293 Or. 446, 449, 648 P.2d 1289 (1982). Here, a justiciable controversy arose at the time of the on-reservation automobile accident. See Reuter, 294 Or. at 453, 657 P.2d 1231 (justiciable controversy exists between insurer and insured because of third party's pending personal injury case). Although that tells us when the action accrued, it does not tell us where it arose.

In Foundation Reserve Ins. Co., Inc. v. Garcia, 105 N.M. 514, 734 P.2d 754 (1987), the New Mexico Supreme Court held that a declaratory action arose off the reservation, even though it was...