Three Affiliated Tribes of Ft. Berthold Reservation v. Wold Engineering, P. C., No. 10172

CourtUnited States State Supreme Court of North Dakota
Writing for the CourtERICKSTAD
PartiesTHREE AFFILIATED TRIBES OF the FORT BERTHOLD RESERVATION, Plaintiff and Appellant, v. WOLD ENGINEERING, P. C., a North Dakota Professional Corporation, Defendant, Third-Party Plaintiff, and Appellee, v. SCHMIT, SMITH & RUSH, Third-Party Defendant and Appellee. Civ.
Decision Date01 July 1982
Docket NumberNo. 10172

Page 510

321 N.W.2d 510
THREE AFFILIATED TRIBES OF the FORT BERTHOLD RESERVATION,
Plaintiff and Appellant,
v.
WOLD ENGINEERING, P. C., a North Dakota Professional
Corporation, Defendant, Third-Party Plaintiff, and
Appellee,
v.
SCHMIT, SMITH & RUSH, Third-Party Defendant and Appellee.
Civ. No. 10172.
Supreme Court of North Dakota.
July 1, 1982.

Beyer & Holm Law Offices, Dickinson, for plaintiff and appellant; argued by John O. Holm, Dickinson.

Bosard, McCutcheon & Rau by Hugh McCutcheon, Minot, for defendant, third-party plaintiff, and appellee; argued by Gary H. Lee, Bismarck.

Pringle & Herigstad, Minot, for third-party defendant and appellee.

ERICKSTAD, Chief Justice.

Three Affiliated Tribes of the Fort Berthold Indian Reservation (Affiliated) appealed from a judgment of the District Court of Ward County dismissing the complaint for lack of subject matter jurisdiction. The sole issue on appeal is whether or not the State court has subject matter jurisdiction over a civil action arising within the exterior boundaries of the Fort Berthold Indian Reservation in which Affiliated is the plaintiff and the defendants are non-Indians. The trial court held it had no jurisdiction. We affirm.

Page 511

Affiliated contracted with Wold Engineering for the design and construction of a water system for the Four Bears Village. For purposes of our discussion, Affiliated is an Indian tribe. The Four Bears Village is located entirely within the exterior boundary of the Fort Berthold Indian Reservation. The enrolled residents of the Fort Berthold Indian Reservation have not consented to assumption of civil jurisdiction by the state of North Dakota, pursuant to the Indian Civil Rights Act of 1968 and Chapter 27-19 of the North Dakota Century Code.

After the construction and installation of the water system, Affiliated brought suit against Wold Engineering, claiming Wold negligently designed the water system.

Affiliated has thoroughly briefed and outlined a historical perspective of Indian law in the United States. Essentially, its argument is that the state of North Dakota had limited jurisdiction to hear civil actions involving Indians on the Indian Reservation prior to Congress's enactment of Public Law 280 in 1953 and the amendment of that Act by Congress in 1968 through the Indian Civil Rights Act. The purpose of Public Law 280 was to facilitate the transfer of jurisdictional responsibility to the states. Washington v. Confederated Bands and Tribes, 439 U.S. 463, 505, 99 S.Ct. 740, 764, 58 L.Ed.2d 740 (1979). It permitted states to amend their constitutions or existing statutes to remove any legal impediments to the assumption of civil and criminal jurisdiction, and thereby to unilaterally assume jurisdiction over criminal and civil matters within the exterior boundaries of Indian reservations within the states taking such action. In 1968, however, with the enactment of the Indian Civil Rights Act, Congress amended Public Law 280 to permit states to take jurisdiction only upon bilateral action. Congress now permits those states which did not previously acquire jurisdiction to assume jurisdiction only upon consent of the affected Indian tribes.

Affiliated argues that under the Congressional scheme states retained the jurisdiction held before the enactment of Public Law 280 and the Indian Civil Rights Act of 1968. In essence, Affiliated argues that North Dakota retained residuary jurisdiction over actions brought by Indians against non-Indians for civil wrongs committed on Indian lands. See, State ex rel. Iron Bear v. District Court, 162 Mont. 335, 512 P.2d 1292 (1973). That argument would be more convincing had the legislature of North Dakota not, pursuant to Public Law 280, totally disclaimed jurisdiction over civil causes of action arising on an Indian reservation. In re Whiteshield, 124 N.W.2d 694 (N.D.1963). In Nelson v. Dubois, 232 N.W.2d 54 (N.D.1975), with Justice Vogel dissenting, we rejected the concept of "residuary" jurisdiction. We adhere to that decision today.

In tracing the history of North Dakota's Indian civil jurisdiction we start with the Congressional Enabling Act, passed February 22, 1889, providing for the establishment of the states of Montana, North Dakota, South Dakota and Washington. Section 4, subdivision 2, of that Act provided that "Indian lands shall remain under the absolute jurisdiction and control of the Congress of the United States." That section was incorporated into the original North Dakota Constitution as a "Compact with the United States." Art. XVI, Sec. 203 N.D.Const. (1889).

In Vermillion v. Spotted Elk, 85 N.W.2d 432 (N.D.1957), this Court said that the contract between the United States and North Dakota created by Section 4, subdivision 2, of the Enabling Act and...

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8 practice notes
  • Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, No. 82-629
    • United States
    • United States Supreme Court
    • May 29, 1984
    ...them, will be required to decide whether North Dakota has denied petitioner equal protection under the Fourteenth Amendment. Pp. 157-158. 321 N.W.2d 510 (N.D.1982), vacated and remanded. Raymond Cross, Boulder, Colo., for petitioners. Louis F. Claiborne, Washington, D.C., for the United Sta......
  • Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, No. 84-1973
    • United States
    • United States Supreme Court
    • June 16, 1986
    ...27-19. The trial court dismissed the suit for lack of jurisdiction, and the North Dakota Supreme Court affirmed the dismissal on appeal. 321 N.W.2d 510 (1982). In so doing, the North Dakota Supreme Court held that any residuary jurisdiction the North Dakota courts possessed under Vermillion......
  • Airvator, Inc. v. Turtle Mountain Mfg. Co., No. 10207
    • United States
    • United States State Supreme Court of North Dakota
    • January 27, 1983
    ...of the Reservation vote to accept jurisdiction. Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., 321 N.W.2d 510 (N.D.1982); United States ex rel. Hall v. Hansen, 303 N.W.2d 349 (N.D.1981); Malaterre v. Malaterre, 293 N.W.2d 139 (N.D.1980); Nelson v. Dubois......
  • Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C., No. 10172
    • United States
    • United States State Supreme Court of North Dakota
    • March 13, 1985
    ...the plaintiff and the defendants were non-Indians. Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., 321 N.W.2d 510 Following an application for a writ of certiorari from the United States Supreme Court, that Court granted the writ, received briefs from the......
  • Request a trial to view additional results
8 cases
  • Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, No. 82-629
    • United States
    • United States Supreme Court
    • May 29, 1984
    ...them, will be required to decide whether North Dakota has denied petitioner equal protection under the Fourteenth Amendment. Pp. 157-158. 321 N.W.2d 510 (N.D.1982), vacated and remanded. Raymond Cross, Boulder, Colo., for petitioners. Louis F. Claiborne, Washington, D.C., for the United Sta......
  • Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, No. 84-1973
    • United States
    • United States Supreme Court
    • June 16, 1986
    ...27-19. The trial court dismissed the suit for lack of jurisdiction, and the North Dakota Supreme Court affirmed the dismissal on appeal. 321 N.W.2d 510 (1982). In so doing, the North Dakota Supreme Court held that any residuary jurisdiction the North Dakota courts possessed under Vermillion......
  • Airvator, Inc. v. Turtle Mountain Mfg. Co., No. 10207
    • United States
    • United States State Supreme Court of North Dakota
    • January 27, 1983
    ...of the Reservation vote to accept jurisdiction. Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., 321 N.W.2d 510 (N.D.1982); United States ex rel. Hall v. Hansen, 303 N.W.2d 349 (N.D.1981); Malaterre v. Malaterre, 293 N.W.2d 139 (N.D.1980); Nelson v. Dubois......
  • Three Affiliated Tribes of Fort Berthold Reservation v. Wold Engineering, P.C., No. 10172
    • United States
    • United States State Supreme Court of North Dakota
    • March 13, 1985
    ...the plaintiff and the defendants were non-Indians. Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P.C., 321 N.W.2d 510 Following an application for a writ of certiorari from the United States Supreme Court, that Court granted the writ, received briefs from the......
  • Request a trial to view additional results

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