Whiteshield, In re

• Decision Date: 19 November 1963
• Docket Number: No. 8092,8092
• Citation: 124 N.W.2d 694
• Parties: In the Matter of Mary WHITESHIELD et al., Minor Children under the Age of Eighteen Years. James VERY, as Juvenile Commissioner of Benson County, North Dakota, Petitioner and Appellant, v. Fellx WHITESHIELD and Lucy Whiteshield, Respondents.
• Court: North Dakota Supreme Court

Page 694

124 N.W.2d 694

In the Matter of Mary WHITESHIELD et al., Minor Children

under the Age of Eighteen Years.

James VERY, as Juvenile Commissioner of Benson County, North

Dakota, Petitioner and Appellant, v. Fellx WHITESHIELD and Lucy Whiteshield, Respondents.

No. 8092.

Supreme Court of North Dakota.

Nov. 19, 1963.

Syllabus by the Court

1. The district court, acting under the Juvenile Court Act, exercises equity jurisdiction which is civil in nature.

2. Chapter 242 of the Laws of 1963 (Chapter 27-19 of the Pocket Supplement to N.D.C.C.), adopted in accordance with Public Law 280 of the 83rd Congress and the 1958 amendment to Section 203 of the State Constitution, provides for the acceptance of jurisdiction over civil causes of action arising on an Indian reservation with certain limitations and also the right for complete withdrawal thereof, which acceptance and withdrawal are provided to be at the discretion of the adult enrolled residents of the reservation, if exercised in the manner provided by the statute. It is held that the statute operates as a complete disclaimer of State jurisdiction over civil causes of action arising on an Indian reservation in the absence of acceptance by the Indians.

3. When the Supreme Court finds that the jurisdiction of the trial court, from where the cause pending before it came, has been taken away by a subsequent legislative act, it will not consider the merits but will order the cause to be dismissed.

Helgi Johanneson, Atty. Gen., Gene C. Grindeland, Sp. Asst. Atty. Gen., Bismarck, and Melvin Christianson, State's Atty., Minnewaukan, for petitioner and appellant.

Duffy & Haugland, Devils Lake, for respondents.

John B. Hart, Rolla, and Hans Walker, Jr., New Town, amici curiae.

TEIGEN, Judge.

This is an appeal from an order of the district court, juvenile division, dismissing a proceeding for the termination of parental rights of Indian parents to their eight minor children. All of the persons involved in the proceedings are of Indian blood and are enrolled as such on the records of the Indian Bureau, United States Department of Interior. They reside upon Indian land, the title of which is held in trust by the United States of America and has not been extinguished. The allotment is located within the Devils Lake Sioux Indian Reservation within the County of Benson and State of North Dakota. The order dismissing was made on the ground that the court was without jurisdiction.

The proceedings were commenced by the service of a summons issued upon the petition of the Juvenile Commissioner for Benson County. Personal service thereof was admitted by the parents of the minor children. The parents, through their attorney, moved to dismiss the proceeding upon the ground that the petition upon its face showed that the court had no jurisdiction of the persons or subject matter of these proceedings. The petition sets forth, in addition to the identities, relationships and cause, the pertinent facts which classify the respondent parents and their children as described in the first paragraph of this opinion.

The sole issue for determination in this appeal is whether the juvenile court, referred to as the district court, juvenile division, has jurisdiction over Indian parents and their children residing upon the Fort Totten Indian Reservation to terminate the parental rights and transfer the care, control, and custody of the minor children in accordance with the statute, or to take such other action as may be appropriate in the circumstances.

Chapter 27-16, N.D.C.C., establishes and provides the jurisdiction and duties of the juvenile court. It provides the district court shall have original jurisdiction in cases coming under the provisions of the chapter but the court, for convenience, shall be called 'the juvenile court.' Upon the establishment of the grounds, reasons, and causes alluded to in Section 27-16-34, N.D.C.C., it has jurisdiction to transfer the care, control, and custody of children within its jurisdiction to the Director of the Division of Child Welfare of the Public Welfare Board, to a licensed child-placing agency, or to some suitable adult person named by the court and, in the exercise of such jurisdiction, the court may terminate all rights of the parents with reference to such children. The chapter invokes the equity jurisdiction of the district court. State ex rel. City of Minot v. Gronna, 79 N.D. 673, 59 N.W.2d 514. Thus the court exercises its civil jurisdiction.

In recent cases decided prior to the 1958 amendment of Section 203 of the North Dakota Constitution, Chapter 430 of the Session Laws of 1959, and the effective date of Chapter 242 of the Session Laws of 1963, dealing with jurisdiction over civil causes arising on Indian country, it was held that North Dakota courts had no jurisdiction over a person alleged to have committed a crime under the State's laws against one who is an Indian allegedly committed on an Indian reservation. State v. Kuntz (N.D.1954), 66 N.W.2d 531, and State v. Lohnes (N.D.1955), 69 N.W.2d 508. It was also held that the State courts have jurisdiction over a civil matter arising between two Indians sounding in tort which was alleged to have occurred on an Indian reservation. Vermillion v. Spotted Elk (N.D.1957), 85 N.W.2d 432.

Public Law 280 of the 83rd Congress, Chapter 505 of United States Statutes at Large, Vol. 67, pages 588 to 590, was approved in 1953. Sections 6 and 7 of said Act provide as follows:

'Sec. 6. Notwithstanding the provisions of any Enabling Act for the admission of a State, the consent of the United States is hereby given to the people of any State to amend, where necessary, their State constitution or existing statutes, as the case may be, to remove any legal impediment to the assumption of civil and criminal jurisdiction in accordance with the provisions of this Act: Provided, That the provisions of this Act shall not become effective with respect to such assumption of jurisdiction by any such State until the people thereof have appropriately amended their State constitution or statutes as the case may be.

'Sec. 7. The consent of the United States is hereby given to any other State not having jurisdiction with respect to criminal offenses or civil causes of action, or with respect to both, as provided for in this Act, to assume jurisdiction at such time and in such manner as the people of the State shall, by affirmative legislative action, obligate and bind the State to assumption thereof.'

In Vermillion v. Spotted Elk, supra, we held that the compact between the United States and the State of North Dakota, created by Section 4 of the Enabling Act and the disclaimer in Section 203 of the North Dakota Constitution, did not constitute a reservation by the United States of exclusive jurisdiction of civil causes of action, not involving lands, between Indians residing on reservations within the boundaries of the State and that Public Law 280, giving the consent of the United States to the acceptance of civil and criminal jurisdiction by any State not having such jurisdiction, has no application to States which have assumed and exercised jurisdiction prior to the enactment thereof without intervention by the United States. The court said that Section 22 of Article I, Constitution of North Dakota, providing that courts in this State shall be open to every man for any injury done him in his lands, goods, person or reputation, shall have remedy by due process of law and right and justice administered without sale, denial or delay applied to Indians and, as citizens of the United States and residents of North Dakota, they have a constitutional right to the use of the courts. The case further held that the compact between the United States and the State of North Dakota, created by the Enabling Act and the disclaimer in Section 203 of our Constitution, has reference only to Indian lands and that the provisions of the compact cannot be held to be a reservation by the United States of jurisdiction in civil cases not involving land. However, by the amendment of Section 203 of the North Dakota Constitution in 1958, and the passage of Chapter 242 of the Session Laws of 1963, the people and the legislature of the State have taken affirmative action which...