Whyte v. District Court of Montezuma County

• Court: Colorado Supreme Court
• Writing for the Court: MOORE; DAY
• Citation: Whyte v. District Court of Montezuma County, 346 P.2d 1012, 140 Colo. 334 (Colo. 1959)
• Decision Date: 21 September 1959
• Docket Number: No. 18964,18964
• Parties: Clifford Becher WHYTE, Petitioner, v. DISTRICT COURT OF MONTEZUMA COUNTY, Colorado, John H. Galbreath, as Judge Thereof, and Irene Clark Whyte, Respondents.

Page 1012

346 P.2d 1012

140 Colo. 334

Clifford Becher WHYTE, Petitioner, v. DISTRICT COURT OF MONTEZUMA COUNTY, Colorado, John H Galbreath, as Judge Thereof, and Irene Clark Whyte, Respondents.

No. 18964.

Supreme Court of Colorado, En Banc.

Sept. 21, 1959.

Rehearing Denied Dec. 14, 1959.

Warren O. Martin, Fred M. Winner, Max D. Melville, Denver, Milenski & Parga, Cortez, for petitioner.

Duke W. Dunbar, Atty. Gen., Patricia Maloy, Asst. Atty. Gen., for respondent District Court, etc.

Marvin Ping, Cortez, for respondent Irene Clark Whyte.

MOORE, Justice.

This is an original proceeding in which a rule issued, directed to the above named respondents, to show cause why the relief prayed for by petitioner should not be granted.

Petitioner alleges that he and the respondent Irene Clark Whyte are members of the Ute Mountain Tribe of the Ute Mountain Reservation Indians; that at all times material to the issues presented each of them was a duly enrolled Indian of said reservation; that respondent Irene Clark Whyte filed a complaint in divorce in the district court of Montezuma county, Colorado, in which she alleged that she and petitioner were married at Towoac, Colorado, on August 5, 1952. Towoac is within the boundaries of the Indian reservation. Petitioner further alleges that he filed a motion to dismiss the divorce action on the ground that the court lacked jurisdiction because the parties to said action were members of the Ute Mountain Tribe of the Ute Mountain Reservation and that they were domiciled on said reservation; that the respondent judge overruled the motion to dismiss; that the members of the Ute Mountain Tribe of the Ute Mountain Reservation Indians are treaty Indians and the State of Colorado has not acted affirmatively to accept jurisdiction over said treaty Indians in accordance with the provisions of the Act of August 15, 1953, c. 505, Sec. 6-7; 67 Stat. 590, 28 U.S.C.A. § 1360 note. It is further alleged that the state court has no jurisdiction over the parties or the subject matter of the action and that the sole jurisdiction to determine the controversy between the parties rests in the tribal court of said tribe of treaty Indians; that in the divorce action respondent Irene Clark Whyte seeks a division of property, support money and attorneys' fees. Petitioner alleges that the control of allotted tribal funds is involved, as well as the enforcement of a treaty between the United States and a sovereign nation of Indians, and that the rights of a tribe of treaty Indians to pass upon the legal rights of its members in duly constituted tribal courts is being interfered with by the respondents.

Respondents by answer admit generally the facts set forth in the petition; allege that the petitioner and the plaintiff in the divorce action were 'at all times pertinent hereto domiciled in the State of Colorado, residing within the boundaries of the County of Montezuma and the Sixth Judicial District'; and alleged that the district court has 'full jurisdiction of the parties and the subject matter involved' in the divorce action. As a second return to the rule respondents allege the following:

'1. That by its Enabling Act the State of Colorado was granted and, through adoption of its Constitution, accepted general civil jurisdiction of Indian Reservations within its boundaries and, further, that the Federal Government has not retained nor asserted jurisdiction of the matter herein involved.

'2. That the Tribal Court of the Ute Mountain Tribe has no jurisdiction of divorce proceedings involving a common law or tribal custom marriage such as the one concerned in Civil Action No. 2791 sought to be prohibited.

'3. That under the Constitution and laws of the United States and the Constitution and laws of the State of Colorado, the respondent Court has full jurisdiction of petitioner Clifford Becher Whyte and respondent Irene Clark Whyte, and of the subject matter of Civil Action No. 2791.'

The question to be determined is whether the respondent court has jurisdiction to proceed to judgment in the divorce action. If answered in the affirmative the rule should be discharged. If the answer is in the negative the rule should be made absolute.

The Congress of the United States and the duly constituted officers of the federal government since adoption of the Constitution have had the power to regulate dealings with the Indians. The Supreme Court of the United States, speaking through Chief Justice John Marshall in Worcester v. State of Georgia, 6 Pet. 515, 31 U.S. 515, 8 L.Ed. 483, said:

'[The Constitution] confers on Congress the powers of war and peace; of making treaties, and of regulating commerce with foreign nations, and among the several states, and with the Indian tribes. These powers comprehend all that is required for the regulation of our intercourse with the Indians. They are not limited by any restriction on their free actions. The shackles imposed on this power, in the confederation, are discarded.'

Under the Constitution of the United States the jurisdiction of the federal government over all Indian affairs is plenary and subject to no diminution by the states in the absence of specific congressional grant of authority to them to act. United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228; United States v. McGowan, 302 U.S. 535, 58 S.Ct. 286, 82 L.Ed. 410; Perrin v. United States, 232 U.S. 478, 34 S.Ct. 387, 58 L.Ed. 691.

As a corollary to federal sovereignty it is clear that state laws have no force within the territory of an Indian tribe in matters affecting Indians. Patterson v. Council of Seneca Nation, 245 N.Y. 433, 157 N.E. 734; Blanset v. Cardin, 256 U.S. 319, 41 S.Ct. 519, 65 L.Ed. 950; Dole v. Irish, 2 Barb., N.Y., 639; Oklahoma Land Co. v. Thomas, 34 Okl. 681, 127 P. 8; Donnelly v. United States, 228 U.S. 243, 33 S.Ct. 449, 57 L.Ed. 820; Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962. As stated by Cohen in his Federal Indian Law at page 120: 'It is well settled that the state has no power over the conduct of Indians within the Indian country, whether or not the conduct is of special concern to the federal government.'

The case of Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 272, 3 L.Ed.2d 251, decided by the Supreme Court of the United States January 12, 1959, is the last word on the subject under consideration. We think it controls the instant action. In that case the court held that where a white man entered into a contract with a Navajo Indian on a Navajo Reservation in Arizona, the state courts of Arizona were without jurisdiction to grant relief in an action to recover the agreed price for goods sold by the white man to the Indian. The court's opinion contains the following pertinent language:

'There can be no doubt that to allow the exercise of state jurisdiction here would undermine the authority of the tribal courts over Reservation affairs and hence would infringe on the right of the Indians to govern themselves. It is immaterial that respondent is not an Indian. He was on the Reservation and the transaction with an Indian took place there. (cit. om.) The cases in this Court have consistently guarded the...