BAD HORSE v BAD HORSE

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No. 12519 I N THE 3UPREME COURT OF THE STATE O M N A A F OTN 1973 ALFRiiD BAD HORSE, P l a i n t i f f and A p p e l l a n t , -vs - JEKLYN BAD HORSE, Defendant and Respondent. Appeal from: D i s t r i c t Court of t h e S i x t e e n t h J u d i c i a l D i s t r i c t , Honorable A l f r e d B . C o a t e , Judge p r e s i d i n g . Courlsel of Record : For Appellant : Thomas J . Lynaugh a r g u e d , B i l l i n g s , Montana Kenneth M. Reese, H a r d i n , Montana F o r Respondent: K e l l y and C a r r , M i l e s C i t y , Montana Thomas K. S c h o p p e r t a r g u e d , New Town, North Dakota Submitted: Decided : November 26, 1 9 7 3 JAN - 4 7974 Clerk M r . J u s t i c e Frank I. Haswell d e l i v e r e d t h e Opinion of t h e Court. T h i s i s an a p p e a l from an o r d e r of t h e d i s t r i c t c o u r t of Rosebud County g r a n t i n g d e f e n d a n t ' s motion t o d i s m i s s f o r l a c k of j u r i s d i c t i o n over t h e person and s u b j e c t m a t t e r of p l a i n t i f f ' s divorce action. P l a i n t i f f i s an e n r o l l e d member of t h e Northern Cheyenne I n d i a n T r i b e and r e s i d e s a t Lame Deer, Montana, l o c a t e d w i t h i n t h e e x t e r i o r boundaries of t h e Northern Cheyenne I n d i a n R.eservation. Defendant i s an e n r o l l e d member of t h e Three A f f i l i a t e d T r i b e s of t h e F o r t Berthold Reservation i n North Dakota. The p a r t i e s a p p l i e d f o r and o b t a i n e d a s t a t e marriage l i c e n s e and were married on September 17, 1971, i n F o r s y t h , Montana, which i s l o c a t e d o u t s i d e t h e boundaries of any I n d i a n r e s e r v a t i o n . The s t a t e d i s t r i c t c o u r t i n Forsyth has been i s s u i n g marriage l i c e n s e s and g r a n t i n g d i v o r c e s t o I n d i a n people s i n c e a t l e a s t 1937, when t h e Northern Cheyenne T r i b a l Council accepted and approved a p r o v i s i o n i n t h e t r i b a l code which r e q u i r e d t h a t a11 marriages and d i v o r c e s be consummated i n accordance w i t h t h e laws of t h e s t a t e of Montana. P l a i n t i f f f i l e d f o r divorce i n t h e s t a t e d i s t r i c t court of Rosebud County i n December 1972. Defendant was served w i t h p r o c e s s by a s t a t e p r o c e s s s e r v e r on January 24, 1973, i n P o p l a r , Montana, l o c a t e d w i t h i n t h e e x t e r i o r boundaries of t h e F o r t Peck I n d i a n Reservation i n Montana. The daughter of t h e p a r t i e s was r e s i d i n g w i t h h e r mother when s e r v i c e of process was e f f e c t u a t e d . P l a i n t i f f ' s complaint asked f o r custody of such c h i l d . After s e r v i c e was made, defendant and h e r daughter l e f t P o p l a r , Montana and have been r e s i d i n g w i t h i n t h e F o r t Berthold Reservation a t P a r s h a l l , North Dakota. Defendant f i l e d a motion t o d i s m i s s t h e d i v o r c e a c t i o n on t h e grounds t h e s t a t e c o u r t lacked b o t h s u b j e c t m a t t e r and personal j u r i s d i c t i o n i n t h e matter. The d i s t r i c t c o u r t i n i t s f i n d i n g s of f a c t and conclusions of law i s s u e d on March 20, 1973, granted the motion to dismiss on both counts. From this order, plaintiff appeals. Two issues are presented for review: 1) Do Montana courts have subject matter jurisdiction over a divorce action involving an Indian couple living within the boundaries of an Indian reservation? 2) Is an Indian defendant who was served with process on the Fort Peck Reservation beyond the personal jurisdiction of the state's courts? The first issue is the principal issue in this appeal. 1 ~efendant's position is that ( ) Montana has not acted pursuant to federal statute in order to assume civil jurisdiction within the Northern Cheyenne Reservation, (2) an assumption of subject matter jurisdiction in this case would severely restrict self-government by the Northern Cheyenne Tribe, (3) access to state courts because Indians are citizens of the state is not a transfer of subject 4 matter jurisdiction, and ( ) a denial of subject matter jurisdiction is not a denial of equal protection of the laws. Along with several federal cases defendant cites three particularly relevant and recent Montana cases: Kennerly v. District Court, 400 U.S. 423, 91 S.Ct. 480, 27 L ed 2d 507; Crow Tribe v. Deernose, 158 Mont. 25, 487 P.2d 1133; Blackwolf v. District Court, 158 Mont. 523, 493 P.2d 1293. We do not believe that these decisions cited above by defendant in support of her position warrant such a broad application. V. These cases were distinguished in State ex rel. Iron Bear Iron Bear, Mon - t. , 512 P.2d 1292, 30 St.Rep. 482, a recent opinion of this Court accepting jurisdiction of an Indian couple seeking a divorce in the courts of this state. (We note that Iron Bear was decided after the district court's order here.) Defendant maintains that a denial of subject matter jurisdiction is not a denial of equal protection of the laws because federal law prohibits state courts from assuming jurisdiction of civil actions involving Indians which arise on an Indian Reservation except as provided by federal law. Gourneau v. Smith, (N.D. 1973), 207 N.W.2d 256. More specific is the language of Section 402(a) of the Civil Rights Act of 1968, 82 Stat. 73,79, which grants to the states jurisdiction over civil causes of action between Indians. Public Law 90-284, Title IV., §402(a), provides: "The consent of the United States is hereby given to any State not having jurisdiction over civil causes of action between Indians or to which Indians are parties which arise in the areas of Indian country situated within such State to assume, with the consent of the tribe occupying the particular Indian country or part thereof which would be affected by such assumption, such measure of jurisdiction over any or all such civil causes of action arising within such Indian country or any part thereof as may be determined by such 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 or part thereof as they have elsewhere within that State. I I In addition it must be noted that the cases relied upon by defendant deal with acts or transactions within the exterior boundaries of the reservation. The parties involved in this divorce proceeding were married outside the Indian reservation in Forsyth, Montana, pursuant to the laws of this state. The cases cited by defendant deal with arguments concerning tribal self-government and assumption of jurisdiction by the state over the Northern Cheyenne Reservation. Here we are con- cerned with protecting the equal rights of a person under the Montana Constitution to maintain an action in the courts of this state. Art. 111, Sec. 3, of the 1889 Montana Constitution, this state's equivalent to the "equal protection" clause of the United States Constitution, provides: "All persons are born equally free, and have certain natural, essential, and inalienable rights, among which may be reckoned the right of enjoying and defending their lives and liberties, of acquiring, possessing and protecting property, and of seeking and obtaining their safety and happiness in all lawful ways. 11 Equal protection of the laws of a state is extended to persons within its jurisdiction when its courts are open to them on the same conditions as to others in like circumstances. 16 Am Jur 2d, Constitutional Law, $ 533; 1 Antieau, Modern Constitutional Law, $ 7:13. Enrolled members of Indian tribes within Montana are citizens of the United States and citizens of the state of Montana. An Indian is entitled, as any other citizen, to bring an action in the courts of this state. Art.111, Sec. 6, of the 1889 Montana Constitution (Art. 11, Sec. 16 of the 1972 Montana Constitution); Section 83-102, R.C.M. 1947; Bonnet v. Seekins, 126 Mont. 24, 243 P.2d 317. As a general rule an Indian may sue in a state court the same as all other persons, irrespective of race or color, at least with respect to any matter over which Congress has not expressly retained jurisdiction in the United States, particularly if the Indian is a citizen and the matter does not interfere with tribal self-government. 42 C.J.S. Indians 1 8; 41 Am Jur 2d, Indians, 1 20. ~efendant's position is predicated on the jurisdictional test set forth in Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L ed 2d 251, subsequently applied in Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L ed 2d 573. The Williams test essentially directs its attention to whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them. In McClanahan v. Arizona State Tax Commission, 411 U.S. 164, 36 L ed 2d 129, 93 S.Ct. 1257, the United States Supreme Court pointed out that cases applying the Williams test have dealt principally with situations involving non-Indians. In these situations, both the tribe and the state could fairly claim an interest in asserting their respective jurisdictions. The Williams test was designed to resolve this conflict by providing that the state could protect its interest up to the point where tribal self-government would be affected. In the instant case, the situation is entirely different. This case involves the respective rights of two reservation Indians in a divorce action in a forum not antagonistic to the tribe, the state, or the federal government. There is no interference with the operation of the tribal court since the Northern Cheyenne Tribal Court has not attempted to exercise jurisdiction over marriage and divorce since 1937. At that time the tribe enacted a provision in its law and order code which has been embodied in the present code, revised in 1966, which reads: "Chapter 3, Section 1: "All Indian marriages and divorces must be consummated in accordance with the laws of the State of Montana, except that no commonlaw marriages shall be recognized within the bounds of the Northern Cheyenne Reservation. I I Domestic relations may well be one of those concerns that are peculiar to Indian culture and tradition and best administered by tribal officials who understand Indian marriage and divorce customs although our holding here is not predicated thereon. Here the Northern Cheyenne Tribe has not sought to govern these domestic relations, but rather has left them to the state government by its 1937 enactment and the state has actually exercised jurisdiction since. Art, IIg See. 6 of the 1889 Montana Constitution provides: 11 Courts of justice shall be open to every person, and a speedy remedy afforded for every injury of person, property or character; and that right and justice shall be administered without sale, denial or delay. I I Section 83-102, R.C.M. 1947, concerning jurisdiction, provides: I I The sovereignty and jurisdiction of this state extend to all places within its boundaries, as established by the constitution, excepting such places as are under the exclusive jurisdiction of the United States". As stated in Bonnet, reiterated in State ex rel. Kennerly v. District Court, 154 Mont. 488, 466 P.2d 85 (reversed by the United States Supreme Court on other grounds, 400 U.S. 423, 91 S.Ct. 480, 27 L ed 2d 507), and in State ex rel. Iron Bear v. Iron Bear, - t. Mon , 512 P.2d 1292, 30 St.Rep. 482, the courts of this state are open to our Indian citizens. As citizens of the state of Montana they are entitled to the protection of our laws and utilization of our courts. As we pointed out in Bonnet, this state and other states have long held that an Indian has the same rights as are accorded any other person to invoke the jurisdiction of the state courts to protect his rights in matters not affecting the federal government. Recent federal legislation has been specifically enacted to guarantee the reservation Indian the same rights as all citizens. Public Law 280 (Act of 1953), 67 Stat. 589, and the Civil Rights Act of 1968, 82 Stat. 73, while not attempting to culturally assimilate the Indian, are efforts to place the Indian in a legal status similar to that of all citizens, and abolish laws which adversely discriminate against the Indians. To deny plaintiff access to Montana courts here would leave him without a remedy as a practical matter and deny to him that which other persons of this state are entitled under ~ontana's Constitution. The second issue ancems the effect of service of process on an Indian defendant within the exterior boundaries of an Indian reservation. A divorce is generally considered an action in rern as far as it affects the status of the parties but in personam as to other matters. A court may have jurisdiction to grant a divorce even though the defendant has not been served personally in the state and has not appeared in the case. Service was obtained pursuant to Rule 4, Montana Rules of Civil Procedure. Once the district court has assumed juris- diction over the subject matter and process has been properly served, the defendant cannot throw up a shield around herself by claiming that the state process server cannot pierce the exterior boundaries of an Indian reservation and serve civil process therein. In the instant case the marriage 11 contract" took place off the reservation. There has been no preemption by the federal government which could prevent the transfer of jurisdiction to the state. There i s no disclaimer made and t h e r e i s no i n f r i n g e - ment on t h e r i g h t of t h e t r i b e t o govern i t s e l f . Indian country i s n o t a f e d e r a l enclave o f f l i m i t s t o s t a t e process s e r v e r s . Service of process extends t o an Indian defendant served w i t h i n t h e F o r t Peck Reservation. S t a t e S e c u r i t i e s , Inc. v. Anderson, 84 N.M. 629, 506 P.2d 786. The myth of Indian sovereignty has pervaded j u d i c i a l attempts by s t a t e c o u r t s t o d e a l with contemporary Indian problems. Such r a t i o n a l e must y i e l d t o t h e r e a l i t i e s of modern l i f e , both on and o f f t h e r e s e r v a t i o n . A s Judge R u s s e l l Smith r e c e n t l y observed i n United S t a t e s v. Blackfeet T r i b e , (D.C.Mont.), 364 F. Supp. 192, 194: "The b l u n t f a c t , however, i s t h a t an Indian t r i b e i s sovereign t o t h e e x t e n t t h a t t h e United S t a t e s permits i t t o be sovereign-n e i t h e r more nor l e s s . I I Only by throwing o f f t h e s t r i c t u r e s of Indian sovereignty can s t a t e c o u r t s e n t e r t h e arena and meet t h e problems of t h e modern Indian. I f Congress and t h e f e d e r a l a p p e l l a t e c o u r t s have a b e t t e r s o l u t i o n , l e t them come forward. U n t i l then, t h e o r d e r of t h e d i s t r i c t c o u r t i s vacated and t h e cause remanded t o t h e d i s t r i c t c o u r t of Rosebud County f o r f u r t h e r proceedings c o n s i s t e n t herewith. Justice Concur : Justices. '

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