Gary C'hair and Rochelle C'hair v. District Court of the Ninth Judicial District, State of Wyoming, and John Strohecker

IN THE SUPREME COURT, STATE OF WYOMING

2015 WY 116

APRIL TERM, A.D. 2015

August 26, 2015

GARY C’HAIR and ROCHELLE
C’HAIR,

Petitioners,

v.

DISTRICT COURT of the NINTH
S-14-0198
JUDICIAL DISTRICT, State of
Wyoming,

and

JOHN STROHECKER,

Respondents.

Original Proceeding
Petition for Writ of Review
From the District Court of Fremont County
The Honorable Norman E. Young, Judge

Representing Petitioners:
James C. Worthen and Andrew F. Sears of Murane & Bostwick, LLC, Casper,
WY. Argument by Mr. Worthen.

Representing Respondent District Court of the Ninth Judicial District:
No appearance.

Representing Respondent John Strohecker:
Aaron J. Vincent of Vincent Law Office, Riverton, WY.

Before BURKE, C.J., and HILL, KITE*, DAVIS, and FOX, JJ.
* Justice Kite retired from judicial office effective August 3, 2015, and pursuant to Article 5, § 5 of the
Wyoming Constitution and Wyo. Stat. Ann. § 5-1-106(f) (LexisNexis 2015) she was reassigned to act on
this matter on August 4, 2015.

HILL, J., delivers the opinion of the Court; BURKE, C.J., files a dissenting opinion.

NOTICE: This opinion is subject to formal revision before publication in Pacific Reporter Third.
Readers are requested to notify the Clerk of the Supreme Court, Supreme Court Building,
Cheyenne, Wyoming 82002, of any typographical or other formal errors so that correction may be
made before final publication in the permanent volume.
HILL, Justice.

[¶1] Plaintiff, John Strohecker, a non-Indian, filed a complaint in state district court
against Defendants, Gary C’Hair and Rochelle C’Hair, both enrolled members of the
Northern Arapaho Tribe, for injuries sustained in a vehicle accident that occurred on
Wyoming Highway 789 within the boundaries of the Wind River Indian Reservation.
Defendants filed a motion for summary judgment asserting that the district court lacked
subject matter jurisdiction because Defendants are members of the Northern Arapaho
Tribe and the accident occurred on the reservation. Defendants also asserted that the
two-year statute of limitations dictated by the Shoshone and Arapaho Law and Order
Code should apply to bar Plaintiff’s action. The district court denied Defendants’
summary judgment motion, and Defendants filed a petition for writ of review in this
Court. We granted the petition and now affirm the district court’s decision.

ISSUES

[¶2] Defendants state the issues for our review as follows:

Issue 1 – Does the Ninth Judicial District Court lack subject
matter jurisdiction over [Defendants] Gary and Rochelle
C’Hair pursuant to the case of State ex rel. Peterson v. Ninth
Judicial District, 617 P.2d 1056 (Wyo. 1980)?

Issue 2 – Are [Plaintiff] Strohecker’s claims time barred
pursuant to Wyoming Statute Section 1-3-117, Lex Loci
Delicti and the Shoshone and Arapaho Law and Order
Section 1-8-6, Limitation of Civil Actions?

FACTS

[¶3] On July 27, 2009, Plaintiff, John Strohecker, who is a non-Indian resident of
Riverton, Wyoming, was traveling southbound on Wyoming Highway 789 from his
home in Riverton to Lander, Wyoming. As Plaintiff passed the parking lot of the
Northern Arapaho 789 Smokeshop/Casino, Defendant Gary C’Hair pulled out of the
parking lot and struck the vehicle Mr. Strohecker was driving. Mr. C’Hair is an enrolled
member of the Northern Arapaho Tribe, and was driving a vehicle belonging to his sister,
Rochelle C’Hair, who is also an enrolled member of the Northern Arapaho Tribe. At the
time of the accident, Ms. C’Hair was a resident of Natrona County. Mr. C’Hair’s place
of residence currently and at the time of the accident is unknown.

[¶4] Plaintiff and his passenger, Sara Miller, were injured in the accident, and Ms.
Miller called 911 to report the accident. Ms. Miller was informed that “the BIA,
Highway Patrol, and Fremont County Sheriff’s dispatchers would be notified of the

1
wreck to provide a rapid response to the scene.” A BIA officer and the Wyoming
Highway Patrol responded to the accident, along with an ambulance that transported
Plaintiff and Ms. Miller to the hospital in Riverton. The BIA officer issued a citation to
Gary C’Hair under the Shoshone and Arapaho Law and Order Code.

[¶5] On February 26, 2013, Plaintiff filed a complaint against Gary C’Hair in the Ninth
Judicial District Court for Fremont County, Wyoming, seeking damages for injuries
caused by Mr. C’Hair’s negligent operation of a motor vehicle. On March 19, 2013,
Plaintiff filed an amended complaint, adding Rochelle C’Hair as a defendant and alleging
negligent entrustment of a vehicle as the cause of action against Ms. C’Hair. On April
19, 2013, Mr. C’Hair filed his answer to the amended complaint, and on May 23, 2013,
Ms. C’Hair filed her answer. Both answers generally asserted lack of subject matter
jurisdiction as an affirmative defense.

[¶6] On November 27, 2013, Plaintiff filed a complaint in the Shoshone and Arapaho
Tribal Court. The complaint named Gary and Rochelle C’Hair, as well as Ms. C’Hair’s
insurer, Colorado Casualty Insurance Co., as defendants, and alleged causes of action for
negligence and negligent entrustment of a vehicle. Shortly thereafter counsel for the
parties exchanged correspondence concerning the filing in Tribal Court. Counsel for
Defendants wrote, in part:

I received your email and the attached Complaint filed
in tribal court. I am disappointed that you have chosen to file
another lawsuit in tribal court. I think that your original
choice of filing in state court is where this case needs to be
tried.

Because you have now filed in tribal court where the
law is different and is interpreted differently than in state
court you have exposed my clients to the potential for
inconsistent results. Furthermore they will be subjected to
duplicative discovery. Consequently, we will be filing a
motion in state court for a stay of proceedings until we can
get the matter of which court is going to try the case sorted
out.

[¶7] Plaintiff’s counsel responded:

* * * The Answers filed on behalf of Rochelle C’Hair and
Gary C’Hair in the State Court Action both contain a
Statement of Affirmative Defenses. The very first defense
alleges the State District Court lacks subject matter
jurisdiction in the case, the second claims the State District

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 Court lacks personal jurisdiction over the C’Hairs and the
third claims that the venue is improper in the State District
Court. * * *

We have now filed the action in Tribal Court because we are
concerned that, if the case is tried in State District Court and a
favorable result is obtained, your clients and the insurance
company client will then argue the State District Court was
without subject matter jurisdiction so any Judgment rendered
amounts to a nullity.

[¶8] On February 7, 2014, the district court, on the agreement of the parties, entered an
order staying the state action. On April 11, 2014, the Tribal Court entered an order
dismissing Plaintiff’s complaint with prejudice, explaining:

The Court concludes Plaintiff’s claims against
Defendants Gary and Rochelle C’Hair are time barred by
S&A LOC [Shoshone & Arapaho Law and Order Code] § 1-
8-6 as any claim against Defendants was required to be
brought by Plaintiff within two (2) years of the date of the
accident, which would have been on or about July 27, 2011.

[¶9] On April 24, 2014, Plaintiff filed a motion to lift the stay of the state action. On
that same date, Defendants filed a motion for summary judgment asserting they were
entitled to judgment on the grounds that Plaintiff’s claims were barred by the applicable
statute of limitations and the doctrine of res judicata precluded relitigation of that issue.
Following Plaintiff’s response to the summary judgment motion, Defendants submitted a
reply memorandum, in which they asserted the district court’s lack of subject matter
jurisdiction as an additional ground for summary judgment.

[¶10] On July 23, 2014, the district court entered an order denying Defendants’
summary judgment motion. The court found that its exercise of jurisdiction would not
infringe on tribal sovereignty, and that based on the location of the accident on a state
highway, it had at a minimum concurrent jurisdiction over the action. The court also
rejected Defendants’ statute of limitations argument, explaining:

The Court also finds that the State is not required by
law to borrow the statute of limitations of the Shoshone and
Arapaho Law and Order Code. W.S. 1-3-117 states, “If by
the laws of the state or country where the cause of action
arose the action is barred, it is also barred in this state.” The
Wind River Indian Reservation does not qualify as another
state or country outside the State of Wyoming, and as a result

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 the car accident did not occur in a state or country outside of
Wyoming. Absent an express statement from the state
legislature, this Court will not interpret the statute as
extending to the laws of the Reservation.

[¶11] On August 7, 2014, Defendants filed a “Petition for Writ of Prohibition or in the
alternative Petition for Writ of Review.” On August 27, 2014, this Court granted the
petition for writ of review. 1

STANDARD OF REVIEW

[¶12] This appeal is before this Court on the denial of Defendants’ summary judgment
motion. The denial of a summary judgment motion is ordinarily not a final appealable
order, Irene v. Seneca Ins. Co., Inc., 2014 WY 145, ¶ 23, 337 P.3d 483, 492 (Wyo. 2104),
but because we granted Defendants’ petition for writ of review, we review the district
court’s decision as follows:
1
While Defendants’ petition for writ of review was pending, Plaintiff sought reinstatement of his action
in tribal court based on an amendment to the Northern Arapaho Code that revised the statute of
limitations to provide for a four-year statute of limitations for all civil matters brought by or against the
Northern Arapaho Tribe or its members. The amendment authorized reinstatement of cases dismissed as
untimely and required any reinstatement request to be filed within one year of the amended Code’s
enactment. On April 3, 2015, the Tribal Court entered an order denying Plaintiff’s request for
reinstatement. The Tribal Court explained (citations omitted):

As a matter of federal law Indian Tribes have the inherent authority to govern
themselves apart from each other. Both NAT [Northern Arapaho Tribe] and EST
[Eastern Shoshone Tribe] have enacted laws in the areas of governance, housing,
enrollment, family support and gaming. The effect of these laws extends only to each
tribe and its members. However the effect of enacting a separate statute of limitations
amendment such as the one passed by NAT has a direct effect that goes beyond that Tribe
and is members. It applies to all cases where the Tribe and its members are a party. If
NAT or its members sue a non-member of the Tribe the statute of limitation is lengthened
when applied. As a result this law is unlike those involved in governance, housing,
family support and gaming which do not have a direct effect outside the Tribe and its
members.

The lengthening of the statute of limitations when the adverse party is a non-
member of NAT alters their right not to be sued after two years. This right can be
changed by NAT for itself and its members; however this amendment goes beyond that to
alter or change the rights of non-members.

Consequently in order to lengthen the existing two-year statute of limitations in
SALOC (Shoshone & Arapaho Law & Order Code) Section 1-8-6, the JBC [Joint
Business Council] or both tribes separately need[ed] to amend it because the rights
contained within it, extends to all persons within the jurisdiction of the Shoshone and
Arapaho Tribal Court.

4
 Summary judgment is appropriate when there are no
genuine issues of material fact and the moving party is
entitled to judgment as a matter of law. Comet Energy Servs.,
LLC v. Powder River Oil & Gas Ventures, LLC, 2008 WY 69,
¶ 5, 185 P.3d 1259, 1261 (Wyo.2008). When summary
judgment involves a purely legal determination, we review de
novo the trial court’s summary judgment decision. Glenn v.
Union Pacific R.R. Co., 2008 WY 16, ¶ 6, 176 P.3d 640, 642
(Wyo.2008).

Campbell County Mem’l Hosp. v. Pfeifle, 2014 WY 3, ¶ 11, 317 P.3d 573, 576 (Wyo.
2014).

[¶13] “The existence of subject matter jurisdiction is a question of law that we review de
novo.” Harmon v. Star Valley Med. Ctr., 2014 WY 90, ¶ 14, 331 P.3d 1174, 1178 (Wyo.
2014) (quoting Excel Constr., Inc. v. Town of Lovell, 2011 WY 166, ¶ 12, 268 P.3d 238,
241 (Wyo. 2011)). Whether an action is barred by the statute of limitations is likewise a
question of law that we review de novo. Inman v. Boykin, 2014 WY 94, ¶ 21, 330 P.3d
275, 281 (Wyo. 2014) (citing Hoke v. Motel 6 Jackson, 2006 WY 38, ¶ 6, 131 P.3d 369,
373 (Wyo. 2006)).

DISCUSSION

[¶14] We address first the question of the district court’s subject matter jurisdiction and
second the question whether Plaintiff’s cause of action is barred by the applicable statute
of limitations.

A. Subject Matter Jurisdiction

[¶15] This Court has held that when addressing questions of state versus tribal court
jurisdiction, “we construe the subject-matter jurisdiction issue as a question of federal
law, [and] we must, therefore, rely for guidance on United States Supreme Court
opinions.” State ex rel. Peterson v. Dist. Court of Ninth Judicial Dist., 617 P.2d 1056,
1060 (Wyo. 1980); see also Boller v. Key Bank of Wyoming, 829 P.2d 260, 261-63 (Wyo.
1992) (applying federal law to uphold state court jurisdiction over non-Indian bank’s
foreclosure action against enrolled member of Shoshone Indian Tribe where mortgage
was on fee land located on reservation). Because the parties disagree on how the
controlling United States Supreme Court precedent has progressed and how this Court
has previously interpreted that precedent, we will begin our jurisdictional analysis with
an outline of the controlling Supreme Court decisions and how that precedent has
developed and been applied. We will then apply the principles drawn from the
controlling precedent to review the district court’s exercise of jurisdiction in this case.

5
1. United States Supreme Court Precedent

[¶16] The Supreme Court long ago recognized that “Indian nations are ‘distinct political
communities, having territorial boundaries, within which their authority is exclusive[.]’”
McClanahan v. State Tax Comm’n of Arizona, 411 U.S. 164, 168, 93 S.Ct. 1257, 1260,
36 L.Ed.2d 129 (1973) (quoting Worcester v. Georgia, 6 Pet. 515, 557, 8 L.Ed. 483
(1832)). This doctrine of Indian sovereignty has evolved over time, however, to take into
consideration state interests that may be implicated in an exercise of regulatory or
adjudicative jurisdiction. The Supreme Court explained:

This is not to say that the Indian sovereignty doctrine, with its
concomitant jurisdictional limit on the reach of state law, has
remained static during the 141 years since Worcester was
decided. Not surprisingly, the doctrine has undergone
considerable evolution in response to changed circumstances.
As noted above, the doctrine has not been rigidly applied in
cases where Indians have left the reservation and become
assimilated into the general community. See, e.g., Oklahoma
Tax Comm’n v. United States, 319 U.S. 598, 63 S.Ct. 1284,
87 L.Ed. 1612 (1943). Similarly, notions of Indian
sovereignty have been adjusted to take account of the State’s
legitimate interests in regulating the affairs of non-Indians.
See, e.g., New York ex rel. Ray v. Martin, 326 U.S. 496, 66
S.Ct. 307, 90 L.Ed. 261 (1946); Draper v. United States, 164
U.S. 240, 17 S.Ct. 107, 41 L.Ed. 419 (1896); Utah &
Northern R. Co. v. Fisher, 116 U.S. 28, 6 S.Ct. 246, 29
L.Ed.2d 542 (1885).

McClanahan, 411 U.S. at 171, 93 S.Ct. at 1261-62.

[¶17] Two analyses designed to resolve conflicts between state and tribal jurisdiction
have emerged from Supreme Court decisions: the infringement test drawn from Williams
v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), which looks to whether a
state’s exercise of jurisdiction over a matter will infringe on tribal self government, and
the analysis announced in Montana v. United States, 450 U.S. 544, 101 S.Ct. 1245, 67
L.Ed.2d 493 (1981), which looks to whether tribal sovereignty requires tribal jurisdiction
over a non-Indian or non-Indian activities. See Cordova v. Holwegner, 971 P.2d 531,
537 (Wash. Ct. App. 1999) (“The [Williams] infringement test and the Montana analysis
examine the limits of tribal inherent sovereignty from different perspectives, the former
by examining the extent of state jurisdiction and the latter by examining the extent of
tribal jurisdiction.”).

6
a. Williams v. Lee

[¶18] We begin with Williams and its progeny. In Williams, the Supreme Court held
that a state court lacked subject matter jurisdiction over a collection action brought by a
non-Indian store owner against tribal members who lived on the reservation where the
store was located. Williams, 358 U.S at 217-18, 79 S.Ct. at 269. In so holding, the Court
announced what has become known as the Williams infringement test: “Essentially,
absent governing Acts of Congress, the question has always been whether the state action
infringed on the right of reservation Indians to make their own laws and be ruled by
them.” Id., 358 U.S. at 220; 79 S.Ct. at 271. In applying the test to the facts before it, the
Court reasoned:

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. Cf.
Donnelly v. United States, supra; Williams v. United States,
supra. The cases in this Court have consistently guarded the
authority of Indian governments over their reservations.
Congress recognized this authority in the Navajos in the
Treaty of 1868, and has done so ever since. If this power is to
be taken away from them, it is for Congress to do it. Lone
Wolf v. Hitchcock, 187 U.S. 553, 564-566, 23 S.Ct. 216, 220-
221, 47 L.Ed. 299.

Williams, 358 U.S. at 223, 79 S.Ct. at 272.

[¶19] The Williams test applies primarily in matters where a non-Indian is involved or
non-Indian interests are implicated. McClanahan, 411 U.S. at 179, 93 S.Ct. at 1266. In
McClanahan, the Court explained:

It must be remembered that cases applying the Williams test
have dealt principally with situations involving non-Indians.
See also Organized Village of Kake v. Egan, 369 U.S., at 75-
76, 82 S.Ct., at 570-571. 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.

7
McClanahan, 411 U.S. at 179, 93 S.Ct. at 1266; but see Fisher v. Dist. Court of Sixteenth
Judicial Dist. of Montana, 424 U.S. 382, 386, 96 S.Ct. 943, 946, 47 L.Ed.2d 106 (1976)
(acknowledging that Williams test generally applies where case involves a non-Indian,
but nonetheless applying the analysis to reject state court jurisdiction over adoption
proceeding where all parties were tribal members living on reservation).

[¶20] In subsequent cases, the Supreme Court clarified that the Williams analysis
requires a two-part inquiry:

Congress has broad power to regulate tribal affairs under the
Indian Commerce Clause, Art. 1, § 8, cl. 3. See United States
v. Wheeler, supra, at 322-323, 98 S.Ct., at 1085–1086. This
congressional authority and the “semi-independent position”
of Indian tribes have given rise to two independent but related
barriers to the assertion of state regulatory authority over
tribal reservations and members. First, the exercise of such
authority may be pre-empted by federal law. See, e.g.,
Warren Trading Post Co. v. Arizona Tax Comm’n, 380 U.S.
685, 85 S.Ct. 1242, 14 L.Ed.2d 165 (1965); McClanahan v.
Arizona State Tax Comm’n, supra. Second, it may
unlawfully infringe “on the right of reservation Indians to
make their own laws and be ruled by them.” Williams v. Lee,
358 U.S. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251 (1959).
See also Washington v. Yakima Indian Nation, 439 U.S. 463,
502, 99 S.Ct. 740, 762, 58 L.Ed.2d 740 (1979); Fisher v.
District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106
(1976) (per curiam ); Kennerly v. District Court of Montana,
400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971). The two
barriers are independent because either, standing alone, can
be a sufficient basis for holding state law inapplicable to
activity undertaken on the reservation or by tribal members.

White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 142-43, 100 S.Ct. 2578, 2580,
65 L.Ed.2d 665 (1980) (footnote omitted); see also Three Affiliated Tribes of Fort
Berthold Reservation v. Wold Eng’g, P.C., 467 U.S. 138, 147, 104 S.Ct. 2267, 2274, 81
L.Ed.2d 113 (1984) (state may exercise jurisdiction so long as it is not preempted by
incompatible federal law and does not infringe on the right of reservation Indians to make
their own laws and be ruled by them).

[¶21] Although White Mountain applied the two-part Williams analysis to a state’s
exercise of regulatory authority, and thus couched the analysis as one applying to an
assertion of regulatory jurisdiction, it is clear that the analysis applies equally to state

8
assertions of adjudicatory jurisdiction. See, e.g., Three Affiliated Tribes, 467 U.S. at 148-
51, 104 S.Ct. at 2274-76 (state court jurisdiction over tribe’s claims against non-Indian
contractor would not run afoul of Williams); Fisher, 424 U.S. at 387-88, 96 S.Ct. at 947
(rejecting state court jurisdiction over adoption proceeding where all parties were tribal
members living on reservation). In either case, whether a state is asserting regulatory or
adjudicatory jurisdiction, the required analysis examines whether the exercise of state
jurisdiction will interfere with federal objectives or tribal self government. See White
Mountain, 448 U.S. at 145-48, 100 S.Ct. at 2585-86 (rejecting state license and use taxes
on non-Indian logging corporations operating solely on reservation based on Interior
Secretary’s extensive authority to promulgate rules governing the harvest and sale of
reservation timber and the related purpose of promoting self-sustaining tribal
communities); Fisher, 424 U.S. at 387-90, 96 S.Ct. at 947-48 (finding state court
jurisdiction over adoption proceeding where all parties were tribal members would
infringe on tribal self government and was preempted by overriding federal policy
contained in Indian Reorganization Act); Three Affiliated Tribes, 467 U.S. at 140, 104
S.Ct at 2270 (holding that state court jurisdiction over tribe's breach of contract action
against its non-Indian contractor would not infringe on tribe’s right to self government
and was not preempted by requirements of federal law governing state jurisdiction).

[¶22] In summary, Williams and its progeny stand for the rule that a state may assert
jurisdiction over an activity or a dispute involving a non-Indian and arising within the
boundaries of a tribal reservation if: 1) the state’s exercise of authority is not preempted
by incompatible federal law; and 2) the state’s exercise of authority does not infringe on
the right of reservation Indians to make their own laws and be ruled by them. Three
Affiliated Tribes, 467 U.S. at 147, 104 S.Ct. at 2274 (citing Williams, 358 U.S. at 220, 79
S.Ct. at 270; White Mountain, 448 U.S. at 142, 100 S.Ct. at 2583). As the Supreme Court
has observed, “The upshot has been the repeated statements of this Court to the effect
that, even on reservations, state laws may be applied unless such application would
interfere with reservation self-government or would impair a right granted or reserved by
federal law.” Mescalero Apache Tribe v. Jones, 411 U.S. 145, 148, 93 S.Ct. 1267, 1270,
36 L.Ed.2d 114 (1973) (citations omitted).

[¶23] When considering the limitations on state court jurisdiction over matters
potentially implicating both state and tribal interests, it is clear that the governing analysis
has long been and continues to be the Williams test. Indeed, our Court and numerous
other state jurisdictions have applied and continue to apply the Williams test to determine
the extent of state court jurisdiction over actions involving tribal members. See, e.g.,
Boller, 829 P.2d at 261-63 (applying Williams analysis to uphold state court jurisdiction
over non-Indian bank’s foreclosure action against tribal member); Peterson, 617 P.2d at
1061 (applying Williams test to reject state court jurisdiction over action arising from
vehicle accident occurring on reservation); Outsource Serv. Mgmt., LLC v. Nooksack Bus.
Corp., 333 P.3d 380, 382-83 (Wash. 2014) (applying Williams test to allow state court
jurisdiction over non-Indian plaintiff’s action to enforce contract against tribal entity

9
where contract was entered into on reservation and tribal entity consented to state court
jurisdiction under terms of contract); Gustafson v. Estate of Poitra, 2011 ND 150, ¶ 10,
800 N.W.2d 842, 846-47 (ND 2011) (applying Williams test to reject state court
jurisdiction over property dispute brought by non-Indian against tribal member
concerning tribe-owned property located partially within reservation); In re Estate of Big
Spring, 2011 MT 109, ¶ 50, 255 P.3d 121, 134-35 (Mont. 2011) (applying Williams test
to reject Montana state court jurisdiction over probate action involving only tribal
members and property located within reservation); Risse v. Meeks, 1998 SD 112, ¶ 11,
585 N.W.2d 875, 877 (S.D. 1998) (applying Williams test to allow state court jurisdiction
over non-Indian plaintiff’s action against tribal members for damage caused to land
outside reservation by trespass of defendants’ cattle but rejecting state court jurisdiction
over punitive damages claim related to fencing within reservation boundaries); Begay v.
Roberts, 807 P.2d 1111, 1114, 1116-17 (Az. Ct. App. 1990) (applying Williams test to
allow state court jurisdiction over action by non-Indian plaintiff against tribal member for
breach of vehicle purchase contract entered off reservation but rejecting state court
jurisdiction to enter garnishment order against tribal member’s wages earned on
reservation); Wells v. Wells, 451 N.W.2d 402, 405-06 (S.D. 1990) (applying Williams test
to uphold state court jurisdiction over wife’s divorce action against husband where both
parties were tribal members but wife resided outside reservation); Powell v. Farris, 620
P.2d 525, 527-28 (Wash. 1980) (applying Williams test to uphold state court jurisdiction
over a non-Indian’s action against tribal member seeking partnership dissolution and
accounting for business located on tribal trust land and licensed by tribal council); State
Sec., Inc. v. Anderson, 506 P.2d 786, 788-89 (N.M. 1973) (applying Williams test to
uphold state court jurisdiction over a non-Indian’s breach of contract action against tribal
member where contract entered into outside reservation).

[¶24] Although the Williams test is controlling in determining whether the district court
properly assumed jurisdiction over the present case, we also must consider the principles
announced by the Supreme Court in its 1981 decision in Montana, and the Montana line
of cases. These cases are relevant to our analysis because, although they address tribal
sovereignty from the perspective of limitations on tribal jurisdiction over non-Indians,
rather than limitations on state jurisdiction, their holdings closely parallel the Williams
analysis and inform the application of that analysis. See, e.g., Cordova, 971 P.2d at 537
(recognizing overlap of Williams and Montana analyses and describing them as “merely
different formulations of the same underlying concept”). We turn then to the Montana
line of cases.

b. Montana v. United States

[¶25] In Montana, the Court held that the Crow Indian Tribe’s sovereign power did not
include authority to regulate non-Indian fishing and hunting on lands located within the
boundaries of the reservation but owned in fee by non-Indians. Montana, 450 U.S. at
566, 101 S.Ct. at 1259. In so ruling, the Court held that “the inherent sovereign powers

10
of an Indian tribe do not extend to the activities of nonmembers of the tribe.” Id., 450
U.S. at 565, 101 S.Ct. at 1258. The Court then announced two exceptions to that
principle, outlining the circumstances under which a tribe may exercise jurisdiction over
a non-Indian on the tribe’s reservation:

To be sure, Indian tribes retain inherent sovereign power to
exercise some forms of civil jurisdiction over non-Indians on
their reservations, even on non-Indian fee lands. A tribe may
regulate, through taxation, licensing, or other means, the
activities of nonmembers who enter consensual relationships
with the tribe or its members, through commercial dealing,
contracts, leases, or other arrangements. Williams v. Lee,
supra, at 223, 79 S.Ct., at 272; Morris v. Hitchcock, 194 U.S.
384, 24 S.Ct. 712, 48 L.Ed. 1030; Buster v. Wright, 135 F.
947, 950 (CA8); see Washington v. Confederated Tribes of
Colville Indian Reservation, 447 U.S. 134, 152-154, 100 S.Ct.
2069, 2080-2082, 65 L.Ed.2d 10. A tribe may also retain
inherent power to exercise civil authority over the conduct of
non-Indians on fee lands within its reservation when that
conduct threatens or has some direct effect on the political
integrity, the economic security, or the health or welfare of
the tribe. See Fisher v. District Court, 424 U.S. 382, 386, 96
S.Ct. 943, 946, 47 L.Ed.2d 106; Williams v. Lee, supra, at
220, 79 S.Ct., at 270; Montana Catholic Missions v. Missoula
County, 200 U.S. 118, 128-129, 26 S.Ct. 197, 200-201, 50
L.Ed. 398; Thomas v. Gay, 169 U.S. 264, 273, 18 S.Ct. 340,
343, 42 L.Ed. 740.

Montana, 450 U.S. at 565-66, 101 S.Ct. at 1258 (footnote omitted).

[¶26] Following its decision in Montana, the Supreme Court continued to apply the
principles announced in that case to determine tribal regulatory authority over non-Indian
conduct on non-Indian land within a reservation. See, e.g., Brendale v. Confederated
Tribes and Bands of Yakima Nation, 492 U.S. 408, 423-24, 109 S.Ct. 2994, 3004-05, 106
L.Ed.2d 343 (1989) (tribe lacked authority to zone fee lands owned by non-Indians on
portion of reservation open to general public); South Dakota v. Bourland, 508 U.S. 679,
689, 113 S.Ct. 2309, 2316-17, 124 L.Ed.2d 606 (1993) (tribe lacked authority to regulate
hunting and fishing by non-Indians on land and water located within reservation but
acquired by the United States for operation of a dam and reservoir). In 1997, the Court
extended the Montana test beyond tribal regulatory jurisdiction and applied it to
determine tribal adjudicative jurisdiction. Strate v. A-1 Contractors, 520 U.S. 438, 117
S.Ct. 1404, 137 L.Ed.2d 661 (1997).

11
[¶27] In Strate, the Supreme Court addressed tribal court jurisdiction over a personal
injury action arising from an automobile accident that occurred on a state highway within
reservation boundaries. Strate, 520 U.S. at 442-43, 117 S.Ct. at 1407-08. Both parties to
the action were non-Indian. Id. In considering whether the tribal court had jurisdiction
over the matter, the Court first confronted the question whether the Montana analysis
even applied in the context of adjudicative jurisdiction, given that Montana announced a
rule governing tribal regulatory jurisdiction. Id. at 447-53, 117 S.Ct. at 1410-13. In
holding that the Montana analysis was controlling, the Court reasoned:

While Montana immediately involved regulatory authority,
the Court broadly addressed the concept of “inherent
sovereignty.” Id., at 563, 101 S.Ct., at 1257. Regarding
activity on non-Indian fee land within a reservation, Montana
delineated—in a main rule and exceptions—the bounds of the
power tribes retain to exercise “forms of civil jurisdiction
over non-Indians.” Id., at 565, 101 S.Ct., at 1258. As to
nonmembers, we hold, a tribe’s adjudicative jurisdiction
does not exceed its legislative jurisdiction. Absent
congressional direction enlarging tribal-court jurisdiction, we
adhere to that understanding. Subject to controlling
provisions in treaties and statutes, and the two exceptions
identified in Montana, the civil authority of Indian tribes and
their courts with respect to non-Indian fee lands generally
“do[es] not extend to the activities of nonmembers of the
tribe.” Ibid.

Strate, 520 U.S. at 453, 117 S.Ct. at 1413 (emphasis added).

[¶28] The next question the Supreme Court addressed in Strate concerned the status of
the land on which the accident occurred. Strate, 520 U.S. at 454, 117 S.Ct. at 1413.
Specifically, the plaintiff argued that the Montana analysis applied only in cases
involving non-Indian activity on non-Indian fee land, and the state highway at issue in
Strate was not non-Indian fee land but was instead located on lands held in trust for the
tribe. Id. The Court rejected the plaintiff’s argument and held:

Forming part of the State’s highway, the right-of-way is open
to the public, and traffic on it is subject to the State’s control.
The Tribes have consented to, and received payment for, the
State’s use of the 6.59–mile stretch for a public highway.
They have retained no gatekeeping right. So long as the
stretch is maintained as part of the State’s highway, the Tribes
cannot assert a landowner’s right to occupy and exclude. Cf.
Bourland, 508 U.S., at 689, 113 S.Ct., at 2316–2317

12
 (regarding reservation land acquired by the United States for
operation of a dam and a reservoir, Tribe’s loss of “right of
absolute and exclusive use and occupation ... implies the loss
of regulatory jurisdiction over the use of the land by others”).
We therefore align the right-of-way, for the purpose at hand,
with land alienated to non-Indians. Our decision in Montana,
accordingly, governs this case.

Strate, 520 U.S. at 455-56, 117 S.Ct. at 1414 (footnote omitted).2

[¶29] Having determined that the accident occurred on the equivalent of non-Indian
land, the Supreme Court concluded that what it had before it was a case concerning the
conduct of non-Indians on non-Indian land, making Montana applicable to the
determination of tribal court jurisdiction. Strate, 520 U.S. at 456, 117 S.Ct. at 1414. In
applying the Montana test, the Court framed it as follows:

Montana thus described a general rule that, absent a different
congressional direction, Indian tribes lack civil authority over
the conduct of nonmembers on non-Indian land within a
reservation, subject to two exceptions: The first exception
relates to nonmembers who enter consensual relationships
with the tribe or its members; the second concerns activity
that directly affects the tribe’s political integrity, economic
security, health, or welfare.

Strate, 520 U.S. at 446, 117 S.Ct. at 1409-10.

2
In so holding, the Court acknowledged that it was deviating from at least one statutory definition of
“Indian country” that included “rights-of-way running through [a] reservation.” Strate, 520 U.S. at 454,
117 S.Ct. at 1413, n.9 (citing 18 U.S.C. § 1151). Additionally, while the Court concluded that the tribes
had a diminished regulatory role on the state highway for purposes of civil jurisdiction, it acknowledged
the tribes do retain criminal enforcement authority on the highway. The Court noted:

We do not here question the authority of tribal police to patrol roads
within a reservation, including rights-of-way made part of a state
highway, and to detain and turn over to state officers nonmembers
stopped on the highway for conduct violating state law. Cf. State v.
Schmuck, 121 Wash.2d 373, 390, 850 P.2d 1332, 1341 (en banc)
(recognizing that a limited tribal power “to stop and detain alleged
offenders in no way confers an unlimited authority to regulate the right
of the public to travel on the Reservation’s roads”), cert. denied, 510
U.S. 931, 114 S.Ct. 343, 126 L.Ed.2d 308 (1993).

Strate, 520 U.S. at 456, 117 S.Ct. at 1414, n.11.

13
[¶30] The Court held the first Montana exception was not applicable, explaining:

The first exception to the Montana rule covers “activities of
nonmembers who enter consensual relationships with the
tribe or its members, through commercial dealing, contracts,
leases, or other arrangements.” 450 U.S., at 565, 101 S.Ct., at
1258. The tortious conduct alleged in [Plaintiff's] complaint
does not fit that description. The dispute, as the Court of
Appeals said, is “distinctly non-tribal in nature.” 76 F.3d, at
940. It “arose between two non-Indians involved in [a] run-
of-the-mill [highway] accident.” Ibid. Although [Defendant]
was engaged in subcontract work on the Fort Berthold
Reservation, and therefore had a “consensual relationship”
with the Tribes, “[Plaintiff] was not a party to the subcontract,
and the [T]ribes were strangers to the accident.” Ibid.

Strate, 520 U.S. at 456-57, 117 S.Ct. at 1415.

[¶31] The Court found the second Montana exception equally unavailing. The Court
reasoned:

The second exception to Montana’s general rule concerns
conduct that “threatens or has some direct effect on the
political integrity, the economic security, or the health or
welfare of the tribe.” 450 U.S., at 566, 101 S.Ct., at 1258.
Undoubtedly, those who drive carelessly on a public highway
running through a reservation endanger all in the vicinity, and
surely jeopardize the safety of tribal members. But if
Montana's second exception requires no more, the exception
would severely shrink the rule. * * *

****

Read in isolation, the Montana rule’s second exception can be
misperceived. Key to its proper application, however, is the
Court’s preface: “Indian tribes retain their inherent power [to
punish tribal offenders,] to determine tribal membership, to
regulate domestic relations among members, and to prescribe
rules of inheritance for members.... But [a tribe’s inherent
power does not reach] beyond what is necessary to protect
tribal self-government or to control internal relations.” 450
U.S., at 564, 101 S.Ct., at 1257–1258. Neither regulatory
nor adjudicatory authority over the state highway accident

14
 at issue is needed to preserve “the right of reservation
Indians to make their own laws and be ruled by them.”
Williams, 358 U.S., at 220, 79 S.Ct., at 271. The Montana
rule, therefore, and not its exceptions, applies to this case.

[Plaintiff] may pursue her case against [Defendants] in the
state forum open to all who sustain injuries on North
Dakota’s highway. Opening the Tribal Court for her optional
use is not necessary to protect tribal self-government; and
requiring [Defendants] to defend against this commonplace
state highway accident claim in an unfamiliar court is not
crucial to “the political integrity, the economic security, or the
health or welfare of the [Three Affiliated Tribes].” Montana,
450 U.S., at 566, 101 S.Ct., at 1258.

Strate, 520 U.S. at 457-59, 117 S.Ct. at 1415-16 (footnotes omitted) (emphasis added).

[¶32] In two cases subsequent to Strate, the Supreme Court again applied its Montana
analysis to determine tribal court jurisdiction. See Plains Commerce Bank v. Long
Family Land & Cattle Co., 554 U.S. 316, 128 S.Ct. 2709, 171 L.Ed.2d 457 (2008)
(rejecting tribal jurisdiction over tribal member’s claim against non-Indian bank alleging
discrimination in bank’s sale of non-Indian fee land located on reservation); Nevada v.
Hicks, 533 U.S. 353, 121 S.Ct. 2304, 150 L.Ed.2d 398 (2001) (rejecting tribal court
jurisdiction over tribal member’s claims against state officials alleging violations of tribal
law in execution of search warrant on reservation). Both cases focused on the required
link between a tribe’s regulatory and adjudicative authority, with the Court in Plains
Commerce observing:

Our cases have made clear that once tribal land is converted
into fee simple, the tribe loses plenary jurisdiction over it.
* * * Moreover, when the tribe or tribal members convey a
parcel of fee land “to non-Indians, [the tribe] loses any former
right of absolute and exclusive use and occupation of the
conveyed lands.” South Dakota v. Bourland, 508 U.S. 679,
689, 113 S.Ct. 2309, 124 L.Ed.2d 606 (1993) (emphasis
added). This necessarily entails “the loss of regulatory
jurisdiction over the use of the land by others.” Ibid.

Plains Commerce, 554 U.S. at 328-29, 128 S.Ct. at 2719; see also Hicks, 533 U.S. at 374,
121 S.Ct. at 2318.

[¶33] Applying the controlling precedent established by the Williams line of cases
governing state court jurisdiction and the Montana line of cases addressing tribal court

15
jurisdiction, we turn to our review of the district court’s exercise of subject matter
jurisdiction in the present case.

2. Application of the Controlling Precedent

[¶34] The district court ruled that it had jurisdiction over this action because its exercise
of jurisdiction would not infringe on tribal sovereignty and because the accident occurred
on a state highway. The court explained:

The Court concludes that the State has, at a minimum,
concurrent jurisdiction in this matter. The current case is
distinct from Peterson [v. Dist. Court of Ninth Judicial Dist.,
617 P.2d 1056 (Wyo. 1980)]. The Peterson Court stated,
“‘absent governing Acts of Congress, the question has always
been whether the state action infringed on the right(s) of
reservation Indians to make their own laws and be ruled by
them.’” Peterson, 617 P.2d at 1061 (citing Williams v. Lee,
358 U.S. 217, 220 (1959)). The conflict in Peterson was
ultimately between two tribal members, while the current
lawsuit involves one member and one non-member. As a
result, the tribal interest in the present case is not as
substantial, and the exercise of state jurisdiction does not
infringe on tribal self-governance as it would in a case
involving two tribal members.

Furthermore, the ruling in Strate [v. A-1 Contractors,
520 U.S. 438 (1997)] indicates that the State has jurisdiction
based on the location of the car accident. The Court found
that a state highway on Reservation land was not considered
to be tribal land for the purposes of jurisdiction. See Strate,
520 U.S. at 454. In Montana v. United States, 450 U.S. 544
(1981), the Court recognized that a tribe may exercise
sovereign power over non-members on non-Indian land
located within the boundaries of a reservation only in limited
circumstances. This includes when the non-member “enter[s]
consensual relationships with the tribe or its members,” or
when the non-member’s conduct “threatens or has some
direct effect on the political integrity, the economic security,
or the health or welfare of the tribe.” Montana, 450 U.S. at
566. The current suit does not invoke either of Montana’s
exceptions.

16
[¶35] Defendants challenge the district court’s ruling on three grounds. They argue: 1)
this Court’s decision in Peterson is controlling and dictates that the state court lacks
jurisdiction; 2) any exercise of state court jurisdiction must be pursuant to Public Law
280; and 3) Strate does not apply because the Supreme Court’s holding in that case is
limited to cases where both parties to the dispute are non-Indians. We will address each
argument in turn.

a. Peterson

[¶36] In Peterson, this Court held that a Wyoming district court lacked subject matter
jurisdiction over a claim arising out of a collision between a pickup truck and a horse on
a U.S. highway within the boundaries of the Wind River Indian Reservation. Peterson,
617 P.2d at 1057. The owners of the horse and truck were both enrolled members of the
Shoshone Tribe, but it was the truck owner’s non-Indian subrogee, Milbank Mutual
Insurance Company, that filed the action in state district court against the horse owner,
Alice Peterson. Id. In rejecting state court jurisdiction, we applied a Williams analysis
and concluded that such an exercise of jurisdiction would interfere with tribal self
government. Id. at 1068.

[¶37] Defendants argue Peterson is controlling because its pertinent facts are identical to
those in the present case. In particular, Defendants cite as the controlling facts in
Peterson that the action arose from an accident within the reservation boundaries and that
it involved a non-Indian plaintiff and a defendant tribal member. We disagree that this is
how this Court viewed the controlling facts before it, and we find Defendants’ argument
unsupported by the Peterson reasoning.

[¶38] The Court in Peterson acknowledged that the real party in interest from a financial
perspective was a non-Indian insurance company. Peterson, 617 P.2d at 1058. The
Court also emphasized, however, its recognition that in terms of the conduct at issue, the
adjudication required evaluation of the conduct of two tribal members. Id. at 1058-59
(footnote omitted) (“[I]t would appear that the instant case is formally between a non-
Indian and an Indian. Nonetheless, we consider it significant that trial of this case * * *
would, of necessity, involve evaluation of the conduct (for purposes of ascertaining
negligence) of two Reservation Indians on the Reservation.”). Ultimately, the Court
relied on Fisher, a decision of the Supreme Court that applied Williams but involved
parties who were all tribal members, as the controlling precedent. Id. at 1068; see also
Fisher, 424 U.S. at 387-88, 96 S.Ct. at 947 (rejecting state court jurisdiction over
adoption proceeding where all parties were tribal members living on reservation). We
explained:

We view Fisher as indicating that where a tribal court
is established to handle a dispute involving reservation
Indians, concurrent state jurisdiction is an interference with

17
 tribal self-government. Fisher is applicable to the case at bar
because, as discussed in the section of this opinion titled, “A
PRELIMINARY ISSUE MILBANK’S RIGHTS AS A
SUBROGEE,” trial of the case in a Wyoming court would
necessarily involve evaluation of the conduct of two Indians
arising out of activities taking place on the reservation.

Peterson, 617 P.2d at 1068.

[¶39] We find it clear that the Court in Peterson treated the action before it as one
involving two tribal members and their on-reservation conduct. That this was how the
Court viewed the case was confirmed by our holding in Boller, a case in which we upheld
a district court’s jurisdiction over an action brought by a non-Indian bank against a tribal
member to foreclose on mortgaged fee land located on the reservation. Boller, 829 P.2d
at 260. In upholding the district court’s jurisdiction, we rejected the argument that
Peterson was controlling and distinguished it on grounds that: “(1) both parties in the
Peterson case were enrolled Indians, * * * and (2) the entire incident in Peterson took
place within the interior boundaries of the Reservation.” Id. at 264.

[¶40] The case now before this Court involves a non-Indian plaintiff’s action against two
tribal members. Additionally, the record shows, and Defendants do not dispute, that the
state highway on which the accident in the present case occurred is the same type of
right-of-way (federally granted pursuant to 25 U.S.C. §§ 323-328) that the Supreme
Court held in Strate to be the equivalent of non-Indian fee land. See Strate, 520 U.S. at
454-55, 117 S.Ct. at 1413-14. Thus, instead of a jurisdictional question involving an
accident between two tribal members on reservation land, as in Peterson, the present case
requires that we consider whether a state court may exercise jurisdiction over a non-
Indian’s action against two tribal members for injuries sustained in an accident that
occurred within the reservation but on non-Indian fee land. Peterson is not controlling.3

3
Defendants also cite the Court’s statement in Peterson that “in the case at bar, a federal regulation,
supra, provides for tribal court jurisdiction when the defendant in a civil action is an Indian,” as authority
for the tribal court’s exclusive jurisdiction in this case. See Peterson, 617 P.2d at 1068-69. This
argument fails because the referenced federal regulation defines the jurisdiction of a Court of Indian
Offenses. See 25 C.F.R. § 11.100. A Court of Indian Offenses operates only in those areas where a tribal
court has not been established. See 25 C.F.R. § 11.102 (“It is the purpose of the regulations in this part to
provide adequate machinery for the administration of justice for Indian tribes in those areas of Indian
country where tribes retain jurisdiction over Indians that is exclusive of State jurisdiction but where tribal
courts have not been established to exercise that jurisdiction.”). The Wind River Reservation no longer
operates a Court of Indian Offenses and instead operates its own court, the Shoshone and Arapaho Tribal
Court. See Shoshone & Arapaho Law & Order Code § 1-3-1 (Nov. 1, 2004) (“There is hereby
established a Shoshone and Arapaho Tribal Court to handle all matters of a judicial nature within the
jurisdiction of the Shoshone and Arapaho Tribes as provided in this Code.”).

18
b. Public Law 280

[¶41] Defendants next argue that because Wyoming has not formally elected to exercise
jurisdiction over actions arising in Indian country pursuant to Public Law 280, the district
court erred in asserting jurisdiction. We disagree that Public Law 280 has any
application in this matter.

[¶42] Public Law 280 was enacted in 1953 and is a statute that delegated to first five,
and then six states “jurisdiction over most crimes and many civil matters throughout most
of the Indian country within their borders.” Felix Cohen, Cohen’s Handbook of Federal
Indian Law § 6.04[3][a] at 537 (Neil Jessup Newton ed. 2012) (footnotes omitted). The
Act offered any other state the option to accept the same jurisdiction, which, with regard
to civil actions, would have entailed a grant of jurisdiction over civil actions involving
Indians and would have given certain state laws the same force and effect in Indian
country. Id. at 537, 539.

[¶43] Public Law 280 is a much broader span of jurisdiction than that allowed under
Williams. See Washington v. Confederated Bands and Tribes of the Yakima Indian
Nation, 439 U.S. 463, 470-74, 99 S.Ct. 740, 746-47, 58 L.Ed.2d 740 (1979) (comparing
state jurisdiction permitted under Williams analysis with that provided pursuant to Public
Law 280). The Supreme Court has described the purpose of Public Law 280 as follows:

Congress, we are told, passed Pub.L. 280 not as a measure to
benefit the States, but to reduce the economic burdens
associated with federal jurisdiction on reservations, to
respond to a perceived hiatus in law enforcement protections
available to tribal Indians, and to achieve an orderly
assimilation of Indians into the general population. That
these were the major concerns underlying the passage of
Pub.L. 280 cannot be doubted. See Bryan v. Itasca County,
426 U.S., at 379, 96 S.Ct., at 2106.

Washington, 439 U.S. at 498, 99 S.Ct. at 760.

[¶44] Public Law 280 was intended as an offer of broader jurisdiction to those states that
chose to accept that burden. See Williams, 358 U.S. at 220, 79 S.Ct. at 271 (Public Law
280 “contemplates criminal and civil jurisdiction over Indians by any State ready to
assume the burdens that go with it.”). It was not, however, intended to define the sole
circumstances under which a state may exercise jurisdiction over matters arising on an
Indian reservation. Three Affiliated Tribes, 467 U.S. at 150, 104 S.Ct at 2275. In Three
Affiliated Tribes, the Supreme Court observed:

19
 This Court previously has recognized that Pub.L. 280 was
intended to facilitate rather than to impede the transfer of
jurisdictional authority to the States. Washington v. Yakima
Indian Nation, 439 U.S., at 490, 99 S.Ct., at 756; see also
Bryan v. Itasca County, 426 U.S., at 383–390, 96 S.Ct., at
2108-2111. Nothing in the language or legislative history of
Pub.L. 280 indicates that it was meant to divest States of pre-
existing and otherwise lawfully assumed jurisdiction.

Three Affiliated Tribes, 467 U.S. at 150, 104 S.Ct at 2275 (footnote omitted).

[¶45] The analysis of the Washington Supreme Court is also instructive in illustrating
that Public Law 280 did not displace the Williams analysis as a basis on which a state
may exercise jurisdiction over a matter arising on an Indian reservation. In a dispute
between a tribe and a non-Indian entity filed in state court, the Washington court
addressed jurisdiction according to the following parameters:

Washington State courts generally have jurisdiction over civil
disputes in Indian country if either (1) the state has assumed
jurisdiction pursuant to Public Law 280 or (2) asserting
jurisdiction would not infringe on the rights of the tribe to
make its own laws and be ruled by them. Id. at 784–87, 620
P.2d 525.

Importantly, both sides agree that this dispute does not
fall within the scope of the civil jurisdiction that Washington
assumed pursuant to Public Law 280. Thus, the question is
whether asserting jurisdiction in this case would infringe on
the rights of the tribe.

Outsource Serv. Mgmt, ¶¶ 8-9, 333 P.3d at 382 (footnote omitted); see also Powell v.
Farris, 620 P.2d 525, 526 (Wash. 1980) (“It is well settled that even without the
jurisdiction conferred by Congress in Public Law 280, the state may exercise some
jurisdiction over some reservation conduct.”).

[¶46] Public Law 280 simply has no application in this case. Wyoming has not accepted
jurisdiction pursuant to Public Law 280, and the law therefore does not dictate the
parameters of Wyoming’s jurisdiction. Instead, the limits on Wyoming’s jurisdiction
remain those established by Williams.

20
c. Application of Williams and Strate

[¶47] At the outset of this part of our discussion, we emphasize that the question we are
answering is whether the state court may exercise subject matter jurisdiction over this
matter. In answering that question, we are not called upon to address the tribal court’s
jurisdiction, and we do not do so. Our analysis will therefore focus on application of
Williams, which instructs that a state court may exercise jurisdiction over a dispute
between a tribal member and non-Indian, including one arising on the reservation, if that
exercise of jurisdiction does not violate federal law or infringe on the right of reservation
Indians to make their own laws and be ruled by them. Williams, 358 U.S. at 220, 79
S.Ct. at 270.

[¶48] That said, we also recognize, as we observed earlier in this opinion, that the tests
for tribal and state court jurisdiction have overlapping considerations. See Strate, 520
U.S. at 459, 117 S.Ct. at 1416 (citing to Williams in holding that Montana’s second
exception applies only where tribal court jurisdiction is necessary “to protect tribal self-
government or to control internal relations”); see also Cordova, 971 P.2d at 537
(describing Williams and Montana analyses as “merely different formulations of the same
underlying concept”). In reviewing tribal court jurisdiction, the Supreme Court has
announced principles concerning the status of land, a tribe’s regulatory interests, and the
types of civil disputes that may impact tribal self government. Such considerations are
equally relevant in determining whether a state court’s exercise of jurisdiction will
infringe on tribal self government—one of the questions that must be answered in a
Williams analysis. Indeed, our Court has, in a prior Williams analysis of state court
jurisdiction, relied on principles announced in the Montana line of cases. See Boller, 829
P.2d at 262-63 (looking to Supreme Court’s reasoning in Brendale v. Confederate Tribes
and Bands of Yakima Indian Nation, 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343
(1989)). Thus, in deciding the present jurisdictional question, we adhere to the Williams
analysis but also draw on principles from the Montana line of cases, and in particular, the
Supreme Court’s decision in Strate.

[¶49] In this case, there is no suggestion that the district court’s exercise of jurisdiction
is preempted by federal law or would otherwise violate federal law. The question we
must answer under Williams then is whether the exercise of state jurisdiction will infringe
on the tribe’s right to make its own laws and be ruled by them. Based on the principles
announced in Strate, we conclude state jurisdiction will not infringe on those rights.

[¶50] As we noted above, the record indicates that State Highway 789, the highway on
which the accident occurred, is a state highway on a federally-granted right-of-way.
Additionally, nothing in the right-of-way documents, the application, grant or tribal
resolution granting the right-of-way, asserts a tribal right to continuing regulatory
jurisdiction over the right-of-way. Based then on the holding in Strate, while Highway
789 is within the boundaries of the Wind River Indian Reservation, it is the equivalent of

21
non-Indian fee land, and the tribe has a limited role in regulating the highway. Strate,
520 U.S. at 455-56, 117 S.Ct. at 1414.

[¶51] Under such circumstances, the Supreme Court has held that “[n]either regulatory
nor adjudicatory authority over the state highway accident at issue is needed to preserve
‘the right of reservation Indians to make their own laws and be ruled by them.’” Strate,
520 U.S. at 459, 117 S.Ct. at 1416 (quoting Williams, 358 U.S. at 220, 79 S.Ct. at 271).
It follows, given the limited tribal regulatory interest, that a state’s exercise of civil
adjudicatory jurisdiction over such an accident will not infringe on the tribe's right to self
government. Defendants contest this extension of Strate, however, arguing the present
case is distinguishable because Defendants are tribal members whereas all parties to the
action in Strate were non-Indian. We disagree that this distinguishes the Supreme
Court’s reasoning and holding in Strate.

[¶52] Defendants’ argument fails because it does not adequately account for the
Supreme Court’s emphasis on the tribe’s diminished regulatory interest on a state
highway. That the parties in Strate were non-Indians was certainly a significant fact in
that it was the fact that raised the question of the tribal court’s jurisdiction. The Supreme
Court itself has, however, rejected the view that its Strate ruling applies only where all of
the parties to the action are non-Indians. In Hicks, the Court, as in Strate, ruled against
tribal court jurisdiction based on the tribe’s lack of regulatory authority, but this time the
plaintiff in the action was a tribal member. Hicks, 533 U.S. at 374, 121 S.Ct. at 2318. In
so ruling, the Court relied on Strate, and the majority opinion, authored by Justice Scalia,
responded to Justice Stevens’ concurring opinion with the following observation:

Justice STEVENS thinks Strate * * * “merely concerned the
circumstances under which tribal courts can exert jurisdiction
over claims against nonmembers,” post, at 2333, n. 3. But
Strate’s limitation on jurisdiction over nonmembers pertains
to subject-matter, rather than merely personal, jurisdiction,
since it turns upon whether the actions at issue in the
litigation are regulable by the tribe.

Hicks, 533 U.S. at 367, 121 S.Ct. at 2314, n. 8.

[¶53] The Supreme Court has thus emphasized that its holding in Strate stemmed from
the tribe’s diminished regulatory role on a state highway and was not a product of the fact
that both parties to the action were non-Indian. Other courts have similarly concluded
that the fact of a tribal member being a party to the action does not change the outcome
dictated by Strate. See Nord v. Kelly, 520 F.3d 848, 856-57 (8th Cir. 2008) (rejecting
tribal court jurisdiction over action brought by tribal member against non-Indian for
injuries sustained in vehicle accident on state highway on reservation); Burlington
Northern R.R. Co. v. Red Wolf, 196 F.3d 1059, 1062 (9th Cir. 1999) (rejecting tribal court

22
jurisdiction over tribal members’ action against non-Indian railroad for injuries sustained
in train-vehicle collision on railroad’s right-of-way on reservation); Wilson v.
Marchington, 127 F.3d 805, 814-15 (9th Cir. 1997) (rejecting tribal court jurisdiction
over tribal member’s action against non-Indian arising from vehicle collision on U.S.
highway on reservation and rejecting plaintiff’s status as tribal member as a
distinguishing factor); Austin’s Express, Inc. v. Arneson, 996 F.Supp. 1269, 1272 (D.
Mont. 1998) (rejecting tribal court jurisdiction over tribal member’s action against non-
Indians for injuries sustained in vehicle accident on federal highway on reservation).

[¶54] We are cognizant that the cases cited in the preceding paragraph differ from our
present case in that the case before us concerns an action against defendant tribal
members whereas in each of the cases cited above, the plaintiffs were tribal members and
the defendants were non-Indians. For the reasons that follow, however, we find that the
alignment of the parties is not material to our analysis and does not change the outcome
dictated by the application of Williams and Strate.

[¶55] We begin with the Eighth Circuit’s analysis in Nord, the reasoning of which we
find particularly instructive. In Nord, a member of the Red Lake Band of Chippewa
Indians filed an action in tribal court against two non-Indians for injuries sustained in a
vehicle accident that occurred on a state highway on the Red Lake Reservation. Nord,
520 F.3d at 851. In ruling against tribal court jurisdiction, the court rejected an argument
that Strate should not apply because the plaintiff was a tribal member. Id. at 856. It
reasoned:

The only distinguishing fact is that Strate involved a non-
Indian plaintiff whereas the injured plaintiff in this case is a
member of the Red Lake Band, but this distinction is
insignificant. The Court in Strate expressly cautioned against
reading the second Montana exception in isolation to apply to
the personal health and welfare of a few individual members.
See id. at 457–58, 117 S.Ct. 1404 (“Undoubtedly, those who
drive carelessly on a public highway running through a
reservation endanger all in the vicinity, and surely jeopardize
the safety of tribal members. But if Montana’s second
exception requires no more, the exception would severely
shrink the rule.”). “[A] tribe’s inherent power does not reach
beyond what is necessary to protect tribal self-government or
to control internal relations.” Id. at 459, 117 S.Ct. 1404
(internal marks omitted).

We do not disagree with the Tribal Court’s assertion that the
Red Lake Band is unique in many respects and has long
opposed intrusions on its land. See, e.g., 28 U.S.C. § 1360

23
 (specifically exempting the Red Lake Band from legislation
extending the state’s civil jurisdiction over claims involving
Indians); County of Beltrami v. County of Hennepin, 264
Minn. 406, 119 N.W.2d 25, 30 (1963) (noting that the Red
Lake Band was excluded from the legislation at its own
insistence). However, we cannot agree with the assertion that,
contrary to the language of Strate, the Band’s ability to
regulate and to exercise adjudicatory authority over
nonmembers on the highway is important to its tribal
sovereignty. The Band exercised its sovereignty by
consenting to a right-of-way that permitted the State to
construct and maintain a public highway on its reservation,
without specifically reserving any regulatory or adjudicatory
authority over nonmembers using the highway. Again, as
long as the highway remains part of the State’s highway
system, the Red Lake Band has lost its “right of absolute and
exclusive use and occupation, [which] implies the loss of
regulatory jurisdiction over the use of the land by others.”
Strate, 520 U.S. at 456, 117 S.Ct. 1404 (internal marks
omitted).

Nord, 520 F.3d at 856-57.

[¶56] In Nord, the fact that a tribal court was being asked to provide a forum for redress
of a tribal member’s injuries did not change the application of Strate. This decision
emphasizes that when a court is considering the question of subject matter jurisdiction,
the focus must remain on the impact to the tribe’s right to self government, not on the
impact to a single member. See also Wilson, 127 F.3d at 815 (rejecting plaintiff’s status
as tribal member as a basis to distinguish Strate: “If the possibility of injuring multiple
tribal members does not satisfy the second Montana exception under Strate, then,
perforce, Wilson’s status as a tribal member alone cannot.”). The Washington Supreme
Court has explained this emphasis on tribal rather than member interest in considering
state court jurisdiction:

The purpose of limiting state court jurisdiction for
matters arising on Indian reservations is to protect the rights
of Indians to “‘make their own laws and be ruled by them.’”
Id. at 786–87, 620 P.2d 525 (quoting Williams v. Lee, 358
U.S. 217, 220, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959)). Thus,
when asked whether state courts have jurisdiction in a case
that occurs on a reservation, we carefully consider the
interests and authority of the tribe. Id. at 787, 620 P.2d 525.
Normally, the tribe’s interest in self-governance is a separate

24
 interest than those of the parties. For example, if two parties
on a reservation had a dispute in an area of the law regulated
by the tribe but chose to file in state court, the state court
would have to consider the separate question of the tribe’s
interest in governing the matter. Id. Even if the parties had
agreed to state court jurisdiction, the state court may find that
jurisdiction is nonetheless inappropriate because it would
infringe on the tribe’s right to govern the matter.

Outsource Mgmt. Serv., ¶ 10, 333 P.3d at 382-83.

[¶57] Given this required focus, we are unable to discern a reason to treat the
jurisdictional question differently in the case before us based solely on the basis that
Plaintiff is a non-Indian and Defendants are tribal members. Regardless of the alignment
of the parties, the adjudication is directed at a dispute between a non-Indian and two
tribal members over an accident occurring on a state highway over which the Northern
Arapaho Tribe has limited regulatory authority. This is not an exercise of jurisdiction
over internal tribal or reservation affairs, and Defendants have not identified how the
district court’s exercise of jurisdiction over this action will infringe on the Northern
Arapaho Tribe’s right to make its own laws and be ruled by them on the reservation. See
Plains Commerce, 554 U.S. at 330, 128 S.Ct. at 2720 (assigning burden of proving tribal
interest to party asserting that interest). The Tribe retains authority, as the Supreme Court
observed in Strate, to patrol the highway and detain non-Indian motorists that violate
state laws governing the highway. It also retains the authority to enforce member
violations of the Tribe’s own rules, as occurred in this case. See ¶ 4 (noting that the
responding BIA officer cited Gary C'Hair for a violation of the Shoshone and Arapaho
Law and Order Code). The district court’s adjudication of this civil action will in no way
infringe on the Tribe’s exercise of these powers or on its right to make its own laws and
be ruled by them on the reservation. We therefore conclude, pursuant to Williams, that
the district court properly asserted subject matter jurisdiction over Plaintiff’s action.

[¶58] Our holding finds support in a federal district court decision rejecting tribal court
jurisdiction over a similar case in which it was a tribal member against whom the action
was brought. See Tejesova v. Bone, 2007 WL 1160059, * 3 (W.Dist. N.C. 2007). In
Tejesova, a non-Indian living on the reservation brought an action against a tribal
member living on the reservation for injuries sustained in a vehicle collision on a federal
highway on the reservation. Id. The court rejected tribal court jurisdiction. Id. In so
holding, the court found Strate controlling because the “Plaintiff ‘suffered [her] injuries
on U.S. Highway [441], which, as a federal highway within the reservation, is neither
tribal land nor controlled by members of the Tribes.’” Id. (quoting Smith v. Salish
Kootenai College, 434 F.3d 1127, 1135 (9th Cir. 2006)).

25
[¶59] We also recognize, however, that our holding in this matter differs from the
conclusion that other courts have reached in addressing this same question. See Winer v.
Penny Enter., Inc., 674 N.W.2d 9, 2004 ND 21 (N.D. 2004); Hinkle v. Abeita, 2012-
NMCA-074, 283 P.3d 877 (N.M. Ct. App. 2012). While both of these cases are factually
on point, we find neither decision persuasive.

[¶60] In Winer, the North Dakota Supreme Court ruled against state court jurisdiction
over an action brought by a non-Indian against tribal members for damages resulting
from a vehicle accident occurring on a state highway within the boundaries of the Spirit
Lake Indian Reservation. Winer, ¶ 1, 674 N.W.2d at 10. In so holding, the court rejected
application of the principles announced in Strate because: 1) Strate analyzed a tribal
court’s jurisdiction rather than a state court's jurisdiction; and 2) Strate involved only
non-Indian parties and no other court had applied it to an action where the defending
party was a tribal member. Id., ¶¶ 16-17, 674 N.W.2d at 15-16. Having rejected
application of Strate, the court found its own state precedent to be controlling and based
on that precedent, it concluded state court jurisdiction would infringe on the tribe’s right
to govern itself. Id., ¶ 22, 674 N.W.2d at 17.

[¶61] The Winer analysis is plainly at odds with our own analysis. First, we believe the
concern with applying Strate to a state court analysis is simply misplaced. As we noted
above, the Montana and Williams analyses overlap considerably, and we thus see no
reason to refrain from applying the Strate principles in examining state court jurisdiction.
With regard to whether the Strate holding can apply where a tribal member is the
defending party, we obviously interpret Strate differently. On this point, however, we
note that Winer was a split decision, with one justice specially concurring and two
justices dissenting. The dissenting justices found the alignment of the parties did not
change the applicability of Strate and would have upheld state court jurisdiction based on
the tribe’s lack of regulatory authority over the state highway. Id., ¶¶ 28, 32-34, 674
N.W. 2d at 18-19. The specially concurring justice preferred a purely state-law analysis,
and based on state law, he agreed with the result reached by the majority opinion. Id.,
¶¶ 25-26; 674 N.W.2d at 17. Notably, though, he opined that the dissent’s interpretation
of Strate appeared to be a logical interpretation of the law. Thus, based on the split
decision, a majority of the North Dakota court in fact appears to have agreed with our
interpretation of Strate.

[¶62] Finally, we also part ways with the Winer analysis because the analysis is one
based primarily on state precedent. We have held that federal law governs our analysis of
state versus tribal court jurisdiction, Peterson, 617 P.2d at 1060, and we do not share
North Dakota’s controlling state precedent.

[¶63] For these reasons cited above, we are not persuaded by the North Dakota court’s
decision in Winer. In Hinkle, the New Mexico Court of Appeals addressed a similar fact
scenario with the same alignment of parties and reached the same result as Winer.

26
Because the Hinkle decision approached the question similarly to the North Dakota court
in Winer, albeit without the split decision, we find that decision likewise unpersuasive.
See Hinkle, 283 P.3d 877. Moreover, in addition to relying on state law to reach its
decision, the Hinkle court cited state precedent for affording broader tribal sovereignty
under New Mexico law than that dictated by federal law. Id., ¶ 22 at 885. Again, that is
not precedent we have in our state precedent and our approach has been to defer to
federal law on these jurisdictional questions.

[¶64] Having concluded the district court properly asserted subject matter jurisdiction
over this action, we turn to Defendants’ argument that Plaintiff’s action is barred by the
applicable statute of limitations.

B. Statute of Limitations

[¶65] Defendants contend that even if the district court has subject matter jurisdiction,
Plaintiff’s claim is barred by the two-year statute of limitations set by Section 1-8-6 of
the Shoshone & Arapaho Law and Order Code (LOC). In support of this argument,
Defendants cite to Wyoming’s borrowing statute, the doctrine of lex loci delicti, and full
faith and credit requirements. We conclude none of these provides a basis to apply the
LOC two-year statute of limitations and uphold the district court’s rejection of
Defendants’ statute of limitations argument.

1. Borrowing Statute

[¶66] Wyoming’s borrowing statute provides that “[i]f by the laws of the state or
country where the cause of action arose the action is barred, it is also barred in this state.”
Wyo. Stat. Ann. § 1-3-117 (LexisNexis 2015). The district court concluded that because
the Wind River Indian Reservation is neither a state nor a country, the borrowing statute
did not provide a basis to apply the LOC two-year statute of limitations. We agree.

[¶67] The United States Supreme Court has described the status of tribes, observing that
they are neither a state nor a nation:

But it is nonetheless still true, as it was in the last century,
that ‘(t)he relation of the Indian tribes living within the
borders of the United States . . . (is) an anomalous one and of
a complex character. . . . They were, and always have been,
regarded as having a semi-independent position when they
preserved their tribal relations; not as States, not as nations,
not as possessed of the full attributes of sovereignty, but as a
separate people, with the power of regulating their internal
and social relations, and thus far not brought under the laws
of the Union or of the State within whose limits they resided.’

27
McClanahan, 411 U.S. at 173, 93 S.Ct. at 1262-63 (quoting United States v. Kagama,
118 U.S. 375, 381-82, 6 S.Ct. 1109, 1112, 30 L.Ed. 228 (1886)); see also Hicks, 533 U.S.
at 361-62, 121 S.Ct. at 2311 (quoting U.S. Dept. of Interior, Federal Indian Law 510, and
n. 1 (1958)) (“‘Ordinarily,’ it is now clear, ‘an Indian reservation is considered part of the
territory of the State.’”).

[¶68] Because the Wind River Indian Reservation is neither a state nor a country, there
is no basis under the borrowing statute to apply the LOC statute of limitations.

2. Doctrine of Lex Loci Delicti

[¶69] Defendants argue that if the borrowing statute does not apply, the doctrine of lex
loci delicti mandates application of the LOC statute of limitations. We again disagree.

[¶70] Under the doctrine of lex loci delicti, “the law of the place where the tort or wrong
has been committed, is the law that governs and is to be applied with respect to the
substantive phases of torts or the actions therefor.” Boutelle v. Boutelle, 2014 WY 147,
¶ 13, 337 P.3d 1148, 1153 (Wyo. 2014) (quoting Jack v. Enterprise Rent-A-Car Co. of
Los Angeles, 899 P.2d 891, 894 (Wyo.1995)) (emphasis added). We have also observed:

At common law, the limitation period of the forum
jurisdiction, the lex fori, generally controlled the time within
which causes of action had to be pursued, regardless of the
fact that the cause itself in all its elements may have accrued
outside the forum jurisdiction. Only when the limitation of
action statute of the foreign jurisdiction in which the cause
arose could be deemed substantive law rather than procedural
would the foreign statute be applied by the forum court.
Parish v. B.F. Goodrich Co., 1975, 395 Mich. 271, 235
N.W.2d 570.

Boutelle, ¶ 9, 337 P.3d at 1152 (quoting Duke v. Housen, 589 P.2d 334, 341–42 (Wyo.
1979)); see also Duke, 589 P.2d at 342 (agreeing that but for Wyoming’s borrowing
statute dating back to territorial laws, the statute of limitations of the place where the
action is brought, rather than where the cause of action arose would apply).

[¶71] Defendants have offered no reason that the LOC statute of limitations should be
treated as substantive rather than procedural law. We therefore reject application of the
doctrine of lex loci delicti, which as we noted above, calls only for application of the
substantive law of the jurisdiction where the cause of action arose.

28
3. Full Faith and Credit

[¶72] As their final argument, Defendants argue that because Wyoming law requires that
full faith and credit be afforded the Tribal Court’s judgment, we must apply the LOC
statute of limitations. This argument fails because the question before the Tribal Court
was whether the LOC two-year statute of limitations barred Plaintiff’s action in that
forum. The Tribal Court was not asked to weigh in on the question whether the LOC
statute of limitations would apply in the Wyoming court, and the question was not
considered or answered by the Tribal Court. There is therefore no full faith and credit
issue in this case.

CONCLUSION

[¶73] The district court has subject matter jurisdiction over this action and properly
concluded that Plaintiff’s action was timely filed under Wyoming’s four-year statute of
limitations. Affirmed.

29
BURKE, Chief Justice, dissenting.

[¶74] I respectfully dissent. I would conclude that a Wyoming district court lacks
subject matter jurisdiction over a tort action brought by a non-Indian plaintiff against
enrolled tribal member defendants to recover damages for injuries sustained in a motor
vehicle collision that occurred on a state highway within the boundaries of the Wind
River Reservation. Consequently, I would reverse the decision of the district court.

[¶75] My principal departure from the majority’s analysis arises from its conclusion that
the status of the tribal member as a defendant is irrelevant. According to the majority,
“the alignment of the parties is not material to our analysis and does not change the
outcome.” I disagree. “‘[I]t is the membership status of the unconsenting party . . . that
counts as the primary jurisdictional fact.’” Smith v. Salish Kootenai College, 434 F.3d
1127, 1131 (9th Cir. Mont. 2006) (quoting Nevada v. Hicks, 533 U.S. 353, 382, 121 S.Ct.
2304, 2322, 150 L.Ed.2d 398 (2001) (Souter, J., concurring)). The tribal membership of
the defendants in this case is critical to the jurisdictional analysis.

[¶76] The foundation on which this decision should rest is Williams v. Lee, 358 U.S.
217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959). In that case, a non-Indian plaintiff sued a tribal
member in state court to collect a debt incurred on the reservation. Id., 358 U.S. at 217-
18, 79 S.Ct. at 269. The Supreme Court set forth this test: “Essentially, absent governing
Acts of Congress, the question has always been whether the state action infringed on the
right of reservation Indians to make their own laws and be ruled by them.” Id., 358 U.S.
at 220, 79 S.Ct. at 271. It concluded: “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.” Id., 358 U.S. at 223, 79 S.Ct. at 272.

[¶77] We applied Williams in State ex rel. Peterson v. District Court of the Ninth
Judicial Dist., 617 P.2d 1056 (Wyo. 1980). Factually, Peterson is very similar to the
present case. It involved a suit commenced in state court against a tribal member to
recover damages arising from an accident that occurred on a state highway within the
boundaries of the reservation. The procedural posture of Peterson was unusual and
underscores the importance of the issue presented in this case. In Peterson, the defendant
tribal member filed a petition for a writ of prohibition requesting that this Court invoke
its original jurisdiction under Article 5, Section 3 of the Wyoming Constitution. We
granted the petition “to prevent the district court from exercising subject-matter
jurisdiction forbidden to it by federal law and to prevent the petitioner from having to
defend this action in the state court system, as well as in the tribal court system.” Id., 617
P.2d at 1057.

[¶78] Recognizing that the issue of subject matter jurisdiction in the case was a question
of federal law, we proceeded to review the analysis set forth in Williams and “later

30
decisions which give flesh to the Williams skeleton.” Id., 617 P.2d at 1063. We
interpreted Fisher v. District Court, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976),
to mean that “where a tribal court is established to handle a dispute involving reservation
Indians, concurrent state jurisdiction is an interference with tribal self-government.”
Peterson, 617 P.2d at 1068. Ultimately, we were “persuaded by [our] review of United
States Supreme Court cases” that the tribal court had jurisdiction over the case, and the
state district court did not. Id., 617 P.2d at 1069. The same conclusion should be reached
in this case.

[¶79] I am unconvinced by the majority’s effort to distinguish this case from Peterson
based on the identity of the plaintiff. All of the parties in Peterson agreed that the
plaintiff, a non-Indian insurance company, was the real party in interest, and we
acknowledged that the case was “formally between a non-Indian and an Indian.” Id., 617
P.2d at 1058. The majority did find it “significant” that the case “would, of necessity,
involve evaluation of the conduct (for purposes of ascertaining negligence) of two
Reservation Indians on the Reservation.” However, close review of the cases we cited in
Peterson reveals that the identity of the plaintiff was not the deciding factor.

[¶80] In Williams, 358 U.S. 217, 79 S.Ct. 269, the plaintiff was “not an Indian.” The
defendant was a tribal member. In Fisher, 424 U.S. at 383, 96 S.Ct. at 944, “all parties
[were] members of the Tribe.” As for Kennerly v. District Court, 400 U.S. 423, 91 S.Ct.
480, 27 L.Ed.2d 507 (1971), we observed in Peterson that “[w]e are not told whether the
[plaintiff] grocer was also Indian.” Peterson, 617 P.2d at 1064. However, we said it was
“worthwhile to consider [Kennerly] in detail since it illustrates how stringently the United
States Supreme Court protects reservation Indians from the exercise of state court
jurisdiction when the cause of action arises on a reservation and involves Indian
defendants.” Id. (emphasis added). Despite the differing or unknown identities of the
plaintiffs in these three cases, the results were the same: the state courts lacked
jurisdiction. The result in Peterson would have been the same regardless of the identity
of the plaintiff. “It is immaterial that respondent [plaintiff] is not an Indian.” Williams,
358 U.S. at 223, 79 S.Ct. at 272. It does matter, however, if the defendant is a tribal
member. In all of the cases just referenced, the defendant was a tribal member, and in all
of those cases it was determined that the state court lacked subject matter jurisdiction.

[¶81] The United States Supreme Court, in Nevada v. Hicks, 533 U.S. 353, 121 S.Ct.
2304, recognized that the tribal status of the defendant is key to the jurisdictional
analysis. Justice Souter, joined by Justices Kennedy and Thomas, wrote:

[I]t is undeniable that a tribe’s remaining inherent civil
jurisdiction to adjudicate civil claims arising out of acts
committed on a reservation depends in the first instance on
the character of the individual over whom jurisdiction is

31
 claimed. . . . It is the membership status of the unconsenting
party . . . that counts as the primary jurisdictional fact.

Id., 533 U.S. at 381-82, 121 S.Ct. at 2322 (Souter, J., concurring). Justice O’Connor,
joined by Justices Stevens and Breyer, placed the holding in perspective:

Today, the Court finally resolves that Montana v. United
States, 450 U.S. 544, [101 S.Ct. 1245,] 67 L.Ed.2d 493
(1981), governs a tribe’s civil jurisdiction over nonmembers
regardless of land ownership. Ante, at 4-6. This is done with
little fanfare, but the holding is significant because we have
equivocated on this question in the past. . . . Given the facts
of Montana, it was not clear whether the status of the persons
being regulated, or the status of the land where the hunting
and fishing occurred, led the Court to develop Montana’s
jurisdictional rule and its exceptions.

Id., 533 U.S. at 387, 121 S.Ct. at 2324-25 (O’Connor, J., concurring in part and
concurring in the judgment). The unconsenting parties in our case are the defendants,
who are both tribal members.

[¶82] It is true that Hicks concerned tribal jurisdiction and the Montana test. But as the
majority notes, Williams and Montana analyses are “merely different formulations of the
same underlying concept.” Cordova v. Holwegner, 971 P.2d 531, 537 (Wash. Ct. App.
1999). Whether determining state court jurisdiction over Indian defendants or tribal court
jurisdiction over non-Indians for actions arising within the boundaries of a reservation,
the tribal status of the defendant is the “primary jurisdictional fact.”

[¶83] Our decision in Boller v. Key Bank, 829 P.2d 260 (Wyo. 1992), does not
undermine that conclusion. In Boller, we upheld state court subject matter jurisdiction
over a foreclosure action brought by a non-Indian bank against a tribal member. Id., 829
P.2d at 264. According to the majority, “we rejected the argument that Peterson was
controlling and distinguished it on grounds that: ‘(1) both parties in the Peterson case
were enrolled Indians, * * * and (2) the entire incident in Peterson took place within the
interior boundaries of the Reservation.’ Id. at 264.” That analysis is only partially
accurate. The Boller court distinguished Peterson on both the “law and facts.” Boller,
829 P.2d at 264. While we did set forth the factual distinction provided above, the more
significant distinction was a legal one. “The [Peterson] court held that Congress had not
granted jurisdiction to the state and that such grant was necessary for state jurisdiction.
This case concerns fee patented land for which Congress has granted jurisdiction to the
state through the General Allotment Act.” Boller, 829 P.2d at 264 (emphasis in original).
In this case, as in Peterson, Congress has not granted jurisdiction to the state courts.

32
[¶84] I would follow Williams and Peterson to conclude that the state court lacks
jurisdiction in the case before us. The majority relies instead on Montana v. United
States, 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493 (1981) and Strate v. A-1
Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997). I am convinced that
these cases are inapplicable here. The question before us is whether the state court has
subject matter jurisdiction over a suit against two defendants who were enrolled tribal
members when the accident occurred within the boundaries of the reservation. In
contrast, Montana concerned “the sources and scope of the power of an Indian tribe to
regulate hunting and fishing by non-Indians on lands within its reservation owned in fee
simple by non-Indians.” Id., 450 U.S. at 547, 101 S.Ct. at 1249.

[¶85] The limitations of Montana are highlighted repeatedly in Strate. The Court in
Strate specified that neither party to the litigation was an Indian. Id., 520 U.S. at 442,
117 S.Ct. at 1407. It stated the narrow question before it: “This case concerns the
adjudicatory authority of tribal courts over personal injury actions against defendants
who are not tribal members.” Id. Its holding was equally narrow: “[T]ribal courts may
not entertain claims against nonmembers arising out of accidents on state highways,
absent a statute or treaty authorizing the tribe to govern the conduct of nonmembers.”
Id., 520 U.S. at 442, 117 S.Ct. at 1408. Moreover, it reiterated the significant but limited
nature of its decision in Montana: “Montana v. United States . . . is the pathmarking case
concerning tribal civil authority over nonmembers.” Strate, 520 U.S. at 445, 117 S.Ct.
at 1409 (emphasis added).

[¶86] The majority also misapplies Strate to reach a conclusion about the status of the
highway where the accident occurred. In Strate, as in the case before us, the accident
took place on a state highway within the boundaries of the reservation. In Strate, the
Supreme Court concluded that the highway was the equivalent of alienated, non-Indian
land. Critical to that conclusion, however, was the fact that none of the parties were
tribal members. As the court observed, “civil authority of Indian tribes and their courts
with respect to non-Indian fee lands generally ‘does not extend to the activities of
nonmembers of the tribe.’” Strate, 520 U.S. at 453, 117 S.Ct. at 1413 (quoting Montana,
450 U.S. at 565, 101 S.Ct. at 1258). Accordingly, it ruled that “The right-of-way North
Dakota acquired for the State’s highway renders the 6.59-mile stretch equivalent, for
nonmember governance purposes, to alienated, non-Indian land.” Strate, 520 U.S. at
454, 117 S.Ct. at 1413 (emphasis added; footnote omitted).

[¶87] The majority has ignored the significant limitation explicitly stated in Strate. It
never explains how it makes the leap from the Supreme Court’s characterization of the
state highway as alienated non-Indian land “for nonmember governance purposes” to its
conclusion that the state highway is “non-Indian fee land.” Instead of recognizing and
applying the limitation set forth in Strate, the majority essentially concludes that the
highway where the accident took place in this case is also equivalent to alienated non-
Indian land for purposes of governing tribal members. The limitation placed on the

33
highway designation in Strate is significant and must be taken into account in our
jurisdictional analysis. In this case, the defendants are tribal members. The defendants
are the parties being regulated. They are the non-consenting parties. Here, we are
resolving jurisdictional issues relating to tribal member governance. Tribal regulation of
non-member conduct at issue in Strate is not present here. The question before us is the
extent of state court jurisdiction over Indian defendants. Williams provides the correct
perspective for our case. Montana and Strate do not.

[¶88] I also take issue with the majority’s assertion that “Other courts have similarly
concluded that the fact of a tribal member being a party to the action does not change the
outcome dictated by Strate.” In all four of the cases cited for that proposition, the courts
rejected tribal court jurisdiction over actions against non-Indian defendants. One of the
cases explicitly recognizes the significance of the membership status of the defendant. In
Nord v. Kelly, 520 F.3d 848, 851 (8th Cir. Minn. 2008), the plaintiff was a tribal member,
and the defendants were non-Indian. The court followed Strate and ruled that the tribal
court lacked jurisdiction, noting that “[t]he dispute in Strate arose out of an accident
between two non-Indians, whereas here, one party [the plaintiff] was a member. We find
this to be a distinction without a difference, however, because in either case, the question
is whether the tribe has jurisdiction over the nonmember [defendant].” Nord, 520 F.3d at
854 n.3. The Nord court found the identity of the plaintiff “insignificant.” Id., 520 F.3d
at 856.

[¶89] The majority relies on Tejesova v. Bone, 2007 WL 1160059, * 1 (W.Dist. N.C.
2007), in which a non-Indian brought an action in federal district court against a tribal
member for injuries sustained in a vehicle collision on a federal highway on the
reservation. The defendant moved to dismiss, claiming that the plaintiff had failed to
exhaust her remedies in Tribal Court. The district court denied the motion, ruling that the
tribal court lacked jurisdiction. Id. at * 5. The court’s analysis is not persuasive. Its
decision is internally inconsistent.

[¶90] Noting that the question of tribal court jurisdiction is a question of federal law, the
Tejesova court set forth its understanding of the United States Supreme Court’s precedent
on the question:

The [Supreme] Court’s recent cases . . . demonstrate that
there are two facts courts look to when considering a tribal
court’s civil jurisdiction over a case in which a nonmember is
a party. First, and most important, is the party status of
the nonmember; that is, whether the nonmember party is
a plaintiff or a defendant. . . . It is the membership status
of the unconsenting party, not the status of real property,
that counts as the primary jurisdictional fact. The Court has
repeatedly demonstrated its concern that tribal courts not

34
 require defendants who are not tribal members to defend
[themselves against ordinary claims] in an unfamiliar court.
Second, the Court has placed some store in whether or not the
events giving rise to the cause of action occurred within the
reservation.

Tejesova, 2007 WL 1160059, * 3 (quoting Smith, 434 F.3d at 1131) (bracketed material
and omissions as in Tejesova; emphasis added). In the remainder of the opinion,
however, the court ignored the primary jurisdictional fact that the unconsenting party, the
defendant, was a tribal member. The court’s sole reference to party status is contained in
one sentence: “Here, the Plaintiff is a nonmember and so the Court looks to the second
factor, that is, ‘whether the cause of action brought by these parties bears some direct
connection to tribal lands.’” Tejesova, 2007 WL 1160059, * 3.

[¶91] The court focused almost exclusively on the location of the accident even though
it recognized that the Supreme Court has placed only “some store” in that factor.
Essentially, the court failed to follow its own understanding of applicable federal law.4
Although the court recognized that the party status of the “unconsenting party” was the
“primary jurisdictional fact,” it failed to apply that fact in its analysis. It looked only at
the status of the plaintiff.

[¶92] Shortly after Tejesova was decided, the Cherokee Supreme Court had the
opportunity to apply Tejesova to an accident on the same highway within the reservation.
In Crow v. Parker, 6 Cher. Rep. 33 (N.C. Cherokee Sup. Ct. 2007), the plaintiff was a
tribal member. The defendant was a non-member who sought dismissal claiming that the
tribal court lacked subject matter jurisdiction. The Cherokee Supreme Court rejected the
Tejesova analysis. The Court described the Tejesova decision as “an outlier.” Crow, 6
Cher. Rep. 33, ¶ 36. It concluded that, under Strate, tribal status of the defendant was the
determining factor: “Thus, the contention . . . that this case differs from Strate because
the Plaintiff in this case is an enrolled member of the EBCI is without merit inasmuch as
it is the status of the non-member as a party defendant which triggers the Strate inquiry.”
Id. Ultimately, the Cherokee Supreme Court held that the tribal court lacked subject
matter jurisdiction because the defendant was a nonmember.

[¶93] The decision in Tejesova is also directly contrary to two appellate court decisions
from other jurisdictions. Both are factually indistinguishable from the case before us.
Both rejected the application of Montana and Strate to these facts, and instead relied on

4
After the court denied the motion to dismiss, the tribe moved to intervene so it could “submit additional
evidence and argument showing that this case should be dismissed.” Tejesova, 2008 WL 162137, * 1
(quoting the motion to intervene). The court denied that motion, but granted the tribe’s request to certify
the denial of intervention for interlocutory appeal. Id. at * 2. The parties resolved the case by settlement
while the appeal was pending, effectively preventing the tribe from pursuing its appeal. Tejesova, 2008
WL 2074077, at * 1.

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Williams to conclude that state courts lack jurisdiction over actions by non-Indian
plaintiffs against Indian defendants when the action arose within a reservation. I find
these decisions far more persuasive than Tejesova.

[¶94] In Winer v. Penny Enterprises, Inc., 674 N.W.2d 9, 10 (N.D. 2004), the court held
that “the district court correctly ruled it lacked subject-matter jurisdiction over this action
brought by a non-Indian plaintiff against Indian defendants for damages resulting from a
motor vehicle accident occurring on a state highway within the exterior boundaries of the
Spirit Lake Indian Reservation.” The court addressed the relevance of Strate:

We are not convinced that Strate heralds a new
analysis for determining whether a state court has jurisdiction
over an action brought against an Indian arising from conduct
occurring within the exterior boundaries of an Indian
reservation. In W. Canby, Jr., American Indian Law in a
Nutshell, 175-76 (3rd ed. 1998), the author offered the
following observations about the Supreme Court’s decision in
Strate:

Strate involved only nonmembers on both sides,
but it phrased the question for decision as whether a
tribal court could “entertain a civil action against”
nonmembers when the claim arose on a state right-of-
way. Strate, 117 S.Ct. at 1407. It also described tribal
interests very narrowly. Consequently, one court of
appeals has held that a tribal court could not entertain
an action by a tribal member against a nonmember
when the claim arose on a state highway within the
reservation. Wilson v. Marchington, 127 F.3d 805 (9th
Cir. 1997), cert. denied, 523 U.S. 1074, 118 S. Ct.
1516, 140 L. Ed. 2d 669 (1998). The state accordingly
had jurisdiction. If the tribal member were the
defendant, however, Williams v. Lee would require the
action to be brought in tribal court. It is not yet clear
whether Strate forecasts erosion of that rule for non-
fee lands and state rights-of-way.

We believe Strate does not govern this case for several
reasons. Foremost, Strate analyzed a tribal court’s
jurisdiction, rather than a state court’s jurisdiction, involving
an action between non-Indians. When stating the highway
right-of-way was equivalent to alienated, non-Indian land, the
Court was careful to limit its description as applicable only

36
for “nonmember governance purposes.” Strate, 520 U.S. at
454. See also Strate, at 456 (stating “we therefore align the
right-of-way, for the purpose at hand, with land alienated to
non-Indians”) (emphasis added). Tribal court jurisdiction is
dependent upon application of the Montana test, which
governs an “Indian tribe[’s] regulatory authority over
nonmembers.” Nevada v. Hicks, 533 U.S. 353, 358, [121
S.Ct. 2304,] 150 L.Ed.2d 398 (2001). Since Strate was
decided, the Supreme Court has even noted that the
“ownership status of land, in other words, is only one factor
to consider in determining whether [tribal] regulation of the
activities of nonmembers is ‘necessary to protect tribal self-
government or to control internal relations.’” Hicks, at 360.
Williams v. Lee is “the seminal United States Supreme Court
decision concerning state civil-adjudicatory authority in
Indian country,” Conference of Western Attorneys General,
American Indian Law Deskbook, 154 (2nd ed. 1998), and
state court jurisdiction was not an issue in Strate. The
interests implicated when a non-Indian is sued are “very
different from those present” when a non-Indian sues an
Indian in state court over an incident occurring in Indian
country. Three Affiliated Tribes I, 467 U.S. at 148. The
United States Supreme Court has “formulated a
comprehensive pre-emption inquiry in the Indian law context
which examines not only the congressional plan, but also ‘the
nature of the state, federal, and tribal interests at state, an
inquiry designed to determine whether, in the specific
context, the exercise of state authority would violate federal
law.’” Three Affiliated Tribes II, 476 U.S. at 884 (quoting
White Mountain Apache Tribe v. Bracker, 448 U.S. 136, 145,
[100 S. Ct. 2578,] 65 L.Ed.2d 665 (1980).

Moreover, all of the cases relied upon by Winer which
have applied the Strate analysis have involved situations
testing tribal court jurisdiction over non-Indian defendants
where the conduct occurred on a right-of-way. See
Burlington N. R.R. Co. v. Red Wolf, 196 F.3d 1059, 1062 (9th
Cir. 1999); Wilson v. Marchington, 127 F.3d 805, 807 (9th
Cir. 1997); Chiwewe v. Burlington N. & Santa Fe Ry. Co.,
239 F. Supp. 2d 1213, 1215 (D. Ct. N.M. 2002); Austin’s
Express, Inc. v. Arneson, 996 F. Supp. 1269, 1271 (D. Ct.
Mont. 1998). We have not found any case wherein the Strate
analysis has been used to determine whether a state court has

37
 jurisdiction over a tort action brought against an Indian
arising on a right-of-way within the exterior boundaries of a
reservation. Rather, courts have refused to apply Strate
beyond the context in which it was decided. See Williams v.
Board of County Comm’rs, 1998 NMCA 90, 125 N.M. 445,
963 P.2d 522, 526 (N.M. Ct. App. 1998) (summarily rejecting
plaintiff’s argument that Strate “dictates that a state court
must consider the merits of his claims” because “Strate
addressed tribal court jurisdiction” and “was independent of
case law holding that Indian nations may not be sued in state
courts”).

If Strate signals a drastic departure from the state court
jurisdictional principles enunciated in Williams v. Lee and its
progeny, it is well hidden in the Strate decision. Strate is
distinguishable from the situation in this case, and until the
United States Supreme Court declares otherwise, we conclude
Strate does not govern our analysis here.

Winer, 674 N.W.2d at 14-16 (emphasis in original).

[¶95] In Hinkle v. Abeita, 283 P.3d 877, 878 (N.M. Ct. App. 2012), a non-Indian
plaintiff’s claim against an enrolled member of the Pueblo involved a motor vehicle
accident that occurred on a state highway within the boundaries of the Pueblo. The issue
was whether the state court had subject matter jurisdiction. The court noted that, over
thirty years ago in Hartley v. Baca, 640 P.2d 941 (N.M. Ct. App. 1981), it “resolved the
exact legal issue raised in this case on nearly identical facts.” Hinkle, 283 P.3d at 878.
However, subsequent United States Supreme Court decisions, particularly Strate,
prompted the court to “revisit the issue to determine whether evolving federal Indian Law
jurisprudence and recent precedent from our own Supreme Court now require a different
result.” Hinkle, 283 P.3d at 878. The court’s comprehensive analysis of federal Indian
Law jurisprudence is organized under the headings “The Montana Line of Cases Is
Limited to Determining Tribal Court Jurisdiction” and “The [Montana] Rule Applies
Only When the Unconsenting Party is a Nonmember.” Hinkle, 283 P.3d at 880, 882.
Based on its discussion of federal precedent, it concluded that the new developments “do
not alter our analysis . . . and we hereby affirm the district court’s decision to dismiss for
lack of subject matter jurisdiction.” Id., 283 P.3d at 878.

[¶96] The majority’s suggestion that the decisions in Winer and Hinkle are
distinguishable because they relied on state law to the exclusion of federal precedent is
difficult to accept. Both relied upon federal precedent and state court decisions that

38
applied federal precedent.5 That is no different than what the majority is attempting to do
here and is the same approach that we employed in Peterson.

[¶97] In conclusion, I would again emphasize that this case involves a claim against
tribal member defendants arising from an accident that occurred within the boundaries of
a reservation. In determining whether the state court has subject matter jurisdiction, we
must apply federal law. Under Supreme Court precedent, the tribal status of the non-
consenting party, the defendant, is the “primary jurisdictional fact.” In this case, both
defendants are tribal members. I find no support in applicable federal or state precedent
for the majority’s conclusion that tribal status of the defendant is irrelevant to a proper
jurisdictional analysis. In order to reach that conclusion, the majority extends Strate far
beyond the express limitations of that decision. In Strate, both parties were
“nonmembers” and the highway was deemed “non-Indian fee land” only for “non-
member governance purposes.” I would reaffirm and follow our decision in Peterson and
apply the United States Supreme Court’s decision in Williams. I would hold that the
district court lacks subject matter jurisdiction.

5
See also Routh v. Miller, 2007 Mont. Dist. LEXIS 510, ¶ 12 (Mont. Dist. Ct. 2007) (a personal injury action
brought by a non-Indian plaintiff against an enrolled member of a tribe and her non-Indian husband arising out of
activities occurring on trust land). The court distinguished Montana and Strate, and applied the Williams
infringement test to conclude that the state court lacked jurisdiction. Id., ¶ 14.

39