McCrea v. Busch

No. 12589

I N THE SUPREME COURT O THE STATE O M N A A
F F OTN

1974

ROBERT McCREA, A d m i n i s t r a t o r o f t h e E s t a t e
of B r a d l e y A r t h u r McCrea, Deceased,

P l a i n t i f f and A p p e l l a n t ,

LARRY BUSCH,

Defendant and Respondent.

Appeal from: D i s t r i c t Court of t h e Fourth J u d i c i a l D i s t r i c t ,
Honorable Jack L. Green, Judge p r e s i d i n g .

Counsel o f Record:

For Appellant :

Goldman, McChesney and D a t s o p o u l o s , M i s s o u l a , Montana
Harold L. McChesney a p p e a r e d , M i s s o u l a , Montana
R , Anthony Rogers a r g u e d , Washington, D. C .

F o r Respondent :

G a r l i n g t o n , Lohn and Robinson, M i s s o u l a , Montana
L a r r y E. R i l e y a r g u e d , M i s s o u l a , Montana

Submitted: A p r i l 24, 1974

Decided : a ~.,
L 2 " ;974
Filed : ! j$F4
Mr. Justice Gene B. Daly delivered the Opinion of the Court,

This appeal is from an order of the district court of the
fourth judicial district, county of Lake, dismissing plaintiff's
wrongful death action for lack of jurisdiction.
Plaintiff Robert McCrea is a member of the Confederated Salish
and Kootenai Tribes of the Flathead Reservation, Defendant Larry
Busch is a nonIndian. The alleged wrongful death of plaintiff's
sixteen year old son took place on U.S. Highway 93 in Ravalli,
Montana which is within the exterior boundaries of the Flathead
Reservation.
There is no fact dispute before the Court. The sole issue
presented for review is whether the courts of Montana have juris-
diction to accept a civil action for wrongful death resulting from
an automobile accident within the exterior boundaries of the Flathead
Reservation brought by an enrolled member of the Confederated Salish
and Kootenai Tribes against a nonIndJan defendant.
The jurisdiction of state courts as it pertains to Indian
problems has been placed in issue, Each party argued a different
application of the problem and its relation to the jurisdictional
question.
Defendant has approached it from the premise that this is an
attempted extension of the Montana courts' limited civil jurisdiction
over Indians and Indian affairs within the exterior boundaries
of the Flathead Reservation. For his principal authority defendant
relies on this Court's holding in Security State Bank v Pierre,
.
Mont . , 511 P.2d 325, 30 St.Rep, 647. That case stands
for the principle that Montana courts are limited in the exercise
of jurisdiction over Indian affairs when it interferes with their
self-government or impairs the rights granted, reserved or preempted
by the United States Congress, as interpreted by the United States
Supreme Court. The natural result as stated in Pierre was that
because of federal limitations the state of Montana was unable to
guarantee equal protection to the nonIndian plaintiff who was
attempting to enforce a commercial transaction obligation against
an Indian defendant which arose within the exterior boundaries of
the Indian reservation controlled by the federal government. This
resulted in a recognized and inequitable legal vacuum.
The instant case, however, is just the opposite of Pierre
and related cases. Here we are concerned with an Indian person
seeking redress in Montana courts against a nonIndian person.
Although defendant urges the subject matter to be without the
jurisdiction of the Montana courts as an interference with
Flathead tribal self-government and impairs a right granted, reserved
or preempted by Congress, he offers no citation and it does not
appear to this Court to be an invasion of any of the areas protected
by the federal government.
Therefore, this case falls within the class of cases that
Montana courts must and traditionally have given free access to
its courts and equal protection of its laws to all persons. The
foundation case is Bonnet v. Seekins, 126 Mont. 24, 243 P.2d 317,
relying on Art. 111, Sec. 6 of the 1889 Montana Constitution.
Bonnet has been recently followed and affirmed in State ex rel.
Iron Bear v District Court,
. Mont . , 512 P.2d 1292,
30 St. Rep. 482; Bad Horse v. Bad Horse, Mont . , 517 P.2d
893, 31 St.Rep. 22, relying on Art. 11, Sec. 16, 1972 Montana Con-
stitution.
This legal distinction that we meet here has been recognized
and approved by the federal government as far back as Williams v,
Lee, 358 U.S. 217, 3 L ed 2d 251, 79 S.Ct. 269, and as recent
as Confederated Salish and Kootenai Tribes v. Moe, F.S~PP. ,
31 St. Rep. 408.
We have in recent cases cited herein fully discussed all
aspects of this jurisdictional problem and since then nothing has
changed in the federal sector to warrant burdening this opinion with
more than the comments made herein.
 The order of t h e t r i a l c o u r t i s reversed and t h e cause
remanded f o r f u r t h e r proceedings.

Justice

i Me Concur:

Chief ~ u s t i c e