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