No. 90-346
IN THE SUPREME COURT OF THE STATE OF MONTANA
1990
ROBERT C. EMERSON,
plaintiff and Appellant,
-v-
TERRY L. BOYD, d/b/a BOYD BROTHERS TRUCKING,
Defendant and Respondent.
APPEAL FROM: District Court of the Fifteenth Judicial District,
In and for the County of Roosevelt,
The Honorable M. James Sorte, Judge presiding.
COUNSEL OF RECORD:
For Appellant:
Robert G. Olson; Frisbee, Moore, Stufft & Olson; Cut
Bank, Montana
For Respondent:
Mary L. Zemyan, Wolf Point, Montana
Submitted on Briefs: November 1, 1990
Decided: February 14, 1991
Filed:
Justice Fred J. Weber delivered the opinion of the Court.
Robert C. Emerson, plaintiff, sued Terry L. Boyd, defendant,
for breach of contract in the District Court for the Fifteenth
Judicial District, Roosevelt County. Plaintiff secured a default
judgment against defendant for $12,849.04, plus costs of $99.90.
Plaintiff levied execution upon defendant's bank account. Upon
motion the District Court concluded that the civil jurisdiction of
the case had been preempted by the Tribe's exercise of
jurisdiction. The ~istrictCourt vacated the default judgment and
directed the return to the defendant of any monies collected
through execution. Plaintiff appeals. We affirm.
The issue is whether the Montana District Court may assume
jurisdiction in this contract claim.
The initial question is whether the action arose on the Indian
reservation. In determining the location of a contract dispute,
we hereby adopt the following language of the Ninth Circuit in R.J.
Williams Co. v. Fort Belknap Housing Auth. (9th Cir. 1983), 719
Generally courts look to (1) the place of contracting,
(2) the place of negotiation of the contract, (3) the
place of performance, (4) the location of the subject
matter of the contract, and (5) the place of residence
of the parties, evaluating each factor according to its
relative importance with respect to the dispute.
Restatement (Second) of Conflict of Laws 5 188 (2) (1971) .
Both plaintiff and defendant are members of the Fort Peck
Tribes, with the defendant residing on reservation, and the
plaintiff residing off reservation. Contract negotiations took
place over the telephone with defendant located on reservation and
plaintiff off reservation. The written contract between the
parties was signed on the reservation. The dispatching activities
of the trucking company were conducted by the defendant on the
reservation. Payments were mailed to a bank off the reservation.
Nearly all loads were picked up at points or delivered to points
out of state or in Montana outside the exterior boundaries of the
reservation. We conclude the activities occuring on the reservation
are sufficiently substantial to establish that the contract dispute
arose on the reservation.
Before a Montana District Court can assume civil jurisdiction
in an action which arose on a reservation to which an Indian is a
party, the Montana court must apply the three-prong test of Iron
Bear v. District Court (1973), 162 Mont. 335, 346, 512 P.2d 1292,
1299. We are not concerned with the first two prongs of the test
as there are no federal treaties or statutes which have preempted
state jurisdiction, and there is no claimed interference with
tribal self-government. This leaves the third prong: whether the
Tribal Court is currently exercising jurisdiction or has exercised
jurisdiction in such a manner as to preempt state jurisdiction.
The Fort Peck Indian Tribes have affirmatively assumed civil
jurisdiction over actions where one of the parties is an Indian who
resides on the Fort Peck Reservation. Subchapter 1, 5 107, Fort
Peck Tribes Comprehensive Code of Justice (1983). We conclude that
the Fort Peck Indian Tribes have assumed civil jurisdiction over
contract disputes which arose on the reservation and that the third
prong of the Iron Bear test has been met. As a result Montana is
prevented from assuming j u r i s d i c t i o n . We affirm t h e D i s t r i c t
Court.
W e Concur:
Justices