concurring specially.
[¶ 25] If we were visiting the issue for the first time I would probably agree with Justice Maring’s analysis and conclusions. However, we are not visiting the issue for the first time. On identical facts in Nelson v. Dubois, 232 N.W.2d 54 (N.D.1975) and Schantz v. White Lightning, 231 N.W.2d 812 (N.D.1975), the Court reached a contrary conclusion. The Court did not have the benefit of Strate v. A-1 Contractors, 520 U.S. 438, 117 S.Ct. 1404, 137 L.Ed.2d 661 (1997) in reaching those decisions. However, neither is Strate on point factually since both parties in the lawsuit were non-Indian. If we were writing on a clean slate, Justice Maring’s analysis appears to be a logical interpretation of the law. However, I am not inclined to so quickly abandon a nearly 30 year precedent of this *18Court based on a case that is factually dissimilar, particularly when the dissimilar facts concern the tribal membership of the parties.
[¶ 26] Having served on this Court during the saga of Three Affiliated Tribes v. Wold Eng’n, P.C., 467 U.S. 138, 104 S.Ct. 2267, 81 L.Ed.2d 113 (1984) and Three Affiliated Tribes v. Wold Eng’n, P.C., 476 U.S. 877, 106 S.Ct. 2305, 90 L.Ed.2d 881 (1986), it is plain to me that in matters involving jurisdiction on Indian reservations, we often are unable to know what the law is until the United States Supreme Court tells us what it is. I am unwilling to abandon our precedent unless the United States Supreme Court in a factually similar case, tells us our precedent is wrong.
[¶ 27] Gerald W. Vande Walle, C. J.