(dissenting).
This is a case where there is a wrong without a remedy unless we find one. We are told by our Constitution to find one if we can. Section 22, Constitution of North Dakota, provides, in part:
“All courts shall be open, and every man for any injury done him in his lands, goods, person or reputation shall have remedy by due process of law, and right and justice administered without sale, denial or delay. . . .”
In cases similar to the present one we formerly gave relief under North Dakota law. Vermillion v. Spotted Elk, 85 N.W.2d 432 (N.D.1957). However, subsequent to the Vermillion decision, the Federal law was changed by passage of Public Law 90-284, now codified in 25 U.S.C. 1322(a). In a new ease, in which the facts were again similar to the present one, Gourneau v. Smith, 207 N.W.2d 256 (N.D.1973), we reexamined the holding in Vermillion and concluded that the Federal Government, by the passage of Section 1322(a), had made it impossible for us to grant relief. We recognized then, as we do now, that the Federal authority is preeminent as to jurisdiction on Indian reservations. While 1322(a) made it possible for the Tribes to grant civil jurisdiction to the States, this has not been done in any reservation in North Dakota. We therefore have only such jurisdiction as Federal law permits.
When Gourneau was decided, the language of 1322(a) appeared to prohibit any *60exercise of civil jurisdiction by the State on any reservation in North Dakota. Since that time, however, there have been several decisions recognizing a “residual jurisdiction” in the States if such jurisdiction does not interfere with tribal self-government, if the Federal Government has not preempted the field, and if the tribal court is not acting. Poitra v. Demarrias, 502 F.2d 23 (8th Cir. 1974); State ex rel. Iron Bear v. District Court, 512 P.2d 1292 (Mont.1973). So far as State jurisdiction is concerned, the Poitra case is very nearly identical with the one before us. It also involves an automobile accident on a North Dakota reservation, allegedly caused by an Indian defendant, with the plaintiff seeking recovery from the North Dakota Unsatisfied Judgment Fund.
As I read the Poitra decision, it practically invites us to assert a “residual jurisdiction” here. It says:
“ . . . Here, one Indian seeks to avail herself of the federal court in an. action against another Indian. This fact in itself would seem to negate any interference claim that could be made since no interfering outsiders are trying to foist jurisdiction on the Indians. In addition, the underlying cause of action here is based on a state-created wrongful death statute and judgment fund, not a dispute that involves considerations of policy regarding tribal lands or customs. ...” 502 F.2d 23, at 29.
The Court of Appeals also said, as noted in the majority opinion:
“ . . .a persuasive argument can be made that the tribe has waived any ‘interference’ claims with regard to suits in which the Unsatisfied Judgment Fund is involved. This is supported by the fact that each driver in North Dakota contributes, through his or her annual car registration fee, one dollar to the fund. North Dakota Century Code § 39-17-01 (1972). Furthermore, by acquiescing to the state regulations in this manner, the tribe may have left such fund cases to the ‘residuary’ jurisdiction of the state. See State ex rel. Iron Bear v. District Court, 512 P.2d 1292, 1298 (Mont.1973).” 502 F.2d 23, n. 10, p. 29.
In the case before us, the lower court found that the Devils Lake Sioux Tribe of the Fort Totten Indian Reservation of North Dakota has adopted a code of laws which limits its court’s jurisdiction in civil proceedings brought by a non-Indian to suits in which the amount or value in controversy, including interest, does not exceed $300. The same code also prohibits the driving of a motor vehicle upon the public highways without a valid driver's or chauffeur’s license, and prohibits operating a motor vehicle on roadways within the reservation unless the vehicle is in safe condition and complies with the registration laws of the State. This is indicative of an intention on the part of the Tribe to acquiesce in certain limited State jurisdiction on the reservation.
It should also be noted that we stated in Rolette County v. Eltobgi, 221 N.W.2d 645, 648 (N.D.1974), that “Restrictions on the authority of State courts on Indian reservations are not total”; and quoted from Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), to the effect that the question in the absence of governing Acts of Congress was whether State action infringed on the right of reservation Indians to make their own laws and be ruled by them. We also cited Kennerly v. District Court of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507 (1971).
It is an unfortunate fact, as noted in Schantz v. White Lightning, 502 F.2d 67 (8th Cir. 1974), by the same panel which decided Poitra v. Demarrias, supra, that “non-Indian litigants are left without a forum in which to pursue their claim.” This is true because of inaction on the part of the Congress, which holds the key to open either the courts of the Federal Government or the State courts to litigants with valid claims who now have nowhere to take them. Pending action by the Congress to correct this flagrant injustice, we should accept the invitation of the Eighth Circuit *61to exercise a “residual jurisdiction” in this case and others like it.
It must be emphasized that Gourneau was decided strictly on Federal grounds, not State grounds. We expressed our willingness to handle cases such as this, if permitted to do so. The Federal court has recognized that the basis for the Gourneau decision was Federal law, and that we were willing to give judgment in cases such as this one if Federal law permitted. See Poitra, 502 F.2d 23, at 27:
“The reason that North Dakota lacks jurisdiction over this civil action is because of a special status given Indians under federal law, not because of any state policy consideration.” [Emphasis in original.]
And in Schantz v. White Lightning, 502 F.2d 67, 70, note 4:
“We emphasize that North Dakota has in no way acted to bar Indians from its courts or to exclude them from the benefits of the Unsatisfied Judgment Fund.”
Now that the Federal courts have removed the Federal bar to the exercise of a jurisdiction we were always willing to exercise, we should reopen our courts to this kind of case. I would answer both certified questions affirmatively.