(dissenting).
I dissent. As I see it, there is no question of jurisdiction whatever in this case. There is only a question of interpretation of one part of § 39-17-03, North Dakota Century Code, and whether that section should be interpreted so as to deprive residents of North Dakota of the protections of the Unsatisfied Judgment Fund to which they have contributed, merely because a judgment was obtained in one court rather than another.
JURISDICTION NOT INVOLVED
I believe the majority opinion insufficiently recognizes, or fails to recognize, that § 39-17-03, NDCC, requires some court or other to perform two entirely different functions. One of those functions is the traditional function which courts exercise in hearing and deciding cases, while the other is the semi-administrative function of deciding when post-judgment proceedings are sufficient to justify payment from the Unsatisfied Judgment Fund.
When Indians are involved as defendants in actions for damages arising from automobile accidents and the accidents occur on Indian reservations, serious questions of jurisdiction of state and federal courts arise. In a whole series of cases including Gourneau v. Smith, 207 N.W.2d 256 (N.D.1973); Schantz v. White Lightning, 231 N.W.2d 812 (N.D.1975); and Nelson v. Dubois, 232 N.W.2d 54 (N.D.1975), we have held that the state courts have no jurisdiction over Indian defendants involved in automobile accidents on Indian reservations. All of these cases involved automobile accidents with potential claims against the Unsatisfied Judgment Fund, just as the case before us does.
*436But the important distinction between those cases and the one now before us is that the actions were brought in state court in the three cases just cited, and it was held that the state court had no jurisdiction, while in the case now before us that action was brought and the judgment obtained in tribal court, which had undoubted jurisdiction over the parties and over the subject matter. Thus, the question of jurisdiction in the obtaining of the judgment against the defendant is not before us in the present case, while the other cases were all decided adversely to the plaintiff on the sole ground of lack of jurisdiction of the court in which the action was brought.
We are therefore breaking new ground in the present case.
It is my view that once a judgment is obtained in a court of competent jurisdiction against an Indian defendant for negligence in an automobile accident on an Indian reservation, in this State, the plaintiff may thereupon go into state court to obtain an order for payment from the Unsatisfied Judgment Fund.
To illustrate the difference between the two functions performed by courts in Unsatisfied Judgment Fund cases, I will set out the statute in question, emphasizing that portion which relates to the semi-administrative function.
“39-17-03. Recovery from fund — Provisions governing. — Where any person, who is a resident of this state, recovers in any court in this state a judgment for an amount exceeding three hundred dollars in an action for damages resulting from bodily injury to, or the death of, any person occasioned by, or arising out of, the ownership, maintenance, operation or use of a motor vehicle by the judgment debtor in this state, upon such judgment becoming final, such judgment creditor may, in accordance with the provisions of this chapter, apply to the judge of the district court in which such judgment was rendered, upon notice to the attorney general, for an order directing payment of the judgment out of said fund. Upon the hearing of the application, the judgment creditor shall show: (1) that he has obtained judgment as set out in this section, stating the amount thereof and the amount owing thereon at the time of the application; (2) that he has caused an execution to be issued thereon, and that (a) the sheriff has made a return thereon showing that no property of the judgment debtor liable to be seized in satisfaction of the judgment debt, could be found, or (b) the amount realized on the sale of property seized, or otherwise realized under the execution, was insufficient to satisfy the judgment, stating the amount so realized and the balance remaining due thereon; (3) that he has caused the judgment debtor, where the judgment debtor is available, to be examined pursuant to law for that purpose, touching his property, and in particular as to whether the judgment debtor is insured under a policy of automobile insurance against loss occasioned by his legal liability for bodily injury to, or the death of, another person; (4) that he has made an exhaustive search and inquiry to ascertain whether the judgment debtor is possessed of property, real or personal, liable to be sold or applied in satisfaction of the judgment; and (5) that as a result of such search, inquiry and examination, he has learned of no property, real or personal, possessed by the judgment debt- or and liable to be sold or applied in satisfaction of the judgment debt, or that he has learned of certain property, describing it, owned by the judgment debt- or and liable to be seized or applied in satisfaction of the judgment, and has taken all necessary proceedings for the realization thereof, and that the amount thereby realized was insufficient to satisfy the judgment, stating the amount so realized and the amount remaining due thereon.”
As I have said, the tribal court had jurisdiction over the defendant beyond all question. It entered a valid judgment against the defendant. All that remained to be done, in order to collect from the Unsatisfied Judgment Fund, is to obtain an order *437from a district court for payment from the Fund. Jurisdiction over Indians on Indian reservations is no longer involved. The only dispute now remaining is between the Indian plaintiff, a resident of this State and entitled to be a beneficiary of the Unsatisfied Judgment Fund, to which he must contribute in order to have a driver’s license, and the State itself, acting through the Unsatisfied Judgment Fund. In such a dispute the State has no reason to claim any lack of jurisdiction over the Indian defendant.
What we have before us, then, is simply a dispute between a resident of this State, who happens to be an Indian, and the State itself, acting through the Unsatisfied Judgment Fund. The only issue before us is the interpretation of § 39-17-03, NDCC, and particularly the language relating to “judge of the district court in which such judgment was rendered,” contained in the portion of the statute relating to the obtaining of an order for payment from the Unsatisfied Judgment Fund, which I have described above as the semi-administrative portion of the statute.
INTERPRETATION OF THE STATUTE
In the interpretation of the statute, I suggest that there is little difficulty. In the first place, as I have suggested, the two provisions refer to two different functions of courts: one judicial, the other semi-administrative. The judicial function can, according to the law, be performed by any court “in this state.” The second one, referring to the district court “in which such judgment was rendered,” contains surplus-age and should be construed so as to make sense of the statute. That sense could be furthered by either ignoring the word “district,” allowing the court which issued the judgment to make the order for payment, or by eliminating the words “in which such judgment was rendered,” which would permit the district court to perform the semi-administrative function of ordering payment after a judgment was obtained in any other court in this state — whether federal, tribal, county court of increased jurisdiction, or county justice court. I would prefer the latter.
The least desirable interpretation is the one used by the majority which in effect strikes out the words “in this state” and forces all automobile negligence cases which might result in claims on the Fund to be commenced in state district court, thereby depriving persons so unfortunate as to be injured by Indian drivers on Indian reservations of any protection from the Unsatisfied Judgment Fund to which they contribute like anyone else.
I disagree with the majority when it says that this raises no constitutional questions. All North Dakota drivers are compelled to obtain driver’s licenses before driving. This includes Indians. Not only does state law require it, but tribal ordinances require Indians driving on reservation roads to have such licenses. See Poitra v. Demarrias, 502 F.2d 23 (8th Cir. 1974), quoted in dissent in Nelson v. Dubois, supra, at page 60. In order to obtain such licenses, all drivers, including Indians, must pay a $1.00 fee to the Unsatisfied Judgment Fund whenever assessment is made. By its terms, the law as to the Unsatisfied Judgment Fund applies to the entire state. But the majority holds that the Fund cannot be resorted to by injured persons, white or Indian, if the injury occurs on a reservation by the negligence of an Indian driver, even though all parties have contributed to the Fund. The majority opinion restricts the benefits of the Fund to only those persons who are able to sue in the state district court, and allows no recovery to those who sue in other courts of coordinate powers which have complete jurisdiction of the parties and the subject matter of the action. To me, this is unequal treatment, it is not equal protection of the laws, and it is not due process. The discrimination is not against Indians, as such, but against all persons (Indian or non-Indian) injured by the negligence of Indian drivers on Reservations within the State.
The pertinent statute, § 39-17-03, NDCC, contains inconsistent provisions. In one place it refers to recovery of judgment “in any court of this state,” a provision *438which surely includes tribal courts. In another it refers to the “district court in which such judgment was rendered,” a description which excludes tribal courts (as well as county courts of increased jurisdiction, county justice courts, and federal courts).
I cannot agree that either provision is more general, special, or particular than the other. One of them comes later in the statute, as the majority says, but the canon of construction is to be used only as a last resort (see § 1-02-08, NDCC), and I would prefer the much more important canon that statutes should be so interpreted that constitutional questions should be avoided. State v. Hagge, 211 N.W.2d 395 (N.D.1973); State v. Erickson, 72 N.D. 417, 7 N.W.2d 865 (1943). The majority opinion says that no question of constitutionality arises as to Indians, but my point is that the question arises because the Unsatisfied Judgment Fund is being interpreted so as to discriminate against some injured persons, contrary to the general purpose of the statute.
EFFECT OF TRIBAL COURT JUDGMENTS
Tribal courts are courts as regular as any other. They are set up pursuant to federal law, and often supported by federal funds. They are considered for some purposes, at least, as federal courts. See United States v. Wheeler, 545 F.2d 1255 (9th Cir. 1976), holding that a conviction of contributing to the delinquency of a minor in tribal court barred, under the double jeopardy provisions of the United States Constitution, a subsequent federal prosecution for rape, since tribal courts and federal courts are “not arms of separate sovereigns.” And see, Colliflower v. Garland, 342 F.2d 369 (9th Cir. 1965), in which it is stated that “ . . . it is pure fiction to say that the Indian courts functioning in the Fort Belknap Indian community are not in part, at least, arms of the federal government.”
I suggest that we are as bound to give full faith and credit to judgments of tribal courts within their jurisdiction as we are to federal courts within theirs.
CONCLUSION
It boils down to this: We have often said that state law allows Indians to recover from the Unsatisfied Judgment Fund, but federal law forbade us from hearing the cases (see Nelson v. Dubois, supra). Now we have an Indian asking us in our courts to enforce a valid judgment of an Indian court so as to permit a recovery from the Fund; no Indian is objecting, but only the Fund itself. The State should keep its promises, especially since the tribal court which granted the judgment is in some senses a federal court, and since it is entitled to as much full faith and credit as a federal court, and since Indians contribute to the Fund just as non-Indians do.
Grave constitutional questions will be avoided if we take the alternative reading of the relevant statute which will avoid the constitutional questions. I would do so, and grant recovery from the Fund.
I must add that I adhere to the views expressed in my dissent in Nelson v. Dubois, supra, in which I pointed out that there is respectable authority for the proposition that the courts have a residual jurisdiction over some matters relating to Indians, and that this is particularly true in Unsatisfied Judgment Fund matters. But, as I stated above, I find no question of jurisdiction in the present case.