Larrivee v. Morigeau

No. 14586

m THE SUP- COUKC O THE STATE OF rnNTANA
F

1979

NOEL K. LARRIVEE,
Plaintiff and Respondent,

-VS-

DOUGLAS E. rnRIGEAU,

Defendant and Appllant.

Appeal from: D i s t r i c t Court of the Fourth Judicial District,
Honorable E. Gardner Brownlee, Judge presiding.

Counsel of Record:

For Appellant:

Steven Bunch, Legal Services, argued, Helena, mntana

For Respondent :

Smith, Connor, Van Valkenburg and Larrivee, Missoula, Wntana
Noel K. Larrivee argued, Missoula, Pllontana

For Amicus Curiae:

Victor F. Valgenti argued,Missoula, Mntana
Evelyn M. Stevenson, Pablo, Wntana

Sul=Prcitted: April 27, 1979

Decided: dCi 1 2 1979
.- ,372.
I -
Filed :
Mr. Justice John C. Sheehy delivered the Opinion of the
Court .

his is an appeal by Douglas E. Morigeau arising out

of a default judgment taken against him in the District
Court, Fourth Judicial District, Missoula County, for the
sum of $9,417.70, exclusive of interest and costs.
The facts in the case indicate that Noel K. Larrivee
was driving his automobile west on Montana Highway 200
toward its intersection with Montana Highway 212, in Sanders
County on February 22, 1978. It further appears that Morigeau,
traveling in an automobile in an easterly direction on
Highway 200, attempted to turn left onto Highway 212 when
his vehicle and that of Larrivee collided.
Larrivee filed his action against Morigeau in the
Fourth Judicial District Court, Missoula County, on March
10, 1978. A summons was served upon the defendant personally
in Sanders County, on March 15, 1978. On April 20, 1978,
Larrivee requested the Clerk to enter default of the defendant
Morigeau because Morigeau had failed to appear or answer the
complaint. On the same date, the District Court entered
default judgment against Morigeau for the amounts above set
forth.
On May 1, 1978, Morigeau, through his counsel, filed
several instruments in the District Court. One was a motion
to set aside the entry of the default judgment upon the
grounds of the defendant's mistake, inadvertence, and excusable
neglect. The affidavit in support of the motion recites
that Morigeau after service upon him, delivered his copy of
the complaint to the Tribal Court of the Confederated Salish
and Kootenai Tribes on March 20, 1978. Morigeau believed that
the Tribal Court, or the tribal attorney, would take steps
toward the handling of the complaint, a mistaken assumption.
On April 13, 1978, the tribal attorney delivered the summons
and complaint to Morigeau's attorney, but she was not
authorized by Morigeau to act on his behalf until April 19,
1978. There were some telephone conversations between
Morigeau's attorney and Larrivee. Apparently there was an
oral agreement between them that Larrivee would not take
default judgment against Morigeau before April 19 or 20,
1978. Excusable neglect is alleged in that Morigeau's
attorney was absent from the state during this period and he
did not authorize her to act on his behalf until the afternoon
of April 19, 1978. It is contended that the defendant's
motions were mailed to Larrivee (though not filed in the
court) on April 20, 1978.
The affidavit furthers recites that the place where the
accident occurred is within the exterior boundaries of the
Flathead Indian Reservation; that the defendant Morigeau is
an enrolled member of the Confederated Salish and Kootenai
Tribes of that reservation; that Morigeau, living within the
exterior boundaries of the reservation, was not subject to
service of state court process; and, that the subject matter
of the controversy was not within the jurisdiction of the
state District Court.
Also on May 1, 1978, Morigeau filed his motion to
change venue and dismiss the action. The motion for change
of venue was made upon the ground that the accident had
occurred in Sanders County where the defendant had been
served. The motion to dismiss the action contended that the
District Court lacked subject matter jurisdiction because
the defendant was an enrolled member of the Confederated
Salish and Kootenai Tribes, living within the exterior
boundaries of the Flathead Indian Reservation.
-3-
 On May 11, 1978, oral argument was heard, evidence
taken, and thereupon the District Court denied the motion to
set aside the default judgment.
Defendant did not appeal from the order denying his
motion to vacate the default judgment. Instead, on August
22, 1978, he filed a motion to vacate the default judgment

and dismiss the same for lack of subject matter jurisdiction,
again upon the grounds that the action was one between a
non-Indian plaintiff and an Indian defendant over an accident
which occurred within Indian country and was therefore
subject only to the exclusive jurisdiction of the Tribal
Court of the Confederated Salish and Kootenai Tribes of the
Flathead Indian Reservation.
The District Court refused to set aside the default
judgment on October 10, 1978, saying in denying the motion:
"Both parties are citizens of the State of
Montana and each claim all the rights of
such citizenship. The public highway was
opened to public use and provides a further
reason for holding that the State Courts
have jurisdiction. The Federal Courts will
not take the action holding that there is
no diversity of citizenship, as there is
not. The simple fact is that the defendant
desires to be relieved of responsibilities
of citizenship because of his race. The
equality of our constitution, both state
and federal, abhor any discrimination because
of race or any showing of favortism [sic] because
of race.
"The defendant is a citizen of the State of
Montana and subject to the jurisdiction of its
courts. I'

Appeal from the order of the District Court of
October 11, 1978, denying the motion to dismiss for lack of
subject matter jurisdiction was taken by Morigeau on November
6, 1978. Confederated Salish and Kootenai Tribes of the
Flathead Reservation have filed a brief in this matter as
amicus curiae, contending that the state District Court does not
have subject matter jurisdiction in this case.
From the recitation of the procedures followed in
the District Court, as we have set forth above, it will
be seen that no proper or timely appeal was taken from
the order of the District Court denying the motion to set
aside the default judgment on the grounds of excusable
neglect, inadvertence or mistake; and no appeal was taken
from the order of the District Court denying the motion
for change of venue. Whether or not these motions have
merit, since timely appeal was not taken from the denial
of such motions, this Court is without jurisdiction to
consider the issues covered by those motions on appeal.
See Flathead Hay Cubing, Inc. v. Rex Moore (1978), 35 St.Rep.
1260 (Cause No. 14327, unpublished); Zell v. Zell (19771,
Mont . , 565 P.2d 311, 34 St.Rep. 492; First Nat.
Bank of Lewistown v. Fry (1978), Mont . , 575 P.2d
1325, 35 St-Rep. 276.
In his motion to set aside the default judgment, Morigeau
did not precisely rely upon the lack of subject matter
jurisdiction as a ground for setting aside that default,
although reference to this is made in the affidavits supporting
his motion as part of his contention that he had a meritorious
defense. It appears from the record that the District Court
ruled on the ground that there was no mistake, inadvertence
or excusable neglect in denying that motion. We do not
consider therefore that the question of subject matter
jurisdiction was ruled upon by the District Court when it
denied the motion to set aside the default judgment.
The appeal here taken is from the denial of the separate
motion filed on August 22, 1978. An attack on subject matter
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jurisdiction may be raised at anytime. Since we find in
this case that the question of subject matter jurisdiction
was not precisely ruled upon by the court in its order
denying the first motions, the appeal taken by Morigeau from
the order denying the motion of August 22, 1978 to vacate
and dismiss for lack of subject matter jurisdiction is
properly before us for consideration.

The single issue to be decided by us in this appeal
therefore is whether the District Court had subject matter
jurisdiction on which to sustain the default judgment.
In treading our way through the ever more complicated
field of Indian relationships and responsibilities, we find
and hold that the Confederated Salish and Kootenai Tribes
ceded concurrent civil jurisdiction to the state District
Courts of controversies arising out of the operation of
motor vehicles within the exterior boundaries of the Flathead
Reservation.
The federal Act of August 15, 1953 (Pub.L. 83-280, 83rd
Cong., 2d. Sess.), 67 Stat. 588, amended Publication 90-284,
82 Stat. 73, 78, 25 U.S.C. 1321, et seq. (1968), provided
for the permissive extension of civil jurisdiction over
Indians residing on Indian Reservations to the states where
such reservations were located. In conformance with the
federal Act of 1953, the Montana Legislature provided that
the governor of Montana, upon receipt of a resolution from
a tribal council or other governing body of the Confederated
Salish and Kootenai Indians, expressing its desire as a
people to be subject to criminal or civil jurisdiction in
the State of Montana, should issue a proclamation to that
effect. Ch. 81, Laws of Montana (1963).
 We are not disposed in this case to get into an esoteric
discussion of Indian rights and responsibilities vis-a-vis
state jurisdiction. It is not necessary here because under
an ordinance adopted by the Confederated Salish and Kootenai
Tribes, and proclaimed by the governor of this state in
accordance with Ch. 81, Laws of Montana (1963), the Con-
federated Salish and Kootenai Tribes consented to concurrent
jurisdiction with state courts of tort claims arising from
highway accidents occurring within the exterior boundaries
of the Flathead Reservation.
The pertinent provisions of Tribal Ordinance 40-A (Revised)
adopted by the Tribal Council of the Confederated Salish and
Kootenai Tribes, is as follows:
"Be it enacted by the Tribal Council of the
Confederated Salish and Kootenai Tribes of
the Flathead Reservation, Dixon, Montana:
"That Chapter 1, 52 Jurisdiction, of the
official code of ordinances be and the
same is hereby amended to add subsections
1 and 2 of this ordinance following paragraph
3 to read as follows:
"'Subsection 1. Subject to the conditions and
limitations expressed in Subsection 2 hereof,
--- jurisdiction of - State of
the laws and - the
Montana, including the judicial system of -
- the
State, are hereby extended pursuant to, and
subject to the conditions in, the Act of the
Montana Legislature of February 27, 1963, Laws
of Montana, 1963, Vol. 1, Chap. 81, P. 170, to
Indians within the Flathead Reservation - -
to the
extent ---
such laws and jurisdiction relate - -
to the
subjects following:
" ' (a) Compulsory School Attendance
" ' (b) Public Welfare
I
' ' (c) Domestic Relations (exception adoptions)
"'(d) Medical Health, Insanity, Care of the
Infirm, Aged and Afflicted
" ' (e) Juvenile Delinquency and Youth
Rehabilitation
 " ' (f) Adoption Proceedings (With consent
of the Tribal Court)
"I (g) Abandoned, Dependent, Neglected,
Orphaned or Abused Children
" ' (h) Operation of -
- Motor Vehicles upon
the Public Streets, Alleys, Roads and
Highways
i All Criminal Laws of the State of
Montana; and all Criminal Ordinances of
Cities and Towns with the Flathead
Indian Reservation.
"'Subsection 2. The effectiveness of Subsection
1 hereof is conditioned upon the following:'
" (a) Concurrent jurisdiction remains
(Where applicable with federal courts)
with a Tribal Court and in the Tribal
government of all matters referred to
Subsection 1; and any matter initiated
in either state or federal government
court or the tribal court shall be
completed and disposed of in that court
and shall not be subject to re-examination
in the courts of the other jurisdiction.
"(b) No person, once convicted of a
crime falling within the jurisdiction
of the state or federal government or the
tribes pursuant to this ordinance, shall
be punished for the identical acts of the
courts of the other jurisdiction, but shall
be accorded the doctrine of former
jeopardy as if the separate jurisdiction
were one.
"(c) This ordinance is subject to possible
referendum of the eligible voters of the
Confederated Tribes pursuant to Article
9 of the Constitution of Confederated
Tribes . . .
"(d) All jurisdiction of the Confederated
Tribes under the Constitutional bylaws
and ordinances enacted pursuant thereto
under the federal government of the United
States Criminal Code, to the extent not
expressly transferred by Subsection 1
hereof, remains the Confederated Tribes
and in the federal government respective
to the same extent as if this ordinance
had not been adopted.
"(el If any provision of the act of the
Montana Legislature of February 27, 1963
Laws of Montana 1963, Vol. 1, Chapter 81,
or of this ordinance shall be held invalid,
or if this ordinance be held to extend the
jurisdiction more extensive than set forth
 herein, or any condition herein not be
complied with or be held invalid or ineffect-
ive, then this entire ordinance shall be
held to be void and of no effect from the
beginning." (Emphasis added.)
The foregoing ordinance was adopted by the Tribal
Council of the Confederated Salish and Kootenai Tribes on
May 5, 1965. The governor of the State, the Honorable Tim
Babcock, on October 8, 1965 proclaimed under the provisions
of Ch. 81, Laws of Montana (1963), as follows:
"Now therefore, by the power vested in
me. as the aovernor of the State of Montana,
I,' Tim ~abcock,hereby proclaim that criminal
and civil jurisdiction - - State of Montana,
in the
and its subdivisions does extend to the
Confederated Salish and Kootenai Tribes as
expressed in their approved Ordinance No.
40-A (revised) . . .and I further declare
that 60 days from the date of October 8,
1965, such criminal and civil jurisdiction
as previously described shall be in full
force and effect." (Emphasis added.)
The Montana legislative action authorizing the governor to
proclaim jurisdiction and the adoption of Tribal Ordinance
40-A (Revised) occurred under and while Section 7 of Pub.L.
83-280 was in effect. It should be noted that this section
was repealed in Pub.L. 90-284 (1968), Title IV, Section
403(b). However the repealer expressly provided that the
repeal did not affect any cession made prior to the repeal.
For any viewpoint of construction, Tribal Ordinance 40-
A (Revised), as accepted and proclaimed by the governor of
Montana, includes a broad grant of concurrent jurisdiction.
The key language is that "[tlhe laws and jurisdiction in the
State of Montana, including the judicial system of the
State" are extended to "(h) Operation of Motor Vehicles upon
the Public Streets, Alleys, Roads, and Highways". Yet
Morigeau contends, as does amicus, that this language is
intended to grant only criminal jurisdiction over the
operation of motor vehicles and not civil jurisdiction.
Nothing can be found within the tribal ordinance consenting
to state jurisdiction or the governor's proclamation assuming
the same that limits or excludes state civil jurisdiction
over the operation of motor vehicles on state highways.
Morigeau also contends, and again so does amicus, that
subdivision ( h ) of the tribal ordinance is governed by
subdivision (i) of the same ordinance, which consents to
concurrent jurisdiction with the state as to all "criminal
laws of the State of Montana". However, the legislative
language of Tribal Ordinance 40-A (Revised), and its history
does not comport with this argument.
Tribal Ordinance 40-A of the Confederated Salish and
Kootenai Tribes was first passed on May 15, 1964. In the
original version, subdivision (i) of subsection 1 read as
follows :
"(i) Laws of the State of Montana and
ordinances and regulations of a criminal
nature applicable within incorporated
cities and towns."
Less than a year later on May 5, 1965, Tribal Ordinance
40-A (Revised) was passed by the Tribal Council amending
subdivision (i) so that it reads as we have set it forth
above in the first instance. It is obvious that the tribes,
in examining Tribal Ordinance 40-A, as it was first adopted,
decided that subdivision (i) was a broad grant of concurrent
jurisdiction to all the laws of the State of Montana, both
civil and criminal. That particular subdivision was amended
so that only criminal laws of the State of Montana were
included in subdivision (i). At the same time, however, the
language of subdivision (h) was left untouched. In other
words, the broad consent to concurrent jurisdiction by the
tribes as expressed in subdivision (h) remained and still
remains.
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 It is also obvious from the history of the act that the
whole subject of Tribal Ordinance 40-A, is a conkraversal
one on the reservation. We noted its stormy progress in
State ex rel. McDonald v. District Ct. of Fourth J. D. (19721,
159 Mont. 156, 496 P.2d 78, 80, where we said:
"Tribal consent to the assumption of criminal
jurisdiction by the state courts of Montana
over Indians committing crimes on the Flathead
Indian Reservation was granted by the enactment
of Tribal Ordinance 40-A, dated May 16,
1964. The governor of Montana thereafter
issued the required proclamation on June
30, 1964. Almost a year later on May 5, 1965
Tribal Ordinance 40-A (Revised) was enacted.
This Ordinance was similar to the odginal
Ordinance 40-A except for clarifying language
limiting its scope to criminal laws and
repealing the original Ordinance 40-A. The
governor of Montana thereafter issued another
proclamation accordingly dated October 8, 1965.
"Several months later on June 22, 1966, Tribal
Resolution 1973 was enacted expressly rescinding
Tribal Ordinances 40-A and 40-A (Revised). There
is no evidence that this Tribal Resolution was
ever transmitted to or received by the governor
of Montana; nor was any proclamation of the
governor made in connection with this Resolution.
On June 30, 1966 Tribal Resolution 1997 was
enacted which expressly rescinded Tribal Resolution
1973 enacted eight days previously. Again no
governor's proclamation was issued concerning
Tribal Resolution 1997.
"On September 15, 1967 Tribal Resolution 2318
was enacted requesting the governor of Montana
to extend the time limit for withdrawal from
state jurisdiction for an additional year after
October 7, 1967, and withdrawing its consent
to such state jurisdiction. It further provided
that this Tribal Resolution was null and void
if the governor extended such time limit as
requested. On October 8, 1967 the governor
issued a third proclamation extending the time
limit for the Tribe's withdrawal of their
consent to state jurisdiction for an additional
year from October 7, 1967.
"Finally, on April 30, 1971, the Tribal Council
passed a motion 'to seek retrocession on State
Concurrent Jurisdiction'. The record discloses
no further action in conformity with this motion."
159 Mont. at 160, 161, 496 P.2d at 80.
One of the features of Ch. 81, Laws of Montana (1963),
the legislative act which provided for the consent on the
part of the State of Montana to extend jurisdiction to the
Flathead Reservation is that statute provided that any
consent by an Indian tribe could be withdrawn within two
years of the date of the governor's proclamation. Such a
withdrawal has not occurred.
Morigeau and amicus contend flatly that Tribal Ordinance
40-A (Revised) does not extend state jurisdiction in tort
actions arising from the operation of motor vehicles on the
highway. They argue (1) the Tribal Court has exclusive
jurisdiction when a non-Indian sues an Indian on a reservation-
based claim; (2) that the tribes agreed only to limited
concurrent state civil jurisdiction not including tort
claims of the kind here in question; (3) tribal interpretation
Tribal
of/Ordinance 40-A (Revised) is against concurrent jurisdiction;
and (4) construction of Tribal Ordinance 40-A (Revised) to
include civil jurisdiction in tort-highway cases would
constitute an infringement upon tribal sovereignty.
In support of their arguments on the first contention,
that the tribe has exclusive jurisdiction, Morigeau and
amicus point out that this accident occurred in Indian
country; that the highways exist by virtue of easements
granted by the tribal authorities to the state and federal
governments; that the Flathead Tribal Court is a forum for
actions in tort available to non-Indians as well as to
Indians, and that the Tribal court has jurisdictional scope
to include tort actions such as the one here. Those points,
while significant in determining that the Tribal Court has
jurisdiction, do not necessarily point to exclusive juris-
diction in the Tribal Court. None of the cases cited by
Morigeau and amicus in support of those points hold or
require that only the Tribal Court of the Flathead Indian
Reservation, after the cession under Pub.L. 83-280, has
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exclusive jurisdiction of tort actions arising out of the
use of the highways on the reservation. As a matter of
fact, it appears that the Council of the Confederated Salish
and Kootenai Tribes voluntarily found it in their interest
to consent to such jurisdiction by the adoption of Tribal
Ordinance 40-A (Revised).
Another consideration argued by Morigeau and amicus is
that assumption of the State of civil jurisdiction in this
case would constitute an infringement on the tribes of self-
government. Again, this argument overlooks the point that
the Confederated Salish and Kootenai Tribes granted and the
State assumed civil and criminal jurisdiction to matters
involving the use of the highways within the borders of the
reservation. It is no more an infringement upon the tribal
sovereignty to grant civil and criminal jurisdiction in
highway cases than it is to grant civil and criminal jurisdiction
over cases of public welfare, domestic relations, juvenile
delinquency, and care of the infirmed, aged and afflicted,
all of which subjects involve tribal sovereignty and for all
of which the tribe granted consent to civil as well as
criminal jurisdiction in Tribal Ordinance 40-A (Revised).
As the tribal ordinance states, if the consent to civil
and criminal jurisdiction is ineffective as to one part, it
is ineffective as to all parts of the tribal ordinance.
It is too late now to pick and choose which parts of Tribal
Ordinance 40-A (Revised) will be binding and which parts
will not be binding. There are many economic, financial and
social advantages accruing to the tribes by virtue of their
consent. Those advantages have accompanying responsibilities
which, to make the system workable, must also be faced and
accepted.
 What we have said in the foregoing paragraphs con-
cerning the tribal claim of exclusive jurisdiction, touches
and controls also the tribal claims that the tribes agreed
only to limited concurrent state civil jurisdiction, not
including tort claims of the kind here in question, and that
construction of Tribal Ordinance 40-A (Revised) to include
civil jurisdiction in tort-highway cases, constitutes an
infringement upon tribal sovereignty. There remains for
discussion the claim of Morigeau and amicus that tribal
Tribal
interpretation of/Ordinance 40-A (Revised) is against state
court jurisdiction.
In support of their contention, Morigeau and amicus
point to our holding in Security State Bank v. Pierre (19731,
162 Mont. 298, 300, 511 P.2d 325, 327. There we said,
quoting State ex rel. Iron Bear v. District Court (19731,
162 Mont. 335, 512 P.2d 1292:
"Before a district court can assume juris-
diction in any matter submitted to it, it
must find subject matter jurisdiction by
determining: (1) whether the federal
treaties and statutes applicable have
preempted state jurisdiction; (2) whether
the exercise of state jurisdiction would
interfere with reservation self-government;
and (3) whether the Tribal Court is currently
exercising jurisdiction or has exercised
jurisdiction in such a manner as to preempt
state jurisdiction."
With respect to the first test stated in -- the
Iron Bear,
federal treaties and statutes have not in this case preempted
state jurisdiction, because Pub.L. 83-280 provided particularly
for the cession to and assumption by states of criminal
and/or civil jurisdiction on Indian lands within the state's
borders.
With respect to the second -- test, it is true
Iron Bear
that the assumption of either criminal or civil jurisdiction
by the state of matters arising within theexterior boundaries
of the Flathead Indian Reservation constitutes an inter-
ference with the powers of self-government conferred upon
the tribes, see Fisher v. District Court (1976), 424 U.S.
382, 387, 96 S.Ct. 943, 47 L.Ed.2d 106. Again, Pub.L.
83-280 contemplated such interference when it provided for
the assumption of criminal or civil jurisdiction by the
states.
It is with respect to the third test under --
Iron Bear
whether the Tribal Court has preempted jurisdiction, that
Morigeau and amicus have concentrated their attack. Amicus
has supplied us, through its briefs, with various certificates
showing the establishment of a judicial system on the
Flathead Reservation; the existence of a Tribal Court
comprised of one Chief Judge, one full time associate, and
two parttime associate judges; the Tribal Court has adjudicated
claims arising from automobile accidents involving non-
Indians versus Indian defendants relating to accidents
occurring on the reservation; the Tribal Court keeps records,
and that since 1975, 460 non-Indian plaintiffs have sued
Indian defendants in civil actions in the Tribal Court,
involving tort and contract claims against Indian defendants;
and various excerpts from the minutes of meetings of the
Tribal Council relating to the progress through the legislature
of House Bill 55, which became Ch. 81, Laws of Montana
(1963). Yet, all of this material shows not that the Tribal
Court is exercising exclusive jurisdiction, but rather is
exercising concurrent jurisdiction in these matters, insofar
as they are covered by Tribal Ordinance 40-A (Revised). The
Tribal Ordinance itself specifically speaks of concurrent
jurisdiction and it is important to note that Tribal Ordinance
40-A (Revised) includes the provision that any action commenced
and completed either in the Tribal Court or in the state on a
matter is covered by the ordinance becomes res judicata as
to the other court.
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 The record therefore does not support the application

of the third test under -- preemption by the Tribal
Iron Bear,
Court, because when the Tribal Court acts with respect to
causes covered by Tribal Ordinance 40-A (Revised), it is
acting concurrently, and not exclusively.
Both Morigeau and amicus point to Kennerly v. District
Court of Montana (1971), 400 U.S. 423, 91 S.Ct. 480, 27
L.Ed.2d 507, as controlling precedent for the present case.
Kennerly, however, is not in point because the legislature
there had not taken affirmative action as required under
Pub.L. 83-280. Nor does our decision in Security State
Bank v. Pierre, supra, control this case because in Security
State --
Bank, the action was for the collection of a note
entered into on the Flathead Reservation between an Indian
member of the tribes residing on the Reservation and a
nonmember bank. Such a commercial transaction is not one of
the subjects over which the state assumes jurisdiction
through Tribal Ordinance 40-A (Revised).
One other suggestion contained in Morigeau's reply
brief should be discussed. Morigeau contends that this case
involves an interpretation of tribal law and that therefore,
under principles of comity, this Court should abstain from a
decision until the Tribal Court on the Flathead Reservation
has interpreted the extent of civil jurisdiction ceded under
subdivision (h) of Tribal Ordinance 40-A (Revised).
Abstention, Morigeau contends, would reduce "inter-
governmental friction" likening the "competing interests"
both of the state and the tribes to a "Pullman-type abstention
situation" (Railroad Comm'n v. Pullman Co. (1941), 312 U.S.
496, 61 S.Ct. 643, 85 L.Ed.2d 971). Florigeau also points
out that in Fisher, 424 U.S. 382, 384, the United States
Supreme Court noted that the Montana District Court had
first referred the jurisdictional question to the Appellate
Court of the Northern Cheyenne Tribe for decision.
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 Of course, in Fisher, supra, the dispute was completely
between Indian members of the Northern Cheyenne Tribe.
Moreover, the Appellate Court of the Northern Cheyenne
Tribe, in Fisher, specifically did not decide whether the
tribal court had jurisdiction of adoption by nonmembers of a
member of a tribe. (See 424 U.S. at 384, n. 6 . )
We are not disposed to follow the federal system of
abstention in this matter. First, such abstention would in
this case simply leave the parties as they were at the close
of the District Court proceedings. Morigeau is entitled to
a final decision by this Court as to the validity of the
judgment held by Larrivee against him. Secondly, the
sovereign state of Montana is entitled in the least to an
equal say in the interpretation of an agreement to which its
full consent was necessary. It would be strange indeed if
the state should agree to be bound by such interpretation of
its consent as the other party chose to give it.
We therefore hold that the District Court had subject
matter jurisdiction in this case through Tribal Ordinance
40-A (Revised); Ch. 81, Laws of Montana (1963), and Pub.
L. 83-280, 6 7 Stat. 588 (1953).
This ruling is limited in effect, of course, to the
Flathead Indian Reservation. This holding has no reference
to the reasons cited by the District Court for upholding

jurisdiction.
Af firmed.
 We Concur:

Chief Justice

..............................
Justices

Mr. Justice Daniel J. Shea will file his dissent at a later

time .