The North Dakota statute (Chapter 27-19) governing the Indian
civil jurisdiction of the state courts provides that jurisdiction
shall extend "over all civil causes of action which arise on an
Indian reservation upon acceptance by Indian citizens." North
Dakota's Enabling Act provides that all Indian land "shall remain
under the absolute jurisdiction and control of Congress."
Petitioner Indian Tribe, which had not accepted state civil
jurisdiction under Chapter 27-19, employed respondent Wold
Engineering (hereafter respondent) to design and build a water
supply system on petitioner's reservation in North Dakota. When the
project was completed, it did not perform to petitioner's
satisfaction, and petitioner sued respondent in a North Dakota
state court for negligence and breach of contract. At the time suit
was filed, petitioner's tribal court did not have jurisdiction over
a claim by an Indian against a non-Indian in the absence of an
agreement by the parties. Although the subject matter of
petitioner's complaint was within the general scope of the state
court's jurisdiction, that court granted respondent's motion to
dismiss the complaint on the ground that the court lacked subject
matter jurisdiction over any claim arising in Indian country,
including a claim by an Indian against a non-Indian. The North
Dakota Supreme Court affirmed. Interpreting Chapter 27-19 to
disclaim state court jurisdiction over a claim against a non-Indian
by an Indian tribe that had not accepted jurisdiction under the
statute, the court determined that the North Dakota Legislature had
disclaimed jurisdiction pursuant to the federal statute (Pub.L.
280) governing state jurisdiction over Indian country and that such
disclaimer, because it had been authorized by Pub.L. 280, did not
violate either the North Dakota or Federal Constitution. The court
rejected petitioner's argument that the jurisdiction that it had
recognized in
Vermillion v. Spotted Elk, 85 N.W.2d
432 wherein it was held that the existing jurisdictional
disclaimers in the State's Enabling Act and Constitution foreclosed
civil jurisdiction over Indian country only in cases involving
interests in Indian lands themselves -- had not been extinguished
altogether, and that the North Dakota courts possessed "residuary
jurisdiction" over a claim by an Indian against a non-Indian
following the enactment of Pub.L. 280 and the Civil Rights Act of
1968, which amended
Page 467 U. S. 139
Pub.L. 280 to require that all subsequent assertions of
jurisdiction be preceded by tribal consent. The court also rejected
petitioner's argument that to prohibit a suit such as petitioner's
would violate the Equal Protection Clause of the Fourteenth
Amendment and deny petitioner equal access to the courts in
violation of the North Dakota Constitution.
Held:
1. No federal law or policy required the North Dakota courts to
forgo in this case the jurisdiction recognized in
Vermillion,
supra. Pp.
467 U. S.
147-151.
(a) The exercise of state court jurisdiction in this case would
not interfere with the right of tribal Indians to govern themselves
under their own laws. As a general matter, tribal self-government
is not impeded when a State allows an Indian to seek relief against
a non-Indian concerning a claim arising in Indian country. The
exercise of state jurisdiction is particularly compatible with
tribal autonomy when, as here, the suit is brought by the tribe
itself and the tribal court lacked jurisdiction over the claim at
the time the suit was instituted. Pp.
467 U. S.
147-149.
(b) Nor would the exercise of state jurisdiction here be
inconsistent with the federal and tribal interests reflected in
North Dakota's Enabling Act or in Pub.L. 280. The legislative
record suggests only that the Enabling Act's phrase "absolute
[congressional] jurisdiction and control" was meant to foreclose
state regulation and taxation of Indians and their lands, not that
Indians were to be prohibited from entering state courts to pursue
judicial remedies against non-Indians. Public Law 280 does not
either require North Dakota to disclaim the basic jurisdiction
recognized in
Vermillion or authorize it to do so. Nothing
in Pub.L. 280's language or legislative history indicates that it
was meant to divest States of preexisting and otherwise lawfully
assumed jurisdiction. Pp.
467 U. S.
149-151.
2. Where it is uncertain whether the North Dakota Supreme
Court's interpretation of Chapter 27-19 rested on a misconception
of federal law, its judgment will be vacated, and the case will be
remanded to that court for reconsideration of the state law
question. Pp.
467 U. S.
151-158.
(a) The court's incorrect assumption that Pub.L. 280 and the
Civil Rights Act of 1968 either authorized North Dakota to disclaim
jurisdiction or affirmatively forbade the exercise of jurisdiction
absent tribal consent appears to have been the sole basis relied
upon by the court to avoid holding the jurisdictional disclaimer
unconstitutional as applied in this case. Pp.
467 U. S.
154-155.
(b) The manner in which the court rejected the availability of
"residuary jurisdiction" leaves open the possibility that, despite
the court's references to state law, it regarded federal law as an
affirmative
Page 467 U. S. 140
bar to the exercise of jurisdiction here and interpreted state
law to avoid a perceived conflict. Pp.
467 U. S.
155-157.
(c) The conclusion that the North Dakota Supreme Court's state
law decision may have rested on federal law is buttressed by
prudential considerations. If that court is not given an
opportunity to reconsider its conclusions with the proper
understanding of federal law, this Court, contrary to the
fundamental rule that it will not reach constitutional questions in
advance of the necessity of deciding them, will be required to
decide whether North Dakota has denied petitioner equal protection
under the Fourteenth Amendment. Pp.
467 U. S.
157-158.
321
N.W.2d 510, vacated and remanded.
BLACKMUN, J., delivered the opinion of the Court, in which
BURGER, J. and BRENNAN, WHITE, MARSHALL, POWELL, and O'CONNOR, JJ.,
joined. REHNQUIST, J., filed a dissenting opinion, in which
STEVENS, J., joined,
post, p.
467 U. S.
159.
JUSTICE BLACKMUN delivered the opinion of the Court.
This litigation presents issues of state court civil
jurisdiction over a claim asserted by an Indian tribe. The case, as
it comes to us, is somewhat unusual in a central respect: the Tribe
seeks, rather than contests, state court jurisdiction, and the
non-Indian party is in opposition.
Cf. Williams v. Lee,
358 U. S. 217
(1959).
Chapter 27-19 of the North Dakota Century Code (1974) is
entitled "Indian Civil Jurisdiction." Section 27-19-01 of that
Page 467 U. S. 141
Code provides that the jurisdiction of North Dakota courts shall
extend "over all civil causes of action which arise on an Indian
reservation upon acceptance by Indian citizens." In this case, the
Supreme Court of North Dakota interpreted Chapter 27-19 to disclaim
state court jurisdiction over a claim (against a non-Indian) by an
Indian Tribe that had not accepted jurisdiction under the statute.
The court determined that the North Dakota Legislature had
disclaimed jurisdiction pursuant to the principal federal statute
governing state jurisdiction over Indian country, namely, the Act
of Aug. 15, 1953, 67 Stat. 588, as amended, 28 U.S.C. § 1360,
commonly known as Pub.L. 280. The court further concluded that the
jurisdictional disclaimer, inasmuch as it was authorized by Pub.L.
280, did not run afoul of the North Dakota or Federal
Constitutions. Because the North Dakota Supreme Court's
interpretation of Chapter 27-19 and its accompanying constitutional
analysis appear to us to rest on a possible misunderstanding of
Pub.L. 280, we vacate the court's judgment and remand the case to
allow reconsideration of the jurisdictional questions in the light
of what we feel is the proper meaning of the federal statute.
I
A. Petitioner Three Affiliated Tribes of the Fort Berthold
Reservation is a federally recognized Indian Tribe with its
reservation in northwestern North Dakota. Act of Mar. 3, 1891, ch.
543, § 23, 26 Stat. 1032.
See City of New Town v. United
States, 454 F.2d 121 (CA8 1972). In 1974, petitioner employed
respondent Wold Engineering, P. C. (hereafter respondent), a North
Dakota corporation, to design and build the Four Bears Water System
Project, a water supply system located wholly within the
reservation. The project was completed in 1977, but it did not
perform to petitioner's satisfaction.
In 1980, petitioner sued respondent in a North Dakota state
court for negligence and breach of contract. At the time the suit
was filed, petitioner's tribal court did not have
Page 467 U. S. 142
jurisdiction over a claim by an Indian against a non-Indian in
the absence of an agreement by the parties. Tribal Code, ch. II, §
1(a). [
Footnote 1] The subject
matter of petitioner's complaint, however, clearly fell within the
scope of the state trial court's general jurisdiction.
See
N.D.Const., Art. VI, § 8; N.D.Cent.Code § 27-05-06 (1974 and
Supp.1983). After counterclaiming for petitioner's alleged failure
to complete its payments on the water supply system, respondent
moved to dismiss petitioner's complaint on the ground that the
trial court lacked subject matter jurisdiction over any claim
arising in Indian country.
B. At this point, in order to place respondent's jurisdictional
argument in perspective, it is desirable to review the somewhat
erratic course of federal and state law governing North Dakota's
jurisdiction over the State's Indian reservations. Long before
North Dakota became a State, this Court had recognized the general
principle that Indian territories were beyond the legislative and
judicial jurisdiction of state governments.
Worcester
v. Georgia, 6 Pet. 515 (1832);
see generally
Williams v. Lee, 358 U.S. at
358 U. S.
218-222. That principle was reflected in the federal
statute that granted statehood to North Dakota. Like many other
other States in the Midwest and West, [
Footnote 2] North Dakota was required to "disclaim all
right and title . . . to all lands lying within [the State] owned
or held by any Indian or Indian tribes" as a condition for
admission to the Union. Enabling Act of Feb. 22, 1889, § 4, cl. 2,
25 Stat. 677. The Act further provided that all such Indian land
shall
"remain subject to the disposition of the United States, and . .
. shall remain under the absolute jurisdiction and control of the
Congress of the United
Page 467 U. S. 143
States."
Ibid. North Dakota's original Constitution contained,
in identical terms, the required jurisdictional disclaimers.
See N.D. Const., Art. XVI, § 203, cl. 2 (1889).
Federal restrictions on North Dakota's jurisdiction over Indian
country, however, were substantially eliminated in 1953 with the
enactment of the aforementioned Pub.L. 280.
See generally
Washington v. Yakima Indian Nation, 439 U.
S. 463,
439 U. S.
471-474 (1979). [
Footnote 3] Sections 2 and 4 of Pub.L. 280 gave five
States full jurisdiction, with a stated minor exception as to each
of two States, over civil and criminal actions involving Indians
and arising in Indian country. 67 Stat. 588-589, codified, as
amended, at 18 U.S.C. § 1162 and 28 U.S.C. § 1360, respectively.
Sections 6 and 7 gave all other States the option of assuming
similar jurisdiction. Section 6 authorized States whose
constitutions and statutes contained federally imposed
jurisdictional restraints, like North Dakota's, to amend their laws
to assume jurisdiction. 67 Stat. 590, codified, as amended, at 25
U.S.C. § 1324. Section 7 provided similar federal consent to any
other State not having civil and criminal jurisdiction, but
required such States to assume jurisdiction through "affirmative
legislative action." 67 Stat. 590. As originally enacted, Pub.L.
280 did not require States to obtain the consent of affected Indian
tribes before assuming jurisdiction over them. Title IV of the
Civil Rights Act of 1968 amended Pub.L. 280, however, to require
that all subsequent assertions of jurisdiction be preceded by
tribal consent. Pub.L. 90-284, §§ 401, 402, 406, 82 Stat. 78-80,
codified at 25 U.S.C. §§ 1321, 1322, 1326.
Even before North Dakota moved to amend its Constitution and
assume full jurisdiction under Pub.L. 280, the North Dakota Supreme
Court had taken an expansive view of the scope of state court
jurisdiction over Indians in Indian
Page 467 U. S. 144
country. In 1957, the court held that the existing
jurisdictional disclaimers in the Enabling Act and the State's
Constitution foreclosed civil jurisdiction over Indian country only
in cases involving interests in Indian lands themselves.
Vermillion v. Spotted Elk, 85 N.W.2d
432. The following year, 1958, North Dakota amended its
Constitution to authorize its legislature to "provid[e] for the
acceptance of such jurisdiction [over Indian country] as may be
delegated to the State by Act of Congress." N.D. Const., Art. XIII,
§ 1, cl. 2. Finally, in 1963, the North Dakota Legislature enacted
Chapter 27-19, the principal section of which provides:
"In accordance with the provisions of Public Law 280 . . . and
[the amended] North Dakota constitution, jurisdiction of the state
of North Dakota shall be extended over all civil causes of action
which arise on an Indian reservation upon acceptance by Indian
citizens in a manner provided by this chapter. Upon acceptance the
jurisdiction of the state shall be to the same extent that the
state has jurisdiction over other civil causes of action, and those
civil laws of this state that are of general application to private
property shall have the same force and effect within such Indian
reservation or Indian country as they have elsewhere within this
state."
N.D.Cent.Code § 27-19-01 (1974).
On their face, both the 1958 amendment to the North Dakota
Constitution and Chapter 27-19 appear to expand preexisting state
jurisdiction over Indian country, rather than to contract it. In
In re Whiteshield, 124 N.W.2d
694 (1963), however, the North Dakota Supreme Court reached the
conclusion that Chapter 27-19 actually disclaimed all jurisdiction
over claims arising in Indian country absent Indian consent. In
subsequent decisions, that court adhered to its general view that,
without Indian consent, "the State has no jurisdiction over any
civil cause arising on an Indian reservation in this State."
White Eagle v. Dorgan, 209 N.W.2d
621, 623
Page 467 U. S. 145
(1973). [
Footnote 4] In each
case in which the North Dakota Supreme Court declined to recognize
jurisdiction, however, the defendant was an Indian; the court never
had held squarely that an Indian could not maintain an action
against a non-Indian in state court for a claim arising in Indian
country. [
Footnote 5]
C. Respondent's motion to dismiss rested on the restrictive
jurisdictional principles of
Whiteshield and its
successors. Because the petitioner Tribe at no point has consented
to state court jurisdiction under Chapter 27-19 over the Fort
Berthold Reservation, respondent argued that the trial court lacked
jurisdiction over petitioner's claim under Chapter 27-19 and the
amended provisions of Pub.L. 280. Petitioner opposed respondent's
motion to dismiss on the ground,
inter alia, that the
tribal consent requirements of the Civil Rights Act of 1968 were
not meant to apply to a suit brought by a tribal government like
petitioner. The trial court rejected petitioner's arguments and
granted the motion to dismiss the suit for lack of jurisdiction,
but did so without prejudice to a renewal of the action following
compliance with the state and federal consent requirements. App. to
Pet. for Cert. la.
On appeal, the North Dakota Supreme Court affirmed.
321 N.W.2d
510 (1982). Petitioner argued that the jurisdiction recognized
in
Vermillion had not been extinguished altogether, and
that the North Dakota courts possessed "residuary jurisdiction"
over a claim by an Indian against a non-Indian following the
enactment of Pub.L. 280 and the Civil Rights Act of 1968. The court
rejected this argument, adhering instead to its conclusion in
Nelson v. Dubois, 232
Page 467 U. S. 146
N.W.2d 54 (1975), that any residuary jurisdiction was preempted
by the tribal consent requirements contained in the Civil Rights
Act of 1968. After reviewing the history of North Dakota's
jurisdiction over Indian country, the court reaffirmed its prior
holdings, observing that
"we have no jurisdiction over civil causes of action arising
within the exterior boundaries of an Indian reservation, unless the
Indian citizens of the reservation vote to accept
jurisdiction."
321 N.W.2d at 512.
The court also rejected petitioner's argument that to prohibit
an Indian plaintiff from suing a non-Indian in state court for a
claim arising on an Indian reservation would violate the Equal
Protection Clause of the Fourteenth Amendment and deny petitioner
equal access to the courts, in violation of the North Dakota
Constitution. [
Footnote 6] The
court relied on
Washington v. Yakima Indian Nation,
439 U. S. 463
(1979), in which this Court rejected an equal protection challenge
to a state jurisdictional statute that relied on tribal
classifications. In
Yakima Indian Nation, the Court held
that the unique legal status of Indian tribes under federal law
permitted the Federal Government to single out tribal Indians in
ways that otherwise might be unconstitutional, and that the state
jurisdictional statute at issue there was insulated from strict
scrutiny under the Equal Protection Clause, because it was enacted
under the authority of Pub.L. 280. 439 U.S. at
439 U. S.
499-502. The North Dakota Supreme Court concluded:
"Likewise, the people of North Dakota and the legislature were
acting under explicit authority granted by Congress in the exercise
of its federal power over Indians when our Constitution
Page 467 U. S. 147
was amended and Chapter 27-19 . . . was enacted."
321 N.W.2d at 513. As a result, any discrimination against
Indian litigants did not violate the State or Federal
Constitutions.
Ibid.
Because of the complexity and importance of the issue posed by
the North Dakota Supreme Court's decision, we granted certiorari.
461 U.S. 904 (1983).
II
Respondent does not dispute that petitioner's claim comes within
the scope of the civil jurisdiction recognized by the North Dakota
court in its Vermillion ruling in 1957. Respondent advances two
arguments in support of the North Dakota Supreme Court's conclusion
that state court jurisdiction no longer extends so far. The first
is that federal law precludes the state courts from asserting
jurisdiction over petitioner's claim. The second is that,
regardless of federal law, the North Dakota Supreme Court has held
that the trial court lacked jurisdiction as a matter of state law.
We address these arguments in turn.
A
Although this Court has departed from the rigid demarcation of
state and tribal authority laid down in 1832 in
Worcester
v. Georgia, 6 Pet. 515, the assertion of state
authority over tribal reservations remains subject to "two
independent but related barriers."
White Mountain Apache Tribe
v. Bracker, 448 U. S. 136,
448 U. S. 142
(1980). First, a particular exercise of state authority may be
foreclosed because it would undermine "
the right of reservation
Indians to make their own laws and be ruled by them.'"
Ibid., quoting Williams v. Lee, 358 U.S. at
358 U. S. 220.
Second, state authority may be preempted by incompatible federal
law. White Mountain, 448 U.S. at 448 U. S. 142.
Accord, New Mexico v. Mescalero Apache Tribe, 462 U.
S. 324, 462 U. S. 334,
and n. 16 (1983); Ramah Navajo School Board, Inc. v. Bureau of
Revenue, 458 U. S. 832,
458 U. S.
837-838 (1982); McClanahan v. Arizona State
Tax Comm'n,
Page 467 U. S. 148
411 U. S. 164,
411 U. S. 179
(1973). We do not believe that either of these barriers precludes
North Dakota courts from entertaining a civil action by an Indian
tribe against a non-Indian for a claim arising on an Indian
reservation.
Despite respondent's arguments, we fail to see how the exercise
of state court jurisdiction in this case would interfere with the
right of tribal Indians to govern themselves under their own laws.
To be sure, the full breadth of state court jurisdiction recognized
in
Vermillion cannot be squared with principles of tribal
autonomy; to the extent that
Vermillion permitted North
Dakota state courts to exercise jurisdiction over claims by
non-Indians against Indians or over claims between Indians, it
intruded impermissibly on tribal self-governance.
See Fisher v.
District Court, 424 U. S. 382
(1976);
Williams v. Lee, supra. This Court, however,
repeatedly has approved the exercise of jurisdiction by state
courts over claims by Indians against non-Indians, even when those
claims arose in Indian country.
See McClanahan v. Arizona State
Tax Comm'n, 411 U.S. at
411 U. S. 173
(dictum);
Poafpybitty v. Skelly Oil Co., 390 U.
S. 365 (1968);
Williams v. Lee, 358 U.S. at
358 U. S. 219
(dictum);
United States v. Candelaria, 271 U.
S. 432,
271 U. S. 444
(1926);
Felix v. Patrick, 145 U.
S. 317,
145 U. S. 332
(1892);
Fellows v.
Blacksmith, 19 How. 366 (1857). [
Footnote 7] The interests implicated in such
cases are very different from those present in
Williams v.
Lee, where a non-Indian sued an Indian in state court for
debts incurred in Indian country, or in
Fisher v. District
Court, where this Court held that a tribal court had exclusive
jurisdiction over an adoption proceeding in which all parties were
tribal Indians residing on a reservation. As a general matter,
tribal self-government is not impeded when a State allows an Indian
to enter its courts
Page 467 U. S. 149
on equal terms with other persons to seek relief against a
non-Indian concerning a claim arising in Indian country. The
exercise of state jurisdiction is particularly compatible with
tribal autonomy when, as here, the suit is brought by the tribe
itself and the tribal court lacked jurisdiction over the claim at
the time the suit was instituted.
Neither are we persuaded that the exercise of state jurisdiction
here would be inconsistent with the federal and tribal interests
reflected in North Dakota's Enabling Act or in Pub.L. 280. As for
the disclaimer provisions of the Enabling Act, the presence or
absence of specific jurisdictional disclaimers rarely has had
controlling significance in this Court's past decisions about state
jurisdiction over Indian affairs or activities on Indian lands.
Arizona v. San Carlos Apache Tribe, 463 U.
S. 545,
463 U. S. 562
(1983);
see F. Cohen, Handbook of Federal Indian Law 268
(1982 ed.). [
Footnote 8] In
this case, the sparse legislative record suggests only that the
Enabling Act's phrase "absolute [congressional] jurisdiction and
control" was meant to foreclose state regulation and taxation of
Indians and their lands, not that Indians were to be prohibited
from entering state courts to pursue judicial remedies against
non-Indians.
See H.R.Rep. No. 1025, 50th Cong., 1st Sess.,
8-9, 24 (1888). To the extent that the disclaimer language of the
Enabling Act may be regarded as ambiguous, moreover, it is a
settled principle of statutory construction that statutes passed
for the benefit of dependent Indian tribes are to be liberally
construed, with doubtful expressions being resolved in favor of the
Indians.
See, e.g., Bryan v. Itasca County, 426 U.
S. 373,
426 U. S. 392
(1976);
Alaska Pacific Fisheries v. United States,
248 U. S. 78,
248 U. S. 89
(1918). It would be contrary to this principle to resolve any
ambiguity in the
Page 467 U. S. 150
language of the Enabling Act in favor of a construction under
which North Dakota could not provide a judicial forum for an Indian
to obtain relief against a non-Indian.
We also cannot subscribe to the view that Pub.L. 280 either
required North Dakota to disclaim the basic jurisdiction recognized
in
Vermillion or authorized it to do so. This Court
previously has recognized that Pub.L. 280 was intended to
facilitate, rather than to impede, the transfer of jurisdictional
authority to the States.
Washington v. Yakima Indian
Nation, 439 U.S. at
439 U. S. 490;
see also Bryan v. Itasca County, 426 U.S. at
426 U. S.
383-390. Nothing in the language or legislative history
of Pub.L. 280 indicates that it was meant to divest States of
preexisting and otherwise lawfully assumed jurisdiction. [
Footnote 9] Section 6 of the federal
statute authorized a State whose enabling Act and constitution
contained jurisdictional disclaimers "to remove any legal
impediment to the
assumption of civil and criminal
jurisdiction" (emphasis added). 67 Stat. 590, codified, as amended,
at 25 U.S.C. § 1324. Similarly, § 7 gave congressional consent to
the assumption of jurisdiction by any other State "not having
jurisdiction." 67 Stat. 590. By their terms, therefore, both § 6
and § 7 were designed to eliminate obstacles to the assumption of
jurisdiction, rather than to require preexisting jurisdiction to be
disclaimed. Although the Civil Rights Act of 1968 amended Pub.L.
280 by adding tribal consent requirements, those requirements were
not made retroactive; [
Footnote
10] the 1968 amendments therefore did not displace jurisdiction
previously
Page 467 U. S. 151
assumed under Pub.L. 280, much less jurisdiction assumed prior
to and apart from Pub.L. 280. Similarly, while Pub.L. 280
authorized States to assume partial, rather than full, civil
jurisdiction,
see Washington v. Yakima Indian Nation, 439
U.S. at
439 U. S.
493-499, nothing in Pub.L. 280 purports to authorize
States to disclaim preexisting jurisdiction. Indeed, the Civil
Rights Act of 1968 granted States the authority to retrocede
jurisdiction acquired under Pub.L. 280 precisely because Pub.L. 280
itself did not authorize such jurisdictional disclaimers. [
Footnote 11]
In sum, then, no federal law or policy required the North Dakota
courts to forgo the jurisdiction recognized in
Vermillion
in this case. If the North Dakota Supreme Court's jurisdictional
ruling is to stand, it must be shown to rest on state, rather than
federal, law.
B
This Court concededly has no authority to revise the North
Dakota Supreme Court's interpretation of state jurisdictional law.
Only last Term, in
Arizona v. San Carlos Apache Tribe,
supra, we noted that,
"to the extent that a claimed bar to state jurisdiction . . . is
premised on the respective State Constitutions, that is a question
of state law over which the state courts have binding
authority."
463 U.S. at
463 U. S. 561.
That principle is equally applicable, of course, with respect to
jurisdictional bars grounded in state statutes. If the North Dakota
Supreme Court's decision that the trial court lacked jurisdiction
in this case rested solely on state law, the only remaining issue
before this Court would be petitioner's argument
Page 467 U. S. 152
that the jurisdictional disclaimer here violates petitioner's
federal constitutional rights. [
Footnote 12]
It is equally well established, however, that this Court retains
a role when a state court's interpretation of state law has been
influenced by an accompanying interpretation of federal law. In
some instances, a state court may construe state law narrowly to
avoid a perceived conflict with federal statutory or constitutional
requirements.
See, e.g., United Air Lines, Inc. v. Mahin,
410 U. S. 623,
410 U. S.
630-632 (1973);
State Tax Comm'n v. Van Cott,
306 U. S. 511,
306 U. S.
513-515 (1939);
Red Cross Line v. Atlantic Fruit
Co., 264 U. S. 109,
264 U. S. 120
(1924);
see also San Diego Building Trades Council v.
Garmon, 353 U. S. 26
(1957). In others, in contrast, the state court may construe state
law broadly in the belief that federal law poses no barrier to the
exercise of state authority.
See, e.g., Standard Oil Co. v.
Johnson, 316 U. S. 481
(1942). In both categories of cases, this Court has reviewed the
federal question on which the state law determination appears to
have been premised. If the state court has proceeded on an
incorrect perception of federal law, it has been this Court's
practice to vacate the judgment of the state court and remand the
case so that the court may reconsider the state law question free
of misapprehensions about the scope of federal law. [
Footnote 13]
Page 467 U. S. 153
Here, a careful reading of the North Dakota Supreme Court's
opinion leaves us far from certain that the court's present
interpretation of Chapter 27-19 does not rest on a misconception of
federal law. In determining the role played by that court's
understanding of federal law, we are guided by the jurisdictional
principles that have come to govern our calculation of adequate and
independent state grounds. In
Michigan v. Long,
463 U. S. 1032
(1983), this Court ruled that
"when . . . a state court decision fairly appears . . . to be
interwoven with the federal law, and when the adequacy and
independence of any possible state law ground is not clear from the
face of the opinion, we will accept as the most reasonable
explanation that the state court decided the case the way it did
because it believed that federal law required it to do so."
Id. at
463 U. S.
1040-1041. Although petitioner's constitutional
challenge to the North Dakota Supreme Court's judgment means that
we do not face a question of our own jurisdiction,
see Standard
Oil Co. v. Johnson, 316 U.S. at
316 U. S.
482-483, we believe that the same general interpretive
principles properly apply here. The North Dakota Supreme Court's
opinion does state that the North Dakota Legislature "totally
disclaimed jurisdiction over civil causes of action arising on an
Indian reservation," but it adds that the legislature did so
"pursuant to Public Law 280," "[u]nder the authority of Public Law
280," and "under explicit authority granted by Congress in the
exercise of its federal power over Indians." 321 N.W.2d at 511,
513. There are at least two respects in which these references and
other language in the court's opinion leave it far less than clear
that the North Dakota
Page 467 U. S. 154
Supreme Court's interpretation of Chapter 27-19 was not
influenced by its understanding of federal law.
First, the court's treatment of petitioner's constitutional
claims strongly suggests that the court's underlying interpretation
of Chapter 27-19 would have been different if the court had
realized from the outset that federal law does not insulate the
present jurisdictional disclaimer from state and federal
constitutional scrutiny. While we express no view about the merits
of petitioner's federal equal protection challenge, we note that
the North Dakota Supreme Court rejected petitioner's state and
federal constitutional claims not because it viewed them as
otherwise meritless, but because
"the people of North Dakota and the legislature were acting
under explicit authority granted by Congress in the exercise of its
federal power over Indians"
in disclaiming state jurisdiction. 321 N.W.2d at 513. The court
had proceeded on a similar assumption before; in
Gourneau v.
Smith, 207 N.W.2d
256 (1973), for example, the court rejected an Indian
plaintiff's jurisdictional claim based on the "open courts"
provision of N.D. Const. Art. I, § 9, because the tribal consent
requirements of the Civil Rights Act of 1968 were taken to
foreclose jurisdiction:
"The courts of the State of North Dakota are open to all
persons. But . . . Federal law prohibits State courts from assuming
jurisdiction of civil actions involving Indians which arise on an
Indian reservation, until such time as the Indians of that
reservation have consented to such jurisdiction. Thus the courts of
the State of North Dakota are open to Indians, if they consent to
the courts' jurisdiction as provided by law."
207 N.W.2d at 259. The assumption that Pub.L. 280 and the Civil
Rights Act of 1968 either authorized North Dakota to disclaim
jurisdiction or affirmatively forbade the exercise of jurisdiction
absent tribal consent is incorrect, for the reasons given above.
That assumption, however, appears to have been the sole basis
relied on by the North Dakota Supreme Court to avoid
Page 467 U. S. 155
holding the jurisdictional disclaimer unconstitutional as
applied in this case. Because the North Dakota Supreme Court has
adhered consistently to the policy of construing state statutes to
avoid potential state and federal constitutional problems,
see,
e.g., State v. Kottenbroch, 319 N.W.2d
465, 473 (1982);
Paluck v. Board of County
Comm'rs, 307 N.W.2d
852, 856 (1981);
Grace Lutheran Church v. North Dakota
Employment Security Bureau, 294 N.W.2d
767, 772 (1980);
North American Coal Corp. v.
Huber, 268 N.W.2d
593, 596 (1978);
Tang v. Ping, 209 N.W.2d
624, 628 (1973), it is entirely possible that the court would
have avoided any constitutional question by construing Chapter
27-19 not to disclaim jurisdiction here, and it is equally possible
that the court will reconstrue Chapter 27-19 that way if it is
given an opportunity to do so.
Second, the manner in which the court rejected the availability
of "residuary jurisdiction" leaves open the possibility that,
despite the court's references to state law, the court regarded
federal law as an affirmative bar to the exercise of jurisdiction
here. The court stated:
"In essence, [petitioner] argues that North Dakota retained
residuary jurisdiction over actions brought by Indians against
non-Indians for civil wrongs committed on Indian lands. . . . That
argument would be more convincing had the legislature of North
Dakota not, pursuant to Public Law 280, totally disclaimed
jurisdiction over civil causes of action arising on an Indian
reservation.
In re Whiteshield, 124 N.W.2d
694 (N.D.1963). In
Nelson v. Dubois, 232 N.W.2d
54 (N.D.1975), . . .
we rejected the concept of 'residuary'
jurisdiction. We adhere to that decision today."
321 N.W.2d at 511 (emphasis added).
The court's reliance on
Nelson v. Dubois is suggestive,
because
Dubois itself turned aside an attempt to invoke
state court jurisdiction over Indian country on the ground that
federal law barred the exercise of jurisdiction. Specifically,
Page 467 U. S. 156
the court held that it did not have "residuary jurisdiction"
over a suit by non-Indians against Indians, even if the exercise of
jurisdiction were assumed not to infringe on tribal self-governance
under
Williams v. Lee, because the tribal consent
provisions of the Civil Rights Act of 1968 preempted any exercise
of state jurisdiction except in accordance with the terms of that
Act. 232 N.W.2d at 57-59. The court recognized that its holding
deprived the plaintiffs of any forum for their suit, but added:
"The solution to this most serious problem lies not with the
State. Congress may amend its statutes; Indian tribes of this State
may begin to assert their own jurisdiction. This State cannot
exercise jurisdiction that it does not possess."
Id. at 59. [
Footnote
14]
As noted above, the Civil Rights Act of 1968 in no way bars the
exercise of jurisdiction in this case. The court's reliance on
Nelson v. Dubois to dismiss petitioner's
jurisdictional
Page 467 U. S. 157
claim suggests, however, that the court was proceeding on a
contrary premise. In that event, it may well have adopted a
restrictive interpretation of Chapter 27-19 to avoid a perceived
conflict between state and federal jurisdictional mandates.
[
Footnote 15] By the same
token,
Nelson v. Dubois itself suggests that the court
might recognize some measure of "residuary jurisdiction" here but
for the mistaken belief that a federal jurisdictional impediment
exists. Because we cannot exclude this possibility with any degree
of confidence, the prudent course is to give the North Dakota
Supreme Court an opportunity to express its views on Chapter 27-19,
and thereby
"avoid the risk of 'an affirmance of a decision which might have
been decided differently if the court below had felt free, under
our decisions, to do so.'"
United Air Lines, Inc. v. Mahin, 410 U.S. at
410 U. S. 632,
quoting
Perkins v. Benguet Consolidated Mining Co.,
342 U. S. 437,
342 U. S. 443
(1952).
Our conclusion that the North Dakota Supreme Court's state law
decision may well have rested on federal law is buttressed by
prudential considerations. Were we not to give the North Dakota
Supreme Court an opportunity to reconsider its conclusions with the
proper understanding of federal law, we would be required to decide
whether North Dakota has denied petitioner equal protection under
the Fourteenth Amendment by excluding it from state courts in a
circumstance in which a non-Indian would be allowed to maintain a
suit. It is a fundamental rule of judicial restraint, however, that
this Court will not reach constitutional questions in advance of
the necessity of deciding them.
See, e.g., 443 U.
S. S. 158� v. Great Western United Corp.,
443 U. S. 173,
443 U. S. 181
(1979);
Massachusetts v. Westcott, 431 U.
S. 322,
431 U. S. 323
(1977);
Alexander v. Louisiana, 405 U.
S. 625,
405 U. S. 633
(1972);
Ashwander v. TVA, 297 U.
S. 288,
297 U. S.
346-348 (1936) (concurring opinion);
see also Whalen
v. United States, 445 U. S. 684,
445 U. S. 702
(1980) (REHNQUIST, J., dissenting). This Court has relied on that
principle in similar circumstances to resolve doubts about the
independence of state law decisions in favor of an interpretation
that avoids a constitutional question.
See, e.g., Black v.
Cutter Laboratories, 351 U. S. 292,
351 U. S. 299
(1956). The same prudential rule is properly employed in this case.
If the North Dakota Supreme Court reinterprets Chapter 27-19 to
permit petitioner to maintain its claim in the state courts, or if
it concludes that Chapter 27-19 violates the State's Constitution
insofar as it bars jurisdiction in this case, neither that court
nor this one will be required finally to reach petitioner's federal
constitutional challenge. Under these circumstances, our
responsibility to avoid unnecessary constitutional adjudication
demands that we resolve any uncertainty over the North Dakota
Supreme Court's decision in favor of the possibility that it was
influenced by a misunderstanding of federal law. [
Footnote 16]
Page 467 U. S. 159
III
It is important to recognize what we have not decided in this
case today. We have made no ruling that Chapter 27-19 has any
meaning other than the one assigned to it by the North Dakota
Supreme Court. Neither have we decided whether, assuming that the
North Dakota Supreme Court adheres to its current interpretation of
Chapter 27-19, application of the statute to petitioner will deny
petitioner federal equal protection or violate any other federally
protected right. Finally, we have intimated no view concerning the
state trial court's jurisdiction over respondent's counterclaim
should the North Dakota Supreme Court decide that the trial court
does have jurisdiction over petitioner's claim. Instead, we merely
vacate the North Dakota Supreme Court's judgment and remand the
case for further proceedings not inconsistent with this
opinion.
It is so ordered.
[
Footnote 1]
Following the North Dakota Supreme Court's decision in this
case, petitioner's Tribal Business Council amended the Tribal Code
to grant the tribal court subject matter jurisdiction over all
civil causes of action arising within the boundaries of the Fort
Berthold Reservation.
[
Footnote 2]
See F. Cohen, Handbook of Federal Indian Law 268, and
n. 72 (1982 ed.).
[
Footnote 3]
Before that, however, Congress had vested North Dakota with
certain criminal jurisdiction over the Devils Lake Reservation. Act
of May 31, 1946, ch. 279, 60 Stat. 229.
[
Footnote 4]
In
Gourneau v. Smith, 207
N.W.2d 256, 258 (1973), the court expressly held that
Vermillion
"no longer states the rule to be applied . . . in a case between
Indians arising out of use of the public highways on an Indian
reservation."
[
Footnote 5]
In
United States ex rel. Hall v. Hansen, 303 N.W.2d
349, 350, and n. 3 (1981), however, the court did state in
dictum that a state trial court lacked jurisdiction over a claim by
an Indian against a non-Indian arising in Indian country.
[
Footnote 6]
"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."
N.D. Const., Art. I, § 9. The State's Constitution further
provides that no citizen or class of citizens "shall . . . be
granted privileges or immunities which upon the same terms shall
not be granted to all citizens." Art. I, § 21.
[
Footnote 7]
A number of state courts have recognized the right of Indians to
bring suits in state courts against non-Indians for claims arising
in Indian country.
See, e.g., McCrea v. Busch, 164 Mont.
442, 524 P.2d 781 (1974);
Paiz v. Hughes, 76 N.M. 562,
417 P.2d 51
(1966);
Whiting v. Hoffine, 294
N.W.2d 921, 923-924 (S.D.1980).
[
Footnote 8]
In
Organized Village of Kake v. Egan, 369 U. S.
60,
369 U. S. 71
(1962), this Court held that the phrase "absolute jurisdiction and
control" was not intended to oust States completely from all
authority concerning Indian lands.
See, however, McClanahan v.
Arizona State Tax Comm'n, 411 U. S. 164,
411 U. S. 176,
n. 15 (1973).
[
Footnote 9]
Although
Vermillion was decided after the enactment of
Pub.L. 280, the North Dakota Supreme Court made clear that it was
confirming preexisting jurisdiction, rather than establishing a
previously unavailable jurisdictional category.
See Vermillion
v. Spotted Elk, 85 N.W.2d at 435-436.
[
Footnote 10]
See 25 U.S.C. §§ 1321(a), 1322(a), 1326; S.Rep. No.
721, 90th Cong., 1st Sess., 32 (1967) (additional views of Sen.
Ervin); Goldberg, Public Law 280: The Limits of State Jurisdiction
Over Reservation Indians, 22 UCLA L.Rev. 535, 551 (1975).
[
Footnote 11]
See 25 U.S.C. § 1323(a); 2 U.S. Dept. of Interior,
Opinions of the Solicitor Relating to Indian Affairs, 1917-1974,
pp.1951-1952 (1979);
see also Goldberg,
supra, at
558-562. Although any assumption of jurisdiction pursuant to Pub.L.
280 must comply with that statute's procedural requirements,
see Kennerly v. District Court of Montana, 400 U.
S. 423 (1971), Pub.L. 280's requirements simply have no
bearing on jurisdiction lawfully assumed prior to its
enactment.
[
Footnote 12]
The United States and the Turtle Mountain Band of Chippewa
Indians, each of whom has filed a brief
amicus curiae in
support of petitioner, suggest that Chapter 27-19 may violate 42
U.S.C. § 1981 to the extent that it precludes petitioner from
maintaining its action in state court. Section 1981 provides in
relevant part:
"All persons within the jurisdiction of the United States shall
have the same right in every State and Territory . . . to sue . . .
as is enjoyed by white citizens."
Petitioner does not appear to have relied on § 1981 before the
North Dakota Supreme Court, nor has it done so here. In light of
our disposition of this case, we need not decide whether the § 1981
issue is properly before us or, if so, whether a violation of §
1981 has been made out. The Supreme Court of North Dakota is free,
of course, to consider the applicability of § 1981 on remand if it
deems the issue to be properly before it.
[
Footnote 13]
See 28 U.S.C. § 2106. In
United Air Lines, Inc. v.
Mahin, for example, two justices of the Illinois Supreme Court
had construed a state tax statute to avoid a perceived conflict
with the dormant Commerce Clause. This Court held that the
interpretation forgone by the Illinois Supreme Court would not have
run afoul of the Commerce Clause, and therefore remanded the
case
"to avoid the risk of 'an affirmance of a decision which might
have been decided differently if the court below had felt free,
under our decisions, to do so.'"
410 U.S. at
410 U. S. 632,
quoting
Perkins v. Benguet Consolidated Mining Co.,
342 U. S. 437,
342 U. S. 443
(1952).
[
Footnote 14]
The court has made even more clear in other cases its view that
Pub.L. 280, as amended by the 1968 Civil Rights Act, is an
affirmative constraint on state jurisdiction. For example, in
Schantz v. White Lightning, 231 N.W.2d
812, 815-816 (1975), the court stated:
"
[A]ny change from the present [jurisdictional] case
law would require action by the United States Congress. The
appellants are asking this court to assume the duties and
responsibilities which are vested solely in the United States
Congress. The arguments presented should be addressed to that
body."
"
* * * *"
"The Congress has set out the mandatory procedure to be followed
by the Indian Tribes and the State before the States may assume
jurisdiction. . . . The Sioux Indians, not having accepted State
jurisdiction as permitted and provided for by the congressional
mandate and Chapter 27-19, we conclude that the State did not have,
nor did it acquire, jurisdiction"
(Emphasis added.)
See United States ex rel. Hall v.
Hansen, 303 N.W.2d at 350;
Nelson v. Dubois, 232
N.W.2d at 61 (dissenting opinion);
Gourneau v. Smith, 207
N.W.2d at 259;
see also Poitra v. Demarrias, 502 F.2d 23,
27 (CA8 1974),
cert. denied, 421 U.
S. 934 (1975);
American Indian Agricultural Credit
Consortium, Inc. v. Fredericks, 551
F. Supp. 1020, 1021-1022 (Colo.1982).
[
Footnote 15]
In at least one instance, the North Dakota Supreme Court took
care not to extend its restrictive jurisdictional holdings to the
situation in which an Indian plaintiff brought suit against a
non-Indian defendant in state court.
See Schantz v. White
Lightning, 231 N.W.2d at 814, n. 1 (rejecting broad
formulation of jurisdictional issue because it "would require the
consideration of a question if an Indian could sue a non-Indian").
The court also once stated flatly that "Indians have the right to
sue non-Indians in State courts."
Rolette County v.
Eltobgi, 221 N.W.2d
645,
648
(1974).
But see n 5,
supra.
[
Footnote 16]
In addition, the practical cost of mistakenly concluding that
federal law influenced the North Dakota Supreme Court's treatment
of Chapter 27-19 is far outweighed by the cost of mistakenly
reaching the opposite conclusion. If the court's misunderstanding
of Pub.L. 280 in fact did not contribute to its interpretation of
state law, the court is free to reinstate its former judgment on
remand.
See, e.g., United Air Lines, Inc. v.
Mahin, 54 Ill. 2d
431, 298 N.E.2d 161 (1973). In contrast, if the court's
understanding of federal law did play a role in its interpretation
of Chapter 27-19 but we were to proceed on a contrary assumption,
we would be depriving petitioner of a judicial forum that the North
Dakota Supreme Court would make available if only it were given
another opportunity to address the issue. When the cost of erring
in one direction is so negligible and the cost of erring in the
other is so great, we think that uncertainty about the federal
basis for the state law decision properly is resolved in favor of
the conclusion that federal law played a material role.
JUSTICE REHNQUIST, with whom JUSTICE STEVENS joins,
dissenting.
The highest state court in North Dakota has made a decision on
the scope of state court jurisdiction, a decision based on a state
statute passed following amendment of the State Constitution. The
question is clearly one of state law, immune from our review except
in so far as it might be preempted by federal law or in conflict
with the United States Constitution. The Court today does not say
that Chapter 27-19, as interpreted by the North Dakota Supreme
Court, is preempted by federal law. Nor does the Court find that
statute unconstitutional. Yet the Court vacates the judgment below
because Pub.L. 280 neither "authorized" nor "required" any
disclaimer of preexisting state jurisdiction.
I do not disagree with the Court's essay on the purpose and
effect of Pub.L. 280. But I fail to see its relevance to the state
law issues decided by the court below. Accordingly, I would affirm
the judgment of the North Dakota court
Page 467 U. S. 160
because the only federal question actually before us -- the
constitutionality of North Dakota's refusal to exercise
jurisdiction over a lawsuit brought by an Indian tribe -- is
insubstantial.
In
467 U. S. the
Court argues that state court jurisdiction over this case would
have been proper, as a matter of both federal and North Dakota law,
prior to the passage of Pub.L. 280, and that nothing in Pub.L. 280
should have changed that situation. In Part
467 U.
S. the Court parlays the eclipse of this "residual
jurisdiction" into a reason for concluding that the North Dakota
Supreme Court may have misunderstood Pub.L. 280 when it interpreted
Chapter 27-19. The linchpin of the entire argument is the 1957 case
of
Vermillion v. Spotted Elk, 85 N.W.2d
432, in which the North Dakota court took an expansive view of
the scope of state court jurisdiction over suits by and against
Indians in Indian country. The Court today correctly states that
the jurisdiction claimed in
Vermillion -- over all civil
actions arising in Indian country, except those involving interests
in Indian lands -- would embrace this case.
Ante at
467 U. S. 147.
B ut the argument for residual jurisdiction which the Court
constructs around
Vermillion is wholly untenable for the
simple reason that the expansive jurisdiction of
Vermillion was discredited, two years after it was
claimed, by our decision in
Williams v. Lee, 358 U.
S. 217 (1959).
Both the specific holding and the broad dictum of
Vermillion were preempted by
Williams v. Lee.
[
Footnote 2/1] The North Dakota
court exercised jurisdiction in
Vermillion over a suit
arising out of a car accident on an Indian reservation in which all
the parties were reservation Indians. The principles of tribal
autonomy recognized in
Williams v. Lee clearly
preclude
Page 467 U. S. 161
such an intrusion into strictly tribal affairs without
affirmative legislative action pursuant to Pub.L. 280.
See
Fisher v. District Court, 424 U. S. 382
(1976). And the expansive claim made in
Vermillion to
jurisdiction over all civil actions arising in Indian country,
except those involving interests in Indian lands, cannot be squared
with the requirement that such jurisdiction be assumed by
legislative action pursuant to Pub.L. 280.
In short, at the time Chapter 27-19 was passed, four years after
Williams v. Lee, Vermillion was not in any sense good law.
The "lawfully assumed jurisdiction,"
ante at
467 U. S. 150,
which the Court thinks must have survived both Pub.L. 280 and
Chapter 27-19, was in fact unlawfully assumed, and therefore
invalid. The fact that Chapter 27-19 appears to expand state
jurisdiction over Indian country, rather than to contract it, must
be understood not in light of
Vermillion, but in light of
the intervening, superseding decision of this Court in
Williams
v. Lee. The North Dakota Legislature was effectively starting
from "square one" in asserting jurisdiction over civil actions in
Indian country when it passed Chapter 27-19. Thus, since the
assumption of jurisdiction in Chapter 27-19 was predicated on
tribal consent, which has not been forthcoming, the North Dakota
Supreme Court could naturally and properly conclude that there was
no state court jurisdiction in this case. [
Footnote 2/2]
The Court glosses over this obvious difficulty in its argument
by simply recasting
Vermillion to fit its needs.
"To be sure, the full breadth of state court jurisdiction
recognized in
Vermillion cannot be squared with principles
of tribal autonomy; to the extent that
Vermillion
permitted North Dakota state courts to exercise jurisdiction over
claims by non-Indians against Indians or
Page 467 U. S. 162
over claims between Indians, it intruded impermissibly on tribal
self-governance. . . . This Court, however, repeatedly has approved
the exercise of jurisdiction by state courts over claims by Indians
against non-Indians, even when those claims arose in Indian
country."
Ante at
467 U.S.
148.
In accordance with its view of what the North Dakota courts
could have done compatibly with federal law, the Court proceeds to
treat
Vermillion as if it had, in fact, only claimed
jurisdiction over suits by Indians against non-Indians. Thus, the
Court says that nothing in Pub.L. 280 "required North Dakota to
disclaim the basic jurisdiction recognized in
Vermillion
or authorized it to do so,"
ante at
467 U. S. 150,
and that "no federal law or policy required the North Dakota courts
to forgo the jurisdiction recognized in
Vermillion in this
case,"
ante at
467 U. S. 151.
The Court even refers to the jurisdiction of
Vermillion as
"otherwise lawfully assumed jurisdiction."
Ante at
467 U. S.
150.
I must confess to being nonplussed by the Court's treatment of
Vermillion. It seems strange, indeed, to suppose that
Vermillion is in some sense good law -- when neither its
holding nor its reasoning is acceptable under federal law -- merely
because the opinion would be acceptable if it had been written
altogether differently and reached an opposite result. The fact
remains that it was not written differently, and did not reach the
opposite result.
The North Dakota court improperly tried to assert jurisdiction
over all civil actions arising in Indian country, except those
involving interests in Indian lands. That attempt having failed,
there is no indication that North Dakota would have accepted the
one-way jurisdiction sought by petitioner in this case, whereby
Indians can sue non-Indians, but not vice versa. And the fact that
our cases would have permitted the assumption of such jurisdiction
is simply beside the point. Nothing in the Enabling Act, the State
Constitution,
Page 467 U. S. 163
or Pub.L. 280 compelled North Dakota to grant Indians the right
to sue non-Indians in state court in situations where non-Indians
could not sue Indians. And it is sheer speculation to suppose that
the State would have done so. [
Footnote
2/3]
Without
Vermillion, the Court's argument in Part
467 U. S. For
without some sort of plausible "residual jurisdiction" that would
cover this case, Pub.L. 280 constitutes an affirmative bar to the
assumption of jurisdiction by the North Dakota court. Any
jurisdiction over Indian country assumed by an option State
following passage of Pub.L. 280 must be assumed in accordance with
the requirements of Pub.L. 280. It must be assumed, that is, by
affirmative legislative action; state courts are powerless to
act
Page 467 U. S. 164
on their own initiative. As we stated in
Kennerly v.
District Court of Montana, 400 U. S. 423,
400 U. S. 427
(1971):
"[T]he requirement of affirmative legislative action [was not]
an idle choice of words; the legislative history of the 1953
statute shows that the requirement was intended to assure that
state jurisdiction would not be extended until the jurisdictions to
be responsible for the portion of Indian country concerned
manifested by political action their willingness and ability to
discharge their new responsibilities. "
North Dakota took affirmative legislative action in passing
Chapter 27-19, but conditioned its assumption of jurisdiction on
tribal consent. Since that consent has not been forthcoming, North
Dakota has not assumed any additional jurisdiction over Indian
country under Pub.L. 280.
See Washington v. Yakima Indian
Nation, 439 U. S. 463,
439 U. S. 499
(1979). North Dakota courts therefore have no authority to
unilaterally augment their jurisdiction by entertaining suits
either by or against Indians in actions arising on Indian lands.
Fisher v. District Court, 424 U.S. at
424 U. S.
388-389;
Kennerly, supra, at
400 U. S. 427.
[
Footnote 2/4] Unless, therefore,
such jurisdiction was "assumed prior to and apart from Pub.L. 280,"
ante at
467 U. S. 151,
an assumption I find untenable for the reasons given, Pub.L. 280
precludes the exercise of jurisdiction in this case. [
Footnote 2/5]
Page 467 U. S. 165
I might finally add that, even if one did posit a truncated
Vermillion as somehow providing the residual jurisdiction
necessary to the Court's argument until eclipsed by the North
Dakota Legislature, there is still no indication and the Court
offers no good reason to believe that the North Dakota Supreme
Court interpreted Chapter 27-19 under any misapprehensions about
Pub.L. 280. The North Dakota court, in fact, shows a perfectly
clear appreciation of both the purpose and effect of Pub.L.
280.
"The purpose of Public Law 280 was to facilitate the transfer of
jurisdictional responsibility to the states.
Washington v.
Confederated Bands and Tribes, 439 U. S.
463,
439 U. S. 505 (1979). It
permitted states to amend their constitutions or existing statutes
to remove any legal impediments to the assumption of civil and
criminal jurisdiction, and thereby to unilaterally assume
jurisdiction over criminal and civil matters within the exterior
boundaries of Indian reservations within the states taking such
action."
321
N.W.2d 510, 511 (1982). This statement of the law is
unexceptionable. Indeed, the Court's own statement of the purpose
and effect of Pub.L. 280,
see ante at
467 U. S. 150,
reads like a paraphrase of the above passage.
The North Dakota court never even remotely implies that Pub.L.
280 "required" the State to eliminate any preexisting, lawfully
assumed jurisdiction. The focus is rather on the passage of Chapter
27-19 by the state legislature.
See 467
U.S. 138fn2/3|>n. 3,
supra. And as to whether the
court may have mistakenly thought that Pub.L. 280 "authorized" such
a disclaimer of jurisdiction by the State, I cannot see how that
question is relevant at all. Either a disclaimer of preexisting
jurisdiction was forbidden by federal law or it was not. If not,
and
Page 467 U. S. 166
the majority does not imply that it was, then there is no
additional requirement that it be affirmatively sanctioned. A State
is not obliged to play "Mother, may I" with the Federal Government
before retroceding jurisdiction that, under our cases, could have
been retained.
In my view, therefore, the only federal question presented in
this case is whether North Dakota's failure to permit Indians to
sue non-Indians in circumstances under which non-Indians could not
sue Indians violates the Equal Protection Clause of the Fourteenth
Amendment to the United States Constitution. After our decision in
Washington v. Yakima Indian Nation, supra, that question
is not a substantial one.
See 467
U.S. 138fn2/5|>n. 5,
supra. Access to the North
Dakota courts is within the power of petitioner. The Tribe need
merely consent to the full civil jurisdiction which North Dakota,
pursuant to Pub.L. 280, stands ready to offer them. Petitioner
wants to enjoy the full benefits of the state courts as plaintiff
without ever running the risk of appearing as defendant. The Equal
Protection Clause mandates no such result.
I respectfully dissent.
[
Footnote 2/1]
In
Williams, a non-Indian who operated a store on an
Indian reservation in Arizona sued an Indian couple to collect
goods sold to them on credit. We held that principles of tribal
autonomy precluded the Arizona courts from entertaining the suit in
the absence of an affirmative assumption of jurisdiction by the
state legislature. 358 U.S. at
358 U. S.
222.
[
Footnote 2/2]
In
Washington v. Yakima Indian Nation, 439 U.
S. 463,
439 U. S. 495
(1979), we held that "any option State can condition the assumption
of full jurisdiction on the consent of an affected tribe," even
though not required to do so by Pub.L. 280.
[
Footnote 2/3]
The North Dakota court's subsequent treatment of
Vermillion provides a strong indication that the court
would never, as a matter of state law, have recognized the
one-sided jurisdiction sought by petitioner and permitted by
federal law. As noted, the jurisdiction claimed in
Vermillion under state law was invalid under
Williams
v. Lee as preempted by federal law. That same jurisdiction was
also disclaimed as a matter of state law by the passage of Chapter
27-19.
See 321
N.W.2d 510, 511 (N.D.1982).
Chapter 27-19 provides that
"jurisdiction of the state of North Dakota shall be extended
over all civil causes of action which arise on an Indian
reservation upon acceptance by Indian citizens in a manner provided
by this chapter."
N.D.Cent.Code § 27-19-01 (1974). A later provision excepts from
this jurisdiction suits involving interests in Indian lands. §
27-19-08. Thus, the jurisdiction which North Dakota stands ready to
accept under Chapter 27-19 is exactly coterminous with that claimed
in
Vermillion.
If
Vermillion had been good law, Chapter 27-19 would
have been entirely superfluous. Following the passage of Chapter
27-19, therefore, the North Dakota court could reasonably conclude
that the legislature had disclaimed (
i.e., renounced any
claim to) the jurisdiction wrongfully usurped in
Vermillion except on consent of the affected tribes. And
the fact that the court concluded that all the jurisdiction of
Vermillion had been disclaimed indicates that, as a matter
of state law, the court views the jurisdiction of
Vermillion as an all-or-nothing, reciprocal proposition.
Again, it is irrelevant that our cases would have permitted the
State to assert one-sided, residual jurisdiction. The State was not
obliged to accept the invitation.
[
Footnote 2/4]
For this reason, the Court's reliance on
Nelson v.
Dubois, 232 N.W.2d
54 (N.D.1975), and
Schantz v. White
Lightning, 231 N.W.2d
812 (N.D.1975),
see ante at
467 U. S.
155-156, and n. 14, for the proposition that the North
Dakota Supreme Court may have misread federal law is misplaced.
Insofar as North Dakota has not already assumed lawful jurisdiction
over suits arising in Indian country, either prior to Pub.L. 280 or
pursuant to the terms of that statute, federal law does act "as an
affirmative bar to the exercise of jurisdiction here,"
ante at
467 U. S.
155.
[
Footnote 2/5]
Obviously, if Pub.L. 280 would preclude a judicial assumption of
jurisdiction in this case, then the North Dakota Supreme Court
properly disposed of petitioner's equal protection argument with a
simple citation to
Washington v. Yakima Indian Nation, 439
U.S. at
439 U. S.
500-501, in which we rejected a similar challenge to a
Washington statute which conditioned state jurisdiction over Indian
lands in some subject matter areas on Indian consent. It would also
follow that the lower court's handling of the equal protection
claim does not, as the Court would have it,
ante at
467 U. S. 154,
reflect any misunderstanding of federal law.