| 602 P.2d 563 184 Mont. 187 Noel K. LARRIVEE, Plaintiff and Respondent, No. 14586. Submitted April 27, 1979. In action arising out of automobile accident taking place within Flathead Indian Reservation, the Fourth District Court, Missoula County, E. Gardner Brownlee, J., denied defendant Indian's motion to vacate default judgment against him for lack of subject matter jurisdiction, and defendant appealed. The Supreme Court, Sheehy, J., held that: (1) Court was without jurisdiction to consider issues covered by motions to set aside default judgment on grounds of excusable neglect, inadvertence or mistake and motion for change of venue; (2) Court could consider appeal from order denying motion to vacate for lack of subject matter jurisdiction; (3) ordinance, which was adopted by council of Confederated Salish and Kootenai Tribes on the Reservation, granted state concurrent civil jurisdiction over operation of motor vehicles on reservation as well as concurrent criminal jurisdiction; (4) tribal court had not preempted state jurisdiction over controversies arising out of operation of motor vehicles within Reservation; and (5) Court would not abstain from rendering decision, notwithstanding contention that the case involved interpretation of tribal law and that therefore, under principles of comity, Court should abstain from a decision until tribal court had interpreted extent of civil jurisdiction ceded to state. Affirmed. Shea, J., dissented. West Headnotes [1] Appeal and Error K870(3) [2] Courts K37(2) [3] Appeal and Error K20 [4] Indians K27(2) [See headnote text below] [4] Indians K38(2) [5] Indians K27(2) [6] Courts K28 [184 Mont. 188] Victor F. Valgenti argued, Missoula, Evelyn M. Stevenson, Pablo, amicus curiae. Smith, Connor, Van Valkenburg & Larrivee, Missoula, Noel K. Larrivee argued, Missoula, for respondent. SHEEHY, Justice, delivered the Opinion of the Court. This 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 [184 Mont. 189] 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 [184 Mont. 190] 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. 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:
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. [1] 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 (1977), Mont., 565 P.2d 311, 34 St.Rep. 492; First Nat.
Bank of 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 [184 Mont. 192] 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. [2] [3] The appeal here taken is from the denial of the separate motion filed on August 22, 1978. An attack on subject matter 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. [4] 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 [184 Mont. 193] Confederated Salish and Kootenai Tribes, and proclaimed by the governor of this state in accordance with Ch. 81, Laws of Montana (1963), the Confederated 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:
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. 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 [184 Mont. 196] 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:
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. |