Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P. C.
Three Affiliated Tribes of the Fort Berthold Reservation v. Wold Engineering, P. C.
Opinion of the Court
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
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
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 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,
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, 471-474 (1979).
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
“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
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
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.
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).
I-H H-1
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, 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 220. Second, state authority may be pre-empted by incompatible federal law. White Mountain, 448 U. S., at 142. Accord, New Mexico v. Mescalero Apache Tribe, 462 U. S. 324, 334, and n. 16 (1983); Ramah Navajo School Board, Inc. v. Bureau of Revenue, 458 U. S. 832, 837-838 (1982); McClanahan v. Arizona State Tax Comm’n,
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 173 (dictum); Poafpybitty v. Skelly Oil Co., 390 U. S. 365 (1968); Williams v. Lee, 358 U. S., at 219 (dictum); United States v. Can-delaria, 271 U. S. 432, 444 (1926); Felix v. Patrick, 145 U. S. 317, 332 (1892); Fellows v. Blacksmith, 19 How. 366 (1857).
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, 562 (1983); see F. Cohen, Handbook of Federal Indian Law 268 (1982 ed.).
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 490; see also Bryan v. Itasca County, 426 U. S., at 383-390. Nothing in the language or legislative history of Pub. L. 280 indicates that it was meant to divest States of pre-existing and otherwise lawfully assumed jurisdiction.
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 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 argu
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, 630-632 (1973); State Tax Comm’n v. Van Cott, 306 U. S. 511, 513-515 (1939); Red Cross Line v. Atlantic Fruit Co., 264 U. S. 109, 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.
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
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,
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
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., Leroy
It is important to recognize what we have not decided m 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.
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.
See F. Cohen, Handbook of Federal Indian Law 268, and n. 72 (1982 ed.).
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.
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.”
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.
“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.
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).
In Organized Village of Kake v. Egan, 369 U. S. 60, 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, 176, n. 15 (1973).
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.
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).
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.
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.
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
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 ret. 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).
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.
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.
Dissenting Opinion
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 pre-empted 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 pre-existing 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
In Part II-A of its opinion, 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 II-B, 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 147. But 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 pre-empted by Williams v. Lee.
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 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 ease.
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*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 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 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 151. The Court even refers to the jurisdiction of Vermillion as “otherwise lawfully assumed jurisdiction.” Ante, at 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,
Without Vermillion the Court’s argument in Part II-B simply crumbles. 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
“[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, 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 388-389; Kennerly, supra, at 427.
“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, 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 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 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 pre-existing jurisdiction was forbidden by federal law or it was not. If not, and
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 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.
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 222.
In Washington v. Yakima Indian Nation, 439 U. S. 463, 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.
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 pre-empted 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.
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 155-156, and n. 14, for the proposition that the North Dakota Supreme Court may have misread federal law is misplaced. In so far 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 155.
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 500-501, in which we rejected a similar challenge to a Washington statute which conditioned
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