1 NICS App. 73, Mahler v. Hinshaw (February 1990)
IN THE CONFEDERATED SALISH AND KOOTENAI TRIBAL COURT OF APPEALS
FLATHEAD INDIAN RESERVATION
PABLO, MONTANA
Gloria S. and Kenneth J. Mahler v. Lynette Hinshaw
No. CV-3595-88 (February 2, 1990)
SUMMARY
Plaintiff-respondents filed a complaint for damages based upon wrongful death and survival claims against defendant-appellant in tribal court. Plaintiffs also commenced a probate action in state court. Defendant filed a motion to dismiss in tribal court which raised a number of jurisdictional arguments.
The Court of Appeals held that civil jurisdiction over a non-Indian's on-reservation activities presumptively lies in the tribal court unless affirmatively limited by a specific treaty provision or federal statute. Indian tribes retain inherent sovereign power to exercise civil jurisdiction over non-Indians when their conduct threatens or directly affects a tribe's political integrity, economic security and health or welfare.
Here, the Court found no basis for denying subject matter jurisdiction although the decedent was not an enrolled member of the tribe. The tribal court has subject matter jurisdiction over tort actions arising from vehicular accidents when they occur within the reservation boundaries. Concurrent state and tribal jurisdiction does not preclude initiating the wrongful death action in tribal court while pursuing a probate action in state court, because they are separate causes of action.
The Court rejected appellant's claim that the Court lacked personal jurisdiction over her. Under tribal statute, personal jurisdiction extends to all persons found within the reservation. The appellant resides within the boundaries of the reservation; uses the roadways; and benefits from tribal police protection, tribal utilities, and other tribal resources. The Court found a sufficient relationship to find personal jurisdiction over the appellant.
FULL TEXT
1 NICS App. 73, Mahler v. Hinshaw (February 1990) p. 74
HOSTNIK, Associate Justice:
On January 26, 1990, the Appellate Court of the Confederated Salish and Kootenai Tribes of the Flathead Indian Reservation convened in Pablo, Montana to hear this appeal. The appeal proceeding was conducted pursuant to the provisions of the Law and Order Code of the Confederated Salish and Kootenai Indian Tribes of the Flathead Reservation, Montana (hereinafter ''Law and Order Code"), Ch. I, Sec. 6. The matters before the Appellate Judges at that time were the briefs submitted by the parties, as well as a certified recording of the trial court proceedings. The Appellate Panel was composed of the Honorable Elbridge Coochise, Chief Justice; the Honorable Hollis Chough, Associate Justice; and the Honorable Charles R. Hostnik, Associate Justice.
I. BACKGROUND
On June 29, 1988, Plaintiffs filed a Complaint in the trial court of the Confederated Salish and Kootenai Tribes of the Flathead Reservation for damages based upon a wrongful death claim and a survival claim. The Complaint alleged that on July 4, 1986, Christian Mahler, riding a motorcycle, was involved in an accident with an automobile driven by Defendant Lynette Hinshaw. Christian Mahler allegedly sustained injuries in that accident that led to his death.
The Plaintiffs (Respondents on appeal) are the parents of Christian Mahler. They commenced a probate action in Montana state court to probate the estate of Christian Mahler. Plaintiffs were appointed co-personal representatives of Christian Mahler's estate in that state court probate action.
Respondents then filed this action in Tribal Court. This action was commenced by Respondents in both their individual capacities as well as in their capacities as co-personal representatives of the estate of Christian Mahler.
After the Complaint was filed, the Defendant (Appellant on Appeal) entered an appearance to contest the Tribal Court's jurisdiction, prior to filing an Answer to the Complaint. Those jurisdictional arguments were raised in the form of a Motion to Dismiss. That motion was denied by the trial judge on July 11, 1989. This appeal followed.
II. ISSUES ON APPEAL
The issues presented on appeal relate solely to whether the Tribal Court has jurisdiction to hear this action. The Appellant contends, first, that the Tribal Court did not have subject matter jurisdiction over this action.
Second, she contends that if the Flathead Tribal Court does have subject matter jurisdiction, such jurisdiction is concurrent with the jurisdiction of the Montana State District Court. Since the probate action was commenced in state court, Appellant argues this action should be heard by the state court rather than this Tribal Court.
1 NICS App. 73, Mahler v. Hinshaw (February 1990) p. 75
Finally, Appellant contends the Flathead Tribal Court does not have jurisdiction over her.
III. DOES THE FLATHEAD TRIBAL COURT HAVE SUBJECT MATTER JURISDICTION?
The parties agree that the statute governing subject matter jurisdiction is Confederated Salish and Kootenai Tribal Ordinance 36B. The applicable provisions of that ordinance provide as follows:
(a) To the fullest extent possible, not inconsistent with federal law, the Tribes may exercise their civil, regulatory and adjudicatory powers. To the fullest extent possible, not inconsistent with federal law, the Tribal Court may execute subject matter and personal jurisdiction. The jurisdiction over all persons of the Tribal Court may extend to and include, but not by way of limitation, the following:
(1) All persons found within the reservation.
(2) All persons subject to the jurisdiction of the Tribal Court and involved directly or indirectly in:
(i) The transaction of any business within the reservation;
(ii) The ownership, use or possession of any property, or interest therein situated within the reservation.
(iii) The entering into of any type of contract within the reservation, or wherein any aspect of any contract is performed within the reservation.
(iv) The injury or damage to property of the Tribes or a tribal member.
(b) As used in this section, "person" means an individual, organization, corporation, governmental subdivision or agency, business trust, estate, trust, partnership, association, joint venture, or any other legal or commercial activity. Nothing in this chapter waives any aspect of the Tribes' sovereign immunity or related privileges.
Ordinance 36B (codified as Law and Order Code), Ch. II, Sec. 1(2). It is clear from the ordinance that this Tribal Court is to exercise civil jurisdiction "to the fullest extent possible."
As acknowledged by the Appellant, subject matter jurisdiction under this ordinance is determined by the parties and the location of the dispute. Appellant argues that since the only party to this proceeding who is a tribal member is the decedent’s mother, no jurisdiction exists in the Tribal Court. However, the
1 NICS App. 73, Mahler v. Hinshaw (February 1990) p. 76
definition of the term "person" is not limited to tribal members. See Law and Order Code, Ch. II, Sec. 1(2)(b). Therefore, the status of the parties as tribal members or nontribal members is irrelevant to determining subject matter jurisdiction under the provisions of Ordinance 36B.
The location of the accident was within the exterior boundaries of the Flathead Reservation. See Law and Order Code, Ch. I, Sec. 2(5). It was within the Reservation where the Appellant is alleged to have owned, used, and/or possessed a motor vehicle in a manner which led to the death of Christian Mahler.
Civil jurisdiction over the activities of non-Indians on reservation lands presumptively lies in the tribal courts unless affirmatively limited by a specific treaty provision or federal statute. Iowa Mutual Insurance Co. v. LaPlante, 480 U.S. 9, 94 L.Ed.2d 10, 107 S.Ct. 971, 14 Indian L.Rep. 1015 (1987). It is clear from the above discussion that under the Law and Order Code of the Tribes, this court has subject matter jurisdiction over this case.
A limit to the exercise of the Tribal Court's civil jurisdiction is that exercise of such jurisdiction cannot be inconsistent with federal law. Montana v. United States, 450 U.S. 544, 67 L.Ed.2d 493, 101 S.Ct. 1245, 8 Indian Law Reporter 1005 (1981) provides guidance with respect to any limiting aspects of federal law on exercise of the Tribal Court's subject matter jurisdiction. The United States Supreme Court in that case indicated:
... Indian tribes retain inherent sovereign power to exercise some forms of civil jurisdiction over non-Indians on their reservations, even on non-Indian fee lands. A tribe may regulate, through taxation, licensing or other means, the activities of nonmembers who enter consensual relationships with the tribe or its members, through commercial dealings, contracts, leases, or other arrangements. ... A tribe may also retain inherent power to exercise civil authority over the conduct of non-Indians on fee lands within its reservation when that conduct threatens or has some direct effect on the political integrity, the economic security, or the health or welfare of the tribe. Montana v. U.S., supra, 450 U.S. at 565-566, 8 Indian L. Rep. at 1011 (1981) (citations omitted; emphasis added).
Tribal governments, like state governments, have an interest in developing and enforcing safety standards designed to encourage attentiveness and caution on the part of all persons operating vehicles on roads open to the public within the Reservation. Estate of Bighorse, 15 Indian L. Rep. 6048, (1988), modified in part on other grounds, 16 Indian L. Rep. 6025 (1989). A Tribe's regulation of motor vehicle traffic within the exterior boundaries of a reservation directly relates to improving and protecting the health and welfare of the Tribe and its members by decreasing injuries occurring on the reservation to tribal members and to others. In this case, the Confederated Salish and Kootenai Tribes have adopted the Montana Traffic Code, with modifications. No doubt substantial tribal resources have been expended to enforce this Code, and therefore, to maintain the health
1 NICS App. 73, Mahler v. Hinshaw (February 1990) p. 77
and safety of all persons found within the Reservation. The Tribal Court's exercise of subject matter jurisdiction is not inconsistent with federal law.
The fact that the decedent was not an enrolled tribal member is irrelevant in connection with this analysis. A Tribe is composed of not only enrolled members, but also the families of those enrolled members. The Tribe's interest in protecting its political integrity, economic security and the health and welfare of the Tribe as a whole includes protection of the families of enrolled members. There is no basis for denying subject matter jurisdiction to the Tribal Court in this case simply because the decedent was not an enrolled member of the Tribe.
The expressed intent of the Confederated Salish and Kootenai Tribes is to exercise its jurisdictional powers to the fullest extent possible. See Law and Order Code, Ch. I, Sec. 2(1)(b). The Tribes have declared that the Tribal Court is required to exercise its jurisdiction to the fullest extent possible. Law and Order Code, Ch. II, Sec. 1(2)(a).
This Tribal Court has previously ruled it has subject matter jurisdiction over tort actions arising from vehicular accidents when they occur within the exterior boundaries of the Reservation and involve persons under this Court's jurisdiction. Estate of Bighorse, supra, 15 Indian L. Rep. at 6049. This Tribal Court has subject matter jurisdiction over this action.
IV. CONCURRENT JURISDICTION
Appellant argues that if this Court finds that subject matter jurisdiction exists in the Tribal Court, such jurisdiction is concurrent with Montana state courts. If that is the case, according to Appellant, since the Respondents opened a probate action in state court, this action must be brought in the state court pursuant to the Tribe's Law and Order Code.
Appellant relies upon the following section of the Law and Order Code:
3 ... the laws and jurisdiction of the State of Montana, including the judicial system of the State, are hereby extended pursuant to, and subject to the conditions in, the Act of the Montana Legislature of February 27, 1963, Laws of Montana, 1963, Vol.1, Chap. 81, p.170, Sections 2-1-301 to 2-1-306 MCA, to Indians within the Flathead Reservation to the extent such laws and jurisdiction relate to the subjects following: ... (h) Operation of Motor Vehicles upon Public Streets, Alleys, Roads and Highways; ...
4. The effectiveness of (3) above is conditioned upon the following:
(a) Concurrent jurisdiction remains with the Tribal Court and in the Tribal Government (where applicable with Federal Courts) of all matters referred to in Subsection (3); and any matter initiated in either a State or Tribal Court shall be completed and disposed
1 NICS App. 73, Mahler v. Hinshaw (February 1990) p. 78
of in that Court, and shall not be subject to reexamination in the Courts of the other jurisdiction. Law and Order Code, Ch. I, Sec. 2 (3), (4).
Appellant's argument focuses on the institution of the state court probate proceedings as the act which gives rise to concurrent jurisdiction. However, Appellant also acknowledges that:
... the Tribal Court would not have, and does not have, jurisdiction over the estate of the decedent. The Tribal Court does not have jurisdiction over the estate of the decedent, because the decedent was not a tribal member.
Brief of Appellant, p.19. Appellant's assertion is correct. This Tribal Court only has jurisdiction to probate the estates of tribal members. Confederated Salish and Kootenai Tribes of the Flathead Reservation, Code of Domestic Relations, Ch. V, Sec. 10(1). Therefore, there is no concurrent probate jurisdiction in both State and Tribal Courts.
However, this action does not relate to administration of the estate. Even if there were concurrent probate jurisdiction, Appellant's argument would fail. The action commenced in this Tribal Court does not relate to administration of the decedent's estate. It is a different type of action -- a tort action for personal injuries.
Even if Respondents were to bring the wrongful death and survival claims in state court, they would have to commence a separate action, pay a separate filing fee, and could not pursue those claims under the previously filed probate case. A Montana state court, exercising probate jurisdiction would not have authority to adjudicate the wrongful death claim, since a wrongful death claim is not a part of the estate of a decedent. In Re Estate of Pegg, 209 Mont. 71, 680 P.2d 316 (1984). But see, In Re Estate of Farnum, 224 Mont. 304, 730 P.2d 391 (1986). We do not have a situation where the same claims are being litigated between the same parties in two different forums. The Appellant involved in this case is not named as a Defendant in the state court probate action.
This issue has arisen in an analogous situation, where the jurisdiction of federal courts has been questioned in cases arising by and against estates, where probate proceedings had already been commenced in state court. Two theories allow the federal courts jurisdiction to entertain such actions.
First, so long as the federal court does not interfere with the probate proceedings or assume control of the probate, the action can be maintained in federal court. Markham v. Allen, 326 U.S. 490, 494, 90 L.Ed. 256, 66 S. Ct. 296 (1945), rev'd in part on other grounds, sub nom, Clark v. AIIen, 331 U.S. 503, 91 L.Ed. 1633, 67 S. Ct. 1431 (1946). See also, 61 ALR Fed. 536 §7[b]. The Tribal Court action here is not interfering with the state court probate proceedings. This theory would allow this Tribal Court action to proceed.
1 NICS App. 73, Mahler v. Hinshaw (February 1990) p. 79
Second, some federal courts have adopted the distinction between actions in personam and in rem. With regard to in personam actions, both a state probate court and a federal court have been held to have concurrent jurisdiction. This enables the claimant to bring the action in either forum. See 61 ALR Fed. 536, §8. The claim in this case is an in personam claim being brought against an individual who resides within the exterior boundaries of the Flathead Reservation. Therefore, this second theory applies to allow the Tribal Court to proceed with this case.
Action Initiated in Tribal Court
The Law and Order Code section relied upon by Appellant for their concurrent jurisdiction argument provides:
Concurrent jurisdiction remains with the Tribal Court ... of all matters referred to in Subsection (3) [which includes operation of motor vehicles within the Flathead Reservation]; and any matter initiated in either a State or Tribal Court shall be completed and disposed of in that court ...
Law and Order Code, Ch. I, Sec. 2(4)(a) (emphasis added).
The term "initiated" is not defined by the Law and Order Code. The Appellant's view is that this claim against her was "initiated" when the probate action was commenced in State District Court. The term "initiate" has been defined in a variety of ways.
To start a movement. To commence something, for example a proceeding. To propose for approval. Ballentine's Law Dictionary, 3rd Ed. (1969).
Was this claim against the Appellant commenced by the institution of probate proceedings in State District Court, or was it commenced when the complaint was filed in the Tribal Court?
The phrase "initiation of proceedings" is defined as setting the machinery of the law in motion. Restatement 2d, Torts, §674, Comment a. That Comment goes on to explain that one who files a counterclaim to a cause of action is the one who "initiates" a proceeding on that claim. If Appellant's argument that suit against her in Tribal Court is barred because of the previously commenced probate action in state court, the Restatement definition of "initiation" with respect to a counterclaim would relate back to the original filing of the action. There would be no distinction between the original filing of the action and the filing of the counterclaim. This is not the result contemplated by the Restatement.
In this case the filing of the probate action in state court may well have been a condition precedent to the filing of a separate action by the estate against the
1 NICS App. 73, Mahler v. Hinshaw (February 1990) p. 80
Appellant. Nonetheless, a separate action would have had to be brought against the Appellant for injuries based on the accident at issue. Concurrent subject matter jurisdiction for that tort action exists both in the Montana state court and in this Tribal Court. Larrivee v. Morigeau, 184 Mont. 187, 602 P.2d 563 (1979), cert. denied 445 U.S. 964 (1980). Respondents were free to choose the forum in which this particular claim against this particular Appellant was to be commenced. The prior probate proceedings did not involve this particular claim nor this particular Appellant. Therefore, that prior probate proceeding did not "initiate" this matter. The initiation of this claim against the Appellant relates back to the filing of the complaint with the Tribal Court, and does not relate back to the commencement of the state probate action.
Respondents were free to choose the forum in which to bring this separate tort action. No election of forum occurred until this action was filed in Tribal Court. All the parties reside on the Flathead Reservation, Appellant was served on the Reservation, and the witnesses are presumably located on the Reservation. The filing of this action in Tribal Court was appropriate.
V. PERSONAL JURISDICTION OVER APPELLANT
The Appellant contends that the Tribal Court does not have personal jurisdiction over her, or over the Respondents.
Personal Jurisdiction Over Respondents
The Respondents voluntarily subjected themselves to the personal jurisdiction of the Court by applying to the Tribal Court for the relief requested in their Complaint. This Court's personal jurisdiction over the Respondents is not an issue.
Appellant raises the argument that the Tribal Court does not have jurisdiction over the estate of the decedent, because the decedent was not a tribal member. This argument confuses the true nature of these proceedings. The Tribal Court is not being asked to exercise jurisdiction to administer the decedent's estate. The Tribal Court is requested to entertain a tort action for personal injuries suffered by the parents of the decedent, as well as for a claim which is a claim of the decedent's estate.
Whether the Tribal Court has subject matter jurisdiction over a probate action is simply irrelevant to this inquiry. The co-personal representatives of the estate stand in the shoes of he decedent for purposes of this action. The decedent, if he had survived, could have come into Tribal Court to institute and prosecute a tort action for personal injuries. The fact that decedent did not survive does not divest the Tribal Court of personal or subject matter jurisdiction.
Personal Jurisdiction Over Appellant
The fundamental requirement for evoking personal jurisdiction is the existence of some relationship between the Tribe and the parties to the action
1 NICS App. 73, Mahler v. Hinshaw (February 1990) p. 81
such that it is reasonable for the Tribal Court to exercise control over the parties. Estate of Bighorse, supra, 15 Indian L. Rep. at 6049 (1988).
Personal jurisdiction over the Appellant in this case is governed by Tribal Ordinance 36B. Under that ordinance, personal jurisdiction extends to and includes all persons found within the reservation. Confederated Salish and Kootenai Tribal Ordinance 36B (codified as Law and Order Code) Ch. II, Sec. 1(2)(a)(1). The Defendant, being a resident of a town which is located within the exterior boundaries of the Reservation, is a person found within the Reservation.
Under Tribal Ordinance 36B, the Tribal Court also has jurisdiction over Appellant because she is a person "subject to the jurisdiction of the Tribal Court and involved directly or indirectly in ... the ownership, use or possession of any property [her motor vehicle] ... situated within the reservation ... " Law and Order Code, Ch. II, Sec. 1 (2)(a)(2)(ii).
This is not a situation where the Appellant is merely using the roadways on the Reservation to pass through the Reservation. Appellant in fact resides on the Reservation and presumably uses those roads every day. She also is benefiting from Tribal resources. She benefits from Tribal Police protection, Tribal utilities, and other resources. Therefore, there are much greater ties to Appellant than if she were merely traveling through the Reservation.
There exists a sufficient relationship between the Tribe and the Appellant such that it is reasonable for the Tribal Court in this case to exercise control over her. The Tribal Court has personal jurisdiction over the parties to this action.
VI. CONCLUSION
Based upon the foregoing, the Order of Special Judge Bonnie Combes, dated July 11, 1989 is hereby affirmed. The Tribal Court of the Confederated Salish and Kootenai Tribes have both subject matter jurisdiction and personal jurisdiction over the parties in this cause of action. This action is remanded for further proceedings.