Beth Eva Smith v. Stephen E Landrum

If this opinion indicates that it is “FOR PUBLICATION,” it is subject to
revision until final publication in the Michigan Appeals Reports.
STATE OF MICHIGAN
COURT OF APPEALS
BETH EVA SMITH and JOHN G. SMITH, FOR PUBLICATION
October 29, 2020
Plaintiffs-Appellants, 9:20 a.m.
v No. 347402
Baraga Circuit Court
STEPHEN E. LANDRUM and MAUREEN E. LC No. 2017-006780-CH
LANDRUM,
Defendants-Appellees.
Before: MURRAY, C.J., and CAVANAGH and CAMERON, JJ.
MURRAY, C.J.
The question presented in this quiet title action is whether a state court has subject-matter
jurisdiction to decide an easement dispute in favor of a non-Indian on land owned by a non-Indian
when the land is located on an Indian reservation. The trial court concluded that it did not, and
therefore entered a final order granting defendants’ motion for summary disposition under MCR
2.116(C)(4) (lack of subject-matter jurisdiction).1 For the reasons outlined below, we hold that
the trial court had subject-matter jurisdiction over the easement dispute. We therefore reverse the
order granting defendant’s motion for summary disposition, and remand for further proceedings.
I. BACKGROUND
The material facts relating to the jurisdictional issue are undisputed. The land at issue is
owned by defendant, who is not an Indian. Plaintiffs, who seek a prescriptive easement over a part
of defendant’s land, are also not Indians. The land, however, is located within the L’Anse Indian
1
According to defendants’ response, defendant Maureen Landrum is deceased. Use of the singular
“defendant” will refer to defendant Stephen Landrum.
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Reservation, but it is not held in trust for the tribe or any tribal member (or any Indian, for that
matter).2
Although the land is not currently owned by an Indian, it was previously owned by Mark
Perrault, who was a member of the Keweenaw Bay Indian Community. Specifically, the record
shows that two “Deeds to Restricted Indian Land” were issued by the United States Department
of the Interior, Bureau of Indian Affairs, conveying the property at issue to “The United States of
America in trust for Mark H. Perrault, Chippewa Indian.” The deeds state that “[t]his conveyance
is made pursuant to the provisions of the Act of June 18, 1934 ([25 USC 461, et seq., now 25 USC
5101], 48 Stat. 984.),” and that they were recorded in the “Bureau of Indian Affairs Inherited
Indian Land Deed Book.”
After Perrault died, a Department of the Interior administrative law judge held a proceeding
“to determine the heirs, to determine the validity of the Last Will and Testament, and to settle the
estate” of Perrault, which included “trust or restricted property” located on the L’Anse Indian
Reservation.3 As a result of the hearing, the property passed to Perrault’s wife, Noreen, with the
order stating that Noreen’s share “will pass to her in unrestricted or non-trust status by virtue of
the fact that she is non-Indian, and her share shall become subject to the jurisdiction of the state
where the land is located. Estate of Dana A Knight, 9 IBIA 82, 88 (1981); Bailess v Paukune, 344
U.S. 171[; 73 S. Ct. 198; 97 L. Ed. 197] (1952); Levindale Lead [& Zinc Mining Co] v Coleman, 241
U.S. 432[; 36 S. Ct. 644; 60 L. Ed. 1080] (1916).” Noreen subsequently conveyed the property to
Perrault’s son and three daughters, all of whom are Indians, by warranty deed dated January 23,
2002, and registered the deed with the Baraga County Register of Deeds. These four owners then
conveyed the property to defendant (again, a non-Indian) by warranty deed dated August 3, 2012,
and that deed was also registered with the county register of deeds.
After the complaint was filed and served, defendant moved for summary disposition under
MCR 2.116(C)(4), arguing that the circuit court lacked subject-matter jurisdiction because
defendant’s property is located within the borders of the reservation, and a previous owner in the
chain of title, Perrault, was a tribal member. Relying on the Keweenaw Bay Indian Community
Tribal Code, §§ 1.102 and 1.103, defendant argued that a state court does not have subject-matter
jurisdiction to impose a prescriptive easement over land located within the exterior boundaries of
an Indian reservation, even when the land owner and parties are non-Indians. Defendant
maintained that under 28 USC 1360,4 the case must be adjudicated in federal court if the tribal
court does not take jurisdiction.
2
The Keweenaw Bay Indian Community’s reservation is the L’Anse Indian Reservation, located
in Baraga County.
3
25 USC 373 governs “disposal by will of allotments held under trust,” and states that “no will so
executed shall be valid or have any force or effect unless and until it shall have been approved by
the Secretary of the Interior[.]” The statute also provides that the Secretary of the Interior may
“cause patent in fee to be issued to the devisee or devisees[.]”
4
As discussed later, 28 USC 1360 governs state jurisdiction in actions in which Indians are parties.
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For their part, plaintiffs argued that the circuit court had subject-matter jurisdiction because
the land is owned in fee simple by defendant, and is not held in trust by the United States
government for an Indian person. Plaintiffs contended that defendant’s argument rested on the
erroneous assertion that defendant’s land is held in federal trust for an Indian, when in fact the
parcel was transferred out of trust through the September 14, 2001 order, and has never been
transferred back into trust.
After holding a hearing on defendant’s motion, the trial court subsequently issued a written
opinion and order granting the motion. The trial court expressed concern for creating a “
‘checkerboard’ jurisdiction causing confusion, inconsistencies and potentially disruptive land use
problems,” and ultimately opined that because the land was located within the reservation, either
that tribe’s tribal court, or a federal district court, had jurisdiction over the dispute, and depending
on where the case was refiled, that other court should decide whether it had jurisdiction:
Indian tribes are sovereign nations with the inherent authority to regulate both their
members and their territories. Our Michigan Court of Appeals, in the unpublished
case of State Treasurer v Duty, [unpublished per curiam opinion of the Court of
Appeals, issued January 12, 2016 (Docket No. 323854)], quoted the United States
Supreme Court:
“Generally speaking, primary jurisdiction over land that is Indian
country rests with the Federal Government, and the Indian tribe
inhabiting it, and not with the States.” Alaska v Native Village of
Venetie Tribal Gov’t, 522 U.S. 520, 527 n 1; 118 S. Ct. 948; 140 L. Ed.
2d 30 (1998.)
The Tribal Code of the Keweenaw Bay Indian Community conforms to the above
set forth statement. Section 1.102 of the code states:
“The territorial jurisdiction of the Tribal Court shall encompass all
areas within the exterior boundaries of the L’Anse Indian
Reservation, Michigan, as well as all areas within the exterior
boundaries of any other lands or waters which now or hereafter shall
be held in Trust by the United States of America for the Keweenaw
Bay Indian Community or any of its members.
“Further, and for the purpose of enforcement of approved tribal
hunting, trapping, gathering, farming, and fishing regulations
enacted to regulate treaty protected off-reservation hunting,
trapping, gathering, farming, and fishing activities, such territorial
jurisdiction shall extend to all areas where such treaty rights shall
exist.”
It is to be noted that the Tribal Code says “all” areas within the exterior boundaries
of the L’Anse Indian Reservation without limitation. All areas within the exterior
boundaries of the L’Anse Indian Reservation would include not only land owned
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by the tribe, itself, but also land owned both by tribal member and nonmembers
alike.
As a practical matter, Sec. 1.102 of the Keweenaw Bay Indian Community Tribal
Code makes sense. A system where state courts have jurisdiction over fee lands
owned by non-tribal members, and tribal and/or federal courts have jurisdiction
over all remaining lands would, within an Indian reservation, create “checkerboard”
jurisdiction causing confusion, inconsistencies and potentially disruptive land use
problems.
The issue presented in this case is not whether the tribal court has jurisdiction over
non-tribal members based upon the nonmember[’]s conduct, but instead, the issue
is whether the tribe has jurisdiction to decide issues concerning Indian country land
located within the L’Anse Indian Reservation. Our Court of Appeals in the
unpublished case of Joseph K Lumsden Bahweting Pub Sch Academy v Sault Ste
Marie Tribe of Chippewa Indians, [unpublished per curiam opinion of the Court of
Appeals, issued October 26, 2004 (Docket No. 252293)], questioned whether a state
court has jurisdiction to entertain the issue of whether a tribal court would have
subject matter jurisdiction.
* * *
This Court believes, without deciding, that the Keweenaw Bay Indian Community
Tribal Court could exercise jurisdiction over the matter in dispute in this lawsuit;
and thus, this Court is not a proper forum to decide the jurisdiction of the Keweenaw
Bay Indian Community Tribal Court and/or the federal court in the setting of this
lawsuit; and therefore, summary disposition is hereby GRANTED pursuant to the
provisions of [MCR] 2.116(C)(4).
This appeal ensued.
II. ANALYSIS
The question whether a court has subject-matter jurisdiction to hear a particular claim is a
question of law that this Court reviews de novo. Jamil v Jahan, 280 Mich. App. 92, 99-100; 760
NW2d 266 (2008). “The burden is on the plaintiff to establish jurisdiction.” Universal Am-Can
Ltd v Attorney General, 197 Mich. App. 34, 37; 494 NW2d 787 (1992).
“Subject[-]matter jurisdiction in particular is defined as the court’s ability to exercise
judicial power over that class of cases; not the particular case before it, but rather the abstract
power to try a case of the kind or character of the one pending.” Campbell v St John Hosp, 434
Mich. 608, 613-614; 455 NW2d 695 (1990) (quotation marks and citation omitted). Circuit courts
are courts of general jurisdiction and derive their power from the Michigan Constitution. Okrie v
Michigan, 306 Mich. App. 445, 467; 857 NW2d 254 (2014). Specifically, Const 1963, art 6, § 13
provides:
The circuit court shall have original jurisdiction in all matters not prohibited
by law; appellate jurisdiction from all inferior courts and tribunals except as
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otherwise provided by law; power to issue, hear and determine prerogative and
remedial writs; supervisory and general control over inferior courts and tribunals
within their respective jurisdictions in accordance with rules of the supreme court;
and jurisdiction of other cases and matters as provided by rules of the supreme
court.
The Revised Judicature Act also provides that “[c]ircuit courts have original jurisdiction to hear
and determine all civil claims and remedies, except where exclusive jurisdiction is given in the
constitution or by statute to some other court or where the circuit courts are denied jurisdiction by
the constitution or statutes of this state.” MCL 600.605.
In light of these statutory provisions, a circuit court is presumed to have subject-matter
jurisdiction over a civil action unless Michigan’s Constitution or a statute (1) expressly prohibits
it from exercising jurisdiction, or (2) gives to another court exclusive jurisdiction over the subject
matter of the suit. Prime Time Int’l Distrib, Inc v Dep’t of Treasury, 322 Mich. App. 46, 52; 910
NW2d 683 (2017). “ ‘[W]here this Court must examine certain statutory language to determine
whether the Legislature intended to deprive the circuit court of jurisdiction,’ this Court has
explained, ‘[t]he language must leave no doubt that the Legislature intended to deprive the circuit
court of jurisdiction of a particular subject matter.’ ” Id. (citation omitted).
There is no dispute that the land at issue is within the exterior boundaries of the L’Anse
Indian Reservation.5 There is also no dispute that the land is non-Indian fee land, as it is land
originally allotted6 to tribal members, but later transferred in fee to non-Indians and never
reacquired in trust. Under 18 USC 1151,7 “Indian country” includes all of the territory within the
exterior boundaries of an Indian reservation. Consequently, land that non-Indians own in fee
simple is also Indian country if it lies within the exterior boundaries of an Indian reservation. See
Seymour v Superintendent of Washington State Penitentiary, 368 U.S. 351, 357-358; 82 S. Ct. 424;
7 L. Ed. 2d 346 (1962), McGirt v Oklahoma, ___ US ___; 140 S. Ct. 2452; 207 L. Ed. 2d 985 (2020),
slip op at 10-11, and United States v Webb, 219 F3d 1127, 1131 (CA 9, 2000) (“if the property is
within boundaries of the reservation, it is Indian country irrespective of whether title is now held
by a non-Indian.”).
The trial court opined that the dispositive issue was whether the tribal court had jurisdiction
over the reservation land dispute, but the issue presented by defendant’s motion was whether the
5
According to Solem v Bartlett, 465 U.S. 463, 470; 104 S. Ct. 1161; 79 L. Ed. 2d 443 (1984), “[o]nce
a block of land is set aside for an Indian Reservation and no matter what happens to the title of
individual plots within the area, the entire block retains its reservation status until Congress
explicitly indicates otherwise.”
6
“Allotment is a term of art in Indian law. It refers to the distribution to individual Indians of
property rights to specific parcels of reservation.” Yankton Sioux Tribe v Gaffey, 188 F3d 1010,
1015 (CA 8, 1999).
7
Section 1151 was originally enacted to define criminal jurisdiction, but its definition of Indian
country is widely recognized to also apply to civil matters. See Alaska, 522 U.S. at 527.
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circuit court had jurisdiction, and though that question is partially resolved by looking to whether
the exercise of state jurisdiction would affect the tribe’s self-governance, ultimately the question
is whether the state court had jurisdiction over this dispute. In deciding that issue, the parties and
the trial court should have focused on Williams v Lee, 358 U.S. 217, 220; 79 S. Ct. 269; 3 L. Ed. 2d
251 (1959), as that decision set forth the “infringement test” for determining whether a state court
can exercise jurisdiction over a dispute involving non-Indians and their property located on a
reservation. Pueblo of Santa Ana v Nash, 972 F Supp 2d 1254, 1262 (D NM, 2013) (“The seminal
United States Supreme Court decision concerning state civil adjudicatory authority in Indian
country is Williams v Lee.”).8 We now turn to Williams and its progeny.
According to Williams, a state court can exercise jurisdiction over a dispute involving non-
Indians and Indians on reservation land so long as doing so (1) is not preempted by federal law, or
(2) does not unlawfully infringe on the right of the tribe to make and live by its own rules.
Williams, 358 U.S. at 220. Because states have an interest in resolving disputes involving non-
Indians, and tribes have an interest in what occurs within its reservation, the Williams test “was
designed to resolve this conflict by providing that the State could protect its interest up to the point
where tribal self-government would be affected.” McClanahan v State Tax Comm of Arizona, 411
U.S. 164, 179; 93 S. Ct. 1257; 36 L. Ed. 2d 129 (1973). In C’Hair v Dist Court of the Ninth Judicial
Dist, 357 P3d 723, 730 (WY, 2015) (citations omitted in part), the Wyoming Supreme Court nicely
summarized the Williams test:
In summary, Williams and its progeny stand for the rule that a state may
assert jurisdiction over an activity or a dispute involving a non-Indian and arising
within the boundaries of a tribal reservation if: 1) the state’s exercise of authority
is not preempted by incompatible federal law; and 2) the state’s exercise of
authority does not infringe on the right of reservation Indians to make their own
laws and be ruled by them. As the Supreme Court has observed, “The upshot has
been the repeated statements of this Court to the effect that, even on reservations,
state laws may be applied unless such application would interfere with reservation
self-government or would impair a right granted or reserved by federal law.”
Mescalero Apache Tribe v Jones, 411 U.S. 145, 148; 93 S. Ct. 1267; 36 L. Ed. 2d 114
(1973) (citations omitted).
Neither party has pointed to any federal law that would be incompatible with a state court’s
exercise of jurisdiction over an easement dispute between non-Indians on the reservation. Thus,
we turn to the second Williams test—whether exercise of state authority over this easement dispute
would infringe on the tribal interest in self-government. 9
8
Some of the decisions address state jurisdiction in ways other than through a state court, like
action by a state administrative agency. But it matters little which form of state jurisdiction is
asserted (regulatory or adjudicatory), as the question is resolved through the same analysis. See
C’Hair v Dist Court of the Ninth Judicial Distt, 357 P3d 723, 729-730 (WY, 2015).
9
Indian tribes are recognized as “distinct, independent political communities” whose sovereignty
“is of a unique and limited character.” Plains Commerce Bank v Long Family Land and Cattle
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In making this determination, we are guided in part by an exception to the preclusion of
tribal court jurisdiction over non-Indians on Indian land developed in Montana v United States,
450 U.S. 544, 565; 101 S. Ct. 1245; 67 L. Ed. 2d 493 (1981), a case in which the Court held that an
Indian tribe did not have jurisdiction to preclude hunting and fishing by non-Indians on non-Indian
fee land. Much like the Williams infringement test, the second exception to the Montana rule
focuses on whether precluding tribal jurisdiction over non-Indians would “directly affect[] the
tribe’s political integrity, economic security, health or welfare.’” Evans v Shoshone-Bannock Land
Use Policy Comm, 736 F3d 1298, 1303 (CA 9, 2013) (quotation marks omitted), citing Strate v A-
1 Contractors, 520 U.S. 438, 446; 117 S. Ct. 1404; 137 L. Ed. 2d 661 (1997). As can be seen, there
is an overlap in the tests to determine when state jurisdiction exists (under Williams) and where
tribal jurisdiction exists (under Montana), as both focus in large part on what impact (if any)
jurisdiction would have on the right of a tribe to make and live by its own rules. See C’Hair, 357
P3d at 731 (“Although the Williams test is controlling in determining whether the district court
properly assumed jurisdiction . . . , we also must consider the principles announced by the Supreme
Court in its 1981 decision in Montana . . . . These cases are relevant to our analysis because,
although they address tribal sovereignty from the perspective of limitations on tribal jurisdiction
over non-Indians, rather than limitations on state jurisdiction, their holdings closely parallel
the Williams analysis and inform the application of that analysis.”), Gustafson v Poitra, 916 NW2d
804, 810; 2018 ND 202 (2018) (“the lack of tribal jurisdiction is a factor to be considered in
determining whether state court jurisdiction exists”), and Cordova v Holwegner, 93 Wash App
955, 967; 971 P2d 531 (1999) (“The infringement [Williams] test and the Montana analysis
examine the limits of tribal inherent sovereignty from different perspectives, the former by
examining the extent of state jurisdiction and the latter by examining the extent of tribal
jurisdiction. In some respects, the infringement test and the Montana analysis are merely different
formulations of the same underlying concept.”).
Turning to an application of Williams to the undisputed material facts, we readily conclude
that the exercise of state jurisdiction over this easement dispute would in no way interfere with the
tribe’s power to control and govern its members and internal affairs. Williams, 358 U.S. at 220.
This holds true for several reasons. First and foremost, neither party is an Indian, and the land is
neither land held in trust for the tribe (or a tribal member) nor owned individually by an Indian.
Instead, it is fee land located within the reservation, or what the Supreme Court has termed “non-
Indian fee land.” Strate, 520 U.S. at 446. And with respect to non-Indian fee land, the Supreme
Court has made clear that “once tribal land is converted into fee simple, the tribe loses plenary
jurisdiction over it.” Plains Commerce Bank v Long Family Land and Cattle Co, 554 U.S. 316,
328; 128 S. Ct. 2709; 171 L. Ed. 2d 457 (2008). Indeed, “efforts by a tribe to regulate nonmembers,
especially on non-Indian fee land, are ‘presumptively invalid.’ ” Id. at 330 (citation omitted). As
the Plains Commerce Bank Court concluded, this holds true in part because any harm to a tribe’s
interest in regulating reservation land is generally lost once the land is sold by an Indian to a non-
Indian:
Co, 554 U.S. 316, 327; 128 S. Ct. 2709; 171 L. Ed. 2d 457 (2008). See also, Paquin v St Ignace, 504
Mich. 124, 134-135; 934 NW2d 650 (2019).
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By definition, fee land owned by nonmembers has already been removed from the
tribe’s immediate control. See Strate, 520 U.S. at 456 (tribes lack power to “assert
[over non-Indian fee land] a landowner’s right to occupy and exclude”). It has
already been alienated from the tribal trust. The tribe cannot justify regulation of
such land’s sale by reference to its power to superintend tribal land, then, because
non-Indian fee parcels have ceased to be tribal land.
Nor can regulation of fee land sales be justified by the tribe’s interests in
protecting internal relations and self-government. Any direct harm to its political
integrity that the tribe sustains as a result of fee land sale is sustained at the point
the land passes from Indian to non-Indian hands. It is at that point the tribe and its
members lose the ability to use the land for their purposes. Once the land has been
sold in fee simple to non-Indians and passed beyond the tribe’s immediate control,
the mere resale of that land works no additional intrusion on tribal relations or self-
government. Resale, by itself, causes no additional damage. [Id. at 336.]
Here, the land over which the easement allegedly exists is owned in fee by defendant, a non-Indian.
The land has been considered non-Indian fee land since it was transferred out of Indian possession
in 2012, and since that time the tribal interest in regulating that land has been de-minimis.10 To
the extent that divestiture of land harmed the tribe’s economic security or political integrity (and
there is no suggestion that it did), it would have resulted from the 2012 transaction, not when and
if a state trial court rules on an easement dispute unrelated to the sale of the land from an Indian to
a non-Indian.
Additionally, a state court decision on the existence of an easement would not interfere
with the ability of the tribe to determine its own rules and govern itself and its members. The tribal
powers most frequently cited by courts as critical to tribal self-government are the power to
determine tribal membership, legislate and tax on-reservation activities, including some activities
by nonmembers, and to exclude people from the reservation. Id. at 328-329. None of these tribal
self-government interests would be impacted by the circuit court’s decision on the easement
dispute since it does not involve tribal members or land owned by tribal members. Nor does this
case involve a zoning issue or other land use issue that could have the potential for impacting land
use regulations.
As is evident, critical to resolution of the jurisdictional issue is both the status of the land
as non-Indian fee land and that both parties are non-Indians. As we noted earlier, Montana
articulated a “ ‘general proposition that the inherent sovereign powers of an Indian tribe do not
10
For this reason, as well as several others, defendant’s citation to Boisclair v Superior Court, 51
Cal 3d 1140; 801 P2d 305 (1990), does not help defendant. For one thing, Boisclair involved
many parties, some of whom were Indians, and part of the dispute centered on trust property.
Boisclair, 51 Cal 3d at 1144. Additionally, the central jurisdictional issue centered on a federal
statute, 28 USC 1360, that has no application to Michigan. Id. at 1146. Finally, the court ruled
that to the extent the dispute involved non-Indians and non-Indian fee land, state court jurisdiction
existed. Id. at 1157.
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extend to activities of nonmembers of the tribe’, [and thus] efforts by a tribe to regulate
nonmembers, especially on non-Indian fee land, are ‘presumptively invalid.’ ” Plains Commerce
Bank, 554 U.S. at 330, quoting Atkinson Trading Co v Shirley, 532 U.S. 645, 651, 659; 121 S. Ct.
1825; 149 L. Ed. 2d 889 (2001), and Montana, 450 U.S. at 565. Accordingly, tribes face a
“formidable burden” in meeting the second Montana exception, as “ ‘with only “one minor
exception, [the Supreme Court has] never upheld under Montana the extension of tribal civil
authority over nonmembers on non-Indian land.” ’ ” Evans, 736 F3d at 1303, quoting Plains
Commerce Bank, 554 U.S. at 333, quoting Nevada v Hicks, 533 U.S. 353, 360; 121 S. Ct. 2304; 150
L. Ed. 2d 398 (2001).11 See also, Strate, 520 U.S. at 446 (describing the “general rule that, absent a
different congressional direction, Indian tribes lack civil authority over the conduct of nonmembers
on non-Indian land within a reservation.”).
Though no Michigan case has yet to apply Williams to a reservation land dispute between
non-Indians,12 our Court recognized years ago that the state has a significant jurisdictional interest
in resolving criminal matters that arose between non-Indians on reservation land. People v Collins,
298 Mich. App. 166, 175-177; 826 NW2d 175 (2012), citing in part United States v Antelope, 430
U.S. 641, 643 n 2; 97 S. Ct. 1395; 51 L. Ed. 2d 701 (1977). This same state interest in maintaining
criminal jurisdiction over non-Indians actions on non-Indian fee land within a reservation—and
the lower tribal interest in regulating the same—applies to civil disputes, a conclusion also reached
by the New Mexico Court of Appeals in a case involving a permit dispute between two non-Indians
on reservation land. See Alexander v Cook, 90 NM 598, 601; 566 P2d 846 (1977) (the court
recognized that the tribal interest in regulating civil disputes on reservation land is at its lowest
point when the dispute involves non-Indians, just as state and federal courts have held with respect
to identical situations under criminal law).
Finally, we look to an analogous case, Gustafson, 916 NW2d 804, which addressed
whether the second Montana exception applied to give tribal court jurisdiction over non-Indian fee
land. In that quiet title action filed in state district court, the defendants argued that the state court
had no jurisdiction to resolve the dispute because the land was located within the borders of an
Indian reservation. Id. at 805. The trial court concluded that neither of the Montana exceptions
applied, and ruled that it had jurisdiction. Id. at 805-806. Relying upon a prior decision13 holding
that when a tribal member conveys “a parcel of fee land ‘to non-Indians, [the tribe] loses any
former right of absolute and exclusive use and occupation of the conveyed lands,’ ” and “[a]s a
general rule, then, ‘the tribe has no authority itself, by way of tribal ordinance or action in tribal
courts, to regulate the use of fee land’ ” absent application of one of the Montana exceptions, id.
11
That one exception came in a fractured opinion that concluded that a tribe had the authority to
regulate certain use of non-Indian fee land through zoning regulations. Brendale v Confederated
Tribes and Bands of Yakima Indian Nation, 492 U.S. 408; 109 S. Ct. 2994; 106 L. Ed. 2d 343 (1989).
Although the trial court’s concern regarding a “checkerboard” reservation might have merit if this
were a zoning or other land use case, it is not a concern with respect to an isolated easement
question based on existing use.
12
Actually, Williams has never been cited by any Michigan court, at least as far as we have found.
13
Fredericks v Fredericks, 888 NW2d 177; 2016 ND 234 (2016).
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at 808, the court held that neither applied to grant a tribal court jurisdiction over the non-Indian
fee land dispute:
The second exception from Montana . . . has been narrowed
to conduct that must “imperil the subsistence” of the tribal
community and that “tribal power must be necessary to avert
catastrophic consequences.” Fredericks [v Fredericks, 888 NW2d
177; 2016 ND 234, ¶ 9 (2016)] (citing Plains Commerce [Bank], at
341 [128 S. Ct. 2709]). The quiet title action in the current case for
the fee land at issue simply doesn’t rise to these heightened
requisites. Should this Court quiet title to this land in Gustafson,
such action would not imperil the subsistence of the Turtle Mountain
Tribal Community, nor would the reservation of the tribal power be
necessary to avert catastrophic consequences. Id. While the loss of
this formerly Indian-owned fee land to a third party non-Indian is
quite possibly disappointing to the Turtle Mountain Tribe, it cannot
be called catastrophic for tribal self-governance. Id. at ¶ 10.
We agree with the district court’s analysis. This is not an action by the
Poitras to collect on a claimed breach of a lease of their land to Gustafson. See
Gustafson v Estate of Poitra, 2011 ND 150, ¶¶ 3-5, 8, 14-15; 800 NW2d 842
(vacating state court judgment involving interpretation of lease for Indian-owned
fee land within the exterior boundaries of Turtle Mountain Indian Reservation
where non-Indian lessee brought action against Indian lessors in state court).
Rather, this is a quiet title action by Gustafson, a non-Indian owner of fee land
within the reservation, to clear his record title to the land and to recover damages
for the Poitras’ conduct in filing a lessor’s lien with the Rolette County Register of
Deeds and notifying Gustafson’s bank about the lessor’s lien. At the time this
action was brought, Gustafson, a non-Indian, was the record title owner of the fee
land. See Plains Commerce Bank, 554 U.S. at 339; 128 S. Ct. 2709; Fredericks, 2016
ND 234, ¶ 7; 888 NW2d 177. The fee land at issue in this case had previously
passed to Gustafson in the foreclosure action, and at that point, passed outside the
immediate control of the Tribe and the Poitras. Gustafson’s quiet title action works
no additional intrusion on tribal relations or self-government and does not imperil
the subsistence of the Tribe or the tribal community and cannot fairly be called
catastrophic for tribal self-government. See Fredericks, at ¶ 11. We conclude the
district court did not err in deciding the tribal court does not have jurisdiction over
Gustafson’s action to quiet title and to recover damages under the Montana
exceptions. [Gustafson, 916 NW2d at 809-810.]
The same holds true here. Exercise of jurisdiction by the circuit court would have no
significant, catastrophic-type consequences to the tribe and its power to control and govern its
members and affairs. Williams, 358 U.S. at 220. Frankly, there would be little interference, if any,
with tribal self-government as a result of the circuit court ruling. The tribe lost control of the
disputed land (perhaps not all activity on that land, but the land itself) when it was transferred by
Indians to non-Indians in 2012. Now that the land is non-Indian fee land, the presumption is
against tribal jurisdiction, and resolution of the easement dispute between non-Indians on non-
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Indian fee lands will have no meaningful impact on the tribe’s authority over the reservation and
its members. State court jurisdiction exists to decide this matter.14
III. CONCLUSION
For these reasons, we reverse the trial court’s order granting defendant’s motion for
summary disposition, and remand for further proceedings. We do not retain jurisdiction. No costs
to either party, a question of public significance being raised.
/s/ Christopher M. Murray
/s/ Mark J. Cavanagh
/s/ Thomas C. Cameron
14
The unpublished case relied upon by the trial court, Joseph K Lumsden Bahweting Pub Sch
Academy v Sault Ste Marie Tribe of Chippewa Indians, unpublished per curiam opinion of the
Court of Appeals, issued October 26, 2004 (Docket No. 252293), has no bearing on this issue.
Aside from the fact that it is unpublished, it has no persuasive authority because it involved an
agreement between an Indian and non-Indian that contained a forum selection clause requiring
certain litigation in the tribal court. There is no agreement between these parties with regard to a
particular forum. Additionally, the Court’s discussion of the efficacy of determining whether a
tribal court could exercise jurisdiction (an issue we are not confronted with) was in the context of
an argument over sovereign immunity, an issue also not presented in this case.
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