State Securities, Inc. v. Anderson

OPINION

McMANUS, Chief Justice.

These suits were filed by State Securities, Inc., plaintiff-appellee, in January, 1970, in the magistrate court of San Juan County, Division II, to recover on notes alleged to be due. Jimmy Anderson, Ruby Anderson and Raymond Mike, defendants-appellants, are Navajo Indians who reside on the Navajo Indian Reservation. They answered, alleging in both cases lack of jurisdiction over their persons. The cases were heard in magistrate court and judgment was entered for State Securities, Inc. in both cases. Defendants appealed to the District Court of San Juan County and the cases were consolidated for the purpose of appeal. On motion of plaintiff and after a hearing and entry of stipulated findings of fact, the district court granted summary judgment for plaintiff against all defendants for past due amounts of money, plus costs and attorney fees. From that judgment, entered on May 28, 1971, defendants appeal.

The question presented is: May New Mexico state courts obtain jurisdiction over an Indian residing on an Indian reservation established by the United States government by issuing and serving process upon the Indian while he is on the reservation, such Indian having entered into a contract while off the reservation and in this state.

We believe that such jurisdiction is proper and our reasons may be found in the answers to three questions: (1) Fias Congress denied jurisdiction to New Mexico state courts? (2) Fias New Mexico disclaimed jurisdiction? (3) Would this jurisdiction infringe on the right of the Indians to govern themselves ?

Congress has not denied jurisdiction to New Mexico state courts. The United States Constitution, art. I, § 8, cl. 3, gives Congress the power “To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes, * *

In 25 U.S.C.A. § 2, Congress delegated its authority in these words:

“The Commissioner of Indian Affairs shall, under the direction of the Secretary of the Interior, and agreeably to such regulations as the President may prescribe, have the management of all Indian affairs and of all matters arising out of Indian relations.”

Pursuant to this authority, the Bureau of Indian Affairs issued the following regulation:

“The Courts of Indian Offenses shall have jurisdiction of all suits wherein the defendant is a member of the tribe or tribes within their jurisdiction, and of all other suits between members and nonmembers which are brought before the courts by stipulation of both parties.

[25 CFR § 11.22].”

25 CFR § 11.1(e) further states:

“Nothing in this section shall prevent the adoption by the tribal council of ordinances applicable to the individual tribe, and after such ordinances have been approved by the Secretary of the Interior they shall be controlling, and the regulations of this part which may be inconsistent therewith shall no longer be applicable to that tribe.”

Such ordinances have been adopted by the Navajo Tribal Council and approved by the Secretary of the Interior through the Commissioner of Indian Affairs. Title 7 of the Navajo Tribal Code, § 133, states, in part:

“The Trial Court of the Navajo Tribe .shall have original jurisdiction over:

“ * * *

“(b) Civil Causes of Action. All civil actions in which the defendant is an Indian and is found within its territorial jurisdiction.”

We believe that 25 CFR § 11.22 and Title 7 of the Navajo Tribal Code, § 133, confer original but not exclusive jurisdiction. There are two important reasons. First, providing Indian courts with exclusive jurisdiction in every action where an Indian is a defendant would be establishing abnormal jurisdiction, both in terms of what is presently exercised by other governmental units in the United States and what is necessary to achieve justice. Second, even the United States Supreme Court, construing the words “absolute jurisdiction and control,” has decided that “absolute” federal jurisdiction is not invariably exclusive jurisdiction. Organized Village of Kake v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1962). In the case before us the Indian court jurisdiction is not claimed to be exclusive, much less “absolute.”

New Mexico has not disclaimed jurisdiction. The New Mexico Constitution, art. XXI, § 2, states, in part, “The people inhabiting this state do agree and declare that they forever disclaim all right and title to * * * all lands * * * owned or held by any Indian or Indian tribes * * In ICake, supra, the Supreme Court of the United States, in an opinion authored by Justice Frankfurter, held that “The disclaimer of right and title by the State was a disclaimer of proprietary rather than governmental interest.” The Court was concerned at that time with the Alaska disclaimer, substantially similar to that of New Mexico. In the case before us, issuance and service of process is unrelated to any proprietary interest.

This jurisdiction would not infringe on the right of Indians to govern themselves.. We have held, supra, that governing acts, of Congress, through rules and regulations issued by the Bureau of Indian Affairs and further established in the Navajo-Tribal Code do not confer exclusive juris--

diction upon the Indian courts. Congress has therefore not prohibited jurisdiction by state courts. Now, we consider Williams v. Lee, 358 U.S. 217, 79 S.Ct. 269, 3 L.Ed.2d 251 (1959), which says:

i “Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them.”

New Mexico has recognized and applied -this test in Montoya v. Bolack, 70 N.M. 196, 372 P.2d 387 (1962).

In an attempt to determine whether Indian immunity from process is necessary in this case to protect the right of reservation Indians to make their own laws and be ruled by them, we have surveyed a number of cases and other authorities. According to some court decisions some powers reserved to Indians for their exclusive jurisdiction, and which may therefore be necessary for Indian self-government, are: jurisdiction to try an offense committed on the reservation by or against an Indian, Williams v. United States, 327 U.S. 711, 66 S.Ct. 778, 90 L.Ed. 962 (1946); extradition ■powers, if a tribe has codified and exercises its own extradition law, Arizona ex rel. Merrill v. Turtle, 413 F.2d 683 (9th Cir. 1969), cert. denied 396 U.S. 1003, 90 S.Ct. 551, 24 L.Ed.2d 494 (1970); authority to determine tribal membership subject only to the supervision and control of the federal government, Martinez v. Southern Ute Tribe of the Southern Ute Reservation, 249 F.2d 915 (10th Cir. 1957), cert. denied 356 U.S. 960, 78 S.Ct. 998, 2 L.Ed.2d 1067 (1958); right to control presence within Indian territory of non-Indians, Morris v. Hitchcock, 194 U.S. 384, 24 S.Ct. 712, 48 L.Ed. 1030 (1904); control of use of peyote on the reservation, Native American Church v. Navajo Tribal Council, 272 F.2d 131 (10th Cir. 1959); jurisdiction over an accident on the reservation between two Indians, Valdez v. Johnson, 68 N.M. 476, 362 P.2d 1004 (1961) ; jurisdiction over a divorce action between two Indians on the ^reservation, Whyte v. District Court, 140 Colo. 334, 346 P.2d 1012 (1959); civil jurisdiction over Indian defendants and non-Indian plaintiffs in cases concerning contract obligations which arise on the reservation, Williams v. Lee, supra; annexation of leased Indian lands by a municipality for the purpose of imposing sales taxes held unlawful, Your Food Stores, Inc. (NSL) v. Espanola, 68 N.M. 327, 361 P.2d 950 (1961); jurisdiction over tribal elections, Motah v. United States, 402 F.2d 1 (10th Cir. 1968); and tribes themselves are recognized as being immune from suit, Haile v. Saunooke, 246 F.2d 293 (4th Cir. 1957).

Powers not reserved to Indians for their exclusive jurisdiction appear to be: jurisdiction to try suits by Indians against outsiders in state courts, Felix v. Patrick, 145 U.S. 317, 12 S.Ct. 862, 36 L.Ed. 719 (1892) ; jurisdiction to try non-Indians who commit crimes against each other on a reservation, New York ex rel. Ray v. Martin, 326 U.S. 496, 66 S.Ct. 307, 90 L.Ed. 261 (1946); service of process on an Indian if he is on privately leased land, Batchelor v. Charley, 74 N.M. 717, 398 P.2d 49 (1965); taxation of income of Indians who derive all of their income from their employment on the reservation, Ghahate v. Bureau of Revenue, 80 N.M. 98, 451 P.2d 1002 (1969); jurisdiction of Indians off the reservation who violate state laws, Trujillo v. Prince, 42 N.M. 337, 78 P.2d 145 (1938); jurisdiction where an Indian sues a non-Indian for personal injuries and wrongful death resulting from an accident on the reservation, Paiz v. Hughes, 76 N.M. 562, 417 P.2d 51 (1966); service of process on a reservation in a suit between two non-Indians in a territorial court, Langford v. Monteith, 102 U.S. 145, 26 L.Ed. 53 (1880); taxation of property belonging to non-Indians on the reservation, Utah & Northern Railway v. Fisher, 116 U.S. 28, 6 S.Ct. 246, 29 L.Ed. 542 (1885); enforcement of the New Mexico Revised Uniform Reciprocal Enforcement of Support Act against an Indian defendant, Natewa v. Natewa, 84 N.M. 69, 499 P.2d 691 (1972); enforcement by the state of sanitation and quarantine laws on a reservation, inspections for health and educational purposes, and enforcement of compulsory school attendance ■ — all if the tribal governing body consents, 25 U.S.C.A. § 231. Indians may vote in state elections and receive state welfare without impairing the right of Indians to govern themselves, Montoya v. Bolack, supra; Acosta v. San Diego County, 126 Cal.App.2d 455, 272 P.2d 92 (1954).

We believe a reasonable summai'y of the preceding law, especially as it applies to New Mexico, may be found in Ransom and Gilstrap, Indians' — Civil Jurisdiction in New Mexico — State, Federal and Tribal Courts, 1 N.M.Law Rev. 196 (1971). In .this scholarly article, the authors conclude:

“It may be, then, that exclusive Indian jurisdiction exists when an action involves a proprietary interest in Indian land; or when an Indian sues another Indian on a claim for relief recognized only by tribal custom and law; or, subject to the Fourteenth Amendment argument, when an Indian is suing or being sued by another Indian or non-Indian over an occurrence or transaction arising in Indian country about which the Tribe does, or foreseeably will, in the exercise of its police power, assume sovereign control through tribal law, court, or executive action.”

In this case there is not a proprietary interest in land, one Indian is not suing another Indian and the transaction did not arise in Indian country.

State jurisdiction does not eliminate Indian jurisdiction, it exists concurrently with it. There is no interference with Indian self-government. Concurrent jurisdiction itself is not new in this state. It exists, for example, between district and probate courts [§ 30-2-24, N.M.S.A.1953 (1971 Pocket Supp.)], and between state and federal courts in appropriate diversity situations. Further, a kind of concurrent jurisdiction between two states is created by such “long arm” statutes as § 21-3-16, N.M.S.A.1953 (1971 Pocket Supp.) where personal service of process is permitted in the other jurisdiction.

Last, there is an affirmative reason why the state should have jurisdiction. In Natewa, supra, the court said:

“Appellant cannot interpose his special status as an Indian as a shield to protect him from obligations that result from his marriage to appellee which had been entered into off the reservation.”

While the nature of the present case is different, the principle is the same. Exclusive jurisdiction in Indian courts, which do not necessarily apply state law, may result in shielding Indians from obligations incurred off the reservation.

We believe that state jurisdiction is proper in cases between Indians and non-Indians involving contractual obligations incurred off the reservation and we hold that process may be served on Indians while they are within the boundaries of the reservation. ^

We are cognizant of the recent decision of this court in Sangre de Cristo Development Corporation, Inc. v. City of Santa Fe, 84 N.M. 343, 503 P.2d 323, and of the provisions of 25 U.S.C.A., §§ 1321 through 1324, relating to state assumption of criminal and civil jurisdiction over Indians. We believe that they are not applicable to the facts of this case.

The summary judgment entered by the district court is affirmed.

It is so ordered.

OMAN and STEPHENSON, JJ., concur. MONTOYA and MARTINEZ, JJ., dissenting.