State Ex Rel. Peterson v. District Court of the Ninth Judicial District

RAPER, Chief Justice,

specially concurring.

In my view, this is one of those cases where we must accept with some apprehension a body of law which represents retrogression rather than progress in the functioning of the judicial institution. I have a sense of helplessness and resignation in having to banish Milbank Mutual to an inadequate court to seek relief — to a system of justice within the boundaries- of this state which is repugnant to an independent, modern judicature such as we find within the courts of this state and the courts of the federal system. Though the tribal court is a federally sanctioned tribunal, I do not include it as a part of the federal court system to which I refer.

I do not disagree with the opinion of the court, in which I do and must join; the Indian court has exclusive jurisdiction in this case. It is not the function of the majority opinion to discuss the insufficiency of the Indian court system and it was properly avoided; but, I consider the subject appropriate for a separate concurrence for which I am solely responsible. The court’s opinion represents the cold logic of the law by which we are bound. My concern is that the United States of America has saddled the citizens of this state and this country with an inferior court system to decide cases such as the one before us. The Court of Indian Offenses, which is the title of the court variously referred to as an Indian or tribal court, is not one created by an Indian sovereignty — the tribes themselves — but is a court administratively created within the structure of the United States Department of the Interior through its Bureau of Indian Affairs. In what follows, it must be understood that I am not critical of the Indian tribes nor the judges serving on their courts.

A review of the controlling regulations will reveal the intolerable features of the system. The stipulation of the parties and the affidavit of the chief judge of the Wind River Court of Indian Offenses employed by the Bureau of Indian Affairs discloses that the court is operated and acts within 25 C.F.R. § 11.1 through § 11.32C. The judges of the Court of Indian Offenses are appointed by the Commissioner of Indian Affairs subject to confirmation by a two-thirds vote of the tribal council, 25 C.F.R. § 11.3(b). The only qualifications required are that the judge be (1) a member of the tribe under the jurisdiction of the court; and (2) he must never have been convicted of a felony, or within one year last past, of a misdemeanor, 25 C.F.R. § 11.3(d). There is no requirement that judges be legally trained nor any restrictions on who may represent the parties as attorneys — there is no recognized bar.

The tribal council and the Commissioner of Indian Affairs approves, and it would appear designs, the details of judicial procedure, 25 C.F.R. § 11.5(b). There appears to be no provision for a court reporter. Whenever the court is in doubt about any law, treaty or regulation, it may request the superintendent of the reservation to furnish an opinion on the point in question. 25 C.F.R. § 11.12(b). It is not a court of record. It is unbelievable that a judge must go to the executive branch for advice as to how to decide a case.

The law applicable to civil actions is outlined in 25 C.F.R. § 11.23:

“(a) In all civil cases the Court of Indian Offenses shall apply any laws of the United States that may be applicable, any authorized regulations of the Interior Department, and any ordinances or customs of the tribe, not prohibited by such Federal laws.

“(b) Where any doubt arises as to the customs and usages of the tribe the court may request the advice of counsellors familiar with these customs and usages.

“(c) Any matters that are not covered by the traditional customs and usages of the tribe, or by applicable Federal laws and regulations, shall be decided by the Court of Indian Offenses according to the laws of the State in which the matter in dispute may lie.”

Even the designation of the court — Court of Indian Offenses — is inappropriate to a court granted unlimited jurisdiction in civil cases. The customs and usages of the tribes are an unknown quantity and not authoritatively compiled in writing to form a body of law having any predictability in order to determine their effect on the laws of the United States or state of Wyoming. For example, what effect do they have on the Uniform Commercial Code?

The scope of judgments which may be entered are interesting:

“(a) In all civil cases, judgment shall consist of an order of the court awarding money damages to be paid to the injured party, or directing the surrender of certain property to the injured party, or the performance of some other act for the benefit of the injured party.

“(b) Where the injury inflicted was the result of carelessness of the defendant, the judgment shall fairly compensate the injured party for the loss he has suffered.

“(c) Where the injury was deliberately inflicted, the judgment shall impose an additional penalty upon the defendant, which additional penalty may run either in favor of the injured party or in favor of the tribe.

“(d) Where the injury was inflicted as the result of accident, or where both the complainant and the defendant were at fault, the judgment may compensate the injured party for a reasonable part of the loss he has suffered.” 25 C.F.R. § 11.24C.

These provisions appear relatively inoffensive as generalities; but when colored by tribal customs' and stirred into a hodgepodge of Interior regulations, federal law and state law, no sufficient guidelines are present and a grand state of judicial chaos is bound to result, particularly for the lay judge.

A jury is called when the judge decides, through preliminary proceedings, there is a substantial fact question to be decided. After that decision is made, the “defendant” may request a jury trial. The tribal council prepares a list of eligible jurors. Six jurors are drawn by the judge from the list. Each party to a case may challenge three. A verdict may be rendered by a two-thirds majority vote. 25 C.F.R. § 11.7C. There appears to be no provision which would provide a jury trial in a civil case; or if there is, only the defendant may request one.

Provision for Indian custom divorce and the role of the court is determined by the tribal council, 25 C.F.R. § 11.28, as is tribal custom adoption, 25 C.F.R. § 11.29. Tribal courts may determine paternity and support, 25 C.F.R. § 11.30. It may determine heirs and divide property of decedents, 25 C.F.R. § 11.31, but may not approve wills. The Secretary of the Interior determines validity of wills. 25 C.F.R. § 11.32C.¹

The appellate system is unique. According to the stipulated facts, the Wind River Court of Indian Offenses is comprised of a chief judge, two associate judges, a clerk of court, an assistant clerk of court, and a bailiff. Under 25 C.F.R. § 11.6C all of the judges of the reservation except the trial judge sit together to hear appeals from judgments made by any judge at the trial sessions. That leaves an appellate court of two judges. There is to be established by rule of court the limitations, if any, to be placed in for the right of appeal, both as to types of cases which may be appealed and the manner of granting. There does not appear to be any provision for published opinions of the Indian appellate courts which would provide a body of precedent available to those compelled to go into the Indian court system.

It is to this crudely constructed system suitable for handling only the most minor type of litigation that is entrusted the most complex sort of cases with unlimited jurisdiction to afford relief.

In a study by the American Bar Foundation entitled “American Indian Tribal Courts, the Costs of Separate Justice” authored by a research attorney, Samuel J. Brakel,² the competency of the system in operation is critically assailed. The author describes tribal courts as little more than “pale copies of the white system.” Historically there were no “courts” as “judges” within the Indian society. According to Brakel, much was left to private means of enforcement, appropriate action in many conflict situations being the responsibility of the family or the clan. If resort to more public agencies was had, it might have been to tribal councils, soldier or hunter societies, secular or religious leaders, respected elders, etc. Banishment, public ridicule, and restitution played large roles in traditional Indian dispute resolution. The Indian court is, therefore, artificial — and an unnatural creation superimposed upon the Indian society. That being the case, then the United States government should have established a proper system representing the attributes of the democratic ideal. It is not unusual for us to recognize the jurisdiction of another state and the United States; but those jurisdictions represent the same judicial ideals as ours and recognize the separation of legislative, executive and judicial branches of government.

It is true, as pointed out in the court’s opinion, that the legislature of this state is authorized by 25 U.S.C. § 1322 to assume jurisdiction over civil causes arising within Indian country, qualified by 25 U.S.C. § 1326 requiring approval by a majority vote of the adult Indians affected by the assumption. It would be my recommendation that the Wyoming State Legislature enact such enabling legislation in order for the door to be open and the chance that the Indians of the Wind River Reservation may be willing to accept a more satisfactory system. They may not, but at least the opportunity will be present; and it will be no fault of this state that a more acceptable system may not be had.

North Dakota acted under the available federal legislation, but the Indians failed to accept state court jurisdiction. In Re Whiteshield, N.D.1963, 124 N.W.2d 694. The court there held the state legislation to be a disclaimer of state jurisdiction over civil causes of action arising on an Indian reservation, in the absence of acceptance by the Indians. We are, however, in no better situation. Though jurisdiction has not been disclaimed, it simply is not available.

As I understand this court’s opinion, in any civil cause of action which arises on the Wind River Reservation and involves Indian defendants, the Court of Indian Offenses has exclusive jurisdiction. If otherwise, state court jurisdiction would constitute interference with tribal self-government. That cuts a wide swath. Within that unlimited scope, I have difficulty identifying a type case which is not covered. The likely result is that there will be a reluctance on the part of Indian and other businessmen to engage in commerce on the reservation with the Indians. Insurance coverage will probably be less available to Indians and become more costly as noted in Justice Rooney’s dissent. Wyoming courts must be more cautious in assuming to act in cases related to Indians. It is a shame that within this Equality State there must exist such an island of judicial inadequacy. More importantly, the Indians have been deprived of a satisfactory system of dispute resolution amongst themselves. Many of their internal problems are as vast and perplexing as those arising outside the reservation.

As a result of the court’s opinion and decision, there are, of course, residual complications to be confronted. This is not a case in which we can declare our decision prospective from a particular date. Such a declaration is only appropriate as to litigation over which we had jurisdiction in the first place. What is the effect of this court’s decision upon past state court action falling within the perimeter of Indian court jurisdiction? Will it be void or voidable or what?

While we do not have the type of case before us in which to make the decision: let us say for example, an Indian comes to the district court seeking relief against another Indian over a matter arising in the reservation, in a complex case. Must the district court refuse to assume jurisdiction, though the parties may prefer and stipulate adjudication of the dispute by a court fitted and qualified to handle cases of any magnitude? Ordinarily, parties may not stipulate jurisdiction. Are we by this decision disclaiming state jurisdiction in civil causes such as in North Dakota’s Whiteshield, supra? Does our opinion have the same effect?

Not only are the citizens of this state affected but so is the unsuspecting traveler from far away who, as pointed out by Justice Rooney in his dissent, may be lulled into a judicial trap when traversing a public highway across the reservation. Must insurance companies exclude coverage when a vehicle is operated on an Indian reservation, as it does for travel into Mexico? While I do not join in Justice Rooney’s dissent, I have high regard for his quest to find state court jurisdiction in this case. Even if his dissenting view were the majority view of the court, it would not affect the larger picture and not reach similar cases arising on other parts of the reservation.

While I am dissatisfied with the effect upon the judicial function, I cannot avoid concurrence with the majority.

1 . I am not concerning myself in this concurring opinion with the criminal jurisdiction of Courts of Indian Offenses. The criminal offenses over which it has jurisdiction are petty misdemeanors (six months imprisonment and $500.00 fine), 25 U.S.C. § 1302(7). The court is probably passable for that purpose.

2 . Mr. Brakel authored an article prior to publication of the ABA Foundation work. It is entitled “American Indian Tribal Courts: Separate? ‘Yes,’ Equal? ‘Probably Not’ ” and appears in 62 ABA Jour. 1002 (1976) and generally follows the same critical theme. In 63 ABA Jour. 808 (1977) appears an article entitled “American Indian Courts and Tribal Self Government” by Richard B. Collins, Ralph W. Johnson, and Kathy Imig Perkins which refutes to some extent the assertions of Mr. Brakel. In the same issue of the ABA Journal, at page 813, appears Mr. Brakel’s rebuttal.