FILED
IN THE OFFICE OF THE
CLERK OF SUPREME COURT
AUGUST 5, 2021
STATE OF NORTH DAKOTA
IN THE SUPREME COURT
STATE OF NORTH DAKOTA
2021 ND 140
Lawrence Lavallie, Plaintiff and Appellee
v.
Lorne Jay, Defendant and Appellant
and
Michael Charette, Defendant
No. 20190402
Appeal from the District Court of Rolette County, Northeast Judicial District,
the Honorable Anthony S. Benson, Judge.
REVERSED AND REMANDED.
Opinion of the Court by VandeWalle, Justice.
Rheider W. McCormick (argued) and Jason R. Vendsel (on brief), Minot, ND,
for plaintiff and appellee.
Lorne Jay, self-represented, St. John, ND, defendant and appellant.
Lavallie v. Jay
No. 20190402
VandeWalle, Justice.
[¶1] Lorne Jay appealed from a district court judgment ordering Jay pay
Lawrence Lavallie $946,421.76. In Lavallie v. Jay, this Court retained its
jurisdiction while remanding the case back to the district court for further
determination on subject matter jurisdiction. 2020 ND 147, ¶ 11,
945 N.W.2d
288. Relying on the findings of the district court, we reverse and remand with
directions to vacate the judgment and to dismiss the case for lack of subject
matter jurisdiction.
I
[¶2] Lavallie commenced this personal injury action after he was involved in
a motor vehicle accident with Jay and Michael Charette. In our previous
opinion, we provided a detailed recitation of the facts of the accident. See
Lavallie, 2020 ND 147, ¶ 2. However, additional facts will be added as
necessary.
[¶3] Lavallie filed suit against Jay and Charette, and Jay filed a motion to
dismiss for lack of subject matter jurisdiction. Jay argued the district court
lacked subject matter jurisdiction because the accident occurred on land owned
by the Turtle Mountain Band of Chippewa Indians (“the Tribe”) and because
all of the parties involved were members of the Tribe. Jay submitted two
documents to support his argument. One was a map indicating County Road
43, where the accident occurred, is located on land held in trust for the Tribe.
The second was a lease from the Tribe for Jay’s property. Lavallie opposed the
motion and submitted maps showing County Road 43 located outside the
external boundaries of the Turtle Mountain Reservation. The district court
denied the motion. It concluded Jay failed to file a brief or affidavits in support
of his motion. Additionally, it concluded County Road 43 in Rolette County is
located outside the external boundaries of the Turtle Mountain Reservation,
and Jay’s motion should be denied on the merits.
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[¶4] On appeal, we remanded to the district court for further consideration
on subject matter jurisdiction. Lavallie, 2020 ND 147, ¶ 11. We held, “Jay bears
the burden of proving the district court lacks subject matter jurisdiction.” Id.
at ¶ 7. Instructions were provided to the district court as follows:
We remand while retaining jurisdiction under N.D.R.App.P.
35(a)(3) for the district court to make findings on whether the
parties to this cause of action were enrolled members of the Tribe
and whether the accident occurred on land held in trust for the
Tribe. Upon remand, the district court may make the additional
findings from the existing record or, in its discretion, may hold
additional evidentiary hearings. If the district court finds the
parties were enrolled members of the Tribe and the accident
occurred on land held in trust for the Tribe, the court must
determine whether it has subject matter jurisdiction over claims
between enrolled members involving conduct occurring on tribal
trust land.
Id. at ¶ 11.
[¶5] On remand, the district court held two evidentiary hearings. On
February 10, 2021, the court filed its supplemental findings of fact and
conclusions of law. At the first hearing, Jay testified he is a member of the
Tribe and lives on a tribal home site, on land held in trust by the U.S.
government. Jay also offered two documents as evidence, but the court did not
admit the documents.
[¶6] At the second hearing, Jay offered two more documents. The first the
district court declined to admit. The second document, a summons and
complaint filed in Turtle Mountain Tribal Court, was admitted. The complaint
alleged all the parties were enrolled members of the Tribe. Lavallie’s attorney
testified the document was created to protect against any statute of limitations
defense, which the court noted was also indicated in the complaint itself.
[¶7] In its supplemental findings of fact and conclusions of law, the district
court found Jay’s home site “is located directly adjacent to the county road upon
which the accident occurred” and “Jay makes a yearly lease payment on his
property to the Bureau of Indian Affairs.” It also found Jay has leased his
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property from the Bureau of Indian Affairs for twenty-five years. The court
concluded, “Jay ha[d] established that he is an enrolled member of the Turtle
Mountain Band of Chippewa Indians, and that the land upon which the county
road runs at the location of this accident is land held in trust.” The court also
found Jay did not meet his burden to prove Lavallie and Charette are members
of the Tribe. Although Jay testified Lavallie was an enrolled member, the court
sustained an objection to Jay’s testimony. The court sustained the objection
after Jay admitted he did not have personal knowledge of Lavallie’s
membership status.
[¶8] Although the district court found the accident occurred on tribal trust
land and Jay was a member of the Tribe, it concluded Jay had the burden of
proving the other parties’ membership status. It found Jay did not meet that
burden, and the court could not presume all three parties were enrolled
members of the Tribe. Because Jay did not prove all three parties were enrolled
members of the Tribe, the court held it had subject matter jurisdiction over the
matter.
II
[¶9] On appeal, Jay makes three arguments concerning the evidence he
offered to the district court at the evidentiary hearings. “Questions, the
answers to which are not necessary to the determination of an appeal, need not
be considered.” State v. Osier, 1997 ND 170, ¶ 14,
569 N.W.2d 441. Because the
evidentiary issues raised by Jay are not necessary to determine whether the
district court had subject matter jurisdiction, we decline to address them.
III
[¶10] In light of Jay’s membership status and the accident’s location, the issue
before us is whether the district court had subject matter jurisdiction. Jay had
the burden to prove the district court lacked subject matter jurisdiction.
Lavallie, 2020 ND 147, ¶ 7. Lavallie argues the district court had exclusive
subject matter jurisdiction over this matter. Alternatively, he argues even if
this Court concludes Jay met his burden to prove a lack of subject matter
jurisdiction, the district court retains concurrent jurisdiction with the tribal
3
court. “[W]hen jurisdictional facts are in dispute, we are presented with a
mixed question of law and fact.” Id. at ¶ 5. “Under this standard, we review
questions of law de novo, and findings of fact are subject to the clearly
erroneous standard of review.” Id.
[¶11] In Williams v. Lee, the United States Supreme Court established the
infringement test, which states, “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.”
358 U.S. 217, 220 (1959). This test precludes state court jurisdiction over
certain claims if it “would undermine the authority of the tribal courts over
reservation affairs and thereby infringe on the right of the Indians to govern
themselves.” Roe v. Doe,
2002 ND 136, ¶ 7,
649 N.W.2d 566 (quoting McKenzie
Cty. Soc. Servs. Bd. v. V.G.,
392 N.W.2d 399, 402 (N.D. 1986)).
There are two categories of claims over which the United
States Supreme Court has held tribal courts have exclusive civil
jurisdiction under the infringement test. Included in the first
category are those claims in which a non-Indian asserts a claim
against an Indian for conduct occurring on that Indian’s
reservation. See Williams [v. Lee, 358 U.S. 217, 223,
79 S.Ct. 269,
3 L.Ed.2d 251 (1959)]. In the second category, are those claims in
which all the parties are members of the same Indian tribe and the
claim involves conduct occurring on that tribe’s reservation. See
Fisher v. District Court, 424 U.S. 382, 387–89,
96 S.Ct. 943,
47
L.Ed.2d 106 (1976) (per curiam).
Winer v. Penny Enters., Inc.,
2004 ND 21, ¶ 11,
674 N.W.2d 9 (quoting Roe, at
¶ 8).
[¶12] In this case, the district court found Jay met his burden to prove he is a
member of the Tribe, but he did not prove Lavallie is a member of the Tribe.
In addition, the court found the accident occurred on tribal trust land off the
reservation. As a result, Lavallie asserted a claim against an Indian, Jay, for
conduct occurring on land held in trust for Jay’s tribe. Under the first category
of the infringement test, state subject matter jurisdiction is precluded when “a
non-Indian asserts a claim against an Indian for conduct occurring on that
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Indian’s reservation.” See Winer, 2004 ND 21, ¶ 11 (internal citations omitted).
We must determine whether tribal trust land is considered the same as
reservation land for purposes of the infringement test.
A
[¶13] The United States Supreme Court’s use of the word “reservation” in the
Williams infringement test has been interpreted to encompass more than
formal reservations. See Three Affiliated Tribes v. Wold Eng’n, P.C., 476 U.S.
877, 887 (1986) (explaining the Williams infringement test using the term
“Indian country” instead of “reservation”). In the context of a state’s regulatory
authority over tribal members, the United States Supreme Court looks at the
territorial boundaries the state is seeking to regulate and whether the territory
qualifies as “Indian country.” Okla. Tax Comm’n v. Sac & Fox Nation,
508 U.S.
114, 124-25 (1993). Unless federal law directs otherwise, “[a] state ordinarily
may not regulate the property or conduct of tribes or tribal-member Indians in
Indian country.” F. Cohen, Handbook of Federal Indian Law § 6.03[1][a], at
511 (2012).
[¶14] Further, the general rule that a state may not regulate tribal members
in Indian country also applies to a state’s adjudicatory jurisdiction. See Cohen,
supra, § 6.03[1][a], at 513. “State judicial jurisdiction over Indian tribes and
tribal members in Indian country is subject to the same general rule precluding
that authority in the absence of express authorization by treaty or statute.” Id.
Therefore, “state court assumption of jurisdiction in cases against Indian
defendants arising in Indian country is impermissible.” Winer,
2004 ND 21, ¶
11; see also Cohen, supra, § 6.04[1], at 530 (“States generally lack civil and
criminal jurisdiction over Indians within Indian country, absent federal
legislation specifying to the contrary.”).
B
[¶15] Because state courts lack subject matter jurisdiction over actions against
an Indian defendant arising in Indian country, it is necessary for us to
determine whether Indian country includes the Tribe’s trust land where the
accident occurred. The definition of Indian country is found in the federal
5
criminal code. Cohen, supra, § 3.04[1], at 184. Nonetheless, this definition
“applies in the civil context as well.” Id. The federal statute defines “Indian
country” as:
(a) all land within the limits of any Indian reservation under the
jurisdiction of the United States Government, notwithstanding the
issuance of any patent, and, including rights-of-way running
through the reservation, (b) all dependent Indian communities
within the borders of the United States whether within the
original or subsequently acquired territory thereof, and whether
within or without the limits of a state, and (c) all Indian
allotments, the Indian titles to which have not been extinguished,
including rights-of-way running through the same.
18 U.S.C. § 1151; see also McGirt v. Oklahoma,
140 S. Ct. 2452, 2474 (2020)
(explaining “dependent Indian communities” qualify as Indian country under
the statute).
[¶16] In Oklahoma Tax Commissioner v. Citizen Band Potawatomi Indian
Tribe of Oklahoma, the United States Supreme Court examined whether tribal
sovereign immunity protected the Potawatomi Tribe from a lawsuit for conduct
occurring on trust land off the reservation.
498 U.S. 505, 511 (1991). The Court
examined whether the trust land would be considered Indian country stating,
“[T]he test for determining whether land is Indian country does not turn upon
whether that land is denominated ‘trust land’ or ‘reservation.’ Rather, we ask
whether the area has been validly set apart for the use of the Indians as such,
under the superintendence of the Government.”
Id. (internal citations and
quotations omitted) (using the terms Indian country and reservation
interchangeably). The Court held the trust land off the reservation was “validly
set apart” and “qualifie[d] as a reservation for tribal immunity purposes” solely
because it was “held by the Federal Government in trust for the benefit of the
Potawatomis.” Id.; see also United States v. Azure,
801 F.2d 336, 338 (8th Cir.
1986) (examining whether tribal trust land located near the Turtle Mountain
Reservation qualified as Indian country in order for federal jurisdiction to
extend to a criminal offense).
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[¶17] Here, Jay was blowing snow from his driveway, which is adjacent to the
scene of the accident. The district court found “the land upon which the county
road runs at the location of this accident is land held in trust.” The status of
the land where the accident occurred being held in trust validly sets it apart
for use by the Tribe and its members. See Potawatomi, 498 U.S. at 511. The
trust land is therefore part of Indian country for purposes of determining
subject matter jurisdiction. As a result, the state district court has no subject
matter jurisdiction over this matter because it is an action brought by Lavallie,
against an Indian, Jay, for conduct occurring in Indian country. Winer,
2004
ND 21, ¶¶ 8, 11. Although Lavallie argues the court has concurrent
jurisdiction, the court cannot retain concurrent jurisdiction with the tribal
court under the Williams infringement test because it provides the tribal court
with exclusive subject matter jurisdiction.1 See Williams,
358 U.S. at 220.
IV
[¶18] We reverse and remand to the district court for it to vacate the judgment
and dismiss the case for lack of subject matter jurisdiction.
[¶19] Jon J. Jensen, C.J.
Gerald W. VandeWalle
Daniel J. Crothers
Lisa Fair McEvers
Jerod E. Tufte
1During the second oral argument in this matter, we were informed the tribal court action is still
pending.
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