THREE AFFILIATED TRIBES OF THE FORT BERTHOLD RESERVATION,
PETITIONERS v. WOLD ENGINEERING, P.C., ET AL.

   No. 82-629

   In the Supreme Court of the United States

   October Term, 1983

   On Writ of Certiorari to the Supreme Court of North Dakota

   Brief for the United States as Amicus Curiae Supporting Petitioners

            TABLE OF CONTENTS
   Interest of the United States
   Statement
   Summary of argument
   Argument
      The state court was not required or affirmatively authorized
      by federal law to dismiss the suit by petitioner Tribes
      against the non-Indian respondent for lack of jurisdiction
      A. State jurisdiction is not barred by established principles
          governing the exercise of State power in matters
          affecting Indians
      B. Public Law 280 did not authorize the State of North
          Dakota to disclaim jurisdiction that previously had not
          been barred by federal law
      C. A construction of the state constitutional and
          statutory provisions that barred state court
          jurisdiction over a suit by an Indian against a
          non-Indian would raise a substantial constitutional
          question
   Conclusion

                          QUESTION PRESENTED

   Whether a state court in North Dakota had jurisdiction over a suit
brought by petitioner Indian Tribes against respondent, a non-Indian
professional corporation organized under the laws of North Dakota with
offices located in that State but outside the boundaries of the
Tribes' Reservation, for negligent design of a water system
constructed for the Tribes on the Reservation.

                     INTEREST OF THE UNITED STATES

   The Court invited the Solicitor General to file a brief at the
petition stage expressing the views of the United States.  The United
States traditionally has participated amicus curiae in cases
concerning the rights of Indians and Indian Tribes, because of the
special obligation of the Federal Government with respect to Indian
affairs and, in particular, matters occurring on Indian Reservations
for which the Secretary of the Interior has responsibility.

                               STATEMENT

   1. Petitioners, the Three Affiliated Tribes of the Fort Berthold
Reservation, are organized under a tribal constitution approved by the
Secretary of the Interior pursuant to Section 16 of the Indian
Reorganization Act, 25 U.S.C. 476.  The Tribal Code establishes a Fort
Berthold Indian Court, which at the time this suit arose had the
following jurisdiction over civil matters (ch. II, Section 1(a);  Pet.
13):

      Jurisdiction. The Fort Berthold Indian Court shall have
      jurisdiction of all suits wherein the defendant is a member of
      the Three Affiliated Tribes or an Indian over whom the Court has
      jurisdiction, and of all other suits between members and
      non-members brought before the Court by stipulation of the
      parties.  /1/

   This jurisdictional provision is essentially identical to that
contained in Interior Department regulations, first promulgated in
1935 (see 25 C.F.R. Part 161 (1949)) and modified in 1957 (22 Fed.
Reg. 10515, 10518-10519), conferring civil jurisdiction on the Courts
of Indian Offenses established by the regulations for a number of
reservations.  25 C.F.R. 11.1(a) and 11.22.  See Williams v. Lee, 358
U.S. 217, 222 (1959);  cf. 25 U.S.C. 229 and 230.  /2/

   2. Petitioners entered into a contract with respondent Wold
Engineering for the design and construction of a water system for the
Four Bears Village, located within the exterior boundaries of the
Reservation.  Wold is a professional corporation organized under the
laws of North Dakota with offices located off the Reservation (Pet.
6-7).  We have been informed by the Economic Development
Administration of the United States Department of Commerce that the
project was funded in substantial part by a public works project grant
from EDA under Title I of the Public Works and Economic Development
Act of 1965, 42 U.S.C. 3131.

   After construction of the water system was completed, petitioners
brought this action in the District Court for Ward County, North
Dakota, claiming that respondent negligently designed the system (Pet.
App. 4a-5a).  The district court, by judgment order, dismissed the
complaint for lack of subject matter jurisdiction (Pet. App. 1a, 3a).

   3. The Supreme Court of North Dakota affirmed (Pet. App. 3a-10a).
The Supreme Court acknowledged (Pet. App. 5a-6a) that North Dakota
courts had exercised jurisdiction over certain civil actions involving
Indians on an Indian reservation prior to the enactment of Public Law
280 in 1953.  /3/ However, the Court concluded that, "pursuant to
Public Law 280" (Pet. App. 5a), the State of North Dakota, by a
constitutional amendment adopted in 1958 and an implementing statute
enacted in 1963, /4/ had totally disclaimed jurisdiciton over all
civil causes of action arising on an Indian Reservation (Pet. App.
5a-7a).  The Court also rejected the contention that denying Indians
access to state court to sue non-Indians, even though state courts are
open to suits brought by non-Indian plaintiffs against non-Indian
defendants concerning matters arising on the Reservation, violates the
Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution and the provision of the North Dakota Constitution
providing that the courts of that State shall be open to "every man."
/5/ The Court explained that because the United States Constitution
permits the Federal Government to enact legislation singling out
Indian Tribes and because North Dakota's disclaimer of jurisdiction
was adopted pursuant to Public Law 280, no equal protection problem
arises (Pet. App. 8a-10a).

                          SUMMARY OF ARGUMENT

   A. The Supreme Court of North Dakota has closed the courts of that
State to suits by an Indian or Indian Tribe against a non-Indian
defendant concerning matters arising on Indian lands, even though such
suits are not inconsistent with any federal statute and do not
infringe upon the federally protected sovereignty of Indian Tribes.
This decision is at odds with the longstanding view of this Court that
suits by Indians against non-Indians are fully consistent with
established principles governing the exercise of state power over
matters affecting Indians and also are consistent with disclaimer
clauses, such as those in the North Dakota Enabling Act and
Constitution, which provide that Indian lands shall remain under the
absolute jurisdiction and control of Congress.

   Federal law and tribal sovereignty may operate to preempt state law
in certain situations and thereby to confer on Indians and Tribes an
immunity from state control.  For this reason, suits in state court
against an Indian defendant concerning reservation matters, whether
brought by an Indian or non-Indian plaintiff, ordinarily are barred.
But when an Indian chooses to sue in state court for redress of
wrongs, the State does not improperly impose its jurisdiction on the
Indian by entertaining his suit -- at least where, as here, the Tribe
has not purported to vest exclusive jurisdiction over the matter in a
tribal court or other tribunal.  The Indian plaintiff has, in these
circumstances, cast off whatever protective immunity federal law
confers.  Indeed, the decisions of this Court have regarded an
Indian's access to state court as a basic civil right that he shares
with non-Indians.

   B. The North Dakota Supreme Court concluded that Public Law 280
authorized the State to disclaim jurisdiction over suits by Indians
against non-Indians concerning matters arising on Indian lands, even
though such suits were not barred by federal law prior to the
enactment of Public Law 280.  This conclusion is inconsistent with the
text, legislative history, and judicial interpretation of Public Law
280, which make clear that the statute was intended to remove state
law impediments to the assumption of new jurisdiction by the States,
not to authorize them to disclaim jurisdiction that already was
authorized by federal law.  Even if Public Law 280 could be viewed as
amiguous in this regard, it must be liberally construed, doubtful
expressions being resolved in favor of the Indians' longstanding right
to sue in state court.  In addition, a congressional intent to
displace state jurisdiction will not lightly be inferred in any area
in which States have long exercised jurisdiction.

   C. The North Dakota Supreme Court's construction of the state
constitutional and statutory provisions involved was premised on its
erroneous view that Public Law 280 supported the disclaimer of
jurisdiction it found in these provisions.  That Court might well
reach a different conclusion as a matter of state law if its
misapprehension regarding the scope of Public Law 280 were corrected.
Indeed, to bar Indians from access to state courts would raise a
substantial question under the Equal Protection Clause of the
Fourteenth Amendment and 42 U.S.C. 1981.

                               ARGUMENT

 THE STATE COURT WAS NOT REQUIRED OR AFFIRMATIVELY AUTHORIZED BY
FEDERAL LAW TO DISMISS THE SUIT BY PETITIONER TRIBES AGAINST THE
NON-INDIAN RESPONDENT FOR LACK OF JURISDICTION

 A. State Jurisdiction Is Not Barred By Established Principles
Governing The Exercise Of State Power In Matters Affecting Indians

   1. The Enabling Act of Feb. 22, 1889 provided for the admission to
the Union of North Dakota, as well as Montana, Washington, and South
Dakota.  Ch. 180, 25 Stat. 676.  Section 4 of the Enabling Act
required that the constitutions of these States provide, in terms
"irrevocable without the consent of the United States and the people
of said States," that "Indian lands shall remain under the absolute
jurisdiciton and control of the Congress of the United States." 25
Stat. 677.  Arizona v. San Carlos Apache Tribe, No. 81-2147 (July 1,
1983), slip op. 9;  Washington v. Yakima Indian Nation, 439 U.S. 463,
479-481 & n.23 (1979).  Consistent with the requirements of the
Enabling Act, the disclaimer language in Section 4 of that Act is
incorporated in the North Dakota Constitution as part of an Article
entitled "Compact with the United States." /6/ Pet. App. 6a;  compare
Arizona v. San Carlos Apache Tribe, supra, slip op. 9.  Similar
language was included in the Enabling Acts and constitutions of a
number of western States.  Id. at 11, 14 & n.12.  Nevertheless, "the
presence or absence of specific jurisdictional disclaimers has rarely
been dispositive in (this Court's) consideration of state jurisdiction
over Indian affairs or activities on Indian lands" (id. at 15).
Instead, the disclaimers have been viewed essentially as an expression
of generally applicable principles governing state jurisdiction in
Indian matters (id. at 15-17).

   As we explain below, this Court consistently has viewed the right
of an Indian to have access to state court to sue a non-Indian as a
basic civil right that Indians share in common with non-Indians (see
also 42 U.S.C. 1981;  pages 26-27, infra), and it repeatedly has made
clear that such suits concerning matters arising on Indian lands are
fully consistent with accepted principles limiting the exercise by the
States of jurisdiction over Indians.  For the most part, the Court has
reiterated this rule in cases arising in States that have disclaimer
clauses in their Enabling Acts and constitutions, thereby establishing
that such suits are fully consistent with disclaimer clauses such as
those in the North Dakota Enabling Act and Constitution.

   In Felix v. Patrick, 145 U.S. 317 (1892), the Court observed with
respect to the Indian plaintiffs:  "It is scarcely necessary to say in
this connection that, while until (they accepted allotments under the
applicable treaty) they were not citizens of the United States,
capable of suing as such in the Federal courts, the courts of Nebrasks
were open to them as they are to all persons irrespective of race or
color." 145 U.S. at 332.  /7/ Three decades later, in United States v.
Candelaria, 271 U.S. 432, 444 (1926), the Court held that a New Mexico
state court had jurisdiction to entertain a suit brought by the Indian
Pueblo of Laguna against non-Indians to quiet title in the Pueblo to
land that was subject to restrictions on alienation under the Trade
and Intercourse Act of 1834.  /8/ This was despite the fact, not
adverted to by the Court, that the Enabling Act for the admission of
New Mexico to the Union required the state constitution to provide
that absolute jurisdiction and control of Indian lands, including that
of the Pueblo Indians, were to be in the Congress of the United
States.  Act of June 20, 1910, ch. 310, Section 2, 36 Stat. 558.  See
United States v. Sandoval, 231 U.S. 28, 36-38 (1913).

   The Court reiterated this rule in Williams v. Lee, 358 U.S. 217
(1959).  There the Court held that an Arizona state court did not have
jurisdiction over a suit brought by a non-Indian owner of a store on
the Navajo Indian Reservation against two Navajo Indians to collect
for goods sold to them on credit;  the suit instead had to be brought
in the tribal court, which had been granted jurisdiction over suits by
outsiders against Indian defendants.  358 U.S. at 222.  Yet, even
while so ruling, the Court reaffirmed the principle that Indians may
sue outsiders in state court (id. at 219-220, citing Felix v. Patrick
and United States v. Candelaria, supra), and it did so while
acknowledging that the State of Arizona, where the case arose, is
subject to an express disclaimer of jurisdiction over Indian lands in
its Enabling Act and state constitution (358 U.S. at 223 n.10;  Act of
June 20, 1910, ch. 310, 36 Stat. 569).

   The Court observed in Williams v. Lee that the "broad principles"
of Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832) -- which the
Court characterized as an instance in which the State of Georgia
"sought to impose (its) laws and courts on the Indians" (358 U.S. at
218) -- have come to be accepted as law (id. at 219).  But the Court
explained that within these broad principles, state jurisdiction has
been recognized "where essential tribal relations were not involved
and where the rights of Indians would not be jeopardized";  "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" (id. at 219, 220).  Suits by
Indians against non-Indians in state courts were cited as an example
of the exercise of state jurisdiction that did not infringe on that
right.  Id. at 219.  Moreover, by citing for this proposition not only
Felix v. Patrick, but also Harrison v. Laveen, 67 Ariz. 337, 196 P.2d
456 (1948) -- which held that Indians have a right to vote in Arizona
-- the Court in Williams v. Lee again viewed the right of access to
state courts as a fundamental right that Indians share in common with
all other persons in the State.

   The Court reaffirmed these principles once again in McClanahan v.
Arizona State Tax Commission, 411 U.S. 164 (1973).  The Court there
held that the State of Arizona could not tax the reservation income of
an Indian residing on the Navajo Reservation.  But the Court
nevertheless twice reiterated that suits by Indians against outsiders
in state court are consistent with the principles announced in
Williams v. Lee governing the accommodation of federal, state, and
tribal jurisdiction on an Indian reservation (411 U.S. at 171, 173),
even while acknowledging the disclaimer of jurisdiction over Indian
lands contained in the Enabling Act for Arizona and other States (id.
at 175-176 & n.14).  Indeed, McClanahan itself was a suit filed by an
Indian in state court in a disclaimer State concerning matters arising
on the Reservation, and the propriety of the exercise of jurisdiction
by the state courts was never questioned, even though the tax at issue
was struck down.  See also Ramah Navajo School Board, Inc. v. Bureau
of Revenue, No. 80-2162 (July 2, 1982);  The Kansas Indians, supra.

   Moreover, the Court in McClanahan once again viewed the right of
access to state courts as a right that Indians share along with other
citizens of the State, just like the right of Indians to vote /9/ and
to receive some state services.  411 U.S. at 172-173.  See also
Poafpybitty v. Skelly Oil Co., 390 U.S. 365, 371 (1968), quoting
Choctaw & Chickasaw Nations v. Seitz, 193 F.2d 456, 459 (10th Cir.
1951) (noting that Candelaria and other decisions "clearly recognized
the rights of restricted Indians and Indian tribes or pueblos to
maintain actions with respect to their lands");  390 U.S. at 370-371,
quoting Brown v. Anderson, 61 Okla. 136, 138-139, 160 P. 724, 726
(1916);  /10/ Bonnet v. Seekings, 126 Mont. 24, 243 P.2d 317 (1952).

   The supreme courts of other States also have recognized the right
of Indians, like other citizens, to have access to state courts to
bring suits against non-Indians concerning matters arising on a
reservation.  Whiting v. Hoffine, 294 N.W.2d 921, 923-924 (S.D. 1980);
 McCrea v. Busch, 164 Mont. 442, 524 P.2d 781 (1974);  Paiz v. Hughes,
76 N.M. 562, 417 P.2d 51 (1966);  Red Hawk v. Joines, 129 Or. 620, 278
P. 572 (1929).  See also Johnson v. Kerr-McGee Oil Industries, Inc.,
129 Ariz. 393, 395, 631 P.2d 548, 550 (Ct. App.), cert. denied, 454
U.S. 1025 (1981);  F. Cohen, Handbook of Federal Indian Law 351, 355
(1982).  /11/

   2. This Court's cases establish that, absent an Act of Congress so
providing, reservation Indians may not be sued in state court for
matters arising on the reservation, because to do so would interfere
with the right of tribal self-government -- especially where, as in
Williams v. Lee, the tribal court has jurisdiction over such disputes.
 See also Fisher v. District Court, 424 U.S. 382, 383, 386-389 (1976);
 Kennerly v. District Court, 400 U.S. 423, 425 (1971).  The state
courts may not "impose their * * * courts on the Indians" in this
fashion (Williams v. Lee, supra, 358 U.S. at 218), which might
"jeopardize()" the rights of Indians by permitting them to be haled
into often hostile state courts (id. at 219).  This policy of
deference to the mechanisms adopted by the tribes -- or by the
Secretary on their behalf (25 C.F.R. 11.22) -- for the redress of
grievances against tribal members is of long standing, as reflected in
Sections 17 and 18 of the Trade and Intercourse Act of 1834 (ch. 161,
4 Stat. 731 and 732), now codified at 25 U.S.C. 229 and 230.

   The test under Williams v. Lee and related cases for determining
whether the exercise of jurisdiction by state courts over causes of
action arising on an Indian reservation is preempted -- i.e., whether
there is governing federal legislation and, if not, whether the state
action would infringe on the right of reservation Indians to make
their own laws and to be ruled by them -- is essentially the same as
the preemption test applied by this Court in Indian cases generally.
In other cases, the Court has recognized two "'independent but
related' barriers to the exercise of state authority over commercial
activity on an Indian reservation:  state authority may be preempted
by federal law, or it may interfere with the Tribe's ability to
exercise its sovereign functions." Ramah Navajo School Board, Inc. v.
Bureau of Revenue, supra, slip op. 4-5, quoting White Mountain Apache
Tribe v. Bracker, 448 U.S. 136, 142 (1980).  In discussing these
principles last Term, the Court noted that federal statutes or tribal
sovereignty may establish an "immunity" or "sovereign immunity" from
the application of state law, preventing the "imposition" of that law
upon the Indians.  Rice v. Rehner, No. 82-401 (July 1, 1983), slip op.
6, 7, 8, 12.  See also New Mexico v. Mescalero Apache Tribe, No.
82-331 (June 13, 1983), slip op. 8, quoting Mescalero Apache Tribe v.
Jones, 411 U.S. 145, 152 (1973) ("'historic immunity from state and
local control'").  So also, under Williams v. Lee and its progeny,
federal law or principles of inherent tribal sovereignty may preempt
the exercise of jurisdiction by state courts, and thus confer a
protective "immunity" from the coercive "imposition" of that
jurisdiction over Indians concernings matters on the reservation.

   But, at the same time, as we have explained, this Court's cases
also consistently have recognized the right of an Indian to sue a
non-Indian in state court.  This implements the principles of Williams
v. Lee and this Court's preemption cases generally.  When an Indian
voluntarily invokes the jurisdiction of the state court, the State
does not "impose" its courts on the Indians.  Although it is true that
the state might be hostile to the Indian's position when he is the
plaintiff, just as when he is the defendant, the Indian plaintiff who
submits his cause to the state courts may be said to have cast off his
"immunity" from the jurisdiction of those courts concerning
on-reservation matters and voluntarily accepted the risk of a hostile
reception.  And at least where the tribe has not sought to exercise
its inherent sovereign powers by conferring exclusive jurisdiction on
its tribal courts over suits by Indians against non-Indians with
regard to contract disputes or similar reservation matters affecting
the tribe or its members (see Santa Clara Pueblo v. Martinez, 436 U.S.
49, 65 (1978);  Montana v. United States, 450 U.S. 544, 565-566
(1981);  Merrion v. Jicarilla Apache Tribe, 455 U.S. 130, 138 (1982)),
the exercise of jurisdiction by the state courts does not
impermissibly interfere with tribal sovereignty or self-government.
/12/

   This is especially so, as in the instant case, when it is the tribe
itself that has brought the action in state court.  In such a case,
the tribe may be held to have determined for itself that submitting
the matter to state court is consistent with tribal interests.
Indeed, the ability of a tribe to bring suit to recover for damage to
important reservation facilities caused by outsiders substantially
furthers the interests of tribal sovereignty.  "Indians are entitled
'to take their place as independent qualified members of the modern
body politic.' Poafpybitty v. Skelly Oil Co., supra, 390 U.S. at 369,
quoting Board of County Commissioners v. Seber, 318 U.S. 705, 715
(1943).  Accordingly, the Indians' participation in litigation
critical to their welfare should not be discouraged." Arizona v.
California, No. 8, Orig. (Mar. 30, 1983), slip op. 8.

   Moreover, unlike in the case of claims against Indians, for which
an Act of Congress and Interior Department regulations embody a policy
of deference to tribal mechanisms for their resolution (see page 11 &
note 2, supra), there are no federal statutes or regulaions that
reflect a comparable policy that could be said to preclude suits by
Indians against non-Indians in state court.  And where the tribal
court does not have jurisdiction of the matter, the effect of a
holding that the state courts likewise do not have jurisdiction would
be to deprive the Indian plaintiff of any forum for resolution of the
matter, unless the contract or other dispute could be said to arise
under federal law for purposes of federal question jurisdiction under
28 U.S.C. (Supp. V) 1331 /13/ or unless the requirements for federal
diversity jurisdiction were satisfied, 28 U.S.C. 1332.  In the present
case, for example, the Tribal Court did not have jurisdiction over the
Tribes' dispute with respondent either when the complaint was filed or
when the dismissal for lack of jurisdiction was affirmed by the North
Dakota Supreme Court.  By contrast, in Fisher v. District Court,
Kennerly v. District Court, and Williams v. Lee, the result of the
decision barring state court jurisdiction was not to deny a forum for
the lawsuit, because the tribal court did have jurisdiction over the
matter in controversy.

 B. Public Law 280 Did Not Authorize The State Of North Dakota To
Disclaim Jurisdiction That Previously Had Not Been Barred By Federal
Law

   1. As we have explained in Point A, this Court repeatedly has made
clear that a state court is not barred from entertaining a suit
brought by an Indian plaintiff against a non-Indian defendant arising
out of matters occurring on an Indian reservation or other Indian
lands.  Such suits are fully consistent with established principles
limiting the power of the States to impose their laws on Indians and
with the disclaimer clauses implementing that tradition, such as those
in the North Dakota Enabling Act and State Constitution of 1889.

   Indeed, the North Dakota Supreme Court acknowledged in this case
that it too previously had held that the courts of North Dakota
retained residuary jurisdiction over suits brought by Indians
concerning certain matters arising on Indian reservations,
notwithstanding the disclaimers in its Enabling Act and 1889
Constitution (Pet. App. 6a, citing Vermillion v. Spotted Elk, 85
N.W.2d 432 (N.D. 1957)).  In Vermillion, the court had relied on
Article I, Section 22 of the North Dakota Constitution (now Art. I,
Section 9), which provides that the courts of the State shall be open
to "every man" (85 N.W.2d at 438), and had acknowledged the general
rule in other States that Indians, as citizens, have a right to sue in
state court (id. at 436-438).  /14/ But the court held that a
different result was required in this case because of an intervening
amendment to the disclaimer clause in the North Dakota Constitution
and a state statute implementing that constitutional amendment -- both
of which, according to the North Dakota Supreme Court, were adopted
"(u)nder the authority of Public Law 280" (Pet. App. 6a, 7a).

   In Section 6 of Public Law 280, Congress provided that, "(n)
otwithstanding the provisions of any Enabling Act for the admission of
a State," the consent of the United States is given to the people of
any State to amend its State constitution or statutes "to remove any
legal impediment to the assumption of civil and criminal jurisdiction"
in Indian country.  67 Stat. 590.  The 1958 amendment to the State
Constitution, relied upon by the North Dakota Supreme Court, retained
the original disclaimer clause representing that "Indian lands shall
remain under the absolute jurisdiction and control of the Congress of
the United States." The 1958 amendment simply added a proviso to that
language stating "that the legislative assembly of the state of North
Dakota may, upon such terms and conditions as it shall adopt, provide
for the acceptance of such jurisdiction as may be delegated to the
state by Act of Congress * * *." See Pet. App. 6a-7a.  /15/ In 1963,
"under the authority of Public Law 280" and the amendment to the State
Constitution (Pet. App. 7a), the North Dakota legislature amended the
State's Civil Code to provide for what was entitled the "Assumption of
Jurisdiction." N.D. Cent. Code Ann. Section 27-19-01 (repl. 1978).
This section of the Code states:

         In accordance with the provisions of Public Law 280 of the
      83rd Congress and section 203 of the North Dakota constitution,
      jurisdiction of the State of North Dakota shall be extended over
      all civil causes of action which arise on an Indian reservation
      upon acceptance by Indian citizens in a manner provided in this
      chapter.

   2. The North Dakota Supreme Court concluded in this case that by
the amendment to the disclaimer clause of the State Constitution and
the enactment of the implementing state statute, "the people and the
legislature of the State have taken affirmative action which amounts
to a complete disclaimer of jurisdiction over civil causes of action
which arise on an Indian reservation, except upon acceptance by the
Indian citizens of the reservation in the manner provided by the
legislative enactment" (Pet. App. 7a, quoting In re Whiteshield, 124
N.W.2d 694, 696 (N.D. 1963)).  Accordingly, because the petitioner
Tribes have not formally accepted state jurisdiction, /16/ the Court
held (Pet. App. 7a) that any jurisdiction over civil causes of action
that previously had existed in the North Dakota courts had been
withdrawn (ibid.).

   This conclusion is difficult to square with the text of the state
constitutional and statutory provisions involved.  The 1958 amendment
to the North Dakota Constitution retained the standard disclaimer
language that, as we have shown in Point A, does not bar suits by
Indians against non-Indians in state court.  The 1958 amendment simply
added a proviso to this disclaimer, which itself suggests that the
amendment was intended only to limit the reach of the disclaimer
clause, not expand it.  Moreover, the proviso speaks of the
"acceptance" by the state legislature of jurisdiction that may be
"delegated" to the State by Congress.  This language bespeaks an
intent to establish a procedure for the receipt of new jurisdiction
conferred by Congress that previously was foreclosed by federal law,
not to disclaim previously existing state jurisdiction.  State court
jurisdiction to entertain suits by Indians against non-Indians was not
"delegated" by Congress in Public Law 280 (compare Rice v. Rehner,
supra, slip op. 17-18);  it is an aspect of state power that never was
displaced by the disclaimer clauses or other federal laws or policies.

   Similarly, the state statute implementing the proviso to the
disclaimer clause provides that, "(i)n accordance with the provisions
of Public Law 280" and the state constitutional provision, state civil
jurisdiction shall be "extended" to "all civil causes of action"
arising on Indian reservations upon the consent of the Indians.  This
language suggests only the possible acquisition of additional
jurisdiction, so that state jurisdiction would be all inclusive.
There is no suggestion in the statute of an intent to withdraw any
preexisting state court jurisdiction.  /17/

   3. The holding by the North Dakota Supreme Court in this case also
cannot be squared with the text and purposes of Public Law 280.
Because the North Dakota Supreme Court explicitly held that the state
constitutional amendment and implementing statute were adopted
"(u)nder the authority of Public Law 280" (Pet. App. 6a, 7a), the
Court's holding that the constitutional amendment and statute effected
a complete disclaimer of jurisdiction over the instant suit
necessarily rests on the premise that Public Law 280 authorized such a
disclaimer.  This premise is mistaken.  There is no indication that in
enacting Public Law 280, Congress intended to oust state courts of any
jurisdiction -- such as that over suits by Indians against non-Indians
-- which theretofore was not barred by federal law.  Nor is there any
indication that Congress intended Public Law 280 to be an affirmative
authorization for the States, in their discretion, to close their
courts to suits by their Indian citizens and tribes where such suits
are not independently barred by federal law or would not impermissibly
infringe upon the federally protected sovereignty of the Tribes.  To
the contrary, as we explain below, the entire thrust of Public Law 280
was to facilitate the assumption of new jurisdiction by the States.

   a. The text of Public Law 280 does not support the decision of the
North Dakota Supreme Court in this case.  Section 4 of the Act
provided that each of five named States /18/ would immediately have
civil jurisdiction "over civil causes of action between Indians or to
which Indians are parties which arise in the areas of Indian country *
* * to the same extent that such State * * * has jurisdiction over
other civil causes of action * * *." Act of Aug. 15, 1953, 67 Stat.
589, 28 U.S.C. (& Supp. V) 1360.  Obviously, Section 4 did not oust
these five States of any jurisdiction or authorize them to disclaim
jurisdiction over the very areas of Indian country in which Congress
intended them to have complete civil jurisdiction automatically upon
the passage of Public Law 280.  /19/

   North Dakota was not one of the five States for which an automatic
vesting of all civil jurisdiction was accomplished by Section 4 of
Public Law 280.  Instead, because of the disclaimer clause in its
Enabling Act and State Constitution, North Dakota is governed by
Section 6 of Public Law 280 (67 Stat. 590), /20/ which provides:

         Notwithstanding the provisions of any Enabling Act for the
      admission of a State, the consent of the United States is hereby
      given to the people of any State to amend, where necessary,
      their State constitution or existing statutes, as the case may
      be, to remove any legal impediment to the assumption of civil
      and criminal jurisdiction in accordance with the provisions of
      this Act:  Provided, That the provisions of this Act shall not
      become effective with respect to such assumption of jurisdiction
      by any such State until the people thereof have appropriately
      amended their State constitution or statutes as the case may be.

   Nothing in this Section suggests a congressional intent to oust the
States of jurisdiction that theretofore had not been barred by federal
law or to authorize the States to disclaim any such jurisdiction.
Section 6 speaks instead of the "assumption" of jurisdiction -- which
connotes a transfer of new jurisdiction from the federal government to
the States -- and the removal of "impediments" to that assumption
contained in the Enabling Act or state constitution.  The purpose of
Section 6 was to provide a mechanism whereby States such as North
Dakota could place themselves on an equal footing with the five States
that acquired jurisdiction automatically under Section 4 of the Act,
which, as we have explained, clearly did not permit the affected
States to disclaim jurisdiction.

   In addition, as we also have explained (see pages 7-10, supra), the
disclaimer clauses in the Enabling Acts and state constitutions of
North Dakota and other states were not "impediments" to the exercise
of jurisdiction by state courts over civil suits brought by Indians
against non-Indians with respect to matters arising on a reservation.
The authorization in Section 6 of Public Law 280 for States to remove
disclaimer clause "impediments" therefore was not necessary for these
States to continue to exercise that jurisdiction.  As a result,
Section 6, the section of Public Law 280 applicable to North Dakota,
has no bearing on the issue in this case.  That provision plainly did
not diminish State jurisdiction;  nor can Section 6 be read as an
affirmative authorization for a State to adopt new impediments to the
exercise of jurisdiction.

   The foregoing interpretation of Section 6 is reinforced by Section
7 of Public Law 280 (67 Stat. 590), which provided that as to the
other "option" States, for which there is not a disclaimer in the
Enabling Act or state constitution (ibid.; emphasis added):

         The consent of the United States is hereby given to any other
      State not having jurisdiction with respect to * * * civil causes
      of action * * * as provided for in this Act, to assume
      jurisdiction at such time and in such manner as the people of
      the State, shall, by affirmative legislative action, obligate
      and bind the State to assumption thereof.

   Once again, this provision addressed only those situations in which
the States did not already have jurisdiction.  Section 7 of Public Law
280 was repealed by Section 403(b) of the Civil Rights Act of 1968,
Title IV, Pub. L. No. 90-284, 82 Stat. 79, 25 U.S.C. 1323(b).
However, 25 U.S.C. 1322(a), enacted as Section 402(a) of the Civil
Rights Act of 1968 (82 Stat. 79) -- which now governs the assumption
of jurisdiction by all States, including North Dakota, that had not
acquired jurisdiction pursuant to Public Law 280 prior to 1968 -- is
written in similar terms that grant the consent of the United States
to any State "not having jurisdiction" over civil causes of action to
assume such jurisdiction.  There is no expression of an intent to
disturb state jurisdiction that already was permissible under federal
law.

   b. Nor does the legislative history of Public Law 280 support the
interpretation given the Act by the North Dakota Supreme Court.  That
history repeatedly refers to the Act as providing for an "extension"
or "transfer" of civil jurisdiction to the States, thereby confirming
Congress' purpose to facilitate an assumption of new jurisdiction by
the States.  See, e.g., H.R. Rep. No. 848, 83d Cong., 1st Sess. 6, 7
(1953);  /21/ S. Rep. No. 699, 83d Cong., 1st Sess. 5-7 (1953);
Hearing on H.R. 1063 Before the Subcomm. on Indian Affairs of the
House Comm. on Interior and Insular Affairs, 83d Cong., 1st Sess. 13,
17, 18, 22 (June 29, 1953) (unpublished, but lodged with the Clerk of
this Court);  id. at 1, 11 (July 15, 1953).  /22/

   This Court's decisions likewise describe Public Law 280 as designed
to accomplish a transfer of jurisdiction to, and assumption of
jurisdiction by, the States.  See, e.g., Williams v. Lee, supra, 358
U.S. at 222-223;  Warren Trading Post v. Arizona Tax Commission, 380
U.S. 685, 687 n.3 (1965);  Kennerly v. District Court, supra, 400 U.S.
at 427, 428, 429;  /23/ McClanahan v. Arizona State Tax Commission,
supra, 411 U.S. at 177-178;  Fisher v. District Court, supra, 424 U.S.
at 388, 389;  Bryan v. Itasca County, 426 U.S. 373, 381, 385, 386
(1976);  Washington v. Yakima Indian Nation, 439 U.S. 463, 475, 483,
484, 485, 486 & n.29, 490, 491, 492 n.36, 493, 495, 497, 499 (1979);
Arizona v. San Carlos Apache Tribe, supra, slip op. 13.  Cf. Rice v.
Rehner, supra, slip op. 20 n.17.

   It would be inconsistent with the purpose of Public Law 280 of
facilitating the exercise by the States of jurisdiction over all civil
causes of action arising on Indian reservations /24/ to interpret that
law to impose or authorize a new impediment to the exercise of
jurisdiction over suits that state courts already were permitted by
federal law to entertain.  Cf. Rice v. Rehner, supra, slip op. 9.
Indeed, in Williams v. Lee and McClanahan v. Arizona State Tax
Commission, supra, in which Public Law 280 was specifically discussed,
the Court reiterated the long established rule, drawn from Felix v.
Patrick and United States v. Candelaria, supra, that Indians may sue
non-Indians in state court, without any suggestion that the enactment
of Public Law 280 had withdrawn that jurisdiction from the States or
authorized the States to disclaim it.  /25/

   But even if the civil jurisdiction provisions of Public Law 280
were thought to be ambiguous with regard to their effect on suits by
Indians against non-Indians, this Court has made clear that the
construction of Public Law 280 is to be "guided by that 'eminently
sound and vital canon,' Northern Cheyenne Tribe v. Hollowbreast, 425
U.S. 649, 655 n.7 (1976), that 'statutes passed for the benefit of
dependent Indian tribes * * * are to be liberally construed, doubtful
expressions being resolved in favor of the Indians.' Alaska Pacific
Fisheries v. United States, 248 U.S. 78, 89 (1918)." Bryan v. Itasca
County, supra, 426 U.S. at 392.  Without a clear expression of
congressional intent, Public Law 280 cannot, consistent with this
principle of statutory construction, be interpreted to authorize the
abrogation of the fundamental and long-recognized right, possessed by
Indians along with non-Indians, to have access to state courts for
redress of wrongs.  See Bryan v. Itasca County, supra, 426 U.S. at
382.

 C. A Construction Of The State Constitutional And Statutory
Provisions That Barred State Court Jurisdiction Over A Suit By An
Indian Against A Non-Indian Would Raise A Substantial Constitutional
Question

   The holding by the North Dakota Supreme Court that the people and
legislature of the State have disclaimed jurisdiction over suits such
as that at issue here rested on its view that Public Law 280
authorized that disclaimer.  Accordingly, it is entirely possible that
the Supreme Court of North Dakota, on remand, would construe the
proviso to the state constitutional disclaimer and that state statute
implementing that proviso not to bar jurisdiction over the instant
case if this Court were to hold, as we submit, that Public Law 280 did
not authorize the State to disclaim that jurisdiction.  The Supreme
Court also might be led to that view by a reaffirmation by this Court
of its longstanding view that such suits are fully consistent with
established limitations on the exercise of state authority over
Indians and with disclaimer clauses such as those applicable to North
Dakota, and that the right of access to state courts is a basic civil
right that Indians share in common with non-Indians.

   Indeed, a contrary construction of the state constitution and
implementing statute would, in our view, raise a substantial question
under the Equal Protection Clause of the Fourteenth Amendment to the
United States Constitution.  The effect of such a holding would be
that a State may deprive Indians of the fundamental right of access to
state courts without any authorization given by the federal government
in furtherance of an overriding federal policy regarding Indian
affairs that might make an ouster of state jurisdiction appropriate.
Compare Plyer v. Doe, 457 U.S. 202, 219 n.19, 224-226 (1982).

   In Washington v. Yakima Indian Nation, supra, the Court reaffirmed
that the unique legal status of Indian Tribes under federal law
permits the federal government to enact legislation singling out
Indian Tribes, even though that legislation might otherwise be
constitutionally infirm.  439 U.S. at 500-501, citing Morton v.
Mancari, 417 U.S. 535, 551-552 (1974).  The Court stressed, however,
that "States do not enjoy this same unique relationship with Indians"
(439 U.S. at 501).  The Court sustained the state jurisdictional
statute there at issue because the Court found that it was enacted in
response to Public Law 280 and was within the scope of the
authorization granted by that law.  439 U.S. at 501.  In this case, by
contrast, Public Law 280 did not purport to authorize the State of
North Dakota to disclaim any preexisting jurisdiction over suits by
Indians against non-Indians.  Nor did the Supreme Court of North
Dakota articulate any independent state policy in support of barring
access to state courts by Indians to sue non-Indians who otherwise are
amenable to suit in the courts of the State.  Moreover, quite aside
from the question it raises under the Equal Protection Clause, the
decision of the Supreme Court of North Dakota would appear to conflict
with 42 U.S.C. 1981, which provides:  "All persons within the
jurisdiction of the United States shall have the same right in every
State and Territory * * * to sue * * * as is enjoyed by white
citizens." /26/

   The Court may wish to refrain from resolving these difficult
questions here, however, since the interpretation below of the state
constitutional and statutory provisions was premised on an erroneous
understanding of the scope of Public Law 280.  This misinterpretation
affected the North Dakota Supreme Court's disposition of the
constitutional question as well:  that Court relied upon Washington v.
Yakima Indian Nation, supra, for the proposition that there was no
equal protection violation because Congress, in Public Law 280,
authorized the state to disclaim jurisdiction over the case (see Pet.
App. 9a).  And, finally, the North Dakota Supreme Court did not
discuss the impact of 42 U.S.C. 1981.  The Court therefore may wish to
remand for further proceedings on these questions and to provide the
Supreme Court of North Dakota with an opportunity to reconsider the
meaning of the state constitutional and statutory provisions with
further guidance regarding the backdrop of applicable federal law.

                              CONCLUSION

   The judgment of the Supreme Court of North Dakota should be vacated
insofar as it rests on that Court's interpretation of Public Law 280
as requiring or authorizing a disclaimer by the State of jurisdiction
over this suit, and the case should be remanded for further
proceedings regarding the interpretation of the State Constitution and
statute, consistent with the views expressed herein.

   Respectfully submitted.

   REX E. LEE

      Solicitor General

   FRANK HENRY HABICHT II

      Acting Assistant Attorney General

   LOUIS F. CLAIBORNE

      Deputy Solicitor General

   EDWIN S. KNEEDLER

      Assistant to the Solicitor General

   ELLEN DURKEE

      Attorney

   AUGUST 1983

   /1/ On October 22, 1982, after the decision of the Supreme Court of
North Dakota in this case, the Tribal Business Council amended the
Tribal Code to grant the Tribal Court personal jurisdiction over
non-Indians who reside, enter, or transact business within the
territorial boundaries of the Reservation and subject matter
jurisdiction over all civil causes of action arising within the
exterior boundaries of the Reservation.  See Resolution 82-192, adding
Chapter 1, Sections 3.3 and 3.5, to the Tribal Code.  These amendments
were approved by the Secretary of the Interior, as required by the
Tribal Constitution.

   /2/ These regulations contain a section governing choice of law in
such suits, requiring the application of any laws or regulations of
the United States that govern the cause and any ordinances or customs
of the tribe not inconsistent with federal law.  25 C.F.R. 11.23(a).
Where federal or tribal law does not cover the particular matter, the
Courts of Indian Offenses are to apply the law of the State in which
the matter in dispute lies.  25 C.F.R. 11.23(c).  The regulations also
provide for the payment of the judgment out of the Indian defendant's
individual funds held by the Secretary if the defendant himself does
not satisfy the judgment.  25 C.F.R. 11.26.  These regulations
continue to apply to any tribe organized under the Indian
Reorganization Act until a law and order code has been adopted by the
tribe in accordance with its constitution and by-laws and has become
effective.  25 C.F.R. 11.1(d).

   The choice of law provisions of the recently adopted amendments to
petitioners' Tribal Code similarly provide for the application of
federal law where required and of tribal ordinances, resolutions, and
customs, but provide for the application of State law only if agreed
to by stipulation of the parties.  Tribal Code, ch. 1, Section 2.5.

   /3/ Act of Aug. 15, 1953, ch. 505, 67 Stat. 588.

   /4/ N.D. Const. Art. XIII, Section 1;  N.D. Cent. Code Ann. Section
27-19-01 (repl. 1978).

   /5/ N.D. Const. Art. I, Section 9;  previously Art. I, Section 22.

   /6/ Art. XIII, Section 1;  previously Art. XVI, Section 203.

   /7/ Citing Blue-Jacket v. Commissioners of Johnson County, 3 Kan.
299 (1865), rev'd on other grounds sub nom.  The Kansas Indians, 72
U.S. (5 Wall.) 737 (1866);  Swartzel v. Rogers, 3 Kan. 374 (1865);
Wiley v. Keokuk, 6 Kan. 94 (1870).

   In The Kansas Indians, the Court noted that the Indians there
involved, who maintained tribal relations and whose lands were held to
be exempt from taxation, "seek the courts of Kansas for the
preservation of rights and the redress of wrongs" (72 U.S. (5 Wall.)
at 758).  As the Court observed (id. at 740, the Enabling Act for
Kansas contained a disclaimer clause.  Act of Jan. 21, 1861, ch. 20,
12 Stat. 126;  see Arizona v. San Carlos Apache Tribe, supra, slip op.
15.  Although the Court's opinion in The Kansas Indians does not
disclose the other situations in which Indians had sought redress in
state court, the controversy in The Kansas Indians itself, brought by
Indians in Kansas courts, concerned the lands on which the Indians
resided.

   /8/ Rev. Stat. 2116 (1878 ed.), Trade and Intercourse Act of 1834,
ch. 161, Section 12, 4 Stat. 730, as extended to New Mexico by the Act
of Feb. 27, 1851, ch. 14, Section 7, 9 Stat. 587.

   /9/ Once again citing Harrison v. Laveen, supra.  See 411 U.S. at
173 & n.10.

   /10/ "Osborne Anderson, the defendant in error, although a full
blood Indian, was a citizen of the United States and of the State of
Oklahoma.  No good reason appears why he should be denied the
privilege of appealing to the courts of the state the same as any
other citizen to enforce his rights to property, even though such
property be land upon which restrictions against alienation have been
imposed by an act of Congress."

   /11/ The legal principles announced in Williams v. Lee regarding
jurisdiction over suits between Indians and non-Indians also were
reiterated in Fisher v. District Court, 424 U.S. 382, 386 (1976), and
Kennerly v. District Court, 400 U.S. 423, 426-427 (1971).

   /12/ When this case was filed and when the district court's
dismissal for lack of jurisdiction was affirmed, the Tribal Court did
not have jurisdiction over civil actions brought against non-Indians,
except by stipulation of the parties.  The October 22, 1982 amendment
to the Tribal Code giving the Tribal Court jurisdiction over suits
against non-Indians arising on the Reservation does not suggest that
this jurisdiction was intended to be exclusive, rather than concurrent
with that of the state courts.  There thus is no occasion in this case
to consider the circumstances under which an assertion by the Tribe of
exclusive jurisdiction over certain controversies would oust state
courts of jurisdiction.  Cf. Kennerly v. District Court, supra, 400
U.S. at 425-426.  Compare Fisher v. District Court, supra, 424 U.S. at
384 n.5, 389;  see also Santa Clara Pueblo v. Martinez, supra, 436
U.S. at 59-60, 65.  In Kennerly, the governing statutes regarding the
assumption by a State of civil jurisdiction -- Public Law 280 and
Title IV of the Civil Rights Act of 1968 -- did not permit the suit
against Indians in state court there at issue (400 U.S. at 427-429),
irrespective of whether such a suit would impermissibly infringe upon
tribal self-government in light of the tribal ordinance recognizing
concurrent jurisdiction in the tribal and state courts over suits
against Indians (id. at 425).

   /13/ A suit brought to enforce rights conferred by tribal law would
not appear to be one arising under federal law for purposes of the
jurisdiction of federal district courts under 28 U.S.C. (Supp. V)
1331.  See Gila River Indian Community v. Henningson, 626 F.2d 708,
714-715 (9th Cir. 1980), cert. denied, 451 U.S. 911 (1981);  see also
Mescalero Apache Tribe v. Martinez, 519 F.2d 479 (10th Cir. 1975).
Cf. United States v. Wheeler, 435 U.S. 313 (1978);  but cf. Oneida
Indian Nation v. County of Oneida, 414 U.S. 661, 682 n.16 (1974).
There is, however, no reason why state courts may not apply tribal
substantive law in suits within their jurisdiction.  See, e.g., Jones
v. Meehan, 175 U.S. 1, 28-32 (1899);  United States ex rel. Mackey v.
Coxe, 59 U.S. (18 How.) 100 (1855).  Cf. 25 U.S.C. 1322(c);  Santa
Clara Pueblo v. Martinez, supra, 436 U.S. at 66 n.21, citing United
States ex rel. Mackey v. Coxe, supra.

   It also is not clear to what extent, if any, the instant suit would
be governed by federal law, by virtue of the participation by the
Economic Development Administration in the project.  United States v.
Kimbell Foods, Inc., 440 U.S. 715, 726-727 (1979);  cf. Wilson v.
Omaha Indian Tribe, 442 U.S. 653, 670-671 (1979).  Of course, even if
federal law applied because of substantial federal involvement in the
Indian transaction at issue, the applicable federal rule of decision
might in appropriate circumstances be adopted from tribal or state
law.  United States v. Kimbell Foods, Inc., supra, 440 U.S. at
727-740;  Wilson v. Omaha Indian Tribe, supra, 442 U.S. at 671-676.
Cf. 25 C.F.R. 11.23(a) and (c);  note 2, supra.

   /14/ In Vermillion, the Supreme Court of North Dakota held that it
had jurisdiction over a suit by one Indian against another for damages
arising out of an automobile accident on the Standing Rock Indian
Reservation.  The Court held that the suit was not barred by the
disclaimer clauses in the Enabling Act and State Constitution, on the
ground that these clauses do not bar suits that do not have any
relation to Indian lands (85 N.W.2d at 437, 438).  The particular
holding in Vermillion could not survive this Court's subsequent
decisions in Williams v. Lee, Kennerly v. District Court, and Fisher
v. District Court, supra, because the resolution of disputes between
tribal members that arise on the reservation is at the core of the
right of tribal self-government with which a State may not interfere.
However, the rule that suits in state courts between Indians
concerning matters arising on the reservation are barred in these
circumstances does not undermine the force of the reasoning in
Vermillion that state courts must remain open to exercise jurisdiction
over suits by Indians that are not preempted by federal law because
they are not inconsistent with the overriding federal policy of
preserving tribal sovereignty or with a federal statute (such as a
disclaimer clause) barring such jurisdiction.

   /15/ Art. XIII, Section 1;  previously Art. XVI, Section 203.

   /16/ Such tribal consent now also is required by 25 U.S.C. 1322(a),
enacted as part of the Civil Rights Act of 1968, Pub. L. No. 90-284,
Section 402(a), 82 Stat. 79.

   /17/ The Court explained in the instant case (Pet. App. 7a) that
following the amendment to the disclaimer clause in the State
Constitution, the Court had overruled Vermillion v. Spotted Elk,
supra, in In re Whiteshield, supra.  The latter case involved an
action in state court for the termination of parental rights where all
the parties were Indians -- a suit, like Vermillion itself, over which
state court jurisdiction was preempted by federal law because such
jurisdiction would interfere with tribal sovereignty.  Cf. Fisher v.
District Court, supra.  Consistent with this federally imposed
limitation on state jurisdiction that could be overcome only by
compliance with Public Law 280, the North Dakota Civil Code provisions
implementing Public Law 280 stated that the "civil jurisdiction herein
accepted" by the State (when approved by the Indians) shall include
the determination of parental rights.  The Court relied upon this
state statutory provision in In re Whiteshield (124 N.W.2d at 698,
quoting N.D. Cent. Code Ann. Section 27-19-8 (repl. 1978)), and quite
properly viewed such jurisdiction as completely disclaimed by the
State until formally accepted by it pursuant to Public Law 280.  But
this conclusion does not support the North Dakota Supreme Court's
holding in this case that state jurisdiction that was not barred by
the state constitutional disclaimer before the proviso was added (or
by other federally imposed limitations) also was disclaimed by the
constitutional amendment and implementing statute.  As explained in
the text, the terms of the amendment and statute would appear to be
addressed only to the acceptance of additional jurisdiction by the
State.

   Two other of the prior decisions of the North Dakota Supreme Court
cited in the decision below (Pet. App. 7a) as precedent for its
holding that the state court did not have jurisdiction in this case
involved suits against Indians arising out of on-reservation
activities that likewise would be barred by federal law, under the
rationale of Williams v. Lee and Kennerly v. District Court.  See
Nelson v. Dubois, 232 N.W. 2d 54 (N.D. 1975), and Gourneau v. Smith,
207 N.W. 2d 256 (N.D. 1973).  It apparently was not until 1981 that
the North Dakota Supreme Court had occasion to consider whether an
Indian could sue a non-Indian in state court with respect to a matter
arising on the reservation.  See United States ex rel. Hall v. Hansen,
303 N.W. 2d 349 (N.D. 1981), in which the court held that such a suit
could not be brought.  Even then, the issue arose in the context of
whether the trial court could consider the counterclaim filed by the
non-Indian defendant against the Indian plaintiff after the Indian
plaintiff withdrew his complaint (id. at 350).

   /18/ California, Minnesota, Nebraska, Oregon, and Wisconsin.
Alaska later was added to the list.

   /19/ Subsection (b) of Section 4, 28 U.S.C. 1360(b), contains
certain limitations on the exercise of state civil jurisdiction, but
those limitations are not at issue here.

   /20/ See Washington v. Yakima Indian Nation, supra, 439 U.S. at

   474.

   /21/ The House Report also refers (id. at 5, 7) to civil
jurisdiction "over Indians," which suggests jurisdiction in suits in
which Indians are defendants.

   /22/ This same view is reflected in the legislative history of
Civil Rights Act of 1968, which amended Public Law 280.  See, e.g., S.
Rep. No. 90-721, 90th Cong., 1st Sess. 32 (1968) (additional views of
Senator Ervin);  Rights of Members of Indian Tribes:  Hearing on H.R.
15419 and Related Bills Before the Subcomm. on Indian Affairs of the
House Comm. on Interior and Insular Affairs, 90th Cong., 2d Sess. 25
(1968) (referring to tribal consent requirement to assumption of
jurisdiction to ensure that Indians are not "subjected" to state
courts before they are ready);  id. at 27, 32, 38, 91 (discussing Paiz
v. Hughes, supra, in which an Indian sued a non-Indian), 104, 108-109,
115-116, 120-121, 133;  114 Cong. Rec. 9560, 9596, 9615 (1968), id. at
5520 (Presidential message).

   /23/ In Kennerly, the Court observed that at the time the case
arose, "(w)ith regard to the particular question of the extension of
state jurisdiction over civil causes of action by or against Indians
arising in Indian country," there was a governing Act of Congress,
Public Law 280.  400 U.S. at 427, quoted in Bryan v. Itasca County,
426 U.S. 373, 386 (1976).  Kennerly, however, involved a suit against
an Indian by a non-Indian.  The reference to suits brought by Indians
therefore was dictum, even assuming that it was made with reference to
the type of suit involved here.  There was, moreover, no reference in
Kennerly to the prior cases sustaining state jurisdiction over suits
brought by Indians against non-Indians.  In addition, it would be
inconsistent with the court's use of the phrase "extension of state
jurisdiction" to read the passage in the Court's opinion to suggest
that Congress withdrew then-existing jurisdiction over certain causes
of action until the new procedural requirements of Public Law 280 were
satisfied.

   /24/ See Washington v. Yakima Indian Nation, supra, 439 U.S. at
490-491.

   /25/ Similarly, when Congress enacted 28 U.S.C. 1362 in 1966 to
give federal courts jurisdiction over suits by recognized Tribes
arising under federal law without regard to the amount in controversy,
the assumption was that such suits otherwise would be brought in state
court, if at all.  S. Rep. No. 1507, 89th Cong., 2d Sess. 2-3 (1966);
H.R. Rep. No. 2040, 89th Cong., 2d Sess. 2-3 (1966);  112 Cong. Rec.
20769 (1966).  It is instructive that the suit cited in the
legislative history as an example of the type of suit for which the
statute was designed, Yoder v. Assiniboine & Sioux Tribes, 339 F.2d
360 (9th Cir. 1964), arose in Montana, a disclaimer state, after the
enactment of Public Law 280.

   /26/ As first enacted in Section 1 of the Act of Apr. 9, 1866, ch.
31, 14 Stat. 27, this protection applied only to persons whom that
Section declared to be citizens, from which "Indians not taxed" were
excluded.  This exclusion was not carried forward in Section 16 of the
Act of May 31, 1870, ch. 114, 16 Stat. 144, from which 42 U.S.C. 1981
is derived.