Lohnes Ex Rel. Lohnes v. Cloud

254 N.W.2d 430, 1977 N.D. LEXIS 281
CourtNorth Dakota Supreme Court
DecidedJune 2, 1977
DocketCiv. 9256
StatusPublished
Cited by23 cases

This text of 254 N.W.2d 430 (Lohnes Ex Rel. Lohnes v. Cloud) is published on Counsel Stack Legal Research, covering North Dakota Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lohnes Ex Rel. Lohnes v. Cloud, 254 N.W.2d 430, 1977 N.D. LEXIS 281 (N.D. 1977).

Opinions

SAND, Justice.

This appeal was taken from an order of the Ramsey County district court, second judicial district, dismissing the plaintiff’s petition for payment from the Unsatisfied Judgment Fund on a tribal court judgment.

On 23 October 1971, while walking along a highway on the Fort Totten Indian Reservation, plaintiff David Lohnes was struck by a car driven by Aloysius Cloud. Both Lohnes and Cloud were enrolled members of the Fort Totten Reservation. Lohnes, a minor, was injured in that accident and brought an action by his guardian ad litem, Ruth Ann Lohnes, against Cloud.

The action was commenced in state district court but was dismissed for lack of jurisdiction; subsequently it was filed in United States District Court, where another dismissal resulted. Lohnes then brought the matter before the Fort Totten tribal court which entered a judgment for Lohnes in the amount of $10,000.

After execution was issued and returned unsatisfied, Lohnes first obtained an order from the tribal court for payment from the Unsatisfied Judgment Fund. Payment was refused.

Lohnes then filed the tribal court judgment with the clerk of court of Benson County district court and applied to the district court for an order directing payment from the Unsatisfied Judgment Fund. The application was dismissed and this appeal resulted.

[432]*432The main issue is whether or not the tribal court judgment qualifies to be assigned to the State for payment from the Unsatisfied Judgment Fund.

The pertinent provision relating to the Unsatisfied Judgment Fund in this appeal is § 39-17-08, North Dakota Century Code, which reads, in part:

“Where any person who is a resident of this state, recovers in any court in this state a judgment for an amount exceeding three hundred dollars in an action for damages resulting from bodily injury to, or the death of, any person occasioned by, or arising out of, the ownership, maintenance, operation or use of a motor vehicle by a judgment debtor in this state, upon such judgment becoming final, such judgment creditor may, in accordance with the provisions of this chapter, apply to the judge of the district court in which such judgment was rendered, upon notice to the attorney general, for an order directing payment of the judgment out of ■said fund. . . .” [Emphasis ours.]

The principal argument made by Lohnes is that the statute authorizes payment of his judgment from the Unsatisfied Judgment Fund. He admits that the statute is ambiguous but contends that it can be, and should be, interpreted to include a tribal court judgment, based upon the language referring to any person who recovers “in any court in this state.” He places some importance on the fact that the statute uses the words “any court in this state” as distinguished from “of this state.” The former, he proposes, potentially encompasses any court physically located in the state of North Dakota.

The phrase relied upon by Lohnes is followed later in the same statute by a reference to “the district court in which such judgment was rendered.” The judgment here, although filed with the clerk of court for Benson County, was not rendered by the district court, but, rather, by the tribal court. Whether or not it was nevertheless intended for participation in the Unsatisfied Judgment Fund is a question that must be answered by interpreting the statute.

It should be noted that we have not addressed this precise question in prior opinions. Schantz v. White Lightning, 231 N.W.2d 812 (N.D.1975); Gourneau v. Smith, 207 N.W.2d 256 (N.D.1973); and Nelson v. Dubois, 232 N.W.2d 54 (N.D.1975), involved claims on the Unsatisfied Judgment Fund where one or more parties were Indians, but in none of those cases had a judgment been obtained from tribal court. The first two were brought in state district court, so that the primary question on appeal was the existence of state jurisdiction. In the third, that question was certified to this court and we held that there was no state jurisdiction.

Standing alone, the phrase “any court in this state” is subject to various interpretations ranging from narrow to broad. It must, however, be construed in light of the entire section in which it appears rather than in isolation. The subsequent reference to judgment of district court illuminates and clarifies the earlier language by limiting it to any district court which issued the judgment in the State. Lohnes suggested that the two phrases are inconsistent and that it would thus be proper to give a broad interpretation to the earlier phrase “any court in this state.” The rules of construction, however, lead us to a different result. The rule stated in § 1-02-07, NDCC, is that if the general provision conflicts with the special provision in the same statute, the two shall be construed, if possible, so that effect is given to both. Were we to adopt the analysis suggested by Lohnes, that is, interpreting the earlier phrase to include any court located in the state, the latter provision on district courts would be left inoperative.

In addition, § 1-02-07 states that if two provisions, one general and one specific, are irreconcilable, the special provision shall prevail. The provision referring to district courts is the more specific of the two because it particularly identifies a category of courts within the state. This view is further sustained by the rule that where several irreconcilable clauses appear in the same statute, the clause last in order of position [433]*433shall prevail. See § 1-02-08, NDCC. In addition to these rules of construction, we are aided by the jurisprudential maxim that “particular expressions qualify those which are general.” Section 31-11-05(25), NDCC.

We do not, however, think the language is inconsistent. The latter clause referring to district court does not invalidate the earlier language but simply defines and limits it. By reading the two phrases together in this manner neither one is rendered invalid. Thus the two clauses can be harmoniously construed.

Notwithstanding the “district court” language, Lohnes urges us to include the tribal judgment within the Unsatisfied Judgment Fund provisions by virtue of either the full faith and credit clause of Article IV, § 1, of the United States Constitution or under the principle of comity.

The full faith and credit clause is applicable by its express terms only between States. Indian tribes are not States, but rather hold a unique legal status as “quasi-sovereign entities” over whom Congress has plenary power. See, Morton v. Mancari, 417 U.S. 535, 94 S.Ct. 2474, 41 L.Ed.2d 290 (1974); and United States v. Kagama, 118 U.S. 375, 6 S.Ct. 1109, 30 L.Ed. 228 (1886). They are dependent political nations and wards of the United States with only those characteristics of sovereignty not assumed by Congress. Groundhog v. Keeler, 442 F.2d 674 (10th Cir. 1971).

Even in Begay v. Miller, 70 Ariz. 380, 222 P.2d 624

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Lohnes Ex Rel. Lohnes v. Cloud
254 N.W.2d 430 (North Dakota Supreme Court, 1977)

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Bluebook (online)
254 N.W.2d 430, 1977 N.D. LEXIS 281, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lohnes-ex-rel-lohnes-v-cloud-nd-1977.