CERTIORARI TO THE SUPREME COURT OF NORTH DAKOTA.
O'connor, J., delivered the opinion of the Court, in which Burger, C. J., and White, Marshall, Blackmun, and Powell, JJ., joined. Rehnquist, J., filed a dissenting opinion, in which Brennan and Stevens, JJ., joined, post, p. 893.
JUSTICE O'CONNOR delivered the opinion of the Court.
Petitioner, Three Affiliated Tribes of the Fort Berthold Reservation, sought to sue respondent, Wold Engineering, P. C. (hereafter respondent), in state court for negligence and breach of contract. The North Dakota Supreme Court held that Chapter 27-19 of the North Dakota Century Code (1974) disclaimed the unconditional state court civil jurisdiction North Dakota had previously extended to tribal Indians suing non-Indians in state court. It ruled that under Chapter 27-19, petitioner could not avail itself of state court jurisdiction unless it consented to waive its sovereign immunity and to have any civil disputes in state court to which it is a party adjudicated under state law. 364 N. W. 2d 98 (1985). The question presented is whether Chapter 27-19, as construed by the North Dakota Supreme Court, is repugnant to the Federal Constitution or is pre-empted by federal Indian law.
This is the second time this Court has been called upon to address this jurisdictional controversy. See Three Affiliated Tribes v. Wold Engineering, 467 U.S. 138 (1984) (Three Tribes I). Because the facts and procedural history of the litigation were set forth in some detail in Three Tribes I, our present recitation will be brief.
Historically, Indian territories were generally deemed beyond the legislative and judicial jurisdiction of the state governments. See id., at 142. This restriction was reflected in the federal statute which admitted North Dakota to the Union, Enabling Act of Feb. 22, 1889, § 4, cl. 2, 25 Stat. 677, and was embodied in the form of jurisdictional disclaimers in North Dakota's original Constitution. See N. D. Const., Art. XVI, § 203, cl. 2 (1889). The pre-existing federal restrictions on state jurisdiction over Indian country were largely eliminated, however, in 1953 with Congress' enactment of the Act of Aug. 15, 1953, 67 Stat. 588, as amended, 28 U. S. C. § 1360, which is commonly known as Pub. L. 280. Public Law 280 gave federal consent to the assumption of state civil and criminal jurisdiction over Indian country and provided the procedures by which such an assumption could be made. See Three Tribes I, supra, at 143. As originally enacted, Pub. L. 280 did not require the States to obtain the consent of affected Indian tribes before assuming jurisdiction over them, but Title IV of the Civil Rights Act of 1963 amended Pub. L. 280 to require that all subsequent assertions of jurisdiction be preceded by tribal consent. Pub. L. 90-284, §§ 401, 402, 406, 82 Stat. 78-80, codified at 25 U. S. C. §§ 1321, 1322, 1326.
As this Court explained in Three Tribes I :
"Even before North Dakota moved to amend its Constitution and assume full jurisdiction under Pub. L. 280, the North Dakota Supreme Court had taken an expansive view of the scope of state-court jurisdiction over Indians in Indian country. In 1957, the court held [in Vermillion v. Spotted Elk, 85 N. W. 2d 432 (1957)] that the existing jurisdictional disclaimers in the Enabling Act and the State's Constitution foreclosed civil jurisdiction over Indian country only in cases involving interests in Indian lands themselves." 467 U.S., at 143-144.
Although Vermillion v. Spotted Elk, 85 N. W. 2d 432 (1957), was decided after the enactment of Pub. L. 280, the North
Dakota Supreme Court made clear that it was confirming pre-existing jurisdiction rather than establishing a previously unavailable jurisdictional category. Id., at 435-436. See also Three Tribes I, supra, at 150, n. 9.
That part of Vermillion that recognized jurisdiction over non-Indians' claims against Indians impermissibly intruded on tribal self-government and thus could not be sustained. 467 U.S., at 148. See also Fisher v. District Court, 424 U.S. 382 (1976); Williams v. Lee, 358 U.S. 217 (1959). But, as this Court in Three Tribes I affirmed, North Dakota's recognition of jurisdiction over the claims of Indian plaintiffs against non-Indian defendants was lawful because such jurisdiction did not interfere with the right of tribal Indians to govern themselves and was not subject to Pub. L. 280's procedural requirements since the jurisdiction was lawfully assumed prior to that enactment. See 467 U.S., at 148-149, 151, n. 11.
In 1958, North Dakota amended its Constitution to authorize its legislature to provide by statute for the acceptance of jurisdiction over Indian country, see N. D. Const., Art. XIII, § 1, cl. 2, and in 1963, the North Dakota Legislature enacted Chapter 27-19. That Chapter provides, in pertinent part:
"In accordance with the provisions of Public Law 280 . . . and [the amended] North Dakota constitution, jurisdiction of the state of North Dakota shall be extended over all civil claims for relief which arise on an Indian reservation upon acceptance by Indian citizens in a manner provided by this chapter. Upon acceptance the jurisdiction of the state is to the same extent that the state has jurisdiction over other civil claims for relief, and those civil laws of this state that are of general application to private property have the same force and effect within such Indian reservation or Indian country as they have elsewhere within this state." N. D. Cent. Code § 27-19-01 (Supp. 1985).
In subsequent cases, the North Dakota Supreme Court read this provision to "completely disclaim" the state jurisdiction recognized in Vermillion in cases in which the defendant was an Indian, absent tribal consent to jurisdiction as provided by statute. See, e. g., In re Whiteshield, 124 N. W. 2d 694 (1963). However, until the instant suit, the court never squarely held that Chapter 27-19 also disclaimed the jurisdiction Vermillion lawfully recognized over cases in which an Indian sued a non-Indian in state court for a claim arising in Indian country. See Three Tribes I, 467 U.S., at 144-145.
Petitioner filed the instant suit against respondent in state court for negligence and breach of contract in connection with respondent's construction of a water-supply system on petitioner's reservation. At the time the suit was filed, petitioner's tribal court did not have jurisdiction over such claims. After counterclaiming for petitioner's alleged failure to make payments on the system, respondent moved to dismiss petitioner's complaint, arguing that the state court had no jurisdiction because petitioner has never consented to state court jurisdiction over the Fort Berthold Reservation under Chapter 27-19. The trial court dismissed the suit for lack of jurisdiction, and the North Dakota Supreme Court affirmed the dismissal on appeal. 321 N. W. 2d 510 (1982).
In so doing, the North Dakota Supreme Court held that any residuary jurisdiction the North Dakota courts possessed under Vermillion over suits by an Indian against a non-Indian arising in Indian country was "totally disclaimed" when the North Dakota Legislature, "[under] the authority of Public Law 280," instituted the consent requirement of Chapter 27-19. 321 N. W. 2d, at 511-512. It concluded that "we have no jurisdiction over civil causes of action arising within the exterior boundaries of an Indian reservation, unless the Indian citizens of the reservation vote to accept jurisdiction." Id., at 512. The court also rejected petitioner's federal and state constitutional challenges, relying in part on the argument that the discrimination against Indian litigants
embodied in Chapter 27-19 was authorized by Pub. L. 280 and was therefore insulated, under Washington v. Yakima Indian Nation, 439 U.S. 463 (1979), from heightened scrutiny. See 321 N. W. 2d, at 512-513.
This Court granted certiorari. 461 U.S. 904 (1983). We held that federal law did not preclude the state court from asserting jurisdiction over petitioner's claim. In particular, we ruled that Pub. L. 280 neither required nor authorized North Dakota to disclaim the jurisdiction it had lawfully exercised over the claims of Indian plaintiffs against non-Indian defendants prior to the enactment of Pub. L. 280. See Three Tribes I, 467 U.S., at 150. Because the North Dakota Supreme Court's interpretation of Chapter 27-19 and its accompanying constitutional analysis appeared to rest on a possible misunderstanding of Pub. L. 280, this Court vacated the judgment and remanded the case to allow the North Dakota court to reconsider the jurisdictional questions in light of the proper interpretation of the governing federal statute. Id., at 141.
On remand, the North Dakota Supreme Court held that Chapter 27-19 terminated any residuary jurisdiction that may have existed over claims arising in Indian country brought by tribal Indians against non-Indians in state court. 364 N. W. 2d, at 104. It further held that state law barred petitioner from maintaining its suit in state court absent its waiver of its sovereign immunity in accordance with the statutory procedures. Id., at 103-104. Finally, the court rejected petitioner's due process and equal protection challenges. It stated that petitioner had not been denied a due process right to access to the courts by action of the State, reasoning that it was the Indian people who had deprived themselves of access to state jurisdiction in declining to avail themselves of the State's jurisdictional offer by waiving their sovereign immunity. See id., at 106. The North Dakota court then ruled that the jurisdictional disclaimer did not violate the Equal Protection Clause because, by virtue of the
consent provision, "[the] statute does not treat [the Tribe] less than equal, it treats them ...