            Filed 1/23/20 by Clerk of Supreme Court

                    IN THE SUPREME COURT
                    STATE OF NORTH DAKOTA

                                2020 ND 9

Darrel Gustafson,                                       Plaintiff and Appellee
      v.
Linus Poitra, Raymond Poitra,                     Defendants and Appellants
      and
any and all others in possession of the
Property described in the Complaint,                              Defendants



                                No. 20190230

Appeal from the District Court of Rolette County, Northeast Judicial District,
the Honorable Anthony Swain Benson, Judge.

AFFIRMED.

Opinion of the Court by Crothers, Justice.

David J. Smith and Tyler J. Malm, Bismarck, ND, for plaintiff and appellee;
(on brief).

William J. Delmore, Bismarck, ND, for defendants and appellants Linus Poitra
and Raymond Poitra; (on brief).
                            Gustafson v. Poitra
                              No. 20190230

Crothers, Justice.

[¶1] Linus and Raymond Poitra appeal the district court judgment of eviction.
The Poitras argue the district court erred by exercising jurisdiction over this
matter, and by sending a North Dakota law enforcement officer onto the
reservation to evict tribal members from property within the Turtle Mountain
Reservation. We affirm.

                                       I

[¶2] The parties have been before this Court multiple times. First, was a
foreclosure action on two parcels of property. Gustafson v. Poitra, 2008 ND 159,
755 N.W.2d 479. Tribal jurisdiction was raised at the district court, but not on
appeal. Id. n.1. This Court affirmed the district court and concluded Raymond
Poitra waived his statute of limitations defense, he failed to raise a material
fact that his prior bankruptcy proceedings released the mortgage on his real
property, he received due process when the district court granted Gustafson
summary judgment, and the court did not abuse its discretion in denying the
post-judgment motion. Id. at ¶ 1.

[¶3] In the second case, Gustafson sued in district court claiming Leon
Poitra’s estate owed him money for maintenance and repairs he made on a
building located in part on his land and in part on Leon Poitra’s land.
Gustafson v. Estate of Poitra, 2011 ND 150, ¶ 2, 800 N.W.2d 842. The 2011 case
centered on a 1997 lease between Gustafson and Leon and Linus Poitra. This
Court vacated the default judgment in favor of Gustafson because the district
court did not have subject matter jurisdiction over the lease. Id. at ¶¶ 1, 14.

[¶4] The third case was Gustafson v. Poitra, 2018 ND 202, 916 N.W.2d 804.
In that case, Gustafson sued Raymond and Linus Poitra alleging he was a non-
Indian fee owner of two parcels located in Rolette County within the exterior
boundaries of the Turtle Mountain Reservation. Id. at ¶ 2. Gustafson claimed
ownership by virtue of a 2007 foreclosure judgment and a 2008 sheriff’s deed


                                       1
after the Poitras placed a lessor’s lien on the properties. Id. The district court
quieted title in the two parcels of land to Gustafson and ordered the Poitras
pay damages. The Poitras argued the district court erred in deciding the Turtle
Mountain tribal court did not have jurisdiction over the action. Id. at ¶ 1. This
Court affirmed, and concluded neither of the two Montana exceptions applied.
Id. at ¶¶ 17, 19.

[¶5] The current case began when Gustafson sued to evict the Poitras and
require that they remove their personal property from property that was
subject of the 2018 quiet title action. The district court determined it had
subject matter jurisdiction and granted the eviction. The Poitras contend this
action is a continuance of the prior foreclosure, and they are not challenging
the foreclosure or the quiet title. They argue the eviction action should have
been brought in tribal court, and sending a North Dakota law enforcement
officer onto the reservation to evict tribal members is not a continuance of the
prior foreclosure action, but is a clear violation of the United States Supreme
Court holding in Montana v. United States, 450 U.S. 544 (1981).

                                        II

[¶6] “In Fredericks v. Fredericks, 2016 ND 234, ¶ 6, 888 N.W.2d 177 (citations
omitted), we described standards for analyzing subject matter jurisdiction:

      ‘Subject-matter jurisdiction cannot be conferred by agreement,
      consent, or waiver, and issues involving subject-matter
      jurisdiction can be raised by the court or a party at any time in a
      proceeding. When the jurisdictional facts are not in dispute, we
      review the district court’s decision on subject-matter jurisdiction
      de novo. If the underlying jurisdictional facts are disputed, this
      Court is presented with a mixed question of law and fact, and we
      review the question of law de novo and the district court’s findings
      of fact under the clearly erroneous standard of review. A finding of
      fact is clearly erroneous if it is induced by an erroneous view of the
      law, if no evidence exists to support it, or if, upon review of the
      entire record, this Court believes a mistake has been made.’”

Poitra, 2018 ND 202, ¶ 6, 916 N.W.2d 804.


                                        2
[¶7] Here, the dispute is whether the district court had jurisdiction to
adjudicate an action for eviction regarding the property, which is non-Indian
fee land located within the Turtle Mountain Reservation. The dispute is not
factual. In the 2018 case we accepted that: 1) Gustafson is a non-Indian; 2) the
property at issue is owned by Gustafson in fee; and 3) the property at issue is
within the exterior boundaries of the Turtle Mountain Reservation. Therefore,
the applicable standard of review is de novo. Poitra, 2018 ND 202, ¶ 4, 916
N.W.2d 804.

                                       III

[¶8] The Poitras argue the district court did not have jurisdiction over an
eviction regarding the non-Indian fee land located within the Turtle Mountain
Reservation.

[¶9] “Subject matter jurisdiction is a court’s power to hear and decide the
general subject involved in the action.” Poitra, 2018 ND 202, ¶ 9, 916 N.W.2d
804 (citing Albrecht v. Metro Area Ambulance, 1998 ND 132, ¶ 10, 580 N.W.2d
583). In Plains Commerce Bank v. Long Family Land & Cattle Co., Inc., 554
U.S. 316, 320, 327-30 (2008), a tribal court did not have jurisdiction to
adjudicate a discrimination claim against a non-Indian bank concerning the
non-Indian bank’s sale of its fee land. In Plains Commerce Bank, the Supreme
Court described the underlying principles and framework for assessing tribal
court jurisdiction under the Montana exceptions:

             “For nearly two centuries now, we have recognized Indian
      tribes as ‘distinct, independent political communities,’ qualified to
      exercise many of the powers and prerogatives of self-government.
      We have frequently noted, however, that the ‘sovereignty that the
      Indian tribes retain is of a unique and limited character.’ It centers
      on the land held by the tribe and on tribal members within the
      reservation.
             “As part of their residual sovereignty, tribes retain power to
      legislate and to tax activities on the reservation, including certain
      activities by nonmembers, to determine tribal membership, and to
      regulate domestic relations among members. They may also
      exclude outsiders from entering tribal land. But tribes do not, as a


                                        3
general matter, possess authority over non-Indians who come
within their borders: ‘[T]he inherent sovereign powers of an Indian
tribe do not extend to the activities of nonmembers of the tribe.’ As
we [have] explained, the tribes have, by virtue of their
incorporation into the American republic, lost ‘the right of
governing . . . person[s] within their limits except themselves.’
       “This general rule restricts tribal authority over nonmember
activities taking place on the reservation, and is particularly
strong when the nonmember’s activity occurs on land owned in fee
simple by non-Indians—what we have called ‘non-Indian fee land.’
Thanks to the Indian General Allotment Act of 1887, there are
millions of acres of non-Indian fee land located within the
contiguous borders of Indian tribes. The history of the General
Allotment Act and its successor statutes has been well rehearsed
in our precedents. Suffice it to say here that the effect of the Act
was to convert millions of acres of formerly tribal land into fee
simple parcels, ‘fully alienable,’ and ‘free of all charge or
incumbrance whatsoever.’
       “Our cases have made clear that once tribal land is converted
into fee simple, the tribe loses plenary jurisdiction over it. Among
the powers lost is the authority to prevent the land’s sale,—not
surprisingly, as ‘free alienability’ by the holder is a core attribute
of the fee simple. Moreover, when the tribe or tribal members
convey a parcel of fee land ‘to non-Indians, [the tribe] loses any
former right of absolute and exclusive use and occupation of the
conveyed lands.’ This necessarily entails ‘the loss of regulatory
jurisdiction over the use of the land by others.’ As a general rule,
then, ‘the tribe has no authority itself, by way of tribal ordinance
or actions in the tribal courts, to regulate the use of fee land.’
       “We have recognized two exceptions to this principle,
circumstances in which tribes may exercise ‘civil jurisdiction over
non-Indians on their reservations, even on non-Indian fee lands.’
First, ‘[a] tribe may regulate, through taxation, licensing, or other
means, the activities of nonmembers who enter consensual
relationships with the tribe or its members, through commercial
dealing, contracts, leases, or other arrangements.’ Second, a tribe
may exercise ‘civil authority over the conduct of non-Indians on fee
lands within the reservation when that conduct threatens or has
some direct effect on the political integrity, the economic security,
or the health or welfare of the tribe.’ These rules have become
known as the Montana exceptions, after the case that elaborated


                                  4
      them. By their terms, the exceptions concern regulation of ‘the
      activities of nonmembers’ or ‘the conduct of non-Indians on fee
      land.’
             “Given Montana’s ‘“general proposition that the inherent
      sovereign powers of an Indian tribe do not extend to the activities
      of nonmembers of the tribe,”’ efforts by a tribe to regulate
      nonmembers, especially on non-Indian fee land, are
      ‘presumptively invalid[.]’”

Poitra, 2018 ND 202, ¶ 11, 916 N.W.2d 804. “The burden rests on the tribe to
establish one of the exceptions to Montana’s general rule that would allow an
extension of tribal authority to regulate nonmembers on non-Indian fee land.”
Plains Commerce Bank, 554 U.S. at 330; but cf. Schaghticoke Indian Tribe v.
Rost, 138 Conn. App. 204, 50 A.3d 411 (2012) (citing State v. Velky, 263 Conn.
602, 605 n.5, 821 A.2d 752 (2003) (“Our Supreme Court has indicated that
tribal sovereignty may only be invoked by a member of the tribe.”)). “These
exceptions are ‘limited’ ones, and cannot be construed in a manner that would
‘swallow the rule,’ or ‘severely shrink’ it.” Poitra, at ¶ 11.

[¶10] The Poitras broadly argue that eviction of tribal members from land
within the Turtle Mountain Reservation by a state law enforcement officer
violates the Montana exceptions. However, they make no discernable
argument addressing the first exception permitting tribal regulation of certain
consensual relationships.

[¶11] Regarding the second Montana exception, the Poitras argue “the
utilization of a nonfederal law enforcement official from a foreign jurisdiction
to enforce the eviction action certainly appears to challenge the political
integrity and the health and welfare of the [t]ribe.” They provide no legal
support for the claim. Nor do they explain how the remedy selected by the court
deprives the court of subject matter jurisdiction. Christenson v. Grandy, 46
N.D. 418, 180 N.W. 18, 22 (1920) (“Jurisdiction is the power to hear and
determine a cause, and carries with it the power to decide a cause within the
jurisdiction of the court incorrectly as well as correctly, and it does not relate
to the rights of the parties, but to the power of the court.”).




                                        5
[¶12] The argument that sending State law enforcement to effectuate the
eviction violated either Montana exception is inadequately supported.
Therefore, the Poitras have not met their burden. We “will not consider an
argument that is not adequately articulated, supported, and briefed.” Hale v.
State, 2012 ND 148, ¶ 12, 818 N.W.2d 684 (citing Holden v. Holden, 2007 ND
29, ¶ 7, 728 N.W.2d 312 (quoting State v. Haibeck, 2006 ND 100, ¶ 9, 714
N.W.2d 52)).

                                     IV

[¶13] The Poitras did not meet their burden under either Montana exception
and did not explain how a district court was divested of subject matter
jurisdiction to grant a judgment of eviction. The district court judgment is
affirmed.

[¶14] Daniel J. Crothers
      Gerald W. VandeWalle
      Lisa Fair McEvers
      Jerod E. Tufte
      Jon J. Jensen, C.J.




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