text:
    STATE OF MONTANA, Plaintiff, vs. JEREMIAH ALLEN JOHNSON, Defendant.
    NO. 10484
    DECISION
   On April 5, 1993 the Defendant was sentenced to Count I, ten (10) years for Burglary; Count II, ten (10) years for Theft. Said sentence shall run concurrently with each other. It is the recommendation of the Court that the Defendant shall serve his sentence at the Swan River Youth Camp. Credit is given for 107 days time served, plus other conditions as stated in the April 5,1993 Judgment.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Corut.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence is affirmed as originally imposed. The Sentence Review Board notes that the sentencing judge recommended that the Defendant he placed at the Swan River Youth Forest Camp. Since that program is no longer in existence, the Board recommends that the Defendant be considered for placement in the Swan River Correctional Training Center.

DATED this 23rd day of July, 1993.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman,. Hon. G. Todd Baugh, and Hon. John Warner, Judges


source: Caselaw Access Project

license: Public Domain

text:
    STATE OF MONTANA, Plaintiff, vs. ANTHONY DION HEANEY, Defendant.
    NO. 9358
    DATED this 23rd day of July, 1993.
    DECISION
   On May 22, 1991, the Defendant was sentenced to forty (40) years for Sexual Intercourse Without Consent. It was recommended of the Court to the Parole Board that the Defendant shall complete the sexual offender treatment program and the anger management program at the Montana State Prison before being eligible for parole.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Stacy Laqua, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careftd consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Stacy Laqua, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. DOM L. TUMLIN, Defendant.
    NO. CDC-92-334
    DATED this 23rd day of July, 1993.
    DECISION
   On March 30, 1993, the Defendant was sentenced to ten (10) years with two (2) years suspended for Theft. Credit is given for 19 days time served. Along with other specific conditions listed in the March 30,1993 judgment the Defendant was required to complete a chemical dependency program at the prison prior to his release, and following his release from prison, shall be required to follow all after-care recommendations thereof.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed, except for Number 5 condition, which shall read: 5. The defendant is required to successfully complete a chemical dependency treatment program which can be obtained outside of the prison as soon as possible, but he must be under the supervision of the Department of Corrections and Human Services, Probation and Parole.

The reason for the decision is the Sentence Review Board understands there is a long waiting list inside the Montana State Prison for inmates to obtain chemical dependency treatment, therefore, in the interest of justice and for the Defendant’s well-being, that he be allowed to seek treatment outside of the prison.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT DAVID LINN, JR., Defendant.
    NO. CDC-90-151
    DECISION
   On December 4, 1990, the Defendant was sentenced to twenty (20) years for Criminal Sale of Dangerous Drugs. The defendant received credit for 151 days time served. Said twenty (20) years sentence shall run consecutively to the prior felony sentences that the defendant is presently serving at the Montana State Prison; dangerous designation.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

DATED this 23rd day of July, 1993.

The Defendant was present and was represented by Marie A. Andersen, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed, however the Dangerous Designation shall be dropped.

The reason for the decision is: (1) to bring the sentence more in line with the Legislative policy for drug offenses; and (2) the Petitioner’s roommate, Mr. Marcias, received a lesser sentence for a similar crime, a crime that was committed at a similar time; and the sales were made to the same informant.

Hon. G. Todd Baugh, Acting Chairman, Hon. Robert Boyd, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Marie Andersen, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


author: JUSTICE NELSON

text:
    ROBERT SCHERPENSEEL and SHIRLEY SCHERPENSEEL, husband and wife; ROBERT EICKERT and THERESA EICKERT, husband and wife, Plaintiffs and Appellants, v. DUANE BITNEY and BETTY BITNEY, husband and wife; EDGAR GRANRUD and HELEN GRANRUD, husband and wife; and FLATHEAD COUNTY, MONTANA, a political subdivision of the State of Montana, by and through its Board of County Commissioners, Defendants and Respondents.
    No. 93-331.
    Submitted on Briefs November 10, 1993.
    Decided December 22, 1993.
    50 St.Rep. 1709.
    263 Mont. 68.
    865 P.2d 1145.

      For Plaintiffs and Appellants: Patrick M. Springer, Kalispell.
    For Defendants and Respondents: M. Dean Jellison, Murphy, Robinson, Heckathom & Phillips, (Bitneys), James C. Bartlett, Hash, O’Brien & Bartlett, (Granruds), and Dennis J. Hester, Deputy Flathead County Attorney, Kalispell.
   JUSTICE NELSON

delivered the Opinion of the Court.

Plaintiffs/Appellants appeal an order of the Eleventh Judicial District Court, Flathead County, granting summary judgment to the defendants and denying plaintiffs’ motion to alter or amend that judgment. We reverse.

The issues on appeal are as follows:

1. Does the Covenant to Dedicate, entered into by the defendants in 1975, run with the land?

2. Does the eight-year statute of limitations bar the plaintiffs’ cause of action?

3. Did the District Court err in granting summary judgment in favor of the defendants?

In 1975, the defendants Edgar and Helen Granrud and Duane and Betty Bitney (the defendants) owned certain real property in Flathead County known as Stillwater Terrace, Unit 2 (Unit 2). The defendants applied for summary review of their subdivision application on February 18, 1975, and a summary review report was subsequently prepared. On May 19,1975, the defendants entered into a “Covenant to Dedicate” with Flathead County and its Board of County Commissioners. This document provided, in pertinent part:

... in consideration of the Board of County Commissioners of Flathead County, Montana, approving the covenantors map or plat of Stillwater Terrace, Unit 2 ... the Covenantors agree in the future to donate as a County Road [portions of Lots 8 and 9]. Covenantors agree to donate the beforementioned Easterly 60 feet of Lots 8 and 9 of Stillwater Terrace, Unit 2, 233.54 feet in length in the future if the Covenantee will agree to approve the Stillwater Terrace, Unit 2 map for recording.
The Covenantors further agree for the consideration before stated that any future conveyance of Lots 8 or 9 of Stillwater Terrace, Unit 2, Flathead County, Montana, will be subject to the terms of this Agreement, and the Covenantors further agree that they will improve the Easterly 60 feet of Lots 8 and 9 of Stillwater Terrace, Unit 2 said 60 foot section being 233.54 feet in length, and that such improvements on the portions of Lots 8 and 9 will comply with the standards for County Roads. ...

The same day, the Board of County Commissioners accepted the plat for Unit 2 subject to the “restrictive covenants to dedicate.”

Thereafter, on June 12, 1975, the plaintiff Shirley Scherpenseel purchased Lot 9 of Unit 2 from the Granrud defendants. Although not in the record, it is alleged that, on July 28, 1975, the plaintiffs Robert and Theresa Eickert purchased Lot 8 in Unit 2 from the Granrud defendants, and the defendants have not denied this allegation.

On July 31, 1990, the plaintiffs made a formal demand to the defendants requesting that they perform in accordance with the Covenant to Dedicate. On July 8,1991, the plaintiffs filed a complaint against the defendants, alleging that they had an obligation to construct a road abutting the plaintiffs’ property to county specifications. The plaintiffs also sued Flathead County, requesting that, after the road was constructed, the county be required to accept and maintain that road as a county road.

On October 9,1991, the plaintiffs filed a Motion for Determination of Plaintiffs’ Standing to Seek Declaratory Relief. On December 10, 1991, the District Court issued an order finding that the plaintiffs had standing to pursue the action. Thereafter, on September 30,1992, the Bitney defendants filed a Motion for Summary Judgment. Although the other defendants did not file similar summary judgment motions, the Bitneys’ motion was apparently considered to be inclusive of all defendants. On March 15,1993, the District Court granted summary judgment in favor of all the defendants on the basis that the plaintiffs’ action was time-barred by the statute of limitations. On March 26,1993, the plaintiffs filed a Motion to Alter or Amend Order Granting Summary Judgment, which was denied by the District Court on April 26,1993. From the March 15,1993 and April 26,1993, orders, the plaintiffs appeal.

Our standard in reviewing a grant of summary judgment is the same as that initially utilized by the district court. McCracken v. City of Chinook (1990), 242 Mont. 21, 24, 788 P.2d 892, 894. Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.P.

I — COVENANT RUNNING WITH THE LAND

The plaintiffs contend that the Covenant to Dedicate runs with the land, thus benefitting their property and binding the defendants to make the agreed-upon road improvements. We agree.

It is undisputed that, in 1975, when the subdivision plat and Covenant to Dedicate at issue here were accepted by the Board of County Commissioners and were respectively filed and recorded in Flathead County, the subdivision and plat were subject to the requirements of the Montana Subdivision and Platting Act (the Act), §§ 11-3859, et seq., RCM, 1947, as amended, (now §§ 76-3-101, et seq., MCA).

The purposes of the Act were set forth at § 11-3860, RCM, 1947, as amended, (now § 76-3-102, MCA), as follows:

It is the purpose of this act to promote the public health, safety, and general welfare by regulating the subdivision of land; to prevent overcrowding of land; to lessen congestion in the streets and highways; to provide for adequate light, air, water supply, sewage disposal, parks and recreation areas, ingress and egress, and other public requirements; to require development in harmony with the natural environment; to require that whenever necessary, the appropriate approval of subdivisions be contingent upon a written finding of public interest by the governing body; and to require uniform monumentation of land subdivisions and transferring interests in real property by reference to plat or certificate of survey, (emphasis added)

With minor amendments not at issue here, those purposes have remained in the Act to the present.

Under the statutory definition in place in 1975, a subdivision was a division of land which created one or more parcels containing less than twenty acres. Section 11-3861(12), RCM, 1947, as amended. That remained true at all times pertinent to this litigation. See § 76-3-103(15), MCA.

In this case, the warranty deed from the Granruds to Shirley Scherpenseel described the real property as follows:

Lot 9 of Stillwater Terrace — Unit 2, as shown on the plat or map thereof on file and of record in the office of the Clerk and Recorder of Flathead County, Montana.

The plat referred to in this real property description is the one accepted by the Board of County Commissioners on May 19,1975 and subsequently filed. The plat was accepted after the Covenant to Dedicate was executed by the defendants and “in consideration of the Board of County Commissioners of Flathead County, Montana, approving the covenantors map or plat of Stillwater Terrace, Unit 2.”

Section 11-3870(3), RCM, 1947, as amended, (now § 76-3-304, MCA) provided in 1975, and still provides that:

The recording of any plat made in compliance with the provisions of this act [now referred to as chapter] shall serve to establish the identity of all lands shown on and being a part of such plat. Where lands are conveyed by reference to a plat, the plat itself or any copy of the plat properly certified by the county clerk and recorder as being a true copy thereof, shall be regarded as incorporated into the instrument of conveyance and shall be received in evidence in all courts of this state.

Section 11-3869, RCM, 1947, as amended, (now § 76-3-306, MCA), provided in 1975, and still provides, that:

All covenants shall be considered to run with the land, whether marked or noted on the subdivision plat or contained in a separate instrument recorded with the plat.

In this case, the Covenant to Dedicate was a separate instrument which was recorded with the Clerk and Recorder. Although not in the record, the plaintiffs also contend that the Covenant to Dedicate is noted on the recorded plat, and the defendants have not denied this contention. This contention is supported by the Board of County Commissioners’ minutes, dated May 19, 1975, which state that the plat of Unit 2 was accepted “with restrictive covenants to dedicate.”

Accordingly, we hold that, under the above-cited provisions of the Act, the Covenant to Dedicate at issue here clearly was and is one running with the land for the benefit of the plaintiffs and binding upon the defendants and, further, that the covenant was incorporated in plaintiffs’ deed of conveyance by operation of law.

Ruling to the contrary, the District Court relied solely on the case of Majers v. Shining Mountains (1986), 219 Mont. 366, 711 P.2d 1375, in granting summary judgment to the defendants. However, Majers is not on point. In that case, the defendant subdivided a 7,000 acre ranch. In order to sell the lots, the defendant prepared and filed subdivision plat maps. These plats were filed prior to the effective date of the Montana Subdivision and Platting Act and were not subject to its provisions. The plaintiffs purchased lots within the subdivision and allegedly were told by the defendant’s personnel that roads would be constructed and maintained by the defendant and that a dam would be constructed across a creek to form a lake suitable for fishing and other recreational pursuits. When the plaintiffs requested that the defendant construct the roads, the defendant refused. The plaintiffs then filed an action alleging an implied covenant based on the verbal representations allegedly made by the defendant’s personnel. Majers, 711 P.2d at 1376. We held that the plats themselves did not give rise to a promise to construct roads, and we remanded for a determination of what verbal representations were made when the defendant sold the lots to the plaintiffs. Majers, 711 P.2d at 1378. We also held that the appropriate statute of limitations on an implied covenant arising from the use of written documents was eight years, the limitation for actions based on a written contract. Majers, 711 P.2d at 1378-79.

We disagree with the District Court’s conclusion that Majers is “very similar” to the case at hand. First, the subdivision and plat at issue in Majers were not subject to the Montana Subdivision and Platting Act, as are the subdivision, plat and covenant at issue in the present case. Second, Majers dealt with oral representations giving rise to an implied covenant. In the case at hand, an express, written covenant was executed and recorded. Therefore, we conclude that Majers is not sufficiently similar to the instant case so as to warrant reliance thereon.

In passing, we note that the Board of County Commissioners’ minutes refer to the covenant at issue as a “restrictive” covenant. A restrictive covenant is defined as a “[pjrovision in a deed limiting the use of the property and prohibiting certain uses.” Black’s Law Dictionary 1182 (5th ed. 1979). On the other hand, an affirmative covenant is defined as a covenant “in which the party binds himself to the existence of a present state of facts as represented or to the futme performance of some act.” Black’s Law Dictionary 327 (5th ed. 1979). We conclude that, in actuality, the covenant at issue here is an affirmative covenant, instead of a restrictive covenant, notwithstanding the reference in the Board of County Commissioners’ minutes.

II — STATUTE OF LIMITATIONS

Plaintiffs filed their action in 1991, some sixteen years after purchasing their properties from the Granruds, but within eleven months of demanding, in writing, that the Bitneys and Granruds perform in accordance with the Covenant to Dedicate. The District Court ruled that plaintiffs’ cause of action was time-barred by the eight-year statute of limitations provided for in § 27-2-202, MCA. The plaintiffs contend that their action is not time-barred by the statute of limitations. We agree with the plaintiffs.

Section 27-2-202, MCA, provides that an action upon any obligation founded upon an instrument in writing must be commenced within eight years. We have previously held that a deed constitutes a contract founded upon a written instrument for purpose of invoking the eight-year statute of limitations applicable to written contracts. Neils v. Deist (1979), 180 Mont. 542, 545-46, 591 P.2d 652, 654-55. Similarly, we have applied the eight-year statute of limitations to cases involving covenants. See, for example, Majers, 711 P.2d at 1378-79; U.V. Industries, Inc. v. Danielson (1979), 184 Mont. 203, 228, 602 P.2d 571, 586 (action to enforce an implied covenant in an oil and gas lease). Accordingly, the eight-year statute of limitations is applicable here to an action to enforce an affirmative, written covenant running with the land incorporated by operation of law in plaintiffs’ deed of conveyance.

However, while the eight-year statute of limitations is the appropriate statute, we must, nevertheless, determine when the eight-year limitations period began to run in this case.

The plaintiffs contend that the statute of limitations did not begin to run until they made a demand for performance. The defendants argue that the eight-year limitations period began to run on May 19, 1975, the day the Covenant to Dedicate was signed.

This is an issue of first impression in Montana. What little case law there is from other jurisdictions is annotated at 17 ALR 2d 1251. Those cases, however, in addition to being relatively old, are not factually analogous to the instant case, nor do such authorities consider the statute of limitations question in the context of the requirements of a land use law such as the Act.

As a point of departure, however, we note that other courts have generally taken one of three different approaches in determining when a statute of limitations begins to run on an action to enforce an affirmative, written covenant running with the land. One approach holds that the statute of limitations does not begin to run until an actual demand for performance is made. A second approach modifies the first by requiring, through application of the doctrine of laches to old, stale or untimely claims, that the demand be made within a reasonable period of time. A third approach dispenses with the necessity for a demand by taking the position that there is a continuing breach so that a new cause of action arises from day to day.

Taking into consideration the facts of this case, our State’s comprehensive scheme of land use laws and regulations, and Montanans’ unique inalienable right to a clean and healthy environment embodied in Article II, Section 3, of our Constitution, we conclude that the first approach above-mentioned best effectuates the purposes and public policy of the Act, while, coincidentally, providing a definite and easily determinable time frame within which actions must be commenced to enforce affirmative, written covenants running with the land.

As in this case, developers of real property often enter into affirmative, written covenants and agreements as a part of the subdivision process in order to obtain the approval of the governing body to file a subdivision plat. In many cases, roads and other improvements required by the local government, by applicable laws or rules and/or by the developer’s covenants and agreements are not made immediately, but, rather, are constructed over a period of time as parcels or units of the subdivision are sold.

When developers fail to timely construct roads and improvements agreed upon or otherwise required, innocent purchasers of the property, and in some instances the local government and its taxpayers, are left to shoulder the burden and expense involved in constructing and financing the roads and improvements that were properly the responsibility of the developers.

Worse, the purposes of the Act, as set forth at length in § 76-3-102, MCA, are frustrated to the ultimate detriment of the public, the environment and the orderly, safe and harmonious development of Montana’s lands. Simply put, public policy, as expressed in the Act, demands that real estate developers be strictly held to their covenants and agreements, and that they not be allowed to gain the advantage of their failure to perform by the fortuitous passage of time.

Accordingly, we hold that the eight-year statute of limitations in which to commence an action to enforce an affirmative, written covenant running with the land does not begin to run until the date on which an actual demand for performance is made.

In this case, the plaintiffs demanded performance in writing on July 31,1990, and filed a formal-complaint on July 8,1991. Based on the rule, set forth above, that the eight-year statute of limitations did not begin to run until the demand for performance was made, we hold that the plaintiffs’ complaint, filed on July 8, 1991, was not time-barred by the eight-year statute of limitations of § 27-2-202, MCA.

Ill — SUMMARY JUDGMENT

The plaintiffs contend that the District Court erred in granting summary judgment to the defendants. We agree.

Summary judgment is proper when there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Rule 56(c), M.R.Civ.R In this case, the defendants acknowledged that there was no genuine issue of material fact when they moved for summary judgment. However, we cannot agree that the defendants are entitled to judgment as a matter of law. Clearly, they are not.

As we held above, the Covenant to Dedicate is an affirmative, written covenant running with the land and, as such, is meant to benefit plaintiffs’ property. Therefore, there is an obligation on the defendants to perform pursuant to the terms of their covenant. In addition, the plaintiffs’ action is not time-barred by the applicable eight-year statute of limitations. Therefore, we hold that the District Court erred in granting summary judgment to the defendants.

Reversed and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, TRIEWEILER and GRAY concur.

      We note that the record in this case has not been extensively developed; for example, the Eickerts are named plaintiffs, but their deed of conveyance is not in the record. However, this opinion applies to them with equal weight, assuming that their deed contains the same or similar language as the deed from the Granruds to Shirley Scherpenseel.


text:
    STATE OF MONTANA, Plaintiff, vs. RAYMOND H. BUNGARD, Defendant.
    NO. BDC-92-036
    DECISION
   On March 31, 1992, the Defendant was sentenced to Count I, ten (10) years for Arson. This sentence is to run consecutively with the sentence imposed on the Defendant in Cause No. CDC-91-179. The Defendant was also sentenced to Count II, ten (10) years for Attempt (Escape). This sentence is to run consecutively with the sentence imposed on Count I and the sentence imposed in Cause No. CDC-91-179. It is further ordered that the $1,125.72 confiscated from the Defendant be transferred to the Cascade County Sheriff’s budget as restitution for damages to the Cascade County Jail sustained in the arson attempt. The Defendant is also ordered to pay the mandatory $20 surcharge.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

DATED this 23rd day of July, 1993.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. Robert Boyd, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT W. GAINES, Defendant.
    NO. DC-92-279
    DATED this 23rd day of July, 1993.
    DECISION
   On February 23, 1993, the Defendant was sentenced to one Hundred (100) years for Deliberate Homicide; ten (10) years for the use of a weapon; these two sentences shall be served consecutively. The Defendant shall not be eligible for parole for seventeen and one-half (17 1/2) years; the Defendant shall pay twenty dollars ($20) pursuant to Sec. 46-18-236, Montana Code Annotated; plus the Defendant shall receive 264 days credit for time served.

On July 23,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. Robert Boyd, and Hon. John Warner, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. THOMAS MICHAEL DEPAUL, Defendant.
    NO. 88-CR-43
    DATED this 24th day of September, 1993.
    DECISION
   On June 3,1993, the Defendant was sentenced to ten (10) years for the revocation of Issuing a Bad Check. The Defendant shall be given credit for time already served in various jails, the amount of time which will be determined by the Defendant’s probation officer.

On September 24,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the case shall be remanded back to the sentencing judge in Cascade County to determine the amount of credit that shall be given for time served and the reasons therefore.

The reason for the decision is because the record is incomplete.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. JEFFREY ALLAN OSBORNE, Defendant.
    NO. CDC-92-329
    DECISION
   On June 22, 1993, the Defendant was sentenced to twenty (20) years with twelve (12) years suspended for Robbery. The defendant is sentenced to serve two (2) years pursuant to the sentence enhancement for the use of a dangerous weapon. These sentences shall be served consecutively. Credit is given for 248 days time served. The sentence is to be served consecutively with any terms given by Judge McKittrick in cases, ADC-91-246 and ADC-92-136. Plus conditions as stated in the June 22, 1993 Decision.

DATED this 24th day of September, 1993.

On September 24,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

Judge McKittrick recused himself from any participation in this hearing, as he was the sentencing judge in a former matter.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

It was noted that this case would be more properly to present before the Parole Board.

Hon. G. Todd Baugh, Acting Chairman, and Hon. John Warner, Judge


text:
    STATE OF MONTANA, Plaintiff, vs. BETH ANN BRISTOW, Defendant.
    NO. DC-93-085(A)
    DECISION
   On July 30, 1993, the Defendant was sentenced to thirty (30) years for Accountability to Aggravated Kidnapping. The defendant is designated a dangerous offender and shall be given credit for 113 days time served.

On September 24,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented herself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

DATED this 24th day of September, 1993.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges


text:
    STATE OF MONTANA Plaintiff, vs. DONALD D. BAUER, Defendant.
    NO. 10230
    DATED this 24th day of September, 1993.
    DECISION
   On July 12,1993, the Defendant was sentenced to ten (10) years for the revocation of Issuing Bad Checks, with credit for 94 days time served.

On September 24,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall remain the same as originally imposed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges


text:
    STATE OF MONTANA Plaintiff, vs. STACEY M. BJORNSON, Defendant.
    NO. 9991
    DECISION
   On May 10,1993, the Defendant was sentenced to five (5) years on each count for the revocation of Fraudulently Obtaining Dangerous Drugs. Sentences in Count II through XI shall run concurrently with each other but consecutively to the sentence imposed in Count I.

DATED this 24th day of September, 1993.

On September 24,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented herself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that she understood this and stated that she wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rides of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. MICHAEL S. CIMORIC, Defendant.
    NO. DC-93-31
    DATED this 24th day of September, 1993.
    DECISION
   On June 2, 1993, the Defendant was sentenced to two (2) years for Felony Escape. The sentence shall be served consecutively to the term of imprisonment currently being served by the defendant.

On September 24,1993, the Defendant’s application for review of that sentence was ready to be heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was notified by prison staff that this hearing was scheduled, however, the defendant declined to appear before the Board. The Montana Defender Project asked a student to explain to the defendant that he had to either appear before the Sentence Review Board or sign a waiver of his appearance. The defendant refused to do either. Upon being advised of this, the Sentence Review Board dismissed the Petition with prejudice.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. CHAUNCEY EVERETT DAVIS, Defendant.
    NO. DC-92-26
    DATED this 24th day of September, 1993.
    DECISION
   On October 16, 1992, the Defendant was sentenced to ten (10) years for Deviate Sexual Conduct. Credit is given for 11 days time served, plus conditions as stated in the October 16, 1992, Judgment.

On September 24,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Alan Johnson, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Alan Johnson, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT WAYNE EVANS, Defendant.
    NO. CR-83-38
    DECISION
   On June 2, 1993, the Defendant was sentenced to ten (10) years for the revocation of Cause No. CR-83-38 and five (5) years for the revocation of CR-83-12, to run consecutively with each other for a total of 15 years, with five (5) years suspended upon conditions listed in the June 2,1993, Judgment.

On September 24,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by David E. Stenerson, Attorney at Law from Hamilton, Montana. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

DATED this 24th day of September, 1993.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed except that the defendant shall be given credit for nine (9) years and four (4) months on successful probation. The Petitioner’s sentence should be adjusted accordingly.

The reason for the decision is to bring this sentence more in line with other revocations of a similar nature.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank David Stenerson, Attorney at Law from Hamilton, Montana, for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. DENNIS GARCIA, Defendant.
    NO. DC-93-010A
    DATED this 24th day of September, 1993.
    DECISION
   On July 14,1993, the defendant was sentenced to twenty (20) years, dangerous, for Burglary. The defendant shall be given credit for time served since December 21,1992.

On September 24,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. DENNIS DUANE HANNI, Defendant.
    NO. DC-92-187A
    DATED this 24th day of September, 1993.
    DECISION
   On December 8,1992, the Defendant was sentenced to forty (40) years, dangerous, for Sexual Intercourse Without Consent; plus conditions listed in the December 8,1992, Judgment.

On September 24,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges


text:
    STATE OF MONTANA, Plaintiff, vs. SHAWN DUVAL JOHNSON, Defendant.
    NO. DC-92-184B
    DECISION
   On March 29,1993, the Defendant was sentenced to twenty (20) years, dangerous, for Burglary, plus conditions as stated in the March 29, 1993, Judgment.

On September 24,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Alan Johnson, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

DATED this 24th day of September, 1993.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Alan Johnson, Legal Intern from the Montana Defender Project for his assistance to the defendant and to this Court.


text:
    STATE OF MONTANA, Plaintiff, vs. ROBERT D. LYMAN, Defendant.
    NO. DC-92-111B
    DATED this 24th day of September, 1993.
    DECISION
   On January 13,1993, the Defendant was sentenced to ninety (90) years with twenty (20) years suspended for Aggravated Kidnapping. The defendant shall be designated a dangerous offender for purposes of parole eligibility, plus abide by all requirements and regulations imposed the decision, January 13, 1993.

On September 24,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and was represented by Marie Andersen, Legal Intern from the Montana Defender Project. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to proceed.

After careful consideration, it is the unanimous decision of the Sentence Review Division that the sentence shall be affirmed.

The reason for the decision is the sentence imposed by the District Court is presumed correct pursuant to Section 46-18-904(3), MCA. The Division finds that the reasons advanced for modification are insufficient to deem inadequate or excessive as required to overcome the presumption per Rule 17 of the Rules of the Sentence Review Division of the Montana Supreme Court.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges

The Sentence Review Board wishes to thank Marie Andersen, Legal Intern from the Montana Defender Project for her assistance to the defendant and to this Court.


author: JUSTICE TRIEWEILER

text:
    IN RE THE MARRIAGE OF SHIRLEY ANN BROWNELL, Petitioner and Appellant, and ARTHUR NELSON BROWNELL, Respondent and Cross-Appellant.
    No. 93-358.
    Submitted on Briefs December 9, 1993.
    Decided December 22, 1993.
    50 St.Rep. 1714.
    263 Mont. 78.
    865 P.2d 307.

      For Petitioner and Appellant: Kevin T. Sweeney, Sweeney & Healow, Billings.
    For Respondent and Cross-Appellant: Donald L. Harris, Crowley, Haughey, Hanson, Toole & Dietrich, Billings.
   JUSTICE TRIEWEILER

delivered the Opinion of the Court.

Arthur N. Brownell filed a motion to modify his dissolution decree in the District Court for the Thirteenth Judicial District, in Yellowstone County. Shirley A. Brownell opposed the modification and filed a motion to request permanent maintenance. The District Court granted Arthur’s motion to modify, denied Shirley’s motion for permanent maintenance, and ordered that Arthur pay her costs and a part of her attorney fees. Shirley now appeals the District Court’s order and Arthur cross-appeals that portion of the order awarding Shirley costs and attorney fees. We affirm in part, reverse in part, and remand with instructions.

The issues on appeal are:

1. Did the District Court err when it granted Arthur’s motion to modify the original decree?

2. Did the District Court err when it refused to rescind the modification agreement?

3. Did the District Court err when it characterized payments to Shirley as maintenance rather than as a division of retirement benefits?

4. Did the District Court err when it denied Shirley’s request for permanent maintenance?

5. Did the District Court err when it awarded attorney fees and costs to Shirley?

FACTUAL BACKGROUND

The parties’ 30-year marriage was dissolved on May 27, 1987. At that time, Arthur was employed by Burlington Northern Railroad and was ordered to pay maintenance to Shirley for a period of five years. She was also awarded one-half of Arthur’s pension and retirement benefits that had accumulated during the marriage. Shirley was 50 years old at the time of the decree.

On June 1,1991, at 57 years of age, Arthur was given an opportunity for early retirement from the railroad. He was offered severance pay in the amount of $66,259.62, and a moving allowance in the amount of $6,000. If he retired early, he would receive $1,872.92 per month from his company pension until age 60, at which time the pension would be reduced to $1,128.42 per month. However, at age 60 he would also become eligible to receive railroad retirement benefits in the amount of $1,480 per month.

Arthur determined that he could not afford to retire based on the terms of the original decree. After consulting his attorney, he began negotiating with Shirley and in July 1991, the parties signed an agreement to modify those terms of the decree that distributed retirement benefits. Shirley scheduled an appointment with her attorney, but canceled it when changes were made in the proposed agreement to her satisfaction. She did not consult an attorney before she signed the agreement.

The modification agreement, prepared by Arthur’s attorney, including changes requested by Shirley, provided that Arthur would pay Shirley a $12,000 lump sum and $300 per month beginning January 1, 1992, for six and one-half years. Commencing in June 1998, Arthur’s monthly obligation to Shirley would increase to $350, terminable upon either party’s death. Also in June 1998, Shirley would begin to receive her own railroad retirement benefits in the amount of $435 per month.

Shirley’s attorney became involved when he was served with notice of the hearing on Arthur’s motion to modify the decree and to approve the terms of the modification agreement. Shirley then requested that the District Court deny Arthur’s motion for modification and rescind the modification agreement. She separately moved that the court modify the original decree to award her permanent maintenance. The maintenance payments provided for in the original decree were scheduled to end on December 31,1991.

STANDARD OF REVIEW

We review findings of fact by the district court to determine if they are “clearly erroneous.” In re Marriage of Eschenbacher (1992), 253 Mont. 139, 142, 831 P.2d 1353, 1355. InEschenbacher, we applied the three-part test adopted in Interstate Production Credit Association v. DeSaye (1991), 250 Mont. 320, 820 P.2d 1285. We will review the record to determine if the findings are supported by substantial evidence, and if there is substantial evidence, we next determine if the district court has misapprehended the effect of the evidence. Even if there is substantial evidence and a proper understanding of the evidence, we may yet declare a finding clearly erroneous when it is clear and definite that a mistake has been committed. See, Eschenbacher, 831 P.2d at 1355.

We review conclusions of law to determine whether the district court’s interpretation of the law was correct. In re Marriage of Burris (1993), 258 Mont. 265, 852 P.2d 616, 619, 50 St. Rep. 525, 526.

I.

Did the District Court err when it granted Arthur’s motion to modify the original decree?

Shirley argues that the District Court erred when it found that she would “receive more money under the July, 1991 agreement than under the final decree.” She asserts that she will actually receive less money. However, this argument is based on the assumption that Arthur would have retired early even if Shirley had not been persuaded to sign the modification agreement. The evidence is undisputed that Arthur would not have retired early if Shirley had not agreed to waive her rights as set forth in the decree.

Under the decree, Arthur paid Shirley monthly maintenance for five years as follows: $550 in 1987, $500 in 1988, $450 in 1989, $400 in 1990, and $350 in 1991. Had she not agreed to modify the decree, Shirley would have been without income for approximately seven years until she qualified for her own spouse’s retirement benefits at the age of 62 and her share of Arthur’s retirement benefits that he would have begun receiving at age 65. However, under the modified agreement, she immediately received benefits at age 55, and by age 75 will have received $157,860. Under the decree, she would have received $129,477 by age 75. The difference between the total amount received under the decree, as opposed to the modification agreement, will narrow as Shirley grows older. The break-even point is estimated at age 89.

Section 40-4-208(3), MCA, states that “[t]he provisions [of a decree] as to property disposition may not be revoked or modified by a court, except: (a) upon written consent of the parties ....” To assess whether the terms relevant to property disposition in a separation agreement are binding, the district court must consider the economic circumstances of the parties to determine whether the agreement is unconscionable. Section 40-4-201(2), MCA.

The District Court heard testimony with regard to the economic circumstances of both parties, and testimony from Arthur with regard to the comparative economic benefits of the modification agreement versus the decree. Shirley did not offer any evidence to dispute Arthur’s testimony nor did she rebut his testimony with her own economic analysis.

We hold that there was substantial evidence to support the finding of the District Court that Shirley was better off under the modification agreement and that the modification agreement was not unconscionable.

II.

Did the District Court err when it refused to rescind the modification agreement?

Shirley argues that because she has been diagnosed with schizoaffective disorder, she is a “person of unsound mind but not entirely without understanding,” under § 28-2-203, MCA, and therefore, that the agreement she entered into with Arthur is subject to rescission under § 28-2-1711, MCA. She further argues that her consent to enter the agreement was obtained by Arthur through “duress, menace, fraud, or undue influence.”

“It is well settled in Montana case law that undue influence must be proven by the person contesting a will or contract.” Adams v. Allen (1984), 209 Mont. 149, 153, 679 P.2d 1232, 1235. Arthur responds that Shirley failed to meet this burden.

The District Court found that the negotiations between Arthur and Shirley were “cordial,” and that there was no evidence that he “threatened, coerced, or misrepresented any fact” to her. As for Shirley, the District Court found that:

She rejected Arthur’s first offer and could have rejected any other offer. This is especially true considering that Shirley consulted with her four adult children, her mother and step-father, and her sister and brother-in-law before signing the agreement.... She also made an appointment to consult with her attorney, but canceled it after reaching what she thought was a fair agreement.

After reviewing the entire record, we conclude there was substantial evidence to support the District Court’s finding that Shirley was competent to enter into the modification agreement with Arthur and that the agreement was not the result of undue influence.

III.

Did the District Court err when it characterized payments to Shirley as maintenance rather than as a division of retirement benefits?

Shirley argues that the District Court mistakenly assumed that the July 1991 agreement modified the decree with respect to maintenance as well as the settlement of retirement benefits. She points out that the word “maintenance” never appears in the agreement.

Shirley’s concern is that maintenance is taxable to her (and deductible for Arthur); whereas property division transfer payments are not taxable as income. See I.R.C. §§ 71 and 215.

According to Arthur, Shirley failed to raise the issue in District Court and therefore, this Court should not consider Shirley’s argument. We note, however, that the payments were first characterized as maintenance in the District Court’s post-trial findings of fact and conclusions of law and order dated December 17, 1992. Therefore, Shirley had no prior opportunity to object to their characterization.

According to the 1987 decree, Arthur’s maintenance obligation ended in December 1991. Arthur moved the District Court to modify that portion, and only that portion, of the decree which set forth the parties’ agreement dividing retirement benefits. Furthermore, he objected to Shirley’s motion for further maintenance on the basis that he was unable to pay it and therefore she was not entitled to future maintenance under the statute. We conclude that there was no evidence to support the District Court’s finding that the payments provided for in the modification agreement were maintenance payments rather than a new form of property division and we reverse that finding of the District Court.

IV.

Did the District Court err when it denied Shirley’s request for permanent maintenance in the amount of $1,200 per month?

Shirley argues that because the District Court was mistaken when it referred to the monthly payments to Shirley as “maintenance,” that this mistake led the District Court to deny Shirley’s motion for permanent maintenance. She specifically points to the District Court’s finding that Shirley had not shown changed circumstances “so substantial and continuing since July, 1991 so as to make the terms of the July, 1991 agreement unconscionable.” She calls our attention to the Commission Comment to § 316 of the Uniform Marriage and Divorce Act, which states, “the person seeking modification must show that circumstances have changed since the date of the original order so that the order is unconscionable at the time the motion is made and will continue to be unconscionable unless modified.” (Emphasis added). See § 40-4-208, MCA. She argues that there was sufficient evidence that her mental condition had worsened since the original decree to the extent that the original award was unconscionable.

While we agree with Shirley that the July 1991 agreement did not modify Arthur’s maintenance obligation under the decree — that it merely substituted or modified his obligations with regard to dividing his retirement benefits, we also conclude there was evidence to support the District Court’s finding that Shirley was not entitled to continued maintenance payments. Her health care provider testified that the mental condition from which she now suffers is the same condition for which she was being treated in the 1980s and there was evidence that Arthur did not have sufficient income after his retirement to pay continued maintenance. The District Court’s order denying Shirley’s motion for continued maintenance is affirmed.

V.

Did the District Court err when it awarded attorney fees and costs to Shirley?

The standard of review for an award of attorney fees in a dissolution action is whether the district court abused its discretion. Burris, 852 P.2d at 620.

Arthur cross-appeals the District Court’s award of costs and attorney fees to Shirley, arguing that she only incurred these costs as a result of her own “reneging” on the agreement. Furthermore, he argues, she had just received $12,000 from which she could pay these costs.

Section 40-4-110, MCA, gives the district court discretion to award costs and attorney fees “from time to time, after considering the financial resources of both parties ....” Here, the District Court’s finding that Shirley did not have sufficient financial resources to pay her costs and attorney fees was accompanied by a finding that Arthur would have access to his thrift plan valued at $42,000 on or about May 20, 1993.

Pursuant to § 40-4-110, MCA, attorney fees are based on the respective financial resources of the parties and not based on which party prevailed. After review of the record, we conclude that the District Court did not abuse its discretion when it ordered that Arthur pay Shirley’s costs and part of her attorney fees. We also note that while no rule prohibited Arthur from dealing with Shirley directly, some of the expense of this litigation might have been avoided if the attorney who represented her in the original and second proceeding had not been excluded from the negotiations until after the agreement was executed.

Based on the record before us, with the exception noted, we find that the District Court made its findings based on substantial evidence.

The judgment of the District Court is affirmed in part, reversed in part, and remanded for further proceedings consistent with this opinion.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, HUNT, GRAY, NELSON and WEBER concur.


text:
    STATE OF MONTANA, Plaintiff, vs. JAMES MORRISON, Defendant.
    NO. DC-90-344
    DATED this 24th day of September, 1993.
    DECISION
   On April 10, 1991, the Defendant was sentenced to twenty (20) years, dangerous, for Sexual Intercourse Without Consent, plus three (3) years for the Use of A Weapon. The sentences shall be served consecutively to each other. The defendant shall receive credit for 209 days time served, plus abide by all conditions set out in the April 10, 1991, Judgment.

On September 24,1993, the Defendant’s application for review of that sentence was heard by the Sentence Review Division of the Montana Supreme Court.

The Defendant was present and represented himself. The state was not represented.

Before hearing the application, the Defendant was advised that the Sentence Review Division has the authority not only to reduce the sentence or affirm it, but also to increase it if such is possible. The defendant was further advised that there is no appeal from a decision of the Sentence Review Division. The defendant acknowledged that he understood this and stated that he wished to waive his appearance.

The Sentence Review Board then advised the defendant that if he waived his appearance, the Board would dismiss his Petition for Sentence Review, and if he chose to reapply, there would be no guarantee that the matter would be heard. The defendant acknowledged that he understood and wanted to proceed with the waiver and did not want to go forward with the Sentence Review.

It is the unanimous decision of the Sentence Review Division that the matter is dismissed.

Hon. Thomas McKittrick, Chairman, Hon. G. Todd Baugh, and Hon. John Warner, Judges


author: JUSTICE WEBER JUSTICE TRIEWEILER

text:
    THE STATE OF MONTANA, Plaintiff and Respondent, v. RUBEN HORSEMAN, Defendant and Appellant.
    No. 92-491.
    Submitted on Briefs August 26, 1993.
    Decided December 27, 1993.
    50 St.Rep. 1720.
    263 Mont. 87.
    866 P.2d 1110.

      JUSTICE TRIEWEILER filed a dissenting opinion in which JUSTICE HUNT joined.
    For Defendant and Appellant: Lawrence A. LaFountain, Havre.
    For Plaintiff and Respondent: Joseph P. Mazurek, Attorney General, Carol Schmidt, Assistant Attorney General, Helena; David G. Rice, Hill County Attorney, Brian Lilletvedt, Special Prosecutor, Havre.
   JUSTICE WEBER

delivered the Opinion of the Court.

This is an appeal from the Twelfth Judicial District Court, Hill County, affirming a charge of possession of an unlawfully killed game animal in violation of § 87-3-111(1), MCA, against Ruben Horseman. We affirm.

We restate the issues on appeal:

1. Did the District Court err in determining that Ruben Horseman, an enrolled tribal member of the Fort Belknap Indian Reservation, had possession of an illegally killed bighorn sheep?

2. Did the District Court err in determining that it had jurisdiction to rule in Horseman’s case?

3. Did the District Court properly conclude that no evidence was presented that demonstrated that any established Rocky Boy’s Indian Reservation’s extradition procedures were violated or that extradition was, in fact, required?

On October 21,1990, Game Warden Mark Earnhardt (Earnhardt) of the Montana Department of Fish, Wildlife and Parks, observed a truck traveling west on a county road in Hill County. The truck had blood runs on the tailgate and was headed for the Rocky Boy’s Reservation. Unable to pursue the vehicle because he was behind a locked gate, Earnhardt radioed Tribal Warden Matt Denny (Denny) on the Rocky Boy’s Reservation for assistance in stopping the vehicle.

Both parties indicate that upon entering the reservation, Ruben Horseman (Horseman) was stopped by Denny who discovered a freshly killed bighorn sheep in the back of Horseman’s suburban. Upon his arrival, Earnhardt issued Horseman citations for possessing an unlawfully killed bighorn sheep, transporting an unlawfully killed bighorn sheep and taking a bighorn sheep without a license.

These charges were brought in Justice Court for Hill County. Horseman’s motion to dismiss the charge of taking of a bighorn sheep was granted by the court because Hill County was an improper venue for a crime committed outside of the county. The record indicates that the sheep was killed in Blaine County. The remaining two charges, possessing and transporting an illegally killed game animal were tried to a jury which found Horseman guilty of both charges on November 13,1991. Horseman was fined $500, ordered to pay $2,000 restitution and had his hunting privileges suspended for thirty months.

Horseman appealed this judgment to the Twelfth Judicial District Court. He filed a pretrial motion to dismiss the charges against him. The District Court granted Horseman’s motion to dismiss the charge of transporting an illegally killed game animal but denied dismissal of the charge of possession of such animal.

On July 17, 1992, Horseman entered a conditional plea of “guilty” pursuant to § 46-12-204, MCA, for the charge of possession of an unlawfully killed game animal in violation of § 87-3-111(1), MCA. Horseman’s conditional plea contained three issues which were subject to appeal:

1. That he had the legal right to kill the animal pursuant to the 1855 Treaty between his tribe, the Gros Ventre, and the United States;
2. That he was unlawfully arrested on the Rocky Boy’s Reservation; and
3. That he was unlawfully extradited from the Rocky Boy’s Reservation.

The District Court accepted Horseman’s plea and found him guilty of possession of an unlawfully killed game animal in violation of § 87-3-111(1), MCA, fined him $500 and suspended his hunting privileges until January 23, 1995. Horseman filed a notice of appeal on August 20,1992.

I

Did the District Court err in determining that Ruben Horseman, an enrolled tribal member of the Fort Belknap Indian Reservation, had possession of an illegally killed bighorn sheep?

Horseman argues that 1851 and 1855 Treaties between the Gros Ventre Tribe and the United States reserved the tribal rights to hunt in traditional hunting grounds. According to Horseman, because he killed the sheep on federal land, he is not subject to State regulations.

The State argues that neither the 1851 or 1855 Treaty, nor any subsequent agreement affecting the Gros Ventre Tribe and the Fort Belknap Treaty, reserved a right for tribal members to hunt on ceded land, or other off-reservation land.

Generally, states have jurisdiction to regulate the wildlife within their borders. Baldwin v. Fish & Game Comm’n (1978), 436 U.S. 371, 98 S.Ct. 1852, 56 L.Ed.2d 354. Tribal members are subject to these state laws when they are off-reservation, unless off-reservation hunting and fishing rights have been expressly reserved by the tribe when they ceded lands to the federal government. Oregon v. Klamath (1985), 473 U.S. 753, 105 S.Ct. 3420, 87 L.Ed.2d 542. Therefore, in order for the Gros Ventre Tribe, and hence Horseman, to have the right to be free from state fish and game regulations while hunting off-reservation, the treaties made between the tribe and the United States must specifically reserve this off-reservation privilege.

We note that Horseman mentioned only the 1855 Treaty when he made his conditional plea. He now argues both the 1851 and 1855 Treaty. Neither treaty provides the reservation he argues.

The Treaty of Fort Laramie was signed in 1851 by the United States and various tribes, including the Gros Ventre. The purposes of the 1851 Treaty were to assure safe passage for settlers across lands of various Indian tribes, to compensate tribes for loss of buffalo, other game animals, timber and forage, to delineate tribal boundaries, to promote intertribal peace and to establish a way of identifying Indians who committed depredations against non-Indians. Montana v. U.S. (1981), 450 U.S. 544, 101 S.Ct. 1245, 67 L.Ed.2d 493; Treaty of Fort Laramie, Act of September 17, 1851, 11 Stat. 749. The tribes agreed to stay in their respective territories.

Article 5 is a tribe-by-tribe list of each tribe’s respective territory. At the end of this article is the following paragraph:

It is, however, understood that, in making this recognition and acknowledgement, the aforesaid Indian nations do not hereby abandon or prejudice any rights or claims they may have to other lands; and further, that they do not surrender the privilege of hunting, fishing, or passing over any of the tracts of country heretofore described.

The phrase “heretofore described” limits the tribal hunting privilege to that tract of land specified for each tribe. The tribes’ respective territories, however, continued to get smaller during subsequent treaties.

In 1855, a treaty with the Blackfeet Nation, of which the Gros Ventre was a tribe, set the boundaries of the Blackfeet territory and established a common hunting ground for 99 years. Treaty with the Blackfeet, Act of October 17, 1855, 11 Stat. 657. This is an express reservation for 99 years — which would have ended in 1954. Despite subsequent treaty documents which diminished tribal lands, the hunting privilege would have been retained on this larger tract of land only until 1954, unless expressly revoked before the 99 years had elapsed.

In 1874, the 43rd Congress set up a reservation for the Gros Ventre, Piegan, Blood, Blackfeet and River Crow. Act of April 15, 1874, 18 Stat. 28. The reservation which was set up during the first session of the 43rd Congress in 1874, was reduced in size by the 50th Congress in 1888. Act of May 1, 1888, 25 Stat. 113. Article II of Chapter 213, published in 1888, states that:

The said Indians hereby cede and relinquish to the United States all their right, title, and interest in and to all the lands embraced within the aforesaid Gros Ventre, Piegan, Blood, Blackfeet and River Crow Reservation, not herein, specifically set apart and reserved as separate reservations for them, and do severally agree to accept and occupy the separate reservations to which they are herein assigned as their permanent homes, and they do hereby severally relinquish to the other tribes or bands respectively occupying the other separate reservations, all their right, title, and interest in and to the same, reserving to themselves only the reservation herein set apart for their separate use and occupation.

What followed was the boundaries for the Fort Peck and Fort Belknap reservations. Nothing in Chapter 213 refers to hunting.

Again, in 1896, an agreement was signed between the United States and the Indians of the Fort Belknap Reservation, 54th Congress, Session I. Act of June 10, 1896, Chapter 398, 29 Stat. 350. In this agreement, the Indians once again ceded land to the United States for which they received payment. Nothing in this chapter reserved hunting rights on lands ceded.

Of all the treaties and subsequent amendments, only the 1855 Treaty reserves hunting rights to common hunting grounds. That reservation was for 99 years only and has now been extinguished.

Horseman cites State v. Stasso (1977), 172 Mont. 242, 563 P.2d 562, as precedent for the fact that he as a tribal member is permitted to hunt in “open and unclaimed” lands off the reservation. Stasso interpreted a treaty with the Salish and Kootenai tribes and is not precedent for a separate treaty with the Gros Ventre.

Stasso involved an interpretation of the Treaty of Hell Gate, signed in 1855. The tribes involved in the Hell Gate Treaty specifically reserved the right to hunt and fish in open and unclaimed areas:

The exclusive right of taking fish in all the streams running through or bordering said reservation is further secured to said Indians; as also the right of taking fish at all usual and accustomed places, in common with citizens of the Territory, and of erecting temporary buildings for curing; together with the privilege of hunting, gathering roots and berries, and pasturing their horses and cattle upon open and unclaimed land. (Emphasis added.)

Article II, Treaty of Hell Gate, Act of July 16,1855,12 Stat. 975. The Stasso case interprets “open and unclaimed lands” to include National Forests, where the particular animal in question was killed.

The treaties involved in the case before us do not contain such wording. The 1855 Treaty with the Blackfeet Nation contains the only express reservation of hunting rights and that reservation of rights ended in 1954. Therefore, Horseman was subject to the State game laws while off the reservation.

We hold that the District Court did not err in determining that Ruben Horseman had possession of an illegally killed big horn sheep.

II

Did the District Court err in determining that it had jurisdiction to rule in Horseman’s case?

Horseman argues that the District Court had no jurisdiction to rule in this case because he is a tribal member and the offense took place on tribal land. The State argues that the offense occurred off the reservation and that Horseman was voluntarily placed in State custody by tribal authority.

Horseman filed a pretrial motion with the District Court to dismiss his case for lack of personal jurisdiction to rule on the case. The court denied the motion. Horseman then entered a conditional guilty plea to the District Court pursuant to § 46-12-204(3), MCA:

With the approval of the court and the consent of the prosecutor, a defendant may enter a plea of guilty, reserving the right, on appeal from the judgment, to review the adverse determination of any specified pretrial motion. If the defendant prevails on appeal, the defendant must be allowed to withdraw the plea.

Horseman’s pretrial motion was one to dismiss for lack of jurisdiction. We review a district court decision of denial of a motion to dismiss as to whether the court abused its discretion. Gold Reserve Corp. v. McCarty (1987), 228 Mont. 512, 744 P.2d 160.

Horseman, as defendant, had the burden of proving to the court that the alleged offense was committed at a location which deprived the State of jurisdiction to prosecute. Stasso, 172 Mont. at 248, 563 P.2d at 565. The record is devoid of any evidence to indicate that the offense for which Horseman is charged occurred on his own reservation, thus denying Hill County jurisdiction. While Horseman argues that the offense occurred on the reservation, statements included in an appellate brief but which are not in the record will not be considered on appeal. Credit Associates v. Harp (1990), 243 Mont. 281, 794 P.2d 343.

The only hard evidence that exists in this file is found in the three original tickets issued by Earnhardt to Horseman. Those tickets state that all three alleged offenses occurred in Hill County, at a location off the Rocky Boy’s reservation. When disputes involving Indians arise within the state but outside of Indian reservation boundaries, the state may assume jurisdiction over the matter. Application of Bertelson (1980), 189 Mont. 524, 617 P.2d 121. Horseman has provided no evidence that jurisdiction lay with another sovereign other than the State of Montana.

Further, Horseman was not a member of the tribes included within the Rocky Boy’s Reservation; he is a member of the Gros Ventre tribe living on the Fort Belknap Reservation. He is, for purposes of this action, a “non-member” Indian on the Rocky Boy’s Reservation where he was detained. At the time of Horseman’s crime, Indian tribes lacked misdemeanor criminal jurisdiction over nonmember Indians. Duro v. Reina (1990), 495 U.S. 676, 110 S.Ct. 2053, 109 L.Ed.2d 693. Rocky Boy’s tribes, therefore, had no jurisdiction for Horseman’s misdemeanor crime because Horseman was a member of another tribe from the Fort Belknap Reservation.

Duro has now been superseded by federal statute reinstating a tribe’s misdemeanor criminal jurisdiction over non-members. That reinstatement did not take effect, however, until October 18, 1991. The crime with which we are concerned took place in October of 1990, a full year before the tribes regained their misdemeanor criminal jurisdiction over non-member Indians. See Act Nov. 5, 1990, P.L. 101-511, § 8077(d), 104 Stat. 1893; Oct. 9,1991, P.L. 102-124, § 1,105 Stat. 616, was repealed by Act Oct. 28, 1991, P.L. 102-137, § 1, 105 Stat. 646.

We conclude that the District Court had proper jurisdiction to rule in this case. Therefore, we hold that the District Court did not err in assuming jurisdiction over Horseman’s case.

Ill

Did the District Court properly conclude that no evidence was presented that demonstrated that any established Rocky Boy’s Indian Reservation’s extradition procedures were violated or that extradition was, in fact, required?

Horseman argues that he was illegally transported off the reservation. His contention is that the Rocky Boy’s Tribal extradition procedures were not used. The State contends that the act of possessing and transporting an illegally killed game animal occurred off the reservation in Hill County and that Horseman’s arrest and subsequent exit from the reservation occurred with the complete cooperation of tribal authorities.

The District Court determined that Horseman’s arrest occurred with the help and cooperation of tribal authorities. The court then determined that no evidence was presented by Horseman that Rocky Boy’s extradition procedures were violated or that extradition was even required.

Both parties to this action have failed to present to this Court or to the lower court any of the appropriate case law upon which this case must be decided. Three months before Horseman illegally killed the big horn sheep, the United States Supreme Court in a well publicized opinion stated that:

[the] assertion of jurisdiction by the Tribe over an Indian who was not a member would violate the equal protection guarantees of the Indian Civil Rights Act.

Duro, 495 U.S. at 682, 110 S.Ct. at 2058. The Duro Court went on to hold that:

Indian tribes lack jurisdiction over persons who are not tribe members.

Duro, 495 U.S. at 685, 110 S.Ct. at 2059. Thus, according to the law at the time of the crime, the Rocky Boy’s tribes had no misdemeanor criminal jurisdiction over Horseman, a member of the Fort Belknap Reservation.

Although the Duro decision has been superseded by statute, the decision is still good law as it involves tribal sovereignty. The case has been cited as precedent for the proposition that:

Where jurisdiction to try and punish an offender rests outside the tribe, tribal officers may exercise their power to detain the offender and transport him to the proper authorities.

Duro, 495 U.S. at 697, 110 S.Ct. at 2066. See Primeaux v. Leapley (S.D. 1993), 502 N.W.2d 265, 270, and State v. Schmuck (Wash. 1993), 850 P.2d 1332, 1339.

Here, the State offered the Primeaux decision in a “Notice” filed at the eleventh hour on November 12,1993. The notice was an attempt to present this Court with additional “recent” authority in the Horseman case. The “recent” Primeaux decision cited by the State was actually decided in June of 1993, two months before the Horseman action was filed in this Court. It was presented to the Court three months after the August, 1993, filing date of the last brief on appeal. The State’s “Notice” is inappropriate. It does more than simply add a more “recent” authority on an already argued legal theory — it adds a totally new legal argument to the case, heretofore unmentioned in either party’s court documents.

In its appellate briefs, neither party argued the Duro decision which was relied on by the Primeaux court. Nor did either party attach any importance to Horseman’s non-member status at the time of the crime. Neither party mentions tribal sovereignty. The only issue argued on appeal is extradition and whether it was needed or not.

The underlying issue in this case is not whether the formal procedures for extradition were needed or applied correctly, but whether the Rocky Boy’s warden as an officer of the tribe had the jurisdiction under the facts of this case to cooperate with Earnhardt and detain Horseman. The United States Supreme Court has stated that the tribes also possess their traditional and undisputed power to exclude persons whom they deem to be undesirable from tribal lands. Brendale v. Confederated Tribes & Bands of the Yakima Nation (1989), 492 U.S. 408, 109 S.Ct. 2994, 106 L.Ed.2d 343. Subsequent to Brendale, the Duro Court stated that:

Tribal law enforcement authorities have the power to restrain those who disturb public order on the reservation, and if necessary, to eject them.

Duro, 495 U.S. at 697, 110 S.Ct. at 2065-2066.

Earnhardt radioed Denny that the suspect was approaching the reservation and that he could not get to him before he entered the reservation. Earnhardt asked for Denny’s help in stopping the suspect whom he suspected had possession of an illegally killed big horn sheep. Denny stopped Horseman, discovered the sheep, and detained Horseman for several minutes until Earnhardt arrived. We conclude that under the precedent concerning sovereignty of a tribe, the Rocky Boy’s warden acted appropriately within his tribal jurisdiction by detaining and then relinquishing Horseman to Hill County authorities.

We conclude that Horseman has offered no evidence that would indicate that the Chippewa-Cree tribal code applies to the facts of this case. The facts show that a tribal officer detained Horseman upon request from Earnhardt and that according to fundamental principles of tribal sovereignty, the tribal officer had authority to relinquish Horseman to Earnhardt. The record indicates that any consideration of extradition is extraneous to the facts of this case.

We hold the District Court properly concluded that no evidence was presented that demonstrated any established Rocky Boy’s Indian Reservation extradition procedures were violated or that extradition was, in fact, required.

Affirmed.

CHIEF JUSTICE TURNAGE, JUSTICES HARRISON, GRAY and NELSON concur.

JUSTICE TRIEWEILER

dissenting.

I dissent from that part of the majority opinion which concludes that Ruben Horseman’s arrest by a Montana Game Warden did not violate the extradition laws of the Rocky Boy’s Reservation.

The Chippewa-Cree Law and Order Code, Title IV, Part 1, Section 1.12, provides in relevant part that:

(2) An alleged fugitive may not be turned over to state or federal authorities until after the person has been afforded a hearing in Tribal Court to determine whether probable cause exists as to the allegation of a crime by that person.

The District Court ignored the tribal extradition law based on its erroneous conclusion that it had no evidence that the Tribe’s extradition rules had been violated. However, Rule 202(d), M.R.Evid., provides that:

A court shall take judicial notice:
(1) of the common law, constitutions and statutes of the United States and of this and every other state, territory and jurisdiction of the United States. [Emphasis added].

The Rocky Boy’s Reservation is a jurisdiction within the United States and the District Court had an obligation to take judicial notice of the extradition procedure provided for in its Law and Order Code.

The majority opinion disposes of Horseman’s invocation of the Tribe’s extradition procedure based on decisions which have nothing to do with this issue. The U.S. Supreme Court’s ill-advised decision in Duro v. Reina (1990), 495 U.S. 676, 110 S. Ct. 2053, 109 L. Ed. 2d 693, dealt with a tribe’s authority to prosecute non-members for misdemeanors committed on the reservation. It had nothing to do with the Tribe’s authority to establish reasonable extradition procedures for those who commit crimes elsewhere but are apprehended on the reservation.

Neither is the fact that tribes have undisputed authority to exclude undesirable people from their land relevant. The fact in this case is that the Tribe has established a procedure by which undesirable people may be excluded, and it was not followed. The fact that a tribal law enforcement officer participated in the violation of the Tribe’s extradition procedure makes no difference. It was still violated, and its violation was an infringement on the sovereignty of the Rocky Boy’s Reservation. Such infringement should not be tolerated, and this fact alone is a sufficient basis for invalidating Horseman’s arrest.

I agree with the decision of the Ninth Circuit Court of Appeals in Arizona ex rel. Merrill v. Turtle (9th Cir. 1969), 413 F.2d 683, when it held that the State of Arizona could not ignore the Navajo Tribe’s extradition laws. In that case, the Ninth Circuit stated that:

We have been referred to no specific Congressional action limiting the power of the Navajo tribal government to deal with the extradition of Indians resident within the Reservation or granting to the State of Arizona the authority to exercise extradition jurisdiction over such residents. In these circumstances, Arizona’s right to exercise the jurisdiction claimed must be determined in light of whether such exercise would “infring[e] on the right of reservation Indians to make their own laws and be ruled by them,” (Williams v. Lee, supra at p. 220 of 358 U.S. [217], at p. 271 of 79 S.Ct. [269, 3 L.Ed.2d 251]) or, as the Williams’ test was characterized by the court in Kake, Organized Village of v. Egan, 369 U.S. 60, 82 S.Ct. 562, 7 L.Ed.2d 573 (1961), “whether the application of that law would interfere with reservation self-government.” Id. at p. 67, 82 S.Ct. at p. 567.
Applying these considerations, we conclude that Arizona’s exercise of the claimed jurisdiction would clearly interfere with rights essential to the Navajo’s self-government. The essential and intimate relationship of control of the extradition process to the right of self-government was recognized long ago in Kentucky v. Dennison, 24 How. 66, 16 L.Ed. 717 (1861), holding that there is no power, state or federal, to compel a state to perform its constitutional duty of extradition.
In 1956, the Navajo Tribal Council, the tribal legislative body, adopted a Resolution providing procedures for Indian extradition. ... The Tribe has thus codified and does now exercise its extradition power. This power cannot now be assumed by or shared with the State of Arizona without “infringing] on the right of reservation Indians to make their own laws and be ruled by them.” Williams v. Lee, supra at p. 220 of 358 U.S., at p. 271 of 79 S.Ct. [Footnote omitted].

Merrill, 413 F.2d at 685-86.

Likewise, we have been referred to no federal action which would limit the right of the Rocky Boy’s Reservation to deal with the extradition of individuals found and arrested on tribal land for crimes which were committed elsewhere. To limit that authority by judicial decision, as the majority has done, clearly interferes with the rights essential to the Tribe’s self-government. Therefore, I dissent from that part of the majority opinion which concludes that Horseman’s arrest was not illegal because it did not violate the extradition procedures established by the Chippewa-Cree Law and Order Code.

JUSTICE HUNT joins in the foregoing dissent.