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FORT PECK COURT OF APPEALS
ASSINIBOINE AND SIOUX TRIBES
FORT PECK INDIAN RESERVATION
POPLAR, MONTANA
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    FOR APPELLANT: David L. Irving, Attorney at Law, Drawer B, Glasgow, Montana 59230.

    FOR APPELLEE: Ralph J. Patch, Attorney at Law, P. 0. Box 1079, Wolf Point, Montana 59201 appearing for and with Mary L. Zemyan, Attorney at Law, P. 0. Box 1094, Wolf point, Montana 59201.

    APPELLANT filed an Appeal Brief with the Clerk of the Fort Peck Tribal Court of Appeals. APPELLEE also filed a brief. On March 13, 1987, APPELLANT and APPELLEE presented oral arguments.

    OPINION by Gary James Melbourne, Justice, joined by Arnie A. Hove, Chief Justice, and Daniel R. Schauer, Justice.

    HELD: THE OPINION DELIVERED MARCH 13, 1987 WAS IN ERROR AND IS HEREBY VACATED. THE JUDGMENT GRANTING FULL FAITH AND CREDIT TO APPELLANT’S JUDGMENT BY DEFAULT ENTERED JULY 28, 1986, BY THE FORT PECK TRIBAL COURT WAS PROPER AND IS HEREBY GRANTED.

    FURTHER HELD: THAT ALL ATTORNEYS AND LAY COUNSELORS HAVE A DUTY PURSUANT TO RULE 3.3(a)(3) OF THE ABA RULES OF PROFESSIONAL CONDUCT TO DISCLOSE TO THIS TRIBUNAL LEGAL AUTHORITY IN THE CONTROLLING JURISDICTION KNOWN TO THE LAWYER TO BE DIRECTLY ADVERSE TO THE POSITION OF THE CLIENT AND NOT DISCLOSED BY OPPOSING COUNSEL.

    Appellant McKinney Motors (hereinafter sometimes "Appellant Dealer") and Appellee Alves J. Bird (hereinafter sometimes "Appellee Customer") agreed with the following statement of facts. Appellant Dealer is an authorized auto dealership doing business in Culbertson, Roosevelt County, Montana. Appellee Customer is an enrolled member of the Fort Peck Tribes and was, at the time in question, a regular customer of McKinney Motors. During a relatively short period of time prior to the filing of the Complaint in April of 1984, Appellee Customer had purchased from Appellant Dealer approximately thirty—five automobiles. An account was maintained for Appellee Customer and she routinely made payments thereon by check for said automobiles purchased as well as for parts and services. Three of the checks from the Culbertson State Bank were returned to Appellant Dealer for non—sufficient funds. When Appellant Dealer confirmed that funds were unavailable, suit was filed on behalf of Appellant Dealer by Gerard M. Schuster, Attorney at Law, Wolf Point, Montana, and, when negotiations for settlement broke down, a judgment by default was taken against Appellee Customer on December 28, 1984.

    Appellant Dealer and Appellee Customer also agreed with the following statement of the case. On July 2, 1986, Appellant Dealer filed a motion for comity in the Fort Peck Tribal Court, Poplar, Montana, requesting that said court recognize and enforce by full faith and credit a judgment by default, rendered on December 28, 1984, in the District Court of the Fifteenth Judicial District of the State of Montana in and for the County of Roosevelt, in Cause No. 9890, between the above-referenced parties. The complaint was for collection of monies on an account between the parties concerning checks not paid for lack of sufficient funds.

    Appellee Customer was served on July 3, 1986, with the motion papers and was mailed a notice of hearing, on July 7, 1986, and both parties attended, testified and introduced evidence on their own behalf. On July 28, 1986, the court entered judgment granting full faith and credit for the default judgment for the amount testified to allowing for the original award with interest plus costs but minus payments made thereon.

    On September 11, 1986, Appellee Customer made a motion for rehearing and stay of execution on the July 28, 1986, judgment, which were granted by the court on the same day. Further, the court granted an exemption of $1,500.00 per month and authorized the Bureau of Indian Affairs to release said funds pending resolution of this matter.

    On October 15, 1986, the rehearing of this matter was held and both parties, who were represented by counsel, did appear and testify and evidence and testimony by their respective witnesses was submitted as well. On October 16, 1986, the court entered the findings of fact, conclusions of law and judgment. Therein, the court vacated the July 28, 1986, judgment granting full faith and credit and denied Appellant Dealer’s motion for comity on the issue of jurisdiction.

    On October 23, 1986, Appellant Dealer filed a petition for review requesting that the Court of Appeals reverse the Tribal Court judgment of October 16, 1986; affirm the judgment granting proceedings, or any action thereon, pending outcome of this appeal. A response opposing review was filed by Appellee Customer on October 24, 1986.  

    On January 20, 1987, the Fort Peck Court of Appeals granted Appellant Dealer’s petition for appeal and further scheduled briefing and oral arguments thereon. Appellant Dealer’s petition for review based the appeal on seven grounds. The grounds were as follows:

1. The judgment by default of the District Court, for Roosevelt County, Cause No. 9890, entered December 28, 1984, is proper as to jurisdiction and the amount adjudged therein.

2. The judgment granting full faith and credit, to said judgment by default, entered on July 28, 1986, by the Fort Peck Tribal Court, is proper, and should not have been vacated.

3. The motion for rehearing and stay of execution filed on September 11, 1986, by Appellee Customer should have been denied as it was improper and without merit.

4. The primary issue at trial was whether or not Appellee Customer was served off the reservation in the District Court action thereby giving that court the power to adjudge Appellee Customer in default.

5. Appellant Dealer argues the evidence was sufficient to prove that service was proper; and, therefore, the District Court judgment and the Tribal Court judgment recognizing the same were both proper.

6. Thus, the order vacating judgment entered on October 16, 1986, was contrary to the evidence that established proper jurisdiction in the courts below.

7. Finally, the judgment of October 16, 1986, is not only without basis but clearly prejudices Appellant Dealer who has been prosecuting this action for over two years in two jurisdictions at great expense as to a debt that has been adjudged as correct and owing to Apellant Dealer.

    APPELLEE CUSTOMER’S brief, narrowed the above grounds to three issues which were as follows:

1. Whether the action of the Fort Peck Tribal Court in holding a hearing on October 15, 1986, was proper.

2. Whether the preponderance of the evidence submitted at the hearing supports the decision that the District Court order lacked personal jurisdiction over Appellee Customer.

3. Whether Appellant Dealer failed to meet its burden of proof regarding enforcement of the District Court order.

In this opinion, Appellant Dealer’s grounds are actually addressed in Appellee’s three issues and will be discussed in greater detail below. The first two and final issues to be addressed are the following:

1. Whether this court has jurisdiction over this appeal and what are the limits of review.

2. Whether the Fort Peck Tribal Courts have a procedure for granting full faith and credit to a District Court judgment.

3. Whether the attorney failed to disclose to this court legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel.

I.

WHETHER THIS COURT HAS JURISDICTION OVER THIS APPEAL AND WHAT ARE THE LIMITS OF REVIEW.

    Title I, Section 205(b), of the Comprehensive Code of Justice of the Assiniboine and Sioux Tribes (I CCOJ 205 (b)) reads as follows:

"Civil cases. Any party who is aggrieved by a final order or judgment of the Tribal Court may file a petition requesting the Court of Appeals to review that order or judgment as provided in Section 207."

This court has jurisdiction of appeals as granted by I CCOJ 202. I CCOJ 202 reads in part as follows:

    "Jurisdiction of Court of Appeals.

    The jurisdiction of the Court of Appeals shall extend to all appeals from final orders and judgments of the Tribal Court. The Court of Appeals shall review de novo all determinations of the Tribal Court on matters of law, but shall not set aside any factual determinations of the Tribal Court if such determinations are supported by substantial evidence...."

    Appellant Dealer was aggrieved by a final order or judgment of the Tribal Court when its motion for recognition and enforcement of the judgment by default by the Clerk of Court of the Fifteenth Judicial District of the State of Montana, in and for the County of Roosevelt, in Cause No. 9890 between the above—referenced parties was denied. Therefore, this Court has jurisdiction as hereinabove set forth and will review the determinations of the Tribal Court on matters of law in relation to the issues as presented by Appellee Customer and the evidence presented by both parties.

II.

WHETHER THE FORT PECK TRIBAL COURTS HAVE A PROCEDURE FOR GRANTING FULL FAITH AND CREDIT TO A DISTRICT COURT JUDGMENT.

    The Fort Peck Comprehensive Code of Justice (CCOJ) sets forth no procedure for obtaining recognition and enforcement of a district court judgment. In determining what laws to apply to a particular case in Tribal Court when the CCOJ is silent on the subject, IV CCOJ 501 reads as follows:

    "Applicable laws.

    "In determining any case over which it has jurisdiction, the Court shall give binding effect to

    "(a) any applicable constitutional provision, treaty, law, or any valid regulation of the United States;

    "(b) any applicable provision of the tribal Constitution or any law of the Tribes not in conflict with federal law;

    "(c) any applicable custom or usage of the Tribes not in conflict with any law of the Tribes or of the United States. Where doubt arises as to such customs and usages, the Court may request the testimony, as witnesses of the Court, of persons familiar with such customs and usages. [sic]

    "(d) where appropriate, the Court may in its discretion be guided by statutes, common law or rules of decision of the State in which the transaction or occurrence giving rise to the cause of action took place."

    In enforcing a district court order in this matter and subsequent matters, IV CCOJ 501(d) set forth above gives direction to proper enforcement. We are to be "guided by statutes, common law or rules of decision of the State in which the transaction or occurrence giving rise to the cause of action took place." In Wippert v. Blackfeet Tribe, 201 Mont. 299, 304-305, 654 P.2d 512 (1982) (emphasis in original), the court gave the following guidance to property enforcement of tribal court judgments by state courts:

    "Tribal court judgments are treated with the same deference shown decisions of foreign nations as a matter of comity. Hilton v. Guyot (1895), 159 U.S. 113, 163-64, 16 S.Ct. 139, 143, 40 L.Ed. 95, 108; In re Marriage of Limpy (1981), Mont., 636 P.2d 266, 38 St.Rep. 1885; State ex rel Stewart v. District Court (1980), Mont., 609 P.2d 290, 37 St.Rep. 635; Red Fox and Red Fox 23 Ore.App. 393, 542 P.2d 918; Wakefield v. Little Light (1975), 276 Md. 333, 347 A.2d 228; In Re Lynch’s Estate (1962), 92 Ariz. 354, 377 P.2d 199; Begay v. Miller (1950), 70 Ariz. 380, 222 P.2d 624...[T]o

enforce a judgment rendered in a foreign country or another state, an action or a special proceeding must be instituted in the District Court of the county where the judgment is sought to be enforced. See section 26-3-203, MCA...

    "Once a party files an action or a special proceeding to enforce a tribal or foreign judgment against a person, section 26-3-205(2), MCA, authorizes courts of this state to presume that the tribal or foreign judgment ...is evidence of a right as between the parties...and can only be repelled by evidence of a want of jurisdiction, want of notice to the party, collusion, fraud, or clear mistake of law of fact.’ "

    In turn, because of TV CCOJ 501, the Tribal Court should be and actually has been applying the same method for enforcement of district court and foreign judgments on the Fort Peck Indian as is the present case.

III.

WHETHER THE ACTION OF THE FORT PECK TRIBAL COURT IN HOLDING A HEARING ON OCTOBER 15, 1986, WAS PROPER.

    On September 11, 1986, Appellee requested the Tribal Court to set aside the judgment granting full faith and credit that was entered on July 28, 1986, in this matter. Although captioned motion for rehearing and stay of execution, this motion was in substance, if not in form, a motion brought under Rule 60(b) of the Federal Rules of Civil Procedure (FRCivP 60(b))and addressed to the equitable powers of the Fort Peck Tribal Court. FRCiv P 60(b) reads in full as follows:

"On motion and upon such terms as are just, the court may relieve a party or his legal representative from a final judgment, order, or proceeding for the following reasons: (1) mistake, inadvertence, surprise, or excusable neglect; (2) newly discovered evidence which by due diligence could not have been discovered in time to move for a new trial under Rule 59(b); (3) fraud (whether heretofore denominated intrinsic or extrinsic), misrepresentation, or other misconduct of an adverse party; (4) the judgment is void; (5) the judgment has been satisfied, released, or discharged, or a prior judgment upon which it is based has been reversed or otherwise vacated, or it is no longer equitable that the judgment should have prospective application; or (6) any other reason justifying relief from the operation of the judgment. The motion shall be made within a reasonable time, and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. A motion under this subdivision (b) does not affect the finality of a judgment or suspend its operation. This rule does not limit the power of a court to entertain an independent action to relieve a party form a judgment, order, or proceeding, or to grant relief to a defendant not actually personally notified as provided in Title 28, U. S. C., Section 1655, or to set aside a judgment for fraud upon the court. Writs of coram nobis, coram vobis, audita querela, and bills of review and bills in the nature of a bill of review, are abolished, and the procedure for obtaining any relief from a judgment shall be by motion as prescribed in these rules or by an independent action."

    As reasons for the motion, Appellee Customer alleged (1) there was a lack of personal jurisdiction in the action that was brought against her in the District Court and (2) that she lacked representation at the hearing on July 28, 1987. At the hearing held October 15, 1986, Judge Hodge commented that rehearing was granted by the court "on its own motion."

    As is recognized in many cases under the federal rule, a motion for relief from a judgment is addressed to the sound discretion of the court, although there are some situations so extreme that the result is almost foreordained and it would be an abuse of discretion either to grant relief or to deny relief. Appellate review of decisions under FRCivP 60(b) are limited to determining whether the lower court abused its discretion. See: Wright and Miller, Federal Practice and Procedure, Section 2857. Here, the Court had questions whether the district court order was proper in is jurisdictional bases. (Transcript, page 1, lines 27-28)

    It is without argument that a court must have jurisdiction and follow procedure before allowing judgment to be entered and later enforced. The district court judgment against Appellee Customer was obtained by default and without representation. In light of the above, the action of the Fort Peck Tribal Court in holding a hearing on October 15, 1986 was appropriate to determine whether the state action was proper and the District Court had jurisdiction.

FRCivP 60(b) requires that motions be made "within a reasonable time" and for reasons (1), (2), and (3) not more than one year after the judgment, order, or proceeding was entered or taken. It was submitted by Appellee Customer that 45 days is a "reasonable time" and that the action of Judge Hodge in holding a rehearing on October 15, 1986, was a proper exercise of discretion that is vested in any judge with equitable jurisdiction, which includes the Judges of the Fort Peck Tribal Court. Because of FRCivP 60(b) and the circumstances of this case, 45 days is a reasonable time in which to grant and hold a rehearing on the issue of jurisdiction and the validity of a judgment from the District Court of Roosevelt County recognized by a judgment granting full faith and credit in Tribal Court.

    Therefore, the action of the Fort Peck Tribal Court in holding a hearing on October 15, 1986 was not only proper, but timely under the circumstances.

IV.

WHETHER THE PREPONDERANCE OF THE EVIDENCE SUBMITTED AT THE HEARING SUPPORTS THE DECISION THAT THE DISTRICT COURT ORDER LACKED PERSONAL JURISDICTION OVER APPELLEE CUSTOMER.

    The Tribal Court at the rehearing on October 15, 1986, found that Appellee Customer was not served with process outside the exterior boundaries of the reservation and, therefore, held that there was no personal jurisdiction of Appellee Customer by the District Court. The Tribal Court then vacated the original Tribal Court Judgment of July 28, 1986 which had granted full faith and credit. In adequately addressing whether the judgment granting full faith and credit should have been vacated (Issue No. 2), we must first discuss whether this was a proper state action and then whether the District Court lacked personal jurisdiction.

    The judgment in this matter is for an account involving a member of the Fort Peck Tribe residing on the Fort Peck Indian Reservation and a non-member located off the reservation in Culbertson, Roosevelt County, Montana. Appellee Customer purchased cars from McKinney Motors in Culbertson, Montana. The checks were written to Appellant Dealer by Appellee Customer on an account with the Culbertson State Bank of Culbertson, Montana. The task to be performed by this court is to review the District Court’s action of entering Appellant’s default judgment and whether it should be recognized by the Tribal Court.

    Because this transaction giving rise to the cause of action took place off the reservation in Culbertson, Montana, this court will look at rules of decision in Montana. In Little Horn State Bank v. Stops, 170 Mont. 510, 513-514, 555 P.2d 211 (1976), the Montana Supreme Court set forth a detailed analysis of the test to review state action:

    "The United States Supreme Court has applied different rationale from time to time, and the recent court decisions must be read as a whole to arrive at the proper test to be applied in this case. The initial test was propounded in Williams v. Lee, 358 U.s. 217, 220, 79 S.Ct. 269, 271, 3 L.Ed.2d 251, 254 which stated:

" ‘...Essentially, absent governing Acts of Congress, the question has always been whether the state action infringed on the right of reservation Indians to make their own laws and be ruled by them. "

This test was apparently overruled by Kennerly v. District Court of Montana, 400 U.S. 423, 91 S.Ct. 480, 27 L.Ed.2d 507, However, in McClanahan v. Arizona Tax Commission, 411 U.S. 164, 179, 93 S.Ct. 1257, 1266, 36 L.Ed2d 129, 140, 141, the Court revived the Williams test stating:

    " ‘It must be remembered that cases applying the Williams test have dealt principally with situations involving non-Indians. [Citations omitted.] In these situations, both the tribe [sic] and the State [sic] could fairly claim an interest in asserting their respective jurisdictions. The Williams test was designed to resolve this conflict by providing that the State could protect its interest up to the point where tribal self-government would be affected.

" '...

" '... This Court has therefore held the "the question has always been whether the state action infringed on the right reservation Indians to make their own laws and be ruled by them."

The Court still adheres to the Williams test as evidence by the recent decision of Fisher v. District Court of Montana, 424 U.S. 382, 96 S.Ct. 943, 47 L.Ed.2d 106 (1976), when the court applied the Williams test, even though all parties where member of the Northern Cheyenne Tribe, and the litigation arose on the reservation.

    In Little Horn State Bank vs. Stops, id. at 515—516, 55 P2d at 213—214, the Montana Supreme Court set forth the following rationale, which this Court will apply to the present case:

    "The Williams test is appropriate to review this appeal. The litigation involves a member of the Crow Tribe residing on the Crow Indian Reservation and a non-member, located off the reservation. It is important to note that the transaction in dispute arose off the reservation. Therefore, we must determine whether state action, in the form of a writ of execution to enforce a judgment rendered on a transaction arising outside the reservation, interferes with the tribe’s right to make its own rules and be governed by them.

    "We hold that it does not.

    "The cases holding that such interference has occurred present a combination of the transaction occurring on the reservation and the tribal court providing jurisdiction over such matters. In Williams the tribal court exercised jurisdiction over disputes over commercial transactions arising on the reservation between members and non-members. In Security State Bank v. Pierre, 162 Mont. 298, 511 P.2d 325, the tribal court provided for civil litigation between members and nonmembers. In Fisher, the most recent United States Supreme Court case so holding, the facts relating to the child custody dispute all arose on the reservation, and the Crow Tribe provided for custody litigation among members (all parties were members of the Crow Tribe). We note that in the situation at hand the Crow Tribal Court only exercises jurisdiction over civil litigation between members and nonmembers if both parties so stipulate.

    "However, what is in issue in this case is the enforcement of a valid judgment, not the proper court to initiate the litigation. The transaction did not occur on the reservation as in the above cases but outside the reservation boundaries. The subject matter jurisdiction was within the state court, not the tribal court. The Crow Tribe provides no means of enforcing state court judgments, no method of attaching property of a state judgment debtor, and is not subject to the full faith and credit clause as sister states are. Until the Crow Tribe has provided a means of such enforcement or acted in some manner within this area, we fail to see how tribal self—government is interfered with by assuring that reservation Indians pay for their debts incurred off the reservation.

    "The crucial fact of this appeal is that the subject matter jurisdiction lies with the state court, not the tribal court. In this case the tribal members elected to leave the reservation and conduct their affairs within the jurisdiction of the state courts. When they do so they are submitting themselves to the laws of this state. They cannot violate those laws and then retreat to the sanctuary of the reservation for protection. The cases analogous [sic] to the situation presented here are: State Securities, Inc. v. Anderson, 84 N.M. 629, 506 P.2d 786, 789; Natewa v. Natewa, 84 N.M. 69, 499 P.2d 691, 693; and State ex rel. Old Elk v. District Court, [170] Mont. [208] , 552 P.2d 1394, 33 St.Rep. 637 (1976). In all of these cases the state court properly had jurisdiction over the dispute at hand and process was allowed on the reservation to bring the Indian defendant before the state court."

    As in Little Horn State Bank v. Stops, the crucial fact in this case is that the subject matter jurisdiction lies with the state court, not the tribal court in that the transaction in dispute arose off the reservation. As in Little Horn State Bank v. Stops, Appellee Customer, a tribal member, elected to leave the reservation and conduct her affairs within the jurisdiction of the state courts. In this case there is some question as to where service of process was made, however, in light of Little Horn State Bank v. Stops, the state court would properly have personal jurisdiction if Appellee Customer had been served on the reservation in Brockton, Montana, or off the reservation in Culbertson, Montana. Therefore, the Tribal Court’s finding that Appellee Customer was served on the reservation in Brockton was correct, however, its holding that the District Court did not have personal jurisdiction was incorrect, and the Tribal Court’s order denying the judgment granting full faith and credit is vacated.

V.

WHETHER THE APPELLANT FAILED TO MEET ITS BURDEN OF PROOF REGARDING ENFORCEMENT OF THE DISTRICT COURT ORDER.

    As for addressing Issue No. 5, Appellant Dealer may have failed to establish that Appellee Customer was served in Culbertson, Montana; however, this alone does not void the default judgment and justify the October 15, 1986 order denying the enforcement of the District Court default judgment by vacation of Appellant Dealer’s judgment granting full faith and credit which was dated July 28, 1986. The facts of this case give subject matter jurisdiction to the District Court. Clearly, the Tribal Court improperly applied the law and rules of law in determining that the District Court did not have personal jurisdiction in this matter because service was not made off the reservation.

    Therefore, it is not necessary for Appellant Dealer to meet any burden of proof regarding the enforcement of a District Court judgment entered when the District Court has subject matter jurisdiction over a dispute arising off the reservation between a member and non-member of a tribe. (See discussion of Issue No. 2.)

    As for proper enforcement, the Tribal Court actually is applying the appropriate method for enforcement of district court and foreign judgments on the reservation as set forth in Wippert. A special proceeding was held July 28, 1986, and a judgment granting full faith and credit was entered by the Tribal Court. A determination of lack of personal jurisdiction made by the Tribal Court on October 15, 1986, was in error. The evidence is clear that subject matter jurisdiction was in the District Court in Roosevelt County, Montana, and there could be no want of jurisdiction as a result of service of process being made on the reservation. The applicable rules of decision of Montana did not require service off the reservation to for obtain personal jurisdiction.

    Therefore, Appellant Dealer did not have a burden of proof to meet regarding the enforcement of a district court order. The judgment granting full faith and credit to Appellant Dealer’s judgment by default, entered July 29, 1986, by the Fort Peck Tribal Court was proper, and should have been granted, as to jurisdiction and amount.

VI.

WHETHER THE ATTORNEY FAILED TO DISCLOSE TO THIS COURT LEGAL AUTHORITY IN THE CONTROLLING JURISDICTION KNOWN TO HER TO BE DIRECTLY ADVERSE TO THE POSITION OF THE CLIENT AND NOT DISCLOSED BY OPPOSING COUNSEL.

    AT THE HEARING MARCH 13,1987, IT WAS THE UNANIMOUS DECISION OF THIS COURT TO AFFIRM THE FORT PECK TRIBAL COURT’S FINDINGS OF FACT, CONCLUSIONS OF LAW AND JUDGMENT, ENTERED OCTOBER 16, 1986 DENYING, WITHOUT PREJUDICE, APPELLANT DEALER’S RECOGNITION AND ENFORCEMENT OF THE JUDGMENT BY DEFAULT BY THE CLERK OF COURT OF THE FIFTEENTH JUDICIAL DISTRICT OF THE STATE OF MONTANA, IN AND FOR THE COUNTY OF ROOSEVELT, IN CAUSE No. 9890 IN THAT THERE WAS NO PERSONAL JURISDICTION OF APPELLEE CUSTOMER.

    At the presentation of the oral arguments and from the briefs filed by Appellee Customer, it appears that this court was never advised of the legal authority hereinabove presented and which resulted in this Court reversing its initial ruling. It would appear that the attorney for Appellee may have violated Rule 3.3(a)(3) of the ABA Rules of Professional Conduct. This rule reads in part as follows:

"(a) A lawyer shall not knowingly:

...    
    
(3) fail to disclose to the tribunal legal authority in the controlling jurisdiction known to the lawyer to be directly adverse to the position of the client and not disclosed by opposing counsel...."

    It is obvious that all of the attorneys in this matter failed to advise this Court of the proper legal authority to apply in this matter. What is not so obvious is whether Appellee Customer’s original attorney knowingly failed to disclose to the Tribal Court and this Court legal authority adverse to the position of the attorney’s client. Attorney and lay counselors are hereinafter directed to do thorough research and bring to the attention of this Court legal authority known to the attorney to be directly adverse to their position to avoid future reversals and possible disciplinary action by this Court.

_______________________________________________________________________________________________

    HELD: THE OPINION DELIVERED MARCH 13, 1987 WAS IN ERROR AND IS HEREBY VACATED. THE JUDGMENT GRANTING FULL FAITH AND CREDIT TO APPELLANT DEALER’S JUDGMENT BY DEFAULT ENTERED JULY 28, 1986, BY THE FORT PECK TRIBAL COURT WAS PROPER AND IS HEREBY GRANTED. FURTHER HELD: THAT ALL ATTORNEYS AND LAY COUNSELORS HAVE A DUTY PURSUANT TO RULE 3.3(a)(3) OF THE ABA RULES OF PROFESSIONAL CONDUCT TO DISCLOSE TO THIS TRIBUNAL LEGAL AUTHORITY IN THE CONTROLLING JURISDICTION KNOWN TO THE LAWYER TO BE DIRECTLY ADVERSE TO THE POSITION OF THE CLIENT AND NOT DISCLOSED BY OPPOSING COUNSEL.

    DONE this ______ day of June, 1987.

BY THE COURT OF APPEALS:

_________________________
Arnie A. Hove, Chief Justice

_________________________
Daniel R. Schauer, Justice

__________________________
Gary James Melbourne, Justice

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